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10,507,259	SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees	Sweet Home Chapter of Communities for a Great Oregon v. Babbitt	1993-07-23	No. 92-5255	United States Court of Appeals for the District of Columbia Circuit	{"judges": ["Before MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges."], "parties": ["SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees."], "opinions": [{"text": "Opinion for the Court filed by Chief Judge MIKVA, except section 11(A)(1), which is filed per curiam. Opinion concurring in section 11(A)(1) filed by Chief Judge MIKVA. Opinion concurring in section 11(A)(1) filed by Circuit Judge WILLIAMS.\nOpinion dissenting in part filed by Circuit Judge SENTELLE.\nMIKVA, Chief Judge:\nAppellants, a group of non-profit citizens’ groups, lumber companies, and lumber trade associations, oppose two regulations promulgated by the Fish and Wildlife Service (“FWS” or “agency”) under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44. They appeal a memorandum opinion and order by the district court upholding the regulations by summary judgment and denying appellants’ own motion for summary judgment. We find that the challenged regulations are reasonable interpretations of the ESA. We also reject appellants’ claim that one of the regulations is void for vagueness. We therefore affirm the district court’s judgment.\nI. BACKGROUND\nThe Endangered Species Act of 1973 is a multifaceted and comprehensive law directed toward halting the extinction of species. It is implemented primarily by the Fish and Wildlife Service, an agency of the Department of the Interior. The ESA employs a number of techniques to preserve endangered and threatened species, including land acquisition by the government, the implementation of conservation programs by federal agencies, and the prohibition of various federal and private actions that harm listed species.\nAmong the more important sections of the ESA is 16 U.S.C. § 1538(a)(1), which forbids any person from committing any of a broad array of activities deemed dangerous to the continued survival of endangered fish and wildlife species. This appeal focuses largely on the prohibition against “taking” an endangered species.\n[W]ith respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States or the territorial sea of the United States[.]\n16 U.S.C. § 1538(a)(1)(B) (emphasis added).\nThe ESA defines “take” as follows: “[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added). Much of the controversy surrounding this definition has concerned the meaning of “harm” and the degree to which this term encompasses damage to habitats. One of the FWS regulations challenged by appellants states:\nHarm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.\n50 C.F.R. § 17.3 (as amended in 1981). Appellants contend that this regulation’s inclusion of habitat modification within the meaning of “take” violates the ESA. They also assert that even if the regulation is not ultra vires of the ESA, it is not clear precisely what sort of habitat modification the regulation forbids. They therefore argue that this Court should either declare the regulation void for vagueness or adopt a limiting construction of the regulation, holding that “harm” occurs only where there is an intentionally-caused actual physical injury to a specific member of a listed wildlife species.\nThe other regulation under review extends the protections for endangered species to threatened species as well. The ESA defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range_” 16 U.S.C. § 1532(6). The ESA also protects species that are in less immediate peril but are listed as “threatened species.” This term refers to “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).\nOn its face, 16 U.S.C. § 1538(a)(1) applies its prohibitions, including the prohibition against takings, only to endangered species. However, the ESA allows the FWS to apply these prohibitions to threatened species, as well.\nWhenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife....\n16 U.S.C. § 1533(d).\nAppellants challenge a FWS regulation which, at one fell swoop, brings all threatened fish and wildlife species into the protective net of 16 U.S.C. § 1538(a)(1).\nExcept as provided in subpart A of this part, or in a permit issued under this part, all of the provisions in [50 C.F.R. § 17.21, the regulation implementing the section 1538(a)(1) prohibitions] shall apply to threatened wildlife....\n50 C.F.R. § 17.31(a) (1978). Appellants argue that this regulation violates the ESA, because § 1533(d) requires the FWS to extend the prohibitions to threatened species on a species-by-species basis and to do so only after making a specific finding that each such extension was “necessary and advisable.”\nThe district court rejected appellants’ challenges to both 50 C.F.R. § 17.3 and § 17.-31(a) and granted summary judgment to the government. 806 F.Supp. 279. Because all of the issues in this appeal are issues of law, we will review the district court’s judgment de novo.\nII. ANALYSIS\nA. The “harm” regulation\n1. Compliance with the Endangered Species Act\nAppellants argue that the “harm” regulation, 50 C.F.R. § 17.3, violates the ESA, because the statute excludes habitat modification from the types of forbidden actions that qualify as “takings” of species. They assert that the ESA’s language and structure, as well as its legislative history, clearly demonstrate that Congress did not intend to prohibit habitat modification when it defined “take” to include “harm” to an endangered species. 16 U.S.C. § 1532(19). They claim that the meaning of harm should therefore be limited to direct physical injury to an identifiable member of a listed wildlife species.\nWe hold, per curiam, that the “harm” regulation.does not violate the ESA by including actions that modify habitat among prohibited “takings.”\n2. The “void for vagueness” claim\nAppellants also maintain that, on its face, the “harm” regulation is void for vagueness. They point out that the Ninth Circuit has interpreted the regulation broadly so that prohibited “harm” includes habitat modification even without proof that death or physical injury to a specific member of a listed species has occurred. Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1107-09 (1988). The appellants could also have mentioned that the FWS itself offered a similarly broad interpretation of the regulation when it introduced the current definition of “harm” in 1981:\nSome of the comments in favor of the redefinition ... viewed the action as limiting “harm” to direct physical injury to an individual member of the wildlife species. This was not the intent of the Service and the final redefinition addresses that perception. The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification alone without any attendant death or injury of the protected wildlife. Death or injury, however, may be caused by impairment of essential behavioral patterns which can have significant and permanent effects on a listed species.\n46 Fed.Reg. 54,748, 54,748 (1981).\nAppellants argue that so long as the regulation is subject to such broad constructions, it is impermissibly vague. They claim it will be left to the whims and predictions of biologists to determine when a habitat modification is “significant” and when such a modification “significantly impair[s] essential behavioral patterns.” 50 C.F.R. § 17.3 (emphasis added). Property owners, say appellants, will thus be subject to criminal sanctions under the ESA based on “some biologist’s subjective view.”\nWe are urged to address this problem by construing the regulation to state that “harm” occurs only where there is proof of an intentionally-caused physical injury to a specific member of a listed wildlife species. If we determine that the regulation does not require such proof, appellants contend that we should declare the entire regulation void for vagueness.\nIt is true, as appellants assert, that regulations with criminal sanctions must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). This principle, however, does not lead to the conclusion that any person can have a regulation wiped off the books (or prompt a limiting judicial construction of the regulation) merely by showing that it will be impermissibly vague in the context of some hypothetical application.\nThe seminal case concerning pre-enforcement facial challenges- on the grounds of vagueness is Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Flipside states that when a court examines such a challenge, “assuming the enactment implicates no constitutionally protected conduct, [the court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications.” Id. at 495, 102 S.Ct. at 1191 (emphasis added). Although the Supreme Court does not state precisely what it means by “constitutionally protected conduct,” it is clear that it is referring primarily to the First Amendment expressive freedoms, which have long received special protection in vagueness cases. See, e.g. Smith, Sheriff v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). It is equally clear that the Court is not referring to economic activity, which modern vagueness cases have invariably afforded less protection. See, e.g., Flipside, 455 U.S. at 498, 102 S.Ct. at 1193 (“economic regulation is subject to a less strict vagueness test”).\nAppellants, who are not currently the subject of an enforcement action under 50 C.F.R. § 17.3, nonetheless contend that the regulation will inhibit their ability to develop their land, especially by harvesting timber. In other words, the conduct implicated by this case is economic activity. (To the degree that appellants contend that the regulation results in a “taking” of their property in the Fifth Amendment sense, their remedy would be compensation, not a voiding of the regulation.) In accordance with Flipside, we therefore will not find 50 C.F.R. § 17.3 void for vagueness unless the regulation is imper-missibly vague in all of its applications.\nIn fact, the regulation contains features that prevent it from being invariably vague as applied. The definition of “harm” explicitly limits prohibited habitat modification to that which “actually kills or injures wildlife.” 50 C.F.R. § 17.3. Moreover, in order to establish a civil or criminal violation under the “take” provision of the ESA or a regulation implementing that provision, the government must establish that the charged party knowingly violated the statute or regulation. 16 U.S.C. § 1540(a) and (b). The Supreme Court has recognized that “a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Flipside, 455 U.S. at 499, 102 S.Ct. at 1193.\nIn light of these limitations, there are obviously types of activity, including habitat modification, that 50 C.F.R. § 17.3 clearly prohibits without a hint of vagueness. For example, it obviously forbids the very sort of conduct that appellants argue it should be limited to — habitat modification that causes ascertainable physical injury or death to an individual member of a listed species. Furthermore, § 17.3 unquestionably prohibits major acts of habitat degradation that destroy a species’ ability to breed, feed, or shelter. For instance, a person aware of the regulation would undoubtedly be held accountable for clear-cutting an entire forested area known to be populated by spotted owls.\nBecause the regulation is not vague.in all of its applications, we may not declare it void on its face. We do not dismiss the possibility that some enforcement contexts may arise in which the challenged regulation would be considered impermissibly vague. Under Flipside, however, the fact that there might be some type of activity whose legality is blurry under the regulation does not render the entire regulation facially invalid. Specific vagueness concerns about the regulation can be addressed when and if they are properly raised in the framework of a concrete challenge to a particular application of the regulation.\nAppropriate judicial restraint obligates us to wait for specific applications of the regulation to arise, for, as Flipside observed, the government may in the meantime take further steps “that will sufficiently narrow potentially vague or arbitrary interpretations” of the regulation. 455 U.S. at 504, 102 S.Ct. at 1196. “Although it is possible that specific future applications ... may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise.” Joseph E. Seagram & Sons, Inc. v. Hostetler, 384 U.S. 35, 52, 86 S.Ct. 1254, 1265, 16 L.Ed.2d 336 (1966), overruled on different grounds by Healy v. Beer Institute, Inc., 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989).\nB. The blanket extension of protections to all threatened species\nAppellants also challenge 50 C.F.R. § 17.31(a), by which the FWS extended the 16 U.S.C. § 1538(a)(1) prohibitions as to endangered species to all threatened species as well. The FWS issued this regulation under the authority granted to it by the ESA at 16 U.S.C. § 1533(d). For the sake of convenience, we quote that provision again:\nWhenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in.the case of fish or wildlife....\n16 U.S.C. § 1533(d).\nThe challenged regulation provides in relevant part:\n(a) Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in § 17.21 [which implements the prohibitions contained in 16 U.S.C. § 1538(a)(1) ] shall apply to threatened wildlife, except § 17.-21(c)(5).\n* * * ¡'fi * *\n(c) Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the provisions of [paragraph (a) ] of this section will apply. The special rule will contain all the applicable prohibitions and exceptions.\n50 C.F.R. § 17.31.\nIn short, the FWS has, .with this regulation, established a regime in which the prohibitions established for endangered species are extended automatically to all threatened species by a blanket rule and then withdrawn as appropriate, by special rule for particular species and by permit in particular situations. Although appellants’ dissatisfaction is focused entirely on this treatment of the “take” prohibition, the regulation applies all of the § 1538(a)(1) prohibitions to threatened species in this manner.\nAppellants contend that the FWS has created the system upside down, in violation of the ESA. They maintain that § 1533(d) requires the Secretary to extend the prohibitions to threatened species on a species-by-species basis. They also assert that the statute requires the agency to explain in each instance why it is “necessary and advisable” to apply the prohibitions to a threatened species.\nWe are not persuaded. As was the case with the “harm” regulation, there is no clear indication that § 17.31(a) violates the intent of the ESA. The statute does not unambiguously compel the agency to expand regulatory protection for threatened species only by promulgating regulations that are specific to individual species. In light of the substantial deference we thus owe the agency under the principles of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we uphold the challenged regulation as a reasonable interpretation of the statute.\nAppellants argue that the plain language of the ESA establishes that Congress intended regulations extending the § 1538(a)(1) prohibitions to threatened species to apply only to individual species. They focus on the first sentence of § 1533(d), pointing out its clear use of the singular. (“Whenever any species is listed as a threatened species-”) They maintain that in light of the first sentence’s unambiguous reference to regulations for a single threatened species, the phrase “any threatened species” in the second sentence must also refer to the singular. Appellants finally note that the Senate Report bolsters their interpretation of the language of § 1533(d) as authorizing regulations tailored to individual species.\n[The section] requires the Secretary, once he has listed a species of fish or wildlife as a threatened species, to issue regulations to protect that species. Among other protective measures available, he -may make any or all of the acts and conduct defined as “prohibited acts” ... as to “endangered species” also prohibited acts as to the particular threatened species.\nS.Rep. No. 93-307, 93d Cong., 1st Sess. 8 (1973), U.S.Code Cong. & Admin.News 1973, pp. 2989, 2996. (emphasis added).\nIt is, however, less than clear that the language of § 1533(d) is actually intended to require regulations extending the § 1538(a)(1) prohibitions- to apply only to individual species. The reference to “any threatened species” in the second sentence of § 1538(d) could just as easily mean “any or all threatened species” as “any one threatened species.” And appellants’ claim that the clear meaning of the first sentence should control our interpretation of the second is not necessarily valid, for, as appellees argue, the two sentences may represent separate grants of authority. It is possible that it is the second sentence alone that grants the agency authority to extend the § 1538(a)(1) prohibitions to threatened species. See infra pp. 7-8.\nFurthermore, in response to appellants’ use of the Senate Report, appellees counter-pose the use of plural language in the discussion of § 1533(d) in the House Report.\nThe Secretary is authorized to issue appropriate regulations to protect endangered or threatened species; he may also make specifically applicable any of the prohibitions with regard to threatened species that have been listed in section 9(a) as are prohibited with regard to endangered species. Once an animal is on the threatened list, the Secretary has almost an infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species.\nH.R.Rep. No. 93-412, 93d Cong., 1st Sess. 12 (1973). The possible conflict between the two reports, as well as the apparent inconsistency within the above-quoted paragraph itself as to singular and plural, shows the perils of attempting to use ambiguous legislative history to clarify ambiguous words within statutes.\nIn any ease, even assuming that the reference to “any threatened species” in the second sentence of § 1533(d) is singular, the statute still would not clearly forbid the FWS from proceeding in the manner it did. Appellants impart inappropriate significance to the use of the singular versus the plural. The very first provision of the United States Code states, “In determining the meaning of any Act of Congress, unless the context indicates otherwise ... words importing the sin-guiar include and apply to several persons, parties, or things [and] words importing the plural include the singular.” 1 U.S.C. § 1.\nFurthermore, regardless of the use of singular and plural words, § 1533(d) simply does not speak directly to the question of whether the FWS must promulgate protections speeies-by-species or may extend such protection in a single rulemaking. We will rarely impose a particular procedural strategy on an agency when the relevant statute does not even explicitly address how the agency should proceed. “In [the] process of filling any gap left, implicitly or explicitly, by Congress, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.” INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987) (citations omitted).\nAppellants attempt to bolster their argument by claiming that the design and structure of the ESA unavoidably require the FWS to extend the § 1533(d) prohibitions to threatened species on a species-by-species basis. They contend that Congress created the distinct categories of endangered and threatened species specifically so that each category would receive the precise degree of protection it required. By presumptively according the very same protections to threatened species as to endangered species, they argue, the FWS is violating this statutory design.\nThis argument also fails, because regardless of the ESA’s overall design, § 1533(d) arguably grants the FWS the discretion to extend maximum protection to all threatened species at once if, guided by its expertise in the field of wildlife protection, it finds it expeditious to do so. In any case, even assuming that Congress intended there to be an indelible difference between the treatment of endangered species and threatened species, appellants fail to acknowledge the very real differences that exist even under the challenged regulation. As noted above, supra, p. 5, the regulation contemplates the issuance of “special rules” for individual threatened species. 50 C.F.R. § 17.31(c). The FWS has actually issued special rules for a substantial number of the fish and wildlife species listed as threatened. See 50 C.F.R. §§ 17.40-48.\nMoreover, FWS regulations provide for the issuance of permits, under certain circumstances, to individual applicants who request permission to commit otherwise prohibited activities with respect to threatened wildlife. 50 C.F.R. § 17.32. Similar permits are available with regard to endangered species, 50 C.F.R. §§ 17.22-.23, but the FWS has made clear that they are more readily available for threatened species.\nThe new Subpart D would establish a set of blanket prohibitions for threatened wildlife. These are the same prohibitions that the Act provides for endangered wildlife. ... The new Subpart D would then provide for permits for any threatened wildlife. These permits would be more liberal than permits available under Sub-part C ... for endangered wildlife, in that they would be available for more purposes, and the strict procedural rules for endangered wildlife permits would not apply.\n40 Fed.Reg. 28,713 (1975).\nThe FWS has thus maintained a two-tier approach to species protection. Consequently, even if the ESA does in fact mandate that the agency preserve different approaches to the conservation of endangered and threatened species; the regulatory scheme satisfies the statute.\nLastly, appellants claim that 50 C.F.R. § 17.31(a) violates the ESA because § 1533(d) requires the FWS to make individualized formal findings that the prohibitions are “necessary and advisable” for the conservation each threatened species to which they are extended. Not only did the agency fail to make such findings for each individual species; it did not even make such a finding in regard to the category of threatened species as a whole when it issued the blanket extension of prohibitions.\nAs appellees argue, however, there is a reasonable reading of § 1533(d) that would not require the FWS to issue formal “necessary and advisable” findings when extending the prohibitions to threatened species. According to this interpretation, the two sentences of § 1533(d) represent separate grants of authority. The second sentence gives the FWS discretion to apply any or all of the § 1538(a)(1) prohibitions to threatened species without obligating it to support such actions with findings of necessity. Only the first sentence of § 1538(d) contains the “necessary and advisable” language and mandates formal individualized findings. This sentence requires the FWS to issue whatever other regulations are “necessary and advisable,” including regulations that impose protective measures beyond those contained in § 1538(a)(1).\nIn sum, we find it far from clear that 16 U.S.C. § 1533(d) requires the FWS to extend protections to threatened species on a spe-eies-by-species basis or that it mandates that the agency issue formal findings of necessity to support each such extension. In light of the statute’s ambiguity, the challenged FWS regulation is a reasonable and permissible construction of the ESA. We therefore uphold 50 C.F.R. § 17.31(a).\nIII. CONCLUSION\nNeither the regulation defining harm nor the regulation extending blanket protection to threatened species is an unreasonable interpretation of the Endangered Species Act. Moreover, the “harm” regulation is not im-permissibly vague on its face. We therefore affirm the judgment of the district court and uphold both regulations.\nIt is so ordered.", "type": "majority", "author": "MIKVA, Chief Judge:"}, {"text": "MIKVA, Chief Judge,\nconcurring in Section 11(A)(1) of the opinion:\nI write separately in order to articulate fully my reasons for rejecting appellants’ argument that we should set aside the “harm” regulation as violative of the ESA.\nWhen we review an agency’s construction of a statute that it is entrusted to administer, we follow the deferential approach set out by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “If the statute is clear and unambiguous that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988) (citations omitted). If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844, 108 S.Ct. at 2782.\nAppellants contend that Congress clearly intended to exclude habitat modification from the types of takings prohibited by the ESA and that this Court thus owes no deference to the FWS “harm” regulation. I disagree. In my view, the “harm” regulation conflicts with neither the ESA itself nor its ambiguous legislative history and is unquestionably a permissible and reasonable construction of the statute. I therefore do not accept appellants’ claim that 50 C.F.R. § 17.3 transgresses the ESA.\nIt is hard to construct a legislative scenario in which Congress would have avoided the problem of habitat modification when it crafted the ESA. The drafters of the statute realized that the degradation of habitats posed one of the gravest threats to the continued existence of endangered and threatened species. As the Supreme Court has noted:\nIn shaping [the ESA], Congress started from the finding that “[t]he two major causes of extinction are hunting and destruction of natural habitat.” S.Rep. No. 93-307, p. 2 (1973). Of these twin threats, Congress was informed that the greatest was destruction of natural habitats....\nTVA v. Hill, 437 U.S. 153, 179, 98 S.Ct. 2279, 2294, 57 L.Ed.2d 117 (1978). Indeed, the first stated purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved....” 16 U.S.C. § 1531(b).\nAppellants acknowledge that Congress intended to halt injurious habitat modification when it passed the ESA. They contend only that Congress did not mean to combat habitat degradation on private lands through the prohibition against takings in 16 U.S.C. § 1538. They argue that Congress intended to combat this problem solely through § 1534’s provision for federal land acquisition.\nAccording to appellants, the legislative history of the “take” provision establishes that Congress did not mean for that term to encompass habitat modification. They note that the original bill that was referred to the Senate Committee on Commerce, S. 1983, defined “take” to include “destruction, modification, or curtailment of [an endangered species’] habitat or range.” S. 1983, 93d Cong., 1st Sess., § 3(6) (1973). The bill reported out of committee, however, did not refer to habitat modification in the definition of “take.” This omission, appellants argue, evinces Congress’ intent not to include habitat modification within the scope of prohibited “takings.”\nAppellants maintain that Congress intended instead to address the problem of habitat modification caused by private actions on private lands exclusively through land acquisition by the federal government. Section 1534 authorizes the Secretary of the Interior, as well as the Secretary of Agriculture with respect to the National Forest System, to acquire land as part of “a program to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species_” 16 U.S.C. § 1534(a). Appellants point to various statements in the legislative history that suggest that some members of Congress may have wanted land acquisition, not the prohibition of land uses, to be the ESA’s sole weapon against habitat modification on private lands. Appellants further argue that Congress logically must have intended land acquisition to be the exclusive mechanism for preventing such habitat modification. Otherwise, they contend, agency officials would always choose the free alternative of prohibiting a damaging land use under the “take” provision, rather than paying to acquire the affected land.\nI find the legislative history to be most ambiguous regarding whether Congress intended to include habitat modification within the meaning of “take.” It is true that the Senate Committee chose not to use the S. 1983 definition of “take,” which specifically encompassed habitat modification. Instead, the Committee adopted a definition from the other bill under consideration, S. 1592, which did not explicitly include habitat modification. But as the district court noted, there is no indication in the legislative history as to why the Committee selected one definition over the other.\nThere is nothing to suggest that Congress chose the definition it did in order to exclude habitat modification. The Committee may have rejected the S.1983 definition only because it apparently would have made habitat modification a per se violation of the ESA. It is certainly possible that the Committee did not intend to foreclose an administrative regulation prohibiting habitat modification- — - so long as that prohibition was accompanied by limitations, such as those contained in the FWS regulation under review, requiring that there be actual injury or death to the species. In any case, Congress manifested no clear intent to exclude habitat modification from the “take” definition. Indeed, the Senate Committee Report states that “ ‘Take’ is defined ... in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. & Admin.News 1973, 2995.\nAppellants’ contention that Congress intended land acquisition to be the exclusive instrument for curbing habitat modification on private lands is similarly speculative. Nothing in the language of 16 U.S.C. § 1534 or in the legislative history establishes that Congress meant land acquisition to be the only mechanism for habitat protection on private lands. The only evidence appellants can garner in support of their assertion to the contrary is a few isolated and ambiguous remarks by members of Congress on the floor. See 119 Cong.Rec. 25,669 (1973) (statement of Sen. Tunney); 119 Cong.Rec. 30,162 (1973) (statement of Rep. Sullivan); 119 Cong.Rec. 25,691 (1973) (statement of Sen. Nelson). The general rule is that “debates in Congress expressive of the views and motives of individual members are not a safe guide ... in ascertaining the meaning and purpose of the law-making body.” Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474, 41 S.Ct. 172, 179, 65 L.Ed. 349 (1921). In any ease, these statements do not establish that even the speakers themselves intended land acquisition to be the exclusive protective mechanism for habitats on private lands.\nThere is also little force behind appellants’ claim that including habitat modification within the meaning of “take” renders the land acquisition provision of § 1534 a nullity. Appellants suggest that agency officials will not pay to acquire land if they can accomplish the same habitat preservation objective without cost by banning the offending land use. But there are in fact many reasons why, in its effort to protect endangered and threatened species, the government might choose to acquire land rather than simply forbid damaging activity. Federal wildlife managers can surely do more to help such species on government-owned and controlled preserves than they could ever accomplish on private lands. Indeed, § 1534 land acquisition is explicitly designed to facilitate “conservation programs,” a phrase that suggests a type of intervention more complex and proactive than simply forbidding certain activities on private lands. -\nAppellants argue that the agency must interpret the word “harm” narrowly so as not to include habitat modification because none of the other “take” terms — “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, [and] collect” — represents a land use action that injures wildlife only indirectly. They argue that under the principle of statutory construction known as noscitur a sociis, a general term in a list should be interpreted narrowly “to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961).\nDespite appellants’ suggestions, however, the other prohibitions can limit a private landowner’s use of his land in a rather broad manner. In particular, the prohibition against “harassment” can be used to suppress activities that are in no way intended to injure an endangered species. The House Report stated:\n[Take] includes harassment, whether intentional or not. This would allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young.\nH.R.Rep. No. 93-412, 93d Cong., 1st Sess. 11 (1973). Indeed, the FWS has defined “harass” in a way that is almost as broad as the “harm” definition:\nHarass in the definition of “take” in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.\n50 C.F.R. § 17.3. Appellants have not challenged this definition.\nNoscitur a sociis means, literally, that a word is known by the company it keeps. Jarecki, 367 U.S. at 307, 81 S.Ct. at 1582. In the definition of “take,” the term “harm” is accompanied by an assortment of words ranging from the precise and narrow “shoot” to the vague and expansive “harass.” Consequently, even if I were willing to find an agency’s construction of a statute to be impermissible based solely on a seldom-used and indeterminate principle of statutory construction, I would not do so in the present case.\nAlthough the ESA is generally ambiguous as to whether the “take” prohibition forbids habitat modification, there is at least one feature of the statute that strongly suggests that Congress did in fact intend to include habitat modification within the meaning of “take.” In 1982, Congress amended the ESA to include a provision authorizing the FWS to issue a permit allowing “any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B).\nBy allowing the agency, at its discretion, to permit “incidental takings,” Congress implicitly confirmed that incidental takings were otherwise forbidden by the Act. And it is hard to imagine what “incidental takings” might be other than habitat modification. Indeed, the legislative history of the 1982 amendments reveals that habitat modification was precisely what Congress had in mind. The House Report states, “This provision is modeled after a habitat conservation plan that has been developed by three Northern California cities_ [It] will ... provide the institutional framework to permit cooperation between the public and private sectors in the interest of endangered species and habitat conservation.” H.R.Rep. No. 97-835, 97th Cong., 2d Sess. 30-31 (1982), U.S.Code Cong. & Admin.News 1982, pp. 2807, 2871, 2872.\nOverall, there is nothing in the ESA itself or in its legislative history that unambiguously demonstrates that the term “take” does not encompass habitat modification. Indeed, as I noted in my discussion of the 1982 amendments, there is evidence to the contrary. Chevron commands that unless it is absolutely clear that an agency’s interpretation of a statute, entrusted to it to administer, is contrary to the will of Congress, courts must defer .to that interpretation so long as it is reasonable. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.\nIn upholding the challenged regulation, we join the Ninth Circuit, which has similarly held that the agency’s inclusion of habitat destruction in the definition of “harm” is a permissible interpretation of the ESA. That Circuit has stated that “[t]he Secretary’s inclusion of habitat destruction that could result in extinction follows the plain language of the statute because it serves the overall purpose of the Act_” Palila v. Hawaii Dep’t of Land and Natural Resources, 852 F.2d 1106, 1108 (9th Cir.1988).", "type": "concurrence", "author": "MIKVA, Chief Judge,"}, {"text": "WILLIAMS, Circuit Judge,\nconcurring in Section 11(A)(1) of the opinion:\nI agree that the “harm” regulation, 50 CFR § 17.3, complies with the Endangered Species Act — but only because of the 1982 amendments to the ESA. See Pub.L. 97-\n304, §§ 4(a)(2) and 6(1) (codified respectively at 16 U.S.C. §§ 1536(b)(4)(B) and 1539(a)(1)(B)). Those amendments, which authorize the FWS to issue permits for “any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity,” 16 U.S.C. § 1539(a)(1)(B), support the inference that the ESA otherwise forbids some such incidental takings, including some habitat modification. But for the 1982 amendments, I would find Judge Sentelle’s analysis highly persuasive — including his discussion of the noscitur a sociis canon. See RLEA v. NMB, 988 F.2d 133, 144 (D.C.Cir.1993) (Williams, J., dissenting) (characterizing the canon as a “powerful linguistic norm”).", "type": "concurrence", "author": "WILLIAMS, Circuit Judge,"}, {"text": "SENTELLE, Circuit Judge,\ndissenting:\nAs we have observed, “some will find ambiguity even in a ‘No Smoking’ sign.” International Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. General Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C.Cir.1987). In the present case the Fish and Wildlife Service has established that it would not only find such ambiguity, but would deem a congressional authorization for the erection of “No Smoking” signs to authorize the adoption of regulations against chewing and spitting.\nAs Chief Judge Mikva notes, this case is governed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That decision mandates a two-step analysis. At the first step “we inquire into whether Congress has directly spoken to the precise question at issue. If we can come to the unmistakable conclusion that Congress had an intention on the precise question at issue, our inquiry ends there.” Nuclear Info. Resource Serv. v. Nuclear Regulatory Comm’n, 969 F.2d 1169, 1173 (1992) (en banc) (citations and internal quotation marks omitted). At the second step “if the statute ... is silent or ambiguous with respect to the specific issue before us, ... we defer to the agency’s interpretation of the statute if it is reasonable and consistent with the statute’s purpose.” Id. (citations and internal quotation marks omitted). While I am willing to concede the possibility that some ambiguity may remain in the unusually specific recitation by Congress of its intent in defining the term “take,” I cannot cram the agency’s huge regulatory definition into the tiny crack of ambiguity Congress left.\nAs a colleague of ours has observed, “the second prong of the Chevron inquiry, whether an agency’s interpretation of an ambiguous statutory provision is reasonable, is also not devoid of content.” National Ass’n for Better Broadcasting v. FCC, 849 F.2d 665, 671 n. 3 (D.C.Cir.1988) (Wald, C.J., dissenting). In the present case, I see no reasonable way that the term “take” can be defined to include “significant habitat modification or degradation” as it is defined in 50 C.F.R. § 17.3. I have in my time seen a great many farmers modifying habitat. They modify by plowing, by tilling, by clearing, and in a thousand other ways. At no point when I have seen a farmer so engaged has it occurred to me that he is taking game. Nor do I think it would occur to anyone else that he was taking wildlife. He may be doing something harmful to wildlife, but he is not “taking” it.\nIn my view, the fact that the farmer may be indirectly harming wildlife, and that the statutory definition includes “harm” helps the agency’s cause but little. To analogize again to the smoking proposition, if Congress authorized the erection of “No Smoking” signs in public buildings and thereafter defined smoking to “include lighting, burning, puffing, inhaling, and otherwise harmfully employing the noxious nicotine-bearing tobacco products,” some zealous bureau might well attempt to define smoking to include chewing and spitting under the rubric of the “harmful use” in Congress’s definition of smoking. Perhaps some might think that reference to harm would cause the concept of smoking to include chewing. I do not think those creative regulators would be thinking reasonably if they should do so, nor do I think the regulators act reasonably in the present case.\nAs my colleague observes, there is an ancient “principle of statutory construction known as noscitur a sociis, a general word in a list should be interpreted narrowly ‘to avoid the giving of unintended breadth to the Acts of Congress.’ ” Mikva Op. at 10, quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961). In the present statute, all the other terms among which “harm” finds itself keeping company relate to an act which a specifically acting human does to a specific individual representative of a wildlife species. In fact, they are the sorts of things an individual human commonly does when he intends to “take” an animal. Otherwise put, if I were intent on taking a rabbit, a squirrel, or a deer, as the term “take” is used in common English parlance, I would go forth with my dogs or my guns or my snares and proceed to “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, or collect” one of the target species. 16 U.S.C. § 1532(19). If I succeeded in that endeavor, I would certainly have “taken” the beast. If I failed, I would at least have “attempt[ed] to engage in ... such conduct.” Id.\nAll this falls neatly within a reasonable construction of “take,” just as puffing a pipe falls neatly within the definition of smoking, and I would not dare to do such in front of a “No Smoking” sign. However, I would think it most unreasonable if a regulator told me that I could not chew nicotine gum in front of the same sign because the agency had decided that it was harmful and therefore constituted smoking. It appears to me that the Fish and Wildlife Service has engaged in a similarly unreasonable expansion of terms in the present case.\nI do not find the unreasonableness of the Service’s construction to be in any way alleviated by the Senate Committee Report stating that “ ‘[t]ake’ is defined ... in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. & Admin.News 973, 2995 (quoted by Mikva Op. at 9). Should one committee of the anti-smoking Congress have included in its discussion of the “No Smoking” sign authorization language to the effect that “ ‘smoking’ is defined in the broadest possible manner to include every conceivable way in which a person can ‘smoke’ or attempt to ‘smoke’ any form of tobacco,” that still would not convince me that the term could be defined to include chewing. Nor does the majority’s reliance on that same sort of legislative history convince me that Congress, by mandating the broadest possible manner of definition, intended to deprive the definition of any bounds whatsoever and turn the word into a free form concept inclusive of anything an agency might wish it to cover.\nI am bolstered in my conviction by another rule of statutory construction: that is, the presumption against surplusage. “[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackie v. Lanier Collection Agency, 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988). The construction placed upon the word “harm” by the agency and adopted by the court today renders superfluous everything else in the definition of “take.” If “harm” means any “act which actually kills or injures wildlife,” including “habitat modification or degradation,” I can see no reason why Congress also included in the definition of “take” the terms “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, [and] collect.” 16 U.S.C. § 1532(19). Every single one of those acts, particularly when coupled with further language of the congressional definition which includes “to attempt to engage in any such conduct,” id., falls within the definition of “harm” as understood by the agency. I am unwilling to believe that Congress deliberately wasted the considerable ink and paper devoted to the many copies of this legislation containing all the other words in section 1532(19). I am, therefore, unwilling to accept the Service’s definition in the present case, no matter how well intended.\nBecause I would void the regulation at this early stage, I would'not reach the void-for-vagueness claim. I would observe, however, that I do not see how a definition as boundless as the agency conceives for the word “take” and the component “harm” of its definition could readily avoid being impermissi-bly vague.\nI respectfully dissent.\n. The only word replaced by ellipses is \"harm,” the word under examination.", "type": "dissent", "author": "SENTELLE, Circuit Judge,"}], "attorneys": ["John A. MacLeod, with whom Steven P. Quarles and Thomas R. Lundquist, Washington, DC, were on the brief, for appellants.", "Ellen J. Durkee, Attorney, Dept, of Justice, with whom Martin W. Matzen and Jean E. Williams, Attorneys, Dept, of Justice, Washington, DC, were on the brief, for ap-pellees."], "corrections": "", "head_matter": "SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees.\nNo. 92-5255.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued Feb. 17, 1993.\nDecided July 23, 1993.\nJohn A. MacLeod, with whom Steven P. Quarles and Thomas R. Lundquist, Washington, DC, were on the brief, for appellants.\nEllen J. Durkee, Attorney, Dept, of Justice, with whom Martin W. Matzen and Jean E. Williams, Attorneys, Dept, of Justice, Washington, DC, were on the brief, for ap-pellees.\nBefore MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges."}	MIKVA	WILLIAMS	SENTELLE	1	4	1	1	2	0	1 F.3d 1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees\nCourt: United States Court of Appeals for the District of Columbia Circuit\nDate decided: 1993-07-23\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOpinion for the Court filed by Chief Judge MIKVA, except section 11(A)(1), which is filed per curiam. Opinion concurring in section 11(A)(1) filed by Chief Judge MIKVA. Opinion concurring in section 11(A)(1) filed by Circuit Judge WILLIAMS.\nOpinion dissenting in part filed by Circuit Judge SENTELLE.\nMIKVA, Chief Judge:\nAppellants, a group of non-profit citizens’ groups, lumber companies, and lumber trade associations, oppose two regulations promulgated by the Fish and Wildlife Service (“FWS” or “agency”) under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44. They appeal a memorandum opinion and order by the district court upholding the regulations by summary judgment and denying appellants’ own motion for summary judgment. We find that the challenged regulations are reasonable interpretations of the ESA. We also reject appellants’ claim that one of the regulations is void for vagueness. We therefore affirm the district court’s judgment.\nI. BACKGROUND\nThe Endangered Species Act of 1973 is a multifaceted and comprehensive law directed toward halting the extinction of species. It is implemented primarily by the Fish and Wildlife Service, an agency of the Department of the Interior. The ESA employs a number of techniques to preserve endangered and threatened species, including land acquisition by the government, the implementation of conservation programs by federal agencies, and the prohibition of various federal and private actions that harm listed species.\nAmong the more important sections of the ESA is 16 U.S.C. § 1538(a)(1), which forbids any person from committing any of a broad array of activities deemed dangerous to the continued survival of endangered fish and wildlife species. This appeal focuses largely on the prohibition against “taking” an endangered species.\n[W]ith respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States or the territorial sea of the United States[.]\n16 U.S.C. § 1538(a)(1)(B) (emphasis added).\nThe ESA defines “take” as follows: “[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added). Much of the controversy surrounding this definition has concerned the meaning of “harm” and the degree to which this term encompasses damage to habitats. One of the FWS regulations challenged by appellants states:\nHarm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.\n50 C.F.R. § 17.3 (as amended in 1981). Appellants contend that this regulation’s inclusion of habitat modification within the meaning of “take” violates the ESA. They also assert that even if the regulation is not ultra vires of the ESA, it is not clear precisely what sort of habitat modification the regulation forbids. They therefore argue that this Court should either declare the regulation void for vagueness or adopt a limiting construction of the regulation, holding that “harm” occurs only where there is an intentionally-caused actual physical injury to a specific member of a listed wildlife species.\nThe other regulation under review extends the protections for endangered species to threatened species as well. The ESA defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range_” 16 U.S.C. § 1532(6). The ESA also protects species that are in less immediate peril but are listed as “threatened species.” This term refers to “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).\nOn its face, 16 U.S.C. § 1538(a)(1) applies its prohibitions, including the prohibition against takings, only to endangered species. However, the ESA allows the FWS to apply these prohibitions to threatened species, as well.\nWhenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife....\n16 U.S.C. § 1533(d).\nAppellants challenge a FWS regulation which, at one fell swoop, brings all threatened fish and wildlife species into the protective net of 16 U.S.C. § 1538(a)(1).\nExcept as provided in subpart A of this part, or in a permit issued under this part, all of the provisions in [50 C.F.R. § 17.21, the regulation implementing the section 1538(a)(1) prohibitions] shall apply to threatened wildlife....\n50 C.F.R. § 17.31(a) (1978). Appellants argue that this regulation violates the ESA, because § 1533(d) requires the FWS to extend the prohibitions to threatened species on a species-by-species basis and to do so only after making a specific finding that each such extension was “necessary and advisable.”\nThe district court rejected appellants’ challenges to both 50 C.F.R. § 17.3 and § 17.-31(a) and granted summary judgment to the government. 806 F.Supp. 279. Because all of the issues in this appeal are issues of law, we will review the district court’s judgment de novo.\nII. ANALYSIS\nA. The “harm” regulation\n1. Compliance with the Endangered Species Act\nAppellants argue that the “harm” regulation, 50 C.F.R. § 17.3, violates the ESA, because the statute excludes habitat modification from the types of forbidden actions that qualify as “takings” of species. They assert that the ESA’s language and structure, as well as its legislative history, clearly demonstrate that Congress did not intend to prohibit habitat modification when it defined “take” to include “harm” to an endangered species. 16 U.S.C. § 1532(19). They claim that the meaning of harm should therefore be limited to direct physical injury to an identifiable member of a listed wildlife species.\nWe hold, per curiam, that the “harm” regulation.does not violate the ESA by including actions that modify habitat among prohibited “takings.”\n2. The “void for vagueness” claim\nAppellants also maintain that, on its face, the “harm” regulation is void for vagueness. They point out that the Ninth Circuit has interpreted the regulation broadly so that prohibited “harm” includes habitat modification even without proof that death or physical injury to a specific member of a listed species has occurred. Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1107-09 (1988). The appellants could also have mentioned that the FWS itself offered a similarly broad interpretation of the regulation when it introduced the current definition of “harm” in 1981:\nSome of the comments in favor of the redefinition ... viewed the action as limiting “harm” to direct physical injury to an individual member of the wildlife species. This was not the intent of the Service and the final redefinition addresses that perception. The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification alone without any attendant death or injury of the protected wildlife. Death or injury, however, may be caused by impairment of essential behavioral patterns which can have significant and permanent effects on a listed species.\n46 Fed.Reg. 54,748, 54,748 (1981).\nAppellants argue that so long as the regulation is subject to such broad constructions, it is impermissibly vague. They claim it will be left to the whims and predictions of biologists to determine when a habitat modification is “significant” and when such a modification “significantly impair[s] essential behavioral patterns.” 50 C.F.R. § 17.3 (emphasis added). Property owners, say appellants, will thus be subject to criminal sanctions under the ESA based on “some biologist’s subjective view.”\nWe are urged to address this problem by construing the regulation to state that “harm” occurs only where there is proof of an intentionally-caused physical injury to a specific member of a listed wildlife species. If we determine that the regulation does not require such proof, appellants contend that we should declare the entire regulation void for vagueness.\nIt is true, as appellants assert, that regulations with criminal sanctions must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). This principle, however, does not lead to the conclusion that any person can have a regulation wiped off the books (or prompt a limiting judicial construction of the regulation) merely by showing that it will be impermissibly vague in the context of some hypothetical application.\nThe seminal case concerning pre-enforcement facial challenges- on the grounds of vagueness is Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Flipside states that when a court examines such a challenge, “assuming the enactment implicates no constitutionally protected conduct, [the court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications.” Id. at 495, 102 S.Ct. at 1191 (emphasis added). Although the Supreme Court does not state precisely what it means by “constitutionally protected conduct,” it is clear that it is referring primarily to the First Amendment expressive freedoms, which have long received special protection in vagueness cases. See, e.g. Smith, Sheriff v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). It is equally clear that the Court is not referring to economic activity, which modern vagueness cases have invariably afforded less protection. See, e.g., Flipside, 455 U.S. at 498, 102 S.Ct. at 1193 (“economic regulation is subject to a less strict vagueness test”).\nAppellants, who are not currently the subject of an enforcement action under 50 C.F.R. § 17.3, nonetheless contend that the regulation will inhibit their ability to develop their land, especially by harvesting timber. In other words, the conduct implicated by this case is economic activity. (To the degree that appellants contend that the regulation results in a “taking” of their property in the Fifth Amendment sense, their remedy would be compensation, not a voiding of the regulation.) In accordance with Flipside, we therefore will not find 50 C.F.R. § 17.3 void for vagueness unless the regulation is imper-missibly vague in all of its applications.\nIn fact, the regulation contains features that prevent it from being invariably vague as applied. The definition of “harm” explicitly limits prohibited habitat modification to that which “actually kills or injures wildlife.” 50 C.F.R. § 17.3. Moreover, in order to establish a civil or criminal violation under the “take” provision of the ESA or a regulation implementing that provision, the government must establish that the charged party knowingly violated the statute or regulation. 16 U.S.C. § 1540(a) and (b). The Supreme Court has recognized that “a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Flipside, 455 U.S. at 499, 102 S.Ct. at 1193.\nIn light of these limitations, there are obviously types of activity, including habitat modification, that 50 C.F.R. § 17.3 clearly prohibits without a hint of vagueness. For example, it obviously forbids the very sort of conduct that appellants argue it should be limited to — habitat modification that causes ascertainable physical injury or death to an individual member of a listed species. Furthermore, § 17.3 unquestionably prohibits major acts of habitat degradation that destroy a species’ ability to breed, feed, or shelter. For instance, a person aware of the regulation would undoubtedly be held accountable for clear-cutting an entire forested area known to be populated by spotted owls.\nBecause the regulation is not vague.in all of its applications, we may not declare it void on its face. We do not dismiss the possibility that some enforcement contexts may arise in which the challenged regulation would be considered impermissibly vague. Under Flipside, however, the fact that there might be some type of activity whose legality is blurry under the regulation does not render the entire regulation facially invalid. Specific vagueness concerns about the regulation can be addressed when and if they are properly raised in the framework of a concrete challenge to a particular application of the regulation.\nAppropriate judicial restraint obligates us to wait for specific applications of the regulation to arise, for, as Flipside observed, the government may in the meantime take further steps “that will sufficiently narrow potentially vague or arbitrary interpretations” of the regulation. 455 U.S. at 504, 102 S.Ct. at 1196. “Although it is possible that specific future applications ... may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise.” Joseph E. Seagram & Sons, Inc. v. Hostetler, 384 U.S. 35, 52, 86 S.Ct. 1254, 1265, 16 L.Ed.2d 336 (1966), overruled on different grounds by Healy v. Beer Institute, Inc., 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989).\nB. The blanket extension of protections to all threatened species\nAppellants also challenge 50 C.F.R. § 17.31(a), by which the FWS extended the 16 U.S.C. § 1538(a)(1) prohibitions as to endangered species to all threatened species as well. The FWS issued this regulation under the authority granted to it by the ESA at 16 U.S.C. § 1533(d). For the sake of convenience, we quote that provision again:\nWhenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in.the case of fish or wildlife....\n16 U.S.C. § 1533(d).\nThe challenged regulation provides in relevant part:\n(a) Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in § 17.21 [which implements the prohibitions contained in 16 U.S.C. § 1538(a)(1) ] shall apply to threatened wildlife, except § 17.-21(c)(5).\n* * * ¡'fi * *\n(c) Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the provisions of [paragraph (a) ] of this section will apply. The special rule will contain all the applicable prohibitions and exceptions.\n50 C.F.R. § 17.31.\nIn short, the FWS has, .with this regulation, established a regime in which the prohibitions established for endangered species are extended automatically to all threatened species by a blanket rule and then withdrawn as appropriate, by special rule for particular species and by permit in particular situations. Although appellants’ dissatisfaction is focused entirely on this treatment of the “take” prohibition, the regulation applies all of the § 1538(a)(1) prohibitions to threatened species in this manner.\nAppellants contend that the FWS has created the system upside down, in violation of the ESA. They maintain that § 1533(d) requires the Secretary to extend the prohibitions to threatened species on a species-by-species basis. They also assert that the statute requires the agency to explain in each instance why it is “necessary and advisable” to apply the prohibitions to a threatened species.\nWe are not persuaded. As was the case with the “harm” regulation, there is no clear indication that § 17.31(a) violates the intent of the ESA. The statute does not unambiguously compel the agency to expand regulatory protection for threatened species only by promulgating regulations that are specific to individual species. In light of the substantial deference we thus owe the agency under the principles of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we uphold the challenged regulation as a reasonable interpretation of the statute.\nAppellants argue that the plain language of the ESA establishes that Congress intended regulations extending the § 1538(a)(1) prohibitions to threatened species to apply only to individual species. They focus on the first sentence of § 1533(d), pointing out its clear use of the singular. (“Whenever any species is listed as a threatened species-”) They maintain that in light of the first sentence’s unambiguous reference to regulations for a single threatened species, the phrase “any threatened species” in the second sentence must also refer to the singular. Appellants finally note that the Senate Report bolsters their interpretation of the language of § 1533(d) as authorizing regulations tailored to individual species.\n[The section] requires the Secretary, once he has listed a species of fish or wildlife as a threatened species, to issue regulations to protect that species. Among other protective measures available, he -may make any or all of the acts and conduct defined as “prohibited acts” ... as to “endangered species” also prohibited acts as to the particular threatened species.\nS.Rep. No. 93-307, 93d Cong., 1st Sess. 8 (1973), U.S.Code Cong. & Admin.News 1973, pp. 2989, 2996. (emphasis added).\nIt is, however, less than clear that the language of § 1533(d) is actually intended to require regulations extending the § 1538(a)(1) prohibitions- to apply only to individual species. The reference to “any threatened species” in the second sentence of § 1538(d) could just as easily mean “any or all threatened species” as “any one threatened species.” And appellants’ claim that the clear meaning of the first sentence should control our interpretation of the second is not necessarily valid, for, as appellees argue, the two sentences may represent separate grants of authority. It is possible that it is the second sentence alone that grants the agency authority to extend the § 1538(a)(1) prohibitions to threatened species. See infra pp. 7-8.\nFurthermore, in response to appellants’ use of the Senate Report, appellees counter-pose the use of plural language in the discussion of § 1533(d) in the House Report.\nThe Secretary is authorized to issue appropriate regulations to protect endangered or threatened species; he may also make specifically applicable any of the prohibitions with regard to threatened species that have been listed in section 9(a) as are prohibited with regard to endangered species. Once an animal is on the threatened list, the Secretary has almost an infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species.\nH.R.Rep. No. 93-412, 93d Cong., 1st Sess. 12 (1973). The possible conflict between the two reports, as well as the apparent inconsistency within the above-quoted paragraph itself as to singular and plural, shows the perils of attempting to use ambiguous legislative history to clarify ambiguous words within statutes.\nIn any ease, even assuming that the reference to “any threatened species” in the second sentence of § 1533(d) is singular, the statute still would not clearly forbid the FWS from proceeding in the manner it did. Appellants impart inappropriate significance to the use of the singular versus the plural. The very first provision of the United States Code states, “In determining the meaning of any Act of Congress, unless the context indicates otherwise ... words importing the sin-guiar include and apply to several persons, parties, or things [and] words importing the plural include the singular.” 1 U.S.C. § 1.\nFurthermore, regardless of the use of singular and plural words, § 1533(d) simply does not speak directly to the question of whether the FWS must promulgate protections speeies-by-species or may extend such protection in a single rulemaking. We will rarely impose a particular procedural strategy on an agency when the relevant statute does not even explicitly address how the agency should proceed. “In [the] process of filling any gap left, implicitly or explicitly, by Congress, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.” INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987) (citations omitted).\nAppellants attempt to bolster their argument by claiming that the design and structure of the ESA unavoidably require the FWS to extend the § 1533(d) prohibitions to threatened species on a species-by-species basis. They contend that Congress created the distinct categories of endangered and threatened species specifically so that each category would receive the precise degree of protection it required. By presumptively according the very same protections to threatened species as to endangered species, they argue, the FWS is violating this statutory design.\nThis argument also fails, because regardless of the ESA’s overall design, § 1533(d) arguably grants the FWS the discretion to extend maximum protection to all threatened species at once if, guided by its expertise in the field of wildlife protection, it finds it expeditious to do so. In any case, even assuming that Congress intended there to be an indelible difference between the treatment of endangered species and threatened species, appellants fail to acknowledge the very real differences that exist even under the challenged regulation. As noted above, supra, p. 5, the regulation contemplates the issuance of “special rules” for individual threatened species. 50 C.F.R. § 17.31(c). The FWS has actually issued special rules for a substantial number of the fish and wildlife species listed as threatened. See 50 C.F.R. §§ 17.40-48.\nMoreover, FWS regulations provide for the issuance of permits, under certain circumstances, to individual applicants who request permission to commit otherwise prohibited activities with respect to threatened wildlife. 50 C.F.R. § 17.32. Similar permits are available with regard to endangered species, 50 C.F.R. §§ 17.22-.23, but the FWS has made clear that they are more readily available for threatened species.\nThe new Subpart D would establish a set of blanket prohibitions for threatened wildlife. These are the same prohibitions that the Act provides for endangered wildlife. ... The new Subpart D would then provide for permits for any threatened wildlife. These permits would be more liberal than permits available under Sub-part C ... for endangered wildlife, in that they would be available for more purposes, and the strict procedural rules for endangered wildlife permits would not apply.\n40 Fed.Reg. 28,713 (1975).\nThe FWS has thus maintained a two-tier approach to species protection. Consequently, even if the ESA does in fact mandate that the agency preserve different approaches to the conservation of endangered and threatened species; the regulatory scheme satisfies the statute.\nLastly, appellants claim that 50 C.F.R. § 17.31(a) violates the ESA because § 1533(d) requires the FWS to make individualized formal findings that the prohibitions are “necessary and advisable” for the conservation each threatened species to which they are extended. Not only did the agency fail to make such findings for each individual species; it did not even make such a finding in regard to the category of threatened species as a whole when it issued the blanket extension of prohibitions.\nAs appellees argue, however, there is a reasonable reading of § 1533(d) that would not require the FWS to issue formal “necessary and advisable” findings when extending the prohibitions to threatened species. According to this interpretation, the two sentences of § 1533(d) represent separate grants of authority. The second sentence gives the FWS discretion to apply any or all of the § 1538(a)(1) prohibitions to threatened species without obligating it to support such actions with findings of necessity. Only the first sentence of § 1538(d) contains the “necessary and advisable” language and mandates formal individualized findings. This sentence requires the FWS to issue whatever other regulations are “necessary and advisable,” including regulations that impose protective measures beyond those contained in § 1538(a)(1).\nIn sum, we find it far from clear that 16 U.S.C. § 1533(d) requires the FWS to extend protections to threatened species on a spe-eies-by-species basis or that it mandates that the agency issue formal findings of necessity to support each such extension. In light of the statute’s ambiguity, the challenged FWS regulation is a reasonable and permissible construction of the ESA. We therefore uphold 50 C.F.R. § 17.31(a).\nIII. CONCLUSION\nNeither the regulation defining harm nor the regulation extending blanket protection to threatened species is an unreasonable interpretation of the Endangered Species Act. Moreover, the “harm” regulation is not im-permissibly vague on its face. We therefore affirm the judgment of the district court and uphold both regulations.\nIt is so ordered.\n[END_CASE]", "role": "user" } ]
10,507,307	UNITED STATES of America v. Blaine A'mmon WHITE, Appellant	United States v. White	1993-07-27	No. 92-3130	United States Court of Appeals for the District of Columbia Circuit	{"judges": ["Before: MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges."], "parties": ["UNITED STATES of America v. Blaine A’mmon WHITE, Appellant."], "opinions": [{"text": "Opinion for the Court filed by Circuit Judge SILBERMAN.\nSILBERMAN, Circuit Judge:\nAppellant claims that his convictions for passport fraud and for aiding and abetting passport fraud violated the Double Jeopardy Clause. He also raises a number of challenges to his sentence under the Sentencing Guidelines. We affirm the convictions and reject appellant’s objections to his sentence.\nI.\nThe facts are essentially undisputed. Acting on behalf of a client on November 1, 1989, Blaine White, who is an attorney, obtained a birth certificate from the Maryland vital records office bearing the name William S. Baldwin. Subsequently, on November 13, he signed an affidavit in support of the same client’s application for a United States passport. White swore that he had known the applicant for five years, that he knew the applicant was a United States citizen, and that the applicant’s name was William S. Baldwin. The birth certificate was used as proof of identity in the passport application.\nAppellant was originally charged in a two-count indictment with document fraud, 18 U.S.C. § 1028(a)(4), and passport fraud, 18 U.S.C. § 1542. Section 1028(a)(4) makes it a crime to “knowingly possess[ ] an identification document (other than one issued lawfully for the use of the possessor) or a false identification document, with the intent such document be used to defraud the United States,” and section 1542 makes it unlawful to “willfully and knowingly make[ ] any false statement in an application for [a] passport.”\nThe government attempted to establish that White had been involved in a scheme to obtain false identification documents for a Canadian citizen, Harold D. Linden, a/k/a Norman Harold Moore, who was residing in this country illegally and who had retained White as an attorney. The real William S. Baldwin had died two days before White applied for the birth certificate (his obituary appeared in the newspaper on October 31) and the government sought to prove that White knew he was obtaining the dead man’s birth record. An official from the vital records office testified that White received the birth certificate under a special procedure that the office used to allow attorneys to obtain the records .of deceased persons. Had Baldwin still been alive, White could not have obtained the certificate without a notarized authorization from Baldwin himself. White testified, however, that his client, the individual identified at trial as Harold Linden, had always been known to him as William Baldwin, and that he had no idea that there was any special procedure used in issuing deceased persons’ records. Thus, White claimed that he had no idea that he was acquiring a dead person’s birth certificate and asserted that the affidavit he signed at the passport office was true to the best of his knowledge.\nThe jury acquitted White of document fraud under section 1028(a)(4), but could not reach a verdict on the passport charge. The district judge declared a mistrial on the latter count and dismissed the charge without prejudice.\nWhite was subsequently reindicted on a five-count indictment that charged, among other crimes, making false statements in an affidavit accompanying a passport application, 18 U.S.C. § 1542 (Count IV) (this was the same charge on which there had been a hung jury in the first trial) and aiding and abetting Linden in making false statements in a passport application “by supplying Linden -with a false name, William Smith Baldwin, and false Social Security number” (Count V). According to the government, appellant not only provided Linden with a birth certificate, but also copied a Social Security number from a client’s file in his law firm and gave the number to Linden to use on the passport application. Appellant moved to dismiss the charges on double jeopardy grounds. According to appellant, the jury in the first trial conclusively determined that he did not know that Linden was not William Baldwin. Any subsequent prosecution that would call into question that jury determination would be barred by the collateral estoppel component of the double jeopardy protection. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Appellant also contended that under Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), evidence of his conduct in obtaining the birth certificate could not be used in any subsequent prosecution because he had already been acquitted on the document fraud count.\nThe district court denied appellant’s motion, see United States v. White, 757 F.Supp. 45 (D.D.C.1990), and appellant brought an interlocutory appeal. We rejected appellant’s collateral estoppel argument and held that the jury’s verdict in the first trial did not conclusively determine the issue of appellant’s knowledge. See United States v. White, 936 F.2d 1326, 1329 (D.C.Cir.) (White I), cert. denied, — U.S. -, 112 S.Ct. 381, 116 L.Ed.2d 332 (1991). We reasoned that, had the jury actually concluded that appellant did not know of Linden’s double identity, it would also have acquitted appellant on the passport charge. See id. In that interlocutory appeal, we did not reach the question whether Grady v. Corbin barred prosecution of Count V (aiding and abetting passport fraud), because the government agreed to limit its use of the evidence concerning the acquisition of the birth certificate. See id. at 1330. The government conceded that it could not “prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the U.S. at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment.” Id. at 1330 n. 2.\nIn the second trial, the government reintroduced part of the evidence it had used in the first trial relating to the document fraud charge. The jury convicted on both Counts IV and V but acquitted appellant on all other counts.\nII.\nA.\nAppellant relies exclusively on the Supreme Court’s decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), to argue that in his'second trial the government violated the Double Jeopardy Clause, see U.S. Const., Amend. 5 (“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”), by prosecuting him for the same offense of which he was acquitted in the first trial. But Grady has been overruled, see United States v. Dixon, — U.S. -, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and the Supreme Court has ma.de clear that the so-called Blockburger test is the sole test for determining whether the crimes charged in successive prosecutions are the “same offense” for double jeopardy purposes. See id. — U.S. at -, 113 S.Ct. at 2860; see also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger analysis focuses strictly on the statutory elements of crimes: two offenses are not the same as long as each requires proof of an element the other does not. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.\nThere can be little doubt that document fraud under 18 U.S.C. § 1028(a)(4) is not the same offense as either passport fraud or aiding and abetting passport fraud under 18 U.S.C. §§ 1542 & 2. Under section 1028 the government must prove that the accused (i) knowingly possessed an identification document, (ii) that was not lawfully issued for his use, (iii) with the intent to defraud the United States. Passport fraud, in contrast, requires proof that the accused (i) willfully and knowingly make a false statement in a passport application, (ii) with the intent to secure issuance of a United States passport contrary to the laws and regulations governing the issuance of passports. Even if we were to assume, arguendo, that the nature of the intent required in each crime was essentially the same, each statute still requires proof of an element the other does not. Document fraud under section 1028 requires possession of an identification document, while passport fraud under section 1542 requires proof that the accused made a false statement in a passport application. The elements could hardly be more distinct. And, of course, aiding and abetting passport fraud must, a fortiori require proof of an element that document fraud does not, because the government must prove both that someone committed the principal offense, see, e.g., United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982), and that the accused aided and abetted commission of the crime. Thus, the government must prove the same elements of passport fraud—which, as we have already noted, are different from those for the offense of identification document crime described in section 1028—and then must prove aiding and abetting. Even if the government sought to prove aiding and abetting by referring to exactly the same conduct that it previously had attempted to use to prove document fraud—that is, if the government sought to prove aiding and abetting by the very act of acquiring the dead man’s birth certificate—it would not offend the Double Jeopardy Clause. The same actions can constitute an offense under two distinct statutes and can be prosecuted separately under each as long as the statutes do not define a single offense under Blockburger. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).\nIn short, sans Grady, which directed double jeopardy analysis to the government’s reproof of the same conduct, appellant is left without support for his double jeopardy claim. The prosecutions for passport fraud and aiding and abetting passport fraud therefore do not violate appellant’s rights under the Double Jeopardy Clause.\nB.\nAppellant claims that the evidence was insufficient to support his conviction for passport fraud. Appellant raises this argument for the first time on appeal—he moved for judgment of acquittal on only one count of the indictment, a conspiracy charge on which he was acquitted. We therefore review the challenge to the sufficiency of the evidence only for plain error. See United States v. Sayan, 968 F.2d 55, 62 (D.C.Cir.1992). We admit we are not sure exactly what standard is implied by plain error review on a sufficiency of the evidence 'challenge. Presumably review should be more deferential than under the usual standard under which we determine only “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). But it is hard to imagine that more deferential standard. The Jackson standard already suggests that we would only reverse for an error that was “plain” (in the sense of “obvious”) and requires, by definition, that the error prejudice substantial rights.\nWe need not decide exactly how plain error review might modify the standard in this context, however, because even under the Jackson standard, there was sufficient evidence to support a conviction. We must, of course, in applying Jackson “consider the evidence in the light most favorable to the Government,” United States v. Jefferson, 974 F.2d 201, 205 (D.C.Cir.1992), and allow the government “the benefit of all reasonable inferences that may be drawn from the evidence,” United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). Appellant admitted signing the affidavit; thus, the government needed to prove only that appellant knew that the affidavit was false and that he intended to help Linden secure a passport. See 18 U.S.C. § 1542. The government presented ample evidence concerning Linden’s aliases and White’s knowledge of them—including evidence that White had wired Linden money under the name Norman Moore and testimony suggesting that White knew he was obtaining a dead man’s birth certificate—-for a reasonable jury to conclude that White knowingly signed a false affidavit and intended to help Linden obtain a passport.\nC.\nAppellant raises a number of challenges to his sentence. White first contends that the court erred in denying him a three-level reduction pursuant to section 2L2.3 of the Sentencing Guidelines for committing the passport offense “other than for profit.” U.S.S.G. § 2L2.3. The district judge denied the reduction based on a finding that White was paid for helping Linden in his passport fraud scheme. Fact-findings in a sentencing context need be supported only by a preponderance of the evidence, see United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989), and “we will ‘uphold the district court’s sentence so long as it results Jxom a correct application of the guidelines to factual findings which are not clearly erroneous.’ ” United States v. Barry, 938 F.2d 1327, 1332 (D.C.Cir.1991) (quoting United States v. Young, 932 F.2d 1510, 1512 (D.C.Cir.1991)).\nHere, we do not think the district judge erred at all. The government introduced evidence at the trial and at sentencing to show that White had established a trust account for Linden and that both on November 1 (the same day that he obtained the birth certificate) and on November 3, White drew checks on the account, made out to “cash,” for $2,600 and $2,000, respectively. The $2,600 check bore the notation “Documents of identification per client,” and the other check had the notation “I.D. per client.” White contended that he gave this money to Linden but produced no evidence supporting that claim, and Linden denied receiving the funds. The defendant “properly bears the burden of proof under those sections of the Guidelines that define mitigating factors,” Burke, 888 F.2d at 869 n. 10, and thus appellant had the burden of proving that he did not assist Linden for profit. The district judge reasonably concluded that the checks were payment to White for his role in obtaining the birth certificate and subsequently the passport.\nAppellant also challenges the two-level enhancement he received under section 3C1.1 for obstruction of justice. The district judge based the enhancement on a finding that White committed perjury in his trial testimony. See U.S.S.G. § 3C1.1 Application Note 3(b) (listing perjury as an example of the type of conduct to which the enhancement applies). White testified that he honestly believed that Linden was in reality William Smith Baldwin. The jury, however, found White guilty beyond a reasonable doubt of knowingly signing a false affidavit. That verdict virtually made it a foregone conclusion that a district judge would conclude by a preponderance of the evidence that White testified falsely when he stated that he thought that Linden was Baldwin. We certainly cannot say that it was clear error for the district judge to reach that conclusion. Nor can we find any error in the district judge’s implicit decision that, in a case in which the question was so clearly and starkly posed, White testified willfully, not merely as a result of confusion or faulty memory. See United States v. Thompson, 962 F.2d 1069, 1071 (D.C.Cir.1992).\nAppellant contends that he should not have received a sentencing enhancement pursuant to section 3B1.3 for abuse of a position of trust or for use of a special skill. The district judge based the enhancement in part on White’s use of his skill as a lawyer to facilitate the commission of the crime, and in part on his abuse of trust in stealing a client’s Social Security number from his law firm’s files. Application Note 2 to section 3B1.3 explicitly includes lawyers as examples of individuals who possess the “special skill” referred to in the Guideline. By setting up a trust account, which he later used to pay himself for his own part in the scheme, White used his skill to further the crime in this case. The sentencing court also properly relied on White’s use of his special skill in obtaining the birth record of a dead man. Ordinary members of the public not known to officials in the records office as attorneys would not have been able to acquire the same certificate.\nAlthough White’s use of his special skill sufficed in itself to justify the enhancement, the district court also considered his abuse of a position of trust. The court determined by a preponderance of the evidence that White provided Linden with a Social Security number from his firm’s client files. Although appellant claimed that Linden had unsupervised access to the files and could have obtained the Social Security number himself, we cannot say that the court’s finding was clearly erroneous. Providing Linden with the information clearly abused a position of trust within the meaning of the Guideline. The relationship between a client and an attorney (and the attorney’s firm) is such that all attorneys at a firm must be presumed to be in a “position of trust” with respect to the firm’s clients. Cf. United States v. Polland, 994 F.2d 1262, 1270 (7th Cir.1993) (holding that attorney-client relationship can place attorney in position of trust for purposes of section 3B1.3).\nD.\nAppellant’s last argument is that the government violated its pledge not to introduce evidence concerning the acquisition of the birth certificate. Appellant essentially presses an estoppel theory, by which he contends that if the government used evidence that it had promised not to introduce, his conviction cannot stand. We need not decide the merits of appellant’s theory, however, because the government did not violate its pledge. The government carefully qualified its concession and promised only that it would not “prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the United States at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment.” White I, 936 F.2d at 1330 n. 2 (emphasis added). The government, of course, tailored its concession to its understanding of what the now overruled Grady decision required. It is true that in White I we said that we would not decide whether (or to what extent) Grady would prohibit reproof of the conduct surrounding the acquisition of the birth certificate “because the government has conceded ... that it may not reprove the conduct involving the birth certificate offense,” id. at 1330, and that statement could be read to reflect a broad understanding of the concession. Still, our description of the government’s promise was ambiguous at best and was not intended to provide a definitive interpretation for the government to follow. The government proceeded in good faith on its own narrower understanding of the concession, an understanding that it maintained consistently before the district court. The district judge even approved the government’s position outlining how it intended to implement the concession. There was, therefore, no violation of the promise in this case.\n* * * * * *\nFor the foregoing reasons, appellant’s convictions and sentence are affirmed.\nSo ordered.\n. Appellant asks us to revisit the question he presented on interlocutory appeal concerning the collateral estoppel effects of his acquittal. According to appellant, the jury in the first trial decided that he did not know that his client was not William Baldwin. We have already held, however, that the jury in the first trial did not conclusively determine that appellant did not know Linden’s true identity. See White I, 936 F.2d at 1329. That holding is the law of the case, and there is no reason for us to disturb it. See Lever Bros. Co. v. United States, 981 F.2d 1330, 1332 (D.C.Cir.1993) (court must follow law of the case unless convinced that prior decision was erroneous and that adherence to the decision would work a grave injustice).\n. We need not decide whether, as the trial judge appeared to suggest, appellant's position as attorney for Linden (he was presumably being paid for his services) would have been sufficient to show that he committed the crime for profit absent some more direct evidence of payment for his particular role in the criminal enterprise.", "type": "majority", "author": "SILBERMAN, Circuit Judge:"}], "attorneys": ["Blaine A’mmon White, pro se.", "Valinda Jones, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., at the time the brief was filed, John R. Fisher and Eric A. Dubelier, Asst. U.S. Atty., were on the brief, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America v. Blaine A’mmon WHITE, Appellant.\nNo. 92-3130.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued Jan. 14, 1993.\nDecided July 27, 1993.\nBlaine A’mmon White, pro se.\nValinda Jones, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., at the time the brief was filed, John R. Fisher and Eric A. Dubelier, Asst. U.S. Atty., were on the brief, for appellee.\nBefore: MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges."}	MIKVA	SILBERMAN	RANDOLPH	1	1	1	0	0	0	1 F.3d 13	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America v. Blaine A'mmon WHITE, Appellant\nCourt: United States Court of Appeals for the District of Columbia Circuit\nDate decided: 1993-07-27\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOpinion for the Court filed by Circuit Judge SILBERMAN.\nSILBERMAN, Circuit Judge:\nAppellant claims that his convictions for passport fraud and for aiding and abetting passport fraud violated the Double Jeopardy Clause. He also raises a number of challenges to his sentence under the Sentencing Guidelines. We affirm the convictions and reject appellant’s objections to his sentence.\nI.\nThe facts are essentially undisputed. Acting on behalf of a client on November 1, 1989, Blaine White, who is an attorney, obtained a birth certificate from the Maryland vital records office bearing the name William S. Baldwin. Subsequently, on November 13, he signed an affidavit in support of the same client’s application for a United States passport. White swore that he had known the applicant for five years, that he knew the applicant was a United States citizen, and that the applicant’s name was William S. Baldwin. The birth certificate was used as proof of identity in the passport application.\nAppellant was originally charged in a two-count indictment with document fraud, 18 U.S.C. § 1028(a)(4), and passport fraud, 18 U.S.C. § 1542. Section 1028(a)(4) makes it a crime to “knowingly possess[ ] an identification document (other than one issued lawfully for the use of the possessor) or a false identification document, with the intent such document be used to defraud the United States,” and section 1542 makes it unlawful to “willfully and knowingly make[ ] any false statement in an application for [a] passport.”\nThe government attempted to establish that White had been involved in a scheme to obtain false identification documents for a Canadian citizen, Harold D. Linden, a/k/a Norman Harold Moore, who was residing in this country illegally and who had retained White as an attorney. The real William S. Baldwin had died two days before White applied for the birth certificate (his obituary appeared in the newspaper on October 31) and the government sought to prove that White knew he was obtaining the dead man’s birth record. An official from the vital records office testified that White received the birth certificate under a special procedure that the office used to allow attorneys to obtain the records .of deceased persons. Had Baldwin still been alive, White could not have obtained the certificate without a notarized authorization from Baldwin himself. White testified, however, that his client, the individual identified at trial as Harold Linden, had always been known to him as William Baldwin, and that he had no idea that there was any special procedure used in issuing deceased persons’ records. Thus, White claimed that he had no idea that he was acquiring a dead person’s birth certificate and asserted that the affidavit he signed at the passport office was true to the best of his knowledge.\nThe jury acquitted White of document fraud under section 1028(a)(4), but could not reach a verdict on the passport charge. The district judge declared a mistrial on the latter count and dismissed the charge without prejudice.\nWhite was subsequently reindicted on a five-count indictment that charged, among other crimes, making false statements in an affidavit accompanying a passport application, 18 U.S.C. § 1542 (Count IV) (this was the same charge on which there had been a hung jury in the first trial) and aiding and abetting Linden in making false statements in a passport application “by supplying Linden -with a false name, William Smith Baldwin, and false Social Security number” (Count V). According to the government, appellant not only provided Linden with a birth certificate, but also copied a Social Security number from a client’s file in his law firm and gave the number to Linden to use on the passport application. Appellant moved to dismiss the charges on double jeopardy grounds. According to appellant, the jury in the first trial conclusively determined that he did not know that Linden was not William Baldwin. Any subsequent prosecution that would call into question that jury determination would be barred by the collateral estoppel component of the double jeopardy protection. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Appellant also contended that under Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), evidence of his conduct in obtaining the birth certificate could not be used in any subsequent prosecution because he had already been acquitted on the document fraud count.\nThe district court denied appellant’s motion, see United States v. White, 757 F.Supp. 45 (D.D.C.1990), and appellant brought an interlocutory appeal. We rejected appellant’s collateral estoppel argument and held that the jury’s verdict in the first trial did not conclusively determine the issue of appellant’s knowledge. See United States v. White, 936 F.2d 1326, 1329 (D.C.Cir.) (White I), cert. denied, — U.S. -, 112 S.Ct. 381, 116 L.Ed.2d 332 (1991). We reasoned that, had the jury actually concluded that appellant did not know of Linden’s double identity, it would also have acquitted appellant on the passport charge. See id. In that interlocutory appeal, we did not reach the question whether Grady v. Corbin barred prosecution of Count V (aiding and abetting passport fraud), because the government agreed to limit its use of the evidence concerning the acquisition of the birth certificate. See id. at 1330. The government conceded that it could not “prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the U.S. at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment.” Id. at 1330 n. 2.\nIn the second trial, the government reintroduced part of the evidence it had used in the first trial relating to the document fraud charge. The jury convicted on both Counts IV and V but acquitted appellant on all other counts.\nII.\nA.\nAppellant relies exclusively on the Supreme Court’s decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), to argue that in his'second trial the government violated the Double Jeopardy Clause, see U.S. Const., Amend. 5 (“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”), by prosecuting him for the same offense of which he was acquitted in the first trial. But Grady has been overruled, see United States v. Dixon, — U.S. -, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and the Supreme Court has ma.de clear that the so-called Blockburger test is the sole test for determining whether the crimes charged in successive prosecutions are the “same offense” for double jeopardy purposes. See id. — U.S. at -, 113 S.Ct. at 2860; see also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger analysis focuses strictly on the statutory elements of crimes: two offenses are not the same as long as each requires proof of an element the other does not. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.\nThere can be little doubt that document fraud under 18 U.S.C. § 1028(a)(4) is not the same offense as either passport fraud or aiding and abetting passport fraud under 18 U.S.C. §§ 1542 & 2. Under section 1028 the government must prove that the accused (i) knowingly possessed an identification document, (ii) that was not lawfully issued for his use, (iii) with the intent to defraud the United States. Passport fraud, in contrast, requires proof that the accused (i) willfully and knowingly make a false statement in a passport application, (ii) with the intent to secure issuance of a United States passport contrary to the laws and regulations governing the issuance of passports. Even if we were to assume, arguendo, that the nature of the intent required in each crime was essentially the same, each statute still requires proof of an element the other does not. Document fraud under section 1028 requires possession of an identification document, while passport fraud under section 1542 requires proof that the accused made a false statement in a passport application. The elements could hardly be more distinct. And, of course, aiding and abetting passport fraud must, a fortiori require proof of an element that document fraud does not, because the government must prove both that someone committed the principal offense, see, e.g., United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982), and that the accused aided and abetted commission of the crime. Thus, the government must prove the same elements of passport fraud—which, as we have already noted, are different from those for the offense of identification document crime described in section 1028—and then must prove aiding and abetting. Even if the government sought to prove aiding and abetting by referring to exactly the same conduct that it previously had attempted to use to prove document fraud—that is, if the government sought to prove aiding and abetting by the very act of acquiring the dead man’s birth certificate—it would not offend the Double Jeopardy Clause. The same actions can constitute an offense under two distinct statutes and can be prosecuted separately under each as long as the statutes do not define a single offense under Blockburger. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).\nIn short, sans Grady, which directed double jeopardy analysis to the government’s reproof of the same conduct, appellant is left without support for his double jeopardy claim. The prosecutions for passport fraud and aiding and abetting passport fraud therefore do not violate appellant’s rights under the Double Jeopardy Clause.\nB.\nAppellant claims that the evidence was insufficient to support his conviction for passport fraud. Appellant raises this argument for the first time on appeal—he moved for judgment of acquittal on only one count of the indictment, a conspiracy charge on which he was acquitted. We therefore review the challenge to the sufficiency of the evidence only for plain error. See United States v. Sayan, 968 F.2d 55, 62 (D.C.Cir.1992). We admit we are not sure exactly what standard is implied by plain error review on a sufficiency of the evidence 'challenge. Presumably review should be more deferential than under the usual standard under which we determine only “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). But it is hard to imagine that more deferential standard. The Jackson standard already suggests that we would only reverse for an error that was “plain” (in the sense of “obvious”) and requires, by definition, that the error prejudice substantial rights.\nWe need not decide exactly how plain error review might modify the standard in this context, however, because even under the Jackson standard, there was sufficient evidence to support a conviction. We must, of course, in applying Jackson “consider the evidence in the light most favorable to the Government,” United States v. Jefferson, 974 F.2d 201, 205 (D.C.Cir.1992), and allow the government “the benefit of all reasonable inferences that may be drawn from the evidence,” United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). Appellant admitted signing the affidavit; thus, the government needed to prove only that appellant knew that the affidavit was false and that he intended to help Linden secure a passport. See 18 U.S.C. § 1542. The government presented ample evidence concerning Linden’s aliases and White’s knowledge of them—including evidence that White had wired Linden money under the name Norman Moore and testimony suggesting that White knew he was obtaining a dead man’s birth certificate—-for a reasonable jury to conclude that White knowingly signed a false affidavit and intended to help Linden obtain a passport.\nC.\nAppellant raises a number of challenges to his sentence. White first contends that the court erred in denying him a three-level reduction pursuant to section 2L2.3 of the Sentencing Guidelines for committing the passport offense “other than for profit.” U.S.S.G. § 2L2.3. The district judge denied the reduction based on a finding that White was paid for helping Linden in his passport fraud scheme. Fact-findings in a sentencing context need be supported only by a preponderance of the evidence, see United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989), and “we will ‘uphold the district court’s sentence so long as it results Jxom a correct application of the guidelines to factual findings which are not clearly erroneous.’ ” United States v. Barry, 938 F.2d 1327, 1332 (D.C.Cir.1991) (quoting United States v. Young, 932 F.2d 1510, 1512 (D.C.Cir.1991)).\nHere, we do not think the district judge erred at all. The government introduced evidence at the trial and at sentencing to show that White had established a trust account for Linden and that both on November 1 (the same day that he obtained the birth certificate) and on November 3, White drew checks on the account, made out to “cash,” for $2,600 and $2,000, respectively. The $2,600 check bore the notation “Documents of identification per client,” and the other check had the notation “I.D. per client.” White contended that he gave this money to Linden but produced no evidence supporting that claim, and Linden denied receiving the funds. The defendant “properly bears the burden of proof under those sections of the Guidelines that define mitigating factors,” Burke, 888 F.2d at 869 n. 10, and thus appellant had the burden of proving that he did not assist Linden for profit. The district judge reasonably concluded that the checks were payment to White for his role in obtaining the birth certificate and subsequently the passport.\nAppellant also challenges the two-level enhancement he received under section 3C1.1 for obstruction of justice. The district judge based the enhancement on a finding that White committed perjury in his trial testimony. See U.S.S.G. § 3C1.1 Application Note 3(b) (listing perjury as an example of the type of conduct to which the enhancement applies). White testified that he honestly believed that Linden was in reality William Smith Baldwin. The jury, however, found White guilty beyond a reasonable doubt of knowingly signing a false affidavit. That verdict virtually made it a foregone conclusion that a district judge would conclude by a preponderance of the evidence that White testified falsely when he stated that he thought that Linden was Baldwin. We certainly cannot say that it was clear error for the district judge to reach that conclusion. Nor can we find any error in the district judge’s implicit decision that, in a case in which the question was so clearly and starkly posed, White testified willfully, not merely as a result of confusion or faulty memory. See United States v. Thompson, 962 F.2d 1069, 1071 (D.C.Cir.1992).\nAppellant contends that he should not have received a sentencing enhancement pursuant to section 3B1.3 for abuse of a position of trust or for use of a special skill. The district judge based the enhancement in part on White’s use of his skill as a lawyer to facilitate the commission of the crime, and in part on his abuse of trust in stealing a client’s Social Security number from his law firm’s files. Application Note 2 to section 3B1.3 explicitly includes lawyers as examples of individuals who possess the “special skill” referred to in the Guideline. By setting up a trust account, which he later used to pay himself for his own part in the scheme, White used his skill to further the crime in this case. The sentencing court also properly relied on White’s use of his special skill in obtaining the birth record of a dead man. Ordinary members of the public not known to officials in the records office as attorneys would not have been able to acquire the same certificate.\nAlthough White’s use of his special skill sufficed in itself to justify the enhancement, the district court also considered his abuse of a position of trust. The court determined by a preponderance of the evidence that White provided Linden with a Social Security number from his firm’s client files. Although appellant claimed that Linden had unsupervised access to the files and could have obtained the Social Security number himself, we cannot say that the court’s finding was clearly erroneous. Providing Linden with the information clearly abused a position of trust within the meaning of the Guideline. The relationship between a client and an attorney (and the attorney’s firm) is such that all attorneys at a firm must be presumed to be in a “position of trust” with respect to the firm’s clients. Cf. United States v. Polland, 994 F.2d 1262, 1270 (7th Cir.1993) (holding that attorney-client relationship can place attorney in position of trust for purposes of section 3B1.3).\nD.\nAppellant’s last argument is that the government violated its pledge not to introduce evidence concerning the acquisition of the birth certificate. Appellant essentially presses an estoppel theory, by which he contends that if the government used evidence that it had promised not to introduce, his conviction cannot stand. We need not decide the merits of appellant’s theory, however, because the government did not violate its pledge. The government carefully qualified its concession and promised only that it would not “prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the United States at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment.” White I, 936 F.2d at 1330 n. 2 (emphasis added). The government, of course, tailored its concession to its understanding of what the now overruled Grady decision required. It is true that in White I we said that we would not decide whether (or to what extent) Grady would prohibit reproof of the conduct surrounding the acquisition of the birth certificate “because the government has conceded ... that it may not reprove the conduct involving the birth certificate offense,” id. at 1330, and that statement could be read to reflect a broad understanding of the concession. Still, our description of the government’s promise was ambiguous at best and was not intended to provide a definitive interpretation for the government to follow. The government proceeded in good faith on its own narrower understanding of the concession, an understanding that it maintained consistently before the district court. The district judge even approved the government’s position outlining how it intended to implement the concession. There was, therefore, no violation of the promise in this case.\n* * * * * *\nFor the foregoing reasons, appellant’s convictions and sentence are affirmed.\nSo ordered.\n. Appellant asks us to revisit the question he presented on interlocutory appeal concerning the collateral estoppel effects of his acquittal. According to appellant, the jury in the first trial decided that he did not know that his client was not William Baldwin. We have already held, however, that the jury in the first trial did not conclusively determine that appellant did not know Linden’s true identity. See White I, 936 F.2d at 1329. That holding is the law of the case, and there is no reason for us to disturb it. See Lever Bros. Co. v. United States, 981 F.2d 1330, 1332 (D.C.Cir.1993) (court must follow law of the case unless convinced that prior decision was erroneous and that adherence to the decision would work a grave injustice).\n. We need not decide whether, as the trial judge appeared to suggest, appellant's position as attorney for Linden (he was presumably being paid for his services) would have been sufficient to show that he committed the crime for profit absent some more direct evidence of payment for his particular role in the criminal enterprise.\n[END_CASE]", "role": "user" } ]
10,507,368	UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C., United States Department of Veterans Affairs Medical Center, Amarillo, Texas, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, AFL-CIO, Local 2250, Intervenor	United States Department of Veterans Affairs v. Federal Labor Relations Authority	1993-08-06	No. 91-1578	United States Court of Appeals for the District of Columbia Circuit	{"judges": ["Before RUTH BADER GINSBURG, WILLIAMS, and SENTELLE, Circuit Judges."], "parties": ["UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C., United States Department of Veterans Affairs Medical Center, Amarillo, Texas, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, AFL-CIO, Local 2250, Intervenor."], "opinions": [{"text": "Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.\nRUTH BADER GINSBURG, Circuit Judge:\nThe United States Department of Veterans Affairs Medical Center in Amarillo, Texas (Medical Center) and the Department of Veterans Affairs (collectively, VA) seek review of a ruling by the Federal Labor Relations Authority (FLRA or Authority) that the VA violated the Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. §§ 7101 et seq., by refusing to provide Local 2250 of the American Federation of Government Employees (Union) with minutes of clinical staff meetings involving professional employees. See United States Dep’t of Veterans Affairs, 42 F.L.R.A. 333 (1991) (FLRA Decision). Under the governing FSLMRS prescription, an agency must furnish to a union representing employees information “necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” 5 U.S.C. § 7114(b)(4)(B) (emphasis added). It is undisputed that the professional employees whose interests the Union serves had no statutorily-secured right to engage in collective bargaining or to process grievances under a negotiated grievance procedure.\nWe conclude that the FLRA imposed a document disclosure obligation on the VA broader than the obligation section 7114(b)(4)(B) describes. Accordingly, we grant the VA’s petition for review and deny the FLRA’s cross-petition for enforcement.\nI. BaCKGRound\nThe Union is the exclusive representative for most professionals employed by the Department of Medicine and Surgery (DM & S) at the Medical Center. Professional DM & S employees serve under a personnel regime governed in significant part by Title 38 of the United States Code. See Colorado Nurses Ass’n v. FLRA 851 F.2d 1486, 1489 (D.C.Cir.1988). At all times relevant to this dispute, the VA's medical personnel (Title 38 employees) had no statutory right to engage in collective bargaining respecting the conditions of their employment.\nAlthough Title 38 employees had no statutorily-protected right to negotiate collective bargaining agreements, or to administer such agreements through grievance arbitration procedures, they had and retain other rights protected by the FSLMRS, including “the right to form, join, or assist a labor organization without fear of penalty or reprisal.” United States Dep’t of Veterans Affairs, 40 F.L.R.A. 290, 301 (1991). According to the FLRA, Title 38 employees, at the time here relevant, had a right — albeit a distinctly modified one — to representation by their union, 1.e., their “exclusive representative,” at “any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.” 5 U.S.C. § 7114(a)(2)(A); see FLRA Decision, 42 F.L.R.A. at 343.\nIn early 1989, the Union asked the Medical Center to provide it with copies of minutes of monthly DM & S staff meetings held from January 1, 1988 through January 6, 1989. The Union asserted that it needed these minutes to determine if the staff meetings constituted “formal discussions” under 5 U.S.C. § 7114(a)(2)(A). In response to the Medical Center’s refusal to provide the minutes, the Union filed unfair labor practice charges against the VA.\nIn a September 1991 Decision and Order, the FLRA ruled that, by refusing to give the Union the DM & S staff meeting minutes, the VA had violated the FSLMRS. See FLRA Decision, 42 F.L.R.A. at 344. The Authority relied on the data-furnishing direction contained in 5 U.S.C. § 7114(b)(4), which reads:\n(b) The duty of an agency and an exclusive representative to negotiate in good faith under [5 U.S.C. § 7114(a)] shall include the obligation—\n(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data—\n(A) which is normally maintained by the agency in the regular course of business;\n(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and\n(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining[.]\nUnder FLRA precedent, this provision affords access to information the union needs to determine whether to file an unfair labor practice charge. See Department of Commerce, 30 F.L.R.A. 127, 142 (1987). In the Authority’s words, disclosure of the DM & S professional staff meeting minutes was\nnecessary for the Union to fulfill its representational obligations.... [T]he Union had a right under section 7114(b)(4) to obtain the minutes of staff meetings in order to determine whether it should have been permitted to participate in any formal discussions and to file an unfair labor practice charge if it believed that its rights had been denied.\nFLRA Decision, 42 F.L.R.A. at 344. Based on this holding, the FLRA directed the VA to furnish the requested minutes to the Union. See id. at 344-45.\nII. DECISION\nA. Collective Bargaining\nThe FLRA, supported by the Union as intervenor, maintains that the right to information secured by 5 U.S.C. § 7114(b)(4) may be grounded on the full range of a union’s representational activities, and is not confined to the negotiation and enforcement of collective bargaining agreements. This assertion, we conclude, is incompatible with a statutory text that first ties information release to “[t]he duty of an agency and an exclusive representative to negotiate in good faith,” 5 U.S.C. § 7114(b) (emphasis added), and then delineates, precisely, what information shall be disclosed: “data ... necessary for ... discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” 5 U.S.C. § 7114(b)(4)(B) (emphasis added).\nAttempting to accommodate its construction to the language of section 7114(b)(4)(B), the FLRA urges that “subjects within the scope of collective bargaining” means all subjects within the statutory definition of “collective bargaining,” even if no collective bargaining is mandated, and no collectively-bargained agreement exists, in the particular case. See Brief for the FLRA at 23-24 & n. 10. “[Cjollective bargaining,” the Authority points out, is defined as the “mutual obligation” of employer and union to bargain on “conditions of employment,” 5 U.S.C. § 7103(a)(12), and “conditions of employment” encompass “personnel policies, practices, and matters ... affecting working conditions.” 5 U.S.C. § 7103(a)(14). Section 7103(a)(14), however, continues: “except that [conditions of employment] does not include policies, practices, and matters ... specifically provided for by Federal statute.” Title 38 is such an overriding statute, see Colorado Nurses, 851 F.2d at 1492, one that, until 1991, left no room for the collective bargaining commanded by the FSLMRS. See supra note 1.\nWe note, furthermore, that the FLRA decision under review did not refer to 5 U.S.C. § 7103(a)(12) & (14). As a rule, “courts may not accept appellate counsel’s post hoc rationalizations for agency action.” K N Energy, Inc. v. FERC, 968 F.2d 1295, 1303 (D.C.Cir.1992) (citation omitted).\nIn sum, the existence or requirement of collective bargaining is critical to the information right described in 5 U.S.C. § 7114(b)(4)(B). Because the VA medical personnel involved in this ease had no information-rights-generating collective bargaining agreement with the agency, and no statutory right to engage in bargaining, the FLRA’s order is unauthorized by the FSLMRS.\nB. Particularized Need\nThe FLRA’s order is also unacceptable on an independent ground. Section 7114(b) “entitles the union to ‘necessary,’ not to ‘relevant’ information.” Department of Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223, 1224 (D.C.Cir.1992) (citation omitted). This court’s decisions require a showing by the union of “particularized need” tested against countervailing anti-disclosure interests of the agency. See, e.g., United States Dep’t of Justice, Bureau of Prisons v. FLRA, 988 F.2d 1267, 1270 (D.C.Cir.1993). The FLRA made no such realistic, comparative evaluation; it merely hypothesized ways in which the minutes might bear upon protected employee rights. Cf. United States Dep’t of Justice Office of Justice Programs, 45 F.L.R.A. 1022, 1039-40 (1992) (appended ALJ opinion) (denying request as mere “fishing expedition”; employer had engaged in “no conduct [that could] prompt [employee to] fil[e] a grievance”); Bohemia, Inc., 272 N.L.R.B. 1128, 1129 (1984) (denying request in absence of “objective factual basis for believing ... a transfer [of bargaining-unit work] had occurred”).\nConclusion\nBecause the FLRA’s order is premised on a misreading of the FSLMRS, the VA’s petition for review is granted and the FLRA’s cross-petition for enforcement is denied.\nIt is so ordered.\n. See 38 U.S.C. § 4108(a) (\"[notwithstanding any law, Executive order, or regulation, the [VA] Administrator shall prescribe by regulation the hours and conditions of employment” of professional DM & S employees); see also Colorado Nurses Ass'n v. FLRA, 851 F.2d 1486, 1492 (D.C.Cir.1988) (\"Congress intended to give the [VA] unfettered discretion to issue regulations concerning the working conditions of DM & S employees.\"). Title 38 has since been amended to accord covered employees limited collective bargaining rights. See Department of Veterans Affairs Labor Relations Improvement Act of 1991 (Title II of the Department of Veterans Affairs Health-Care Personnel Act of 1991), Pub.L. 102-40, § 202, 105 Stat. 187, 200 (adding 38 U.S.C. § 7422). Because the charge at issue predated the amendments to Title 38, those amendments do not apply to this case. See id. § 205(b), 105 Stat. 207-08 (“[C]ases pending on the date of the enactment of this Act ... shall proceed in the same manner as they would have if this Act had not been enacted.”).\n. The FLRA acknowledged that \"the Union would have no right to be represented at the staff meetings [here in question] insofar as the discussion at those meetings is concerned with grievances under a negotiated bargaining agreement or with personnel policies and practices over which the [VA] has exclusive authority under Title 38.” See United States Dep’t of Veterans Affairs, 42 F.L.R.A. 333, 343 (1991) (FLRA Decision ). For purposes of this opinion, we assume, without deciding, that Title 38 employees had the right, as notably qualified by the FLRA, to be represented at the formal discussions described in section- 7114(a)(2)(A).\n. The FLRA allowed the VA to \"sanitize[]\" the minutes by removing references to \"individual veteran’s names, claims or records.\" FLRA Decision, 42 F.L.R.A. at 344.\n. In American Fed’n of Gov't Employees, Local 3884 v. FLRA, 930 F.2d 1315 (8th Cir.1991), the court held that employees without a statutory right to collective bargaining may obtain FLRA enforcement of information requests premised on voluntarily entered agreements. Intervenor Union suggests that a remand might be in order to determine whether such an agreement existed in this case. The record contains no reference to any relevant, voluntary agreement with the Medical Center covering Title 38 employees. When asked at oral argument, neither the FLRA’s counsel nor the VA’s indicated awareness of such an agreement. We note, moreover, that the Union \"waivefd] all further ... submission of evidence ... before the Authority.” Stipulation ¶ 22 at 9. In any event, our alternative holding — that the Union has shown no .particularized need for the requested information, see infra p. 23 — obviates any need for a remand.\n. The FLRA's position is not advanced by decisions confirming that the disclosure obligation, when it exists, is comprehensive. See, e.g., American Fed’n of Gov’t Employees, Local 1345 v. FLRA, 793 F.2d 1360, 1363 (D.C.Cir.1986) (employer must furnish \"information needed to negotiate an agreement [and] data relevant to its administration”); United States Dep't of Justice, 46 F.L.R.A. 1526, 1535 (1993).\n. In private sector cases, \"disclosure is governed by the less stringent relevance standard.” United States Dep't of Justice, Bureau of Prisons v. FLRA, 988 F.2d 1267, 1271 (D.C.Cir.1993).\n. The FLRA suggested that the meetings might include discussions of \"prohibitions on the ability of the unit employees to support the Union by the distribution of union materials or the wearing of union insignia at the Medical Center.” FLRA Decision, 42 F.L.R.A. at 343. At oral argument, however, counsel for the FLRA conceded the total absence of evidence that such subjects were actually discussed at the staff meetings in issue. This court inquired: \"You had a hypothetical about wearing union insignia but is there anything to even faintly suggest that at these staff meetings such matters were taken up?” Counsel for the FLRA replied: “No, your Honor. There is no evidence to indicate that in fact statements were made which may have [had] a chilling effect on [5 U.S.C. § ] 7102 associational rights.... ”", "type": "majority", "author": "RUTH BADER GINSBURG, Circuit Judge:"}], "attorneys": ["Marc Richman, Atty., Dept, of Justice, argued the cause, for petitioner. With him on the briefs were Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Atty., Dept, of Justice.", "William E. Persina, Atty., Federal Labor Relations Authority, argued the cause, for respondent. With him on the briefs was Pamela P. Johnson, Atty., Federal Labor Relations Authority. William R. Tobey, Atty., Federal Labor Relations Authority, also entered an appearance, for respondent.", "Mark D. Roth, Gen. Counsel, Charles A. Hobbie, Deputy Gen. Counsel, and Kevin M. Grile, Asst. Gen. Counsel, American Federation of Government Employees, AFL-CIO, filed the brief, for intervenor American Federation of Government Employees, Local 2250. '"], "corrections": "", "head_matter": "UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C., United States Department of Veterans Affairs Medical Center, Amarillo, Texas, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, AFL-CIO, Local 2250, Intervenor.\nNo. 91-1578.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued May 21, 1993.\nDecided Aug. 6, 1993.\nMarc Richman, Atty., Dept, of Justice, argued the cause, for petitioner. With him on the briefs were Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Atty., Dept, of Justice.\nWilliam E. Persina, Atty., Federal Labor Relations Authority, argued the cause, for respondent. With him on the briefs was Pamela P. Johnson, Atty., Federal Labor Relations Authority. William R. Tobey, Atty., Federal Labor Relations Authority, also entered an appearance, for respondent.\nMark D. Roth, Gen. Counsel, Charles A. Hobbie, Deputy Gen. Counsel, and Kevin M. Grile, Asst. Gen. Counsel, American Federation of Government Employees, AFL-CIO, filed the brief, for intervenor American Federation of Government Employees, Local 2250. '\nBefore RUTH BADER GINSBURG, WILLIAMS, and SENTELLE, Circuit Judges."}	RUTH BADER GINSBURG	WILLIAMS	SENTELLE	1	1	1	0	0	0	1 F.3d 19	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C., United States Department of Veterans Affairs Medical Center, Amarillo, Texas, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, AFL-CIO, Local 2250, Intervenor\nCourt: United States Court of Appeals for the District of Columbia Circuit\nDate decided: 1993-08-06\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOpinion for the court filed by Circuit Judge RUTH BADER GINSBURG.\nRUTH BADER GINSBURG, Circuit Judge:\nThe United States Department of Veterans Affairs Medical Center in Amarillo, Texas (Medical Center) and the Department of Veterans Affairs (collectively, VA) seek review of a ruling by the Federal Labor Relations Authority (FLRA or Authority) that the VA violated the Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. §§ 7101 et seq., by refusing to provide Local 2250 of the American Federation of Government Employees (Union) with minutes of clinical staff meetings involving professional employees. See United States Dep’t of Veterans Affairs, 42 F.L.R.A. 333 (1991) (FLRA Decision). Under the governing FSLMRS prescription, an agency must furnish to a union representing employees information “necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” 5 U.S.C. § 7114(b)(4)(B) (emphasis added). It is undisputed that the professional employees whose interests the Union serves had no statutorily-secured right to engage in collective bargaining or to process grievances under a negotiated grievance procedure.\nWe conclude that the FLRA imposed a document disclosure obligation on the VA broader than the obligation section 7114(b)(4)(B) describes. Accordingly, we grant the VA’s petition for review and deny the FLRA’s cross-petition for enforcement.\nI. BaCKGRound\nThe Union is the exclusive representative for most professionals employed by the Department of Medicine and Surgery (DM & S) at the Medical Center. Professional DM & S employees serve under a personnel regime governed in significant part by Title 38 of the United States Code. See Colorado Nurses Ass’n v. FLRA 851 F.2d 1486, 1489 (D.C.Cir.1988). At all times relevant to this dispute, the VA's medical personnel (Title 38 employees) had no statutory right to engage in collective bargaining respecting the conditions of their employment.\nAlthough Title 38 employees had no statutorily-protected right to negotiate collective bargaining agreements, or to administer such agreements through grievance arbitration procedures, they had and retain other rights protected by the FSLMRS, including “the right to form, join, or assist a labor organization without fear of penalty or reprisal.” United States Dep’t of Veterans Affairs, 40 F.L.R.A. 290, 301 (1991). According to the FLRA, Title 38 employees, at the time here relevant, had a right — albeit a distinctly modified one — to representation by their union, 1.e., their “exclusive representative,” at “any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.” 5 U.S.C. § 7114(a)(2)(A); see FLRA Decision, 42 F.L.R.A. at 343.\nIn early 1989, the Union asked the Medical Center to provide it with copies of minutes of monthly DM & S staff meetings held from January 1, 1988 through January 6, 1989. The Union asserted that it needed these minutes to determine if the staff meetings constituted “formal discussions” under 5 U.S.C. § 7114(a)(2)(A). In response to the Medical Center’s refusal to provide the minutes, the Union filed unfair labor practice charges against the VA.\nIn a September 1991 Decision and Order, the FLRA ruled that, by refusing to give the Union the DM & S staff meeting minutes, the VA had violated the FSLMRS. See FLRA Decision, 42 F.L.R.A. at 344. The Authority relied on the data-furnishing direction contained in 5 U.S.C. § 7114(b)(4), which reads:\n(b) The duty of an agency and an exclusive representative to negotiate in good faith under [5 U.S.C. § 7114(a)] shall include the obligation—\n(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data—\n(A) which is normally maintained by the agency in the regular course of business;\n(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and\n(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining[.]\nUnder FLRA precedent, this provision affords access to information the union needs to determine whether to file an unfair labor practice charge. See Department of Commerce, 30 F.L.R.A. 127, 142 (1987). In the Authority’s words, disclosure of the DM & S professional staff meeting minutes was\nnecessary for the Union to fulfill its representational obligations.... [T]he Union had a right under section 7114(b)(4) to obtain the minutes of staff meetings in order to determine whether it should have been permitted to participate in any formal discussions and to file an unfair labor practice charge if it believed that its rights had been denied.\nFLRA Decision, 42 F.L.R.A. at 344. Based on this holding, the FLRA directed the VA to furnish the requested minutes to the Union. See id. at 344-45.\nII. DECISION\nA. Collective Bargaining\nThe FLRA, supported by the Union as intervenor, maintains that the right to information secured by 5 U.S.C. § 7114(b)(4) may be grounded on the full range of a union’s representational activities, and is not confined to the negotiation and enforcement of collective bargaining agreements. This assertion, we conclude, is incompatible with a statutory text that first ties information release to “[t]he duty of an agency and an exclusive representative to negotiate in good faith,” 5 U.S.C. § 7114(b) (emphasis added), and then delineates, precisely, what information shall be disclosed: “data ... necessary for ... discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” 5 U.S.C. § 7114(b)(4)(B) (emphasis added).\nAttempting to accommodate its construction to the language of section 7114(b)(4)(B), the FLRA urges that “subjects within the scope of collective bargaining” means all subjects within the statutory definition of “collective bargaining,” even if no collective bargaining is mandated, and no collectively-bargained agreement exists, in the particular case. See Brief for the FLRA at 23-24 & n. 10. “[Cjollective bargaining,” the Authority points out, is defined as the “mutual obligation” of employer and union to bargain on “conditions of employment,” 5 U.S.C. § 7103(a)(12), and “conditions of employment” encompass “personnel policies, practices, and matters ... affecting working conditions.” 5 U.S.C. § 7103(a)(14). Section 7103(a)(14), however, continues: “except that [conditions of employment] does not include policies, practices, and matters ... specifically provided for by Federal statute.” Title 38 is such an overriding statute, see Colorado Nurses, 851 F.2d at 1492, one that, until 1991, left no room for the collective bargaining commanded by the FSLMRS. See supra note 1.\nWe note, furthermore, that the FLRA decision under review did not refer to 5 U.S.C. § 7103(a)(12) & (14). As a rule, “courts may not accept appellate counsel’s post hoc rationalizations for agency action.” K N Energy, Inc. v. FERC, 968 F.2d 1295, 1303 (D.C.Cir.1992) (citation omitted).\nIn sum, the existence or requirement of collective bargaining is critical to the information right described in 5 U.S.C. § 7114(b)(4)(B). Because the VA medical personnel involved in this ease had no information-rights-generating collective bargaining agreement with the agency, and no statutory right to engage in bargaining, the FLRA’s order is unauthorized by the FSLMRS.\nB. Particularized Need\nThe FLRA’s order is also unacceptable on an independent ground. Section 7114(b) “entitles the union to ‘necessary,’ not to ‘relevant’ information.” Department of Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223, 1224 (D.C.Cir.1992) (citation omitted). This court’s decisions require a showing by the union of “particularized need” tested against countervailing anti-disclosure interests of the agency. See, e.g., United States Dep’t of Justice, Bureau of Prisons v. FLRA, 988 F.2d 1267, 1270 (D.C.Cir.1993). The FLRA made no such realistic, comparative evaluation; it merely hypothesized ways in which the minutes might bear upon protected employee rights. Cf. United States Dep’t of Justice Office of Justice Programs, 45 F.L.R.A. 1022, 1039-40 (1992) (appended ALJ opinion) (denying request as mere “fishing expedition”; employer had engaged in “no conduct [that could] prompt [employee to] fil[e] a grievance”); Bohemia, Inc., 272 N.L.R.B. 1128, 1129 (1984) (denying request in absence of “objective factual basis for believing ... a transfer [of bargaining-unit work] had occurred”).\nConclusion\nBecause the FLRA’s order is premised on a misreading of the FSLMRS, the VA’s petition for review is granted and the FLRA’s cross-petition for enforcement is denied.\nIt is so ordered.\n. See 38 U.S.C. § 4108(a) (\"[notwithstanding any law, Executive order, or regulation, the [VA] Administrator shall prescribe by regulation the hours and conditions of employment” of professional DM & S employees); see also Colorado Nurses Ass'n v. FLRA, 851 F.2d 1486, 1492 (D.C.Cir.1988) (\"Congress intended to give the [VA] unfettered discretion to issue regulations concerning the working conditions of DM & S employees.\"). Title 38 has since been amended to accord covered employees limited collective bargaining rights. See Department of Veterans Affairs Labor Relations Improvement Act of 1991 (Title II of the Department of Veterans Affairs Health-Care Personnel Act of 1991), Pub.L. 102-40, § 202, 105 Stat. 187, 200 (adding 38 U.S.C. § 7422). Because the charge at issue predated the amendments to Title 38, those amendments do not apply to this case. See id. § 205(b), 105 Stat. 207-08 (“[C]ases pending on the date of the enactment of this Act ... shall proceed in the same manner as they would have if this Act had not been enacted.”).\n. The FLRA acknowledged that \"the Union would have no right to be represented at the staff meetings [here in question] insofar as the discussion at those meetings is concerned with grievances under a negotiated bargaining agreement or with personnel policies and practices over which the [VA] has exclusive authority under Title 38.” See United States Dep’t of Veterans Affairs, 42 F.L.R.A. 333, 343 (1991) (FLRA Decision ). For purposes of this opinion, we assume, without deciding, that Title 38 employees had the right, as notably qualified by the FLRA, to be represented at the formal discussions described in section- 7114(a)(2)(A).\n. The FLRA allowed the VA to \"sanitize[]\" the minutes by removing references to \"individual veteran’s names, claims or records.\" FLRA Decision, 42 F.L.R.A. at 344.\n. In American Fed’n of Gov't Employees, Local 3884 v. FLRA, 930 F.2d 1315 (8th Cir.1991), the court held that employees without a statutory right to collective bargaining may obtain FLRA enforcement of information requests premised on voluntarily entered agreements. Intervenor Union suggests that a remand might be in order to determine whether such an agreement existed in this case. The record contains no reference to any relevant, voluntary agreement with the Medical Center covering Title 38 employees. When asked at oral argument, neither the FLRA’s counsel nor the VA’s indicated awareness of such an agreement. We note, moreover, that the Union \"waivefd] all further ... submission of evidence ... before the Authority.” Stipulation ¶ 22 at 9. In any event, our alternative holding — that the Union has shown no .particularized need for the requested information, see infra p. 23 — obviates any need for a remand.\n. The FLRA's position is not advanced by decisions confirming that the disclosure obligation, when it exists, is comprehensive. See, e.g., American Fed’n of Gov’t Employees, Local 1345 v. FLRA, 793 F.2d 1360, 1363 (D.C.Cir.1986) (employer must furnish \"information needed to negotiate an agreement [and] data relevant to its administration”); United States Dep't of Justice, 46 F.L.R.A. 1526, 1535 (1993).\n. In private sector cases, \"disclosure is governed by the less stringent relevance standard.” United States Dep't of Justice, Bureau of Prisons v. FLRA, 988 F.2d 1267, 1271 (D.C.Cir.1993).\n. The FLRA suggested that the meetings might include discussions of \"prohibitions on the ability of the unit employees to support the Union by the distribution of union materials or the wearing of union insignia at the Medical Center.” FLRA Decision, 42 F.L.R.A. at 343. At oral argument, however, counsel for the FLRA conceded the total absence of evidence that such subjects were actually discussed at the staff meetings in issue. This court inquired: \"You had a hypothetical about wearing union insignia but is there anything to even faintly suggest that at these staff meetings such matters were taken up?” Counsel for the FLRA replied: “No, your Honor. There is no evidence to indicate that in fact statements were made which may have [had] a chilling effect on [5 U.S.C. § ] 7102 associational rights.... ”\n[END_CASE]", "role": "user" } ]
10,507,445	UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL NO. 150-A, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Dubuque Packing Company, Inc., Intervenor	United Food & Commercial Workers International Union, Local 150-A v. National Labor Relations Board	1993-08-10	Nos. 91-1290, 91-1325	United States Court of Appeals for the District of Columbia Circuit	{"judges": ["Before EDWARDS, RUTH BADER GINSBURG, and BUCKLEY, Circuit Judges."], "parties": ["UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL NO. 150-A, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Dubuque Packing Company, Inc., Intervenor."], "opinions": [{"text": "Opinion for the court filed by Circuit Judge BUCKLEY.\nBUCKLEY, Circuit Judge:\nDubuque Packing Company petitions for review of a National Labor Relations Board order holding that it committed unfair labor practices by breaching its duty to bargain with its union regarding the relocation of its “hog kill and cut” operations. We hold that the new standard adopted by the Board for evaluating such claims is an acceptable reading of the National Labor Relations Act and Supreme Court precedents; that the Board’s finding that Dubuque owed a duty to bargain was supported by substantial evidence; and that the Board properly applied its new test retroactively to the facts of this ease. Hence, we deny Dubuque’s petition and enforce the Board’s remedial order. In addition, Dubuque’s union, the United Food and Commercial Workers International Union, Local No. 150-A, petitions for review of the Board’s refusal to consider its unfair labor practice claims regarding a related relocation that Dubuque proposed but did not execute — that of its “pork processing” operation. We find that this claim was properly before the Board on remand from an earlier decision of this court; hence, we grant the UFCW’s petition and once again remand this issue.\nI. BACKGROUND\nA. Facts and Procedural History\nThe facts of this case were set forth at length in our earlier opinion, United Food & Commercial Workers Int’l Union, Local 150-A v. NLRB, 880 F.2d 1422, 1423-27 (D.C.Cir.1989) (“UFCW /”); in relevant part, they are these. Beginning about 1977, the Du-buque Packing Company, a processor and packager of beef and pork, began losing money at its Dubuque, Iowa, home plant. In 1978, Dubuque won an agreement from the plant’s workers, who were represented by the United Food and Commercial Workers International Union (“UFCW”), requiring the workers to produce at higher rates in return for a one-time cash payment. In August 1980, Dubuque extracted concessions worth approximately $5 million per annum in return for a pledge that it would not ask for further concessions before the September 1, 1982, expiration of the union contract then in effect. In March 1981, however, it again requested concessions, this time in the form of additional productivity increases in its hog kill department.\nOn March 30, 1981, the events at issue here began to unfold. On that date, Du-buque gave six-months’ notice, as required by its labor contract, of its intention to close its hog kill and cut operations at Dubuque. Various maneuvers between the company and the UFCW ensued, culminating in the union’s rejection of a wage freeze aimed at keeping the Dubuque hog kill and cut operation open. The following day, June 10, 1981, the company announced that it was considering relocating — rather than closing — its hog kill and cut department, and that it was also considering relocating up to 900 Dubuque plant pork processing jobs. The UFCW responded by requesting detailed financial information from Dubuque, which the company refused to provide. Dubuque then advised its employees in writing that they could save their jobs by approving its wage freeze proposal. On June 28, 1981, the wage freeze was resubmitted to the workers for a vote, accompanied by the union leadership’s recommendation that it be rejected until Du-buque opened its books. The workers voted overwhelmingly with their union and against the company. Three days later, Dubuque informed the union that its decision to close the hog kill and cut department was “irrevocable.”\nOver the next few months, Dubuque and the UFCW continued to negotiate over Du-buque’s proposed relocation of its pork processing operations. On October 1, 1981, Du-buque opened a hog kill and cut operation at its newly acquired Rochelle, Illinois, plant and, two days later, eliminated approximately 530 hog kill and cut jobs at the Dubuque plant. On October 19, 1981, an agreement was signed granting wage concessions for the remaining workers at the Dubuque plant in return for the company’s agreement to keep the 900 pork processing jobs in Dubuque and to extend the current labor agreement. By early 1982, however, the company’s hope of obtaining new financing had collapsed, taking with it Dubuque’s prospects for remaining in business at Dubuque and Rochelle. Both plants were closed and sold on October 15, 1982.\nOn June 26, 1981, and August 7, 1981, the UFCW filed unfair labor practice complaints with the Board. It claimed that Dubuque had refused to bargain in good faith as to both the consummated relocation and the proposed one, objecting especially to the company’s alleged duplicity and its refusal to disclose financial data. On June 17, 1985, an administrative law judge (“ALJ”) rendered a decision on these complaints. Dubuque Packing Co., Nos. 33-CA-5524, 33-CA-5588 (ALJ June 15, 1985) (“ALJ Decision”), appended to Dubuque Packing Co., 287 N.L.R.B. 499 (1987). The ALJ suggested that Dubuque’s conduct may indeed have fallen below the standards of good-faith bargaining, ALJ Decision, 287 N.L.R.B. at 538, 540 n. 132, but he nevertheless held that Dubuque committed no unfair labor practice, id. at 543, because it was under no. duty to negotiate over its decision to relocate. Id. at 540. Over two years later, the NLRB summarily affirmed the ALJ, adopting his findings and opinion. Dubuque Packing Co., 287 N.L.R.B. 499 (1987).\nOn review of the Board’s decision, we remanded the case, declaring that the Board’s opinion had been inadequately explained. UFCW I, 880 F.2d at 1439. At the time, the NLRB had no single standard for determining whether companies were bound to bargain with their unions over plant relocations; rather, it relied on three different minority tests promulgated by various Board members in Otis Elevator Co., 269 N.L.R.B. 891, 1984 WL 36266 (1984) (“Otis II”). In UFCW I, we held that, given the confusion of the law, we could not trace the Board’s reasoning to ensure that its action was not arbitrary. UFCW I, 880 F.2d at 1436-37. We strongly advised, but did not demand, that a single majority rule be adopted by the Board. See id.\nOn remand, the Board unanimously approved a new test that differed from all three set forth in Otis II. Dubuque Packing Co., 303 N.L.R.B. 386, 391, 1991 WL 146795 (1991). It applied its new test to the relocation of the Dubuque hog kill and cut operation and found that a duty to bargain had existed and had been breached. Id. at 398. As a remedy, it ordered Dubuque to pay back wages to all employees terminated as a result of the relocation, from the date of their termination to October 15, 1982, the date operations ceased at Dubuque and Rochelle. Id. at 398-99. The Board, however, declined to apply its new test to the threatened relocation of Dubuque’s pork processing operations, finding that issue to be beyond the scope of this court’s remand instructions. Id. at 392 n. 19.\nBoth Dubuque and the UFCW petitioned for review of the Board rulings adverse to them, while the NLRB cross-petitioned for the enforcement of its order. In addition to presenting the claims discussed below, Du-buque also argues that the Board’s award of backpay must be limited to the period between the relocation of the hog kill and cut operations and the signing of the concessionary agreement. This last claim was not properly raised before the Board, however; hence we are barred from considering it. See 29 U.S.C. § 160(e) (1988) (“No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”).\nB. Legal Framework\nThe critical question in this litigation is whether Dubuque’s relocation of its hog kill and cut operation constitutes a mandatory subject of bargaining under the National Labor Relations Act (“NLRA” or “Act”). Athough parties to collective bargaining agreements are free to bargain about any legal subject, Congress has imposed on employers and unions “a mandate or duty” to bargain about certain issues. First National Maintenance Corp. v. NLRB, 452 U.S. 666, 674, 101 S.Ct. 2573, 2578, 69 L.Ed.2d 318 (1981). Any “unilateral change as to a subject within this category violates the statutory duty to bargain and is subject to the Board’s remedial order.” Id. at 674-75, 101 S.Ct. at 2578-79. In particular, two provisions of the NLRA combine to impose on employers a duty to bargain over “wages, hours, and other terms and conditions of employment.” Id. at 674, 101 S.Ct. at 2578. First, section 8(a) of the NLRA, 29 U.S.C. § 158(a), defines the activities constituting unfair labor practices by an employer. In relevant part, it provides:\nIt shall be an unfair labor practice for an employer—\n(5) to refuse to bargain collectively with the representatives of his employees....\n29 U.S.C. 158(a). Second, a definitional provision, section 8(d) of the Act, 29 U.S.C. § 158(d), provides:\nFor purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment....\n29 U.S.C. § 158(d) (emphasis added). The narrow issue in this case is whether a plant relocation such as the one executed by Du-buque constitutes a “term[ ] [or] condition[ ] of employment” under section 8(d) of Act; if it does, then Dubuque’s failure to bargain in good faith over the relocation constitutes an unfair labor practice under section 8(a)(5). The two critical Supreme Court decisions interpreting “terms and conditions of employment” for these purposes are First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981), which held that an employer’s decision to close a part of its business is not a mandatory subject of bargaining, and Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), which held that the replacement of union labor with subcontracted workers is.\nII. Discussion\nA. Dubuque’s Petition\nDubuque argues that the Board’s new test improperly interprets Supreme Court precedent, that it was improperly applied to these facts, and that the Board erred by retroactively applying its new test to this case. We disagree on all counts.\n1. The Legality of the Board’s New Test\nDubuque claims the Board erred in finding that its relocation involved a “term[ ] [or] condition[] of employment” subject to mandatory bargaining under the NLRA. In particular, it argues that the Board’s new test represents an impermissible reading of the Supreme Court’s decision in First National Maintenance. In reviewing such claims, we will respect the Board’s “policy choices,” so long as “its interpretation of what the Act requires is reasonable, in light of the purposes of the Act and the controlling precedent of the Supreme Court.” UFCW I, 880 F.2d at 1429.\nIn First National Maintenance, the Court held that the decision by a janitorial services company to close down operations at one customer site for economic reasons was not subject to a duty to bargain. Picking up a theme stressed in a concurring opinion by Justice Stewart in Fibreboard, the Court declared that “there is an undeniable limit to the subjects about which bargaining must take place,” First National Maintenance, 452 U.S. at 676, 101 S.Ct. at 2579, and that “Congress had no expectation that the elected union representative would become an equal partner in the running of the business enterprise in which the union’s members are employed.” Id. The Court later described the area beyond the “undeniable limit” of a union’s proper concern as the sphere of an employer’s “retained freedom to manage its affairs unrelated to employment.” Id. at 677, 101 S.Ct. at 2580.\nIn determining whether a particular decision is sufficiently related to employment that it must be bargained over, First National Maintenance announced and applied a three-part taxonomy:\nSome management decisions, such as choice of advertising and promotion, product type and design, and financing arrangements, have only an indirect and attenuated impact on the employment relationship. See Fibreboard, 379 U.S. at 223 [85 S.Ct. at 409] (Stewart, J., concurring). Other management decisions, such as the order of succession of layoffs and recalls, production quotas, and work rules, are almost exclusively “an aspect of the relationship” between employer and employee. [Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971).] The present case concerns a third type of management decision, one that had a direct impact on employment, since jobs were inexorably eliminated by the termination, but had as its focus only the economic profitability of the [employer’s] contract with [its customer], a concern under these facts wholly apart from the employment relationship. This decision, involving a change in the scope and direction of the enterprise, is akin to the decision whether to be in business at all, “not in [itself] primarily about conditions of employment, though the effect of the decision may be necessarily to terminate- employment.” Fibreboard, 379 U.S. at 223 [85 S.Ct. at 409-10] (Stewart, J., concurring). Cf. Textile Workers v. Darlington Co., 380 U.S. 263, 268 [85 S.Ct. 994, 998,13 L.Ed.2d 827] (1965) (“an employer has the absolute right to terminate his entire business for any reason he pleases”). At the same time, this decision touches on a matter of central and pressing concern to the union and its member employees: the possibility of continued employment and the retention of the employees’ very jobs.\nFirst National Maintenance, 452 U.S. at 676-77, 101 S.Ct. at 2580. In deciding which decisions in the intermediate category must be negotiated, the Court stated:\nThe concept of mandatory bargaining is premised on the belief that collective discussions backed by the parties’ economic weapons will result in decisions that are better for both management and labor and for society as a whole. This will be true, however, only if the subject proposed for discussion is amenable to resolution through the bargaining process. Management must be free from the constraints of the bargaining process to the extent essential for the running of a profitable business. It also must have some degree of certainty beforehand as to when it may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice.... [I]n view of an employer’s need for unencumbered deci-sionmaking, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.\nId. at 678-79, 101 S.Ct. at 2580-81 (citations omitted). The Court then proceeded to hold that a “deci[sion] ... to shut down part of [a] business' purely for economic reasons” was not a mandatory subject of bargaining, while “intimating] no view as to other types of management decisions, such as plant reloca-tions, ... which are to be considered on their particular facts.” Id. at 686 & n. 22, 101 S.Ct. at 2584 & n. 22. In the course of reaching its decision, the Court did nothing to call into question its earlier reasoning in Fibreboard. In that case, it had held that a manufacturer’s decision to subcontract maintenance work that had previously been done by union membérs was a mandatory subject of bargaining. Fibreboard, 379 U.S. at 215, 85 S.Ct. at 405. The motivation behind the subcontracting decision in Fibreboard was the manufacturer’s felt need to cut the labor costs of its operations. Id. at 213, 85 S.Ct. at 403.\nIn these proceedings, the Board set out to enunciate a new legal test “guided by the principles set forth in First National Maintenance.\" Dubuque Packing, 303 N.L.R.B. at 390. It adopted the following standard for determining whether “a decision to relocate [bargaining] unit work,” id., is a mandatory subject of bargaining:\nInitially, the burden is on the [NLRB] General Counsel to establish that the employer’s decision involved a relocation of unit work unaccompanied by á basic change in the nature of the employer’s operation. If the General Counsel successfully carries his burden in this regard, he will have established prima facie that the employer’s relocation decision is a mandatory subject of bargaining. At this juncture, the employer may produce evidence rebutting the prima facie case by establishing that the work performed at the new location varies significantly from the work performed at the former plant, establishing that the work performed at the former plant is to be discontinued entirely and not moved to the new location, or establishing that the employer’s decision involves a change in the scope and direction of the enterprise. Alternatively, the employer may proffer a defense to show by a preponderance of the evidence: (1) that labor costs (direct and/or indirect) were not a factor in the decision, or (2) that even if labor costs were a factor in the decision, the union could not have offered labor cost concessions that could have changed the employer’s decision to relocate.\nId. at 391.\nWe note at the outset that no claim has been presented to us regarding the legality of the Board’s test under section 10(c) of the NLRA, 29 U.S.C. § 160(c), which provides that the Board must find an unfair labor practice by a “preponderance of the testimony.” Because no section 10(c) claim is presented, we must view the factual elements of the Board’s test without regard to who must prove them. The only question facing us, then, is whether the Board could properly find a duty to bargain where all the elements included in its test have been proved.\nThe Board’s test involves three distinct layers of analysis. First, the test recognizes a category of decisions lying “at the core of entrepreneurial control,” Fibreboard, 379 U.S. at 223, 85 S.Ct. at 409 (Stewart, J., concurring), in which employers may unilaterally take action. Specifically, the test exempts from the duty to bargain relocations involving (1) “a basic change in the nature of the employer’s operation,” (2) “a change in the scope and direction of the enterprise,” (3) situations in which “the work performed at the new location varies significantly from the work performed at the former plant,” or (4) situations in which “the work performed at the former plant is to be discontinued entirely and not moved to the new location.” Dubuque Packing, 303 N.L.R.B. at 391.\nThis language would appear broad enough to cover key entrepreneurial decisions such as setting the scale (e.g., the quantity of product produced) and scope (e.g., the type of product produced) of the employer’s operations, and determining the basic method of production. Moreover, as to these issues, the Board’s test requires an analysis based on the objective differences between the employer’s old and new operations. It asks whether various types of “basic change,” “change,” “vari[ance],” or “discontinu[anee]” were involved in the relocation. Where such objective differences appear, an entrepreneurial decision is deemed to have been taken, and the employer is permitted to relocate without negotiating.- •\nThe second layer of the Board’s analysis is a subjective one. Cf. Dubuque Packing, 303 N.L.R.B. at 392 (referring to the employer’s “motivation for the relocation decision”). Under this heading, the relevant question is whether “labor costs (direct and/or indirect) were ... a factor” in the employer’s relocation decision. Id. at 391. As illustrated by the Board, this analysis will distinguish relo-cations motivated by labor costs from those motivated by other perceived advantages of the new location. Compare id. at 390 n. 9 (collecting cases in which the relocation was motivated by labor costs) with id. at 390 n. 10 (collecting cases in which the decision was motivated by other factors).\nThe third layer includes a futility provision. As we shall see below, the Board permits an employer to relocate without negotiating where its union either would not or could not offer sufficient concessions to change its decision. See Dubuque Packing, 303 N.L.R.B. at 391. Also, the Board has pledged to consider circumstances such as the need to implement a relocation “expeditiously” in determining whether bargaining over a relocation has reached “a bona fide impasse,” id. at 392; that is, the point at which a party may act unilaterally.\nDubuque objects that the Board’s test is inconsistent with First National Maintenance. Its argument tends toward the proposition that a per se rule exempting relocation decisions from the duty to bargain is implicit in First National Maintenance’s reasoning, if not its holding. Dubuque’s general objection is that the Board’s test is insufficiently protective of management prerogatives, both on its face and because it is not capable of certainty in application. Du-buque pointedly reminds us that First National Maintenance held that employers “must have some degree of certainty beforehand” as to which decisions are and are not subject to a bargaining duty. See First National Maintenance, 452 U.S. at 679, 101 S.Ct. at 2581. More specifically, Dubuque argues that relocation decisions must be exempt from the duty to bargain because they involve the reallocation of capital, observing that allocations of capital are “core managerial decisions.” See Brief for Dubuque at 38.\nWe pause to emphasize that our analysis of the Board’s test is premised on our resolution of an important ambiguity in the Board’s statement of its second affirmative defense. As stated by the Board, that defense requires an employer to establish that “the union could not have offered labor cost concessions that could have changed the employer’s decision to relocate.” Dubuque Packing, 303 N.L.R.B. at 391 (emphasis added). On its face, this language might be read as an impossibility exception — a provision allowing an employer to eschew negotiations only if its union could not possibly have changed the relocation decision no matter how accommodating the union might have been at the bargaining table. This reading is strengthened by the Board’s illustration of the defense, which involves a case in which an employer “would not remain at the present plant because ... the costs for modernization of equipment or environmental controls were greater than [the value of] any labor cost concessions the union could offer.” Id. (emphasis added).\nDespite this evidence, we think this defense was intended to cover situations in which bargaining would be futile, as well as ones in which it would be impossible for the union to persuade the employer to rescind its relocation decision. Immediately after setting forth its test and the above illustration, the Board stated that under the second affirmative defense, “an employer would have a bargaining obligation if the union could and would offer concessions that approximate, meet, or exceed the anticipated costs or benefits that prompted the relocation decision.” Dubuque Packing Co., 303 N.L.R.B. at 391 (emphasis added). Furthermore, in the next succeeding sentence and a footnote appended to it, the Board stated:\nAs an evidentiary matter, an employer might establish that it has no decision bargaining obligation, even without discussing the union’s position on concessions, if the wage and benefit costs of the unit employees were already so low that it was clear on the basis of those figures alone that the employees could not make up the difference. For example, if a relocation of unit work would save an employer a projected $10.5 million in costs for equipment modernization and environmental controls (quite apart from any labor costs), and if the employer’s present labor costs totaled $10 million, then even if the employees were willing to work for free, the union could not offer sufficient labor cost concessions to offset the equipment and environmental savings.\nId. at 391-92 & n. 13 (footnote relocated into text) (emphasis added). We gather from this that showing the impossibility of obtaining sufficient concessions is simply one means of demonstrating the futility of bargaining as an evidentiary matter. And we note that the Board’s aside to the effect that an employer might establish that it has no bargaining obligation, “even without discussing the union’s position on concessions,” implies that an employer might also establish the same proposition through a discussion of “the union’s position on concessions.” As we read it, the Board’s test holds that no duty to bargain exists where bargaining would be futile — either because the union was unable to offer sufficient concessions, or because it was unwilling to do so.\nViewing the Board’s test through the lens of this interpretation, we find it sufficiently protective of an employer’s prerogative to manage its business. Under First National Maintenance, employers may be required to negotiate management decisions where “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” First National Maintenance, 452 U.S. at 679, 101 S.Ct. at 2581. The Board’s test exempts from the duty to negotiate relo-cations that, viewed objectively, are entrepreneurial in nature. It exempts decisions that, viewed subjectively, were motivated by something other than labor costs. And it explicitly excuses employers from attempting to negotiate when doing so would be futile or impossible. What is left are relocations that leave the firm occupying much the same entrepreneurial position as previously, that were taken because of the cost of labor, and that offer a realistic hope for a negotiated settlement. The Board’s determination that bargaining over such decisions promises benefits outweighing the “burden[s] placed on the conduct of [an employer’s] business” was in no way unreasonable.\nSimilarly, the Board was also justified in finding that its test accords with Supreme Court precedent. A relocation satisfying the three layers of the Board’s test will resemble the subcontracting decision held subject to a mandatory bargaining duty in Fibreboard in three distinct ways: Because of the new test’s objective component, such a relocation will not “alter the Company’s basic operation,” Fibreboard, 379 U.S. at 213, 85 S.Ct. at 404, in a way that implicates the employer’s “core of entrepreneurial control,” id. at 223, 85 S.Ct. at 409 (Stewart, J., concurring); because of the new test’s subjective component, “a desire to reduce labor costs” will lie “at the base of the employer’s decision,” see First National Maintenance, 452 U.S. at 680, 101 S.Ct. at 2581 (discussing Fibre-board ); and because of the new test’s exclusion of situations in which bargaining would be futile, there will be some prospect of resolving the relocation dispute “within the collective bargaining framework.” Fibreboard, 379 U.S. at 213-14, 85 S.Ct. at 404. Like its balancing of burdens and benefits, the Board’s finding that its test accords with precedent is fully defensible.\nDubuque counters that relocation decisions should not be treated the same as the subcontract considered in Fibreboard because they will differ from that arrangement on a crucial point — relocations involve the expenditure of capital. Cf. Fibreboard, 379 U.S. at 225, 85 S.Ct. at 410 (Stewart, J., concurring) (“larger entrepreneurial questions [such] as ... how capital shall be invested in fixed assets ” not governed by Fibreboard’s holding) (emphasis added); id. at 213, 85 S.Ct. at 404 (noting that “[n]o capital investment was contemplated” in connection with the subcontract). Furthermore, as Dubuque points out, key portions of the First National Maintenance opinion relied on Justice Stewart’s concurrence in Fibreboard, which was particularly solicitous of management prerogatives over capital expenditure. See, e.g., First National Maintenance, 452 U.S. at 676-77, 101 S.Ct. at 2579-80 (citing Fibreboard, 379 U.S. at 223, 85 S.Ct. at 409 (Stewart, J., concurring)).\nFor several reasons, we remain unconvinced. First, the Board’s test exempts from the duty to bargain relocations in which “the work performed at the new location varies significantly from the work performed at the former plant.” Dubuque Packing, 303 N.L.R.B. at 391. Under this standard, relo-cations involving a sufficiently altered pattern of fixed-capital use (such as a shift from a' labor-intensive production line to a fully automated factory) would appear exempt from the bargaining duty. Cf. Local 777, Democratic Union Org. Comm., Seafarers Int'l Union v. NLRB, 603 F.2d 862, 884 (D.C.Cir.1978) {“Local 777”) (stating that “major shifts in the capital investment or corporate strategy of a company are not mandatory bargaining subjects”). Second, many “terms and conditions of employment” over which employers are plainly bound to bargain involve the expenditure of “capital.” Unless management rights are impermissibly invaded every time a union bargains for a breakroom water-cooler or shop-floor safety equipment, the realm of mandatory bargaining must include at least some decisions involving capital expenditures. Third, while First National Maintenance did reflect the influence of Justice Stewart’s Fibreboard opinion, it did not reiterate that opinion’s specific concerns with management’s prerogative over the expenditure of capital, or otherwise indicate that a line protecting all decisions to expend capital must be drawn. Given this, and the deference owed the Board’s policy choices, see UFCW I, 880 F.2d at 1429, we find that the Board’s test does not imper-missibly fail to protect management’s prerogatives over capital investment. The dicta Dubuque cites are too thin to bear the weight placed on them.\nDubuque’s final contention is that the test is so imprecise that employers are denied the degree of certainty or guidance that it believes the Supreme Court mandated in First National Maintenance. See 452 U.S. at 679, 101 S.Ct. at 2581. While we can agree that First National Maintenance affirms management’s need for “some degree of certainty” so that it “may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice,” id. (emphasis added), this does not require that the Board establish standards devoid of ambiguity at the margins. The test announced in Dubuque Packing provides more than the “some” degree of certainty required by the Supreme Court. It establishes rules on which management may plan with a large degree of confidence; and while the test undoubtedly leaves areas of uncertainty between relocation decisions that are clearly’ within the exclusive prerogatives of management and those that are equally clearly subject to negotiation, these will in time be narrowed through future adjudications. We therefore conclude that the standard adopted by the Board was a reasonable policy choice and that its decision to proceed by adjudication, not rulemaking, was also within its discretion. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 1772, 40 L.Ed.2d 134 (1974) (upholding a decision to proceed by adjudication where the relevant facts “vary widely depending on the company or industry”); see also Bechtel v. FCC, 957 F.2d 873, 881 (D.C.Cir.1992) (affirming that an agency may “choose to make new policy through either rulemaking or adjudication”).\nFinally, we find no fatal uncertainty in the Board’s test as it applies to these facts. As we explain below, the Board’s ruling easily survives Dubuque’s contention that the test’s requirements were not met in regard to its particular relocation. Employers should have no trouble understanding that actions such as Dubuque’s run afoul of the Board’s newly articulated standard.\n2. The Application of the Board’s Test to Dubuque\nDubuque next contends that the Board improperly applied its test to the facts of this case and that under the new standard, properly applied, its actions did not give rise to a bargaining duty. In addressing this contention, we are required by statute to uphold “the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(f).\nDubuque objects, first, to the Board’s finding that its relocation did not constitute a change in the scope and direction of its business. It relies for support on the ALJ’s finding that the Rochelle plant was a “smaller, newer, more modern ..., better laid out” facility and his conclusion “that [Dubuque’s] relocation of the hog kill and cut to Rochelle clearly turned on a fundamental change in the scope, nature, and direction of [its] business of which labor costs were but a single important factor.” ALJ Decision, 287 N.L.R.B. at 538. The Board rejected this conclusion, stating that “[t]here is no evidence that the relocation decision was accompanied by a basic change in the nature of the employer’s operation.” Dubuque Packing, 303 N.L.R.B. at 393.\nThe Board’s position enjoys ample support in the record. In fact, its rejection of the ALJ’s conclusion is specifically supported by the ALJ’s findings. The ALJ stated that Dubuque\nused the Rochelle facility to substantially replace the Dubuque facility. As production in Rochelle increased, there was a corresponding reduction at Dubuque until the hog kill and cut processing departments and related operations there were completely phased out. Larry J. Tange-man, general plant superintendent at Du-buque, became superintendent of the Rochelle facility and about 13 members of Dubuque management also were transferred to Rochelle, as was certain production equipment. The purposes of the Rochelle plant, to slaughter hogs, dress carcasses, and to process pork into hams, bacon, and sausage, were the same as at the Dubuque plant.\nALJ Decision, 287 N.L.R.B. at 529. Indeed, in view of these facts, the ALJ felt it necessary to “find” on the record that “the transfer ... did not constitute subcontracting.” Id. at 529 n. 82. Aside from the ALJ’s conclusory statement, Dubuque points to nothing indicating that the Dubuque and Rochelle operations were objectively dissimilar enough (in scale of operations for example) for the relocation to constitute a “basic change in the nature of the employer’s operation” as that phrase is used in the test. See Dubuque Packing, 303 N.L.R.B. at 391. Viewed as a whole, the record offers substantial support for the Board’s position.\nDubuque’s second contention is that because “the record ... is very clear that the union “would not’ offer labor concessions,” bargaining would have been futile; hence it was not required. Brief for Dubuque at 40. Dubuque cites for support Local 777, where we observed:\nIt would make a mockery of the labor law for this court to hold that the Company had committed an unfair labor practice by refusing to bargain when the Union gave a public demonstration of its intransigent opposition to a management proposal, attempted to thwart the realization of this proposal by political action, and conditioned any bargaining on an illegal recognition of it as collective bargaining representative.\nLocal 777, 603 F.2d at 888 (emphasis in original).\nWhile we agree that our precedent, like the Board’s test, relieves employers from any duty to bargain in the face of a union’s adamantine intransigence, that principle has no bearing here. As counsel for the UFCW pointed out at oral argument, the UFCW “could, would, and did” accept concessions— in 1978, in August 1980, and again in October 1981 — all in a vain attempt to keep the Du-buque facility open. Indeed, the vote that led to Dubuque’s “irrevocable” decision to relocate was not a vote to categorically refuse Dubuque’s overtures, but a vote to insist on financial disclosure as a prelude to bargaining. The Board’s finding that good-faith bargaining between Dubuque and the UFCW might not have been futile was substantially supported by the record.\n3. Retroactivity\nFinally, Dubuque argues that the Board erred by “retroactively” employing its new test in this case. Again, we disagree.\nOur formulation of the standard for evaluating challenges to the retroactive application of a ruling from an agency adjudication has varied. Compare Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C.Cir.1972) (applying a five-factor test) with Consolidated Freightways v. NLRB, 892 F.2d 1052, 1058 (D.C.Cir.1989) (recognizing “a general principle” that retroactive application of rules is permitted “absent any manifest injustice”) (internal quotation marks omitted) with District Lodge 64, Int’l Ass’n of Machinists v. NLRB, 949 F.2d 441, 447 (D.C.Cir.1991) (applying a three-factor test based on Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)). What has not varied is our consistent willingness to approve the retroactive application of rulings that do not represent an “abrupt break with well-settled policy” but merely “attempt to fill a void in an unsettled area of the law.” Local 900, Int’l Union of Electrical Workers v. NLRB, 727 F.2d 1184, 1195 (D.C.Cir.1984) (internal quotation marks and brackets omitted); see also, e.g., District Lodge 61, 949 F.2d at 447-48 (permitting retroactivity where “Board precedent was neither clear nor consistent” at the relevant time); Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d 1074, 1083 (D.C.Cir.1987) (en banc) (permitting retroactive application of a new rule where the prior rule did not “rise to the level of a well established practice”) (internal quotation marks omitted). Indeed, an agency’s authority to proceed by adjudication, as opposed to rulemaking, see Bell Aerospace Co., 416 U.S. at 294, 94 S.Ct. at 1772, implies a power to fill interstices in the law by proceeding case by case. Cf. id. (noting that where the relevant facts “vary widely depending on the company or industry,” the Board “has reason to proceed with caution, developing its standards in a case-by-case manner with attention to the specific circumstances”).\nAlthough our multi-factor tests have been stated in terms of a balancing of co-equal factors, each includes one that, in practice, has been given primary importance; namely, the critical question of whether the challenged decision “creates a new rule, either by overruling past precedents relied upon by the parties or because it was an issue of first impression.” See District Lodge 64, 949 F.2d at 447 (setting forth the first prong of its three-factor test and noting that this factor “parallel[sj” the first two of Retail Union’s five factors). Although we have retained the authority to disallow on equitable grounds the retroactive application of rules that do not represent a reversal of precedent or constitute an issue of first impression, to our knowledge we have never exercised that authority. As a practical matter, where an agency ruling seeks only to clarify the contours of established doctrine, we will almost per force allow its retroactive application.\nIn this case, the Board’s test merely clarifies the line between relocation decisions that, because they are analogous to subcontracting arrangements, are subject to a duty to bargain and those that, because they are analogous to partial closings, are not. At the time Dubuque announced its “irrevocable” decision to relocate, the question of whether relocation decisions must be negotiated was an old one and the existence of this legal “interstice” was apparent. By that time, July 1, 1981, both Fibreboard and First National Maintenance had been decided. The Court’s opinion in the latter had called into question the Board’s former practice of “consistently holding that relocation of work from one plant to another was a mandatory subject of bargaining,” UFCW I, 880 F.2d at 1429. See id. at 1431. First National Maintenance had also expressly reserved judgment on “management decisions [] such as plant relocations.” 452 U.S. at 686 n. 22, 101 S.Ct. at 2584 n. 22.\nMoreover, the gap in the law that had already been opened when Dubuque acted was not closed until the announcement of the test we approve today. In the intervening years, a Board majority never embraced a standard under which Dubuque’s failure to bargain would have been lawful. Thus, the Board’s test does not “create! ] a new rule, either by overruling past precedents relied upon by the parties or because it was an issue of first impression,” District Lodge 64, 949 F.2d at 447; rather it “fill[s] a void” in the law. Local 900, 727 F.2d at 1195. We have observed before that\n[cjircumstances such as these are the stuff that adjudications are made of: the law is unclear; opposing parties mount reasonable arguments on both sides; the adjudicator says what the law is. In such circumstances, the general rule [is] that judicial or administrative precedents apply not only prospectively but to cases pending at the time they are decided.\nAtchison, Topeka & Santa Fe Ry. Co. v. ICC, 851 F.2d 1432, 1437 (D.C.Cir.1988) (brackets and quotation marks omitted). Because we find on these facts no special inequity in allowing this interstitial ruling to apply retroactively, we affirm the Board’s application of its new test to the present ease.\nIn closing, we recognize the possibility that our precedents regarding the retroactive application of agency adjudications may require revision in light of the Supreme Court’s recent decision in Harper v. Virginia Dep’t of Taxation, — U.S. -, -, 113 S.Ct. 2510, 2517-19, 125 L.Ed.2d 74 (1993), but note that there is no need to revisit them here. Harper abolished exceptions to the retroactive application of judicial rulings in civil cases and rejected the three-factor ret-roactivity test of Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), that we have deemed “substantively indistinguishable” from our traditional standards for testing administrative retroactivity, District Lodge 64 v. NLRB, 949 F.2d at 447. Harper, — U.S. at -, 113 S.Ct. at 2517-19. We need not wrestle with this question, however, because if applicable to agency adjudications, Harper would mandate the retroactive application of the Board’s test that we find to be consistent with our existing circuit precedent.\nB. The UFCW Petition\nThe UFCW petitions for review of the Board’s refusal to consider the union’s complaints of unfair labor practices in connection with Dubuque’s proposed relocation of its pork processing operation. Although the Board acknowledged that the union had presented claims concerning both proposed relocation decisions in UFCW I, it “deeline[d] to pass” on the pork processing claims “on the ground that [they] go beyond the scope of the issues remanded to us by the court of appeals.” Dubuque Packing, 303 N.L.R.B. at 392 n. 19. The Board supported this ruling by noting that (1) our discussion in the earlier opinion focused on the consummated relocation of the hog kill and cut operation, not the proposed relocation of the pork processing operation; (2) our review of issues to be determined on remand did not include the pork processing issues; and (3) any decision on these matters would raise “distinct issues” including “difficult remedial issue[s]” concerning the remedy for bargaining in bad faith over a proposed relocation that had been averted through a concessionary agreement. Id. The Board supposed that if we had wished it to address such issues we would have said so directly.\nOn reviewing our earlier decision, we acknowledge that our ruling was not as explicit as it should have been. The Board concedes, however, that the union presented all of its claims in the earlier appeal and that we did not dispose of the pork processing relocation controversy at that time. It should have been evident, then, that when we remanded “this case for further proceedings consistent with this opinion,” TJFCW I, 880 F.2d at 1439, it was our intention to remand all of it.\nAccordingly, we grant the UFCW’s petition for review; we set aside that part of the Board’s order that declines to consider the UFCW’s claims of unfair labor practices in connection with Dubuque’s proposed pork processing relocation; and we remand that issue to the Board for a determination of its merits. Out of an excess of caution, we point out that this remand covers all properly preserved claims that have yet to be disposed of on their merits (our references to “900 pork processing” jobs have been intended as an identifier, not as a finding of fact). Also, as our earlier decision set aside the entirety of the Board’s first order, the Board should adjudicate these claims as they first appeared on its docket on appeal from the ALJ’s 1985 decision.\nIII. Conclusion\nFor the foregoing reasons, we deny Du-buque’s petition for review, enforce the Board’s remedial order against Dubuque, grant the UFCW’s petition for review, and remand to the Board the issue of Dubuque’s duty to bargain over its proposed pork processing relocation.\nSo ordered.", "type": "majority", "author": "BUCKLEY, Circuit Judge:"}], "attorneys": ["Eugene Cotton, Chicago, IL, argued the cause for United Food & Commercial Workers Intern. Union, AFL-CIO, Local No. 150-A, petitioner in No. 91-1290 and intervenor in No. 91-1325. With him on the brief were Irving M. King, Michael H. Slutsky, Chicago, IL, and George R. Murphy, Washington, DC.", "Soren S. Jensen, Lincoln, NE, argued the cause for Dubuque Packing Co., Inc., petitioner in No. 91-1325 and intervenor in No. 91-1290. With him on the brief were Gerard C. Smetana, Chicago, IL, and Michael E. Avakian, North Springfield, VA.", "David A. Fleischer, Attorney, National Labor Relations Bd. (“NLRB”), argued the cause for respondent. With him on the brief were Jerry M. Hunter, General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, NLRB, Washington, DC. Howard E. Perlstein, Washington, DC, also entered an appearance for respondent."], "corrections": "", "head_matter": "UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL NO. 150-A, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Dubuque Packing Company, Inc., Intervenor.\nNos. 91-1290, 91-1325.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued Dec. 14, 1992.\nDecided Aug. 10, 1993.\nEugene Cotton, Chicago, IL, argued the cause for United Food & Commercial Workers Intern. Union, AFL-CIO, Local No. 150-A, petitioner in No. 91-1290 and intervenor in No. 91-1325. With him on the brief were Irving M. King, Michael H. Slutsky, Chicago, IL, and George R. Murphy, Washington, DC.\nSoren S. Jensen, Lincoln, NE, argued the cause for Dubuque Packing Co., Inc., petitioner in No. 91-1325 and intervenor in No. 91-1290. With him on the brief were Gerard C. Smetana, Chicago, IL, and Michael E. Avakian, North Springfield, VA.\nDavid A. Fleischer, Attorney, National Labor Relations Bd. (“NLRB”), argued the cause for respondent. With him on the brief were Jerry M. Hunter, General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, NLRB, Washington, DC. Howard E. Perlstein, Washington, DC, also entered an appearance for respondent.\nBefore EDWARDS, RUTH BADER GINSBURG, and BUCKLEY, Circuit Judges."}	EDWARDS	RUTH BADER GINSBURG	BUCKLEY	1	1	1	0	0	0	1 F.3d 24	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL NO. 150-A, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Dubuque Packing Company, Inc., Intervenor\nCourt: United States Court of Appeals for the District of Columbia Circuit\nDate decided: 1993-08-10\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOpinion for the court filed by Circuit Judge BUCKLEY.\nBUCKLEY, Circuit Judge:\nDubuque Packing Company petitions for review of a National Labor Relations Board order holding that it committed unfair labor practices by breaching its duty to bargain with its union regarding the relocation of its “hog kill and cut” operations. We hold that the new standard adopted by the Board for evaluating such claims is an acceptable reading of the National Labor Relations Act and Supreme Court precedents; that the Board’s finding that Dubuque owed a duty to bargain was supported by substantial evidence; and that the Board properly applied its new test retroactively to the facts of this ease. Hence, we deny Dubuque’s petition and enforce the Board’s remedial order. In addition, Dubuque’s union, the United Food and Commercial Workers International Union, Local No. 150-A, petitions for review of the Board’s refusal to consider its unfair labor practice claims regarding a related relocation that Dubuque proposed but did not execute — that of its “pork processing” operation. We find that this claim was properly before the Board on remand from an earlier decision of this court; hence, we grant the UFCW’s petition and once again remand this issue.\nI. BACKGROUND\nA. Facts and Procedural History\nThe facts of this case were set forth at length in our earlier opinion, United Food & Commercial Workers Int’l Union, Local 150-A v. NLRB, 880 F.2d 1422, 1423-27 (D.C.Cir.1989) (“UFCW /”); in relevant part, they are these. Beginning about 1977, the Du-buque Packing Company, a processor and packager of beef and pork, began losing money at its Dubuque, Iowa, home plant. In 1978, Dubuque won an agreement from the plant’s workers, who were represented by the United Food and Commercial Workers International Union (“UFCW”), requiring the workers to produce at higher rates in return for a one-time cash payment. In August 1980, Dubuque extracted concessions worth approximately $5 million per annum in return for a pledge that it would not ask for further concessions before the September 1, 1982, expiration of the union contract then in effect. In March 1981, however, it again requested concessions, this time in the form of additional productivity increases in its hog kill department.\nOn March 30, 1981, the events at issue here began to unfold. On that date, Du-buque gave six-months’ notice, as required by its labor contract, of its intention to close its hog kill and cut operations at Dubuque. Various maneuvers between the company and the UFCW ensued, culminating in the union’s rejection of a wage freeze aimed at keeping the Dubuque hog kill and cut operation open. The following day, June 10, 1981, the company announced that it was considering relocating — rather than closing — its hog kill and cut department, and that it was also considering relocating up to 900 Dubuque plant pork processing jobs. The UFCW responded by requesting detailed financial information from Dubuque, which the company refused to provide. Dubuque then advised its employees in writing that they could save their jobs by approving its wage freeze proposal. On June 28, 1981, the wage freeze was resubmitted to the workers for a vote, accompanied by the union leadership’s recommendation that it be rejected until Du-buque opened its books. The workers voted overwhelmingly with their union and against the company. Three days later, Dubuque informed the union that its decision to close the hog kill and cut department was “irrevocable.”\nOver the next few months, Dubuque and the UFCW continued to negotiate over Du-buque’s proposed relocation of its pork processing operations. On October 1, 1981, Du-buque opened a hog kill and cut operation at its newly acquired Rochelle, Illinois, plant and, two days later, eliminated approximately 530 hog kill and cut jobs at the Dubuque plant. On October 19, 1981, an agreement was signed granting wage concessions for the remaining workers at the Dubuque plant in return for the company’s agreement to keep the 900 pork processing jobs in Dubuque and to extend the current labor agreement. By early 1982, however, the company’s hope of obtaining new financing had collapsed, taking with it Dubuque’s prospects for remaining in business at Dubuque and Rochelle. Both plants were closed and sold on October 15, 1982.\nOn June 26, 1981, and August 7, 1981, the UFCW filed unfair labor practice complaints with the Board. It claimed that Dubuque had refused to bargain in good faith as to both the consummated relocation and the proposed one, objecting especially to the company’s alleged duplicity and its refusal to disclose financial data. On June 17, 1985, an administrative law judge (“ALJ”) rendered a decision on these complaints. Dubuque Packing Co., Nos. 33-CA-5524, 33-CA-5588 (ALJ June 15, 1985) (“ALJ Decision”), appended to Dubuque Packing Co., 287 N.L.R.B. 499 (1987). The ALJ suggested that Dubuque’s conduct may indeed have fallen below the standards of good-faith bargaining, ALJ Decision, 287 N.L.R.B. at 538, 540 n. 132, but he nevertheless held that Dubuque committed no unfair labor practice, id. at 543, because it was under no. duty to negotiate over its decision to relocate. Id. at 540. Over two years later, the NLRB summarily affirmed the ALJ, adopting his findings and opinion. Dubuque Packing Co., 287 N.L.R.B. 499 (1987).\nOn review of the Board’s decision, we remanded the case, declaring that the Board’s opinion had been inadequately explained. UFCW I, 880 F.2d at 1439. At the time, the NLRB had no single standard for determining whether companies were bound to bargain with their unions over plant relocations; rather, it relied on three different minority tests promulgated by various Board members in Otis Elevator Co., 269 N.L.R.B. 891, 1984 WL 36266 (1984) (“Otis II”). In UFCW I, we held that, given the confusion of the law, we could not trace the Board’s reasoning to ensure that its action was not arbitrary. UFCW I, 880 F.2d at 1436-37. We strongly advised, but did not demand, that a single majority rule be adopted by the Board. See id.\nOn remand, the Board unanimously approved a new test that differed from all three set forth in Otis II. Dubuque Packing Co., 303 N.L.R.B. 386, 391, 1991 WL 146795 (1991). It applied its new test to the relocation of the Dubuque hog kill and cut operation and found that a duty to bargain had existed and had been breached. Id. at 398. As a remedy, it ordered Dubuque to pay back wages to all employees terminated as a result of the relocation, from the date of their termination to October 15, 1982, the date operations ceased at Dubuque and Rochelle. Id. at 398-99. The Board, however, declined to apply its new test to the threatened relocation of Dubuque’s pork processing operations, finding that issue to be beyond the scope of this court’s remand instructions. Id. at 392 n. 19.\nBoth Dubuque and the UFCW petitioned for review of the Board rulings adverse to them, while the NLRB cross-petitioned for the enforcement of its order. In addition to presenting the claims discussed below, Du-buque also argues that the Board’s award of backpay must be limited to the period between the relocation of the hog kill and cut operations and the signing of the concessionary agreement. This last claim was not properly raised before the Board, however; hence we are barred from considering it. See 29 U.S.C. § 160(e) (1988) (“No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”).\nB. Legal Framework\nThe critical question in this litigation is whether Dubuque’s relocation of its hog kill and cut operation constitutes a mandatory subject of bargaining under the National Labor Relations Act (“NLRA” or “Act”). Athough parties to collective bargaining agreements are free to bargain about any legal subject, Congress has imposed on employers and unions “a mandate or duty” to bargain about certain issues. First National Maintenance Corp. v. NLRB, 452 U.S. 666, 674, 101 S.Ct. 2573, 2578, 69 L.Ed.2d 318 (1981). Any “unilateral change as to a subject within this category violates the statutory duty to bargain and is subject to the Board’s remedial order.” Id. at 674-75, 101 S.Ct. at 2578-79. In particular, two provisions of the NLRA combine to impose on employers a duty to bargain over “wages, hours, and other terms and conditions of employment.” Id. at 674, 101 S.Ct. at 2578. First, section 8(a) of the NLRA, 29 U.S.C. § 158(a), defines the activities constituting unfair labor practices by an employer. In relevant part, it provides:\nIt shall be an unfair labor practice for an employer—\n(5) to refuse to bargain collectively with the representatives of his employees....\n29 U.S.C. 158(a). Second, a definitional provision, section 8(d) of the Act, 29 U.S.C. § 158(d), provides:\nFor purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment....\n29 U.S.C. § 158(d) (emphasis added). The narrow issue in this case is whether a plant relocation such as the one executed by Du-buque constitutes a “term[ ] [or] condition[ ] of employment” under section 8(d) of Act; if it does, then Dubuque’s failure to bargain in good faith over the relocation constitutes an unfair labor practice under section 8(a)(5). The two critical Supreme Court decisions interpreting “terms and conditions of employment” for these purposes are First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981), which held that an employer’s decision to close a part of its business is not a mandatory subject of bargaining, and Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), which held that the replacement of union labor with subcontracted workers is.\nII. Discussion\nA. Dubuque’s Petition\nDubuque argues that the Board’s new test improperly interprets Supreme Court precedent, that it was improperly applied to these facts, and that the Board erred by retroactively applying its new test to this case. We disagree on all counts.\n1. The Legality of the Board’s New Test\nDubuque claims the Board erred in finding that its relocation involved a “term[ ] [or] condition[] of employment” subject to mandatory bargaining under the NLRA. In particular, it argues that the Board’s new test represents an impermissible reading of the Supreme Court’s decision in First National Maintenance. In reviewing such claims, we will respect the Board’s “policy choices,” so long as “its interpretation of what the Act requires is reasonable, in light of the purposes of the Act and the controlling precedent of the Supreme Court.” UFCW I, 880 F.2d at 1429.\nIn First National Maintenance, the Court held that the decision by a janitorial services company to close down operations at one customer site for economic reasons was not subject to a duty to bargain. Picking up a theme stressed in a concurring opinion by Justice Stewart in Fibreboard, the Court declared that “there is an undeniable limit to the subjects about which bargaining must take place,” First National Maintenance, 452 U.S. at 676, 101 S.Ct. at 2579, and that “Congress had no expectation that the elected union representative would become an equal partner in the running of the business enterprise in which the union’s members are employed.” Id. The Court later described the area beyond the “undeniable limit” of a union’s proper concern as the sphere of an employer’s “retained freedom to manage its affairs unrelated to employment.” Id. at 677, 101 S.Ct. at 2580.\nIn determining whether a particular decision is sufficiently related to employment that it must be bargained over, First National Maintenance announced and applied a three-part taxonomy:\nSome management decisions, such as choice of advertising and promotion, product type and design, and financing arrangements, have only an indirect and attenuated impact on the employment relationship. See Fibreboard, 379 U.S. at 223 [85 S.Ct. at 409] (Stewart, J., concurring). Other management decisions, such as the order of succession of layoffs and recalls, production quotas, and work rules, are almost exclusively “an aspect of the relationship” between employer and employee. [Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971).] The present case concerns a third type of management decision, one that had a direct impact on employment, since jobs were inexorably eliminated by the termination, but had as its focus only the economic profitability of the [employer’s] contract with [its customer], a concern under these facts wholly apart from the employment relationship. This decision, involving a change in the scope and direction of the enterprise, is akin to the decision whether to be in business at all, “not in [itself] primarily about conditions of employment, though the effect of the decision may be necessarily to terminate- employment.” Fibreboard, 379 U.S. at 223 [85 S.Ct. at 409-10] (Stewart, J., concurring). Cf. Textile Workers v. Darlington Co., 380 U.S. 263, 268 [85 S.Ct. 994, 998,13 L.Ed.2d 827] (1965) (“an employer has the absolute right to terminate his entire business for any reason he pleases”). At the same time, this decision touches on a matter of central and pressing concern to the union and its member employees: the possibility of continued employment and the retention of the employees’ very jobs.\nFirst National Maintenance, 452 U.S. at 676-77, 101 S.Ct. at 2580. In deciding which decisions in the intermediate category must be negotiated, the Court stated:\nThe concept of mandatory bargaining is premised on the belief that collective discussions backed by the parties’ economic weapons will result in decisions that are better for both management and labor and for society as a whole. This will be true, however, only if the subject proposed for discussion is amenable to resolution through the bargaining process. Management must be free from the constraints of the bargaining process to the extent essential for the running of a profitable business. It also must have some degree of certainty beforehand as to when it may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice.... [I]n view of an employer’s need for unencumbered deci-sionmaking, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.\nId. at 678-79, 101 S.Ct. at 2580-81 (citations omitted). The Court then proceeded to hold that a “deci[sion] ... to shut down part of [a] business' purely for economic reasons” was not a mandatory subject of bargaining, while “intimating] no view as to other types of management decisions, such as plant reloca-tions, ... which are to be considered on their particular facts.” Id. at 686 & n. 22, 101 S.Ct. at 2584 & n. 22. In the course of reaching its decision, the Court did nothing to call into question its earlier reasoning in Fibreboard. In that case, it had held that a manufacturer’s decision to subcontract maintenance work that had previously been done by union membérs was a mandatory subject of bargaining. Fibreboard, 379 U.S. at 215, 85 S.Ct. at 405. The motivation behind the subcontracting decision in Fibreboard was the manufacturer’s felt need to cut the labor costs of its operations. Id. at 213, 85 S.Ct. at 403.\nIn these proceedings, the Board set out to enunciate a new legal test “guided by the principles set forth in First National Maintenance.\" Dubuque Packing, 303 N.L.R.B. at 390. It adopted the following standard for determining whether “a decision to relocate [bargaining] unit work,” id., is a mandatory subject of bargaining:\nInitially, the burden is on the [NLRB] General Counsel to establish that the employer’s decision involved a relocation of unit work unaccompanied by á basic change in the nature of the employer’s operation. If the General Counsel successfully carries his burden in this regard, he will have established prima facie that the employer’s relocation decision is a mandatory subject of bargaining. At this juncture, the employer may produce evidence rebutting the prima facie case by establishing that the work performed at the new location varies significantly from the work performed at the former plant, establishing that the work performed at the former plant is to be discontinued entirely and not moved to the new location, or establishing that the employer’s decision involves a change in the scope and direction of the enterprise. Alternatively, the employer may proffer a defense to show by a preponderance of the evidence: (1) that labor costs (direct and/or indirect) were not a factor in the decision, or (2) that even if labor costs were a factor in the decision, the union could not have offered labor cost concessions that could have changed the employer’s decision to relocate.\nId. at 391.\nWe note at the outset that no claim has been presented to us regarding the legality of the Board’s test under section 10(c) of the NLRA, 29 U.S.C. § 160(c), which provides that the Board must find an unfair labor practice by a “preponderance of the testimony.” Because no section 10(c) claim is presented, we must view the factual elements of the Board’s test without regard to who must prove them. The only question facing us, then, is whether the Board could properly find a duty to bargain where all the elements included in its test have been proved.\nThe Board’s test involves three distinct layers of analysis. First, the test recognizes a category of decisions lying “at the core of entrepreneurial control,” Fibreboard, 379 U.S. at 223, 85 S.Ct. at 409 (Stewart, J., concurring), in which employers may unilaterally take action. Specifically, the test exempts from the duty to bargain relocations involving (1) “a basic change in the nature of the employer’s operation,” (2) “a change in the scope and direction of the enterprise,” (3) situations in which “the work performed at the new location varies significantly from the work performed at the former plant,” or (4) situations in which “the work performed at the former plant is to be discontinued entirely and not moved to the new location.” Dubuque Packing, 303 N.L.R.B. at 391.\nThis language would appear broad enough to cover key entrepreneurial decisions such as setting the scale (e.g., the quantity of product produced) and scope (e.g., the type of product produced) of the employer’s operations, and determining the basic method of production. Moreover, as to these issues, the Board’s test requires an analysis based on the objective differences between the employer’s old and new operations. It asks whether various types of “basic change,” “change,” “vari[ance],” or “discontinu[anee]” were involved in the relocation. Where such objective differences appear, an entrepreneurial decision is deemed to have been taken, and the employer is permitted to relocate without negotiating.- •\nThe second layer of the Board’s analysis is a subjective one. Cf. Dubuque Packing, 303 N.L.R.B. at 392 (referring to the employer’s “motivation for the relocation decision”). Under this heading, the relevant question is whether “labor costs (direct and/or indirect) were ... a factor” in the employer’s relocation decision. Id. at 391. As illustrated by the Board, this analysis will distinguish relo-cations motivated by labor costs from those motivated by other perceived advantages of the new location. Compare id. at 390 n. 9 (collecting cases in which the relocation was motivated by labor costs) with id. at 390 n. 10 (collecting cases in which the decision was motivated by other factors).\nThe third layer includes a futility provision. As we shall see below, the Board permits an employer to relocate without negotiating where its union either would not or could not offer sufficient concessions to change its decision. See Dubuque Packing, 303 N.L.R.B. at 391. Also, the Board has pledged to consider circumstances such as the need to implement a relocation “expeditiously” in determining whether bargaining over a relocation has reached “a bona fide impasse,” id. at 392; that is, the point at which a party may act unilaterally.\nDubuque objects that the Board’s test is inconsistent with First National Maintenance. Its argument tends toward the proposition that a per se rule exempting relocation decisions from the duty to bargain is implicit in First National Maintenance’s reasoning, if not its holding. Dubuque’s general objection is that the Board’s test is insufficiently protective of management prerogatives, both on its face and because it is not capable of certainty in application. Du-buque pointedly reminds us that First National Maintenance held that employers “must have some degree of certainty beforehand” as to which decisions are and are not subject to a bargaining duty. See First National Maintenance, 452 U.S. at 679, 101 S.Ct. at 2581. More specifically, Dubuque argues that relocation decisions must be exempt from the duty to bargain because they involve the reallocation of capital, observing that allocations of capital are “core managerial decisions.” See Brief for Dubuque at 38.\nWe pause to emphasize that our analysis of the Board’s test is premised on our resolution of an important ambiguity in the Board’s statement of its second affirmative defense. As stated by the Board, that defense requires an employer to establish that “the union could not have offered labor cost concessions that could have changed the employer’s decision to relocate.” Dubuque Packing, 303 N.L.R.B. at 391 (emphasis added). On its face, this language might be read as an impossibility exception — a provision allowing an employer to eschew negotiations only if its union could not possibly have changed the relocation decision no matter how accommodating the union might have been at the bargaining table. This reading is strengthened by the Board’s illustration of the defense, which involves a case in which an employer “would not remain at the present plant because ... the costs for modernization of equipment or environmental controls were greater than [the value of] any labor cost concessions the union could offer.” Id. (emphasis added).\nDespite this evidence, we think this defense was intended to cover situations in which bargaining would be futile, as well as ones in which it would be impossible for the union to persuade the employer to rescind its relocation decision. Immediately after setting forth its test and the above illustration, the Board stated that under the second affirmative defense, “an employer would have a bargaining obligation if the union could and would offer concessions that approximate, meet, or exceed the anticipated costs or benefits that prompted the relocation decision.” Dubuque Packing Co., 303 N.L.R.B. at 391 (emphasis added). Furthermore, in the next succeeding sentence and a footnote appended to it, the Board stated:\nAs an evidentiary matter, an employer might establish that it has no decision bargaining obligation, even without discussing the union’s position on concessions, if the wage and benefit costs of the unit employees were already so low that it was clear on the basis of those figures alone that the employees could not make up the difference. For example, if a relocation of unit work would save an employer a projected $10.5 million in costs for equipment modernization and environmental controls (quite apart from any labor costs), and if the employer’s present labor costs totaled $10 million, then even if the employees were willing to work for free, the union could not offer sufficient labor cost concessions to offset the equipment and environmental savings.\nId. at 391-92 & n. 13 (footnote relocated into text) (emphasis added). We gather from this that showing the impossibility of obtaining sufficient concessions is simply one means of demonstrating the futility of bargaining as an evidentiary matter. And we note that the Board’s aside to the effect that an employer might establish that it has no bargaining obligation, “even without discussing the union’s position on concessions,” implies that an employer might also establish the same proposition through a discussion of “the union’s position on concessions.” As we read it, the Board’s test holds that no duty to bargain exists where bargaining would be futile — either because the union was unable to offer sufficient concessions, or because it was unwilling to do so.\nViewing the Board’s test through the lens of this interpretation, we find it sufficiently protective of an employer’s prerogative to manage its business. Under First National Maintenance, employers may be required to negotiate management decisions where “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” First National Maintenance, 452 U.S. at 679, 101 S.Ct. at 2581. The Board’s test exempts from the duty to negotiate relo-cations that, viewed objectively, are entrepreneurial in nature. It exempts decisions that, viewed subjectively, were motivated by something other than labor costs. And it explicitly excuses employers from attempting to negotiate when doing so would be futile or impossible. What is left are relocations that leave the firm occupying much the same entrepreneurial position as previously, that were taken because of the cost of labor, and that offer a realistic hope for a negotiated settlement. The Board’s determination that bargaining over such decisions promises benefits outweighing the “burden[s] placed on the conduct of [an employer’s] business” was in no way unreasonable.\nSimilarly, the Board was also justified in finding that its test accords with Supreme Court precedent. A relocation satisfying the three layers of the Board’s test will resemble the subcontracting decision held subject to a mandatory bargaining duty in Fibreboard in three distinct ways: Because of the new test’s objective component, such a relocation will not “alter the Company’s basic operation,” Fibreboard, 379 U.S. at 213, 85 S.Ct. at 404, in a way that implicates the employer’s “core of entrepreneurial control,” id. at 223, 85 S.Ct. at 409 (Stewart, J., concurring); because of the new test’s subjective component, “a desire to reduce labor costs” will lie “at the base of the employer’s decision,” see First National Maintenance, 452 U.S. at 680, 101 S.Ct. at 2581 (discussing Fibre-board ); and because of the new test’s exclusion of situations in which bargaining would be futile, there will be some prospect of resolving the relocation dispute “within the collective bargaining framework.” Fibreboard, 379 U.S. at 213-14, 85 S.Ct. at 404. Like its balancing of burdens and benefits, the Board’s finding that its test accords with precedent is fully defensible.\nDubuque counters that relocation decisions should not be treated the same as the subcontract considered in Fibreboard because they will differ from that arrangement on a crucial point — relocations involve the expenditure of capital. Cf. Fibreboard, 379 U.S. at 225, 85 S.Ct. at 410 (Stewart, J., concurring) (“larger entrepreneurial questions [such] as ... how capital shall be invested in fixed assets ” not governed by Fibreboard’s holding) (emphasis added); id. at 213, 85 S.Ct. at 404 (noting that “[n]o capital investment was contemplated” in connection with the subcontract). Furthermore, as Dubuque points out, key portions of the First National Maintenance opinion relied on Justice Stewart’s concurrence in Fibreboard, which was particularly solicitous of management prerogatives over capital expenditure. See, e.g., First National Maintenance, 452 U.S. at 676-77, 101 S.Ct. at 2579-80 (citing Fibreboard, 379 U.S. at 223, 85 S.Ct. at 409 (Stewart, J., concurring)).\nFor several reasons, we remain unconvinced. First, the Board’s test exempts from the duty to bargain relocations in which “the work performed at the new location varies significantly from the work performed at the former plant.” Dubuque Packing, 303 N.L.R.B. at 391. Under this standard, relo-cations involving a sufficiently altered pattern of fixed-capital use (such as a shift from a' labor-intensive production line to a fully automated factory) would appear exempt from the bargaining duty. Cf. Local 777, Democratic Union Org. Comm., Seafarers Int'l Union v. NLRB, 603 F.2d 862, 884 (D.C.Cir.1978) {“Local 777”) (stating that “major shifts in the capital investment or corporate strategy of a company are not mandatory bargaining subjects”). Second, many “terms and conditions of employment” over which employers are plainly bound to bargain involve the expenditure of “capital.” Unless management rights are impermissibly invaded every time a union bargains for a breakroom water-cooler or shop-floor safety equipment, the realm of mandatory bargaining must include at least some decisions involving capital expenditures. Third, while First National Maintenance did reflect the influence of Justice Stewart’s Fibreboard opinion, it did not reiterate that opinion’s specific concerns with management’s prerogative over the expenditure of capital, or otherwise indicate that a line protecting all decisions to expend capital must be drawn. Given this, and the deference owed the Board’s policy choices, see UFCW I, 880 F.2d at 1429, we find that the Board’s test does not imper-missibly fail to protect management’s prerogatives over capital investment. The dicta Dubuque cites are too thin to bear the weight placed on them.\nDubuque’s final contention is that the test is so imprecise that employers are denied the degree of certainty or guidance that it believes the Supreme Court mandated in First National Maintenance. See 452 U.S. at 679, 101 S.Ct. at 2581. While we can agree that First National Maintenance affirms management’s need for “some degree of certainty” so that it “may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice,” id. (emphasis added), this does not require that the Board establish standards devoid of ambiguity at the margins. The test announced in Dubuque Packing provides more than the “some” degree of certainty required by the Supreme Court. It establishes rules on which management may plan with a large degree of confidence; and while the test undoubtedly leaves areas of uncertainty between relocation decisions that are clearly’ within the exclusive prerogatives of management and those that are equally clearly subject to negotiation, these will in time be narrowed through future adjudications. We therefore conclude that the standard adopted by the Board was a reasonable policy choice and that its decision to proceed by adjudication, not rulemaking, was also within its discretion. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 1772, 40 L.Ed.2d 134 (1974) (upholding a decision to proceed by adjudication where the relevant facts “vary widely depending on the company or industry”); see also Bechtel v. FCC, 957 F.2d 873, 881 (D.C.Cir.1992) (affirming that an agency may “choose to make new policy through either rulemaking or adjudication”).\nFinally, we find no fatal uncertainty in the Board’s test as it applies to these facts. As we explain below, the Board’s ruling easily survives Dubuque’s contention that the test’s requirements were not met in regard to its particular relocation. Employers should have no trouble understanding that actions such as Dubuque’s run afoul of the Board’s newly articulated standard.\n2. The Application of the Board’s Test to Dubuque\nDubuque next contends that the Board improperly applied its test to the facts of this case and that under the new standard, properly applied, its actions did not give rise to a bargaining duty. In addressing this contention, we are required by statute to uphold “the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(f).\nDubuque objects, first, to the Board’s finding that its relocation did not constitute a change in the scope and direction of its business. It relies for support on the ALJ’s finding that the Rochelle plant was a “smaller, newer, more modern ..., better laid out” facility and his conclusion “that [Dubuque’s] relocation of the hog kill and cut to Rochelle clearly turned on a fundamental change in the scope, nature, and direction of [its] business of which labor costs were but a single important factor.” ALJ Decision, 287 N.L.R.B. at 538. The Board rejected this conclusion, stating that “[t]here is no evidence that the relocation decision was accompanied by a basic change in the nature of the employer’s operation.” Dubuque Packing, 303 N.L.R.B. at 393.\nThe Board’s position enjoys ample support in the record. In fact, its rejection of the ALJ’s conclusion is specifically supported by the ALJ’s findings. The ALJ stated that Dubuque\nused the Rochelle facility to substantially replace the Dubuque facility. As production in Rochelle increased, there was a corresponding reduction at Dubuque until the hog kill and cut processing departments and related operations there were completely phased out. Larry J. Tange-man, general plant superintendent at Du-buque, became superintendent of the Rochelle facility and about 13 members of Dubuque management also were transferred to Rochelle, as was certain production equipment. The purposes of the Rochelle plant, to slaughter hogs, dress carcasses, and to process pork into hams, bacon, and sausage, were the same as at the Dubuque plant.\nALJ Decision, 287 N.L.R.B. at 529. Indeed, in view of these facts, the ALJ felt it necessary to “find” on the record that “the transfer ... did not constitute subcontracting.” Id. at 529 n. 82. Aside from the ALJ’s conclusory statement, Dubuque points to nothing indicating that the Dubuque and Rochelle operations were objectively dissimilar enough (in scale of operations for example) for the relocation to constitute a “basic change in the nature of the employer’s operation” as that phrase is used in the test. See Dubuque Packing, 303 N.L.R.B. at 391. Viewed as a whole, the record offers substantial support for the Board’s position.\nDubuque’s second contention is that because “the record ... is very clear that the union “would not’ offer labor concessions,” bargaining would have been futile; hence it was not required. Brief for Dubuque at 40. Dubuque cites for support Local 777, where we observed:\nIt would make a mockery of the labor law for this court to hold that the Company had committed an unfair labor practice by refusing to bargain when the Union gave a public demonstration of its intransigent opposition to a management proposal, attempted to thwart the realization of this proposal by political action, and conditioned any bargaining on an illegal recognition of it as collective bargaining representative.\nLocal 777, 603 F.2d at 888 (emphasis in original).\nWhile we agree that our precedent, like the Board’s test, relieves employers from any duty to bargain in the face of a union’s adamantine intransigence, that principle has no bearing here. As counsel for the UFCW pointed out at oral argument, the UFCW “could, would, and did” accept concessions— in 1978, in August 1980, and again in October 1981 — all in a vain attempt to keep the Du-buque facility open. Indeed, the vote that led to Dubuque’s “irrevocable” decision to relocate was not a vote to categorically refuse Dubuque’s overtures, but a vote to insist on financial disclosure as a prelude to bargaining. The Board’s finding that good-faith bargaining between Dubuque and the UFCW might not have been futile was substantially supported by the record.\n3. Retroactivity\nFinally, Dubuque argues that the Board erred by “retroactively” employing its new test in this case. Again, we disagree.\nOur formulation of the standard for evaluating challenges to the retroactive application of a ruling from an agency adjudication has varied. Compare Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C.Cir.1972) (applying a five-factor test) with Consolidated Freightways v. NLRB, 892 F.2d 1052, 1058 (D.C.Cir.1989) (recognizing “a general principle” that retroactive application of rules is permitted “absent any manifest injustice”) (internal quotation marks omitted) with District Lodge 64, Int’l Ass’n of Machinists v. NLRB, 949 F.2d 441, 447 (D.C.Cir.1991) (applying a three-factor test based on Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)). What has not varied is our consistent willingness to approve the retroactive application of rulings that do not represent an “abrupt break with well-settled policy” but merely “attempt to fill a void in an unsettled area of the law.” Local 900, Int’l Union of Electrical Workers v. NLRB, 727 F.2d 1184, 1195 (D.C.Cir.1984) (internal quotation marks and brackets omitted); see also, e.g., District Lodge 61, 949 F.2d at 447-48 (permitting retroactivity where “Board precedent was neither clear nor consistent” at the relevant time); Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d 1074, 1083 (D.C.Cir.1987) (en banc) (permitting retroactive application of a new rule where the prior rule did not “rise to the level of a well established practice”) (internal quotation marks omitted). Indeed, an agency’s authority to proceed by adjudication, as opposed to rulemaking, see Bell Aerospace Co., 416 U.S. at 294, 94 S.Ct. at 1772, implies a power to fill interstices in the law by proceeding case by case. Cf. id. (noting that where the relevant facts “vary widely depending on the company or industry,” the Board “has reason to proceed with caution, developing its standards in a case-by-case manner with attention to the specific circumstances”).\nAlthough our multi-factor tests have been stated in terms of a balancing of co-equal factors, each includes one that, in practice, has been given primary importance; namely, the critical question of whether the challenged decision “creates a new rule, either by overruling past precedents relied upon by the parties or because it was an issue of first impression.” See District Lodge 64, 949 F.2d at 447 (setting forth the first prong of its three-factor test and noting that this factor “parallel[sj” the first two of Retail Union’s five factors). Although we have retained the authority to disallow on equitable grounds the retroactive application of rules that do not represent a reversal of precedent or constitute an issue of first impression, to our knowledge we have never exercised that authority. As a practical matter, where an agency ruling seeks only to clarify the contours of established doctrine, we will almost per force allow its retroactive application.\nIn this case, the Board’s test merely clarifies the line between relocation decisions that, because they are analogous to subcontracting arrangements, are subject to a duty to bargain and those that, because they are analogous to partial closings, are not. At the time Dubuque announced its “irrevocable” decision to relocate, the question of whether relocation decisions must be negotiated was an old one and the existence of this legal “interstice” was apparent. By that time, July 1, 1981, both Fibreboard and First National Maintenance had been decided. The Court’s opinion in the latter had called into question the Board’s former practice of “consistently holding that relocation of work from one plant to another was a mandatory subject of bargaining,” UFCW I, 880 F.2d at 1429. See id. at 1431. First National Maintenance had also expressly reserved judgment on “management decisions [] such as plant relocations.” 452 U.S. at 686 n. 22, 101 S.Ct. at 2584 n. 22.\nMoreover, the gap in the law that had already been opened when Dubuque acted was not closed until the announcement of the test we approve today. In the intervening years, a Board majority never embraced a standard under which Dubuque’s failure to bargain would have been lawful. Thus, the Board’s test does not “create! ] a new rule, either by overruling past precedents relied upon by the parties or because it was an issue of first impression,” District Lodge 64, 949 F.2d at 447; rather it “fill[s] a void” in the law. Local 900, 727 F.2d at 1195. We have observed before that\n[cjircumstances such as these are the stuff that adjudications are made of: the law is unclear; opposing parties mount reasonable arguments on both sides; the adjudicator says what the law is. In such circumstances, the general rule [is] that judicial or administrative precedents apply not only prospectively but to cases pending at the time they are decided.\nAtchison, Topeka & Santa Fe Ry. Co. v. ICC, 851 F.2d 1432, 1437 (D.C.Cir.1988) (brackets and quotation marks omitted). Because we find on these facts no special inequity in allowing this interstitial ruling to apply retroactively, we affirm the Board’s application of its new test to the present ease.\nIn closing, we recognize the possibility that our precedents regarding the retroactive application of agency adjudications may require revision in light of the Supreme Court’s recent decision in Harper v. Virginia Dep’t of Taxation, — U.S. -, -, 113 S.Ct. 2510, 2517-19, 125 L.Ed.2d 74 (1993), but note that there is no need to revisit them here. Harper abolished exceptions to the retroactive application of judicial rulings in civil cases and rejected the three-factor ret-roactivity test of Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), that we have deemed “substantively indistinguishable” from our traditional standards for testing administrative retroactivity, District Lodge 64 v. NLRB, 949 F.2d at 447. Harper, — U.S. at -, 113 S.Ct. at 2517-19. We need not wrestle with this question, however, because if applicable to agency adjudications, Harper would mandate the retroactive application of the Board’s test that we find to be consistent with our existing circuit precedent.\nB. The UFCW Petition\nThe UFCW petitions for review of the Board’s refusal to consider the union’s complaints of unfair labor practices in connection with Dubuque’s proposed relocation of its pork processing operation. Although the Board acknowledged that the union had presented claims concerning both proposed relocation decisions in UFCW I, it “deeline[d] to pass” on the pork processing claims “on the ground that [they] go beyond the scope of the issues remanded to us by the court of appeals.” Dubuque Packing, 303 N.L.R.B. at 392 n. 19. The Board supported this ruling by noting that (1) our discussion in the earlier opinion focused on the consummated relocation of the hog kill and cut operation, not the proposed relocation of the pork processing operation; (2) our review of issues to be determined on remand did not include the pork processing issues; and (3) any decision on these matters would raise “distinct issues” including “difficult remedial issue[s]” concerning the remedy for bargaining in bad faith over a proposed relocation that had been averted through a concessionary agreement. Id. The Board supposed that if we had wished it to address such issues we would have said so directly.\nOn reviewing our earlier decision, we acknowledge that our ruling was not as explicit as it should have been. The Board concedes, however, that the union presented all of its claims in the earlier appeal and that we did not dispose of the pork processing relocation controversy at that time. It should have been evident, then, that when we remanded “this case for further proceedings consistent with this opinion,” TJFCW I, 880 F.2d at 1439, it was our intention to remand all of it.\nAccordingly, we grant the UFCW’s petition for review; we set aside that part of the Board’s order that declines to consider the UFCW’s claims of unfair labor practices in connection with Dubuque’s proposed pork processing relocation; and we remand that issue to the Board for a determination of its merits. Out of an excess of caution, we point out that this remand covers all properly preserved claims that have yet to be disposed of on their merits (our references to “900 pork processing” jobs have been intended as an identifier, not as a finding of fact). Also, as our earlier decision set aside the entirety of the Board’s first order, the Board should adjudicate these claims as they first appeared on its docket on appeal from the ALJ’s 1985 decision.\nIII. Conclusion\nFor the foregoing reasons, we deny Du-buque’s petition for review, enforce the Board’s remedial order against Dubuque, grant the UFCW’s petition for review, and remand to the Board the issue of Dubuque’s duty to bargain over its proposed pork processing relocation.\nSo ordered.\n[END_CASE]", "role": "user" } ]
10,507,517	TMG II, et al., Appellants, v. UNITED STATES of America, Appellee	TMG II v. United States	1993-08-13	No. 91-5361	United States Court of Appeals for the District of Columbia Circuit	{"judges": ["Before: MIKVA, Chief Judge, WALD and BUCKLEY, Circuit Judges."], "parties": ["TMG II, et al., Appellants, v. UNITED STATES of America, Appellee."], "opinions": [{"text": "Opinion for the Court filed by Chief Judge MIKVA.\nMIKVA, Chief Judge:\nThis appeal concerns a dispute between the IRS and two partnerships over assets that the IRS seized from Mr. Edward Mar-kowitz, the partnerships’ errant former general partner. The partnerships claim that the seized assets are rightfully partnership property, rather than personal property of Markowitz, and are therefore not subject to seizure for purposes of satisfying Markow-itz’s personal federal tax liabilities. They argue in the alternative that their claims take priority over those of the government under a theory of constructive trust.\nThe district court properly held that the partnerships did not hold equitable title to the contested assets at the time of the IRS seizure. The district court also correctly concluded that there was no basis for waiving the requirement that the partnerships “trace” contested assets back to assets that were misappropriated from the partnership in order to establish a constructive trust. Finally, the district court was also correct to find that the partnerships failed to establish that there was a triable issue of fact as to whether assets seized from Markowitz could be traced back to the “TMG Associates Bonus Account.”\nHowever, the district court erred in concluding that the partnerships did not present a triable issue as to whether the funds that Markowitz used to purchase a house could be traced to one of the partnerships’ Cayman Islands bank accounts. The court abused its discretion by refusing to allow the partnerships to submit critical rebuttal evidence before ruling on the cross-motions for summary judgment. Thus, we remand to the district court for further proceedings consistent with this opinion.\nI. BACKGROUND\nThe parties have been before this Court twice before in matters closely related to the decision on appeal. See Weil v. Markowitz, 898 F.2d 198 (D.C.Cir.) (“Weil I ”), cert. denied, 498 U.S. 821, 111 S.Ct. 68, 112 L.Ed.2d 42 (1990); Weil v. Markowitz, 829 F.2d, 166 (D.C.Cir.1987) (“Weil II ”). The background of this dispute is discussed more fully in these earlier decisions, and in the district court opinion under review, TMG II v. United States, 778 F.Supp. 37 (D.D.C.1991) (“TMG”). We provide here a shorter version of the relevant facts to provide the necessary context for our decision.\nTMG II and TMG Associates (collectively “TMG” or “the partnerships”) are New York limited partnerships purportedly formed as broker-dealers and market-makers in the commodities and metal markets, but actually in the business of providing fraudulent tax deductions through sham transactions. Mr. Edward Markowitz was the managing general partner of TMG II, and the sole shareholder of Monetary Group, Ltd. (“MGL”), which served as TMG Associates’ general partner.\nMarkowitz and MGL resigned their general partner positions on November 15, 1983, without making a proper accounting and restoration of partnership property. Shortly thereafter, TMG sued Markowitz, MGL and two additional Markowitz corporations, and Ms. Debra Strahan (Markowitz’s sister) for an equity accounting, monetary repayment, injunctive relief, and money damages based on allegations that Markowitz and Strahan had diverted partnership property and business to themselves. See Weil v. Markowitz, No. 83-3685 (D.D.C. December 12, 1983) (TMG II’s complaint); TMG Associates Custodial Committee v. Monetary Group, Ltd, No. 83-3685 (D.D.C. May 31, 1984) (TMG Associates’ complaint). Based on an investigation and report by a court-appointed receiver, the district court granted an injunction freezing the defendants’ assets. Weil v. Markowitz, No. 83-3685 (D.D.C. February 23, 1984).\nMeanwhile, the IRS was conducting a parallel criminal investigation in which it received substantial assistance from the partnerships. The government eventually obtained stays of the TMG civil suits, successfully arguing that further proceedings would endanger its criminal investigation. Weil v. Markowitz, No. 83-3685 (D.D.C. June 6, 1984); TMG Associates Custodial Committee v. Monetary Group, Ltd, No. 83-3685 (D.D.C. August 1, 1984). This court upheld the stays in Weil I, 829 F.2d 166.\nThe stays delayed the civil suits long enough for the government to file federal tax hens against Mr. Markowitz, and collect assets in satisfaction of the liens, before TMG was able to obtain its judgments. The stays expired by their own terms on September 14, 1984. See Weil II, 829 F.2d at 169. On January 14, 1985, the IRS made assessments against Markowitz and filed a notice of federal tax liens. Some seven months later, on August 30, 1985, the district court entered a judgement in the TMG suits. The partnerships were awarded a total of approximately $900,000, which the court deemed to represent a full equity accounting for partnership property entrusted to Markowitz. Weil v. Markowitz, No. 83-3685 (D.D.C. August 30, 1985). The district court subsequently rejected TMG’s contention that the judgment should be entered nunc pro tunc to October 26,1984, the scheduled concluding date of the trial before the government obtained the stay of proceedings. See Weil I, 898 F.2d at 199-200. This court affirmed that decision. Id.\nTMG commenced the present action to obtain a determination that its interest in fourteen properties owned at one time by Markowitz primed the interest that the United States had obtained via its tax lien. On competing motions for summary judgment, the district court ruled in favor of the United States and dismissed the action. TMG II v. United States, 778 F.Supp. 37 (D.D.C.1991) (“TMG ”).\nII. ANALYSIS\nThe district court’s thorough and well-reasoned opinion properly resolved virtually every issue. The district court appropriately rejected the partnerships’ claim that under District of Columbia law, an errant fiduciary is deemed to own no property until he makes an accounting and reimbursement to the partnership. Thus, the court was correct in holding that the partnerships did not hold equitable title to the contested assets at the time of the IRS seizure. The district court was also correct to decline TMG’s invitation to waive the tracing requirement necessary to establish a constructive trust. Finally, the district court properly concluded that there was no triable issue of fact as to whether assets seized from Markowitz could be traced back to the “TMG Associates Bonus Account.”\nThe district court did, however, err in one respect. The court abused its discretion by refusing to allow the partnerships to submit critical rebuttal evidence before ruling that the partnerships did not present a triable issue as to whether Markowitz purchased a house using funds that could be traced to one of the partnerships’ Cayman Islands bank accounts. Thus, we remand to the district court for further proceedings consistent with this opinion.\nA. The “Moyers” Issue\nThe partnerships maintain that Mr. Markowitz had no valid property interest in any of his personal property to which the IRS levy could attach. Their position is based on the premise that under District of Columbia law, “an errant general partner, like Mr. Markowitz, is deemed to own no property of his own until all property due and owing the partnership has been accounted for and restored.” TMG, 778 F.Supp. at 45 (internal quotations and citation omitted). The district court properly rejected TMG’s argument.\nThe parties agree that a federal tax lien can only attach to “property ... belonging to [the taxpayer].” Id. at 44 (quoting 26 U.S.C. § 6321). “Thus, if the [pjartnerships can show that at the time the [government filed its liens they, and not Markowitz, were the true owners of the fourteen assets, they can establish their entitlement to those assets.” Id. However, TMG’s contention that Markowitz did not own the seized property at the time of the IRS seizure is insupportable.\nTMG relies on Moyers v. Cummings, 17 App.D.C. 269 (1900), aff'd sub nom. Consaul v. Cummings, 222 U.S. 262, 32 S.Ct. 83, 56 L.Ed. 192 (1911), which involved a dispute between Moyers and the estate of his former law partner, Edmonds. The administrator of Edmonds’s estate alleged that Moyers had collected about $26,000 in fees due to the partnership and deposited them in a personal account, commingling the partnership fees with his own funds. Id. at 270-71. The lower court appointed a receiver and eventually ordered Moyers to disgorge some $9,000 determined to be due to the estate of his former law partner. Id. at 274-75.\nMoyers did not contest that he had deposited the fees in question into his personal account, nor that he owed money to the partnership (although he contested the amount). Rather, he challenged the trial court’s authority to order that funds be paid out of his bank account. He argued that the funds in the account at the time of the court order were his own, and that his liability to the estate was as a general debtor rather than a trustee. Thus, Moyers contended, the estate could only satisfy its judgment by filing a lien against him, not by demanding a specific asset such as his personal bank account. Id. at 275-77.\nThe D.C. Court of Appeals rejected this argument. Because the partnership funds had been placed into Moyers’s personal account, and it would be impracticable to determine that those precise funds (as opposed to the commingled personal funds) were still in the account, the Moyers court held that “in mingling the [partnership] fund with his own and drawing thereon on his individual account, [Moyers] will be presumed to have first drawn and used his own money.” Id. at 279. In other words, any balance still in the account at the time of the order (up to $9,000) would be presumed to be the $9,000 owed to the partnership and .held in constructive trust by Moyers. The court held that Moyers had failed to present evidence to rebut the presumption that he had depleted his personal assets from the account before reaching partnership funds. Id. at 280-81.\nThe district court fittingly rejected TMG’s broad interpretation of Moyers. As the district court concluded, Moyers stands only for the narrow proposition that once partnership funds are traced into a particular personal account, subsequent withdrawals from the commingled account are rebuttably presumed to be of the personal rather .than the partnership funds. See TMG, 778 F.Supp. at 45-46. TMG correctly maintains before this Court, and the district court properly held, that “the identity of the partnership fund is not lost by the act of commingling.” Moyers, 17 App.D.C. at 279. But the assertion that all of the errant partner’s property is therefore held in trust for the partnership simply does not follow from this principle.\nTMG attempts to assail the district court’s conclusion by subtly misconstruing passages in the opinion. TMG first argues that the district court misunderstood references to “the fund” in Moyers to refer to the personal bank account rather than the partnership money deposited into that account. See TMG, 778 F.Supp. at 45-46; Moyers, 17 App.D.C. at 279. The district court made no such error. When the district court stated that Moyers refers “only to ‘the fund,’ not to all of Moyers’ property,” TMG, 778 F.Supp. at 46, the court was merely pointing out that only the account to which the partnership fund had been traced was at issue, rather than all of Moyers assets. As we have already stated, this is exactly correct.\nTMG’s remaining Moyers arguments are also fruitless. First, contrary to TMG’s claim, Moyers did not remove the tracing burden from the partnership. Rather, because the parties agreed that partnership funds had been placed into a particular personal account, the court held only that the funds were presumed to remain in the account despite commingling and some dissipation. Moyers, 17 App.D.C. at 279. Again, the district court got it exactly right. Second, the temporary restraining order in the lower court, freezing all of Moyers’s assets, is not enough to establish that Moyers stands for a broad principle which the language of the opinion does not itself support. The lower court did freeze all of Moyers’s assets pending satisfaction of the judgment. But this aspect of the remedy was arguably unwarranted in light of the lower court’s holding, probably prophylactic in nature, and certainly never reviewed by the Moyers court. TMG cannot convincingly argue that the holding in Moyers should be broadened to justify or explain the lower court’s remedy.\nThe parties also argue over whether New York or D.C. law should be used to determine the nature of Markowitz’s property interest. However, as the district court properly held, the states’ laws are not in conflict and the choice-of-law question is therefore irrelevant. See TMG, 778 F.Supp. at 46.\nB. Waiver of the Tracing Requirement\nA breach of fiduciary duty often gives rise to the creation of an equitable constructive trust, whereby an errant fiduciary is deemed to hold in trust property misappropriated from the partnership. In order to obtain a constructive trust, a plaintiff must generally connect specific property held by the fiduciary with the property misappropriated from the partnership. Thus, only property traced from the fiduciary breach to the fiduciary’s current holdings will be deemed to be held in trust for the partnership. See TMG, 778 F.Supp. at 47 (discussing legal foundations of the constructive trust and relevant precedent).\nThe district court concluded that although a constructive trust may have been created as to the partnership property that Markow-itz misappropriated, the constructive trust claim must fail in this case because the partnerships failed to trace any of the assets seized by the IRS to the stolen partnership property. Id. at 51-54. The district court acknowledged that “no recorded District of Columbia case turns upon the requirement of tracing,” but held that “there is no reason to think that the D.C. courts would depart from these general and well-accepted principles.” Id. at 48. We find the district court’s discussion of existing D.C. law — and of more clearly dispositive Maryland law, which is “the source of the District’s common law and an especially persuasive authority when the District’s common law is silent,” Napoleon v. Heard, 455 A.2d 901, 903 (D.C.1983)—to be thoroughly convincing. See TMG, 778 F.Supp. at 48-49.\nTMG makes three arguments in response to the district court’s conclusion that tracing is generally required in the District of Columbia to establish a constructive trust. First, TMG argues that Moyers eliminated the tracing requirement. Second, TMG maintains that the policy considerations requiring tracing do not apply in this case. Finally, TMG contends that the preliminary injunction freezing Markowitz’s assets obviates the need for traditional tracing analysis. The district court properly rejected each of these arguments.\n1. Moyers\nAs discussed supra pp. 39-40, Moyers did impose a tracing requirement on the plaintiff. It is TMG, and not the district court,- that misreads Moyers. The parties in Moyers agreed that the partnership funds were placed in a particular personal account, and the court placed on Moyers the burden to demonstrate that those funds withdrawn from the commingled account were partnership funds. In the absence of such proof, the court presumed that personal funds were withdrawn, and that the partnership funds remained in the commingled account.\n2. Policy Considerations\nTMG argues that the tracing requirement should not be imposed on several alternative policy grounds. Specifically, the partnerships maintain that tracing is unnecessary: (1) when a constructive trust beneficiary is competing with a tax lien; (2) against victims of fiduciary misconduct as opposed to general creditors; and (3) in light of the remarkable ease with which assets can be repeatedly commingled by an errant fiduciary. We address each point in turn.\nTMG first argues that tracing should be dispensed with in the case of a competing tax lien because “the tax collector not only steps into the taxpayer’s shoes but must go barefoot if the shoes wear out.” United States v. Rodgers, 461 U.S. 677, 691 n. 16, 103 S.Ct. 2132, 2141 n. 16, 76 L.Ed.2d 236 (1983) (quoting 4 B. Bittker, Federal Taxation of Income, Estates, and Gifts ¶ 111.5.4 (1981)). The district court did not quarrel with this concept; in fact, it is a fundamental premise of the opinion. See TMG, 778 F.Supp. at 50 (“Bittker’s metaphor describes the doctrine, mentioned above, that state law determines whether a taxpayer has a sufficient property interest for federal tax liens to attach.”) If TMG could establish a property right to seized assets through tracing, their claim would undeniably defeat the IRS lien.\nHowever, as the district court pointed out, the Rodgers principle applies only in determining whether there is a property interest to which the tax lien can attach. The principle does not address the priority of the tax lien vis-a-vis other interests. Likewise, it does not support the proposition that tracing should be dispensed with in tax lien cases. The partnership must stand alongside all other creditors if it cannot trace its assets, and have its priority determined by the same “first in time, first in right” rule that applies to all creditors. See TMG, 778 F.Supp. at 49-50.\nThe partnerships also argue that United States v. Baldwin, 575 F.2d 1097 (4th Cir.1978), stands for the proposition that a victim of fiduciary misconduct such as TMG should be given priority over a general creditor such as the IRS. But Baldwin is completely inap-posite. The Baldwin court held, via certification to the Maryland Court of Appeals, that assets of an express trust cannot be taken to satisfy the settlor’s personal tax liabilities where the settlor has irrevocably transferred the seized property to the trust. The case involves neither a constructive trust, fiduciary misconduct, nor the tracing requirement.\nFinally, TMG argues in connection with its other points that the tracing requirement is obsolete in light of the remarkable ease with which assets can be repeatedly commingled in the modern financial world. This argument is frivolous. The same automated financial system which allows assets to be repeatedly commingled at blinding speed also enables transactions to be more easily traced through quicker access to the records of the transactions. The burgeoning information age does not present a basis for jettisoning the long-standing tracing requirement.\n3. The Preliminary Injunction\nTMG relies on United States v. Fontana, 528 F.Supp. 137 (S.D.N.Y.1981), and SEC v. Paige, 1985 WL 2335 (D.D.C.1985), aff'd without opinion, 810 F.2d 307 (D.C.Cir.1987), for the proposition that the preliminary injunction freezing Markowitz’s assets in February of 1984 obviated the need to engage in traditional tracing analysis. TMG argues that these cases support the claim that pre-judgment remedies such as attachment are sufficient to bring all attached property into the constructive trust without the need to trace. TMG argues that the district court erred by concluding that neither Fontana nor Paige disposed of the tracing requirement. See TMG, 778 F.Supp. at 50-51.\nThe district court correctly concluded that neither case supports TMG’s position because neither case disposed of the tracing requirement. See TMG, 778 F.Supp. at 50-51. The Fontana court remanded, and did not decide, the question of whether a constructive trust had been formed in that case. See Fontana, 528 F.Supp. at 146. For the purpose of resolving the' subsidiary issues before it, the court accepted arguendo the plaintiffs claim “that the fund in question is traceable to wrongful acts by Fontana in breach of his fiduciary obligations.” Fonta-na, 528 F.Supp. at 139. The Fontana court in no way rejected the tracing requirement.\nIn Paige, the misappropriated funds were explicitly traced from the errant fiduciary’s personal bank account to an escrow account later formed, pursuant to a permanent injunction, to satisfy claims against the fiduciary. See Paige, 1985 WL 2335 at *2 (“The escrow assets were purchased by Paige with funds from the same general personal cheeking accounts into which he had deposited the [embezzled funds].”). The court therefore did not allow a federal tax lien to defeat the claimants’ rights to the funds. The case is on all fours with the proper interpretation of Moyers, holding that commingled funds are deemed to be held in constructive trust notwithstanding the commingling and subsequent dissipation of the combined fund. In fact, Paige cited Florida law for the proposition that “when a trustee wrongfully commingles trust funds with his own, equity will impress the trust on the entire mass.... ” Id. Paige reenforces the district court’s reading of Moyers, and imposes the same tracing requirement that the district court imposed on TMG in the instant case.\nC. Tracing of the Disputed Assets\nTMG’s final (and only viable) argument is that some of the disputed assets can iiideed be traced to the property Markowitz misappropriated from the partnerships, or at least that the tracing issue is in dispute and therefore not amenable to summary judgment.\n1. The “TMG Associates Bonus Account”\nTMG claims that it can trace $424,-846.94 in assets seized or recovered from Markowitz to the “TMG Associates Bonus Account” opened at a local Washington bank for TMG Associates. The parties agree that the account was opened with an initial deposit of $130,000 in partnership money, and that Hillcrest commissions totalling $597,500 were later deposited. TMG, 778 F.Supp. at 51. (Hillcrest is a securities firm that initially “traded” with the partnerships, and later with Markowitz-owned entities. The transactions were all bogus, with Hillcrest paying “commissions” for fraudulent documentation used to substantiate the illegitimate tax losses. Id. at 40.)\nThe district court found that the initial $130,000 deposit was either spent on behalf of, or returned to, TMG Associates, and was therefore never misappropriated by Markow-itz. Id. at 51. The court declined to definitively decide who owned the Hillcrest commissions, but it appears to have assumed that the commissions in question were “earned” by Markowitz-owned entities rather than the partnerships. See id. at 40, 51-52. Rather, finding that the commissions were undoubtedly the fruit of sham transactions, the court held that equity would not enforce TMG’s constructive trust claim to the property because they had unclean hands. Id. at 52.\nTMG does not challenge the court’s holding with respect to the Hillcrest commissions. The partnerships do contend, however, that there is a genuine issue of material fact as to what happened to the $130,000 initial deposit after it was put into the Bonus Account. The district court credited declarations by Mar-kowitz and an IRS agent (supported by check stubs and receipt journals) that $53,-872.90 was used to pay bonuses to five TMG Associates employees, and that the remaining $76,127.10 was returned to TMG Associates in the form of two checks. Id. at 51. TMG argues that Markowitz’s declaration was a recent fabrication precipitated by his desire to cooperate with the' government, pointing out that Markowitz was unable to recall anything about the Bonus Account at his deposition two years earlier-in the civil suit between the partnerships and Markow-itz. TMG also uses the Markowitz deposition to convincingly rebut the government argument that Markowitz could not remember the details of the Bonus Account because he did not have certain records available at the deposition.\nNotwithstanding the fact that Markowitz changed his tune between the TMG-Mar-kowitz deposition and his declaration to the IRS in this proceeding, the district court did not, as TMG asserts, simply accept the Mar-kowitz declaration at face value. Markow-itz’s claims were incontrovertibly- supported by the check stubs and cash receipt journal. His claim in the earlier, deposition that he could not remember anything about the Bonus Account, even in the face of cancelled checks and bank statements from the account, did not create a triable issue of.fact. In the first place, the earlier statement that he could not remember is not inconsistent with his later declaration. Markowitz’s deposition statement that he could not remember anything about the account does not cast any doubt on the reliability of the check stubs and cash receipt journal. Furthermore, TMG did not contest the authenticity or accuracy of the documentation, or assert that the bonuses were improper.\nThus, the government is correct that TMG failed to meet the burden of tracing funds from Markowitz back to the Bonus Account. The uncontradieted evidence demonstrates that the $130,000 was spent on behalf of, or returned to, TMG Associates. TMG’s claim that the Markowitz declaration should not have been admitted at the summary judgment stage because it was inconsistent with his earlier deposition, see Adelman-Tremblay v. Jewel Companies, 859 F.2d 517 (7th Cir.1988), is both incorrect and beside the point. As we have already stated, the two statements are not inconsistent. And in any case, even in the absence of the Markowitz declaration, the government presented un-eontested evidence that the $130,000 was returned to TMG. The government need not rely on any testimony from Markowitz to establish this fact.\n2. The Cayman Islands Account and 2323 Porter Street\nFinally, we reach the single issue that the district court did not satisfactorily resolve. The partnerships contend that they are the true owners of $552,846.23 in net proceeds realized from the sale of Markowitz’s house at 2323 Porter Street. They claim that the funds used to purchase the house came from a TMG bank account in the Cayman Islands. We hold that the district court -abused its discretion in refusing the submission of critical rebuttal evidence, and therefore reverse the district court’s grant of summary judgment and remand for further proceedings.\nTMG first claimed that 2323 Porter was purchased with partnership funds in their summary judgment reply brief, and the district court decided to allow supplemental discovery and briefing on the issue. In their supplemental brief, TMG asserted that Mar-kowitz maintained a TMG account at the Cayman Islands branch of a Swiss Bank, that he transferred money from the Cayman Islands account to a personal account in the District of Columbia, and that he used the transferred funds to purchase his house. The government offered evidence in their responsive brief that there were in fact two Cayman Islands accounts with the same account number, and that the funds used to purchase the house came from the second account — which was opened with funds from another Markowitz-owned company that had no connection with TMG. TMG, 778 F.Supp. at 52-53.\nThe partnerships offered evidence in their supplemental reply brief that “the two TMG Associates accounts in the Cayman Islands were combined before the money used to purchase the 2323 Porter Street residence was transferred.” Id. at 53. The district court did not suggest that this evidence was insufficient to create a disputed issue of fact. Rather, the court refused to accept the proffer on the following grounds:\nThe Government has not, however, had a chance to respond to this new evidence, nor indeed does it appear that the plaintiffs provided the Government with notice of this evidence during the additional discovery period.... TMG’s proffer of this evidence is so belated that it would be unfair to allow its submission.\nTMG, 778 F.Supp. at 53.\nThe partnerships argue that the court erred by refusing to accept the new evidence. First, they point out the existence of two identically numbered accounts was first brought out in a declaration filed with the government’s supplemental opposition brief. Thus, they argue, the evidence that the two accounts had been commingled was perfectly proper rebuttal. Second, TMG argues that the government could not have been unfairly surprised because it had in its possession, at least since 1985, the documents revealing that there were two accounts, and that they had been commingled. Third, TMG states that the submission was not untimely because Fed.R.Civ.P. 56(b) allows the filing of evidentiary affidavits until the day of the summary judgment hearing. We agree with each of these contentions.\nThe government’s responses in defense of the district court ruling are not convincing. The government begins by arguing that the district court did not abuse its discretion in holding the proffer untimely because the government did not have time to obtain evidence before the close of discovery that would demonstrate that the second Cayman Islands account contained no TMG funds. However, TMG is correct that since the government first raised the existence of two accounts, it would be unfair to TMG to accept that evidence without allowing TMG to respond. The district court was obligated to accept TMG’s proper rebuttal once it accepted the government’s new evidence. The district court abused its discretion in refusing to do so.\nThe government argues in the alternative that the documents submitted in support of the supplemental reply brief could not be considered because they were not accompanied by an affidavit or sworn to as required by Fed.R.Civ.P. 56(e). The government contends that although the district court did not rely on this reasoning, this court can uphold the district court on any available grounds. We decline to affirm the district court’s decision on these grounds. The record below does not suggest that there was a dispute over the authenticity of the relevant documents, and TMG asserts that many other documents submitted for consideration by both parties, and accepted by the district court, were not accompanied by proper foundational affidavits.\nConclusion\nWe are not in a position to assess the merits of TMG’s claim to the proceeds from the sale of the Porter Street residence. The record does not disclose whether the two Cayman Islands accounts were in fact combined, as TMG allegés, nor whether any commingled funds were subsequently segregated when Markowitz transferred money from the Cayman Islands to his personal account in Washington. Thus, we remand to the district court to allow full discovery on the issue, and to determine whether TMG can trace the proceeds from the sale of 2323 Porter Street back to partnership funds.\nSo ordered.", "type": "majority", "author": "MIKVA, Chief Judge:"}], "attorneys": ["Alan I. Mendelsohn, Washington, DC, argued the cause for appellants. With him on the briefs was Marvin L. Szymkowicz, Washington, DC.", "Joan I. Oppenheimer, Atty., Dept, of Justice, Washington, DC, argued the cause for appellee. With her on the briefs were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and Gary R. Allen, Atty., Dept, of Justice, Washington, DC."], "corrections": "", "head_matter": "TMG II, et al., Appellants, v. UNITED STATES of America, Appellee.\nNo. 91-5361.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued March 4, 1993.\nDecided Aug. 13, 1993.\nAlan I. Mendelsohn, Washington, DC, argued the cause for appellants. With him on the briefs was Marvin L. Szymkowicz, Washington, DC.\nJoan I. Oppenheimer, Atty., Dept, of Justice, Washington, DC, argued the cause for appellee. With her on the briefs were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and Gary R. Allen, Atty., Dept, of Justice, Washington, DC.\nBefore: MIKVA, Chief Judge, WALD and BUCKLEY, Circuit Judges."}	MIKVA	WALD	BUCKLEY	1	1	1	0	0	0	1 F.3d 36	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: TMG II, et al., Appellants, v. UNITED STATES of America, Appellee\nCourt: United States Court of Appeals for the District of Columbia Circuit\nDate decided: 1993-08-13\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOpinion for the Court filed by Chief Judge MIKVA.\nMIKVA, Chief Judge:\nThis appeal concerns a dispute between the IRS and two partnerships over assets that the IRS seized from Mr. Edward Mar-kowitz, the partnerships’ errant former general partner. The partnerships claim that the seized assets are rightfully partnership property, rather than personal property of Markowitz, and are therefore not subject to seizure for purposes of satisfying Markow-itz’s personal federal tax liabilities. They argue in the alternative that their claims take priority over those of the government under a theory of constructive trust.\nThe district court properly held that the partnerships did not hold equitable title to the contested assets at the time of the IRS seizure. The district court also correctly concluded that there was no basis for waiving the requirement that the partnerships “trace” contested assets back to assets that were misappropriated from the partnership in order to establish a constructive trust. Finally, the district court was also correct to find that the partnerships failed to establish that there was a triable issue of fact as to whether assets seized from Markowitz could be traced back to the “TMG Associates Bonus Account.”\nHowever, the district court erred in concluding that the partnerships did not present a triable issue as to whether the funds that Markowitz used to purchase a house could be traced to one of the partnerships’ Cayman Islands bank accounts. The court abused its discretion by refusing to allow the partnerships to submit critical rebuttal evidence before ruling on the cross-motions for summary judgment. Thus, we remand to the district court for further proceedings consistent with this opinion.\nI. BACKGROUND\nThe parties have been before this Court twice before in matters closely related to the decision on appeal. See Weil v. Markowitz, 898 F.2d 198 (D.C.Cir.) (“Weil I ”), cert. denied, 498 U.S. 821, 111 S.Ct. 68, 112 L.Ed.2d 42 (1990); Weil v. Markowitz, 829 F.2d, 166 (D.C.Cir.1987) (“Weil II ”). The background of this dispute is discussed more fully in these earlier decisions, and in the district court opinion under review, TMG II v. United States, 778 F.Supp. 37 (D.D.C.1991) (“TMG”). We provide here a shorter version of the relevant facts to provide the necessary context for our decision.\nTMG II and TMG Associates (collectively “TMG” or “the partnerships”) are New York limited partnerships purportedly formed as broker-dealers and market-makers in the commodities and metal markets, but actually in the business of providing fraudulent tax deductions through sham transactions. Mr. Edward Markowitz was the managing general partner of TMG II, and the sole shareholder of Monetary Group, Ltd. (“MGL”), which served as TMG Associates’ general partner.\nMarkowitz and MGL resigned their general partner positions on November 15, 1983, without making a proper accounting and restoration of partnership property. Shortly thereafter, TMG sued Markowitz, MGL and two additional Markowitz corporations, and Ms. Debra Strahan (Markowitz’s sister) for an equity accounting, monetary repayment, injunctive relief, and money damages based on allegations that Markowitz and Strahan had diverted partnership property and business to themselves. See Weil v. Markowitz, No. 83-3685 (D.D.C. December 12, 1983) (TMG II’s complaint); TMG Associates Custodial Committee v. Monetary Group, Ltd, No. 83-3685 (D.D.C. May 31, 1984) (TMG Associates’ complaint). Based on an investigation and report by a court-appointed receiver, the district court granted an injunction freezing the defendants’ assets. Weil v. Markowitz, No. 83-3685 (D.D.C. February 23, 1984).\nMeanwhile, the IRS was conducting a parallel criminal investigation in which it received substantial assistance from the partnerships. The government eventually obtained stays of the TMG civil suits, successfully arguing that further proceedings would endanger its criminal investigation. Weil v. Markowitz, No. 83-3685 (D.D.C. June 6, 1984); TMG Associates Custodial Committee v. Monetary Group, Ltd, No. 83-3685 (D.D.C. August 1, 1984). This court upheld the stays in Weil I, 829 F.2d 166.\nThe stays delayed the civil suits long enough for the government to file federal tax hens against Mr. Markowitz, and collect assets in satisfaction of the liens, before TMG was able to obtain its judgments. The stays expired by their own terms on September 14, 1984. See Weil II, 829 F.2d at 169. On January 14, 1985, the IRS made assessments against Markowitz and filed a notice of federal tax liens. Some seven months later, on August 30, 1985, the district court entered a judgement in the TMG suits. The partnerships were awarded a total of approximately $900,000, which the court deemed to represent a full equity accounting for partnership property entrusted to Markowitz. Weil v. Markowitz, No. 83-3685 (D.D.C. August 30, 1985). The district court subsequently rejected TMG’s contention that the judgment should be entered nunc pro tunc to October 26,1984, the scheduled concluding date of the trial before the government obtained the stay of proceedings. See Weil I, 898 F.2d at 199-200. This court affirmed that decision. Id.\nTMG commenced the present action to obtain a determination that its interest in fourteen properties owned at one time by Markowitz primed the interest that the United States had obtained via its tax lien. On competing motions for summary judgment, the district court ruled in favor of the United States and dismissed the action. TMG II v. United States, 778 F.Supp. 37 (D.D.C.1991) (“TMG ”).\nII. ANALYSIS\nThe district court’s thorough and well-reasoned opinion properly resolved virtually every issue. The district court appropriately rejected the partnerships’ claim that under District of Columbia law, an errant fiduciary is deemed to own no property until he makes an accounting and reimbursement to the partnership. Thus, the court was correct in holding that the partnerships did not hold equitable title to the contested assets at the time of the IRS seizure. The district court was also correct to decline TMG’s invitation to waive the tracing requirement necessary to establish a constructive trust. Finally, the district court properly concluded that there was no triable issue of fact as to whether assets seized from Markowitz could be traced back to the “TMG Associates Bonus Account.”\nThe district court did, however, err in one respect. The court abused its discretion by refusing to allow the partnerships to submit critical rebuttal evidence before ruling that the partnerships did not present a triable issue as to whether Markowitz purchased a house using funds that could be traced to one of the partnerships’ Cayman Islands bank accounts. Thus, we remand to the district court for further proceedings consistent with this opinion.\nA. The “Moyers” Issue\nThe partnerships maintain that Mr. Markowitz had no valid property interest in any of his personal property to which the IRS levy could attach. Their position is based on the premise that under District of Columbia law, “an errant general partner, like Mr. Markowitz, is deemed to own no property of his own until all property due and owing the partnership has been accounted for and restored.” TMG, 778 F.Supp. at 45 (internal quotations and citation omitted). The district court properly rejected TMG’s argument.\nThe parties agree that a federal tax lien can only attach to “property ... belonging to [the taxpayer].” Id. at 44 (quoting 26 U.S.C. § 6321). “Thus, if the [pjartnerships can show that at the time the [government filed its liens they, and not Markowitz, were the true owners of the fourteen assets, they can establish their entitlement to those assets.” Id. However, TMG’s contention that Markowitz did not own the seized property at the time of the IRS seizure is insupportable.\nTMG relies on Moyers v. Cummings, 17 App.D.C. 269 (1900), aff'd sub nom. Consaul v. Cummings, 222 U.S. 262, 32 S.Ct. 83, 56 L.Ed. 192 (1911), which involved a dispute between Moyers and the estate of his former law partner, Edmonds. The administrator of Edmonds’s estate alleged that Moyers had collected about $26,000 in fees due to the partnership and deposited them in a personal account, commingling the partnership fees with his own funds. Id. at 270-71. The lower court appointed a receiver and eventually ordered Moyers to disgorge some $9,000 determined to be due to the estate of his former law partner. Id. at 274-75.\nMoyers did not contest that he had deposited the fees in question into his personal account, nor that he owed money to the partnership (although he contested the amount). Rather, he challenged the trial court’s authority to order that funds be paid out of his bank account. He argued that the funds in the account at the time of the court order were his own, and that his liability to the estate was as a general debtor rather than a trustee. Thus, Moyers contended, the estate could only satisfy its judgment by filing a lien against him, not by demanding a specific asset such as his personal bank account. Id. at 275-77.\nThe D.C. Court of Appeals rejected this argument. Because the partnership funds had been placed into Moyers’s personal account, and it would be impracticable to determine that those precise funds (as opposed to the commingled personal funds) were still in the account, the Moyers court held that “in mingling the [partnership] fund with his own and drawing thereon on his individual account, [Moyers] will be presumed to have first drawn and used his own money.” Id. at 279. In other words, any balance still in the account at the time of the order (up to $9,000) would be presumed to be the $9,000 owed to the partnership and .held in constructive trust by Moyers. The court held that Moyers had failed to present evidence to rebut the presumption that he had depleted his personal assets from the account before reaching partnership funds. Id. at 280-81.\nThe district court fittingly rejected TMG’s broad interpretation of Moyers. As the district court concluded, Moyers stands only for the narrow proposition that once partnership funds are traced into a particular personal account, subsequent withdrawals from the commingled account are rebuttably presumed to be of the personal rather .than the partnership funds. See TMG, 778 F.Supp. at 45-46. TMG correctly maintains before this Court, and the district court properly held, that “the identity of the partnership fund is not lost by the act of commingling.” Moyers, 17 App.D.C. at 279. But the assertion that all of the errant partner’s property is therefore held in trust for the partnership simply does not follow from this principle.\nTMG attempts to assail the district court’s conclusion by subtly misconstruing passages in the opinion. TMG first argues that the district court misunderstood references to “the fund” in Moyers to refer to the personal bank account rather than the partnership money deposited into that account. See TMG, 778 F.Supp. at 45-46; Moyers, 17 App.D.C. at 279. The district court made no such error. When the district court stated that Moyers refers “only to ‘the fund,’ not to all of Moyers’ property,” TMG, 778 F.Supp. at 46, the court was merely pointing out that only the account to which the partnership fund had been traced was at issue, rather than all of Moyers assets. As we have already stated, this is exactly correct.\nTMG’s remaining Moyers arguments are also fruitless. First, contrary to TMG’s claim, Moyers did not remove the tracing burden from the partnership. Rather, because the parties agreed that partnership funds had been placed into a particular personal account, the court held only that the funds were presumed to remain in the account despite commingling and some dissipation. Moyers, 17 App.D.C. at 279. Again, the district court got it exactly right. Second, the temporary restraining order in the lower court, freezing all of Moyers’s assets, is not enough to establish that Moyers stands for a broad principle which the language of the opinion does not itself support. The lower court did freeze all of Moyers’s assets pending satisfaction of the judgment. But this aspect of the remedy was arguably unwarranted in light of the lower court’s holding, probably prophylactic in nature, and certainly never reviewed by the Moyers court. TMG cannot convincingly argue that the holding in Moyers should be broadened to justify or explain the lower court’s remedy.\nThe parties also argue over whether New York or D.C. law should be used to determine the nature of Markowitz’s property interest. However, as the district court properly held, the states’ laws are not in conflict and the choice-of-law question is therefore irrelevant. See TMG, 778 F.Supp. at 46.\nB. Waiver of the Tracing Requirement\nA breach of fiduciary duty often gives rise to the creation of an equitable constructive trust, whereby an errant fiduciary is deemed to hold in trust property misappropriated from the partnership. In order to obtain a constructive trust, a plaintiff must generally connect specific property held by the fiduciary with the property misappropriated from the partnership. Thus, only property traced from the fiduciary breach to the fiduciary’s current holdings will be deemed to be held in trust for the partnership. See TMG, 778 F.Supp. at 47 (discussing legal foundations of the constructive trust and relevant precedent).\nThe district court concluded that although a constructive trust may have been created as to the partnership property that Markow-itz misappropriated, the constructive trust claim must fail in this case because the partnerships failed to trace any of the assets seized by the IRS to the stolen partnership property. Id. at 51-54. The district court acknowledged that “no recorded District of Columbia case turns upon the requirement of tracing,” but held that “there is no reason to think that the D.C. courts would depart from these general and well-accepted principles.” Id. at 48. We find the district court’s discussion of existing D.C. law — and of more clearly dispositive Maryland law, which is “the source of the District’s common law and an especially persuasive authority when the District’s common law is silent,” Napoleon v. Heard, 455 A.2d 901, 903 (D.C.1983)—to be thoroughly convincing. See TMG, 778 F.Supp. at 48-49.\nTMG makes three arguments in response to the district court’s conclusion that tracing is generally required in the District of Columbia to establish a constructive trust. First, TMG argues that Moyers eliminated the tracing requirement. Second, TMG maintains that the policy considerations requiring tracing do not apply in this case. Finally, TMG contends that the preliminary injunction freezing Markowitz’s assets obviates the need for traditional tracing analysis. The district court properly rejected each of these arguments.\n1. Moyers\nAs discussed supra pp. 39-40, Moyers did impose a tracing requirement on the plaintiff. It is TMG, and not the district court,- that misreads Moyers. The parties in Moyers agreed that the partnership funds were placed in a particular personal account, and the court placed on Moyers the burden to demonstrate that those funds withdrawn from the commingled account were partnership funds. In the absence of such proof, the court presumed that personal funds were withdrawn, and that the partnership funds remained in the commingled account.\n2. Policy Considerations\nTMG argues that the tracing requirement should not be imposed on several alternative policy grounds. Specifically, the partnerships maintain that tracing is unnecessary: (1) when a constructive trust beneficiary is competing with a tax lien; (2) against victims of fiduciary misconduct as opposed to general creditors; and (3) in light of the remarkable ease with which assets can be repeatedly commingled by an errant fiduciary. We address each point in turn.\nTMG first argues that tracing should be dispensed with in the case of a competing tax lien because “the tax collector not only steps into the taxpayer’s shoes but must go barefoot if the shoes wear out.” United States v. Rodgers, 461 U.S. 677, 691 n. 16, 103 S.Ct. 2132, 2141 n. 16, 76 L.Ed.2d 236 (1983) (quoting 4 B. Bittker, Federal Taxation of Income, Estates, and Gifts ¶ 111.5.4 (1981)). The district court did not quarrel with this concept; in fact, it is a fundamental premise of the opinion. See TMG, 778 F.Supp. at 50 (“Bittker’s metaphor describes the doctrine, mentioned above, that state law determines whether a taxpayer has a sufficient property interest for federal tax liens to attach.”) If TMG could establish a property right to seized assets through tracing, their claim would undeniably defeat the IRS lien.\nHowever, as the district court pointed out, the Rodgers principle applies only in determining whether there is a property interest to which the tax lien can attach. The principle does not address the priority of the tax lien vis-a-vis other interests. Likewise, it does not support the proposition that tracing should be dispensed with in tax lien cases. The partnership must stand alongside all other creditors if it cannot trace its assets, and have its priority determined by the same “first in time, first in right” rule that applies to all creditors. See TMG, 778 F.Supp. at 49-50.\nThe partnerships also argue that United States v. Baldwin, 575 F.2d 1097 (4th Cir.1978), stands for the proposition that a victim of fiduciary misconduct such as TMG should be given priority over a general creditor such as the IRS. But Baldwin is completely inap-posite. The Baldwin court held, via certification to the Maryland Court of Appeals, that assets of an express trust cannot be taken to satisfy the settlor’s personal tax liabilities where the settlor has irrevocably transferred the seized property to the trust. The case involves neither a constructive trust, fiduciary misconduct, nor the tracing requirement.\nFinally, TMG argues in connection with its other points that the tracing requirement is obsolete in light of the remarkable ease with which assets can be repeatedly commingled in the modern financial world. This argument is frivolous. The same automated financial system which allows assets to be repeatedly commingled at blinding speed also enables transactions to be more easily traced through quicker access to the records of the transactions. The burgeoning information age does not present a basis for jettisoning the long-standing tracing requirement.\n3. The Preliminary Injunction\nTMG relies on United States v. Fontana, 528 F.Supp. 137 (S.D.N.Y.1981), and SEC v. Paige, 1985 WL 2335 (D.D.C.1985), aff'd without opinion, 810 F.2d 307 (D.C.Cir.1987), for the proposition that the preliminary injunction freezing Markowitz’s assets in February of 1984 obviated the need to engage in traditional tracing analysis. TMG argues that these cases support the claim that pre-judgment remedies such as attachment are sufficient to bring all attached property into the constructive trust without the need to trace. TMG argues that the district court erred by concluding that neither Fontana nor Paige disposed of the tracing requirement. See TMG, 778 F.Supp. at 50-51.\nThe district court correctly concluded that neither case supports TMG’s position because neither case disposed of the tracing requirement. See TMG, 778 F.Supp. at 50-51. The Fontana court remanded, and did not decide, the question of whether a constructive trust had been formed in that case. See Fontana, 528 F.Supp. at 146. For the purpose of resolving the' subsidiary issues before it, the court accepted arguendo the plaintiffs claim “that the fund in question is traceable to wrongful acts by Fontana in breach of his fiduciary obligations.” Fonta-na, 528 F.Supp. at 139. The Fontana court in no way rejected the tracing requirement.\nIn Paige, the misappropriated funds were explicitly traced from the errant fiduciary’s personal bank account to an escrow account later formed, pursuant to a permanent injunction, to satisfy claims against the fiduciary. See Paige, 1985 WL 2335 at *2 (“The escrow assets were purchased by Paige with funds from the same general personal cheeking accounts into which he had deposited the [embezzled funds].”). The court therefore did not allow a federal tax lien to defeat the claimants’ rights to the funds. The case is on all fours with the proper interpretation of Moyers, holding that commingled funds are deemed to be held in constructive trust notwithstanding the commingling and subsequent dissipation of the combined fund. In fact, Paige cited Florida law for the proposition that “when a trustee wrongfully commingles trust funds with his own, equity will impress the trust on the entire mass.... ” Id. Paige reenforces the district court’s reading of Moyers, and imposes the same tracing requirement that the district court imposed on TMG in the instant case.\nC. Tracing of the Disputed Assets\nTMG’s final (and only viable) argument is that some of the disputed assets can iiideed be traced to the property Markowitz misappropriated from the partnerships, or at least that the tracing issue is in dispute and therefore not amenable to summary judgment.\n1. The “TMG Associates Bonus Account”\nTMG claims that it can trace $424,-846.94 in assets seized or recovered from Markowitz to the “TMG Associates Bonus Account” opened at a local Washington bank for TMG Associates. The parties agree that the account was opened with an initial deposit of $130,000 in partnership money, and that Hillcrest commissions totalling $597,500 were later deposited. TMG, 778 F.Supp. at 51. (Hillcrest is a securities firm that initially “traded” with the partnerships, and later with Markowitz-owned entities. The transactions were all bogus, with Hillcrest paying “commissions” for fraudulent documentation used to substantiate the illegitimate tax losses. Id. at 40.)\nThe district court found that the initial $130,000 deposit was either spent on behalf of, or returned to, TMG Associates, and was therefore never misappropriated by Markow-itz. Id. at 51. The court declined to definitively decide who owned the Hillcrest commissions, but it appears to have assumed that the commissions in question were “earned” by Markowitz-owned entities rather than the partnerships. See id. at 40, 51-52. Rather, finding that the commissions were undoubtedly the fruit of sham transactions, the court held that equity would not enforce TMG’s constructive trust claim to the property because they had unclean hands. Id. at 52.\nTMG does not challenge the court’s holding with respect to the Hillcrest commissions. The partnerships do contend, however, that there is a genuine issue of material fact as to what happened to the $130,000 initial deposit after it was put into the Bonus Account. The district court credited declarations by Mar-kowitz and an IRS agent (supported by check stubs and receipt journals) that $53,-872.90 was used to pay bonuses to five TMG Associates employees, and that the remaining $76,127.10 was returned to TMG Associates in the form of two checks. Id. at 51. TMG argues that Markowitz’s declaration was a recent fabrication precipitated by his desire to cooperate with the' government, pointing out that Markowitz was unable to recall anything about the Bonus Account at his deposition two years earlier-in the civil suit between the partnerships and Markow-itz. TMG also uses the Markowitz deposition to convincingly rebut the government argument that Markowitz could not remember the details of the Bonus Account because he did not have certain records available at the deposition.\nNotwithstanding the fact that Markowitz changed his tune between the TMG-Mar-kowitz deposition and his declaration to the IRS in this proceeding, the district court did not, as TMG asserts, simply accept the Mar-kowitz declaration at face value. Markow-itz’s claims were incontrovertibly- supported by the check stubs and cash receipt journal. His claim in the earlier, deposition that he could not remember anything about the Bonus Account, even in the face of cancelled checks and bank statements from the account, did not create a triable issue of.fact. In the first place, the earlier statement that he could not remember is not inconsistent with his later declaration. Markowitz’s deposition statement that he could not remember anything about the account does not cast any doubt on the reliability of the check stubs and cash receipt journal. Furthermore, TMG did not contest the authenticity or accuracy of the documentation, or assert that the bonuses were improper.\nThus, the government is correct that TMG failed to meet the burden of tracing funds from Markowitz back to the Bonus Account. The uncontradieted evidence demonstrates that the $130,000 was spent on behalf of, or returned to, TMG Associates. TMG’s claim that the Markowitz declaration should not have been admitted at the summary judgment stage because it was inconsistent with his earlier deposition, see Adelman-Tremblay v. Jewel Companies, 859 F.2d 517 (7th Cir.1988), is both incorrect and beside the point. As we have already stated, the two statements are not inconsistent. And in any case, even in the absence of the Markowitz declaration, the government presented un-eontested evidence that the $130,000 was returned to TMG. The government need not rely on any testimony from Markowitz to establish this fact.\n2. The Cayman Islands Account and 2323 Porter Street\nFinally, we reach the single issue that the district court did not satisfactorily resolve. The partnerships contend that they are the true owners of $552,846.23 in net proceeds realized from the sale of Markowitz’s house at 2323 Porter Street. They claim that the funds used to purchase the house came from a TMG bank account in the Cayman Islands. We hold that the district court -abused its discretion in refusing the submission of critical rebuttal evidence, and therefore reverse the district court’s grant of summary judgment and remand for further proceedings.\nTMG first claimed that 2323 Porter was purchased with partnership funds in their summary judgment reply brief, and the district court decided to allow supplemental discovery and briefing on the issue. In their supplemental brief, TMG asserted that Mar-kowitz maintained a TMG account at the Cayman Islands branch of a Swiss Bank, that he transferred money from the Cayman Islands account to a personal account in the District of Columbia, and that he used the transferred funds to purchase his house. The government offered evidence in their responsive brief that there were in fact two Cayman Islands accounts with the same account number, and that the funds used to purchase the house came from the second account — which was opened with funds from another Markowitz-owned company that had no connection with TMG. TMG, 778 F.Supp. at 52-53.\nThe partnerships offered evidence in their supplemental reply brief that “the two TMG Associates accounts in the Cayman Islands were combined before the money used to purchase the 2323 Porter Street residence was transferred.” Id. at 53. The district court did not suggest that this evidence was insufficient to create a disputed issue of fact. Rather, the court refused to accept the proffer on the following grounds:\nThe Government has not, however, had a chance to respond to this new evidence, nor indeed does it appear that the plaintiffs provided the Government with notice of this evidence during the additional discovery period.... TMG’s proffer of this evidence is so belated that it would be unfair to allow its submission.\nTMG, 778 F.Supp. at 53.\nThe partnerships argue that the court erred by refusing to accept the new evidence. First, they point out the existence of two identically numbered accounts was first brought out in a declaration filed with the government’s supplemental opposition brief. Thus, they argue, the evidence that the two accounts had been commingled was perfectly proper rebuttal. Second, TMG argues that the government could not have been unfairly surprised because it had in its possession, at least since 1985, the documents revealing that there were two accounts, and that they had been commingled. Third, TMG states that the submission was not untimely because Fed.R.Civ.P. 56(b) allows the filing of evidentiary affidavits until the day of the summary judgment hearing. We agree with each of these contentions.\nThe government’s responses in defense of the district court ruling are not convincing. The government begins by arguing that the district court did not abuse its discretion in holding the proffer untimely because the government did not have time to obtain evidence before the close of discovery that would demonstrate that the second Cayman Islands account contained no TMG funds. However, TMG is correct that since the government first raised the existence of two accounts, it would be unfair to TMG to accept that evidence without allowing TMG to respond. The district court was obligated to accept TMG’s proper rebuttal once it accepted the government’s new evidence. The district court abused its discretion in refusing to do so.\nThe government argues in the alternative that the documents submitted in support of the supplemental reply brief could not be considered because they were not accompanied by an affidavit or sworn to as required by Fed.R.Civ.P. 56(e). The government contends that although the district court did not rely on this reasoning, this court can uphold the district court on any available grounds. We decline to affirm the district court’s decision on these grounds. The record below does not suggest that there was a dispute over the authenticity of the relevant documents, and TMG asserts that many other documents submitted for consideration by both parties, and accepted by the district court, were not accompanied by proper foundational affidavits.\nConclusion\nWe are not in a position to assess the merits of TMG’s claim to the proceeds from the sale of the Porter Street residence. The record does not disclose whether the two Cayman Islands accounts were in fact combined, as TMG allegés, nor whether any commingled funds were subsequently segregated when Markowitz transferred money from the Cayman Islands to his personal account in Washington. Thus, we remand to the district court to allow full discovery on the issue, and to determine whether TMG can trace the proceeds from the sale of 2323 Porter Street back to partnership funds.\nSo ordered.\n[END_CASE]", "role": "user" } ]
10,507,571	UNITED STATES of America, Appellee, v. Omar Martin ZAPATA, a/k/a Omar Martin Zapata-Medina, a/k/a Omar Zapata Martin, Defendant, Appellant	United States v. Zapata	1993-07-19	No. 93-1116	United States Court of Appeals for the First Circuit	{"judges": ["Before BREYER, Chief Judge, SELYA and BOUDIN, Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Omar Martin ZAPATA, a/k/a Omar Martin Zapata-Medina, a/k/a Omar Zapata Martin, Defendant, Appellant."], "opinions": [{"text": "SELYA, Circuit Judge.\nIn this criminal appeal, defendant-appellant Omar Martin Zapata-Medina (Zapata), an alien, claims that the court below imper-missibly “double counted” in calculating the guideline sentencing range (GSR) applicable to his case. Concluding that Zapata’s sentence was lawfully constituted, we affirm.\nI\nThe facts relevant to this appeal are not disputed. The government deported Zapata in 1990, following his conviction on a state drug-trafficking charge for.which he served 142 days in prison (the remainder of his term of immurement having been suspended). Under applicable federal law, Zapata’s prior conviction is classified as an aggravated felony. See 8 U.S.C. § 1101(a)(43). The deportation did not stick: Zapata returned to the United States sub rosa in 1992. Once apprehended, he pled guilty to a charge that he had violated 8 U.S.C. § 1326(a) & (b)(2).\nAt sentencing, the district court calculated Zapata’s offense level and criminal history category (CHC) in the manner directed by the federal sentencing guidelines. The court started with a base offense level of eight, see U.S.S.G. § 2L1.2(a), increased the offense level to twenty-four, see U.S.S.G. § 2L1.2(b)(2) (directing a sixteen-level increase for a defendant who has entered the United States unlawfully following deportation “after a conviction for an aggravated felony”), and subtracted -three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1, thereby reaching an adjusted offense level of twenty-one.\nThe district court’s calculation of Zapata’s CHC lies at the heart of this 'appeal. Under U.S.S.G. § 4Al.l(b), two criminal history points are to be added “for each prior sentence of imprisonment” of sixty days or more. The term “prior sentence” means “any sentence previously imposed upon adjudication of guilt, whether by guilty plea [or otherwise], for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(l). The district court invoked this provision, adding two points to Zapata’s criminal history score by reason of the prior narcotics conviction (notwithstanding that the prior conviction had already been used to ratchet up his offense level). The two criminal history points boosted appellant over the line into CHC II and upped the GSR to 41-51 months.\nAfter the district court sentenced appellant to forty-one months in prison, this appeal arose. In it, Zapata assigns error solely to the double counting of his original narcotics conviction.\nII\nIn the sentencing context, double counting is a phenomenon that is less sinister than the name implies. The practice is often perfectly proper. This case illustrates the point: the double counting in which the district court engaged did not stray into forbidden territory. Rather, the court’s methodology carefully tracked the Sentencing Commission’s interpretive comment, which states specifically that an offense level increase for a prior felony conviction under section 2L1.2(b) “applies in addition to any criminal history points added for such conviction in Chapter Four, Part A (Criminal History).” U.S.S.G. § 2L1.2, comment, (n. 5) (emphasis supplied). As a general rule, courts should strive to apply the guidelines as written, giving full force and effect to the Sentencing Commission’s interpretive commentary and application notes. See Stinson v. United States, — U.S. -, -, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993); United States v. Jones, 997 F.2d 967, 969 (1st Cir.1993); see also United States v. Williams, 954 F.2d 204, 206 (4th Cir.1992) (approving double counting on the basis that the sentencing guidelines must be “applied as written”). Although there are exceptions to the general rule, see, e.g., Stinson, — U.S. at —, 113 S.Ct. at 1915 (explaining that commentary may be disregarded if “it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, [a] guideline”); United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992) (stating that courts “should defer to the Commission’s suggested interpretation of a guideline provision unless the Commission’s position is arbitrary, unreasonable, inconsistent with the guideline’s text, or contrary to law”), cert. denied, — U.S. —, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993), no such exception applies in this instance. To the contrary, note 5 strikes us as fully consonant with constitutional understandings, relevant statutory law, and the text of the applicable guideline provisions.\nFurthermore, the case law offers a ringing endorsement for the district court’s use of double counting in the circumstances at hand. Indeed, in United States v. Adeleke, 968 F.2d 1159 (11th Cir.1992), the Eleventh Circuit flatly rejected a challenge virtually identical to that mounted by Zapata. The Adeleke court determined that the Sentencing Commission intended a prior felony conviction to be used in calculating both the offense level and the CHC in a Title 8 case. See id. at 1161. The court found support for this conclusion not only in the Commission’s interpretive commentary but also in the sentencing calculus itself. In this respect, the court viewed the use of the same conviction for “conceptually separate notions” about sentencing to be permissible, explaining that the criminal history adjustment is “designed to punish likely recidivists more severely, while the [offense level] enhancement ... is designed to deter aliens who have been convicted of a felony from re-entering the United States.” Id. (citation omitted).\nIn United States v. Campbell, 967 F.2d 20, 22-23 (2d Cir.1992), a case involving an alien convicted under the statute at issue here but sentenced pursuant to an earlier, somewhat different version of the guidelines, the Second Circuit employed a similar rationale to sustain the two-fold use of a prior conviction. The district court double counted a previous aggravated felony conviction in calculating the offense level and CHC, respectively, for an alien who, like Zapata, unlawfully reentered the United States. Id. at 23. The court of appeals affirmed, noting that, although the prior conviction had been used twice in constructing the defendant’s sentence, the two usages measured different things: on one occasion, the offense level, which represents the Sentencing Commission’s judgment as to the wrongfulness of the unlawful entry under the attendant circumstances; and on the second occasion, the CHC, which estimates the likelihood of recidivism with respect to the particular alien who achieves the illegal reentry. Id. at 24-25.\nAdeleke and Campbell mirror the analytic approach adopted by this court in United States v. Sanders, 982 F.2d 4 (1st Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). There, we found double counting to be permissible because the guideline in question plainly directed the court to use a single factor — a conviction for carrying a firearm in the course of a drug crime — in two different ways: first, to calculate the offense level of an armed career criminal, and second, to calculate the criminal’s CHC. See id. at 6.\nWe see no reason to retreat from these principles or to skirt their application in the instant case. Congress has delegated to the Sentencing Commission the twin tasks of determining (1) which factors should be considered in punishing and deterring criminals, and (2) the methodology by which punishment-related and deterrence-related factors should be taken into account in constructing a particular sentence. See United States v. La Guardia, 902 F.2d 1010, 1015 (1st Cir. 1990). In a carefully calibrated scheme aimed at producing sentencing ranges that will differ depending upon the existence and nature of a prior felony conviction, section 2L1.2 expresses two things: (1) the Commission’s determination that the incidence and attributes of a prior felony conviction should be weighed by courts in sentencing a special class of aliens who have unlawfully reentered the United States, and (2) the Commission’s related decision that the methodology best suited to achieving both punishment and deterrence is to consider the relevant aspects of such a conviction in calculating not only the offense level but also the CHC.\nWe have said enough on this score. Since the sentencing scheme that the - Commission has devised for the offense of conviction is plausible as a whole and not inconsistent with statutory law or constitutional precepts, we cannot substitute our judgment for that of the Commission. This means, of course, that we can second-guess neither the Commission’s determination that the offense of unlawful reentry subsequent to perpetrating an aggravated felony is sufficiently more serious than the commission of the same offense while toting less weighty baggage and, thus, warrants greater punishment, nor its allied determination that an alien who, having been deported following a conviction for an aggravated felony, and having exhibited a willingness to flout our laws again by reentering the country without permission, may be more likely to commit serious crimes than an alien who unlawfully reenters this country with no criminal record or with a less sullied record, and, thus, deserves a sentence possessing greater deterrent impact. Cf. e.g., id. at 1015 (explaining that, since the Commission is free to determine the extent to which substantial assistance by a defendant should warrant a downward departure and to fashion an implementing methodology, it is not for the courts to question the wisdom of rational choices made by the Commission in these respects).\nWe hold, therefore, that to the extent the same factor reflects both the seriousness of an offense and the likelihood of a particular defendant’s recidivism, it may be considered twice in sentencing — for the separate purposes of punishment and deterrence — so long as the Commission, expressly or by fair implication, so directs. Cf. United States v. Newman, 982 F.2d 665, 672-75 (1st Cir.1992) (holding double counting to be permissible in a situation where it was expressly authorized by the applicable guideline and helped to effectuate the Sentencing Commission’s “carefully calibrated offense level adjustment scheme”), petition for cert. filed (U.S. Apr. 22, 1993). Because the ruling below falls squarely within this ambit, we reject appellant’s claim of error.\nIll\nAppellant has another string to his bow. Citing United States v. Campos-Martinez, 976 F.2d 589 (9th Cir.1992), he asseverates that, because his prior felony conviction is an element of the crime to which he pled guilty, double counting conflicts with what he terms a “clear policy of the Sentencing Commission to avoid double counting when the specific behavior is an element of the' crime for which the defendant will be sentenced.” Appellant’s Brief at 6. Appellant bases this argument on the combined force of three items: (1) the language of U.S.S.G. § 4A1.2(a)(l) (defining a “prior sentence” for purposes of computing a defendant’s criminal history score as any sentence “for conduct not part of the instant offense”); (2) an introductory comment to Chapter 3, Part D, of the sentencing guidelines (discussing the need for grouping rules “to prevent multiple punishment for substantially identical offense conduct’’); and (3) a multifaceted analogy to several specific instances in which the Commission, having employed an element of the offénse in fixing the base offense level, thereafter chose to eschew any double counting. See, e.g., U.S.S.G. §§ 3A1.1, comment. (n. 2) (discussing vulnerability of victim), 3A1.3, comment, (n. 2) (discussing restraint of victim), 3B1.3 (discussing abuse of special trust), 3C1.1, comment, (n. 6) (discussing'obstruction of justice);' see also United States v: Plaza-Garcia, 914 F.2d 345 (1st Cir.1990) (applying § 3A1.1, comment, (n. 2)).\nPlacing three legs under the asseverational stool does not render it capable of bearing the load that appellant rests on it. The first two arguments can be considered in tandem. As the government points out, both the definition of “prior sentence” and the caveat to the grouping rules focus on the problem of punishing a defendant twice for the same conduct. By like token, the concern expressed by the Sentencing Commission in the introductory comment to Chapter 3, Part D applies to multiple-count indictments — a situation where, prototypically, a defendant’s guilt on several counts may flow from the same underlying conduct. The case at bar presents a materially different set of circumstances. Although Zapata’s prior drug-trafficking conviction may well be an element of the offense stated by 8 U.S.C. § 1326(b)(2), the conduct which resulted in that conviction is clearly separate and distinct from the conduct at issue here. In other words, section 1326(b)(2) does not focus on appellant’s earlier behavior, but on appellant’s status as a previously convicted felon. This distinction completely undermines appellant’s reliance both on U.S.S.G. § 4A1.2(a)(l) and on the introductory comment to the grouping rules. Cf. United States v. Alessandroni 982 F.2d 419, 421, 422 (10th Cir.1992) (upholding, against a similar challenge premised on § 4A1.2(a)(l), the district court’s consideration of a prior burglary conviction in calculating both the base offense level and the CHC applicable to a pending felon-in-possession count).\nThe third leg of the stool is no more sturdy. The instances appellant cites as examples of the Sentencing Commission’s policy against double counting simply do not support the suggested analogy. Those instances, like our decision in Plaza-Garcia, 914 F.2d at 347, do no more than illustrate that a given factor is not to be considered twice in calculating a defendant’s offense level. See, e.g., Jones, 997 F.2d at 969 (distinguishing Plaza-Garcia on this basis). For purposes of this case; we accept the premise that a single factor cannot be double counted in setting a defendant’s offense level. But, such instances are not particularly instructive in examining the different question of whether a single factor (here, a prior conviction) may be considered in connection with both the calculation of a defendant’s offense level and the calculation of his CHC. As we previously indicated, see swpra Part II, we believe that where the guidelines so provide, either expressly or by fair implication, a single factor may serve double duty in that fashion. See Neuman, 982 F.2d at 673 (holding that the Commission’s express prohibition of double counting in certain instances indicates its intent to permit double counting in other instances); United States v. Blakney, 941 F.2d 114, 117 (2d Cir.1991) (allowing consideration of defendant’s prior conviction in connection with both offense level and CHC calculations where the guidelines did not provide to the contrary and the general purposes underlying each usage differed).\nIV\nWe need go no further. We conclude, without serious question, that double counting of the type employed here — using a single factor to influence both the defendant’s offense level and CHC — is permissible. The double counting done in this case is, moreover, faithful to the tenor and purport of the guidelines. It follows that the lower court sentenced appellant in a lawful manner. The judgment below is, therefore, summarily affirmed. See 1st Cir.Loc.R. 27.1.\nAffirmed.\n. These subsections stipulate in the aggregate that any \"alien who ... has been arrested and deported ..., and thereafter ... is ... found in ... the United States [without the express consent of the Attorney General, and] ... whose deportation was subsequent to a conviction for commission of an aggravated felony, ... shall be [punished as provided].”\n. As a matter of general interest, we note that Zapata was sentenced on December 1, 1992; hence, the November, 1992 version of the guidelines applied. See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.1990) (directing that, except where necessary to avoid ex post facto problems, \"a defendant is to be punished in accordance with the guidelines in effect at sentencing\"). Although the district court signalled an intention to use the November, 1991 version of the guidelines, this appears to have been a slip of the tongue. Because the district court’s calculations faithfully track the November, 1992 version, we disregard the lapsus linguae.\n. Adeleke involved an alien found in the United States after he had been deported following an earlier conviction for a garden-variety \"felony.” See 8 U.S.C. § 1326(b)(1). In contrast, the case before us involves 8 U.S.C. § 1326(b)(2), which pertains to an alien convicted of an \"aggravated felony” prior to deportation. Because the only material difference concerns the seriousness of the prior felony conviction, we think that \"(b)(1)” cases, like Adeleke, are relevant authority when a court ponders the permissibility of double counting in a \"(b)(2)” case.\n. U.S.S.G. § 2L1.2(a) establishes a base offense level of 8 for aliens unlawfully entering the United States. The guideline provides a four-level increase for aliens previously deported after conviction for a non-immigration-related, non-aggravated felony, id. at § 2L1.2(b)(1), and a sixteen-level increase if the previous conviction was for an aggravated felony. See id. at § 2L1.2(b)(2). Other aspects of the sentencing scheme, such as how it treats misdemeanors, see id., comment, (n. 1), are not germane for present purposes and, therefore, need not be discussed.\n. At least one district court has concluded that 8 U.S.C. § 1326(a) and (b)(2) describe separate and distinct offenses so that the government \"must allege, as an element of a violation of § 1326(b)(2), the existence of a defendant's prior aggravated felony conviction.” United States v. Vieira-Candelario, 811 F.Supp. 762, 768 (D.R.I.1993). We take no view of this issue.", "type": "majority", "author": "SELYA, Circuit Judge."}], "attorneys": ["Lenore Glaser, Boston, MA, on brief, for defendant, appellant.", "A. John Pappalardo, U.S. Atty., and Jeanne M. Kempthorne, Asst. U.S. Atty., Boston, MA, on brief, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Omar Martin ZAPATA, a/k/a Omar Martin Zapata-Medina, a/k/a Omar Zapata Martin, Defendant, Appellant.\nNo. 93-1116.\nUnited States Court of Appeals, First Circuit.\nSubmitted April 12, 1993.\nDecided July 19, 1993.\nLenore Glaser, Boston, MA, on brief, for defendant, appellant.\nA. John Pappalardo, U.S. Atty., and Jeanne M. Kempthorne, Asst. U.S. Atty., Boston, MA, on brief, for appellee.\nBefore BREYER, Chief Judge, SELYA and BOUDIN, Circuit Judges."}	BREYER	SELYA	BOUDIN	1	1	1	0	0	0	1 F.3d 46	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Omar Martin ZAPATA, a/k/a Omar Martin Zapata-Medina, a/k/a Omar Zapata Martin, Defendant, Appellant\nCourt: United States Court of Appeals for the First Circuit\nDate decided: 1993-07-19\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nSELYA, Circuit Judge.\nIn this criminal appeal, defendant-appellant Omar Martin Zapata-Medina (Zapata), an alien, claims that the court below imper-missibly “double counted” in calculating the guideline sentencing range (GSR) applicable to his case. Concluding that Zapata’s sentence was lawfully constituted, we affirm.\nI\nThe facts relevant to this appeal are not disputed. The government deported Zapata in 1990, following his conviction on a state drug-trafficking charge for.which he served 142 days in prison (the remainder of his term of immurement having been suspended). Under applicable federal law, Zapata’s prior conviction is classified as an aggravated felony. See 8 U.S.C. § 1101(a)(43). The deportation did not stick: Zapata returned to the United States sub rosa in 1992. Once apprehended, he pled guilty to a charge that he had violated 8 U.S.C. § 1326(a) & (b)(2).\nAt sentencing, the district court calculated Zapata’s offense level and criminal history category (CHC) in the manner directed by the federal sentencing guidelines. The court started with a base offense level of eight, see U.S.S.G. § 2L1.2(a), increased the offense level to twenty-four, see U.S.S.G. § 2L1.2(b)(2) (directing a sixteen-level increase for a defendant who has entered the United States unlawfully following deportation “after a conviction for an aggravated felony”), and subtracted -three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1, thereby reaching an adjusted offense level of twenty-one.\nThe district court’s calculation of Zapata’s CHC lies at the heart of this 'appeal. Under U.S.S.G. § 4Al.l(b), two criminal history points are to be added “for each prior sentence of imprisonment” of sixty days or more. The term “prior sentence” means “any sentence previously imposed upon adjudication of guilt, whether by guilty plea [or otherwise], for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(l). The district court invoked this provision, adding two points to Zapata’s criminal history score by reason of the prior narcotics conviction (notwithstanding that the prior conviction had already been used to ratchet up his offense level). The two criminal history points boosted appellant over the line into CHC II and upped the GSR to 41-51 months.\nAfter the district court sentenced appellant to forty-one months in prison, this appeal arose. In it, Zapata assigns error solely to the double counting of his original narcotics conviction.\nII\nIn the sentencing context, double counting is a phenomenon that is less sinister than the name implies. The practice is often perfectly proper. This case illustrates the point: the double counting in which the district court engaged did not stray into forbidden territory. Rather, the court’s methodology carefully tracked the Sentencing Commission’s interpretive comment, which states specifically that an offense level increase for a prior felony conviction under section 2L1.2(b) “applies in addition to any criminal history points added for such conviction in Chapter Four, Part A (Criminal History).” U.S.S.G. § 2L1.2, comment, (n. 5) (emphasis supplied). As a general rule, courts should strive to apply the guidelines as written, giving full force and effect to the Sentencing Commission’s interpretive commentary and application notes. See Stinson v. United States, — U.S. -, -, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993); United States v. Jones, 997 F.2d 967, 969 (1st Cir.1993); see also United States v. Williams, 954 F.2d 204, 206 (4th Cir.1992) (approving double counting on the basis that the sentencing guidelines must be “applied as written”). Although there are exceptions to the general rule, see, e.g., Stinson, — U.S. at —, 113 S.Ct. at 1915 (explaining that commentary may be disregarded if “it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, [a] guideline”); United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992) (stating that courts “should defer to the Commission’s suggested interpretation of a guideline provision unless the Commission’s position is arbitrary, unreasonable, inconsistent with the guideline’s text, or contrary to law”), cert. denied, — U.S. —, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993), no such exception applies in this instance. To the contrary, note 5 strikes us as fully consonant with constitutional understandings, relevant statutory law, and the text of the applicable guideline provisions.\nFurthermore, the case law offers a ringing endorsement for the district court’s use of double counting in the circumstances at hand. Indeed, in United States v. Adeleke, 968 F.2d 1159 (11th Cir.1992), the Eleventh Circuit flatly rejected a challenge virtually identical to that mounted by Zapata. The Adeleke court determined that the Sentencing Commission intended a prior felony conviction to be used in calculating both the offense level and the CHC in a Title 8 case. See id. at 1161. The court found support for this conclusion not only in the Commission’s interpretive commentary but also in the sentencing calculus itself. In this respect, the court viewed the use of the same conviction for “conceptually separate notions” about sentencing to be permissible, explaining that the criminal history adjustment is “designed to punish likely recidivists more severely, while the [offense level] enhancement ... is designed to deter aliens who have been convicted of a felony from re-entering the United States.” Id. (citation omitted).\nIn United States v. Campbell, 967 F.2d 20, 22-23 (2d Cir.1992), a case involving an alien convicted under the statute at issue here but sentenced pursuant to an earlier, somewhat different version of the guidelines, the Second Circuit employed a similar rationale to sustain the two-fold use of a prior conviction. The district court double counted a previous aggravated felony conviction in calculating the offense level and CHC, respectively, for an alien who, like Zapata, unlawfully reentered the United States. Id. at 23. The court of appeals affirmed, noting that, although the prior conviction had been used twice in constructing the defendant’s sentence, the two usages measured different things: on one occasion, the offense level, which represents the Sentencing Commission’s judgment as to the wrongfulness of the unlawful entry under the attendant circumstances; and on the second occasion, the CHC, which estimates the likelihood of recidivism with respect to the particular alien who achieves the illegal reentry. Id. at 24-25.\nAdeleke and Campbell mirror the analytic approach adopted by this court in United States v. Sanders, 982 F.2d 4 (1st Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). There, we found double counting to be permissible because the guideline in question plainly directed the court to use a single factor — a conviction for carrying a firearm in the course of a drug crime — in two different ways: first, to calculate the offense level of an armed career criminal, and second, to calculate the criminal’s CHC. See id. at 6.\nWe see no reason to retreat from these principles or to skirt their application in the instant case. Congress has delegated to the Sentencing Commission the twin tasks of determining (1) which factors should be considered in punishing and deterring criminals, and (2) the methodology by which punishment-related and deterrence-related factors should be taken into account in constructing a particular sentence. See United States v. La Guardia, 902 F.2d 1010, 1015 (1st Cir. 1990). In a carefully calibrated scheme aimed at producing sentencing ranges that will differ depending upon the existence and nature of a prior felony conviction, section 2L1.2 expresses two things: (1) the Commission’s determination that the incidence and attributes of a prior felony conviction should be weighed by courts in sentencing a special class of aliens who have unlawfully reentered the United States, and (2) the Commission’s related decision that the methodology best suited to achieving both punishment and deterrence is to consider the relevant aspects of such a conviction in calculating not only the offense level but also the CHC.\nWe have said enough on this score. Since the sentencing scheme that the - Commission has devised for the offense of conviction is plausible as a whole and not inconsistent with statutory law or constitutional precepts, we cannot substitute our judgment for that of the Commission. This means, of course, that we can second-guess neither the Commission’s determination that the offense of unlawful reentry subsequent to perpetrating an aggravated felony is sufficiently more serious than the commission of the same offense while toting less weighty baggage and, thus, warrants greater punishment, nor its allied determination that an alien who, having been deported following a conviction for an aggravated felony, and having exhibited a willingness to flout our laws again by reentering the country without permission, may be more likely to commit serious crimes than an alien who unlawfully reenters this country with no criminal record or with a less sullied record, and, thus, deserves a sentence possessing greater deterrent impact. Cf. e.g., id. at 1015 (explaining that, since the Commission is free to determine the extent to which substantial assistance by a defendant should warrant a downward departure and to fashion an implementing methodology, it is not for the courts to question the wisdom of rational choices made by the Commission in these respects).\nWe hold, therefore, that to the extent the same factor reflects both the seriousness of an offense and the likelihood of a particular defendant’s recidivism, it may be considered twice in sentencing — for the separate purposes of punishment and deterrence — so long as the Commission, expressly or by fair implication, so directs. Cf. United States v. Newman, 982 F.2d 665, 672-75 (1st Cir.1992) (holding double counting to be permissible in a situation where it was expressly authorized by the applicable guideline and helped to effectuate the Sentencing Commission’s “carefully calibrated offense level adjustment scheme”), petition for cert. filed (U.S. Apr. 22, 1993). Because the ruling below falls squarely within this ambit, we reject appellant’s claim of error.\nIll\nAppellant has another string to his bow. Citing United States v. Campos-Martinez, 976 F.2d 589 (9th Cir.1992), he asseverates that, because his prior felony conviction is an element of the crime to which he pled guilty, double counting conflicts with what he terms a “clear policy of the Sentencing Commission to avoid double counting when the specific behavior is an element of the' crime for which the defendant will be sentenced.” Appellant’s Brief at 6. Appellant bases this argument on the combined force of three items: (1) the language of U.S.S.G. § 4A1.2(a)(l) (defining a “prior sentence” for purposes of computing a defendant’s criminal history score as any sentence “for conduct not part of the instant offense”); (2) an introductory comment to Chapter 3, Part D, of the sentencing guidelines (discussing the need for grouping rules “to prevent multiple punishment for substantially identical offense conduct’’); and (3) a multifaceted analogy to several specific instances in which the Commission, having employed an element of the offénse in fixing the base offense level, thereafter chose to eschew any double counting. See, e.g., U.S.S.G. §§ 3A1.1, comment. (n. 2) (discussing vulnerability of victim), 3A1.3, comment, (n. 2) (discussing restraint of victim), 3B1.3 (discussing abuse of special trust), 3C1.1, comment, (n. 6) (discussing'obstruction of justice);' see also United States v: Plaza-Garcia, 914 F.2d 345 (1st Cir.1990) (applying § 3A1.1, comment, (n. 2)).\nPlacing three legs under the asseverational stool does not render it capable of bearing the load that appellant rests on it. The first two arguments can be considered in tandem. As the government points out, both the definition of “prior sentence” and the caveat to the grouping rules focus on the problem of punishing a defendant twice for the same conduct. By like token, the concern expressed by the Sentencing Commission in the introductory comment to Chapter 3, Part D applies to multiple-count indictments — a situation where, prototypically, a defendant’s guilt on several counts may flow from the same underlying conduct. The case at bar presents a materially different set of circumstances. Although Zapata’s prior drug-trafficking conviction may well be an element of the offense stated by 8 U.S.C. § 1326(b)(2), the conduct which resulted in that conviction is clearly separate and distinct from the conduct at issue here. In other words, section 1326(b)(2) does not focus on appellant’s earlier behavior, but on appellant’s status as a previously convicted felon. This distinction completely undermines appellant’s reliance both on U.S.S.G. § 4A1.2(a)(l) and on the introductory comment to the grouping rules. Cf. United States v. Alessandroni 982 F.2d 419, 421, 422 (10th Cir.1992) (upholding, against a similar challenge premised on § 4A1.2(a)(l), the district court’s consideration of a prior burglary conviction in calculating both the base offense level and the CHC applicable to a pending felon-in-possession count).\nThe third leg of the stool is no more sturdy. The instances appellant cites as examples of the Sentencing Commission’s policy against double counting simply do not support the suggested analogy. Those instances, like our decision in Plaza-Garcia, 914 F.2d at 347, do no more than illustrate that a given factor is not to be considered twice in calculating a defendant’s offense level. See, e.g., Jones, 997 F.2d at 969 (distinguishing Plaza-Garcia on this basis). For purposes of this case; we accept the premise that a single factor cannot be double counted in setting a defendant’s offense level. But, such instances are not particularly instructive in examining the different question of whether a single factor (here, a prior conviction) may be considered in connection with both the calculation of a defendant’s offense level and the calculation of his CHC. As we previously indicated, see swpra Part II, we believe that where the guidelines so provide, either expressly or by fair implication, a single factor may serve double duty in that fashion. See Neuman, 982 F.2d at 673 (holding that the Commission’s express prohibition of double counting in certain instances indicates its intent to permit double counting in other instances); United States v. Blakney, 941 F.2d 114, 117 (2d Cir.1991) (allowing consideration of defendant’s prior conviction in connection with both offense level and CHC calculations where the guidelines did not provide to the contrary and the general purposes underlying each usage differed).\nIV\nWe need go no further. We conclude, without serious question, that double counting of the type employed here — using a single factor to influence both the defendant’s offense level and CHC — is permissible. The double counting done in this case is, moreover, faithful to the tenor and purport of the guidelines. It follows that the lower court sentenced appellant in a lawful manner. The judgment below is, therefore, summarily affirmed. See 1st Cir.Loc.R. 27.1.\nAffirmed.\n. These subsections stipulate in the aggregate that any \"alien who ... has been arrested and deported ..., and thereafter ... is ... found in ... the United States [without the express consent of the Attorney General, and] ... whose deportation was subsequent to a conviction for commission of an aggravated felony, ... shall be [punished as provided].”\n. As a matter of general interest, we note that Zapata was sentenced on December 1, 1992; hence, the November, 1992 version of the guidelines applied. See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.1990) (directing that, except where necessary to avoid ex post facto problems, \"a defendant is to be punished in accordance with the guidelines in effect at sentencing\"). Although the district court signalled an intention to use the November, 1991 version of the guidelines, this appears to have been a slip of the tongue. Because the district court’s calculations faithfully track the November, 1992 version, we disregard the lapsus linguae.\n. Adeleke involved an alien found in the United States after he had been deported following an earlier conviction for a garden-variety \"felony.” See 8 U.S.C. § 1326(b)(1). In contrast, the case before us involves 8 U.S.C. § 1326(b)(2), which pertains to an alien convicted of an \"aggravated felony” prior to deportation. Because the only material difference concerns the seriousness of the prior felony conviction, we think that \"(b)(1)” cases, like Adeleke, are relevant authority when a court ponders the permissibility of double counting in a \"(b)(2)” case.\n. U.S.S.G. § 2L1.2(a) establishes a base offense level of 8 for aliens unlawfully entering the United States. The guideline provides a four-level increase for aliens previously deported after conviction for a non-immigration-related, non-aggravated felony, id. at § 2L1.2(b)(1), and a sixteen-level increase if the previous conviction was for an aggravated felony. See id. at § 2L1.2(b)(2). Other aspects of the sentencing scheme, such as how it treats misdemeanors, see id., comment, (n. 1), are not germane for present purposes and, therefore, need not be discussed.\n. At least one district court has concluded that 8 U.S.C. § 1326(a) and (b)(2) describe separate and distinct offenses so that the government \"must allege, as an element of a violation of § 1326(b)(2), the existence of a defendant's prior aggravated felony conviction.” United States v. Vieira-Candelario, 811 F.Supp. 762, 768 (D.R.I.1993). We take no view of this issue.\n[END_CASE]", "role": "user" } ]
10,507,628	UNITED STATES of America, Appellee, v. Joseph BREWSTER, a/k/a Patrick Brewster, Defendant, Appellant	United States v. Brewster	1993-07-28	No. 93-1046	United States Court of Appeals for the First Circuit	{"judges": ["Before SELYA, CYR and STAHL, Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Joseph BREWSTER, a/k/a Patrick Brewster, Defendant, Appellant."], "opinions": [{"text": "SELYA, Circuit Judge.\nAfter selling drugs and a gun to an undercover federal agent, defendant-appellant Joseph Patrick Brewster pled guilty to a two-count indictment charging him with distribution of cocaine, see 21 U.S.C. § 841(a)(1) (1988), and with being a convicted felon in possession of a firearm, see 18 U.S.C. § 922(g) (1988). Brewster appeals from the imposition of sentence, claiming that the district court impermissibly inflated the offense level applicable to the crimes of conviction, and, further, that the' government violated his rights by manipulating a crucial sentencing factor. We affirm.\nI. BACKGROUND\nWe take the relevant facts from the pre-sentence investigation report (PSI Report) and the transcript of the sentencing hearing. See, e.g., United States v. Connell, 960 F.2d 191, 192-93 (1st Cir.1992).\nOver the course of a month, Special Agent Matthew Horace of the federal Bureau of Acohol, Tobacco and Firearms, acting in an undercover capacity, met with appellant several times to discuss the possibility of buying drugs and guns. On June 3, 1992, their discussions came to fruition: Brewster sold Agent Horace a small amount of crack cocaine (for $20), and, within an hour of that transaction, also sold him an automatic weapon (for $100). Soon thereafter, a grand jury returned the indictment that undergirds this appeal.\nOn October 27, 1992, appellant entered a plea of guilty to both counts of the indictment. The government agreed to recommend a prison term at the low end of the guideline sentencing range (GSR), but without representing what the applicable range might be. In accepting Brewster’s plea, the district court (prophetically, as matters turned out) warned appellant that it would be impossible to predict the severity of his sentence until the court examined the PSI Report and computed the GSR.\nIn mid-December, the PSI Report emerged. Based on Agent Horace’s assertion that Brewster sold him the gun with reason to believe that it would be used to protect a drug operation, the probation officer recommended a four-level increase in appellant’s offense level pursuant to U.S.S.G. § 2K2.1(b)(5). Seeking to forfend applieation of the enhancement, appellant propounded a written objection challenging the recommendation’s factual basis. He also requested an evidentiary hearing.\nThe district court granted the latter request, and convened a hearing on January 7, 1993. Appellant claimed that he had been blindsided because the government had not informed him, prior to his entry of a guilty plea, that facts existed sufficient to ground an enhancement under section 2K2.1(b)(5). The judge thereupon offered appellant the opportunity to withdraw his plea. After consulting with counsel, appellant declined the judge’s invitation. The hearing proceeded.\nAgent Horace testified along the lines adumbrated in the PSI Report. He stated, in essence, that he told appellant from the outset both of his aspiration to become a drug dealer and of his need for a weapon to facilitate that nefarious plan. After cross-examining Horace, appellant renewed his objection to the use of Horace’s testimony. The court again proposed that he retract his plea. When appellant demurred, the court overruled his objection. Appellant then testified to his own behoof, denying that he knew of any link between the weapon and Horace’s planned drug trafficking at any time prior to the sale.\nUpon completion of the hearing, the district court made an explicit finding that appellant sold the firearm with knowledge of the buyer’s intended (narcotics-related) use of the weapon. The court applied U.S.S.G. § 2K2.1(b)(5) and sentenced Brewster to a prison term of fifty-one months (the high end of the resultant GSR). This appeal followed.\nII. PROPRIETY OF THE ENHANCEMENT\nAppellant challenges the district court’s deployment of U.S.S.G. § 2K2.1(b)(5) on two principal bases. We find both facets of the challenge to be unpersuasive.\nA. Reliance on Undisclosed Information.\nAppellant argues that a sentencing court cannot rely on evidence not known to a defendant at the time he tenders his plea. We disagree. Absent bad faith — -and the district court found no bad faith in this instance — the critical time for disclosure of sentence-related information is not prior to the taking of a plea, but prior to sentencing. See, e.g., Burns v. United States, — U.S. -, -, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991) (discussing the need for “full adversary testing” of facts relevant to a defendant’s sentence); United States v. Berzon, 941 F.2d 8, 18 (1st Cir.1991) (explaining that a sentencing court may only rely on information in determining a defendant’s sentence if the defendant has been given notice of the information and a fair opportunity to meet it); United States v. Curran, 926 F.2d 59, 63 (1st Cir.1991) (holding that a defendant should be given advance warning of, and an opportunity to challenge, information used to influence severity of sentence); United States v. Picard, 464 F.2d 215, 220 & n. 9 (1st Cir.1972) (requiring that defendant and counsel receive some indication of. the information which may influence the sentencing decision to ensure that the right to speak “in mitigation of punishment” is meaningful); see also Fed.R.Crim.P. 32.\nThe district court scrupulously honored this principle in the ease at hand. The PSI Report discussed all the pertinent information in satisfactory detail. Through that medium, appellant received ample advance warning of Agent Horace’s allegations (the PSI Report was made available to him on December 18, 1992, approximately three weeks before sentencing took place). He had an opportunity to challenge the allegations at an evidentiary hearing. He exercised the opportunity. No more is exigible.\nRelatedly, appellant argues that it was fundamentally unfair to “spring” the information on him only after he had entered a guilty plea. But, although sandbagging is never to be condoned, we see no unfairness here. Appellant was a percipient participant in the negotiations with Horace and, therefore, chargeable with knowledge of what was said. Moreover, the district court repeatedly offered him the opportunity to withdraw his plea after he had read the PSI Report and fully acquainted himself with the adverse information. Having freely elected not to rescind his plea, appellant can scarcely be heard to complain that the timing of the prosecution’s disclosure placed him at an unfair disadvantage.\nB. Sufficiency of the Evidence.\nThe next question concerns the sufficiency of the evidence relied upon by the lower court in applying section 2K2.1(b)(5). Examining a district court’s application of a sentencing guideline calls a bifurcated process into play: the court of appeals reviews the guideline’s legal meaning and scope de novo, see United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992), but reviews the sentencing court’s factbound determinations only to screen out manifestations of clear error. See id.\nAs to meaning and scope, the guideline in question demands a four-level upward adjustment when the sentencing court finds that a defendant transferred a firearm with “knowledge, intent, or reason to believe” that it “would be used or possessed in connection with another felony.” U.S.S.G. § 2K2.1(b)(5). In United States v. Sanders, 990 F.2d 582, 585 (10th Cir.1993), the court, observing the dearth of expository comment anent this guideline, concluded that the Sentencing Commission promulgated section 2K2.1(b)(5) in an “explanatory vacuum” and, therefore, adopted a plain-meaning approach to its interpretation. We follow the Tenth Circuit’s lead. The settled rule that courts should strive to apply the guidelines as written, see Stinson v. United States, — U.S. —, -, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993); United States v. Jones, 997 F.2d 967, 969 (1st Cir.1993), has a necessary corollary: in deciphering the guidelines, words in common usage, not specially defined, should be accorded their ordinary meaning.\nGiving the phrase “in connection with” its ordinary meaning leaves no doubt but that the dispositive issue in this case turns on credibility. If Agent Horace’s recital of the relevant events is accurate, then appellant sold the gun with reason to believe that his customer planned to use it in connection with drug trafficking, and a sufficient nexus exists between the weapon and the drug trafficking to warrant imposition of the enhancement. If, however, Brewster’s account is true, then the existence of an adequate nexus becomes a much more dubious proposition. Since appellant’s sufficiency challenge reduces to the bald assertion that Agent Horace’s inculpatory testimony was not worthy of credence — a question of fact— we limit appellate review to the search for clear error. We discern none.\nThe conflict in the evidence could scarcely be clearer. On one hand, Brewster implored the court below to credit his version of the events — that the only time he heard Agent Horace discuss his intended use for the weapon was in court, and, furthermore, he adds on appeal that even if the agent had boasted of his intentions, no reasonable person would believe the self-aggrandizing pipe-dreams of a person who bought a mere $20 worth of crack cocaine. On the other hand, the prosecution urged the court to believe Agent Horace — who testified that Brewster knew his plans for the weapon from the start of the negotiations, and who buttressed this testimony with notes he had made soon after the fact. The district judge heard and saw the two protagonists. He chose to credit Agent Horace’s version. It was his prerogative — indeed, his duty — to make this sort of evaluative judgment.\nFor all intents and purposes, that ends the matter. In sentencing proceedings, as elsewhere, credibility determinations lie primarily within the realm of the district court. See St. Cyr, 977 F.2d at 706. So it is here. There is no principled basis on which we can overturn the district court’s credibility-based finding of fact. After all, “when there are two plausible views of the record, the sentencing court’s adoption of one such view cannot be clearly erroneous.” Id.\nIII. SENTENCING FACTOR MANIPULATION\nAppellant also contends that, if Agent Horace spoke of his intended use for the firearm at all, he did so only once — and then, at the time of sale, when it was too late to retreat from the deal. The government placed this layer of frosting on the cake, appellant says, for the sole purpose of bringing section 2K2.1(b)(5) into play and, thus, increasing his likely sentence. This boils down to a claim of sentencing factor manipulation. See Connell, 960 F.2d at 194-97 (discussing criteria for potential claims of sentencing factor manipulation).\nWe have previously expressed our concern that, particularly in sting operations, “exploitative manipulation of sentencing factors by government agents [may sometimes] overbear the will of a person predisposed only to committing a lesser crime.” Id. at 196. That is an abiding concern — but it is of only marginal relevance here. The facts, as the district court supportably found them, see supra Part 11(B), belie appellant’s thesis. They do not so much as portray a case where, late in the day, an undercover agent deliberately raised the sentencing stakes in order to obtain a stiffer sentence for a criminal he was poised to arrest. Rather, Agent Horace’s testimony — credited, as we have said, by the district court — makes it abundantly clear that appellant knew of his customer’s proposed use for a weapon from the outset of their negotiations. When, as now, an offense-level enhancement results from a matter that formed part and parcel of the original negotiations between a government agent and his target, and the criminal venture proceeds on that basis, a claim of sentencing factor manipulation will not lie. Accordingly, we reject this prong of Brewster’s appeal.\nIV. CONCLUSION\nWe need go no further. Because it clearly appears that the district court imposed a lawful sentence in a fair, unflawed proceeding, based on findings of fact that derive adequate support from the record, we summarily affirm the judgment below.\nAffirmed. See 1st Cir.Loc.R. 27.1.\n. The guideline provides:\nIf the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by four levels.\nU.S.S.G. § 2K2.1(b)(5) (Nov.1992).\n. To its credit, the government forthrightly conceded that it had not specifically informed appellant of Agent Horace's detailed version of the relevant events at any time prior to, or during, the change-of-plea hearing.\n. We note that, in convening an evidentiary hearing, the district court, solicitous of appellant’s rights and sensitive to his predicament, went the extra mile. Cf., e.g., United States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir.1992) (holding that a defendant is not automatically, or even usually, entitled to a full-blown evidentiary hearing at the time of sentencing); United States v. Shattuck, 961 F.2d 1012, 1014-15 (1st Cir.1992) (similar).\n. To be sure, appellant also argues that, as a matter of law, section 2K2.1(b)(5) does not contemplate enhancing a defendant's sentence based only on the uncorroborated testimony of one person. However, he cites no meaningful authority for this proposition, and it runs counter to all the usual rules that apply in the sentencing phase of a criminal trial. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 91-92 & n. 8, 106 S.Ct. 2411, 2418-19 & n. 8, 91 L.Ed.2d 67 (acknowledging that \"[sjentencing courts have always operated without constitutionally imposed burdens of proof” when considering the level of a defendant's sentence); United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.1992) (stating that \"the sentencing court has broad discretion to determine what data is, or is not, sufficiently dependable to be used in imposing sentence”); U.S.S.G. § 6A1.3 (explaining that, in sentencing, courts may consider any relevant piece of information that possesses \"sufficient indicia of reliability to support its probable accuracy”).\n. Appellant describes the government's alleged activity as sentence entrapment. As we have pointed out, however, such phraseology tends to be misleading. We prefer the term \"sentencing factor manipulation,” which places the focus of judicial inquiry where it belongs — on the government's activity — not on whether the defendant would have committed the crime but for the government's influence. See Connell, 960 F.2d at 194.", "type": "majority", "author": "SELYA, Circuit Judge."}], "attorneys": ["Richard K. Corley, Providence, RI, on brief, for appellant.", "Edwin J. Gale, U.S. Atty., and Gerard B. Sullivan, Asst. U.S. Atty., Providence, RI, on brief, for U.S."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Joseph BREWSTER, a/k/a Patrick Brewster, Defendant, Appellant.\nNo. 93-1046.\nUnited States Court of Appeals, First Circuit.\nSubmitted June 9, 1993.\nDecided July 28, 1993.\nRichard K. Corley, Providence, RI, on brief, for appellant.\nEdwin J. Gale, U.S. Atty., and Gerard B. Sullivan, Asst. U.S. Atty., Providence, RI, on brief, for U.S.\nBefore SELYA, CYR and STAHL, Circuit Judges."}	SELYA	CYR	STAHL	1	1	1	0	0	0	1 F.3d 51	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Joseph BREWSTER, a/k/a Patrick Brewster, Defendant, Appellant\nCourt: United States Court of Appeals for the First Circuit\nDate decided: 1993-07-28\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nSELYA, Circuit Judge.\nAfter selling drugs and a gun to an undercover federal agent, defendant-appellant Joseph Patrick Brewster pled guilty to a two-count indictment charging him with distribution of cocaine, see 21 U.S.C. § 841(a)(1) (1988), and with being a convicted felon in possession of a firearm, see 18 U.S.C. § 922(g) (1988). Brewster appeals from the imposition of sentence, claiming that the district court impermissibly inflated the offense level applicable to the crimes of conviction, and, further, that the' government violated his rights by manipulating a crucial sentencing factor. We affirm.\nI. BACKGROUND\nWe take the relevant facts from the pre-sentence investigation report (PSI Report) and the transcript of the sentencing hearing. See, e.g., United States v. Connell, 960 F.2d 191, 192-93 (1st Cir.1992).\nOver the course of a month, Special Agent Matthew Horace of the federal Bureau of Acohol, Tobacco and Firearms, acting in an undercover capacity, met with appellant several times to discuss the possibility of buying drugs and guns. On June 3, 1992, their discussions came to fruition: Brewster sold Agent Horace a small amount of crack cocaine (for $20), and, within an hour of that transaction, also sold him an automatic weapon (for $100). Soon thereafter, a grand jury returned the indictment that undergirds this appeal.\nOn October 27, 1992, appellant entered a plea of guilty to both counts of the indictment. The government agreed to recommend a prison term at the low end of the guideline sentencing range (GSR), but without representing what the applicable range might be. In accepting Brewster’s plea, the district court (prophetically, as matters turned out) warned appellant that it would be impossible to predict the severity of his sentence until the court examined the PSI Report and computed the GSR.\nIn mid-December, the PSI Report emerged. Based on Agent Horace’s assertion that Brewster sold him the gun with reason to believe that it would be used to protect a drug operation, the probation officer recommended a four-level increase in appellant’s offense level pursuant to U.S.S.G. § 2K2.1(b)(5). Seeking to forfend applieation of the enhancement, appellant propounded a written objection challenging the recommendation’s factual basis. He also requested an evidentiary hearing.\nThe district court granted the latter request, and convened a hearing on January 7, 1993. Appellant claimed that he had been blindsided because the government had not informed him, prior to his entry of a guilty plea, that facts existed sufficient to ground an enhancement under section 2K2.1(b)(5). The judge thereupon offered appellant the opportunity to withdraw his plea. After consulting with counsel, appellant declined the judge’s invitation. The hearing proceeded.\nAgent Horace testified along the lines adumbrated in the PSI Report. He stated, in essence, that he told appellant from the outset both of his aspiration to become a drug dealer and of his need for a weapon to facilitate that nefarious plan. After cross-examining Horace, appellant renewed his objection to the use of Horace’s testimony. The court again proposed that he retract his plea. When appellant demurred, the court overruled his objection. Appellant then testified to his own behoof, denying that he knew of any link between the weapon and Horace’s planned drug trafficking at any time prior to the sale.\nUpon completion of the hearing, the district court made an explicit finding that appellant sold the firearm with knowledge of the buyer’s intended (narcotics-related) use of the weapon. The court applied U.S.S.G. § 2K2.1(b)(5) and sentenced Brewster to a prison term of fifty-one months (the high end of the resultant GSR). This appeal followed.\nII. PROPRIETY OF THE ENHANCEMENT\nAppellant challenges the district court’s deployment of U.S.S.G. § 2K2.1(b)(5) on two principal bases. We find both facets of the challenge to be unpersuasive.\nA. Reliance on Undisclosed Information.\nAppellant argues that a sentencing court cannot rely on evidence not known to a defendant at the time he tenders his plea. We disagree. Absent bad faith — -and the district court found no bad faith in this instance — the critical time for disclosure of sentence-related information is not prior to the taking of a plea, but prior to sentencing. See, e.g., Burns v. United States, — U.S. -, -, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991) (discussing the need for “full adversary testing” of facts relevant to a defendant’s sentence); United States v. Berzon, 941 F.2d 8, 18 (1st Cir.1991) (explaining that a sentencing court may only rely on information in determining a defendant’s sentence if the defendant has been given notice of the information and a fair opportunity to meet it); United States v. Curran, 926 F.2d 59, 63 (1st Cir.1991) (holding that a defendant should be given advance warning of, and an opportunity to challenge, information used to influence severity of sentence); United States v. Picard, 464 F.2d 215, 220 & n. 9 (1st Cir.1972) (requiring that defendant and counsel receive some indication of. the information which may influence the sentencing decision to ensure that the right to speak “in mitigation of punishment” is meaningful); see also Fed.R.Crim.P. 32.\nThe district court scrupulously honored this principle in the ease at hand. The PSI Report discussed all the pertinent information in satisfactory detail. Through that medium, appellant received ample advance warning of Agent Horace’s allegations (the PSI Report was made available to him on December 18, 1992, approximately three weeks before sentencing took place). He had an opportunity to challenge the allegations at an evidentiary hearing. He exercised the opportunity. No more is exigible.\nRelatedly, appellant argues that it was fundamentally unfair to “spring” the information on him only after he had entered a guilty plea. But, although sandbagging is never to be condoned, we see no unfairness here. Appellant was a percipient participant in the negotiations with Horace and, therefore, chargeable with knowledge of what was said. Moreover, the district court repeatedly offered him the opportunity to withdraw his plea after he had read the PSI Report and fully acquainted himself with the adverse information. Having freely elected not to rescind his plea, appellant can scarcely be heard to complain that the timing of the prosecution’s disclosure placed him at an unfair disadvantage.\nB. Sufficiency of the Evidence.\nThe next question concerns the sufficiency of the evidence relied upon by the lower court in applying section 2K2.1(b)(5). Examining a district court’s application of a sentencing guideline calls a bifurcated process into play: the court of appeals reviews the guideline’s legal meaning and scope de novo, see United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992), but reviews the sentencing court’s factbound determinations only to screen out manifestations of clear error. See id.\nAs to meaning and scope, the guideline in question demands a four-level upward adjustment when the sentencing court finds that a defendant transferred a firearm with “knowledge, intent, or reason to believe” that it “would be used or possessed in connection with another felony.” U.S.S.G. § 2K2.1(b)(5). In United States v. Sanders, 990 F.2d 582, 585 (10th Cir.1993), the court, observing the dearth of expository comment anent this guideline, concluded that the Sentencing Commission promulgated section 2K2.1(b)(5) in an “explanatory vacuum” and, therefore, adopted a plain-meaning approach to its interpretation. We follow the Tenth Circuit’s lead. The settled rule that courts should strive to apply the guidelines as written, see Stinson v. United States, — U.S. —, -, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993); United States v. Jones, 997 F.2d 967, 969 (1st Cir.1993), has a necessary corollary: in deciphering the guidelines, words in common usage, not specially defined, should be accorded their ordinary meaning.\nGiving the phrase “in connection with” its ordinary meaning leaves no doubt but that the dispositive issue in this case turns on credibility. If Agent Horace’s recital of the relevant events is accurate, then appellant sold the gun with reason to believe that his customer planned to use it in connection with drug trafficking, and a sufficient nexus exists between the weapon and the drug trafficking to warrant imposition of the enhancement. If, however, Brewster’s account is true, then the existence of an adequate nexus becomes a much more dubious proposition. Since appellant’s sufficiency challenge reduces to the bald assertion that Agent Horace’s inculpatory testimony was not worthy of credence — a question of fact— we limit appellate review to the search for clear error. We discern none.\nThe conflict in the evidence could scarcely be clearer. On one hand, Brewster implored the court below to credit his version of the events — that the only time he heard Agent Horace discuss his intended use for the weapon was in court, and, furthermore, he adds on appeal that even if the agent had boasted of his intentions, no reasonable person would believe the self-aggrandizing pipe-dreams of a person who bought a mere $20 worth of crack cocaine. On the other hand, the prosecution urged the court to believe Agent Horace — who testified that Brewster knew his plans for the weapon from the start of the negotiations, and who buttressed this testimony with notes he had made soon after the fact. The district judge heard and saw the two protagonists. He chose to credit Agent Horace’s version. It was his prerogative — indeed, his duty — to make this sort of evaluative judgment.\nFor all intents and purposes, that ends the matter. In sentencing proceedings, as elsewhere, credibility determinations lie primarily within the realm of the district court. See St. Cyr, 977 F.2d at 706. So it is here. There is no principled basis on which we can overturn the district court’s credibility-based finding of fact. After all, “when there are two plausible views of the record, the sentencing court’s adoption of one such view cannot be clearly erroneous.” Id.\nIII. SENTENCING FACTOR MANIPULATION\nAppellant also contends that, if Agent Horace spoke of his intended use for the firearm at all, he did so only once — and then, at the time of sale, when it was too late to retreat from the deal. The government placed this layer of frosting on the cake, appellant says, for the sole purpose of bringing section 2K2.1(b)(5) into play and, thus, increasing his likely sentence. This boils down to a claim of sentencing factor manipulation. See Connell, 960 F.2d at 194-97 (discussing criteria for potential claims of sentencing factor manipulation).\nWe have previously expressed our concern that, particularly in sting operations, “exploitative manipulation of sentencing factors by government agents [may sometimes] overbear the will of a person predisposed only to committing a lesser crime.” Id. at 196. That is an abiding concern — but it is of only marginal relevance here. The facts, as the district court supportably found them, see supra Part 11(B), belie appellant’s thesis. They do not so much as portray a case where, late in the day, an undercover agent deliberately raised the sentencing stakes in order to obtain a stiffer sentence for a criminal he was poised to arrest. Rather, Agent Horace’s testimony — credited, as we have said, by the district court — makes it abundantly clear that appellant knew of his customer’s proposed use for a weapon from the outset of their negotiations. When, as now, an offense-level enhancement results from a matter that formed part and parcel of the original negotiations between a government agent and his target, and the criminal venture proceeds on that basis, a claim of sentencing factor manipulation will not lie. Accordingly, we reject this prong of Brewster’s appeal.\nIV. CONCLUSION\nWe need go no further. Because it clearly appears that the district court imposed a lawful sentence in a fair, unflawed proceeding, based on findings of fact that derive adequate support from the record, we summarily affirm the judgment below.\nAffirmed. See 1st Cir.Loc.R. 27.1.\n. The guideline provides:\nIf the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by four levels.\nU.S.S.G. § 2K2.1(b)(5) (Nov.1992).\n. To its credit, the government forthrightly conceded that it had not specifically informed appellant of Agent Horace's detailed version of the relevant events at any time prior to, or during, the change-of-plea hearing.\n. We note that, in convening an evidentiary hearing, the district court, solicitous of appellant’s rights and sensitive to his predicament, went the extra mile. Cf., e.g., United States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir.1992) (holding that a defendant is not automatically, or even usually, entitled to a full-blown evidentiary hearing at the time of sentencing); United States v. Shattuck, 961 F.2d 1012, 1014-15 (1st Cir.1992) (similar).\n. To be sure, appellant also argues that, as a matter of law, section 2K2.1(b)(5) does not contemplate enhancing a defendant's sentence based only on the uncorroborated testimony of one person. However, he cites no meaningful authority for this proposition, and it runs counter to all the usual rules that apply in the sentencing phase of a criminal trial. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 91-92 & n. 8, 106 S.Ct. 2411, 2418-19 & n. 8, 91 L.Ed.2d 67 (acknowledging that \"[sjentencing courts have always operated without constitutionally imposed burdens of proof” when considering the level of a defendant's sentence); United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.1992) (stating that \"the sentencing court has broad discretion to determine what data is, or is not, sufficiently dependable to be used in imposing sentence”); U.S.S.G. § 6A1.3 (explaining that, in sentencing, courts may consider any relevant piece of information that possesses \"sufficient indicia of reliability to support its probable accuracy”).\n. Appellant describes the government's alleged activity as sentence entrapment. As we have pointed out, however, such phraseology tends to be misleading. We prefer the term \"sentencing factor manipulation,” which places the focus of judicial inquiry where it belongs — on the government's activity — not on whether the defendant would have committed the crime but for the government's influence. See Connell, 960 F.2d at 194.\n[END_CASE]", "role": "user" } ]
10,507,706	Joseph DOW, et al., Plaintiffs, Appellants, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et al., Defendants, Appellees	Dow v. United Brotherhood of Carpenters & Joiners of America	1993-07-28	No. 93-1127	United States Court of Appeals for the First Circuit	{"judges": ["Before TORRUELLA, SELYA and BOUDIN, Circuit Judges."], "parties": ["Joseph DOW, et al., Plaintiffs, Appellants, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et al., Defendants, Appellees."], "opinions": [{"text": "SELYA, Circuit Judge.\nThis appeal pivots on the meaning and applicability of two documents concerning the internal governance of a labor union, Local No. 218 (“the Local”): the constitution of its umbrella union, the United Brotherhood of Carpenters and Joiners (“the International” or “UBCJA”) and the by-laws of Local 218 itself. Much to the dismay of two dissident members of the Local, the district court deferred to the International’s construction of the texts and entered judgment accordingly. We affirm.\nI\nBackground\nLocal No. 218 is affiliated with, and subject to the direction of, the International. The latter’s constitution and the Local’s by-laws both speak to the manner in which mid-term vacancies in leadership positions on the local level are to be filled. The constitution states that:\n[wjhen vacancies occur in any elective office or in the position of Business Representative, the President may appoint a qualified member to fill the'vacancy protein, until such time as appropriate notices are sent to the membership for the holding of an election to fill the vacancy.\nUBCJA Const., § 32(B). Yet, with regard to the position of Business Manager/Finaneial Secretary (“Manager”), the Local’s by-laws provide that, if a vacancy occurs:\nthe Business Representative shall assume the duties of the Business Manager/Finan-eial Secretary and shall appoint a Business Representative.\nBy-Laws of Local No. 218, art. II, § 1(A).\nIn 1992, the latent tension between these two provisions surfaced. The incumbent Manager resigned. The Local’s President, Joseph Dow, appointed himself to fill the vacancy on a temporary basis and called for an election pursuant to section 32(B) of UBCJA’s constitution. Dow viewed the provisions we have quoted as conflicting and reasoned that the constitution trumped the by-law provision for automatic succession.\nThe International resisted Dow’s attempt to grab the reins of power. Its president, Sigurd Lucassen, directed Dow to give effect to the by-law provision by allowing the Business Representative, Robert Cataldo, to succeed to the Manager’s post. Lucassen found no conflict between the two instruments of governance; the by-law provision simply mandates automatic succession to fill a particular vacancy while section 32(B) of the constitution specifies a procedure for filling vacancies when no other mechanism has been provided. Because the by-law provision op- ■ erated ex proprio vigore to fill the Manager’s position simultaneously with the incumbent’s resignation, it prevented a vacancy from occurring and eliminated any need for resort to the constitutional provision. It was on this understanding, Lucassen intimated, that the International approved the inclusion of article II, section 1(A) in Local 218’s by-laws.\nLittle placated, Dow and a fellow union member, Robert Renda, sued in federal district court, premising their action on section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185 (1988), and section 101(a)(1) of the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 411 (1988). The plaintiffs named the International, the District Council of Carpenters, and Local 218 as defendants. They sought to compel recognition of Dow’s status as Manager pro tem and to precipitate an election to fill the balance of the unexpired term. On cross motions for summary judgment, the district court gave controlling weight to the International’s interpretation of the governing documents and entered judgment for the defendants. 810 F.Supp. 23, This appeal ensued.\nII\nAnalysis\nA.\nSummary judgment is appropriate when the record documents that possess evidentia-ry force “show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). The mechanics of Rule 56 are familiar: once the moving party avers “an absence of evidence to support the nonmoving party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the burden of production shifts to the nonmovant. To. defeat a properly focused motion, the nonmovant must tender “significant probative evidence,” First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968), which, when viewed in the light most flattering to the nonmovant, illumines a genuine and material factual dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990); Garside v. Oseo Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). While'the required proof need not necessarily rise to the level of admissible trial evidence, see Celotex, 477 U.S. at 324, 106 S.Ct. at 2553, it must consist of something more than “conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Munoz, 896 F.2d at 8; accord Fragoso v. Lopez, 991 F.2d 878, 886 (1st Cir.1993); Kelly v. United States, 924 F.2d 355, 357 (1st Cir.1991). Brash conjecture, coupled with earnest hope that something concrete will eventually materialize, is insufficient to block summary judgment.\nThis appeal implicates a specialized application of Rule 56. It is common ground that a labor union’s internal affairs comprise an enclave best kept free from judicial intrusion. See Local No. 48 v. United Bhd. of Carpenters & Joiners, 920 F.2d 1047, 1051 (1st Cir.1990); Howard v. United Ass’n of Journeymen & Apprentices, Local # 131, 560 F.2d 17, 21 (1st Cir.1977). Thus, the scope of judicial inquiry is narrowly circumscribed in such cases. And, moreover, the resultant circumscription is . particularly stringent when, as now, a labor organization’s interpretation of its own constitution is singularly at issue. See Local No. 48, 920 F.2d at 1052.\nB.\nIn Local No. 48, a case construing the very union constitution that is at issue here, this court concluded that a general union’s interpretation of its own governance documents will ordinarily be upheld “unless that interpretation is patently unreasonable.” Id. On that basis, we refused to second-guess the International when it advanced a “plausible” reading of its constitution. Id. At bottom, then, Local No. 48 stands for the proposition that, in the absence of bad faith, a labor organization’s interpretation of internal union documents puts an end to judicial scrutiny so long as the interpretation is “facially sufficient” or grounded in “ ‘arguable authority.’ ” Id. (citation omitted); accord Newell v. International Bhd. of Elec. Workers, 789 F.2d 1186, 1189 (5th Cir.1986); Local 334, United Ass’n of Journeymen & Apprentices v. United Ass’n of Journeymen & Apprentices, 669 F.2d 129, 131 (3d Cir.1982); Stelling v. International Bhd. of Elec. Workers, Local Union No. 1517, 587 F.2d 1379, 1389 n. 10 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979).\nThis black letter law simplifies our task. We afford plenary review to the entry of summary judgment below. See Garside, 895 F.2d at 48. To do so here, we need only determine whether the International’s synthesis of the juxtaposed documents, i.e., its view that section 32(B) of the constitution leaves room for, and can comfortably operate side by side with, a by-law provision mandating automatic succession to a particular post, is “so implausible or patently unreasonable as to be undeserving of deference.” Local No. 48, 920 F.2d at 1052.\nc.\nWe turn now to the record, first examining the relevant texts. On one hand, the constitution, quoted supra p. 57, states that when “vacancies occur in any elective office,” the president of the local “may” appoint a replacement to serve until an election is held. On the other hand, the by-laws, see supra p. 57, state that “the Business Representative shall assume the duties of the [Manager]” if a “vacancy [in that position] occurs.” While these provisions can assuredly be read to conflict—and if they clash, the constitutional provision prevails, see UBCJA Const., §§ 6(C), 25(A)—a harmonious reading of them is hardly implausible. We think it is significant that the constitution uses precatory rather than mandatory language. The permissive “may” contained in the constitution, as opposed to the directory “shall” contained in the by-law, signals that a temporary, presidential appointment and subsequent election is but one available method for filling vacancies, impliedly suggesting that other, equally satisfactory methods can be employed. Accord La Joie v. Bay Counties Dist. Council, 143 L.R.R.M. (BNA) 2547, 2549 (N.D.Cal.1990) (refusing, for this reason, to find a conflict between the identical constitutional provision and the by-laws of a different local). On this (entirely plausible) reading, automatic succession is a permissible method of selection. Hence, there is ample textual support for the International’s conclusion that the constitution’s words are inapplicable here because a new Manager has already been designated—that is, the vacancy has already been filled—through an authorized alternative process.\n[3,4] Dow contends that in determining whether the International proffered an interpretation worthy of deference, a reviewing court must not examine the letter of the texts in majestic isolation, but must read them in conjunction with available extrinsic evidence of past union interpretations and practices. We agree that “track record” evidence may often be illuminating and should be considered. After all, evidence that a union deeision follows established custom might serve to strengthen the decision’s inherent reasonableness and, by like token, evidence that a union decision constitutes a radical break from uniform past practice might undermine its seeming plausibility. Cf. Local No. 48, 920 F.2d at 1052 (citing the context “of an ongoing consolidation process” as one indici-um of the reasonableness of the union’s authorization of a merger). Here, however, the summary judgment record is barren of any evidence sufficient to support an inference that the International’s present reading of the constitution is newly contrived or inconsistent with past practice.\nTo be sure, appellant tried to plug this hole. His failed efforts center around three sworn statements signed by John S. Rogers, once a high-ranking officer of the International. Appellant tells us that these affidavits evidence a tradition of requiring elections to fill mid-term vacancies in the face of conflicting local by-laws. He is wrong. To the extent that the affidavits touch upon matters germane to this- appeal, they are much too vague to forestall summary judgment.\nAppellant places greatest emphasis on Rogers’s repeated statements that it has “always” been UBCJA’s practice to conduct elections to fill mid-term vacancies. In context, however, this assertion constitutes no more than an empty generality. A purely eonclusory statement of this sort is manifestly insufficient to-support an inference of inconsistent past practice without an accompanying suggestion—nowhere to be found— that such a vacancy has ever before occurred in a local that had adopted an automatic succession rule. See Local No. k-8, 920 F.2d at 1051 (explaining that unsubstantiated conclusions are inadequate to block summary judgment); Oliver v. Digital Equip.. Corp., 846 F.2d 103, 109 (1st Cir.1988) (refusing to allow “unsubstantiated allegations” to defeat summary judgment). In the same vein, Rogers’s general statement that “the Brotherhood and its local unions” have deemed a resignation to create “a vacancy ... regardless of whether or not the applicable Constitution or By-Laws contained a successorship provision” is devoid of significance absent an indication — nowhere to be found — that a particular incident actually occurred and that Rogers possesses some knowledge about it. See Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510 (stating that, in the summary judgment context, suggested inferences must be supported by “specific facts”); Medina-Munoz, 896 F.2d at 9 (terming plaintiffs attempted application of a conclusion to a different factual predicate “too large a leap”). In light of these gaps, the Rogers affidavits, carefully read, do not contradict UBCJA’s sworn averment that, at least within the past five years, the International has never ordered a local operating under an approved automatic succession procedure to hold an election to fill a vacancy. Indeed, since the record demonstrates that the International has approved a number of local union by-law provisions incorporating automatic succession regimes, including the provision at issue here, the record virtually compels the inference that UBCJA’s present construction of the juxtaposed instruments of governance is consistent with its past practice.\nIn short, appellant’s “past practice” proffer represents yet another situation where a court considering a motion for summary judgment “cannot accept, in lieu of documented facts, conelusory assertions.” Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.1991). Consequently, we hold that appellant failed to raise a genuine question regarding past practice that would bear on the reasonableness of the International’s textual construction.\nWe have said enough. While the International’s take on the written provisions may not be the only possible one, or even the most natural one, it is well within the universe of acceptable interpretations. Because plausibility is all that is required in a situation of this kind, the lower court appropriately granted summary judgment on the existing record.\nIll\nCurtailment of Discovery\nAppellant’s fail-back position is that the judgment below must be vacated because the district court unduly curtailed discovery prior to deciding the summary judgment motions. See generally Celotex, 477 U.S. at 322, 106 S.Ct. at 2552 (recognizing the requirement of “adequate time for discovery”); Fed. R.Civ.P. 56(f) (authorizing continuances so that a nonmovant, upon a proper showing, may gather “facts essential to justify [an] opposition” to summary judgment). The argument is cast in disingenuous terms and distorts the nature of the district court’s discovery ruling.\nEarly in the proceeding, the district court heard a cacophony of sounds on the issue of discovery: on one flank, the International urged a stay of discovery; on the opposite flank, Dow sought to expedite discovery and widen its scope. Confronted with cross motions for summary judgment that might be susceptible to resolution on the submitted papers, and anticipating that oral argument on the cross motions would take place on January 12, 1993, the district court, in a ruling from the bench, halted discovery on December 18, 1992. The court, however, dropped an anchor to windward: since the full panoply of papers regarding the motions had not yet been filed, the judge invited Dow to request a continuance for the purpose of conducting discovery at the hearing on summary judgment if, by then, Dow still believed that he could not adequately argue the cross motions without such discovery. Hence, notwithstanding appellant’s current caterwauling about a categorical ban on discovery, the court’s ore terms order was plainly an interim measure, likely extinguishable for the asking.\nAlthough Dow held the key to discovery, he neglected to unlock the door. The January 12 hearing came and went without any semblance of a renewed request to conduct discovery. Nowhere did appellant ask, even as a form of alternative relief, that a decision on summary judgment be postponed until further discovery could be obtained. Rather, he chose to shelve the quest for discovery and dive head-first into the summary judgment maelstrom.\nThe rule in this circuit is clear that, when a court temporizes or otherwise defers a ruling on a discovery request, and the proponent thereafter fails to resurrect the issue in a timely fashion, he is deemed to have abandoned the point and cannot later complain on appeal concerning a denial of the discovery in question. See DesRosiers v. Moran, 949 F.2d 15, 22-23 (1st Cir.1991). As we have said, “a party who seeks a ruling must persist in his quest to some reasonable extent.” Id. at 23.\nHaving flouted this rule, Dow finds himself mired in a pit similar to that which the government dug for itself in Reilly v. United States, 863 F.2d 149 (1st Cir.1988). There, the government moved for additional discovery at a pre-trial hearing before a magistrate judge. In denying the motion, the magistrate told the government that it might mull the matter for a few days and renew the request in a more specific form. A follow-up request never came. On appeal, the government attempted to press an objection to the denial of discovery. We overruled the objection, holding that the government had an obligation “to specify, face-up and squarely, what information it continued to seek.” Id. at 168. By not resurfacing the point, despite an express invitation to do so, it “waived the right to protest the denial of’ discovery. Id. The same result must obtain here. The district court voiced a clear invitation to seek discovery anew. Dow eschewed it. He cannot now “legitimately complain of lack of access to [discovery which he] never seasonably requested.” Id. at 167. This is as it should be; any other outcome would squander judicial resources and give parties who, like Dow, plunge headlong into the merits of a case without pausing to exhaust discovery options a second bite at the cherry. In the last analysis, “[c]ourts, like the Deity, are most frequently moved to help those who help themselves.” Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir.1988); see also Hebert v. Wicklund, 744 F.2d 218, 222 (1st Cir.1984) (refusing to “employ [Rule 56(f) ] to spare litigants from their own lack of diligence”).\nIV\nConclusion\nWe need go no further. By failing to renew his request for discovery at the appropriate time, Dow waived any objection to the district court’s decision to resolve the summary judgment motions on the existing record. And, because the International’s reconciliation of the arguable conflict between its constitution and the Local’s by-laws is plausible in terms of that record, the entry of summary judgment in defendants’ favor must stand.\nAffirmed.\n. Inasmuch as the Manager’s position is the brightest and most coveted star in a local union’s administrative firmament, the struggle over succession takes on added significance.\n. Section 32(B) of the constitution was in effect when the International approved the Local’s bylaws. Absent such approval, the by-laws could not have taken effect.\n.For ease in reference, we discuss the issues as if Dow and the International were the sole parties in interest.\n. Here, Dow adduced no evidence that the International formulated its interpretation in bad faith. What is more, he has not asserted a claim of bad faith on appeal.\n. We believe it is noteworthy that the United States Department of Labor’s regulations implementing the LMRDA expressly authorize \"automatic succession” to fill mid-term vacancies. 29 C.F.R. § 452.25 (1992).-\n. The shortcomings in the Rogers's affidavits are all the more striking because appellant extracted not one, but three, successive affidavits from Rogers, over a period spanning three and one-half months. The latest of these was executed a mere three days before the hearing on summary judgment. Since Dow thrice went to the well in an effort to secure supplemental information, we think it fair to assume that everything that could be said was in fact said.\n. We reject out of hand appellant’s claim that two other factual disputes sufficient to defeat UBCJA’s motion for summary judgment lurk in the record. First, pointing to the absence, as of September 9, 1992, of documentary proof anent Cataldo's appointment as Business Representative, appellant speculates that Cataldo was not duly appointed and, therefore, could not succeed to the Manager's position pursuant to the bylaws. The speculation does not hold water: a nonmovant cannot defeat a motion for summary judgment solely by asserting that the movant has not adduced, or explained its failure to adduce, the best possible proof of a material point. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 182 (1st Cir.1989). The second dispute concerns whether Cataldo, in violation of the constitution, assumed the Manager's position before resigning as Local 218's Recording Secretary. Because it is uncontradicted that Cataldo no longer held the latter position by October 7, 1992, at the latest, we, like the district court, deem the exact date of his resignation to be immaterial.\n. Various exchanges at the December 18 hearing tell the tale. We offer a few representative vignettes. The judge advised appellant’s counsel that if the UBCJA \"file[s] something of a factual nature, and you need something to rebut, then I would move [on January 12] for discovery.” The judge later reiterated the point, stating that once the paperwork is complete, “you [appellant's attorney] can see whether you need any discovery. If, for some reason, on the 12th you come in here and say, I can’t argue the motion because there. is a particular document or a factual allegation that has been made and I need to look at one particular thing, maybe I would do it.”\n. Appellant’s suggestion that he revived his discovery request at the January 12 hearing is, at best, wishful thinking. His counsel’s oral argument contained only a fleeting reference to appellant’s past inability to conduct discovery as he would have preferred. His suggestion that he renewed the request in a supplemental memorandum filed in connection with the hearing is equally jejune. The memorandum, directed primarily toward an entirely different matter, contained a solitary sentence more obfuscatory than illuminative, concerning \"legitimate and necessary outstanding requests for discovery.” These constitute no more than veiled references which, without more, cannot take the place of an affirmative request to conduct further discovery. Cf. Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir.1988) (holding that-oral and written statements “complaining about [a] stay of discovery,” coupled with \"cryptic allusions,\" are \"entirely inadequate” to support a Rule 56(f) motion).", "type": "majority", "author": "SELYA, Circuit Judge."}], "attorneys": ["Paul Alan Levy, Washington, DC, with whom Mark D. Stern and Public Citizen Litigation Group, Somerville, MA, were on brief, for plaintiffs, appellants.", "Christopher N. Souris, with whom Fein-berg, Chamas & Schwartz, Boston, MA, was on brief, for defendants, appellees."], "corrections": "", "head_matter": "Joseph DOW, et al., Plaintiffs, Appellants, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et al., Defendants, Appellees.\nNo. 93-1127.\nUnited States Court of Appeals, First Circuit.\nHeard June 8, 1993.\nDecided July 28, 1993.\nPaul Alan Levy, Washington, DC, with whom Mark D. Stern and Public Citizen Litigation Group, Somerville, MA, were on brief, for plaintiffs, appellants.\nChristopher N. Souris, with whom Fein-berg, Chamas & Schwartz, Boston, MA, was on brief, for defendants, appellees.\nBefore TORRUELLA, SELYA and BOUDIN, Circuit Judges."}	TORRUELLA	SELYA	BOUDIN	1	1	1	0	0	0	1 F.3d 56	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Joseph DOW, et al., Plaintiffs, Appellants, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et al., Defendants, Appellees\nCourt: United States Court of Appeals for the First Circuit\nDate decided: 1993-07-28\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nSELYA, Circuit Judge.\nThis appeal pivots on the meaning and applicability of two documents concerning the internal governance of a labor union, Local No. 218 (“the Local”): the constitution of its umbrella union, the United Brotherhood of Carpenters and Joiners (“the International” or “UBCJA”) and the by-laws of Local 218 itself. Much to the dismay of two dissident members of the Local, the district court deferred to the International’s construction of the texts and entered judgment accordingly. We affirm.\nI\nBackground\nLocal No. 218 is affiliated with, and subject to the direction of, the International. The latter’s constitution and the Local’s by-laws both speak to the manner in which mid-term vacancies in leadership positions on the local level are to be filled. The constitution states that:\n[wjhen vacancies occur in any elective office or in the position of Business Representative, the President may appoint a qualified member to fill the'vacancy protein, until such time as appropriate notices are sent to the membership for the holding of an election to fill the vacancy.\nUBCJA Const., § 32(B). Yet, with regard to the position of Business Manager/Finaneial Secretary (“Manager”), the Local’s by-laws provide that, if a vacancy occurs:\nthe Business Representative shall assume the duties of the Business Manager/Finan-eial Secretary and shall appoint a Business Representative.\nBy-Laws of Local No. 218, art. II, § 1(A).\nIn 1992, the latent tension between these two provisions surfaced. The incumbent Manager resigned. The Local’s President, Joseph Dow, appointed himself to fill the vacancy on a temporary basis and called for an election pursuant to section 32(B) of UBCJA’s constitution. Dow viewed the provisions we have quoted as conflicting and reasoned that the constitution trumped the by-law provision for automatic succession.\nThe International resisted Dow’s attempt to grab the reins of power. Its president, Sigurd Lucassen, directed Dow to give effect to the by-law provision by allowing the Business Representative, Robert Cataldo, to succeed to the Manager’s post. Lucassen found no conflict between the two instruments of governance; the by-law provision simply mandates automatic succession to fill a particular vacancy while section 32(B) of the constitution specifies a procedure for filling vacancies when no other mechanism has been provided. Because the by-law provision op- ■ erated ex proprio vigore to fill the Manager’s position simultaneously with the incumbent’s resignation, it prevented a vacancy from occurring and eliminated any need for resort to the constitutional provision. It was on this understanding, Lucassen intimated, that the International approved the inclusion of article II, section 1(A) in Local 218’s by-laws.\nLittle placated, Dow and a fellow union member, Robert Renda, sued in federal district court, premising their action on section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185 (1988), and section 101(a)(1) of the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 411 (1988). The plaintiffs named the International, the District Council of Carpenters, and Local 218 as defendants. They sought to compel recognition of Dow’s status as Manager pro tem and to precipitate an election to fill the balance of the unexpired term. On cross motions for summary judgment, the district court gave controlling weight to the International’s interpretation of the governing documents and entered judgment for the defendants. 810 F.Supp. 23, This appeal ensued.\nII\nAnalysis\nA.\nSummary judgment is appropriate when the record documents that possess evidentia-ry force “show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). The mechanics of Rule 56 are familiar: once the moving party avers “an absence of evidence to support the nonmoving party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the burden of production shifts to the nonmovant. To. defeat a properly focused motion, the nonmovant must tender “significant probative evidence,” First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968), which, when viewed in the light most flattering to the nonmovant, illumines a genuine and material factual dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990); Garside v. Oseo Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). While'the required proof need not necessarily rise to the level of admissible trial evidence, see Celotex, 477 U.S. at 324, 106 S.Ct. at 2553, it must consist of something more than “conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Munoz, 896 F.2d at 8; accord Fragoso v. Lopez, 991 F.2d 878, 886 (1st Cir.1993); Kelly v. United States, 924 F.2d 355, 357 (1st Cir.1991). Brash conjecture, coupled with earnest hope that something concrete will eventually materialize, is insufficient to block summary judgment.\nThis appeal implicates a specialized application of Rule 56. It is common ground that a labor union’s internal affairs comprise an enclave best kept free from judicial intrusion. See Local No. 48 v. United Bhd. of Carpenters & Joiners, 920 F.2d 1047, 1051 (1st Cir.1990); Howard v. United Ass’n of Journeymen & Apprentices, Local # 131, 560 F.2d 17, 21 (1st Cir.1977). Thus, the scope of judicial inquiry is narrowly circumscribed in such cases. And, moreover, the resultant circumscription is . particularly stringent when, as now, a labor organization’s interpretation of its own constitution is singularly at issue. See Local No. 48, 920 F.2d at 1052.\nB.\nIn Local No. 48, a case construing the very union constitution that is at issue here, this court concluded that a general union’s interpretation of its own governance documents will ordinarily be upheld “unless that interpretation is patently unreasonable.” Id. On that basis, we refused to second-guess the International when it advanced a “plausible” reading of its constitution. Id. At bottom, then, Local No. 48 stands for the proposition that, in the absence of bad faith, a labor organization’s interpretation of internal union documents puts an end to judicial scrutiny so long as the interpretation is “facially sufficient” or grounded in “ ‘arguable authority.’ ” Id. (citation omitted); accord Newell v. International Bhd. of Elec. Workers, 789 F.2d 1186, 1189 (5th Cir.1986); Local 334, United Ass’n of Journeymen & Apprentices v. United Ass’n of Journeymen & Apprentices, 669 F.2d 129, 131 (3d Cir.1982); Stelling v. International Bhd. of Elec. Workers, Local Union No. 1517, 587 F.2d 1379, 1389 n. 10 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979).\nThis black letter law simplifies our task. We afford plenary review to the entry of summary judgment below. See Garside, 895 F.2d at 48. To do so here, we need only determine whether the International’s synthesis of the juxtaposed documents, i.e., its view that section 32(B) of the constitution leaves room for, and can comfortably operate side by side with, a by-law provision mandating automatic succession to a particular post, is “so implausible or patently unreasonable as to be undeserving of deference.” Local No. 48, 920 F.2d at 1052.\nc.\nWe turn now to the record, first examining the relevant texts. On one hand, the constitution, quoted supra p. 57, states that when “vacancies occur in any elective office,” the president of the local “may” appoint a replacement to serve until an election is held. On the other hand, the by-laws, see supra p. 57, state that “the Business Representative shall assume the duties of the [Manager]” if a “vacancy [in that position] occurs.” While these provisions can assuredly be read to conflict—and if they clash, the constitutional provision prevails, see UBCJA Const., §§ 6(C), 25(A)—a harmonious reading of them is hardly implausible. We think it is significant that the constitution uses precatory rather than mandatory language. The permissive “may” contained in the constitution, as opposed to the directory “shall” contained in the by-law, signals that a temporary, presidential appointment and subsequent election is but one available method for filling vacancies, impliedly suggesting that other, equally satisfactory methods can be employed. Accord La Joie v. Bay Counties Dist. Council, 143 L.R.R.M. (BNA) 2547, 2549 (N.D.Cal.1990) (refusing, for this reason, to find a conflict between the identical constitutional provision and the by-laws of a different local). On this (entirely plausible) reading, automatic succession is a permissible method of selection. Hence, there is ample textual support for the International’s conclusion that the constitution’s words are inapplicable here because a new Manager has already been designated—that is, the vacancy has already been filled—through an authorized alternative process.\n[3,4] Dow contends that in determining whether the International proffered an interpretation worthy of deference, a reviewing court must not examine the letter of the texts in majestic isolation, but must read them in conjunction with available extrinsic evidence of past union interpretations and practices. We agree that “track record” evidence may often be illuminating and should be considered. After all, evidence that a union deeision follows established custom might serve to strengthen the decision’s inherent reasonableness and, by like token, evidence that a union decision constitutes a radical break from uniform past practice might undermine its seeming plausibility. Cf. Local No. 48, 920 F.2d at 1052 (citing the context “of an ongoing consolidation process” as one indici-um of the reasonableness of the union’s authorization of a merger). Here, however, the summary judgment record is barren of any evidence sufficient to support an inference that the International’s present reading of the constitution is newly contrived or inconsistent with past practice.\nTo be sure, appellant tried to plug this hole. His failed efforts center around three sworn statements signed by John S. Rogers, once a high-ranking officer of the International. Appellant tells us that these affidavits evidence a tradition of requiring elections to fill mid-term vacancies in the face of conflicting local by-laws. He is wrong. To the extent that the affidavits touch upon matters germane to this- appeal, they are much too vague to forestall summary judgment.\nAppellant places greatest emphasis on Rogers’s repeated statements that it has “always” been UBCJA’s practice to conduct elections to fill mid-term vacancies. In context, however, this assertion constitutes no more than an empty generality. A purely eonclusory statement of this sort is manifestly insufficient to-support an inference of inconsistent past practice without an accompanying suggestion—nowhere to be found— that such a vacancy has ever before occurred in a local that had adopted an automatic succession rule. See Local No. k-8, 920 F.2d at 1051 (explaining that unsubstantiated conclusions are inadequate to block summary judgment); Oliver v. Digital Equip.. Corp., 846 F.2d 103, 109 (1st Cir.1988) (refusing to allow “unsubstantiated allegations” to defeat summary judgment). In the same vein, Rogers’s general statement that “the Brotherhood and its local unions” have deemed a resignation to create “a vacancy ... regardless of whether or not the applicable Constitution or By-Laws contained a successorship provision” is devoid of significance absent an indication — nowhere to be found — that a particular incident actually occurred and that Rogers possesses some knowledge about it. See Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510 (stating that, in the summary judgment context, suggested inferences must be supported by “specific facts”); Medina-Munoz, 896 F.2d at 9 (terming plaintiffs attempted application of a conclusion to a different factual predicate “too large a leap”). In light of these gaps, the Rogers affidavits, carefully read, do not contradict UBCJA’s sworn averment that, at least within the past five years, the International has never ordered a local operating under an approved automatic succession procedure to hold an election to fill a vacancy. Indeed, since the record demonstrates that the International has approved a number of local union by-law provisions incorporating automatic succession regimes, including the provision at issue here, the record virtually compels the inference that UBCJA’s present construction of the juxtaposed instruments of governance is consistent with its past practice.\nIn short, appellant’s “past practice” proffer represents yet another situation where a court considering a motion for summary judgment “cannot accept, in lieu of documented facts, conelusory assertions.” Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.1991). Consequently, we hold that appellant failed to raise a genuine question regarding past practice that would bear on the reasonableness of the International’s textual construction.\nWe have said enough. While the International’s take on the written provisions may not be the only possible one, or even the most natural one, it is well within the universe of acceptable interpretations. Because plausibility is all that is required in a situation of this kind, the lower court appropriately granted summary judgment on the existing record.\nIll\nCurtailment of Discovery\nAppellant’s fail-back position is that the judgment below must be vacated because the district court unduly curtailed discovery prior to deciding the summary judgment motions. See generally Celotex, 477 U.S. at 322, 106 S.Ct. at 2552 (recognizing the requirement of “adequate time for discovery”); Fed. R.Civ.P. 56(f) (authorizing continuances so that a nonmovant, upon a proper showing, may gather “facts essential to justify [an] opposition” to summary judgment). The argument is cast in disingenuous terms and distorts the nature of the district court’s discovery ruling.\nEarly in the proceeding, the district court heard a cacophony of sounds on the issue of discovery: on one flank, the International urged a stay of discovery; on the opposite flank, Dow sought to expedite discovery and widen its scope. Confronted with cross motions for summary judgment that might be susceptible to resolution on the submitted papers, and anticipating that oral argument on the cross motions would take place on January 12, 1993, the district court, in a ruling from the bench, halted discovery on December 18, 1992. The court, however, dropped an anchor to windward: since the full panoply of papers regarding the motions had not yet been filed, the judge invited Dow to request a continuance for the purpose of conducting discovery at the hearing on summary judgment if, by then, Dow still believed that he could not adequately argue the cross motions without such discovery. Hence, notwithstanding appellant’s current caterwauling about a categorical ban on discovery, the court’s ore terms order was plainly an interim measure, likely extinguishable for the asking.\nAlthough Dow held the key to discovery, he neglected to unlock the door. The January 12 hearing came and went without any semblance of a renewed request to conduct discovery. Nowhere did appellant ask, even as a form of alternative relief, that a decision on summary judgment be postponed until further discovery could be obtained. Rather, he chose to shelve the quest for discovery and dive head-first into the summary judgment maelstrom.\nThe rule in this circuit is clear that, when a court temporizes or otherwise defers a ruling on a discovery request, and the proponent thereafter fails to resurrect the issue in a timely fashion, he is deemed to have abandoned the point and cannot later complain on appeal concerning a denial of the discovery in question. See DesRosiers v. Moran, 949 F.2d 15, 22-23 (1st Cir.1991). As we have said, “a party who seeks a ruling must persist in his quest to some reasonable extent.” Id. at 23.\nHaving flouted this rule, Dow finds himself mired in a pit similar to that which the government dug for itself in Reilly v. United States, 863 F.2d 149 (1st Cir.1988). There, the government moved for additional discovery at a pre-trial hearing before a magistrate judge. In denying the motion, the magistrate told the government that it might mull the matter for a few days and renew the request in a more specific form. A follow-up request never came. On appeal, the government attempted to press an objection to the denial of discovery. We overruled the objection, holding that the government had an obligation “to specify, face-up and squarely, what information it continued to seek.” Id. at 168. By not resurfacing the point, despite an express invitation to do so, it “waived the right to protest the denial of’ discovery. Id. The same result must obtain here. The district court voiced a clear invitation to seek discovery anew. Dow eschewed it. He cannot now “legitimately complain of lack of access to [discovery which he] never seasonably requested.” Id. at 167. This is as it should be; any other outcome would squander judicial resources and give parties who, like Dow, plunge headlong into the merits of a case without pausing to exhaust discovery options a second bite at the cherry. In the last analysis, “[c]ourts, like the Deity, are most frequently moved to help those who help themselves.” Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir.1988); see also Hebert v. Wicklund, 744 F.2d 218, 222 (1st Cir.1984) (refusing to “employ [Rule 56(f) ] to spare litigants from their own lack of diligence”).\nIV\nConclusion\nWe need go no further. By failing to renew his request for discovery at the appropriate time, Dow waived any objection to the district court’s decision to resolve the summary judgment motions on the existing record. And, because the International’s reconciliation of the arguable conflict between its constitution and the Local’s by-laws is plausible in terms of that record, the entry of summary judgment in defendants’ favor must stand.\nAffirmed.\n. Inasmuch as the Manager’s position is the brightest and most coveted star in a local union’s administrative firmament, the struggle over succession takes on added significance.\n. Section 32(B) of the constitution was in effect when the International approved the Local’s bylaws. Absent such approval, the by-laws could not have taken effect.\n.For ease in reference, we discuss the issues as if Dow and the International were the sole parties in interest.\n. Here, Dow adduced no evidence that the International formulated its interpretation in bad faith. What is more, he has not asserted a claim of bad faith on appeal.\n. We believe it is noteworthy that the United States Department of Labor’s regulations implementing the LMRDA expressly authorize \"automatic succession” to fill mid-term vacancies. 29 C.F.R. § 452.25 (1992).-\n. The shortcomings in the Rogers's affidavits are all the more striking because appellant extracted not one, but three, successive affidavits from Rogers, over a period spanning three and one-half months. The latest of these was executed a mere three days before the hearing on summary judgment. Since Dow thrice went to the well in an effort to secure supplemental information, we think it fair to assume that everything that could be said was in fact said.\n. We reject out of hand appellant’s claim that two other factual disputes sufficient to defeat UBCJA’s motion for summary judgment lurk in the record. First, pointing to the absence, as of September 9, 1992, of documentary proof anent Cataldo's appointment as Business Representative, appellant speculates that Cataldo was not duly appointed and, therefore, could not succeed to the Manager's position pursuant to the bylaws. The speculation does not hold water: a nonmovant cannot defeat a motion for summary judgment solely by asserting that the movant has not adduced, or explained its failure to adduce, the best possible proof of a material point. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 182 (1st Cir.1989). The second dispute concerns whether Cataldo, in violation of the constitution, assumed the Manager's position before resigning as Local 218's Recording Secretary. Because it is uncontradicted that Cataldo no longer held the latter position by October 7, 1992, at the latest, we, like the district court, deem the exact date of his resignation to be immaterial.\n. Various exchanges at the December 18 hearing tell the tale. We offer a few representative vignettes. The judge advised appellant’s counsel that if the UBCJA \"file[s] something of a factual nature, and you need something to rebut, then I would move [on January 12] for discovery.” The judge later reiterated the point, stating that once the paperwork is complete, “you [appellant's attorney] can see whether you need any discovery. If, for some reason, on the 12th you come in here and say, I can’t argue the motion because there. is a particular document or a factual allegation that has been made and I need to look at one particular thing, maybe I would do it.”\n. Appellant’s suggestion that he revived his discovery request at the January 12 hearing is, at best, wishful thinking. His counsel’s oral argument contained only a fleeting reference to appellant’s past inability to conduct discovery as he would have preferred. His suggestion that he renewed the request in a supplemental memorandum filed in connection with the hearing is equally jejune. The memorandum, directed primarily toward an entirely different matter, contained a solitary sentence more obfuscatory than illuminative, concerning \"legitimate and necessary outstanding requests for discovery.” These constitute no more than veiled references which, without more, cannot take the place of an affirmative request to conduct further discovery. Cf. Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir.1988) (holding that-oral and written statements “complaining about [a] stay of discovery,” coupled with \"cryptic allusions,\" are \"entirely inadequate” to support a Rule 56(f) motion).\n[END_CASE]", "role": "user" } ]
10,507,804	Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellees, Ada N. Perez, et al., Plaintiffs, Appellants; Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellees, Dorotea Collazo Rivera, et al., Plaintiffs, Appellants	Acevedo-Diaz v. Aponte	1993-08-03	Nos. 92-1846, 92-1848	United States Court of Appeals for the First Circuit	{"judges": ["Before SELYA, CYR and STAHL, Circuit Judges."], "parties": ["Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellees, Ada N. Perez, et al., Plaintiffs, Appellants. Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellees, Dorotea Collazo Rivera, et al., Plaintiffs, Appellants."], "opinions": [{"text": "CYR, Circuit Judge.\nIn November 1984, Jose E. Aponte, the candidate of the Popular Democratic Party (“PDP”), was elected mayor of the Municipality of Carolina (“City”), Puerto Rico, defeating the incumbent mayor, Roberto Iglesias, the candidate of the New Progressive Party (“NPP”). During his first year in office, Mayor Aponte either terminated, or refused to renew, several hundred non-policymaking city employees hired under the previous administration. In letters of dismissal to the employees, Aponte claimed that the City faced a severe fiscal crisis, and disclosed various criteria for determining which municipal employees were to be terminated in order to effect the necessary economies:\n(1) employees hired without compliance with Commonwealth or municipal personnel laws and regulations, see, e.g., P.R.Laws Ann. tit. 3, §§ 1331-1337, which dictate the public posting of available positions and competitive examinations;\n(2) employees hired or promoted during the 1984 “veda,” or “electoral prohibition period,” a four-month “window” before and after a municipal election during which hiring, renewals, or promotions by the incumbent administration are proscribed by law;\n(3) employees who submitted no documentary proof that they possessed the minimum education and experience required for their positions;\n(4) employees whose job positions were deemed nonessential, and therefore expendable; or\n(5) employees who had committed employment infractions {e.g., unexcused leaves of absence, chronic tardiness).\nIn March 1986, 357 terminated employees, claiming political affiliation with the ousted NPP, brought the present civil rights action under 42 U.S.C. § 1983 against the City, Mayor Aponte, Jose A. del Valle (at times, the acting mayor), and Felix Martinez (the personnel officer). Plaintiffs alleged that their dismissals were due solely to their NPP affiliation, in violation of their First Amendment and due process rights under the United States Constitution. The complaint demanded compensatory and punitive damages, as well as reinstatement.\nThe claims of 255 plaintiffs went to the jury following a four-month trial, and defendant verdicts were returned on the claims of 240 plaintiffs. Six plaintiffs were awarded compensatory damages (from $1700 to $10,-440) against the City, and punitive damages ($25,000) against Aponte, while nine plaintiffs were awarded nominal damages ($1.00) against the City, and punitive damages ($25,000) against Aponte. The district court denied all claims for reinstatement. Finally, in May 1992, the court set 'aside all fifteen plaintiff verdicts. The present appeal is brought by eleven of the fifteen disappointed plaintiffs.\nDISCUSSION\nA. Standard of Review and Applicable Law\nA jury verdict may not be set aside as a matter of law under Fed.R.Civ.P, 50(b) except on a “ ‘determination that the evidence could lead a reasonable person to only one conclusion.’” Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 n. 2 (1st Cir.) (quoting Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir.1987)) (emphasis added), cert. denied, — U.S. -, 112 S.Ct. 637, 116 L.Ed.2d 655 (1991); see Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir.1990). On de novo review, the court of appeals will uphold the verdict unless the facts and inferences, viewed in the light most favorable to the verdict, “point so strongly and overwhelmingly in favor of the movant that a reasonable jury could not have [returned the verdict].” Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 214 (1st Cir.1991); Ferrer, 914 F.2d at 311; Mayo v. Schooner Capital Corp., 825 F.2d 566, 568 (1st Cir.1987).\nIn a political discrimination case, see Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), plaintiffs must bear the threshold burden of producing sufficient direct or circumstantial evidence from which a jury reasonably may infer that plaintiffs’ constitutionally protected conduct—in this case, political affiliation with the NPP—was a “substantial” or “motivating” factor behind their dismissal. See Ferrer, 914 F.2d at 311; Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 13 (1st Cir.1988); Rosaly v. Ignacio, 593 F.2d 145, 148-49 (1st Cir.1979). Once plaintiffs clear the threshold, the burden shifts to defendants to articulate a nondiseriminatory ground for the dismissals, and prove by a preponderance of the evidence that plaintiffs would have been dismissed regardless of their political affiliation. See Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 416, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979); Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 39 (1st Cir.1993); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 264 (1st Cir.1987), cert. denied, 486 U.S. 1044, 108 S.Ct. 2037, 100 L.Ed.2d 621 (1988). Either this “but for” causation test, or the defendant-employer’s “Mt. Healthy defense,” ensures that a plaintiff-employee who would have been dismissed in any event on legitimate grounds is not placed in a better position merely by virtue of the exercise of a constitutional right irrelevant to the adverse employment action. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Acostar-Sepulveda v. Hernandez-Purcell, 889 F.2d 9, 13 (1st Cir.1989); Rosaly, 593 F.2d at 148.\nAfter a careful summarization of the trial evidence, the district court granted defendants’ Rule 50(b) motion for judgment as a matter of law because the bulk of the circumstantial evidence relied on by plaintiffs— namely, their party affiliation and the temporal proximity between their dismissals and Mayor Aponte’s inauguration—was too conjectural and conclusory to counteract the “overwhelming” Mt. Healthy defense, which demonstrated that massive layoffs were compelled as a result of the severe fiscal crisis brought on by the overhiring of City personnel under the previous administration. See Kauffman v. Puerto Rico Tel. Co., 841 F.2d 1169, 1172 (1st Cir.1988) (finding that plaintiffs failed to allege the type of specific evidence of politically discriminatory animus required to avoid summary judgment).\nThe district court opinion compares the Mt. Healthy burden-shifting mechanism to similar devices used in other employment discrimination cases, such as Title VII cases, see, e.g., Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 782 (1st Cir.1990), and ADEA cases, see, e.g., Goldman v. First Nat’l Bank, 985 F.2d 1113, 1116-18 (1st Cir.1993). The opinion states that, once the defendant interposes the Mt. Healthy defense, “the plaintiff then has the opportunity to demonstrate that the alleged nondiscriminatory reason is a false pretext,” which may be accomplished either by “ ‘persuading the [jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that [the] employer’s proffered explanation is unworthy of credence.’” Dist.Ct. Op., at 4 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) (Title VII case)). Although literally correct, the quoted statement gives us pause, especially in light of the citation to Burdine. Since a proper allocation of the burden of persuasion is critical to our assessment of the district court’s decision under Rule 50(b), we first revisit the applicable burden-shifting procedure.\nUnder Title VII, a plaintiff must establish a prima facie ease of employment discrimination, at which point a presumption of discrimination attaches to the plaintiffs claim. A limited burden of production then passes to the employer to articulate a legitimate, nondiscriminatory reason for its actions, a burden which is fully satisfied if the employer submits enough evidence to raise a genuine issue of material fact. The employer need not submit sufficient evidence to “persuade the [fact finder].” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. In other words, notwithstanding the interim shift in the burden of production to the employer, the plaintiff-employee in a Title VII case “retains the burden of persuasion” at all times. Id.\nBy contrast, under the Mt. Healthy burden-shifting mechanism applicable to a First Amendment political discrimination claim, the burden of persuasion itself passes to the defendant-employer once the plaintiff produces sufficient evidence from which the fact finder reasonably can infer that the plaintiffs protected conduct was a “substantial” or “motivating” factor behind her dismissal. Accordingly, once the burden of persuasion shifts to the defendant-employer, the plaintiff-employee will prevail unless the fact finder concludes that the defendant has produced enough evidence to establish that the plaintiffs dismissal would have occurred in any event for nondiscriminatory reasons.\nTherefore, we can sustain a Rule 50(b) reversal in a political discrimination case only if: (1) the record evidence compelled the conclusion that the plaintiff would have been dismissed in any event for nondiscriminatory reasons, or (2) the plaintiff did not' introduce sufficient evidence in the first instance to shift the burden of persuasion to the defendants. We address these alternatives in turn.\nB. The “Austerity” Defense\nThrough numerous expert witnesses and statistical data, defendants attempted to establish that all the challenged dismissals were due to the fiscal crisis inherited by Mayor Aponte when he took office in 1985, which the defendants attributed to mismanagement or illegal patronage hiring practices on the part of, the previous administration. The jury reasonably could have found that the dismissals made by the incoming administration resulted in a 32% net reduction of approximately 900 City employees (from 2,869 to 1,966), and that no new employees were hired to perform the duties of the dismissed plaintiffs. Thus, the jury reasonably could have concluded that a bona fide fiscal crisis would have compelled the vast majority of the challenged dismissals even if the targeted employees had not been affiliated with the NPR.\nDefendants’ well-deployed “austerity” defense apparently thwarted the claims of 240 of the 255 plaintiffs whose cases went to the jury. But blunt instruments make crude scalpels, and the Mt. Healthy defense requires individualized scrutiny by the jury with a view to whether a particular plaintiffs position would have been eliminated under Aponte’s austerity program but for the plaintiffs NPP affiliation. In other words, even though defendants’ overarching austerity defense may have established that massive dismissals were imperative, it did not compel jury verdicts adverse to all plaintiffs. General statistical data regarding net work-force reductions may mask individual dismissals which were purely discriminatory. Here, some plaintiffs testified that their positions remained intact after their termination and specifically identified their replacements; the jury was free to credit this testimony,-despite testimony to the contrary. See Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1385 (1st Cir.1991) (“Once the threshold of sufficiency has been crossed, the credibility of a claimant and its witnesses presents a question for the jury, not for the trial court—and most of all, not for the court of appeals.”).\nCredibility determinations and evidence weighing are not grist for the Rule 50(b) mill. Hendricks, 923 F.2d at 214. As defendants were required to carry the burden of persuasion, and the evidence supporting the Mt. Healthy “austerity” defense did not compel jury acceptance of the claims of all 255 plaintiffs, we turn to the evidence bearing on the individual claims of the eleven appellants.\nC. The Individualized Defenses\nThe defendants attempted to establish their individualized Mt. Healthy defenses at trial based largely on the contemporaneous justifications relied on in Mayor Aponte’s letters of dismissal. See supra p. 65. Under the Mt. Healthy burden-shifting mechanism, the employer’s contemporaneous justifications for an adverse employment action serve at least two important functions. First, to the extent the reasons given by the employer at the time of the dismissal are later proven false or frivolous, the weight of the evidence of discriminatory animus may be enhanced, thereby contributing significantly to the threshold Mt. Healthy showing the plaintiff-employee must make in order to shift the ultimate burden of persuasion to the defendant-employer. Second, once the burden of persuasion has shifted to the employer, the jury would be entitled to find for the plaintiff-employee were it to conclude that the employer did not offer sufficient evidence to demonstrate that (i) the proffered reason for the dismissal was genuine or (ii) a bona fide basis existed which would have prompted the dismissal without regard to the employee’s political affiliation. We reserve these individualized defenses for consideration with plaintiffs’ evidence.\nLeaving aside certain proffered justifications for employee dismissals in the First Amendment political discrimination context, only two individualized defenses remain for our consideration in the present case, based on the evidence relating to each appellant’s claim: (1) whether the plaintiff was qualified for the position at the time of the dismissal, and (2), if so, whether the position was eliminated for nondiseriminatory reasons.\nD. Plaintiffs’ Evidence\nPlaintiffs offered little direct evidence of discriminatory animus. But see infra notes 6 & 8. Nevertheless, as we have held, “circumstantial evidence alone can support a finding of political discrimination.” Anthony, 952 F.2d at 605; Estrada-Izquierdo, 850 F.2d at 14. Certain general observations can be made concerning the circumstantial evidence bearing on the claims of all eleven plaintiffs. Mere temporal proximity between a change of administration and a public employee’s dismissal is insufficient to establish discriminatory animus. Cf. Aviles-Martinez v. Monroig, 968 F.2d 2, 5 (1st Cir.1992) (citing Kauffman, 841 F.2d at 1172). On the other hand, we have noted that the “highly charged political atmosphere” occasioned by the major political shift from the NPP to the PDP throughout the Commonwealth of Puerto Kico in 1984, coupled with the fact that plaintiffs and- defendants are of competing political persuasions, may be probative of discriminatory animus. See Kercado-Melendez, 829 F.2d at 264; see also Anthony, 952 F.2d at 606 (“timing” of dismissal may be suggestive of discriminatory animus); Estrada-Izquierdo, 850 F.2d at 15 (same).. Moreover, the record discloses that these eleven appellants, for the most part, were not quiescent NPP members but played very active or prominent roles in its political activities, publicly and vocally supporting the reeleetion campaign of the former mayor. See Nereida-Gonzalez v. Ti-rado-Delgado, 990 F.2d 701, 706 (1st Cir.1993) (noting evidence that plaintiff was “known” party member); Ferrer, 914 F.2d at 312 (noting that plaintiffs’ political affiliation was not only “well known” but, in some instances, notorious); Kercado-Melendez, 829 F.2d at 264 (noting plaintiffs “long, active, and visible membership” in the opposition party).\nAppellants variously testified at trial that they were (1) members-of the former mayor’s elite “advance team,” a corps of uniformed functionaries responsible for arranging campaign appearances; (2) organizers or participants in pro-NPP political rallies; (3) NPP women and youth coordinators; or (4) polling unit officers or members of electoral colleges. Thus, the jury reasonably could have concluded that those appellants who were publicly identified as close political allies of the former NPP mayor were more conspicuous targets for political discrimination. Standing alone, even the circumstantial evidence that some plaintiffs were especially conspicuous targets for discriminatory employment action by defendants would give us serious pause. With but two exceptions, however, a careful review of the evidence reveals that appellants plainly presented other evidence sufficient to shift the burden of persuasion, effectively foreclosing any realistic claim for Rule 50(b) relief by defendants. We briefly recount the dispositive evidentia-ry considerations bearing on each appellant’s claim.\n1. Brenda Aponte Osorio\nMs. Aponte was dismissed from her “regular” position, as an Executive Officer IV, in May 1985. In addition to other direct evidence of discriminatory animus, the letter of dismissal from Mayor Aponte stated that Ms. Aponte apparently did not possess the qualifications for her position — in particular, a college degree and “considerable” relevant work experience. In fact, the written job description for an Executive Officer IV lists a college degree as “desirable preparation,” but provides that a “combination of preparation and experience will be acceptable”; it defines “experience” as “positions of progressive responsibility ... in the public service, including considerable administrative or supervision experience.” (Emphasis added.) At trial, Ms. Aponte testified that she attended college for three years, and began working for the City in 1978 as a supervisor in the Human Resources Department.\nMs. Aponte presented sufficient evidence to enable a jury to find that she possessed the required qualifications, both at the time of her appointment and dismissal. The jury could have concluded, therefore, that defendants’ contemporaneous justification was a mere pretext for political discrimination. Cf. Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 43 (1st Cir.1992) (reversing summary judgment for defendant; noting that proof that defendant’s asserted nondiscriminatory reason for dismissal was pretextual is a “link in a chain of circumstantial evidence” of political discrimination which, when coupled with allegedly “conclusory” evidence as to the timing of demotion and the parties’ political affiliation, creates a triable issue which the fact finder might resolve in plaintiffs favor); Anthony, 952 F.2d at 606 (plaintiffs obvious qualifications can be circumstantial evidence of discriminatory animus); cf. also Burns v. Gadsden State Community College, 908 F.2d 1512, 1519 (11th Cir.1990) (employer’s exceedingly narrow interpretation of minimum “experience” required for position, coupled with other evidence of discriminatory animus, creates genuine dispute as to whether employer “invented” excuse as pretext to mask improper motive for dismissal in ADEA action). The circumstantial evidence of pretext, coupled with the direct evidence of discriminatory animus, was sufficient to shift the burden of persuasion to defendants. As there was no conclusive evidence that Ms. Aponte would have been dismissed in ány event for a nondiscriminatory reason, the jury verdict must be sustained.\n2. Dorotea Collazo Rivera\nMs. Collazo was dismissed from her “regular” position, as an Administrative Assistant I, in January 1986. The dismissal letter asserted that Collazo’s termination was based on an absence of evidence that she was ever qualified for her position. However, Collazo’s job description merely required a “desirable” (high school diploma) education/experience (“general office work”) mix. Collazo testified that she met the posted academic preparation component of the job description. Moreover, there was no dispute that Collazo, who was appointed to her final position with the City in 1981, previously had been employed as an office clerk for the City since 1976. Thus, Collazo likewise succeeded in shifting the burden of persuasion to the defendants, and defendants simply failed to persuade the jury.\n3. Maria Colon de Jesus\nMs. Colon was dismissed from her “regular” position, as a Messenger, in July 1985. The letter of dismissal stated that the City’s messenger service, with forty-two employees, was “excessive and unnecessary,” that it must be reduced to ten employees as an economy measure, and that the ten employees to be retained had been chosen based on an evaluation of their job performance and seniority.\nMs. Colon conceded that the reduction in force did occur as defendants indicated, and that she lacked the requisite seniority to qualify for one of the ten remaining positions. She points to no particular discriminatory conduct, nor does she contend that (1) messengers with less seniority or lower performance ratings were retained, (2) the City needed more than ten messengers in 1985, or (3) defendants replaced any of the thirty-two dismissed messengers. As Colon’s political affiliation and the timing of her dismissal were the only significant probative evidence supporting her claim, and there was no direct or circumstantial evidence of pretext, the burden of persuasion never shifted to defendants. As no factual dispute was generated concerning the legitimacy of the austerity measures, or Colon’s failure to meet the criteria for retention, the verdict could only have been based on conjecture that Colon would not have been terminated but for her political affiliation. See Ferrer, 914 F.2d at 311 (“plaintiff is not entitled to inferences based on speculation and conjecture”).\n4. Hector L. Encarnación Matos\nEncarnación was dismissed from his “regular” position, as a Computer Operator I, in August 1985. The dismissal letter stated that he lacked the minimum qualifications for the position, which, defendants characterized at trial and on appeal as requiring an “associate degree” in accounting or computer operation. The job description called for a “high school diploma, supplemented by courses in mechanized accounting or programming and one year of experience in that field,” or “[a] combination of academic background and experience.” Thus, contrary to defendants’ mischaracterization at trial, the job description did not require post-secondary school courses sufficient to qualify Encarnación for an associate degree. Moreover, although Encarnación conceded at trial that his post-secondary school courses were not in accounting or programming, and that he had no experience in computer programming pri- or to his appointment, he had acquired two years’ working experience on the job before he was dismissed in 1985, during which time he had received several “excellent” job performance evaluations. See id. at 312-13 (noting that jury could credit circumstantial evidence that plaintiff “performed her duties very well”); Estrada-Izquierdo, 850 F.2d at 14 (finding “probative” the circumstantial evidence that plaintiff “successfully carried out her job” for many years). Encarnacion’s job description was flexible enough to permit the jury to determine that he possessed the necessary qualifications, and that the stated reason for his dismissal was pretextual.\n5. María de Lourdes Escute-Levest\nMs. Escute-Levest was dismissed from her “regular” position, as a Computer Operator I, in October 1985. Initially, defendants contended that she was unqualified, but later retreated to their “nullity of appointment” justification when she protested that she had an associate degree in computer programming. See supra note 5. Escute, a member of the former mayor’s “advance team,” testified at trial — without objection as to the basis of her knowledge — that her position was refilled following her dismissal, suggesting that it was not as expendable as defendants contend on appeal. The cumulative circumstantial evidence of discriminatory animus and pretext was sufficient to shift the burden of persuasion to defendants and to support the jury verdict.\n6. Jesus Garcia Delgado\nGarcia was dismissed from his “regular” position, as a Computer Operator I, in November 1985. Defendants contended that Garcia, who possessed an associate degree in computer programming, did not have the required year of experience in a “related field” at the time he was appointed in 1978. Even so, he had accumulated seven years’ experience by the time he was dismissed, and plainly met all qualifications for the position long before his dismissal. As the jury could have inferred that the justification offered for the dismissal was pretextual, there was enough evidence to shift the burden of persuasion to defendants.\n7. Victor M. Guadalupe Bobonis\nGuadalupe was dismissed for the second time from his “transitory” position, as a municipal guard, in October 1985. In January 1985, the occasion of the first dismissal, the only justifications defendants offered were that his transitory appointment had already lapsed and the position was deemed expendable under the “austerity” program. Mayor Aponte abruptly rescinded the first dismissal letter on January 25, 1985. In June 1985, however, Aponte sent another letter of dismissal, asserting that Guadalupe did not meet the minimum qualifications for the position, and that his original appointment therefore had been illegal. As there was no evidence that Guadalupe did not meet the minimum job qualifications, the jury reasonably could have concluded that defendants’ shifting justifications for Guadalupe’s dismissal amounted to pretextual posturing.\nFurthermore, Guadalupe testified that twelve or fifteen more policemen were hired after his dismissal. See Nereida-Gonzalez, 990 F.2d at 706 (noting that evidence suggesting that defendants’ reorganization was a “sham” may be considered probative of discriminatory animus); Ferrer, 914 F.2d at 311 (“overstaffing” defense undermined by competent evidence from which jury could conclude that defendants later hired replacements to perform same functions entailed by plaintiffs position); see also supra note 12.\n8.Ada N. Perez Colon\nMs. Perez was dismissed from her “regular” position, as an Executive Officer I, in September 1985. Defendants contended that she was not qualified, and alleged that she had taken an unauthorized medical leave, without pay, to undergo surgery. The Executive Officer I position requires a four-year college degree and administrative or supervisory experience, or an “equivalent combination of academic background and experience.” Perez, who was a member of the former mayor’s “advance team,” had attended college for two years, and had worked for the City since 1980 as an officer for the CETA program and a coordinator at the Human Resources Department. Thus, the jury reasonably could have determined that her five-year City work experience was sufficient to offset the, two-year deficit in education. See supra note 7. The jury therefore was free to conclude that both justifications for her dismissal were pretextual.\n9.Evelyn Quinones Osorio\nMs. Quinones was dismissed from her “regular” position, as an Executive Secretary III, in September 1985. Within two weeks after taking office, Mayor Aponte called all mayor’s office employees together and advised that they were “persons who were in trust to the former mayor,” and that they would be replaced or transferred in “due time.” Defendant Martinez also told Qui-nones, a member of the former mayor’s “advance team,” that she “didn’t have his trust.” After training her replacement, Quinones accepted a transfer out of the mayor’s office. She testified that officials of the new administration erased her time cards and, on one occasion, retained her paycheck for six weeks. Defendant Martinez, City personnel officer, told Quinones: “[Tjhose are injustices but I follow orders from above.” (Emphasis added.)\nIn July 1985, after Quinones’ brief tenure in the new secretarial position, Aponte notified her that she would be terminated because she was unqualified for the position. The relevant job description called for a two-year secretarial course, and four years’ secretarial experience, but two years of work experience could be substituted for educational experience. When Quinones provided satisfactory documentation of her educational qualifications, defendants fell back on their “nullity of appointment” defense as the sole ground for her September 1985 dismissal. See supra note 5. Moreover, Osario testified that she had worked as a secretary since 1980, and her final year as an Executive Secretary III clearly qualified her for her new position. Thus, Quinones presented sufficient direct and circumstantial evidence of discriminatory animus and pretext to shift the burden of persuasion.\n10. Carmen Rivera Guadalupe\nMs. Rivera Guadalupe was dismissed from her “transitory” positions, as Child Care worker and Secretary, in January 1986. She was notified that she was being terminated because her transitory appointment had lapsed, and the City could no longer afford to fund the position. Her husband continued to work for the Aponte administration for another five or six years. Like plaintiff Colon, Ms. Rivera offered no evidence that the elimination of her position was in any way pretex-tual, nor that she was ever replaced, let alone by a PDP member. As political affiliation and the timing of the dismissal were insufficient to satisfy her threshold burden of production, the jury verdict must be set aside as conjectural.\n11. Luisa Rivera Serrano\nMs. Rivera Serrano- was dismissed from her “transitory” position, as a Clerk I, in August 1985, ostensibly because her fixed term of employment had expired. Although the jury reasonably could have inferred that her position, like that of Ms. Rivera Guadalupe, would be eliminated on austerity grounds, the implicit rationale for her dismissal was undermined by Ms. Rivera Serrano’s testimony that she was replaced by Rosa Mattos, a PDP member. Defendants’ attempt to undermine Rivera’s testimony, by noting that she previously had identified a different person (Inez) as her replacement, fails. Not only are we precluded from credibility determinations, see Hendricks & Assocs., 923 F.2d at 214, but Rivera offered a plausible explanation for her inconsistent responses: both individuals applied for her former position. As there was ample basis for a reasonable inference that the proffered ground for the dismissal was pretextual, the jury verdict must be upheld.\nCONCLUSION\nWe acknowledge the careful attention the district court has given the evidence in this case. In the Rule 50(b) context, however, we are required to recognize that evidence does not pass through the jury “lens” unrefracted. Our review convinces us that these jury verdicts, with two exceptions, must therefore be reinstated.\nJudgment in accordance with the verdicts must be reinstated for all appellants, with the exception of Maria Colon de Jesus and Carmen Rivera Guadalupe. In all other respects, the district court judgment is affirmed. The case is remanded to the district court for further proceedings not inconsistent herewith. Costs are awarded to the nine prevailing appellants.\n. Three municipal employee classifications were involved in the challenged terminations: (1) \"regular\" employees, occupying permanent or career municipal positions, (2) “transitory” employees, appointed without the usual personnel screening procedures {e.g., postings and competitive examinations), but subject to periodic renewals at the expiration of their fixed terms, and (3) \"contractual\" workers, hired for fixed terms under federally funded programs {e.g., HUD) administered by the City. \"Transitory” employees lack tenure, or a reasonable expectation in the indefinite continuation of their employment after the expiration of their fixed term. While their lack of a property interest in their employment positions generally precludes due process claims for a politically discriminatory dismissal. First Amendment discrimination claims are not precluded. See Santiago-Negron v. Castro-Davila, 865 F.2d 431, 436 (1st Cir.1989); Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 16 (1st Cir.1988).\n. On appeal, certain plaintiffs demand a new trial on compensatory damages, arguing that the jury had no choice but to credit their testimony on damages, especially as it related to their mental suffering and anguish. We summarily reject their argument, as wholly unsupported by the record.\n. The defendants do not contend that any appellant held either a confidential or a policymaking position for which partisan political affiliation might have been a legitimate requirement. See Branti, 445 U.S. at 508, 100 S.Ct. at 1289; An thony v. Sundlun, 952 F.2d 603, 605 (1st Cir.1991).\n. For example, defendants presented the following uncontroverted evidence: 1) in 1985, there were approximately 2,900 City employees, including 906 \"transitory” employees, 459 of whom had been appointed by the former administration in fiscal year 1984 alone; 2) the former mayor had made 250-300 appointments between July and October 1984; 3) in 1984, despite warnings about the City’s worsening budgetary problems, the former mayor renewed all transitory employees' expiring appointments; 4) by 1985, the personnel payroll comprised 80% of the City’s budget; 5) in 1985, defendant Aponte inherited a debt of $116 million, which has since been reduced to $30 million, and an accumulated deficit of $30 million, since reduced to $3 million; and 6) by 1991, there were 1,966 Cily employees, only eight of whom were “transitory’’ employees.\n. Some of the proffered justifications for defendants’ employment actions must be pared to accord with applicable law. Although evidence that an employee was hired in violation of Commonwealth law precludes a finding that the employee possessed a property interest in continued employment, and hence a cognizable due process claim, Kauffman, 841 F.2d at 1173, evidence that an employee’s appointment was a “nullity” under Puerto Rico law ab initio does not control a claim alleging a violation of the employee’s First Amendment right of political affiliation, see Hiraldo-Cancel, 925 F.2d at 13 (“ 'We do not think that a new administration can use the “nullity\" of appointments doctrine as a cover for discharges, transfers, and discrimination based solely on political affiliation’ ”) (quoting Santiago-Negron v. Castro-Davila, 865 F.2d 431, 436-37 (1st Cir.1989)). Although defendants argue that the rationale of Santiago-Negron applies only if the new administration continues to hire new personnel in violation of the Personnel Act, Santiago-Negron rested on the ground that state law does not and cannot define First Amendment rights. Santiago-Negron, 865 F.2d at 436. We do not suggest, however, that evidence relating to the plaintiff-employee’s qualifications under the applicable personnel regulations is immaterial. For example, an employee’s lack of qualifications for the position, at the time of the dismissal, may well be considered a nondiscriminatory basis for the dismissal. The jury must determine whether such a lack of qualifications was a real or pretex-tual justification for the dismissal.\nOn analogous reasoning, we discount two variations on the same defensive theme. First, the fact that some plaintiffs were appointed or promoted during the \"veda,” the electoral prohibition period, is not necessarily controlling in the First Amendment context. “Puerto Rico law is not controlling in the area of first amendment law,” Santiago-Negron, 865 F.2d at 436 (emphasis added), and, in this respect, we see no principled distinction between the Commonwealth’s personnel and electoral laws. Second, it is not necessarily a sufficient defense that a plaintiff did not meet the legally mandated minimum qualifications for the position at the time of appointment. See Hiraldo-Cancel, 925 F.2d at 13; Santiago-Negron, 865 F.2d at 436. Although, as a general rule, an employee’s continuing inability to meet the established minimum qualifications for the position can be a sufficient nondiscriminatory ground for dismissal, cf. Hiraldo-Cancel, 925 F.2d at 14 (reinstatement is a meaningless remedy where the employer, \"under the aegis of valid personnel standards, is empowered to terminate reinstated employees as soon as they dust off their desks”), Santiago-Negron's proscription against post hoc “nullification” would suggest that, to be controlling, the employee’s qualifications should be measured as of the challenged dismissal.\n. Ms. Aponte states that she was constructively dismissed one day after the new administration took office, when she was denied access to her office, told that she was \"not a person of trust,” and given no further duties. Her protests went unanswered.\n. Even though their individualized defenses, in many instances, succumbed to this same \"equivalency\" virus, permitting the juiy to make reasonable substitutions of work experience for educational background, defendants have not challenged these substitutions on appeal.\n.When the new administration took over, Colla-zo's secretary was transferred to another department and Collazo was locked out of her office without warning. Collazo’s husband, who was a NPP unit chairman, and her daughter, were also dismissed from their positions with the City in 1985-86.\n. While conceding that she was among the dismissed messengers with the least seniority, Colon nonetheless argues that the selection criteria were suspect because Commonwealth law requires that reductions in force be justified first on the basis of employee performance ratings, and only then on seniority considerations. See Delbrey v. Municipio de Carolina, 111 P.R.R. 492 (1984). The record indicates, however, that defendants made their selections only after \"considering the criteria of efficiency in the performance of messenger duties and the time of services rendered in that capacity.” (Emphasis added.)\n. In view of Colon’s concession that she lacked the requisite seniority, the other circumstantial evidence was altogether too weak to vault the initial Mt. Healthy hurdle. Colon's political participation was much less frequent and activist than most other appellants. According to her undisputed testimony, she merely participated \"at the polling places, and on the marches in [her] spare time,” and served as \"secretary for the electoral board” in 1984.\n.There are important public policy considerations at stake in these circumstances. First, legitimate efforts by newly-elected officials to impose fiscal constraints and to foster operating efficiencies should not be hamstrung. See Ma-tin-Piazza v. Aponte-Roque, 873 F.2d 432, 434 (1st Cir.1989) (“[W]e are inclined to give a certain amount of leeway to personnel decisions of new administration officials which implement a facially politically neutral reorganization of structure or procedure.”). Newly-elected officials, however well meaning, might be deterred from needed measures to effect economies and efficiencies in governmental operations if a discharged employee’s political affiliation alone were enough to carry her claim to the jury. Second, though there was ample opportunity to raise a genuine factual dispute regarding the legitimacy of the defendants’ \"austerity” program, the defendants demonstrated, without rebuttal, that the City has operated for at least six years with a vastly streamlined messenger staff.\n. At oral argument, defendants contended that plaintiffs’ trial testimony regarding their replacements was too conclusory and lacked factual foundation. However, at trial the defense did not object to plaintiffs' testimony based on lack of foundation. Thus, the jury was entitled to resolve these issues on the basis of its credibility determinations and weighing of the evidence. As the evidence was not challenged at trial, and there has been no showing of \"plain error,” Doty v. Sewall, 908 F.2d 1053, 1057 (1st Cir.1990), we reject their claim on appeal.\n. Like Ms. Colon, see supra text accompanying notes 9-11, Ms. Rivera's NPP activities were peripheral and relatively inconspicuous. She served as a polling unit officer for the NPP, and chaired the NPP Womens' Movement at her local union.\n. In February 1992, the district court denied defendants’ first Rule 50(b) motion. After carefully reviewing its \"notes, defense arguments and the jury verdicts,\" the court based its ruling on the fact that \"the jury individually and meticulously considered each [of the 255] claim[s].” The closeness of these questions is demonstrated by the district court’s equally painstaking reconsideration, as well as our own review.\nWc nevertheless reject plaintiffs’ appeals from the district court ruling denying their reinstatement. A denial of reinstatement is reviewed for \"abuse of discretion,” Hiraldo-Cancel, 925 F.2d at 13, and we will reverse \"only if we are left with a firm conviction that [the district court] has committed 'a meaningful error in judgment.’ ” Rosario-Torres v. Hemandez-Colon, 889 F.2d 314, 323 (1st Cir.1989) (en banc) (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir.1988)). It did not. After assiduously weighing the equities, the district court rejected the reinstatement claims on several sustainable grounds. First, federally compelled reinstate-ments to municipal positions implicate serious comity and federalism concerns, especially in light of the compelling evidence that plaintiffs’ appointments were made in blatant disregard of Commonwealth and municipal personnel and electoral laws, and that the City was operating under severe fiscal constraints, both at the time of the dismissals. Id. (noting that, “[i]n shaping equitable remedies, comity concerns can loom large,” and that \"court-ordered reinstatement of illegally-hired ... workers strikes a particularly jarring note”). Second, significant periods of time elapsed after their dismissals before plaintiffs requested injunctive relief. Id. at 324. Finally, some of the harshness inherent in a refusal to reinstate is diminished where the employee has been awarded significant monetary relief. See Rosario-Torres, 889 F.2d at 322, 324 (contrasting Title VII cases, which do not permit recovery of compensatory or punitive damages, with First Amendment political discrimination cases, which offer a fuller \"palette of available make-whole remedies” to offset a denial of reinstatement).\n. Aponte also asserts that the verdicts should be vacated as inconsistent, since the special verdict did not label Aponte \"liable” for political discrimination and yet found him liable for punitive damages. We reject this contention. A facially inconsistent verdict in a civil action — no rare phenomenon — is not an automatic ground for vacating the verdict. See Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 255-56, 77 L.Ed. 439 (1933). The court \"must attempt to reconcile the jury’s findings, by exegesis if necessary ... before [it is] free to disregard [them].” Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963).\nHere, the findings are readily reconcilable. The jury charge, to which there was no relevant objection, suggested that Aponte’s liability and the municipality's liability could go hand in hand. Since the special verdict form did not specify the need for dual findings on liability, the jury may have reasoned that branding the City \"liable” necessarily incorporated a finding of Aponte’s liability as well. Accordingly, in view of the jury's clear imposition of liability for punitive damages on Aponte, we cannot conclude that the verdict' — naming only the City \"liable” for discrimination — unambiguously or completely exonerated Aponte. Compare DeFeliciano v. DeJesus, 873 F.2d 447, 452 (1st Cir.) (citing cases in which employee was completely exonerated, but employer, whose liability could only derive from employee’s liability, was found liable), cert. denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 107 (1989).", "type": "majority", "author": "CYR, Circuit Judge."}], "attorneys": ["Raul Barrera Morales, Santurce, PR, for plaintiffs, appellants.", "William Reyes Elias, Hato Rey, PR, with whom Cesar R. Miranda Law Office, San Juan, PR, was on brief, for defendants, ap-pellees."], "corrections": "", "head_matter": "Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellees, Ada N. Perez, et al., Plaintiffs, Appellants. Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellees, Dorotea Collazo Rivera, et al., Plaintiffs, Appellants.\nNos. 92-1846, 92-1848.\nUnited States Court of Appeals, First Circuit.\nHeard Feb. 4, 1993.\nDecided Aug. 3, 1993.\nRaul Barrera Morales, Santurce, PR, for plaintiffs, appellants.\nWilliam Reyes Elias, Hato Rey, PR, with whom Cesar R. Miranda Law Office, San Juan, PR, was on brief, for defendants, ap-pellees.\nBefore SELYA, CYR and STAHL, Circuit Judges."}	SELYA	CYR	STAHL	1	1	1	0	0	0	1 F.3d 62	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellees, Ada N. Perez, et al., Plaintiffs, Appellants; Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellees, Dorotea Collazo Rivera, et al., Plaintiffs, Appellants\nCourt: United States Court of Appeals for the First Circuit\nDate decided: 1993-08-03\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCYR, Circuit Judge.\nIn November 1984, Jose E. Aponte, the candidate of the Popular Democratic Party (“PDP”), was elected mayor of the Municipality of Carolina (“City”), Puerto Rico, defeating the incumbent mayor, Roberto Iglesias, the candidate of the New Progressive Party (“NPP”). During his first year in office, Mayor Aponte either terminated, or refused to renew, several hundred non-policymaking city employees hired under the previous administration. In letters of dismissal to the employees, Aponte claimed that the City faced a severe fiscal crisis, and disclosed various criteria for determining which municipal employees were to be terminated in order to effect the necessary economies:\n(1) employees hired without compliance with Commonwealth or municipal personnel laws and regulations, see, e.g., P.R.Laws Ann. tit. 3, §§ 1331-1337, which dictate the public posting of available positions and competitive examinations;\n(2) employees hired or promoted during the 1984 “veda,” or “electoral prohibition period,” a four-month “window” before and after a municipal election during which hiring, renewals, or promotions by the incumbent administration are proscribed by law;\n(3) employees who submitted no documentary proof that they possessed the minimum education and experience required for their positions;\n(4) employees whose job positions were deemed nonessential, and therefore expendable; or\n(5) employees who had committed employment infractions {e.g., unexcused leaves of absence, chronic tardiness).\nIn March 1986, 357 terminated employees, claiming political affiliation with the ousted NPP, brought the present civil rights action under 42 U.S.C. § 1983 against the City, Mayor Aponte, Jose A. del Valle (at times, the acting mayor), and Felix Martinez (the personnel officer). Plaintiffs alleged that their dismissals were due solely to their NPP affiliation, in violation of their First Amendment and due process rights under the United States Constitution. The complaint demanded compensatory and punitive damages, as well as reinstatement.\nThe claims of 255 plaintiffs went to the jury following a four-month trial, and defendant verdicts were returned on the claims of 240 plaintiffs. Six plaintiffs were awarded compensatory damages (from $1700 to $10,-440) against the City, and punitive damages ($25,000) against Aponte, while nine plaintiffs were awarded nominal damages ($1.00) against the City, and punitive damages ($25,000) against Aponte. The district court denied all claims for reinstatement. Finally, in May 1992, the court set 'aside all fifteen plaintiff verdicts. The present appeal is brought by eleven of the fifteen disappointed plaintiffs.\nDISCUSSION\nA. Standard of Review and Applicable Law\nA jury verdict may not be set aside as a matter of law under Fed.R.Civ.P, 50(b) except on a “ ‘determination that the evidence could lead a reasonable person to only one conclusion.’” Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 n. 2 (1st Cir.) (quoting Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir.1987)) (emphasis added), cert. denied, — U.S. -, 112 S.Ct. 637, 116 L.Ed.2d 655 (1991); see Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir.1990). On de novo review, the court of appeals will uphold the verdict unless the facts and inferences, viewed in the light most favorable to the verdict, “point so strongly and overwhelmingly in favor of the movant that a reasonable jury could not have [returned the verdict].” Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 214 (1st Cir.1991); Ferrer, 914 F.2d at 311; Mayo v. Schooner Capital Corp., 825 F.2d 566, 568 (1st Cir.1987).\nIn a political discrimination case, see Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), plaintiffs must bear the threshold burden of producing sufficient direct or circumstantial evidence from which a jury reasonably may infer that plaintiffs’ constitutionally protected conduct—in this case, political affiliation with the NPP—was a “substantial” or “motivating” factor behind their dismissal. See Ferrer, 914 F.2d at 311; Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 13 (1st Cir.1988); Rosaly v. Ignacio, 593 F.2d 145, 148-49 (1st Cir.1979). Once plaintiffs clear the threshold, the burden shifts to defendants to articulate a nondiseriminatory ground for the dismissals, and prove by a preponderance of the evidence that plaintiffs would have been dismissed regardless of their political affiliation. See Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 416, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979); Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 39 (1st Cir.1993); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 264 (1st Cir.1987), cert. denied, 486 U.S. 1044, 108 S.Ct. 2037, 100 L.Ed.2d 621 (1988). Either this “but for” causation test, or the defendant-employer’s “Mt. Healthy defense,” ensures that a plaintiff-employee who would have been dismissed in any event on legitimate grounds is not placed in a better position merely by virtue of the exercise of a constitutional right irrelevant to the adverse employment action. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Acostar-Sepulveda v. Hernandez-Purcell, 889 F.2d 9, 13 (1st Cir.1989); Rosaly, 593 F.2d at 148.\nAfter a careful summarization of the trial evidence, the district court granted defendants’ Rule 50(b) motion for judgment as a matter of law because the bulk of the circumstantial evidence relied on by plaintiffs— namely, their party affiliation and the temporal proximity between their dismissals and Mayor Aponte’s inauguration—was too conjectural and conclusory to counteract the “overwhelming” Mt. Healthy defense, which demonstrated that massive layoffs were compelled as a result of the severe fiscal crisis brought on by the overhiring of City personnel under the previous administration. See Kauffman v. Puerto Rico Tel. Co., 841 F.2d 1169, 1172 (1st Cir.1988) (finding that plaintiffs failed to allege the type of specific evidence of politically discriminatory animus required to avoid summary judgment).\nThe district court opinion compares the Mt. Healthy burden-shifting mechanism to similar devices used in other employment discrimination cases, such as Title VII cases, see, e.g., Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 782 (1st Cir.1990), and ADEA cases, see, e.g., Goldman v. First Nat’l Bank, 985 F.2d 1113, 1116-18 (1st Cir.1993). The opinion states that, once the defendant interposes the Mt. Healthy defense, “the plaintiff then has the opportunity to demonstrate that the alleged nondiscriminatory reason is a false pretext,” which may be accomplished either by “ ‘persuading the [jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that [the] employer’s proffered explanation is unworthy of credence.’” Dist.Ct. Op., at 4 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) (Title VII case)). Although literally correct, the quoted statement gives us pause, especially in light of the citation to Burdine. Since a proper allocation of the burden of persuasion is critical to our assessment of the district court’s decision under Rule 50(b), we first revisit the applicable burden-shifting procedure.\nUnder Title VII, a plaintiff must establish a prima facie ease of employment discrimination, at which point a presumption of discrimination attaches to the plaintiffs claim. A limited burden of production then passes to the employer to articulate a legitimate, nondiscriminatory reason for its actions, a burden which is fully satisfied if the employer submits enough evidence to raise a genuine issue of material fact. The employer need not submit sufficient evidence to “persuade the [fact finder].” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. In other words, notwithstanding the interim shift in the burden of production to the employer, the plaintiff-employee in a Title VII case “retains the burden of persuasion” at all times. Id.\nBy contrast, under the Mt. Healthy burden-shifting mechanism applicable to a First Amendment political discrimination claim, the burden of persuasion itself passes to the defendant-employer once the plaintiff produces sufficient evidence from which the fact finder reasonably can infer that the plaintiffs protected conduct was a “substantial” or “motivating” factor behind her dismissal. Accordingly, once the burden of persuasion shifts to the defendant-employer, the plaintiff-employee will prevail unless the fact finder concludes that the defendant has produced enough evidence to establish that the plaintiffs dismissal would have occurred in any event for nondiscriminatory reasons.\nTherefore, we can sustain a Rule 50(b) reversal in a political discrimination case only if: (1) the record evidence compelled the conclusion that the plaintiff would have been dismissed in any event for nondiscriminatory reasons, or (2) the plaintiff did not' introduce sufficient evidence in the first instance to shift the burden of persuasion to the defendants. We address these alternatives in turn.\nB. The “Austerity” Defense\nThrough numerous expert witnesses and statistical data, defendants attempted to establish that all the challenged dismissals were due to the fiscal crisis inherited by Mayor Aponte when he took office in 1985, which the defendants attributed to mismanagement or illegal patronage hiring practices on the part of, the previous administration. The jury reasonably could have found that the dismissals made by the incoming administration resulted in a 32% net reduction of approximately 900 City employees (from 2,869 to 1,966), and that no new employees were hired to perform the duties of the dismissed plaintiffs. Thus, the jury reasonably could have concluded that a bona fide fiscal crisis would have compelled the vast majority of the challenged dismissals even if the targeted employees had not been affiliated with the NPR.\nDefendants’ well-deployed “austerity” defense apparently thwarted the claims of 240 of the 255 plaintiffs whose cases went to the jury. But blunt instruments make crude scalpels, and the Mt. Healthy defense requires individualized scrutiny by the jury with a view to whether a particular plaintiffs position would have been eliminated under Aponte’s austerity program but for the plaintiffs NPP affiliation. In other words, even though defendants’ overarching austerity defense may have established that massive dismissals were imperative, it did not compel jury verdicts adverse to all plaintiffs. General statistical data regarding net work-force reductions may mask individual dismissals which were purely discriminatory. Here, some plaintiffs testified that their positions remained intact after their termination and specifically identified their replacements; the jury was free to credit this testimony,-despite testimony to the contrary. See Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1385 (1st Cir.1991) (“Once the threshold of sufficiency has been crossed, the credibility of a claimant and its witnesses presents a question for the jury, not for the trial court—and most of all, not for the court of appeals.”).\nCredibility determinations and evidence weighing are not grist for the Rule 50(b) mill. Hendricks, 923 F.2d at 214. As defendants were required to carry the burden of persuasion, and the evidence supporting the Mt. Healthy “austerity” defense did not compel jury acceptance of the claims of all 255 plaintiffs, we turn to the evidence bearing on the individual claims of the eleven appellants.\nC. The Individualized Defenses\nThe defendants attempted to establish their individualized Mt. Healthy defenses at trial based largely on the contemporaneous justifications relied on in Mayor Aponte’s letters of dismissal. See supra p. 65. Under the Mt. Healthy burden-shifting mechanism, the employer’s contemporaneous justifications for an adverse employment action serve at least two important functions. First, to the extent the reasons given by the employer at the time of the dismissal are later proven false or frivolous, the weight of the evidence of discriminatory animus may be enhanced, thereby contributing significantly to the threshold Mt. Healthy showing the plaintiff-employee must make in order to shift the ultimate burden of persuasion to the defendant-employer. Second, once the burden of persuasion has shifted to the employer, the jury would be entitled to find for the plaintiff-employee were it to conclude that the employer did not offer sufficient evidence to demonstrate that (i) the proffered reason for the dismissal was genuine or (ii) a bona fide basis existed which would have prompted the dismissal without regard to the employee’s political affiliation. We reserve these individualized defenses for consideration with plaintiffs’ evidence.\nLeaving aside certain proffered justifications for employee dismissals in the First Amendment political discrimination context, only two individualized defenses remain for our consideration in the present case, based on the evidence relating to each appellant’s claim: (1) whether the plaintiff was qualified for the position at the time of the dismissal, and (2), if so, whether the position was eliminated for nondiseriminatory reasons.\nD. Plaintiffs’ Evidence\nPlaintiffs offered little direct evidence of discriminatory animus. But see infra notes 6 & 8. Nevertheless, as we have held, “circumstantial evidence alone can support a finding of political discrimination.” Anthony, 952 F.2d at 605; Estrada-Izquierdo, 850 F.2d at 14. Certain general observations can be made concerning the circumstantial evidence bearing on the claims of all eleven plaintiffs. Mere temporal proximity between a change of administration and a public employee’s dismissal is insufficient to establish discriminatory animus. Cf. Aviles-Martinez v. Monroig, 968 F.2d 2, 5 (1st Cir.1992) (citing Kauffman, 841 F.2d at 1172). On the other hand, we have noted that the “highly charged political atmosphere” occasioned by the major political shift from the NPP to the PDP throughout the Commonwealth of Puerto Kico in 1984, coupled with the fact that plaintiffs and- defendants are of competing political persuasions, may be probative of discriminatory animus. See Kercado-Melendez, 829 F.2d at 264; see also Anthony, 952 F.2d at 606 (“timing” of dismissal may be suggestive of discriminatory animus); Estrada-Izquierdo, 850 F.2d at 15 (same).. Moreover, the record discloses that these eleven appellants, for the most part, were not quiescent NPP members but played very active or prominent roles in its political activities, publicly and vocally supporting the reeleetion campaign of the former mayor. See Nereida-Gonzalez v. Ti-rado-Delgado, 990 F.2d 701, 706 (1st Cir.1993) (noting evidence that plaintiff was “known” party member); Ferrer, 914 F.2d at 312 (noting that plaintiffs’ political affiliation was not only “well known” but, in some instances, notorious); Kercado-Melendez, 829 F.2d at 264 (noting plaintiffs “long, active, and visible membership” in the opposition party).\nAppellants variously testified at trial that they were (1) members-of the former mayor’s elite “advance team,” a corps of uniformed functionaries responsible for arranging campaign appearances; (2) organizers or participants in pro-NPP political rallies; (3) NPP women and youth coordinators; or (4) polling unit officers or members of electoral colleges. Thus, the jury reasonably could have concluded that those appellants who were publicly identified as close political allies of the former NPP mayor were more conspicuous targets for political discrimination. Standing alone, even the circumstantial evidence that some plaintiffs were especially conspicuous targets for discriminatory employment action by defendants would give us serious pause. With but two exceptions, however, a careful review of the evidence reveals that appellants plainly presented other evidence sufficient to shift the burden of persuasion, effectively foreclosing any realistic claim for Rule 50(b) relief by defendants. We briefly recount the dispositive evidentia-ry considerations bearing on each appellant’s claim.\n1. Brenda Aponte Osorio\nMs. Aponte was dismissed from her “regular” position, as an Executive Officer IV, in May 1985. In addition to other direct evidence of discriminatory animus, the letter of dismissal from Mayor Aponte stated that Ms. Aponte apparently did not possess the qualifications for her position — in particular, a college degree and “considerable” relevant work experience. In fact, the written job description for an Executive Officer IV lists a college degree as “desirable preparation,” but provides that a “combination of preparation and experience will be acceptable”; it defines “experience” as “positions of progressive responsibility ... in the public service, including considerable administrative or supervision experience.” (Emphasis added.) At trial, Ms. Aponte testified that she attended college for three years, and began working for the City in 1978 as a supervisor in the Human Resources Department.\nMs. Aponte presented sufficient evidence to enable a jury to find that she possessed the required qualifications, both at the time of her appointment and dismissal. The jury could have concluded, therefore, that defendants’ contemporaneous justification was a mere pretext for political discrimination. Cf. Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 43 (1st Cir.1992) (reversing summary judgment for defendant; noting that proof that defendant’s asserted nondiscriminatory reason for dismissal was pretextual is a “link in a chain of circumstantial evidence” of political discrimination which, when coupled with allegedly “conclusory” evidence as to the timing of demotion and the parties’ political affiliation, creates a triable issue which the fact finder might resolve in plaintiffs favor); Anthony, 952 F.2d at 606 (plaintiffs obvious qualifications can be circumstantial evidence of discriminatory animus); cf. also Burns v. Gadsden State Community College, 908 F.2d 1512, 1519 (11th Cir.1990) (employer’s exceedingly narrow interpretation of minimum “experience” required for position, coupled with other evidence of discriminatory animus, creates genuine dispute as to whether employer “invented” excuse as pretext to mask improper motive for dismissal in ADEA action). The circumstantial evidence of pretext, coupled with the direct evidence of discriminatory animus, was sufficient to shift the burden of persuasion to defendants. As there was no conclusive evidence that Ms. Aponte would have been dismissed in ány event for a nondiscriminatory reason, the jury verdict must be sustained.\n2. Dorotea Collazo Rivera\nMs. Collazo was dismissed from her “regular” position, as an Administrative Assistant I, in January 1986. The dismissal letter asserted that Collazo’s termination was based on an absence of evidence that she was ever qualified for her position. However, Collazo’s job description merely required a “desirable” (high school diploma) education/experience (“general office work”) mix. Collazo testified that she met the posted academic preparation component of the job description. Moreover, there was no dispute that Collazo, who was appointed to her final position with the City in 1981, previously had been employed as an office clerk for the City since 1976. Thus, Collazo likewise succeeded in shifting the burden of persuasion to the defendants, and defendants simply failed to persuade the jury.\n3. Maria Colon de Jesus\nMs. Colon was dismissed from her “regular” position, as a Messenger, in July 1985. The letter of dismissal stated that the City’s messenger service, with forty-two employees, was “excessive and unnecessary,” that it must be reduced to ten employees as an economy measure, and that the ten employees to be retained had been chosen based on an evaluation of their job performance and seniority.\nMs. Colon conceded that the reduction in force did occur as defendants indicated, and that she lacked the requisite seniority to qualify for one of the ten remaining positions. She points to no particular discriminatory conduct, nor does she contend that (1) messengers with less seniority or lower performance ratings were retained, (2) the City needed more than ten messengers in 1985, or (3) defendants replaced any of the thirty-two dismissed messengers. As Colon’s political affiliation and the timing of her dismissal were the only significant probative evidence supporting her claim, and there was no direct or circumstantial evidence of pretext, the burden of persuasion never shifted to defendants. As no factual dispute was generated concerning the legitimacy of the austerity measures, or Colon’s failure to meet the criteria for retention, the verdict could only have been based on conjecture that Colon would not have been terminated but for her political affiliation. See Ferrer, 914 F.2d at 311 (“plaintiff is not entitled to inferences based on speculation and conjecture”).\n4. Hector L. Encarnación Matos\nEncarnación was dismissed from his “regular” position, as a Computer Operator I, in August 1985. The dismissal letter stated that he lacked the minimum qualifications for the position, which, defendants characterized at trial and on appeal as requiring an “associate degree” in accounting or computer operation. The job description called for a “high school diploma, supplemented by courses in mechanized accounting or programming and one year of experience in that field,” or “[a] combination of academic background and experience.” Thus, contrary to defendants’ mischaracterization at trial, the job description did not require post-secondary school courses sufficient to qualify Encarnación for an associate degree. Moreover, although Encarnación conceded at trial that his post-secondary school courses were not in accounting or programming, and that he had no experience in computer programming pri- or to his appointment, he had acquired two years’ working experience on the job before he was dismissed in 1985, during which time he had received several “excellent” job performance evaluations. See id. at 312-13 (noting that jury could credit circumstantial evidence that plaintiff “performed her duties very well”); Estrada-Izquierdo, 850 F.2d at 14 (finding “probative” the circumstantial evidence that plaintiff “successfully carried out her job” for many years). Encarnacion’s job description was flexible enough to permit the jury to determine that he possessed the necessary qualifications, and that the stated reason for his dismissal was pretextual.\n5. María de Lourdes Escute-Levest\nMs. Escute-Levest was dismissed from her “regular” position, as a Computer Operator I, in October 1985. Initially, defendants contended that she was unqualified, but later retreated to their “nullity of appointment” justification when she protested that she had an associate degree in computer programming. See supra note 5. Escute, a member of the former mayor’s “advance team,” testified at trial — without objection as to the basis of her knowledge — that her position was refilled following her dismissal, suggesting that it was not as expendable as defendants contend on appeal. The cumulative circumstantial evidence of discriminatory animus and pretext was sufficient to shift the burden of persuasion to defendants and to support the jury verdict.\n6. Jesus Garcia Delgado\nGarcia was dismissed from his “regular” position, as a Computer Operator I, in November 1985. Defendants contended that Garcia, who possessed an associate degree in computer programming, did not have the required year of experience in a “related field” at the time he was appointed in 1978. Even so, he had accumulated seven years’ experience by the time he was dismissed, and plainly met all qualifications for the position long before his dismissal. As the jury could have inferred that the justification offered for the dismissal was pretextual, there was enough evidence to shift the burden of persuasion to defendants.\n7. Victor M. Guadalupe Bobonis\nGuadalupe was dismissed for the second time from his “transitory” position, as a municipal guard, in October 1985. In January 1985, the occasion of the first dismissal, the only justifications defendants offered were that his transitory appointment had already lapsed and the position was deemed expendable under the “austerity” program. Mayor Aponte abruptly rescinded the first dismissal letter on January 25, 1985. In June 1985, however, Aponte sent another letter of dismissal, asserting that Guadalupe did not meet the minimum qualifications for the position, and that his original appointment therefore had been illegal. As there was no evidence that Guadalupe did not meet the minimum job qualifications, the jury reasonably could have concluded that defendants’ shifting justifications for Guadalupe’s dismissal amounted to pretextual posturing.\nFurthermore, Guadalupe testified that twelve or fifteen more policemen were hired after his dismissal. See Nereida-Gonzalez, 990 F.2d at 706 (noting that evidence suggesting that defendants’ reorganization was a “sham” may be considered probative of discriminatory animus); Ferrer, 914 F.2d at 311 (“overstaffing” defense undermined by competent evidence from which jury could conclude that defendants later hired replacements to perform same functions entailed by plaintiffs position); see also supra note 12.\n8.Ada N. Perez Colon\nMs. Perez was dismissed from her “regular” position, as an Executive Officer I, in September 1985. Defendants contended that she was not qualified, and alleged that she had taken an unauthorized medical leave, without pay, to undergo surgery. The Executive Officer I position requires a four-year college degree and administrative or supervisory experience, or an “equivalent combination of academic background and experience.” Perez, who was a member of the former mayor’s “advance team,” had attended college for two years, and had worked for the City since 1980 as an officer for the CETA program and a coordinator at the Human Resources Department. Thus, the jury reasonably could have determined that her five-year City work experience was sufficient to offset the, two-year deficit in education. See supra note 7. The jury therefore was free to conclude that both justifications for her dismissal were pretextual.\n9.Evelyn Quinones Osorio\nMs. Quinones was dismissed from her “regular” position, as an Executive Secretary III, in September 1985. Within two weeks after taking office, Mayor Aponte called all mayor’s office employees together and advised that they were “persons who were in trust to the former mayor,” and that they would be replaced or transferred in “due time.” Defendant Martinez also told Qui-nones, a member of the former mayor’s “advance team,” that she “didn’t have his trust.” After training her replacement, Quinones accepted a transfer out of the mayor’s office. She testified that officials of the new administration erased her time cards and, on one occasion, retained her paycheck for six weeks. Defendant Martinez, City personnel officer, told Quinones: “[Tjhose are injustices but I follow orders from above.” (Emphasis added.)\nIn July 1985, after Quinones’ brief tenure in the new secretarial position, Aponte notified her that she would be terminated because she was unqualified for the position. The relevant job description called for a two-year secretarial course, and four years’ secretarial experience, but two years of work experience could be substituted for educational experience. When Quinones provided satisfactory documentation of her educational qualifications, defendants fell back on their “nullity of appointment” defense as the sole ground for her September 1985 dismissal. See supra note 5. Moreover, Osario testified that she had worked as a secretary since 1980, and her final year as an Executive Secretary III clearly qualified her for her new position. Thus, Quinones presented sufficient direct and circumstantial evidence of discriminatory animus and pretext to shift the burden of persuasion.\n10. Carmen Rivera Guadalupe\nMs. Rivera Guadalupe was dismissed from her “transitory” positions, as Child Care worker and Secretary, in January 1986. She was notified that she was being terminated because her transitory appointment had lapsed, and the City could no longer afford to fund the position. Her husband continued to work for the Aponte administration for another five or six years. Like plaintiff Colon, Ms. Rivera offered no evidence that the elimination of her position was in any way pretex-tual, nor that she was ever replaced, let alone by a PDP member. As political affiliation and the timing of the dismissal were insufficient to satisfy her threshold burden of production, the jury verdict must be set aside as conjectural.\n11. Luisa Rivera Serrano\nMs. Rivera Serrano- was dismissed from her “transitory” position, as a Clerk I, in August 1985, ostensibly because her fixed term of employment had expired. Although the jury reasonably could have inferred that her position, like that of Ms. Rivera Guadalupe, would be eliminated on austerity grounds, the implicit rationale for her dismissal was undermined by Ms. Rivera Serrano’s testimony that she was replaced by Rosa Mattos, a PDP member. Defendants’ attempt to undermine Rivera’s testimony, by noting that she previously had identified a different person (Inez) as her replacement, fails. Not only are we precluded from credibility determinations, see Hendricks & Assocs., 923 F.2d at 214, but Rivera offered a plausible explanation for her inconsistent responses: both individuals applied for her former position. As there was ample basis for a reasonable inference that the proffered ground for the dismissal was pretextual, the jury verdict must be upheld.\nCONCLUSION\nWe acknowledge the careful attention the district court has given the evidence in this case. In the Rule 50(b) context, however, we are required to recognize that evidence does not pass through the jury “lens” unrefracted. Our review convinces us that these jury verdicts, with two exceptions, must therefore be reinstated.\nJudgment in accordance with the verdicts must be reinstated for all appellants, with the exception of Maria Colon de Jesus and Carmen Rivera Guadalupe. In all other respects, the district court judgment is affirmed. The case is remanded to the district court for further proceedings not inconsistent herewith. Costs are awarded to the nine prevailing appellants.\n. Three municipal employee classifications were involved in the challenged terminations: (1) \"regular\" employees, occupying permanent or career municipal positions, (2) “transitory” employees, appointed without the usual personnel screening procedures {e.g., postings and competitive examinations), but subject to periodic renewals at the expiration of their fixed terms, and (3) \"contractual\" workers, hired for fixed terms under federally funded programs {e.g., HUD) administered by the City. \"Transitory” employees lack tenure, or a reasonable expectation in the indefinite continuation of their employment after the expiration of their fixed term. While their lack of a property interest in their employment positions generally precludes due process claims for a politically discriminatory dismissal. First Amendment discrimination claims are not precluded. See Santiago-Negron v. Castro-Davila, 865 F.2d 431, 436 (1st Cir.1989); Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 16 (1st Cir.1988).\n. On appeal, certain plaintiffs demand a new trial on compensatory damages, arguing that the jury had no choice but to credit their testimony on damages, especially as it related to their mental suffering and anguish. We summarily reject their argument, as wholly unsupported by the record.\n. The defendants do not contend that any appellant held either a confidential or a policymaking position for which partisan political affiliation might have been a legitimate requirement. See Branti, 445 U.S. at 508, 100 S.Ct. at 1289; An thony v. Sundlun, 952 F.2d 603, 605 (1st Cir.1991).\n. For example, defendants presented the following uncontroverted evidence: 1) in 1985, there were approximately 2,900 City employees, including 906 \"transitory” employees, 459 of whom had been appointed by the former administration in fiscal year 1984 alone; 2) the former mayor had made 250-300 appointments between July and October 1984; 3) in 1984, despite warnings about the City’s worsening budgetary problems, the former mayor renewed all transitory employees' expiring appointments; 4) by 1985, the personnel payroll comprised 80% of the City’s budget; 5) in 1985, defendant Aponte inherited a debt of $116 million, which has since been reduced to $30 million, and an accumulated deficit of $30 million, since reduced to $3 million; and 6) by 1991, there were 1,966 Cily employees, only eight of whom were “transitory’’ employees.\n. Some of the proffered justifications for defendants’ employment actions must be pared to accord with applicable law. Although evidence that an employee was hired in violation of Commonwealth law precludes a finding that the employee possessed a property interest in continued employment, and hence a cognizable due process claim, Kauffman, 841 F.2d at 1173, evidence that an employee’s appointment was a “nullity” under Puerto Rico law ab initio does not control a claim alleging a violation of the employee’s First Amendment right of political affiliation, see Hiraldo-Cancel, 925 F.2d at 13 (“ 'We do not think that a new administration can use the “nullity\" of appointments doctrine as a cover for discharges, transfers, and discrimination based solely on political affiliation’ ”) (quoting Santiago-Negron v. Castro-Davila, 865 F.2d 431, 436-37 (1st Cir.1989)). Although defendants argue that the rationale of Santiago-Negron applies only if the new administration continues to hire new personnel in violation of the Personnel Act, Santiago-Negron rested on the ground that state law does not and cannot define First Amendment rights. Santiago-Negron, 865 F.2d at 436. We do not suggest, however, that evidence relating to the plaintiff-employee’s qualifications under the applicable personnel regulations is immaterial. For example, an employee’s lack of qualifications for the position, at the time of the dismissal, may well be considered a nondiscriminatory basis for the dismissal. The jury must determine whether such a lack of qualifications was a real or pretex-tual justification for the dismissal.\nOn analogous reasoning, we discount two variations on the same defensive theme. First, the fact that some plaintiffs were appointed or promoted during the \"veda,” the electoral prohibition period, is not necessarily controlling in the First Amendment context. “Puerto Rico law is not controlling in the area of first amendment law,” Santiago-Negron, 865 F.2d at 436 (emphasis added), and, in this respect, we see no principled distinction between the Commonwealth’s personnel and electoral laws. Second, it is not necessarily a sufficient defense that a plaintiff did not meet the legally mandated minimum qualifications for the position at the time of appointment. See Hiraldo-Cancel, 925 F.2d at 13; Santiago-Negron, 865 F.2d at 436. Although, as a general rule, an employee’s continuing inability to meet the established minimum qualifications for the position can be a sufficient nondiscriminatory ground for dismissal, cf. Hiraldo-Cancel, 925 F.2d at 14 (reinstatement is a meaningless remedy where the employer, \"under the aegis of valid personnel standards, is empowered to terminate reinstated employees as soon as they dust off their desks”), Santiago-Negron's proscription against post hoc “nullification” would suggest that, to be controlling, the employee’s qualifications should be measured as of the challenged dismissal.\n. Ms. Aponte states that she was constructively dismissed one day after the new administration took office, when she was denied access to her office, told that she was \"not a person of trust,” and given no further duties. Her protests went unanswered.\n. Even though their individualized defenses, in many instances, succumbed to this same \"equivalency\" virus, permitting the juiy to make reasonable substitutions of work experience for educational background, defendants have not challenged these substitutions on appeal.\n.When the new administration took over, Colla-zo's secretary was transferred to another department and Collazo was locked out of her office without warning. Collazo’s husband, who was a NPP unit chairman, and her daughter, were also dismissed from their positions with the City in 1985-86.\n. While conceding that she was among the dismissed messengers with the least seniority, Colon nonetheless argues that the selection criteria were suspect because Commonwealth law requires that reductions in force be justified first on the basis of employee performance ratings, and only then on seniority considerations. See Delbrey v. Municipio de Carolina, 111 P.R.R. 492 (1984). The record indicates, however, that defendants made their selections only after \"considering the criteria of efficiency in the performance of messenger duties and the time of services rendered in that capacity.” (Emphasis added.)\n. In view of Colon’s concession that she lacked the requisite seniority, the other circumstantial evidence was altogether too weak to vault the initial Mt. Healthy hurdle. Colon's political participation was much less frequent and activist than most other appellants. According to her undisputed testimony, she merely participated \"at the polling places, and on the marches in [her] spare time,” and served as \"secretary for the electoral board” in 1984.\n.There are important public policy considerations at stake in these circumstances. First, legitimate efforts by newly-elected officials to impose fiscal constraints and to foster operating efficiencies should not be hamstrung. See Ma-tin-Piazza v. Aponte-Roque, 873 F.2d 432, 434 (1st Cir.1989) (“[W]e are inclined to give a certain amount of leeway to personnel decisions of new administration officials which implement a facially politically neutral reorganization of structure or procedure.”). Newly-elected officials, however well meaning, might be deterred from needed measures to effect economies and efficiencies in governmental operations if a discharged employee’s political affiliation alone were enough to carry her claim to the jury. Second, though there was ample opportunity to raise a genuine factual dispute regarding the legitimacy of the defendants’ \"austerity” program, the defendants demonstrated, without rebuttal, that the City has operated for at least six years with a vastly streamlined messenger staff.\n. At oral argument, defendants contended that plaintiffs’ trial testimony regarding their replacements was too conclusory and lacked factual foundation. However, at trial the defense did not object to plaintiffs' testimony based on lack of foundation. Thus, the jury was entitled to resolve these issues on the basis of its credibility determinations and weighing of the evidence. As the evidence was not challenged at trial, and there has been no showing of \"plain error,” Doty v. Sewall, 908 F.2d 1053, 1057 (1st Cir.1990), we reject their claim on appeal.\n. Like Ms. Colon, see supra text accompanying notes 9-11, Ms. Rivera's NPP activities were peripheral and relatively inconspicuous. She served as a polling unit officer for the NPP, and chaired the NPP Womens' Movement at her local union.\n. In February 1992, the district court denied defendants’ first Rule 50(b) motion. After carefully reviewing its \"notes, defense arguments and the jury verdicts,\" the court based its ruling on the fact that \"the jury individually and meticulously considered each [of the 255] claim[s].” The closeness of these questions is demonstrated by the district court’s equally painstaking reconsideration, as well as our own review.\nWc nevertheless reject plaintiffs’ appeals from the district court ruling denying their reinstatement. A denial of reinstatement is reviewed for \"abuse of discretion,” Hiraldo-Cancel, 925 F.2d at 13, and we will reverse \"only if we are left with a firm conviction that [the district court] has committed 'a meaningful error in judgment.’ ” Rosario-Torres v. Hemandez-Colon, 889 F.2d 314, 323 (1st Cir.1989) (en banc) (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir.1988)). It did not. After assiduously weighing the equities, the district court rejected the reinstatement claims on several sustainable grounds. First, federally compelled reinstate-ments to municipal positions implicate serious comity and federalism concerns, especially in light of the compelling evidence that plaintiffs’ appointments were made in blatant disregard of Commonwealth and municipal personnel and electoral laws, and that the City was operating under severe fiscal constraints, both at the time of the dismissals. Id. (noting that, “[i]n shaping equitable remedies, comity concerns can loom large,” and that \"court-ordered reinstatement of illegally-hired ... workers strikes a particularly jarring note”). Second, significant periods of time elapsed after their dismissals before plaintiffs requested injunctive relief. Id. at 324. Finally, some of the harshness inherent in a refusal to reinstate is diminished where the employee has been awarded significant monetary relief. See Rosario-Torres, 889 F.2d at 322, 324 (contrasting Title VII cases, which do not permit recovery of compensatory or punitive damages, with First Amendment political discrimination cases, which offer a fuller \"palette of available make-whole remedies” to offset a denial of reinstatement).\n. Aponte also asserts that the verdicts should be vacated as inconsistent, since the special verdict did not label Aponte \"liable” for political discrimination and yet found him liable for punitive damages. We reject this contention. A facially inconsistent verdict in a civil action — no rare phenomenon — is not an automatic ground for vacating the verdict. See Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 255-56, 77 L.Ed. 439 (1933). The court \"must attempt to reconcile the jury’s findings, by exegesis if necessary ... before [it is] free to disregard [them].” Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963).\nHere, the findings are readily reconcilable. The jury charge, to which there was no relevant objection, suggested that Aponte’s liability and the municipality's liability could go hand in hand. Since the special verdict form did not specify the need for dual findings on liability, the jury may have reasoned that branding the City \"liable” necessarily incorporated a finding of Aponte’s liability as well. Accordingly, in view of the jury's clear imposition of liability for punitive damages on Aponte, we cannot conclude that the verdict' — naming only the City \"liable” for discrimination — unambiguously or completely exonerated Aponte. Compare DeFeliciano v. DeJesus, 873 F.2d 447, 452 (1st Cir.) (citing cases in which employee was completely exonerated, but employer, whose liability could only derive from employee’s liability, was found liable), cert. denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 107 (1989).\n[END_CASE]", "role": "user" } ]
10,507,866	Sandra ROLON-ALVARADO, Plaintiff, Appellant, v. MUNICIPALITY OF SAN JUAN, Defendant, Appellee	Rolon-Alvarado v. Municipality of San Juan	1993-08-09	No. 92-2298	United States Court of Appeals for the First Circuit	{"judges": ["Before SELYA, CYR and STAHL, Circuit Judges."], "parties": ["Sandra ROLON-ALVARADO, Plaintiff, Appellant, v. MUNICIPALITY OF SAN JUAN, Defendant, Appellee."], "opinions": [{"text": "SELYA, Circuit Judge.\nThis appeal necessitates that we consider the quantum and character of proof needed under Puerto Rico law in a medical malpractice case. The lower court found plaintiffs evidence to be apterous and grounded her suit before it reached the jury. We affirm.\nI\nPlaintiff-appellant Sandra Rolon-Alvarado is a citizen and resident of New York. She is also a surviving daughter of Efrain Rolon-Robles, who died while undergoing treatment at a hospital operated by defendant-appellee (a municipality).\nThe facts leading up to Rolon-Robles’s demise are largely uncontradicted. Rolon-Robles began experiencing abdominal pain on May 4, 1990. The next day, he was admitted to San Juan Municipal Hospital for treatment of an intestinal obstruction. While being rehydrated in preparation for surgery on May 6, Rolon-Robles remarked that the abdominal pain had abated. The attending physicians took this as an indication that he probably had a paralytic ileus rather than an intestinal obstruction. Consequently, they postponed the scheduled surgery.\nAs the hours went by, the patient’s condition deteriorated. The doctors reversed their field, reinstated the original diagnosis, and operated on May 7. Rolon-Robles remained in stable condition until later that day, when an endotracheal tube, reinserted in the immediate aftermath of the surgery, snapped. While a physician attempted to replace the broken tube, Rolon-Robles went into cardiorespiratory arrest. Shortly thereafter, he expired.\nThe parties draw vastly different inferences from this set of facts. One series of inferences prompted plaintiff to bring the instant action in Puerto Rico’s federal district court. Invoking diversity jurisdiction, see 28 U.S.C. § 1332(a) (1988), she alleged that her father died due to the careless and negligent treatment he received at the hospital. Defendant, preferring a far more flattering series of inferences, denied the allegations.\nIn the course of discovery, plaintiff refined her charges into four basic claims. Three sounded in ordinary negligence: that defendant’s agents (the hospital and the staff), heedless of their obligation to exercise due care, (1) delayed surgery, (2) misdiagnosed her father’s condition, and (3) left him unattended during critical stages of the postoperative period. The fourth claim posited that the defendant should be held strictly liable for the ruptured endotracheal tube. At trial, plaintiff attempted to prove her claims. When she rested, the district court granted defendant’s motion for judgment as a matter of law. See Fed.R.Civ.P. 50(a)(1). This appeal followed.\nII\nWe restate, in capsule form, the principles that govern judicial consideration of motions under Rule 50(a).\nA trial court, confronted with a motion for judgment as a matter of law, whether at the end of the plaintiffs case or at the close of all the evidence, must scrutinize the proof and the inferences reasonably to be drawn therefrom in the light most hospitable to the nonmovant. See Lowe v. Scott, 959 F.2d 323, 337 (1st Cir.1992); Santiago Hodge v. Parke Davis & Co., 909 F.2d 628, 634 (1st Cir.1990); Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987). In conducting that perscrutation, the court must refrain from differential factfinding; that is to say, the court must “not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence.” Wagenmann, 829 F.2d at 200. A verdict may be directed only if the evidence, viewed from this perspective, is such that reasonable minds could not differ as to the outcome. See Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1383 (1st Cir.1991); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st Cir.1980).\nWhen, as now, a disappointed suitor seeks to set aside a directed verdict, the court of appeals is constrained in precisely the same fashion as the district court. For this reason, and because the key question revolves around the legal sufficiency of the evidence, appellate review is plenary. See Salve Regina Coll. v. Russell, 499 U.S. 226, 231-32, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Jordan-Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 34 (1st Cir.1992).\nIll\nThe substantive law of Puerto Rico controls in this diversity suit. To establish a prima facie case of medical malpractice under that law, a plaintiff must adduce evidence showing at least three separate things: (1) the duty owed, expressed as the minimum standard of professional knowledge and skill required under the circumstances then obtaining; (2) a breach of that duty attributable to the defendant; and (3) a sufficient causal nexus between the breach and the plaintiffs claimed injury. See Sierra Perez v. United States, 779 F.Supp. 637, 643 (D.P.R.1991); Crespo v. Hernandez, 121 P.R.Dec. 639, 650 (1988); Medina Santiago v. Velez, 120 P.R.Dec. 380, 385 (1988). The district court concluded that Rolon-Alvarado’s proof, viewed in the light most favorable to her, did not suffice to establish any of these three elements. We agree with the court below that plaintiff did not prove a prima facie case.\nA\nWe begin — and end — our consideration of plaintiffs first three claims by focusing on her abortive attempt to delineate the duty owed. In 1973, Puerto Rico jettisoned the so-called “locality” or “community standard” rule in favor of a more universal, less parochial approach to establishing the standard of acceptable care for purposes of a medical malpractice suit. See Valendon Martinez v. Hospital Presbiteriano, 806 F.2d 1128, 1135-36 (1st Cir.1986) (discussing effect of Oliveros v. Abreu, 101 P.R.Dec. 209 (1973)). Today, a physician is expected to possess, and use, that level of knowledge and skill prevalent in his or her specialty generally, not simply the knowledge and skill commonly displayed in the community or immediate geographic region where the treatment is administered. See Oliveros, 101 P.R.Dec. at 223, 226-27, translated, in 1 P.R.Sup.Ct. Off'l Translations 293, at 303, 313. In other words, a health-care provider has a duty to use the same degree of expertise as could reasonably be expected of a typically competent practitioner in the identical specialty under the same or similar circumstances, regardless of regional variations in professional acumen or level of care.\nUnder the law of Puerto Rico, “there exists always a presumption that the treating physicians have observed a reasonable degree of care ... in the process of giving medical attention and treatment.” Del Valle Rivera v. United States, 630 F.Supp. 750, 756 (D.P.R.1986). Plaintiff bears the burden of refuting this presumption. See id. To do so, she must first establish the physician’s duty. Because medical knowledge and training are critical to demonstrating the parameters of a health-care provider’s duty, the minimum standard of acceptable care is almost always a matter of informed opinion. Thus, it must ordinarily be established by expert testimony. See Oliveros, 1 P.R.Sup.Ct.Off'l Translations at 315; see also Bellecourt v. United States, 994 F.2d 427, 431-32 (8th Cir.1993) (applying Minnesota law) [1993 U.S.App. LEXIS 11,088, at *11]; Dunning v. Kerzner, 910 F.2d 1009, 1014 (1st Cir.1990) (applying Rhode Island law); Crowley v. United States, 773 F.Supp. 98, 102 (N.D.Ill.1991). No such testimony graces this record.\nTo be sure, plaintiff presented an expert witness, Dr. Piza. But, Dr. Piza did not testify anent duties or standards of care. Rather, he testified as to what he would have done differently in managing the decedent’s case. Medicine, however, is not an exact science. It is, therefore, insufficient for a plaintiff in a malpractice case merely to show that another doctor would have chosen to treat the patient in a manner different from the manner in which the attending physicians treated him. See, e.g., Campbell v. United States, 904 F.2d 1188, 1192 (7th Cir.1990); Polikoff v. United States, 776 F.Supp. 1417, 1421 (S.D.Cal.1991); East v. United States, 745 F.Supp. 1142, 1149 (D.Md.1990); Walski v. Tiesengas, 72 Ill.2d 249, 21 Ill.Dec. 201, 207, 381 N.E.2d 279, 285 (1978).\nWe have no doubt that Puerto Rico would follow this rule; indeed, in what amounts to a variation on the same theme, the Puerto Rico Supreme Court has held that even an acknowledged error in medical judgment cannot support a malpractice claim so long as the mistake is reasonable. See Oliveros, 1 P.R.Sup.Ct.Off'l Translations at 314; see also Suarez Matos v. Ashford Presbyterian Community Hosp., 4 F.3d 47, 50 (1st Cir.1993) (suggesting that, in Puerto Rico, a mistake in diagnosis will not necessarily constitute malpractice); Del Valle Rivera, 630 F.Supp. at 756 (stating that, under Puerto Rico’s jurisprudence, a plaintiff who charges a physician with malpractice must establish that the defendant’s fault “is more than a mere hindsight possibility”). In sum, tort law neither holds a doctor to a standard of perfection nor makes him an insurer of his patient’s well-being. Professional standards require normative judgments, not merely proof that a better way to treat a particular patient could have been devised.\nAgainst this backdrop, plaintiffs first three statements of claim cannot survive scrutiny. As to the one-day delay in operating, Dr. Piza made it clear that he would have put Rolon-Robles under the knife on May 6 rather than waiting until May 7 — but he offered no enlightenment on the subject of the prevailing standard by which decisions on the timing of such operations might be held to fall outside the range of reasonable judgments. By like token, while Dr. Piza testified that he disagreed with the mid-stream change in diagnosis, and the way in which the hospital monitored the patient postopera-tively, he failed to advance any basis on which applicable standards could be fixed or, conversely, against which defendant’s conduct could be measured. The mere fact that Dr. Piza might have selected a particular approach or method of treatment does not, without more, establish that a different approach or method, even if unsuccessful, fell short of the duty owed. Nor did the witness’s references to generalities contained in a learned treatise bridge the gap.\nThe short of it is that, as the district court found, the evidentiary predicate in regard to standards of care is wholly inadequate; and without such a predicate, the jury had no legally satisfactory basis for making a reasoned determination as to whether defendant’s employees were negligent in caring for Rolon-Robles. Consequently, plaintiff could not carry her burden of proof.\nOf course, the law recognizes a narrowly configured exception to the general rule requiring expert testimony in medical malpractice cases. Although courts have formulated the exception in divers ways — it has been variously described as implicating situations where common knowledge and experience are all that is necessary to comprehend a defendant’s negligence, see, e.g., Nixdorf v. Hicken, 612 P.2d 348, 362 (Utah 1980) (applying exception to loss of surgical instrument within an incision), or where negligence is grossly apparent, see, e.g., Thomas v. Corso, 266 Md. 84, 288 A.2d 379, 388 (1972) (applying exception to physician’s outright failure to attend a patient), or where a doctor’s conduct violates a set standard, see, e.g., Monk v. Doctors Hosp., 403 F.2d 580, 583 (D.C.Cir.1968) (applying exception to provider’s contravention of manufacturer’s instruction manual for operation of electrosurgieal machine) — we think that the exception encompasses only those few situations in which the claimed medical malpractice is sufficiently blatant or patent that lay persons, relying on common knowledge and experience, can legitimately recognize or infer negligence. Cf. Wagenmann, 829 F.2d at 218-20 (discussing circumstances under which expert testimony may properly be foregone in eases of claimed legal malpractice).\nHowever it may be fine-tuned, the exception does not sweep so broadly as to avail the present plaintiff. The questions plaintiff has raised anent decedent’s care involve matters of timing, differential diagnosis, and hospital protocol — matters which are neither obvious to the untrained eye nor, by any stretch, ■within a layman’s ken. Where, as here, medical personnel make on-the-spot decisions, requiring sophisticated medical insights, a jury cannot be expected to evaluate those judgment calls without the aid of expert opinion. And, because expert testimony is necessary to demonstrate the claimed negligence of defendant’s agents under the circumstances at hand, this case does not fit within the isthmian confines of the exception.\nWe conclude, therefore, given the paucity of the proof, especially the absence of expert testimony concerning applicable standards of acceptable care, that the district court properly directed a verdict on plaintiffs first three claims.\nB\nWe have left for last plaintiffs contention that liability can be premised on the splintered endotracheal tube. On this issue, independent proof of a standard of care might not be required if, as plaintiff says, the doctrine of res ipsa loquitur pertains. Nonetheless, we think that plaintiffs reliance on the doctrine is mislaid.\nFor the doctrine of res ipsa loquitur to apply, a plaintiff must establish that an occurrence is “(1) ... of a kind which does not ordinarily take place unless someone is negligent; (2) caused by an agency or instrumentality within the defendant’s exclusive control; and (3) not due to any voluntary action on the part of the plaintiff.” De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 123 (1st Cir.1991) (applying Puerto Rico law); accord Colmenares Vivas v. Sun Alliance Ins. Co., 807 F.2d 1102, 1104 (1st Cir.1986). Here, plaintiffs own expert, Dr. Piza, testified categorically that the breaking of the tube “could not be foreseen”; that mechanical mishaps of this sort frequently happen in the absence of provider negligence; that, in general, “there is no possible malpractice in the rupture of a mechanical device”; and that, in this specific situation, the attending physicians and nurses were blameless. Thus, res ipsa loquitur has no bearing on the case. It follows that plaintiffs fourth statement of claim is meritless.\nIV\nWe need go no further. On this impoverished record, the district court correctly withheld the case from the jury and directed a verdict in favor of the defendant.\nAffirmed. See 1st Cir.Loc.R. 27.1.\n. First Circuit Local Rule 30.7 provides in pertinent part that, \"[w]henever an opinion of the Supreme Court of Puerto Rico is cited in a brief ... [and] does not appear in the bound volumes in English, an official, certified or stipulated translation thereof with three conformed copies shall be filed.” In this instance, the parties have cited several such cases without supplying translations. Although we have coped by using informal translations of the opinions in question, we remind litigants of their obligations under Local Rule 30.7 and forewarn the bar that, in the future, we will insist upon strict observance of the rule.\n. The elements of this cause of action under Puerto Rico law are comparable to the elements of a cause of action for medical, malpractice elsewhere. See, e.g., Mills v. Levy, 537 F.2d 1331, 1332 (5th Cir.1976) (applying Louisiana law); MacDonald v. United States, 767 F.Supp. 1295, 1307 (M.D.Pa.1991) (applying Pennsylvania law); MacGuineas v. United States, 738 F.Supp. 566, 569 (D.D.C.1990) (applying Maryland law); Powers v. United States, 589 F.Supp. 1084, 1099 (D.Conn.1984) (applying Connecticut law).\n. Another physician, Dr. Mercado, also testified in plaintiff's behalf. However, Dr. Mercado did not qualify as an expert in surgery and the district court limited his testimony accordingly. On appeal, plaintiff does not assign error to this ruling. Nothing in Dr. Mercado's remaining testimony adds materially to Dr. Piza's comments or otherwise assists in filling the standard-of-care void.\n. Although plaintiff has cited no Puerto Rico cases endorsing this exception, we assume for present purposes, albeit without deciding, that the Puerto Rico Supreme Court would follow the majority view and adopt the exception.\n. Plaintiff initially pleaded strict liability, but abandoned this approach at trial in favor of a res ipsa loquitur theory. In any event, it is hornbook law that a health-care provider cannot be held strictly liable for a latent defect in a medical device manufactured by a third party. See, e.g., Hoff v. Zimmer, Inc., 746 F.Supp. 872, 874 (W.D.Wis.1990); NME Hosp. v. Azzariti, 573 So.2d 173, 173 (Fla.1991) (per curiam); Silverhart v. Mt. Zion Hosp., 20 Cal.App.3d 1022, 1028, 98 Cal.Rptr. 187 (1971).\n. Since plaintiff failed to prove the minimum standard of care owed by defendant to her decedent, we need not dwell on the other deficiencies that the district court attributed to her case. It suffices to say that, absent proof of the legal duty owed by a defendant to a plaintiff in a medical malpractice suit, it is virtually impossible to prove either breach or proximate cause; breach, after all, depends directly on the contours of the duty owed, and proximate cause, in turn, depends on the nature and effect of the breach.", "type": "majority", "author": "SELYA, Circuit Judge."}], "attorneys": ["Pedro J. Varela and Jose E. Colon, on brief, for plaintiff, appellant.", "Thomas Doran Gelabert and Eli B. Arroyo, on brief, for defendant, appellee."], "corrections": "", "head_matter": "Sandra ROLON-ALVARADO, Plaintiff, Appellant, v. MUNICIPALITY OF SAN JUAN, Defendant, Appellee.\nNo. 92-2298.\nUnited States Court of Appeals, First Circuit.\nSubmitted June 9, 1993.\nDecided Aug. 9, 1993.\nPedro J. Varela and Jose E. Colon, on brief, for plaintiff, appellant.\nThomas Doran Gelabert and Eli B. Arroyo, on brief, for defendant, appellee.\nBefore SELYA, CYR and STAHL, Circuit Judges."}	SELYA	CYR	STAHL	1	1	1	0	0	0	1 F.3d 74	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Sandra ROLON-ALVARADO, Plaintiff, Appellant, v. MUNICIPALITY OF SAN JUAN, Defendant, Appellee\nCourt: United States Court of Appeals for the First Circuit\nDate decided: 1993-08-09\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nSELYA, Circuit Judge.\nThis appeal necessitates that we consider the quantum and character of proof needed under Puerto Rico law in a medical malpractice case. The lower court found plaintiffs evidence to be apterous and grounded her suit before it reached the jury. We affirm.\nI\nPlaintiff-appellant Sandra Rolon-Alvarado is a citizen and resident of New York. She is also a surviving daughter of Efrain Rolon-Robles, who died while undergoing treatment at a hospital operated by defendant-appellee (a municipality).\nThe facts leading up to Rolon-Robles’s demise are largely uncontradicted. Rolon-Robles began experiencing abdominal pain on May 4, 1990. The next day, he was admitted to San Juan Municipal Hospital for treatment of an intestinal obstruction. While being rehydrated in preparation for surgery on May 6, Rolon-Robles remarked that the abdominal pain had abated. The attending physicians took this as an indication that he probably had a paralytic ileus rather than an intestinal obstruction. Consequently, they postponed the scheduled surgery.\nAs the hours went by, the patient’s condition deteriorated. The doctors reversed their field, reinstated the original diagnosis, and operated on May 7. Rolon-Robles remained in stable condition until later that day, when an endotracheal tube, reinserted in the immediate aftermath of the surgery, snapped. While a physician attempted to replace the broken tube, Rolon-Robles went into cardiorespiratory arrest. Shortly thereafter, he expired.\nThe parties draw vastly different inferences from this set of facts. One series of inferences prompted plaintiff to bring the instant action in Puerto Rico’s federal district court. Invoking diversity jurisdiction, see 28 U.S.C. § 1332(a) (1988), she alleged that her father died due to the careless and negligent treatment he received at the hospital. Defendant, preferring a far more flattering series of inferences, denied the allegations.\nIn the course of discovery, plaintiff refined her charges into four basic claims. Three sounded in ordinary negligence: that defendant’s agents (the hospital and the staff), heedless of their obligation to exercise due care, (1) delayed surgery, (2) misdiagnosed her father’s condition, and (3) left him unattended during critical stages of the postoperative period. The fourth claim posited that the defendant should be held strictly liable for the ruptured endotracheal tube. At trial, plaintiff attempted to prove her claims. When she rested, the district court granted defendant’s motion for judgment as a matter of law. See Fed.R.Civ.P. 50(a)(1). This appeal followed.\nII\nWe restate, in capsule form, the principles that govern judicial consideration of motions under Rule 50(a).\nA trial court, confronted with a motion for judgment as a matter of law, whether at the end of the plaintiffs case or at the close of all the evidence, must scrutinize the proof and the inferences reasonably to be drawn therefrom in the light most hospitable to the nonmovant. See Lowe v. Scott, 959 F.2d 323, 337 (1st Cir.1992); Santiago Hodge v. Parke Davis & Co., 909 F.2d 628, 634 (1st Cir.1990); Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987). In conducting that perscrutation, the court must refrain from differential factfinding; that is to say, the court must “not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence.” Wagenmann, 829 F.2d at 200. A verdict may be directed only if the evidence, viewed from this perspective, is such that reasonable minds could not differ as to the outcome. See Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1383 (1st Cir.1991); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st Cir.1980).\nWhen, as now, a disappointed suitor seeks to set aside a directed verdict, the court of appeals is constrained in precisely the same fashion as the district court. For this reason, and because the key question revolves around the legal sufficiency of the evidence, appellate review is plenary. See Salve Regina Coll. v. Russell, 499 U.S. 226, 231-32, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Jordan-Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 34 (1st Cir.1992).\nIll\nThe substantive law of Puerto Rico controls in this diversity suit. To establish a prima facie case of medical malpractice under that law, a plaintiff must adduce evidence showing at least three separate things: (1) the duty owed, expressed as the minimum standard of professional knowledge and skill required under the circumstances then obtaining; (2) a breach of that duty attributable to the defendant; and (3) a sufficient causal nexus between the breach and the plaintiffs claimed injury. See Sierra Perez v. United States, 779 F.Supp. 637, 643 (D.P.R.1991); Crespo v. Hernandez, 121 P.R.Dec. 639, 650 (1988); Medina Santiago v. Velez, 120 P.R.Dec. 380, 385 (1988). The district court concluded that Rolon-Alvarado’s proof, viewed in the light most favorable to her, did not suffice to establish any of these three elements. We agree with the court below that plaintiff did not prove a prima facie case.\nA\nWe begin — and end — our consideration of plaintiffs first three claims by focusing on her abortive attempt to delineate the duty owed. In 1973, Puerto Rico jettisoned the so-called “locality” or “community standard” rule in favor of a more universal, less parochial approach to establishing the standard of acceptable care for purposes of a medical malpractice suit. See Valendon Martinez v. Hospital Presbiteriano, 806 F.2d 1128, 1135-36 (1st Cir.1986) (discussing effect of Oliveros v. Abreu, 101 P.R.Dec. 209 (1973)). Today, a physician is expected to possess, and use, that level of knowledge and skill prevalent in his or her specialty generally, not simply the knowledge and skill commonly displayed in the community or immediate geographic region where the treatment is administered. See Oliveros, 101 P.R.Dec. at 223, 226-27, translated, in 1 P.R.Sup.Ct. Off'l Translations 293, at 303, 313. In other words, a health-care provider has a duty to use the same degree of expertise as could reasonably be expected of a typically competent practitioner in the identical specialty under the same or similar circumstances, regardless of regional variations in professional acumen or level of care.\nUnder the law of Puerto Rico, “there exists always a presumption that the treating physicians have observed a reasonable degree of care ... in the process of giving medical attention and treatment.” Del Valle Rivera v. United States, 630 F.Supp. 750, 756 (D.P.R.1986). Plaintiff bears the burden of refuting this presumption. See id. To do so, she must first establish the physician’s duty. Because medical knowledge and training are critical to demonstrating the parameters of a health-care provider’s duty, the minimum standard of acceptable care is almost always a matter of informed opinion. Thus, it must ordinarily be established by expert testimony. See Oliveros, 1 P.R.Sup.Ct.Off'l Translations at 315; see also Bellecourt v. United States, 994 F.2d 427, 431-32 (8th Cir.1993) (applying Minnesota law) [1993 U.S.App. LEXIS 11,088, at *11]; Dunning v. Kerzner, 910 F.2d 1009, 1014 (1st Cir.1990) (applying Rhode Island law); Crowley v. United States, 773 F.Supp. 98, 102 (N.D.Ill.1991). No such testimony graces this record.\nTo be sure, plaintiff presented an expert witness, Dr. Piza. But, Dr. Piza did not testify anent duties or standards of care. Rather, he testified as to what he would have done differently in managing the decedent’s case. Medicine, however, is not an exact science. It is, therefore, insufficient for a plaintiff in a malpractice case merely to show that another doctor would have chosen to treat the patient in a manner different from the manner in which the attending physicians treated him. See, e.g., Campbell v. United States, 904 F.2d 1188, 1192 (7th Cir.1990); Polikoff v. United States, 776 F.Supp. 1417, 1421 (S.D.Cal.1991); East v. United States, 745 F.Supp. 1142, 1149 (D.Md.1990); Walski v. Tiesengas, 72 Ill.2d 249, 21 Ill.Dec. 201, 207, 381 N.E.2d 279, 285 (1978).\nWe have no doubt that Puerto Rico would follow this rule; indeed, in what amounts to a variation on the same theme, the Puerto Rico Supreme Court has held that even an acknowledged error in medical judgment cannot support a malpractice claim so long as the mistake is reasonable. See Oliveros, 1 P.R.Sup.Ct.Off'l Translations at 314; see also Suarez Matos v. Ashford Presbyterian Community Hosp., 4 F.3d 47, 50 (1st Cir.1993) (suggesting that, in Puerto Rico, a mistake in diagnosis will not necessarily constitute malpractice); Del Valle Rivera, 630 F.Supp. at 756 (stating that, under Puerto Rico’s jurisprudence, a plaintiff who charges a physician with malpractice must establish that the defendant’s fault “is more than a mere hindsight possibility”). In sum, tort law neither holds a doctor to a standard of perfection nor makes him an insurer of his patient’s well-being. Professional standards require normative judgments, not merely proof that a better way to treat a particular patient could have been devised.\nAgainst this backdrop, plaintiffs first three statements of claim cannot survive scrutiny. As to the one-day delay in operating, Dr. Piza made it clear that he would have put Rolon-Robles under the knife on May 6 rather than waiting until May 7 — but he offered no enlightenment on the subject of the prevailing standard by which decisions on the timing of such operations might be held to fall outside the range of reasonable judgments. By like token, while Dr. Piza testified that he disagreed with the mid-stream change in diagnosis, and the way in which the hospital monitored the patient postopera-tively, he failed to advance any basis on which applicable standards could be fixed or, conversely, against which defendant’s conduct could be measured. The mere fact that Dr. Piza might have selected a particular approach or method of treatment does not, without more, establish that a different approach or method, even if unsuccessful, fell short of the duty owed. Nor did the witness’s references to generalities contained in a learned treatise bridge the gap.\nThe short of it is that, as the district court found, the evidentiary predicate in regard to standards of care is wholly inadequate; and without such a predicate, the jury had no legally satisfactory basis for making a reasoned determination as to whether defendant’s employees were negligent in caring for Rolon-Robles. Consequently, plaintiff could not carry her burden of proof.\nOf course, the law recognizes a narrowly configured exception to the general rule requiring expert testimony in medical malpractice cases. Although courts have formulated the exception in divers ways — it has been variously described as implicating situations where common knowledge and experience are all that is necessary to comprehend a defendant’s negligence, see, e.g., Nixdorf v. Hicken, 612 P.2d 348, 362 (Utah 1980) (applying exception to loss of surgical instrument within an incision), or where negligence is grossly apparent, see, e.g., Thomas v. Corso, 266 Md. 84, 288 A.2d 379, 388 (1972) (applying exception to physician’s outright failure to attend a patient), or where a doctor’s conduct violates a set standard, see, e.g., Monk v. Doctors Hosp., 403 F.2d 580, 583 (D.C.Cir.1968) (applying exception to provider’s contravention of manufacturer’s instruction manual for operation of electrosurgieal machine) — we think that the exception encompasses only those few situations in which the claimed medical malpractice is sufficiently blatant or patent that lay persons, relying on common knowledge and experience, can legitimately recognize or infer negligence. Cf. Wagenmann, 829 F.2d at 218-20 (discussing circumstances under which expert testimony may properly be foregone in eases of claimed legal malpractice).\nHowever it may be fine-tuned, the exception does not sweep so broadly as to avail the present plaintiff. The questions plaintiff has raised anent decedent’s care involve matters of timing, differential diagnosis, and hospital protocol — matters which are neither obvious to the untrained eye nor, by any stretch, ■within a layman’s ken. Where, as here, medical personnel make on-the-spot decisions, requiring sophisticated medical insights, a jury cannot be expected to evaluate those judgment calls without the aid of expert opinion. And, because expert testimony is necessary to demonstrate the claimed negligence of defendant’s agents under the circumstances at hand, this case does not fit within the isthmian confines of the exception.\nWe conclude, therefore, given the paucity of the proof, especially the absence of expert testimony concerning applicable standards of acceptable care, that the district court properly directed a verdict on plaintiffs first three claims.\nB\nWe have left for last plaintiffs contention that liability can be premised on the splintered endotracheal tube. On this issue, independent proof of a standard of care might not be required if, as plaintiff says, the doctrine of res ipsa loquitur pertains. Nonetheless, we think that plaintiffs reliance on the doctrine is mislaid.\nFor the doctrine of res ipsa loquitur to apply, a plaintiff must establish that an occurrence is “(1) ... of a kind which does not ordinarily take place unless someone is negligent; (2) caused by an agency or instrumentality within the defendant’s exclusive control; and (3) not due to any voluntary action on the part of the plaintiff.” De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 123 (1st Cir.1991) (applying Puerto Rico law); accord Colmenares Vivas v. Sun Alliance Ins. Co., 807 F.2d 1102, 1104 (1st Cir.1986). Here, plaintiffs own expert, Dr. Piza, testified categorically that the breaking of the tube “could not be foreseen”; that mechanical mishaps of this sort frequently happen in the absence of provider negligence; that, in general, “there is no possible malpractice in the rupture of a mechanical device”; and that, in this specific situation, the attending physicians and nurses were blameless. Thus, res ipsa loquitur has no bearing on the case. It follows that plaintiffs fourth statement of claim is meritless.\nIV\nWe need go no further. On this impoverished record, the district court correctly withheld the case from the jury and directed a verdict in favor of the defendant.\nAffirmed. See 1st Cir.Loc.R. 27.1.\n. First Circuit Local Rule 30.7 provides in pertinent part that, \"[w]henever an opinion of the Supreme Court of Puerto Rico is cited in a brief ... [and] does not appear in the bound volumes in English, an official, certified or stipulated translation thereof with three conformed copies shall be filed.” In this instance, the parties have cited several such cases without supplying translations. Although we have coped by using informal translations of the opinions in question, we remind litigants of their obligations under Local Rule 30.7 and forewarn the bar that, in the future, we will insist upon strict observance of the rule.\n. The elements of this cause of action under Puerto Rico law are comparable to the elements of a cause of action for medical, malpractice elsewhere. See, e.g., Mills v. Levy, 537 F.2d 1331, 1332 (5th Cir.1976) (applying Louisiana law); MacDonald v. United States, 767 F.Supp. 1295, 1307 (M.D.Pa.1991) (applying Pennsylvania law); MacGuineas v. United States, 738 F.Supp. 566, 569 (D.D.C.1990) (applying Maryland law); Powers v. United States, 589 F.Supp. 1084, 1099 (D.Conn.1984) (applying Connecticut law).\n. Another physician, Dr. Mercado, also testified in plaintiff's behalf. However, Dr. Mercado did not qualify as an expert in surgery and the district court limited his testimony accordingly. On appeal, plaintiff does not assign error to this ruling. Nothing in Dr. Mercado's remaining testimony adds materially to Dr. Piza's comments or otherwise assists in filling the standard-of-care void.\n. Although plaintiff has cited no Puerto Rico cases endorsing this exception, we assume for present purposes, albeit without deciding, that the Puerto Rico Supreme Court would follow the majority view and adopt the exception.\n. Plaintiff initially pleaded strict liability, but abandoned this approach at trial in favor of a res ipsa loquitur theory. In any event, it is hornbook law that a health-care provider cannot be held strictly liable for a latent defect in a medical device manufactured by a third party. See, e.g., Hoff v. Zimmer, Inc., 746 F.Supp. 872, 874 (W.D.Wis.1990); NME Hosp. v. Azzariti, 573 So.2d 173, 173 (Fla.1991) (per curiam); Silverhart v. Mt. Zion Hosp., 20 Cal.App.3d 1022, 1028, 98 Cal.Rptr. 187 (1971).\n. Since plaintiff failed to prove the minimum standard of care owed by defendant to her decedent, we need not dwell on the other deficiencies that the district court attributed to her case. It suffices to say that, absent proof of the legal duty owed by a defendant to a plaintiff in a medical malpractice suit, it is virtually impossible to prove either breach or proximate cause; breach, after all, depends directly on the contours of the duty owed, and proximate cause, in turn, depends on the nature and effect of the breach.\n[END_CASE]", "role": "user" } ]
10,507,937	UNITED STATES, Appellee, v. Roberto COLON-PAGAN, Defendant, Appellant	United States v. Colon-Pagan	1993-08-20	No. 92-2314	United States Court of Appeals for the First Circuit	{"judges": ["Before BREYER, Chief Judge, SELYA and STAHL, Circuit Judges."], "parties": ["UNITED STATES, Appellee, v. Roberto COLON-PAGAN, Defendant, Appellant."], "opinions": [{"text": "BREYER, Chief Judge.\nRoberto Colon-Pagan appeals his conviction for possessing, with intent to distribute, about six kilograms of cocaine. 21 U.S.C. § 841(a)(1). The evidence against him was strong. A drug sniffing dog, working at San Juan’s airport, reacted positively to a suitcase marked for a New York flight; drug agents traced the luggage (through its tag) to the appellant, who was sitting in the plane; the agents arrested appellant, questioned him, obtained a search warrant, opened the bag and found the cocaine. Neither the agents, nor the jury, believed appellant’s claim that a short fat man had given him $1,000 to take the bag to New York. Despite the strength of this evidence, however, we must order a new trial, for the court’s instruction to the jury about the meaning of “reasonable doubt” was seriously erroneous.\nThe court told the jury that the government must prove guilt beyond a “reasonable doubt,” which, it said, did not mean guilt “beyond all possible doubt.” Rather, that proof meant “proof of such a convincing character that a person ... would be willing to rely and act upon it.” (emphasis added.) Earlier, it had said that in order to convict, “the [evidentiary] scales would have to tip more to the government’s side” than in a civil case, where “the plaintiff will prevail if he makes the scale tip just a little bit to the side.” It mentioned the presumption of innocence. And, it also said that a “reasonable doubt” is a “doubt based upon reason and common sense.” Because appellant’s counsel did not object to these instructions at trial, the issue on appeal is whether they contain an error that is “plain” or a “defect[ ]” that “affect[s] substantial rights.” Fed.R.Crim.P. 52(b). The underscored language, in our view, amounts to such an error.\nThe Supreme Court has said that, in applying the “plain error” rule, Rule 52(b), we must ask 1) whether there is an “error,” 2) whether the error is “clear” or “obvious,” and 3) whether the error “affect[s] substantial rights,” which in most cases means that the error was, at a minimum, “prejudicial.” United States v. Olano, — U.S. —, — — —, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). If a defect meets these three criteria, then a court of appeals “has authority to order correction, but is not required to do so.” Id. at -, 113 S.Ct. at 1778. The Court has added that the “Court of Appeals should correct” such an error if it “ ‘seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at -, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). And, it has said that an error may do so “independent of defendant’s innocence.” Id.\nTo define “proof beyond a reasonable doubt” as proof simply that a person “would be willing to rely and act upon” is erroneous. The instruction may give the jury the incorrect impression that it can convict a defendant in a criminal case upon the basis of evidence no stronger than might reasonably support a decision to go shopping or to a movie or to take a vacation. See, e.g., United States v. Baptiste, 608 F.2d 666, 668 (5th Cir.1979) (warning courts not to define “proof beyond a reasonable doubt” as the “kind of proof that you would be willing to rely and act upon in the management of your own personal affairs”), cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981). Indeed, courts have found unconstitutional reasonable doubt instructions that seem significantly less permissive. See Cage v. Louisiana, 498 U.S. 39, 40-41, 111 S.Ct. 328, 329-30, 112 L.Ed.2d 339 (1990) (holding as unlawful instruction that reasonable doubt was “such doubt as would give rise to a grave uncertainty” and “an actual substantial doubt,” and that what was required for conviction was a “moral certainty” that the defendant was guilty).\nWe recognize that the district court may simply have misspoken. It may have meant to refer to a somewhat different standard that appellate courts have not held unlawful, namely a standard that refers to proof the jurors “would be willing to rely and act upon in the most important of their own affairs.” See, e.g., United States v. Gordon, 634 F.2d 639, 644 (1st Cir.1980) (criticizing, but finding no plain error, in instruction that proof beyond a reasonable doubt is proof “that you would be willing to act on it in the most important decisions that you have to make in your own lives and for yourselves”). Nonetheless, we must consider what the court did say, not what it may have intended to say. And what it did say was clearly wrong. We can find no other relevant instruction that somehow undid that wrong. And, we therefore conclude that, in context, the instruction meets the criteria for “error” and “obviousness.” Cf. Baptiste, 608 F.2d at 668 (finding no “plain” error where similar instruction limited by context, but warning that such finding would be likely in the future).\nWe also find that the error “affect[ed] substantial rights.” Fed.R.Civ.P. 52(b). While this limitation ordinarily means that the error must at least have been prejudicial, the Supreme Court has “never held that a Rule 52(b) remedy is only warranted in cases of actual innocence.” Olano, — U.S. at -, 113 S.Ct. at 1779 (emphasis in original). Rather, the Court has stated that [tjhere may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” or whose prejudice may be presumed. Id. at -, 113 S.Ct. at 1778. The Court has also indicated that an unconstitutional “reasonable doubt” instruction belongs in this category. The Sixth Amendment’s right to trial by jury, the Court has explained, requires “a jury verdict of guilty beyond a reasonable doubt.” Sullivan v. Louisiana, — U.S. -, -, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). Where a trial court has seriously misdes-cribed the government’s burden of proof, however, “there has been no jury verdict within the meaning of the Sixth Amendment.” Id. at -, 113 S.Ct. at 2082. We need not consider the strength of the evidence, therefore, in order to hold that the erroneous instruction “affect[ed] substantial rights.”\nFinally, we believe that the erroneous instruction, in the context of this case, “seriously” affected the “fairness, integrity or public reputation of judicial proceedings.” Olano, — U.S. at ——, 113 S.Ct. at 1779. We can reach this conclusion on the basis of case law. In Sullivan, the Supreme Court held that a constitutionally defective “reasonable doubt” instruction constitutes a “structural defect[ ] in the constitution of the trial mechanism.” Sullivan, — U.S. at -, 113 S.Ct. at 2082. In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), it held that a criminal trial marred by a “structural defect ... ‘cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment [resulting from such a trial] may be regarded as fundamentally fair.’ ” Id. at -, 111 S.Ct. at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986)) (emphasis added).\nWe can also reach this conclusion on the basis of common sense. The erroneous instruction permitted the jury to convict on the basis of evidence that it may have believed sufficient to justify no more than the most ordinary of decisions — not evidence that proved guilt beyond a “reasonable doubt.” The instruction thus significantly weakened what is perhaps the law’s greatest, and certainly its best known, safeguard against wrongly convicting an innocent person. In this way, the error “seriously affect[ed]” the “integrity” and “fairness” and, perhaps, the “public reputation of judicial proceedings.” Olano, — U.S. at -, 113 S.Ct. at 1779. Thus, despite the importance, ordinarily, of insisting that counsel object to an error before the trial ends (so that the judge can correct it), we have here a ease of “plain error,” Fed.R.Crim.P. 52(b), which requires a new trial, despite the absence of objection.\nSo ordered.", "type": "majority", "author": "BREYER, Chief Judge."}], "attorneys": ["James Kousouros with whom Debra K. Kousouros was on brief, for appellant.", "Jose A. Quiles, Senior Litigation Counsel, Criminal Division, with whom Daniel F. Lopez-Romo, United States Attorney, and Miguel A. Pereira, Assistant United States Attorney, were on brief, for appellee."], "corrections": "", "head_matter": "UNITED STATES, Appellee, v. Roberto COLON-PAGAN, Defendant, Appellant.\nNo. 92-2314.\nUnited States Court of Appeals, First Circuit.\nHeard April 9, 1993.\nDecided Aug. 20, 1993.\nJames Kousouros with whom Debra K. Kousouros was on brief, for appellant.\nJose A. Quiles, Senior Litigation Counsel, Criminal Division, with whom Daniel F. Lopez-Romo, United States Attorney, and Miguel A. Pereira, Assistant United States Attorney, were on brief, for appellee.\nBefore BREYER, Chief Judge, SELYA and STAHL, Circuit Judges."}	BREYER	SELYA	STAHL	1	1	1	0	0	0	1 F.3d 80	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES, Appellee, v. Roberto COLON-PAGAN, Defendant, Appellant\nCourt: United States Court of Appeals for the First Circuit\nDate decided: 1993-08-20\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nBREYER, Chief Judge.\nRoberto Colon-Pagan appeals his conviction for possessing, with intent to distribute, about six kilograms of cocaine. 21 U.S.C. § 841(a)(1). The evidence against him was strong. A drug sniffing dog, working at San Juan’s airport, reacted positively to a suitcase marked for a New York flight; drug agents traced the luggage (through its tag) to the appellant, who was sitting in the plane; the agents arrested appellant, questioned him, obtained a search warrant, opened the bag and found the cocaine. Neither the agents, nor the jury, believed appellant’s claim that a short fat man had given him $1,000 to take the bag to New York. Despite the strength of this evidence, however, we must order a new trial, for the court’s instruction to the jury about the meaning of “reasonable doubt” was seriously erroneous.\nThe court told the jury that the government must prove guilt beyond a “reasonable doubt,” which, it said, did not mean guilt “beyond all possible doubt.” Rather, that proof meant “proof of such a convincing character that a person ... would be willing to rely and act upon it.” (emphasis added.) Earlier, it had said that in order to convict, “the [evidentiary] scales would have to tip more to the government’s side” than in a civil case, where “the plaintiff will prevail if he makes the scale tip just a little bit to the side.” It mentioned the presumption of innocence. And, it also said that a “reasonable doubt” is a “doubt based upon reason and common sense.” Because appellant’s counsel did not object to these instructions at trial, the issue on appeal is whether they contain an error that is “plain” or a “defect[ ]” that “affect[s] substantial rights.” Fed.R.Crim.P. 52(b). The underscored language, in our view, amounts to such an error.\nThe Supreme Court has said that, in applying the “plain error” rule, Rule 52(b), we must ask 1) whether there is an “error,” 2) whether the error is “clear” or “obvious,” and 3) whether the error “affect[s] substantial rights,” which in most cases means that the error was, at a minimum, “prejudicial.” United States v. Olano, — U.S. —, — — —, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). If a defect meets these three criteria, then a court of appeals “has authority to order correction, but is not required to do so.” Id. at -, 113 S.Ct. at 1778. The Court has added that the “Court of Appeals should correct” such an error if it “ ‘seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at -, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). And, it has said that an error may do so “independent of defendant’s innocence.” Id.\nTo define “proof beyond a reasonable doubt” as proof simply that a person “would be willing to rely and act upon” is erroneous. The instruction may give the jury the incorrect impression that it can convict a defendant in a criminal case upon the basis of evidence no stronger than might reasonably support a decision to go shopping or to a movie or to take a vacation. See, e.g., United States v. Baptiste, 608 F.2d 666, 668 (5th Cir.1979) (warning courts not to define “proof beyond a reasonable doubt” as the “kind of proof that you would be willing to rely and act upon in the management of your own personal affairs”), cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981). Indeed, courts have found unconstitutional reasonable doubt instructions that seem significantly less permissive. See Cage v. Louisiana, 498 U.S. 39, 40-41, 111 S.Ct. 328, 329-30, 112 L.Ed.2d 339 (1990) (holding as unlawful instruction that reasonable doubt was “such doubt as would give rise to a grave uncertainty” and “an actual substantial doubt,” and that what was required for conviction was a “moral certainty” that the defendant was guilty).\nWe recognize that the district court may simply have misspoken. It may have meant to refer to a somewhat different standard that appellate courts have not held unlawful, namely a standard that refers to proof the jurors “would be willing to rely and act upon in the most important of their own affairs.” See, e.g., United States v. Gordon, 634 F.2d 639, 644 (1st Cir.1980) (criticizing, but finding no plain error, in instruction that proof beyond a reasonable doubt is proof “that you would be willing to act on it in the most important decisions that you have to make in your own lives and for yourselves”). Nonetheless, we must consider what the court did say, not what it may have intended to say. And what it did say was clearly wrong. We can find no other relevant instruction that somehow undid that wrong. And, we therefore conclude that, in context, the instruction meets the criteria for “error” and “obviousness.” Cf. Baptiste, 608 F.2d at 668 (finding no “plain” error where similar instruction limited by context, but warning that such finding would be likely in the future).\nWe also find that the error “affect[ed] substantial rights.” Fed.R.Civ.P. 52(b). While this limitation ordinarily means that the error must at least have been prejudicial, the Supreme Court has “never held that a Rule 52(b) remedy is only warranted in cases of actual innocence.” Olano, — U.S. at -, 113 S.Ct. at 1779 (emphasis in original). Rather, the Court has stated that [tjhere may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” or whose prejudice may be presumed. Id. at -, 113 S.Ct. at 1778. The Court has also indicated that an unconstitutional “reasonable doubt” instruction belongs in this category. The Sixth Amendment’s right to trial by jury, the Court has explained, requires “a jury verdict of guilty beyond a reasonable doubt.” Sullivan v. Louisiana, — U.S. -, -, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). Where a trial court has seriously misdes-cribed the government’s burden of proof, however, “there has been no jury verdict within the meaning of the Sixth Amendment.” Id. at -, 113 S.Ct. at 2082. We need not consider the strength of the evidence, therefore, in order to hold that the erroneous instruction “affect[ed] substantial rights.”\nFinally, we believe that the erroneous instruction, in the context of this case, “seriously” affected the “fairness, integrity or public reputation of judicial proceedings.” Olano, — U.S. at ——, 113 S.Ct. at 1779. We can reach this conclusion on the basis of case law. In Sullivan, the Supreme Court held that a constitutionally defective “reasonable doubt” instruction constitutes a “structural defect[ ] in the constitution of the trial mechanism.” Sullivan, — U.S. at -, 113 S.Ct. at 2082. In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), it held that a criminal trial marred by a “structural defect ... ‘cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment [resulting from such a trial] may be regarded as fundamentally fair.’ ” Id. at -, 111 S.Ct. at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986)) (emphasis added).\nWe can also reach this conclusion on the basis of common sense. The erroneous instruction permitted the jury to convict on the basis of evidence that it may have believed sufficient to justify no more than the most ordinary of decisions — not evidence that proved guilt beyond a “reasonable doubt.” The instruction thus significantly weakened what is perhaps the law’s greatest, and certainly its best known, safeguard against wrongly convicting an innocent person. In this way, the error “seriously affect[ed]” the “integrity” and “fairness” and, perhaps, the “public reputation of judicial proceedings.” Olano, — U.S. at -, 113 S.Ct. at 1779. Thus, despite the importance, ordinarily, of insisting that counsel object to an error before the trial ends (so that the judge can correct it), we have here a ease of “plain error,” Fed.R.Crim.P. 52(b), which requires a new trial, despite the absence of objection.\nSo ordered.\n[END_CASE]", "role": "user" } ]
10,508,018	Leon E. COOPER, Plaintiff-Appellant, v. SALOMON BROTHERS INC., Defendant-Appellee	Cooper v. Salomon Bros.	1993-07-20	Nos. 1685, 1882, Dockets 92-9319, 93-7135	United States Court of Appeals for the Second Circuit	{"judges": ["Before: MESKILL and JACOBS, Circuit Judges, and RESTANI, Judge."], "parties": ["Leon E. COOPER, Plaintiff-Appellant, v. SALOMON BROTHERS INC., Defendant-Appellee."], "opinions": [{"text": "MESKILL, Circuit Judge:\nLeon E. Cooper, an attorney, appeals pro se from three orders entered in the United States District Court for the District of Connecticut, Burns, J., which, among other things, denied Cooper’s motions for preliminary relief, stayed discovery against Salomon Brothers Inc. (Salomon), dismissed Cooper’s action in its entirety and imposed sanctions against him pursuant to Fed.R.Civ.P. 11. We dismiss for lack of appellate jurisdiction that portion of the appeal dealing with sanctions, and we dismiss as moot that portion of the appeal dealing with the stay of discovery and denial of preliminary relief. In all other respects we affirm the orders of the district court.\nThis case, although argued on the merits, presents us with certain important jurisdictional questions. The parties conceded at oral argument, and we now hold, that we lack jurisdiction to consider the imposition of sanctions under Fed.R.Civ.P. 11 because the district court has not yet determined the dollar amount of the sanctions. We also hold that our lack of jurisdiction over the issue of sanctions does not taint our jurisdiction over other final decisions rendered in the case. Finally, we hold that we may exercise jurisdiction over the final decisions rendered even though no separate judgment has been entered by the clerk of the district court.\nBACKGROUND\nOn September 8,1992, Cooper filed a complaint against Salomon seeking damages of $530 million plus 50 percent of Salomon’s equity plus additional costs. The district court had diversity jurisdiction over the case, pursuant to 28 U.S.C. § 1332(a)(1); the plaintiff is a citizen of Connecticut and the defendant retains its principal place of business in New York and is incorporated in Delaware. The complaint alleged that Cooper furnished senior White House officials memoranda that saved Salomon from criminal indictment and that he was therefore entitled to compensation. On November 10, 1992, Cooper amended his complaint (amended complaint) by adding a civil claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (RICO) and by increasing the amount of damages sought to $1.59 billion plus 150 percent of Salomon’s equity. Following a warning from Judge Burns that he could be subject to sanctions if he failed to withdraw his amended complaint, Cooper instead filed an “ordered amendment” on December 16, 1992 supposedly curing the defects in his amended complaint.\nCooper appeals three orders of Judge Burns summarized below:\nNovember 16 Order. On November 16, 1992, the court granted by endorsement Sa-lomon’s motion for a protective order staying discovery pending the disposition of Salo-mon’s motion to dismiss.\nNovember 18 Order. On November 18, 1992, the court granted Salomon’s motions to set aside an erroneous default and to dismiss the original complaint. The court denied Cooper’s motions (1) for entry of default judgment, (2) for sequestration of Salomon’s assets, and (3) for an injunction prohibiting Salomon from filing for bankruptcy protection. The court also denied other miscellaneous motions filed by Cooper. Finally, the court denied Salomon’s motion for sanctions, but did so without prejudice to a later renewal of the motion.\nJanuary 12 Order. On January 12, 1993, the court granted Salomon’s motions to dismiss the amended complaint and for Rule 11 sanctions. Salomon was ordered to submit affidavits in support of its claim for reasonable attorney’s fees. Cooper’s “ordered amendment” was deemed not to be part of the pleadings because he had not obtained leave of the court to file this second amendment to his original complaint. See Fed. R.Civ.P. 15(a). The court also denied other miscellaneous motions filed by Cooper.\nCooper filed two notices of appeal. The appeals were consolidated on March 18,1993. No separate judgment has been entered in this case and Judge Burns has not yet calculated the amount of sanctions. However, an entry on the district court docket sheet, dated January 13,1993, states that the case was closed.\nDISCUSSION\nI. Jurisdiction\nThe district court imposed Rule 11 sanctions on Cooper but has not yet reduced the liability to a sum certain. We hold that we lack jurisdiction to review the district court’s determination of liability under Rule 11 before it has assessed the amount of the sanctions. Under 28 U.S.C. § 1291, our review is limited to “final” decisions of the district court, decisions in the words of the Supreme Court that “leave[ ] nothing for the court to do but execute the judgment.” Gatlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Where only liability has been determined, a court cannot execute the judgment before it has assessed the damages. Therefore, the district court’s decision here is not “final,” and we lack jurisdiction to review it.\nAt least three of our sister circuits have reached this same conclusion. See Southern Travel Club v. Carnival Air Lines, 986 F.2d 125, 129-30 (5th Cir.1993); Jensen Electric Co. v. Moore, Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir.1989); Gates v. Central States Teamsters Pension Fund, 788 F.2d 1341, 1343 (8th Cir.1986). At least one circuit, however, has held, presumably based on a novel theory of pendent jurisdiction, that in the interest of orderly judicial administration, an appeals court may review a decision to impose attorney’s fees before the amount has been assessed where that non-final decision has been consolidated with other decisions that are final. Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 826-27 (7th Cir.1984). Although the Bittner Court addressed the imposition of statutory attorney’s fees rather than Rule 11 sanctions, that case does resemble ours because Cooper also appeals several orders that by themselves must be considered “final.” However, we reject the Seventh Circuit’s analysis because we do not believe that an interest in “orderly judicial administration” can justify broadening the jurisdiction of a federal court without congressional approval. We conclude, therefore, that we have no jurisdiction over the imposition of Rule 11 sanctions until the district court reduces the amount of the sanctions to a sum certain.\nAlthough we lack jurisdiction over the issue of sanctions, we are not barred from considering those decisions of the district court that are final. In Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), the Supreme Court ruled that the question of statutory attorney’s fees is collateral to, and separate from, the decision on the merits regardless of whether the statute authorizing the attorney’s fees characterizes them as part and parcel of the merits judgment. Id. at 200-02, 108 S.Ct. at 1720-22. Therefore, under Budinich, if a decision has been rendered that standing by itself would “end[] the litigation on the merits,” Catlin, 324 U.S. at 233, 65 S.Ct. at 633, that decision is “final” for purposes of 28 U.S.C. § 1291 even if the district court failed to calculate the amount of statutory attorney’s fees.\nWe recognize that although the case before us bears a significant resemblance to Budi-nich, there are also several distinctions. Here we are asked to address an issue of Rule 11 sanctions and not statutory attorney’s fees. Unlike most statutes authorizing attorney’s fees, Rule 11 sanctions are often punitive or aimed at deterrence. They are always within the discretion of the court and are usually assessed against the attorney rather than his client.\nDespite these ostensible distinctions, we do not believe that for jurisdictional purposes Rule 11 sanctions are substantively different from statutory attorney’s fees. To the extent that Rule 11 sanctions are aimed at punishment or deterrence rather than compensation, they appear to be even more collateral to the main action than statutory attorney’s fees. And, although many statutes allow attorney’s fees to be awarded automatically, see, e.g., 15 U.S.C. § 4304(a)(1), some statutes allow them only in the discretion of the court, see, e.g., 42 U.S.C. § 1988(b). Finally, we believe that the fact that Rule 11 sanctions are normally assessed against the attorney and statutory attorney’s fees against the client also suggests that Rule 11 sanctions are even more of a collateral matter than statutory attorney’s fees because Rule 11 sanctions normally will not be part of the final judgment against the client. Of course, here, Cooper is representing himself, so that attorney and client are one and the same, but that fortuity merely bolsters the analogy to statutory attorney’s fees in this case. Thus we fail to discern any substantive difference between Rule 11 sanctions and statutory attorney’s fees in this jurisdictional context, and we hold that we may exercise jurisdiction over the final decisions rendered in this case even though we lack jurisdiction over the Rule 11 question.\nWe must address one other question affecting appellate jurisdiction. No separate judgment has been entered by the clerk of the court in this case. The Supreme Court has held, however, that where the “[djistrict [cjourt clearly evidenced] its intent that the opinion and order from which an appeal [is] taken ... represents] the final decision in the case,” Bankers Trust Co. v. Mallis, 435 U.S. 381, 387, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (per curiam), reh’g denied, 436 U.S. 915, 98 S.Ct. 2259, 56 L.Ed.2d 416 (1978), the parties may “waive[] the separate-judgment requirement of [Fed.R.Civ.P. 58].” Id. at 388, 98 S.Ct. at 1121. Here, the district court dismissed Cooper’s complaint. An entry on the docket sheet states that the case was closed. Salomon did not object to the taking of the appeal in the absence of a separate judgment. We conclude, therefore, that the parties have waived the separate judgment requirement and that we may entertain the appeal.\nII. The Merits\nCooper’s principal claim on appeal is that Judge Burns erred in dismissing his original complaint. Although the complaint itself fails to specify the basis for relief, the court interpreted his complaint as seeking restitution damages for unjust enrichment under a theory of quasi-contract, in essence a claim for quantum meruit. Because this is a diversity case, we must look to state law in deciding the merits. A plaintiff seeking quantum meruit, besides proving the reasonable value of the services rendered and the good faith of the performance, must demonstrate (1) that the recipient accepted the services, and (2) that the one rendering the services expected to be paid therefor. Umscheid ¶. Simnacher, 106 A.D.2d 380, 382-83, 482 N.Y.S.2d 295, 298 (2d Dep’t 1984); see generally I E. Allan Farnsworth, Farns-worth on Contracts § 2.20, at 150-52 (1990); see also Bloomgarden v. Coyer, 479 F.2d 201, 211 (D.C.Cir.1973) (duty to pay for personal services rendered does not arise where benefit was conferred “gratuitously or officiously”); Gould v. American Water Works Serv. Co., 52 N.J. 226, 230-31, 245 A.2d 14, 16 (1968) (water company not liable in quasi-contract where plaintiff dug wells on his own initiative purely as a volunteer), cert. denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 477, reh’g denied, 394 U.S. 1025, 89 S.Ct. 1627, 23 L.Ed.2d 51 (1969). There can be no doubt that Cooper was nothing more than an officious volunteer. He never alleged that Salo-mon requested or accepted his services. That a Salomon official may have thanked Cooper after he had sent the memoranda suggests only that Salomon acknowledged a fait accompli; it does not suggest that Salo-mon had an opportunity to accept or reject Cooper’s services. Finally, we note that Cooper has not alleged any attorney-client relationship with Salomon, and is therefore not entitled to compensation for performing professional services on Salomon’s behalf. We therefore agree with the district court’s implicit conclusion that “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).\nWe also agree with the district court that Salomon did not default, because it is clear that Salomon properly answered the complaint in accordance with Fed.R.Civ.P. 12(a). Finally, Cooper’s amended complaint fails to state a claim under RICO and was therefore properly dismissed. We agree with Judge Burns that an order to withdraw a complaint does not constitute an order to amend it, and therefore the district court properly held that Cooper’s “ordered amendment” cannot be considered part of the pleadings.\nBecause we hold that Cooper’s complaints were properly dismissed in their entirety, we dismiss as moot his appeal from the order staying discovery and the order denying preliminary relief. We have considered Cooper’s other claims and find them to be without merit.\nCONCLUSION\nWe dismiss for lack of jurisdiction that portion of Cooper’s appeal that is taken from the order granting Rule 11 sanctions. We dismiss as moot that portion taken from the order staying discovery and from the order denying preliminary relief. In all other respects we affirm the orders of the district court.\n. Although we have not found any Connecticut cases directly on point, after reviewing several Connecticut cases discussing quantum meruit in general terms, we are confident that the law of quantum meruit in Connecticut mirrors the law set forth in Umscheid. See, e.g., CBS Surgical Group v. Holt, 37 Conn.Supp. 555, 557, 426 A.2d 819, 821 (1981) (stating that in context of unjust enrichment, recovery based on quantum meruit requires \" ‘1. A benefit conferred upon the defendant by the plaintiff; 2. An appreciation or knowledge by the defendant of the benefit; and 3. The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value’ ” (citations omitted)); Duvall v. Birden, 124 Conn. 43, 46, 198 A. 255, 257 (1938) (complaint alleging, inter alia, that defendant requested plaintiff's services stated a claim for quantum meruit, \"either for services rendered at the [defendant’s] request or under circumstances revealing the plaintiff’s expectations to be paid therefor, with knowledge of which the [defendant] availed himself of the services”).", "type": "majority", "author": "MESKILL, Circuit Judge:"}], "attorneys": ["Leon E. Cooper, pro se.", "Robert H. Baron, New York City (Cra-vath, Swaine & Moore, New York City, of counsel), for appellee."], "corrections": "", "head_matter": "Leon E. COOPER, Plaintiff-Appellant, v. SALOMON BROTHERS INC., Defendant-Appellee.\nNos. 1685, 1882, Dockets 92-9319, 93-7135.\nUnited States Court of Appeals, Second Circuit.\nArgued June 1, 1993.\nDecided July 20, 1993.\nLeon E. Cooper, pro se.\nRobert H. Baron, New York City (Cra-vath, Swaine & Moore, New York City, of counsel), for appellee.\nBefore: MESKILL and JACOBS, Circuit Judges, and RESTANI, Judge.\nHonorable Jane A. Restani of the United States Court of International Trade, sitting by designation."}	MESKILL	JACOBS	RESTANI	1	1	1	0	0	0	1 F.3d 82	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Leon E. COOPER, Plaintiff-Appellant, v. SALOMON BROTHERS INC., Defendant-Appellee\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-07-20\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nMESKILL, Circuit Judge:\nLeon E. Cooper, an attorney, appeals pro se from three orders entered in the United States District Court for the District of Connecticut, Burns, J., which, among other things, denied Cooper’s motions for preliminary relief, stayed discovery against Salomon Brothers Inc. (Salomon), dismissed Cooper’s action in its entirety and imposed sanctions against him pursuant to Fed.R.Civ.P. 11. We dismiss for lack of appellate jurisdiction that portion of the appeal dealing with sanctions, and we dismiss as moot that portion of the appeal dealing with the stay of discovery and denial of preliminary relief. In all other respects we affirm the orders of the district court.\nThis case, although argued on the merits, presents us with certain important jurisdictional questions. The parties conceded at oral argument, and we now hold, that we lack jurisdiction to consider the imposition of sanctions under Fed.R.Civ.P. 11 because the district court has not yet determined the dollar amount of the sanctions. We also hold that our lack of jurisdiction over the issue of sanctions does not taint our jurisdiction over other final decisions rendered in the case. Finally, we hold that we may exercise jurisdiction over the final decisions rendered even though no separate judgment has been entered by the clerk of the district court.\nBACKGROUND\nOn September 8,1992, Cooper filed a complaint against Salomon seeking damages of $530 million plus 50 percent of Salomon’s equity plus additional costs. The district court had diversity jurisdiction over the case, pursuant to 28 U.S.C. § 1332(a)(1); the plaintiff is a citizen of Connecticut and the defendant retains its principal place of business in New York and is incorporated in Delaware. The complaint alleged that Cooper furnished senior White House officials memoranda that saved Salomon from criminal indictment and that he was therefore entitled to compensation. On November 10, 1992, Cooper amended his complaint (amended complaint) by adding a civil claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (RICO) and by increasing the amount of damages sought to $1.59 billion plus 150 percent of Salomon’s equity. Following a warning from Judge Burns that he could be subject to sanctions if he failed to withdraw his amended complaint, Cooper instead filed an “ordered amendment” on December 16, 1992 supposedly curing the defects in his amended complaint.\nCooper appeals three orders of Judge Burns summarized below:\nNovember 16 Order. On November 16, 1992, the court granted by endorsement Sa-lomon’s motion for a protective order staying discovery pending the disposition of Salo-mon’s motion to dismiss.\nNovember 18 Order. On November 18, 1992, the court granted Salomon’s motions to set aside an erroneous default and to dismiss the original complaint. The court denied Cooper’s motions (1) for entry of default judgment, (2) for sequestration of Salomon’s assets, and (3) for an injunction prohibiting Salomon from filing for bankruptcy protection. The court also denied other miscellaneous motions filed by Cooper. Finally, the court denied Salomon’s motion for sanctions, but did so without prejudice to a later renewal of the motion.\nJanuary 12 Order. On January 12, 1993, the court granted Salomon’s motions to dismiss the amended complaint and for Rule 11 sanctions. Salomon was ordered to submit affidavits in support of its claim for reasonable attorney’s fees. Cooper’s “ordered amendment” was deemed not to be part of the pleadings because he had not obtained leave of the court to file this second amendment to his original complaint. See Fed. R.Civ.P. 15(a). The court also denied other miscellaneous motions filed by Cooper.\nCooper filed two notices of appeal. The appeals were consolidated on March 18,1993. No separate judgment has been entered in this case and Judge Burns has not yet calculated the amount of sanctions. However, an entry on the district court docket sheet, dated January 13,1993, states that the case was closed.\nDISCUSSION\nI. Jurisdiction\nThe district court imposed Rule 11 sanctions on Cooper but has not yet reduced the liability to a sum certain. We hold that we lack jurisdiction to review the district court’s determination of liability under Rule 11 before it has assessed the amount of the sanctions. Under 28 U.S.C. § 1291, our review is limited to “final” decisions of the district court, decisions in the words of the Supreme Court that “leave[ ] nothing for the court to do but execute the judgment.” Gatlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Where only liability has been determined, a court cannot execute the judgment before it has assessed the damages. Therefore, the district court’s decision here is not “final,” and we lack jurisdiction to review it.\nAt least three of our sister circuits have reached this same conclusion. See Southern Travel Club v. Carnival Air Lines, 986 F.2d 125, 129-30 (5th Cir.1993); Jensen Electric Co. v. Moore, Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir.1989); Gates v. Central States Teamsters Pension Fund, 788 F.2d 1341, 1343 (8th Cir.1986). At least one circuit, however, has held, presumably based on a novel theory of pendent jurisdiction, that in the interest of orderly judicial administration, an appeals court may review a decision to impose attorney’s fees before the amount has been assessed where that non-final decision has been consolidated with other decisions that are final. Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 826-27 (7th Cir.1984). Although the Bittner Court addressed the imposition of statutory attorney’s fees rather than Rule 11 sanctions, that case does resemble ours because Cooper also appeals several orders that by themselves must be considered “final.” However, we reject the Seventh Circuit’s analysis because we do not believe that an interest in “orderly judicial administration” can justify broadening the jurisdiction of a federal court without congressional approval. We conclude, therefore, that we have no jurisdiction over the imposition of Rule 11 sanctions until the district court reduces the amount of the sanctions to a sum certain.\nAlthough we lack jurisdiction over the issue of sanctions, we are not barred from considering those decisions of the district court that are final. In Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), the Supreme Court ruled that the question of statutory attorney’s fees is collateral to, and separate from, the decision on the merits regardless of whether the statute authorizing the attorney’s fees characterizes them as part and parcel of the merits judgment. Id. at 200-02, 108 S.Ct. at 1720-22. Therefore, under Budinich, if a decision has been rendered that standing by itself would “end[] the litigation on the merits,” Catlin, 324 U.S. at 233, 65 S.Ct. at 633, that decision is “final” for purposes of 28 U.S.C. § 1291 even if the district court failed to calculate the amount of statutory attorney’s fees.\nWe recognize that although the case before us bears a significant resemblance to Budi-nich, there are also several distinctions. Here we are asked to address an issue of Rule 11 sanctions and not statutory attorney’s fees. Unlike most statutes authorizing attorney’s fees, Rule 11 sanctions are often punitive or aimed at deterrence. They are always within the discretion of the court and are usually assessed against the attorney rather than his client.\nDespite these ostensible distinctions, we do not believe that for jurisdictional purposes Rule 11 sanctions are substantively different from statutory attorney’s fees. To the extent that Rule 11 sanctions are aimed at punishment or deterrence rather than compensation, they appear to be even more collateral to the main action than statutory attorney’s fees. And, although many statutes allow attorney’s fees to be awarded automatically, see, e.g., 15 U.S.C. § 4304(a)(1), some statutes allow them only in the discretion of the court, see, e.g., 42 U.S.C. § 1988(b). Finally, we believe that the fact that Rule 11 sanctions are normally assessed against the attorney and statutory attorney’s fees against the client also suggests that Rule 11 sanctions are even more of a collateral matter than statutory attorney’s fees because Rule 11 sanctions normally will not be part of the final judgment against the client. Of course, here, Cooper is representing himself, so that attorney and client are one and the same, but that fortuity merely bolsters the analogy to statutory attorney’s fees in this case. Thus we fail to discern any substantive difference between Rule 11 sanctions and statutory attorney’s fees in this jurisdictional context, and we hold that we may exercise jurisdiction over the final decisions rendered in this case even though we lack jurisdiction over the Rule 11 question.\nWe must address one other question affecting appellate jurisdiction. No separate judgment has been entered by the clerk of the court in this case. The Supreme Court has held, however, that where the “[djistrict [cjourt clearly evidenced] its intent that the opinion and order from which an appeal [is] taken ... represents] the final decision in the case,” Bankers Trust Co. v. Mallis, 435 U.S. 381, 387, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (per curiam), reh’g denied, 436 U.S. 915, 98 S.Ct. 2259, 56 L.Ed.2d 416 (1978), the parties may “waive[] the separate-judgment requirement of [Fed.R.Civ.P. 58].” Id. at 388, 98 S.Ct. at 1121. Here, the district court dismissed Cooper’s complaint. An entry on the docket sheet states that the case was closed. Salomon did not object to the taking of the appeal in the absence of a separate judgment. We conclude, therefore, that the parties have waived the separate judgment requirement and that we may entertain the appeal.\nII. The Merits\nCooper’s principal claim on appeal is that Judge Burns erred in dismissing his original complaint. Although the complaint itself fails to specify the basis for relief, the court interpreted his complaint as seeking restitution damages for unjust enrichment under a theory of quasi-contract, in essence a claim for quantum meruit. Because this is a diversity case, we must look to state law in deciding the merits. A plaintiff seeking quantum meruit, besides proving the reasonable value of the services rendered and the good faith of the performance, must demonstrate (1) that the recipient accepted the services, and (2) that the one rendering the services expected to be paid therefor. Umscheid ¶. Simnacher, 106 A.D.2d 380, 382-83, 482 N.Y.S.2d 295, 298 (2d Dep’t 1984); see generally I E. Allan Farnsworth, Farns-worth on Contracts § 2.20, at 150-52 (1990); see also Bloomgarden v. Coyer, 479 F.2d 201, 211 (D.C.Cir.1973) (duty to pay for personal services rendered does not arise where benefit was conferred “gratuitously or officiously”); Gould v. American Water Works Serv. Co., 52 N.J. 226, 230-31, 245 A.2d 14, 16 (1968) (water company not liable in quasi-contract where plaintiff dug wells on his own initiative purely as a volunteer), cert. denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 477, reh’g denied, 394 U.S. 1025, 89 S.Ct. 1627, 23 L.Ed.2d 51 (1969). There can be no doubt that Cooper was nothing more than an officious volunteer. He never alleged that Salo-mon requested or accepted his services. That a Salomon official may have thanked Cooper after he had sent the memoranda suggests only that Salomon acknowledged a fait accompli; it does not suggest that Salo-mon had an opportunity to accept or reject Cooper’s services. Finally, we note that Cooper has not alleged any attorney-client relationship with Salomon, and is therefore not entitled to compensation for performing professional services on Salomon’s behalf. We therefore agree with the district court’s implicit conclusion that “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).\nWe also agree with the district court that Salomon did not default, because it is clear that Salomon properly answered the complaint in accordance with Fed.R.Civ.P. 12(a). Finally, Cooper’s amended complaint fails to state a claim under RICO and was therefore properly dismissed. We agree with Judge Burns that an order to withdraw a complaint does not constitute an order to amend it, and therefore the district court properly held that Cooper’s “ordered amendment” cannot be considered part of the pleadings.\nBecause we hold that Cooper’s complaints were properly dismissed in their entirety, we dismiss as moot his appeal from the order staying discovery and the order denying preliminary relief. We have considered Cooper’s other claims and find them to be without merit.\nCONCLUSION\nWe dismiss for lack of jurisdiction that portion of Cooper’s appeal that is taken from the order granting Rule 11 sanctions. We dismiss as moot that portion taken from the order staying discovery and from the order denying preliminary relief. In all other respects we affirm the orders of the district court.\n. Although we have not found any Connecticut cases directly on point, after reviewing several Connecticut cases discussing quantum meruit in general terms, we are confident that the law of quantum meruit in Connecticut mirrors the law set forth in Umscheid. See, e.g., CBS Surgical Group v. Holt, 37 Conn.Supp. 555, 557, 426 A.2d 819, 821 (1981) (stating that in context of unjust enrichment, recovery based on quantum meruit requires \" ‘1. A benefit conferred upon the defendant by the plaintiff; 2. An appreciation or knowledge by the defendant of the benefit; and 3. The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value’ ” (citations omitted)); Duvall v. Birden, 124 Conn. 43, 46, 198 A. 255, 257 (1938) (complaint alleging, inter alia, that defendant requested plaintiff's services stated a claim for quantum meruit, \"either for services rendered at the [defendant’s] request or under circumstances revealing the plaintiff’s expectations to be paid therefor, with knowledge of which the [defendant] availed himself of the services”).\n[END_CASE]", "role": "user" } ]
10,508,113	In re GRAND JURY SUBPOENA DUCES TECUM DATED OCTOBER 29, 1992. UNITED STATES of America, Appellant, v. John DOE, Appellee	United States v. Doe	1993-07-21	No. 1497, Docket 93-1070	United States Court of Appeals for the Second Circuit	{"judges": ["Before: LUMBARD, CARDAMONE, and ALTIMARI, Circuit Judges."], "parties": ["In re GRAND JURY SUBPOENA DUCES TECUM DATED OCTOBER 29, 1992. UNITED STATES of America, Appellant, v. John DOE, Appellee."], "opinions": [{"text": "LUMBARD, Circuit Judge:\nThe government appeals from an order entered on January 7, 1993 in the Southern District of New York, Pollack, J., denying its motion to compel John Doe to comply with a grand jury subpoena duces tecum dated October 29, 1992. The subpoena commanded Doe to produce “[t]he original version of any diary or calendar for the year 1988, a copy of which has been produced to the SEC.” On appeal, the government argues that the court erred in denying its motion to compel because: (1) the Fifth Amendment does not protect the contents of voluntarily prepared, non-business documents such as Doe’s calendar; (2) Doe’s act of producing the calendar would not constitute compelled testimonial self-incrimination; and (3) enforcement of the subpoena is not barred by alleged governmental misconduct. Because we agree, we reverse.\nIn 1989, the SEC was investigating possible violations of the federal securities laws by Doe and others. The investigation focused in part on the trading of securities by Doe in his personal brokerage accounts. Pursuant to that investigation, Doe was served with a subpoena dated October 24, 1989, demanding that he appear before the SEC and produce various documents, including his daily calendar for 1988. That calendar is a breast-pocket appointment book which Doe used to record appointments, social engagements, chores, phone numbers, and other reminders.\nOn January 10,1990, Doe appeared before the SEC and, on the advice of counsel, responded to the subpoena by asserting his Fifth Amendment privilege against self-incrimination. Thereafter, however, Doe, through new counsel, agreed to withdraw his prior invocation of the Fifth Amendment and comply with the SEC’s requests. In return, the SEC agreed, inter alia, to: withdraw the subpoena previously served on Doe; agree with Doe as to the timing and scope of future document requests; and extend the time for Doe to respond to any recommendation it might make for enforcement action against him.\nOn December 6 and 7, 1990, Doe appeared before the SEC in New York and testified about the trading of securities in his personal brokerage accounts. Thereafter, on December 20, 1990, the SEC requested that Doe produce various documents, including “[d]esk calendars, diaries and appointment books kept by him or on his behalf.”\nOn January 28, 1991, Doe complied with that request by producing a number of documents, including a photocopy of the calendar. The documents were submitted with a cover letter from Doe’s counsel which stated in part:\nWe claim that all materials provided to the Staff during the course of this investigation, including this letter and the documents transmitted herewith, are entitled to confidential treatment. Because such documents constitute investigatory records obtained by the Commission in connection with a potential law enforcement proceeding, they certainly are subject, at least at the present, to the exemption from mandatory disclosure under ... the Freedom of Information Act * * * as well as the protections available under the Privacy Act of 1974....\nAccordingly, we expect that all copies of documents produced in connection with the Staffs investigation, including this letter, will be kept in a non-public file and that access to them by any third party not a member of the Commission or its Staff will be denied.\nEach page of every document produced by Doe was stamped:\nThis document is provided to the United States Securities and Exchange Commission solely for its use, and neither the document nor its contents may be disclosed to any other person or entity, pursuant to a claim of confidentiality made by letter dated JAN 28 1991.\nIn June 1991, Doe again appeared before the SEC and testified about the documents he had produced in January. In particular, Doe was questioned about calendar entries for March 7,1988, a date of particular importance in the SEC’s investigation.\nAfter the SEC concluded its investigation, it brought a civil lawsuit against Doe and others alleging participation by Doe in insider trading.\nWhile the SEC’s investigation was pending, the U.S. Attorney’s Office for the Southern District of New York requested access to documents produced by Doe. On March 5, 1991, the SEC granted that request and provided the U.S. Attorney’s Office with a copy of the calendar. Upon examining it, the government became suspicious that entries in the original version of the calendar had been “whited-out” with “liquid paper” before it was copied and produced to the SEC. Accordingly, on October 29, 1990, a grand jury, which had been investigating possible perjury and obstruction of justice by Doe and others, issued a subpoena commanding Doe to produce the original version of the calendar.\nDoe informed the government that, on the basis of his Fifth Amendment privilege against self-incrimination, he would refuse to produce the calendar. The government then moved to compel Doe to comply with the subpoena. At a November 12, 1992 conference before Judge Pollack, the government advised the court and Doe’s counsel of its suspicion that the calendar had been altered, explaining that it wanted to perform physical tests on the original version of the calendar to reveal any entries that had been whited-out. Doe maintained that the subpoena was unenforceable because: (1) the contents of the calendar, as well as the act of producing it, were protected by the Fifth Amendment; and (2) the SEC had breached a confidentiality agreement with him by providing a copy of the calendar to the U.S. Attorney’s Office.\nDoe’s counsel then permitted the government to view the original version of the calendar. The government’s examination confirmed its suspicion that numerous entries had been whited-out, including entries for the critical date of March 7, 1988.\nAt a hearing on January 7, 1993, Judge Pollack denied the government’s motion to compel, stating:\nThe diary is a [sic] intimate personal document; the content of the original document as originally written or revised was not published to anyone; the disclosure of a purported copy to the SEC was not a publication of the original; the original document was not voluntarily disclosed to the SEC or to the Assistant United States Attorney. The original document is subject to the privilege of the Fifth Amendment in its original and its present altered (if it was) form.\nThis appeal followed.\nA. Contents-Based Privilege\nDoe maintains that the contents of the calendar are protected from compelled production by the Fifth Amendment’s Self-incrimination Clause, which provides, “No person ... shall be compelled in any criminal case to be a witness against himself.” While we have previously left undecided the question of whether the Fifth Amendment “protects the contents of private papers that are not business documents,” In re Proceedings Before August 6, 1981 Grand Jury, 767 F.2d 39, 41 (2d Cir.1985), we now rule that it does not.\nIn arguing for a contents-based privilege, Doe relies principally upon Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), which involved a civil forfeiture proceeding against two partners charged with importing glass without paying the prescribed duty. Over the partners’ objections, the government obtained a court order requiring them to produce the invoice for the glass. After the invoice was admitted at trial, the glass was ordered forfeited. The Supreme Court reversed, holding that the order violated both the Fourth and Fifth Amendments.\nIn so ruling, the Court concluded that the Fourth Amendment applied to court orders in the nature of subpoenas duces tecum in the same manner that it applied to search warrants, and that the government could not, consistent with the Fourth Amendment, seize a person’s documents as evidence unless it had a superior proprietary interest in them. Id. at 622-24, 6 S.Ct. at 527-29. The Court also held that a defendant in a criminal or forfeiture case could not be compelled to produce certain evidentiary items without violating the Fifth Amendment, stating, “[A] compulsory production of the private books and papers of the owner of goods sought to be forfeited ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution.” Id. at 634-35, 6 S.Ct. at 534-35.\nSeveral aspects of the Boyd decision did not endure. Nevertheless, the pronouncement in Boyd that the Fifth Amendment protects against the compelled production of private papers often appeared as dictum in later Supreme Court opinions. See, e.g., Wilson v. United States, 221 U.S. 361, 377, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911); United States v. White, 322 U.S. 694, 698-99, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944); Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1831-32, 16 L.Ed.2d 908 (1966); Beilis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974). In a series of decisions beginning with Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976), however, the Court raised serious doubt as to the continued validity of that pronouncement.\nIn Fisher, the Court ruled that taxpayers’ Fifth Amendment privileges against self-incrimination did not shield them or their attorneys from complying with IRS summonses directing the production of tax records prepared by the taxpayers’ accountants. Rejecting the taxpayers’ reliance on Boyd, the Court noted that because much of Boyd’s doctrine had “not stood the test of time,” id. at 407, 96 S.Ct. at 1579, “the prohibition against forcing the production of private papers has long been a rule searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give ‘testimony’ that incriminates him.” Id. at 409, 96 S.Ct. at 1580.\nThe Court also emphasized that “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.” Id. at 408, 96 S.Ct. at 1579 (emphasis omitted). Since the accountants’ papers were not prepared by the taxpayers, “they contain[ed] no testimonial declarations by [them].” Id. at 409, 96 S.Ct. at 1580. And since “the preparation of all of the papers sought ... was wholly voluntary, ... théy cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else.” Id. at 409-10, 96 S.Ct. at 1580 (footnote omitted). The Court thus concluded that the summonses were enforceable unless the act of producing the documents was itself subject to a valid Fifth Amendment privilege. Id. at 410, 96 S.Ct. at 1580-81.\nThe Fisher Court also rejected the notion, which it traced to Boyd, that the Fifth Amendment provides any general protection of privacy:\nWithin the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court’s view, did not involve compelled testimonial self-incrimination of some sort.\n*****\nWe cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy — a word not mentioned in its text and a concept directly addressed in the Fourth Amendment. We adhere to the view that the Fifth Amendment protects against “compelled self-incrimination, not [the disclosure] of private information.” United States v. Nobles, 422 U.S. 225, 233 n. 7, 95 S.Ct. 2160, 2167 n. 7, 45 L.Ed.2d 141 (1975).\nId. at 399-401, 96 S.Ct. at 1575-76 (alteration in original) (footnote omitted). Nevertheless, the Court expressly declined to decide whether the Fifth Amendment would protect against the disclosure of “private papers” such as a taxpayer’s “own tax records in his possession.” Id. at 414, 96 S.Ct. at 1582.\nIn Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), decided shortly after Fisher, the Court reiterated that any self-incrimination analysis must focus on the voluntariness of the communication at issue. Rejecting a claim that the Fifth Amendment was violated by the use against a criminal defendant of personal business records seized pursuant to a lawful search, the Court reasoned that because the records had been “voluntarily committed to writing,” and because the defendant had not been forced to produce or authenticate them, use of the records did not compel the defendant to incriminate himself. Id. at 473, 96 S.Ct. at 2944-45.\nThen in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), the Court reaffirmed its holding in Fisher and answered in the negative the question it had left open in that case, ruling that the Fifth Amendment does not protect the contents of an individual’s business records in his own possession. Emphasizing that the Amendment “protects the person asserting the privilege only from compelled self-incrimination,” id. at 610, 104 S.Ct. at 1241, the Court held in substance that because the documents at issue were prepared voluntarily, they “ ‘cannot be said to contain compelled testimonial evidence’ in and of themselves.” Id. at 612 n. 9, 104 S.Ct. at 1242 n. 9 (citation omitted). Although the documents at issue were business records, the Court stated broadly, “If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged.” Id. at 612 n. 10, 104 S.Ct. at 1242 n. 10.\nIn a separate concurring opinion, Justice O’Connor wrote:\nI write separately ... just to make explicit what is implicit in the analysis of [the Court’s] opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. The notion that the Fifth Amendment protects the privacy of papers originated in Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746] (1886), but our decision in Fisher v. United States, 425 U.S. 391 [96 S.Ct. 1569, 48 L.Ed.2d 39] (1976), sounded the death knell for Boyd. “Several of Boyd’s express or implicit declarations [had] not stood the test of time,” 425 U.S. at 407 [96 S.Ct. at 1579], and its privacy of papers concept “ha[d] long been a rule searching for a rationale_” Id. at 409 [96 S.Ct. at 1580]. Today’s decision puts a long overdue end to that fruitless search.\nId., 465 U.S. at 618, 104 S.Ct. at 1245 (second and third alterations in original). While no other justice joined in Justice O’Connor’s opinion, the decision in Baltimore Dep’t of Social Servs. v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990), suggests that a majority of the Court now agrees with her position.\nIn Bouknight, the Court ruled that the Fifth Amendment did not shield a mother from complying with a juvenile court order directing her to produce her infant son. Citing Justice O’Connor’s Doe concurrence, the Court stated that “a person may not claim the Amendment’s protections based upon the incrimination that may result from the contents or nature of the thing demanded.” Id. at 555, 110 S.Ct. at 905. The Court thus concluded that any Fifth Amendment privilege would have to arise from the act of production, because “[w]hen the government demands that an item be produced, ‘the only thing compelled is the act of producing the [item].”’ Id. at 554-55, 110 S.Ct. at 905 (alteration in original) (quoting Fisher, 425 U.S. at 410 n. 11, 96 S.Ct. at 1580 n. 11).\nNotwithstanding these recent decisions, Doe contends that Boyd still controls this case, compelling the conclusion that the Fifth Amendment protects the contents of voluntarily prepared, non-business documents such as the calendar. We disagree.\nFirst, Boyd concerned business documents, and therefore its declarations regarding the Fifth Amendment’s protection of non-business documents were dicta. WTiile the dicta of the Supreme court merits our deference, we also heed Chief Justice Marshall’s admonition that:\ngeneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision_\nCohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821), quoted in Donovan v. Red Star Marine Servs., 739 F.2d 774, 782 (2d Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1355, 84 L.Ed.2d 377 (1985).\nSecond, the Supreme Court’s more recent opinions indicate that Boyd’s foundations have eroded. The Court no longer views the Fifth Amendment as a general protector of privacy or private information, but leaves that role to the Fourth Amendment. See Fisher, 425 U.S. at 401, 96 S.Ct. at 1576; see also Doe, 465 U.S. at 610-11 n. 8, 104 S.Ct. at 1240-42 n. 8. Self-incrimination analysis now focuses on whether the creation of the thing demanded was compelled and, if not, whether the act of producing it would constitute compelled testimonial communication. See Doe, 465 U.S. at 612, 104 S.Ct. at 1242; Andresen, 427 U.S. at 473, 96 S.Ct. at 2744-45; Fisher, 425 U.S. at 409-410, 96 S.Ct. at 1580-81. Further, the Bouknight Court’s citation of Justice O’Connor’s Doe concurrence indicates that this analysis applies regardless of “the contents or nature of the thing demanded.” 493 U.S. at 555, 110 S.Ct. at 905.\nThird, the three courts of appeals that have considered this question have all concluded that the Fifth Amendment does not protect the contents of voluntarily prepared documents, business or personal. See United States v. Wujkowski, 929 F.2d 981, 983, 985 (4th Cir.1991) (contents of appointment books and records relating to vacation home not privileged under Fifth Amendment), aff'd after remand sub nom. United States v. Stone, 976 F.2d 909 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1843, 123 L.Ed.2d 467 (1993); In re Sealed Case, 877 F.2d 83, 84 (D.C.Cir.1989) (privilege “does not cover the contents of any voluntarily prepared records, including personal ones”), cert. denied, 493 U.S. 1044, 110 S.Ct. 839, 107 L.Ed.2d 834 (1990); In re Grand Jury Proceedings, 759 F.2d 1418, 1419 (9th Cir.1985) (contents of business and personal documents are not privileged “in the absence of some showing that creation of the documents was the product of compulsion”).\nFor these reasons, we conclude that because Doe voluntarily prepared the calendar, its contents are not protected by the Fifth Amendment.\nB. Act of Production Privilege\nWhile the contents of voluntarily prepared documents are not privileged, the act of producing them in response to a subpoena may require incriminating testimony in two situations: (1) “if the existence and location of the subpoenaed papers are unknown to the government”; or (2) where production would “implicitly authenticate” the documents. United States v. Fox, 721 F.2d 32, 36 (2d Cir.1983) (citations omitted). Because neither of these situations exists here, Doe has no act of production privilege.\nProduction may not be refused “[i]f the government can demonstrate with reasonable particularity that it knows of the existence and location of subpoenaed documents.” In re Grand Jury Subpoena Duces Tecum, 616 F.Supp. 1159, 1161 (E.D.N.Y.1985). Since Doe produced a copy of the calendar to the SEC and testified about his possession and use of it, its existence and location are “foregone conclusions],” and his production of the original “adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411, 96 S.Ct. at 1581.\nNor would Doe’s compliance with the subpoena implicitly authenticate the calendar; his production is not “a necessary link to incriminating evidence contained in [it].” Fox, 721 F.2d at 38 (quoting In re Grand Jury Proceedings United States (Martinez), 626 F.2d 1051, 1055 (1st Cir.1980)). The government could authenticate the calendar, either in the grand jury or at trial, simply by establishing Doe’s prior production of the copy to the SEC and asking the trier of fact to compare the copy and the original. Such a comparison, considered in light of Doe’s SEC testimony regarding his use of the calendar, would leave no doubt that the calendar was that described in the subpoena.\nAccordingly, because Doe’s compliance with the subpoena would require mere “surrender” of the calendar, and not “testimony,” Doe has no act of production privilege. See Fisher, 425 U.S. at 411, 96 S.Ct. at 1581.\nC. Governmental Misconduct\nThe grand jury plays a “special role in insuring fair and effective law enforcement.” United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617-18, 38 L.Ed.2d 561 (1974). As the Supreme Court has emphasized, that role “necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it.” Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 2666-67, 33 L.Ed.2d 626 (1972). Therefore, the grand jury’s “investigative powers are necessarily broad,” and “the longstanding principle that ‘the public ... has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege, is particularly applicable to grand jury proceedings.” Id. at 688, 92 S.Ct. at 2660 (citations omitted).\nAgainst this broad power, Doe contends that the subpoena may not be enforced because, by providing the calendar to the U.S. Attorney’s Office, the SEC breached an agreement not to disclose to third parties any documents produced by him. Therefore, Doe argues, the subpoena for the original version of the calendar should not be enforced “because it is the tainted fruit of a breach of the conditions under which a copy of the [calendar] was made available to the SEC.” We are not persuaded.\nWe seriously question whether Doe actually procured an agreement from the SEC not to disclose the calendar to the U.S. Attorney’s Office. The alleged agreement upon which Doe relies consists merely of a one-sided request by his attorney for confidential treatment of documents produced. Doe offers no evidence that the SEC agreed to this condition, and the SEC attorney involved denies having done so. Furthermore, such an agreement would conflict with standard SEC practice, reflected on a form provided to Doe’s counsel, which states:\nThe Commission often makes its files available to other government agencies, particularly United States Attorneys and state prosecutors. There is a likelihood that information supplied by you will be made available to such agencies where appropriate. Whether or not the Commission makes its files available to other governmental agencies is, in general, a confidential matter between the Commission and such other governmental agencies.\nWe need not resolve this issue, however, because even if Doe obtained such an agreement from the SEC, he suffered no prejudice from the SEC’s purported breach of it. There can be no doubt that had the SEC refused a request by the U.S. Attorney’s Office for a copy of the calendar, the grand jury would have subpoenaed it. Such a subpoena could have been directed either to the SEC or to Doe’s co-defendant in the SEC’s civil suit, who had obtained a copy of the calendar from the SEC during discovery. Doe has not shown that the grand jury would have been unable to obtain a copy of the calendar from either of those sources.\nWe therefore conclude that Doe suffered no prejudice in this proceeding from the SEC’s alleged wrongful disclosure of the calendar, and the subpoena is not rendered unenforceable by governmental misconduct.\nReversed.\n. For purposes of this appeal, we do not question the district court’s characterization of Doe's calendar as an \"intimate personal document.” That conclusion appears to rest, at least in part, on the determination of factual issues, and therefore it will not be overturned because we do not find it has no support in the record. See United States v. Doe, 465 U.S. 605, 614, 104 S.Ct. 1237, 1243, 79 L.Ed.2d 552 (1984).\n. As one commentator has noted:\nThe conceptual basis for [Boyd's protection of the contents of private papers] was never entirely clear, but seemed to rest upon the combined effect of the Fifth Amendment's privilege and the Fourth Amendment's protection against unreasonable searches and seizures. It was regarded as related to, and perhaps part of, the Fourth Amendment's \"mere evidence” rule, a prohibition against the seizure and use of items that were neither contraband nor instruments or fruits of crime but of value to the prosecution because they were evidence that a crime was committed or that a particular person committed it.\n1 McCormick On Evidence § 127, at 464 (4th ed. 1992).\n.As the Supreme Court has observed:\nThe application of the Fourth Amendment to subpoenas was limited by Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), and more recent cases. See, e.g., Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Purely evidentiary (but \"non-testimonial”) materials, as well as contraband and fruits and instrumentalities of crime, may now be searched for and seized under proper circumstances, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Also, any notion that \"testimonial” evidence may never be seized and used in evidence is inconsistent with Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), approving the seizure under appropriate circumstances of conversations of a person suspected of crime.\n >¡S Sj! Si # \nFurthermore, despite Boyd, neither a partnership nor the individual partners are shielded from compelled production of partnership records on self-incrimination grounds. Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974).\nFisher v. United States, 425 U.S. 391, 407-08, 96 S.Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976) (footnote omitted).\n. Doe’s reliance on Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291 (2d Cir.1979) is misplaced. There, we affirmed a district court order denying the government's informal request for transcripts of depositions taken in a private civil action which were subject to a protective order approved by the court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. In so ruling, we reasoned that the interest in the enforcement of Rule 26(c) orders was sufficient to outweigh the government’s interest in obtaining information by means of an informal document request. Id. at 295-96.\nHere, by contrast, the government has not requested Doe’s calendar informally, but through a grand jury subpoena. Further, documents produced by Doe to the SEC are not subject to a Rule 26(c) protective order, but merely to an alleged agreement of confidentiality. On this record, we cannot say that the interests underlying enforcement of that agreement are sufficient to trump the grand jury's interest in obtaining evidence of possible criminal conduct by Doe.", "type": "majority", "author": "LUMBARD, Circuit Judge:"}, {"text": "ALTIMARI, Circuit Judge,.\ndissenting:\nBecause I believe that the Supreme Court’s pronouncement in Boyd v. United States, 116 U.S. 616, 634-35, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886) that “a compulsory production of the private books and papers of the owner of goods sought to be forfeited ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution” remains valid, I respectfully dissent.\nThe proposition in Boyd regarding the Fifth Amendment protection of private papers has been repeated in a number of subsequent opinions. See Wilson v. United States, 221 U.S. 361, 377, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911); United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944); Couch v. United States, 409 U.S. 322, 330, 93 S.Ct. 611, 616-17, 34 L.Ed.2d 548 (1973); Beilis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974). The majority maintains, however, that Boyd’s foundations have been eroded by more recent Supreme Court decisions. Admittedly, certain elements of the Boyd decision have been overturned. See Warden v. Hayden, 387 U.S. 294, 301-302, 87 S.Ct. 1642, 1647-48, 18 L.Ed.2d 782 (1967) (rejecting parts of Boyd’s holding regarding the Fourth Amendment). The Boyd pronouncement at issue here, however, has never been expressly overruled, nor has a majority of the Court indicated that it would so rule in a ease dealing with personal papers.\nThe Supreme Court cases that the majority relies upon to support its contentions are distinguishable. In Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the government sought to compel the production of documents prepared by accountants that related to their clients’ tax returns. In the case at bar, the government seeks to compel production of the contents of defendant’s day calendar, a document that even the majority agrees is an “intimate personal document.” In Fisher, although the Court concluded that the documents must be produced, the Court specifically stated that because the case before it did not involve the witnesses’s private papers, it was not resolving the question of whether such documents could be compelled. See id. at 414, 96 S.Ct. at 1582 (“Whether the Fifth Amendment would shield the taxpayer from producing his own tax records in his possession is a question not involved here; for the papers demanded here are not his ‘private papers.’ ”). Accordingly, the Court’s analysis in Fisher relating to the “act of production privilege” and the voluntariness of producing the document does not necessarily relate to private papers. The majority’s reference to Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), another case involving business records, is therefore equally off the mark.\nIn United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), yet another case dealing with the compelled production of business documents, the Court focused on whether the document was voluntarily compiled. See id. at 612 n. 10, 104 S.Ct. at 1242 n. 10. Because Doe, like Fisher, involved business records, it leaves open the question of whether the Court would apply the voluntariness analysis to personal papers. Although Justice O’Connor wrote separately to specifically state that the Fifth Amendment “provides absolutely no protection for the contents of private papers of any kind,” id. at 618, 104 S.Ct. at 1245, no other Justice joined in her opinion. Moreover, two other Justices wrote separately in order to express their opinions that the Fifth Amendment continued to protect the contents of certain personal documents. See id. at 618-19, 104 S.Ct. at 1245-46 (Marshall, J. joined by Brennan, J., concurring in part and dissenting in part).\nAlthough the majority admits that Justice O’Connor was not speaking for the Court in Doe, it finds that the decision in Baltimore Dep’t of Social Servs. v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990), indicates that a majority of the Court now agrees with her position. Bouknight, however, involved the compelled production of a child, not the production of personal papers. I find the two incomparable. The compelled production of a diary, an unpublished, written expression of one’s innermost thoughts, forces the involuntary disclosure of the contents of one’s mind. The compelled production of a child, on the other hand, is in no way its equivalent. A child, although the result of a private experience, is produced precisely to take his or her place in a public world. Therefore, although the Court found that the privilege against testimonial self-incrimination cannot be invoked to prevent the compelled presence of another person, it can still- be invoked to prevent the compelled production of a personal diary.\nThe majority relies on the decisions of three circuits that have concluded that voluntarily prepared personal papers are not protected by the Fifth Amendment. The majority, however, neglects to cite to a decision of the Third Circuit finding that “the fifth amendment protects an accused from government-compelled disclosure of self-incriminating private papers, such as purely personal date books.” In re Grand Jury Proceedings, 632 F.2d 1033, 1042 (3d Cir.1980). Furthermore, three other circuits, although refusing to decide the matter, have made statements that leave room for some kind of exception for personal papers. See Butcher v. Bailey, 753 F.2d 465, 469 (6th Cir.) (leaving open the possibility that private papers may be protected where compelled disclosure would “break the heart of our sense of privacy”)’ (citations omitted), cert dismissed, 473 U.S. 925, 106 S.Ct. 17, 87 L.Ed.2d 696 (1985); In re Steinberg, 837 F.2d 527, 530 (1st Cir.1988) (same); United States v. Mason, 869 F.2d 414, 416 (8th Cir.) (same), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989). The Eleventh Circuit, also refusing to rule on the continued vitality of Boyd, has made reference to the Supreme Court’s own reluctance to overrule Boyd. See In re Grand Jury Investigation, 921 F.2d 1184, 1187 n. 6 (11th Cir.1991). Given these decisions, it seems far from clear that Fisher and Bouknight have struck the “death knell” for Boyd as the majority maintains.\nTo hold that a person must divulge self-incriminating statements merely because she chose to write them down rather than keep them sealed in her head, is to strip the Fifth Amendment privilege of its intended power. Prying, open a personal diary and forcing its writer to reveal her innermost thoughts, however incriminating they may be, would no doubt have been as reprehensible to our forefathers as prying open a person’s lips to extract a confession.\nIn sum, although Boyd’s continued vitality has been questioned, its pronouncement that personal papers are protected by the Fifth Amendment has never been expressly overruled. Its reasoning should therefore continue to be applied until the Supreme Court directs us to do otherwise. Accordingly, I respectfully dissent.", "type": "dissent", "author": "ALTIMARI, Circuit Judge,."}], "attorneys": ["Scott A. Edelman, Asst. U.S. Atty., New York City (Roger S. Hayes, U.S. Atty., S.D.N.Y., John W. Auchincloss II, Asst. U.S. Atty., of counsel), for appellant.", "Jed S. Rakoff, New York City (Fried, Frank, Harris, Shriver & Jacobson, John Sullivan, of counsel), for appellee.", "John H. Doyle, III, New York City filed a brief on behalf of New York Council of Defense Lawyers as amicus curiae."], "corrections": "", "head_matter": "In re GRAND JURY SUBPOENA DUCES TECUM DATED OCTOBER 29, 1992. UNITED STATES of America, Appellant, v. John DOE, Appellee.\nNo. 1497, Docket 93-1070.\nUnited States Court of Appeals, Second Circuit.\nArgued May 18, 1993.\nDecided July 21, 1993.\nScott A. Edelman, Asst. U.S. Atty., New York City (Roger S. Hayes, U.S. Atty., S.D.N.Y., John W. Auchincloss II, Asst. U.S. Atty., of counsel), for appellant.\nJed S. Rakoff, New York City (Fried, Frank, Harris, Shriver & Jacobson, John Sullivan, of counsel), for appellee.\nJohn H. Doyle, III, New York City filed a brief on behalf of New York Council of Defense Lawyers as amicus curiae.\nBefore: LUMBARD, CARDAMONE, and ALTIMARI, Circuit Judges."}	LUMBARD	CARDAMONE	ALTIMARI	1	2	1	1	0	0	1 F.3d 87	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: In re GRAND JURY SUBPOENA DUCES TECUM DATED OCTOBER 29, 1992. UNITED STATES of America, Appellant, v. John DOE, Appellee\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-07-21\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nLUMBARD, Circuit Judge:\nThe government appeals from an order entered on January 7, 1993 in the Southern District of New York, Pollack, J., denying its motion to compel John Doe to comply with a grand jury subpoena duces tecum dated October 29, 1992. The subpoena commanded Doe to produce “[t]he original version of any diary or calendar for the year 1988, a copy of which has been produced to the SEC.” On appeal, the government argues that the court erred in denying its motion to compel because: (1) the Fifth Amendment does not protect the contents of voluntarily prepared, non-business documents such as Doe’s calendar; (2) Doe’s act of producing the calendar would not constitute compelled testimonial self-incrimination; and (3) enforcement of the subpoena is not barred by alleged governmental misconduct. Because we agree, we reverse.\nIn 1989, the SEC was investigating possible violations of the federal securities laws by Doe and others. The investigation focused in part on the trading of securities by Doe in his personal brokerage accounts. Pursuant to that investigation, Doe was served with a subpoena dated October 24, 1989, demanding that he appear before the SEC and produce various documents, including his daily calendar for 1988. That calendar is a breast-pocket appointment book which Doe used to record appointments, social engagements, chores, phone numbers, and other reminders.\nOn January 10,1990, Doe appeared before the SEC and, on the advice of counsel, responded to the subpoena by asserting his Fifth Amendment privilege against self-incrimination. Thereafter, however, Doe, through new counsel, agreed to withdraw his prior invocation of the Fifth Amendment and comply with the SEC’s requests. In return, the SEC agreed, inter alia, to: withdraw the subpoena previously served on Doe; agree with Doe as to the timing and scope of future document requests; and extend the time for Doe to respond to any recommendation it might make for enforcement action against him.\nOn December 6 and 7, 1990, Doe appeared before the SEC in New York and testified about the trading of securities in his personal brokerage accounts. Thereafter, on December 20, 1990, the SEC requested that Doe produce various documents, including “[d]esk calendars, diaries and appointment books kept by him or on his behalf.”\nOn January 28, 1991, Doe complied with that request by producing a number of documents, including a photocopy of the calendar. The documents were submitted with a cover letter from Doe’s counsel which stated in part:\nWe claim that all materials provided to the Staff during the course of this investigation, including this letter and the documents transmitted herewith, are entitled to confidential treatment. Because such documents constitute investigatory records obtained by the Commission in connection with a potential law enforcement proceeding, they certainly are subject, at least at the present, to the exemption from mandatory disclosure under ... the Freedom of Information Act * * * as well as the protections available under the Privacy Act of 1974....\nAccordingly, we expect that all copies of documents produced in connection with the Staffs investigation, including this letter, will be kept in a non-public file and that access to them by any third party not a member of the Commission or its Staff will be denied.\nEach page of every document produced by Doe was stamped:\nThis document is provided to the United States Securities and Exchange Commission solely for its use, and neither the document nor its contents may be disclosed to any other person or entity, pursuant to a claim of confidentiality made by letter dated JAN 28 1991.\nIn June 1991, Doe again appeared before the SEC and testified about the documents he had produced in January. In particular, Doe was questioned about calendar entries for March 7,1988, a date of particular importance in the SEC’s investigation.\nAfter the SEC concluded its investigation, it brought a civil lawsuit against Doe and others alleging participation by Doe in insider trading.\nWhile the SEC’s investigation was pending, the U.S. Attorney’s Office for the Southern District of New York requested access to documents produced by Doe. On March 5, 1991, the SEC granted that request and provided the U.S. Attorney’s Office with a copy of the calendar. Upon examining it, the government became suspicious that entries in the original version of the calendar had been “whited-out” with “liquid paper” before it was copied and produced to the SEC. Accordingly, on October 29, 1990, a grand jury, which had been investigating possible perjury and obstruction of justice by Doe and others, issued a subpoena commanding Doe to produce the original version of the calendar.\nDoe informed the government that, on the basis of his Fifth Amendment privilege against self-incrimination, he would refuse to produce the calendar. The government then moved to compel Doe to comply with the subpoena. At a November 12, 1992 conference before Judge Pollack, the government advised the court and Doe’s counsel of its suspicion that the calendar had been altered, explaining that it wanted to perform physical tests on the original version of the calendar to reveal any entries that had been whited-out. Doe maintained that the subpoena was unenforceable because: (1) the contents of the calendar, as well as the act of producing it, were protected by the Fifth Amendment; and (2) the SEC had breached a confidentiality agreement with him by providing a copy of the calendar to the U.S. Attorney’s Office.\nDoe’s counsel then permitted the government to view the original version of the calendar. The government’s examination confirmed its suspicion that numerous entries had been whited-out, including entries for the critical date of March 7, 1988.\nAt a hearing on January 7, 1993, Judge Pollack denied the government’s motion to compel, stating:\nThe diary is a [sic] intimate personal document; the content of the original document as originally written or revised was not published to anyone; the disclosure of a purported copy to the SEC was not a publication of the original; the original document was not voluntarily disclosed to the SEC or to the Assistant United States Attorney. The original document is subject to the privilege of the Fifth Amendment in its original and its present altered (if it was) form.\nThis appeal followed.\nA. Contents-Based Privilege\nDoe maintains that the contents of the calendar are protected from compelled production by the Fifth Amendment’s Self-incrimination Clause, which provides, “No person ... shall be compelled in any criminal case to be a witness against himself.” While we have previously left undecided the question of whether the Fifth Amendment “protects the contents of private papers that are not business documents,” In re Proceedings Before August 6, 1981 Grand Jury, 767 F.2d 39, 41 (2d Cir.1985), we now rule that it does not.\nIn arguing for a contents-based privilege, Doe relies principally upon Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), which involved a civil forfeiture proceeding against two partners charged with importing glass without paying the prescribed duty. Over the partners’ objections, the government obtained a court order requiring them to produce the invoice for the glass. After the invoice was admitted at trial, the glass was ordered forfeited. The Supreme Court reversed, holding that the order violated both the Fourth and Fifth Amendments.\nIn so ruling, the Court concluded that the Fourth Amendment applied to court orders in the nature of subpoenas duces tecum in the same manner that it applied to search warrants, and that the government could not, consistent with the Fourth Amendment, seize a person’s documents as evidence unless it had a superior proprietary interest in them. Id. at 622-24, 6 S.Ct. at 527-29. The Court also held that a defendant in a criminal or forfeiture case could not be compelled to produce certain evidentiary items without violating the Fifth Amendment, stating, “[A] compulsory production of the private books and papers of the owner of goods sought to be forfeited ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution.” Id. at 634-35, 6 S.Ct. at 534-35.\nSeveral aspects of the Boyd decision did not endure. Nevertheless, the pronouncement in Boyd that the Fifth Amendment protects against the compelled production of private papers often appeared as dictum in later Supreme Court opinions. See, e.g., Wilson v. United States, 221 U.S. 361, 377, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911); United States v. White, 322 U.S. 694, 698-99, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944); Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1831-32, 16 L.Ed.2d 908 (1966); Beilis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974). In a series of decisions beginning with Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976), however, the Court raised serious doubt as to the continued validity of that pronouncement.\nIn Fisher, the Court ruled that taxpayers’ Fifth Amendment privileges against self-incrimination did not shield them or their attorneys from complying with IRS summonses directing the production of tax records prepared by the taxpayers’ accountants. Rejecting the taxpayers’ reliance on Boyd, the Court noted that because much of Boyd’s doctrine had “not stood the test of time,” id. at 407, 96 S.Ct. at 1579, “the prohibition against forcing the production of private papers has long been a rule searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give ‘testimony’ that incriminates him.” Id. at 409, 96 S.Ct. at 1580.\nThe Court also emphasized that “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.” Id. at 408, 96 S.Ct. at 1579 (emphasis omitted). Since the accountants’ papers were not prepared by the taxpayers, “they contain[ed] no testimonial declarations by [them].” Id. at 409, 96 S.Ct. at 1580. And since “the preparation of all of the papers sought ... was wholly voluntary, ... théy cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else.” Id. at 409-10, 96 S.Ct. at 1580 (footnote omitted). The Court thus concluded that the summonses were enforceable unless the act of producing the documents was itself subject to a valid Fifth Amendment privilege. Id. at 410, 96 S.Ct. at 1580-81.\nThe Fisher Court also rejected the notion, which it traced to Boyd, that the Fifth Amendment provides any general protection of privacy:\nWithin the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court’s view, did not involve compelled testimonial self-incrimination of some sort.\n*****\nWe cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy — a word not mentioned in its text and a concept directly addressed in the Fourth Amendment. We adhere to the view that the Fifth Amendment protects against “compelled self-incrimination, not [the disclosure] of private information.” United States v. Nobles, 422 U.S. 225, 233 n. 7, 95 S.Ct. 2160, 2167 n. 7, 45 L.Ed.2d 141 (1975).\nId. at 399-401, 96 S.Ct. at 1575-76 (alteration in original) (footnote omitted). Nevertheless, the Court expressly declined to decide whether the Fifth Amendment would protect against the disclosure of “private papers” such as a taxpayer’s “own tax records in his possession.” Id. at 414, 96 S.Ct. at 1582.\nIn Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), decided shortly after Fisher, the Court reiterated that any self-incrimination analysis must focus on the voluntariness of the communication at issue. Rejecting a claim that the Fifth Amendment was violated by the use against a criminal defendant of personal business records seized pursuant to a lawful search, the Court reasoned that because the records had been “voluntarily committed to writing,” and because the defendant had not been forced to produce or authenticate them, use of the records did not compel the defendant to incriminate himself. Id. at 473, 96 S.Ct. at 2944-45.\nThen in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), the Court reaffirmed its holding in Fisher and answered in the negative the question it had left open in that case, ruling that the Fifth Amendment does not protect the contents of an individual’s business records in his own possession. Emphasizing that the Amendment “protects the person asserting the privilege only from compelled self-incrimination,” id. at 610, 104 S.Ct. at 1241, the Court held in substance that because the documents at issue were prepared voluntarily, they “ ‘cannot be said to contain compelled testimonial evidence’ in and of themselves.” Id. at 612 n. 9, 104 S.Ct. at 1242 n. 9 (citation omitted). Although the documents at issue were business records, the Court stated broadly, “If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged.” Id. at 612 n. 10, 104 S.Ct. at 1242 n. 10.\nIn a separate concurring opinion, Justice O’Connor wrote:\nI write separately ... just to make explicit what is implicit in the analysis of [the Court’s] opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. The notion that the Fifth Amendment protects the privacy of papers originated in Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746] (1886), but our decision in Fisher v. United States, 425 U.S. 391 [96 S.Ct. 1569, 48 L.Ed.2d 39] (1976), sounded the death knell for Boyd. “Several of Boyd’s express or implicit declarations [had] not stood the test of time,” 425 U.S. at 407 [96 S.Ct. at 1579], and its privacy of papers concept “ha[d] long been a rule searching for a rationale_” Id. at 409 [96 S.Ct. at 1580]. Today’s decision puts a long overdue end to that fruitless search.\nId., 465 U.S. at 618, 104 S.Ct. at 1245 (second and third alterations in original). While no other justice joined in Justice O’Connor’s opinion, the decision in Baltimore Dep’t of Social Servs. v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990), suggests that a majority of the Court now agrees with her position.\nIn Bouknight, the Court ruled that the Fifth Amendment did not shield a mother from complying with a juvenile court order directing her to produce her infant son. Citing Justice O’Connor’s Doe concurrence, the Court stated that “a person may not claim the Amendment’s protections based upon the incrimination that may result from the contents or nature of the thing demanded.” Id. at 555, 110 S.Ct. at 905. The Court thus concluded that any Fifth Amendment privilege would have to arise from the act of production, because “[w]hen the government demands that an item be produced, ‘the only thing compelled is the act of producing the [item].”’ Id. at 554-55, 110 S.Ct. at 905 (alteration in original) (quoting Fisher, 425 U.S. at 410 n. 11, 96 S.Ct. at 1580 n. 11).\nNotwithstanding these recent decisions, Doe contends that Boyd still controls this case, compelling the conclusion that the Fifth Amendment protects the contents of voluntarily prepared, non-business documents such as the calendar. We disagree.\nFirst, Boyd concerned business documents, and therefore its declarations regarding the Fifth Amendment’s protection of non-business documents were dicta. WTiile the dicta of the Supreme court merits our deference, we also heed Chief Justice Marshall’s admonition that:\ngeneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision_\nCohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821), quoted in Donovan v. Red Star Marine Servs., 739 F.2d 774, 782 (2d Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1355, 84 L.Ed.2d 377 (1985).\nSecond, the Supreme Court’s more recent opinions indicate that Boyd’s foundations have eroded. The Court no longer views the Fifth Amendment as a general protector of privacy or private information, but leaves that role to the Fourth Amendment. See Fisher, 425 U.S. at 401, 96 S.Ct. at 1576; see also Doe, 465 U.S. at 610-11 n. 8, 104 S.Ct. at 1240-42 n. 8. Self-incrimination analysis now focuses on whether the creation of the thing demanded was compelled and, if not, whether the act of producing it would constitute compelled testimonial communication. See Doe, 465 U.S. at 612, 104 S.Ct. at 1242; Andresen, 427 U.S. at 473, 96 S.Ct. at 2744-45; Fisher, 425 U.S. at 409-410, 96 S.Ct. at 1580-81. Further, the Bouknight Court’s citation of Justice O’Connor’s Doe concurrence indicates that this analysis applies regardless of “the contents or nature of the thing demanded.” 493 U.S. at 555, 110 S.Ct. at 905.\nThird, the three courts of appeals that have considered this question have all concluded that the Fifth Amendment does not protect the contents of voluntarily prepared documents, business or personal. See United States v. Wujkowski, 929 F.2d 981, 983, 985 (4th Cir.1991) (contents of appointment books and records relating to vacation home not privileged under Fifth Amendment), aff'd after remand sub nom. United States v. Stone, 976 F.2d 909 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1843, 123 L.Ed.2d 467 (1993); In re Sealed Case, 877 F.2d 83, 84 (D.C.Cir.1989) (privilege “does not cover the contents of any voluntarily prepared records, including personal ones”), cert. denied, 493 U.S. 1044, 110 S.Ct. 839, 107 L.Ed.2d 834 (1990); In re Grand Jury Proceedings, 759 F.2d 1418, 1419 (9th Cir.1985) (contents of business and personal documents are not privileged “in the absence of some showing that creation of the documents was the product of compulsion”).\nFor these reasons, we conclude that because Doe voluntarily prepared the calendar, its contents are not protected by the Fifth Amendment.\nB. Act of Production Privilege\nWhile the contents of voluntarily prepared documents are not privileged, the act of producing them in response to a subpoena may require incriminating testimony in two situations: (1) “if the existence and location of the subpoenaed papers are unknown to the government”; or (2) where production would “implicitly authenticate” the documents. United States v. Fox, 721 F.2d 32, 36 (2d Cir.1983) (citations omitted). Because neither of these situations exists here, Doe has no act of production privilege.\nProduction may not be refused “[i]f the government can demonstrate with reasonable particularity that it knows of the existence and location of subpoenaed documents.” In re Grand Jury Subpoena Duces Tecum, 616 F.Supp. 1159, 1161 (E.D.N.Y.1985). Since Doe produced a copy of the calendar to the SEC and testified about his possession and use of it, its existence and location are “foregone conclusions],” and his production of the original “adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411, 96 S.Ct. at 1581.\nNor would Doe’s compliance with the subpoena implicitly authenticate the calendar; his production is not “a necessary link to incriminating evidence contained in [it].” Fox, 721 F.2d at 38 (quoting In re Grand Jury Proceedings United States (Martinez), 626 F.2d 1051, 1055 (1st Cir.1980)). The government could authenticate the calendar, either in the grand jury or at trial, simply by establishing Doe’s prior production of the copy to the SEC and asking the trier of fact to compare the copy and the original. Such a comparison, considered in light of Doe’s SEC testimony regarding his use of the calendar, would leave no doubt that the calendar was that described in the subpoena.\nAccordingly, because Doe’s compliance with the subpoena would require mere “surrender” of the calendar, and not “testimony,” Doe has no act of production privilege. See Fisher, 425 U.S. at 411, 96 S.Ct. at 1581.\nC. Governmental Misconduct\nThe grand jury plays a “special role in insuring fair and effective law enforcement.” United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617-18, 38 L.Ed.2d 561 (1974). As the Supreme Court has emphasized, that role “necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it.” Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 2666-67, 33 L.Ed.2d 626 (1972). Therefore, the grand jury’s “investigative powers are necessarily broad,” and “the longstanding principle that ‘the public ... has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege, is particularly applicable to grand jury proceedings.” Id. at 688, 92 S.Ct. at 2660 (citations omitted).\nAgainst this broad power, Doe contends that the subpoena may not be enforced because, by providing the calendar to the U.S. Attorney’s Office, the SEC breached an agreement not to disclose to third parties any documents produced by him. Therefore, Doe argues, the subpoena for the original version of the calendar should not be enforced “because it is the tainted fruit of a breach of the conditions under which a copy of the [calendar] was made available to the SEC.” We are not persuaded.\nWe seriously question whether Doe actually procured an agreement from the SEC not to disclose the calendar to the U.S. Attorney’s Office. The alleged agreement upon which Doe relies consists merely of a one-sided request by his attorney for confidential treatment of documents produced. Doe offers no evidence that the SEC agreed to this condition, and the SEC attorney involved denies having done so. Furthermore, such an agreement would conflict with standard SEC practice, reflected on a form provided to Doe’s counsel, which states:\nThe Commission often makes its files available to other government agencies, particularly United States Attorneys and state prosecutors. There is a likelihood that information supplied by you will be made available to such agencies where appropriate. Whether or not the Commission makes its files available to other governmental agencies is, in general, a confidential matter between the Commission and such other governmental agencies.\nWe need not resolve this issue, however, because even if Doe obtained such an agreement from the SEC, he suffered no prejudice from the SEC’s purported breach of it. There can be no doubt that had the SEC refused a request by the U.S. Attorney’s Office for a copy of the calendar, the grand jury would have subpoenaed it. Such a subpoena could have been directed either to the SEC or to Doe’s co-defendant in the SEC’s civil suit, who had obtained a copy of the calendar from the SEC during discovery. Doe has not shown that the grand jury would have been unable to obtain a copy of the calendar from either of those sources.\nWe therefore conclude that Doe suffered no prejudice in this proceeding from the SEC’s alleged wrongful disclosure of the calendar, and the subpoena is not rendered unenforceable by governmental misconduct.\nReversed.\n. For purposes of this appeal, we do not question the district court’s characterization of Doe's calendar as an \"intimate personal document.” That conclusion appears to rest, at least in part, on the determination of factual issues, and therefore it will not be overturned because we do not find it has no support in the record. See United States v. Doe, 465 U.S. 605, 614, 104 S.Ct. 1237, 1243, 79 L.Ed.2d 552 (1984).\n. As one commentator has noted:\nThe conceptual basis for [Boyd's protection of the contents of private papers] was never entirely clear, but seemed to rest upon the combined effect of the Fifth Amendment's privilege and the Fourth Amendment's protection against unreasonable searches and seizures. It was regarded as related to, and perhaps part of, the Fourth Amendment's \"mere evidence” rule, a prohibition against the seizure and use of items that were neither contraband nor instruments or fruits of crime but of value to the prosecution because they were evidence that a crime was committed or that a particular person committed it.\n1 McCormick On Evidence § 127, at 464 (4th ed. 1992).\n.As the Supreme Court has observed:\nThe application of the Fourth Amendment to subpoenas was limited by Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), and more recent cases. See, e.g., Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Purely evidentiary (but \"non-testimonial”) materials, as well as contraband and fruits and instrumentalities of crime, may now be searched for and seized under proper circumstances, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Also, any notion that \"testimonial” evidence may never be seized and used in evidence is inconsistent with Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), approving the seizure under appropriate circumstances of conversations of a person suspected of crime.\n >¡S Sj! Si # \nFurthermore, despite Boyd, neither a partnership nor the individual partners are shielded from compelled production of partnership records on self-incrimination grounds. Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974).\nFisher v. United States, 425 U.S. 391, 407-08, 96 S.Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976) (footnote omitted).\n. Doe’s reliance on Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291 (2d Cir.1979) is misplaced. There, we affirmed a district court order denying the government's informal request for transcripts of depositions taken in a private civil action which were subject to a protective order approved by the court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. In so ruling, we reasoned that the interest in the enforcement of Rule 26(c) orders was sufficient to outweigh the government’s interest in obtaining information by means of an informal document request. Id. at 295-96.\nHere, by contrast, the government has not requested Doe’s calendar informally, but through a grand jury subpoena. Further, documents produced by Doe to the SEC are not subject to a Rule 26(c) protective order, but merely to an alleged agreement of confidentiality. On this record, we cannot say that the interests underlying enforcement of that agreement are sufficient to trump the grand jury's interest in obtaining evidence of possible criminal conduct by Doe.\n[END_CASE]", "role": "user" } ]
10,508,210	Kam Shing CHAN, Kam Tai Chan, Jing Yi Chen, Shan Non Chiu, Bak Lok Chu, Kok Kun Chu, Israel Gonzalez, Sui Bin Huang, Jian Ning Jiang, Kam Fai Kwok, Moon Shuen Kwong, Wei Xiang Lee, Yang I Lee, Young Shi Lee, Bing Zhao Li, Hao Hui Li, Kei Man Li, Wai Tai Li, Chi Kwong Liu, Jack Ye Louie, Sheng Hua Lu, Tian Guang Mai, Cheuk Mink Ng, Kin Chung Ng, Kin Hin Ng, Shun Gao Shen, Ten Jen Shen, Hau Wing Sin, Vein Dinh Sintruong, Wing Shing Tse, Wai Man Wan, Kong Htyan Wu, Xu Ming Wu, Guo Xuan and Yue Nam Zhu, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF NEW YORK, Department of Housing Preservation & Development of New York City and Chinese-American Planning Council, Inc., Defendants-Appellants-Cross-Appellees	Kam Shing Chan v. City of New York	1993-07-26	Nos. 1230, 1231, 2194, Dockets 92-9236, 92-9238 and 93-7038	United States Court of Appeals for the Second Circuit	{"judges": ["Before: KEARSE and CARDAMONE, Circuit Judges, and BURNS, District Judge ."], "parties": ["Kam Shing CHAN, Kam Tai Chan, Jing Yi Chen, Shan Non Chiu, Bak Lok Chu, Kok Kun Chu, Israel Gonzalez, Sui Bin Huang, Jian Ning Jiang, Kam Fai Kwok, Moon Shuen Kwong, Wei Xiang Lee, Yang I Lee, Young Shi Lee, Bing Zhao Li, Hao Hui Li, Kei Man Li, Wai Tai Li, Chi Kwong Liu, Jack Ye Louie, Sheng Hua Lu, Tian Guang Mai, Cheuk Mink Ng, Kin Chung Ng, Kin Hin Ng, Shun Gao Shen, Ten Jen Shen, Hau Wing Sin, Vein Dinh Sintruong, Wing Shing Tse, Wai Man Wan, Kong Htyan Wu, Xu Ming Wu, Guo Xuan and Yue Nam Zhu, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF NEW YORK, Department of Housing Preservation & Development of New York City and Chinese-American Planning Council, Inc., Defendants-Appellants-Cross-Appellees."], "opinions": [{"text": "KEARSE, Circuit Judge:\nDefendants City of New York (“City”), Department of Housing Preservation & Development of New York City (“HPD”) (collectively “municipal defendants”), and the Chinese-American Planning Council, Inc. (“CPC”), appeal from so much of an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, as denied their motions pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss claims of plaintiffs Kam Shing Chan et al., asserted under 42 U.S.C. § 1983 (1988) for payment of subminimum wages, in violation of § 5310 of the Housing and Community Development Act of 1974, 42 U.S.C. § 5301 et seq. (1988 & Supp. II 1990) (“HCDA” or the “Act”). The district court ruled that although there is no private right of action directly under § 5310, plaintiffs’ claims for violation of that section could be pursued under § 1983. On appeal, defendants contend principally (a) that § 5310 does not create a right that can be enforced under § 1983, and (b) that a § 1983 action cannot be maintained because CPC cannot be considered a state actor. Plaintiffs cross-appeal, challenging the district court’s ruling that § 5310 affords them no private right of action directly under that section. For the reasons below, we reject these challenges and affirm in all respects.\nI. BACKGROUND\nPlaintiffs were employees of CPC who worked on federally funded construction projects. The present controversy arises out of their claims that CPC paid them less than the minimum wage rates federally required for such projects. For purposes of both the appeal and the cross-appeal, we accept as true the allegations of the First Amended Verified Complaint (“Complaint”), as clarified by the actual terms of the contracts invoked by the Complaint and presented to the district court, see Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992).\nA. The Contracts Between CPC and HPD\nFrom 1986 to 1989, CPC was party to a series of three contracts with HPD for the construction, repair, and rehabilitation of certain housing owned by the City (collectively the “Contracts”)- The Contracts were funded in whole or in part by federal grants under the HCDA. Section 5310 of that Act provides generally that laborers employed on construction work financed in whole or in part by HCDA grants “shall be paid wages at rates not less than those prevailing on similar construction in the locality” as determined by the Secretary of Labor (hereinafter “federally recognized prevailing rates”) in accordance with the Davis-Bacon Act, 40 U.S.C. §§ 276a to 276a-5 (1988) (“Davis-Bacon”). See 42 U.S.C. § 5310.\nThe Contracts between CPC and HPD contained certain terms and conditions required by the HCDA. One such provision, entitled “Federal Supplemental Terms and Conditions,” stated that\n[t]he Contractor acknowledges that this Agreement is funded under a program providing direct financial assistance from the Federal government to the City and HPD and is subject to, and the Contractor shall comply with, the requirements of all applicable Federal Statutes, rules and regulations, including, but not limited to, those set forth in Exhibit F attached to this Agreement.\n(1986-87 Contract, Article 18, ¶ 18.1.) Exhibit F specified that the Contracts were subject to the conditions of, inter alia, the HCDA and Davis-Bacon:\nThe Davis-Bacon Act: In construction contracts involving an excess of $2000, unless exclusively in connection with the rehabilitation of a structure designed for residential use by less than 8 families, all laborers and mechanics must be payed at a rate not less than those determined by the Secretary of Labor to be prevailing for the locality, which rates are annexed hereto as Exhibit A. These wage rates are a federally mandated minimum....\n(1986-87 Contract, Exhibit F, Article 3(b)(i) (emphasis in original).)\nEach Contract was awarded following the submission of bids in response to HPD’s Requests for Proposals (“RFPs”). The RFPs, which were incorporated in the Contracts, contained express provisions with respect to the wages to be paid workers on projects covered by the Contracts. For example, the RFP for the 1986-87 Contract stated:\nA Person-Day Rate, which shall be all inclusive of costs within each Proposal, will be the proper method of establishing the overall budget. For example, if $75.00 is the Person-Day Rate, - all costs to run the program, .pay the staff and trainees and provide training equipment and administrative services would be covered by said rate multiplied by the number of trainees multiplied by the number of days worked.\n(1986-87 RFP General Guidelines ¶ 1 (emphasis omitted).) This RFP also provided that “[tjhere shall be 246 work days in the term of the Contract” (id. ¶ 6 (emphasis omitted)), and that “[a] maximum Person-Day Rate is being set at $90.00” (id. ¶2). The Contract prohibited CPC from receiving any additional funding for “Program Work performed pursuant to this Agreement.” (1986-87 Contract, Article 15, ¶ 15.2.)\nCPC bid for and won the 1986-87 Contract with a budget that called for 30 trainees working 246 days at the $90 Person-Day Rate. The total contract price was thus $664,200. The 1988 and 1989 Contracts awarded to CPC were similar, though the RFPs permitted, and the Contracts called for, Person-Day Rates of $95.\nB. The Present Lawsuit and the District Court’s Decision\nIn 1990, plaintiffs commenced the present action, alleging that they were CPC employ-: ees who had performed construction, repair, or rehabilitation work on the projects covered by these Contracts and that from September 1986 to December 1989, (1) the wage rates specified in the Contracts were lower than the then-current federally recognized prevailing rates, and (2) CPC paid plaintiffs at rates even lower than those specified in the Contracts. The Complaint alleged that HPD “knowingly consented to, condoned, authorized, acquiesced in, and acted with deliberate indifference to, the repeated failures and refusals of CPC to pay plaintiffs at the federally mandated prevailing wage rates.” (Complaint ,¶ 53.) Plaintiffs contended principally that CPC in failing to pay federally recognized prevailing rates, and HPD in consenting, condoning, and authorizing that failure, deprived plaintiffs of their rights under § 5310, in violation of § 1983. As damages, plaintiffs requested, inter alia, the difference between the federally mandated wages and the wages they actually received.\nDefendants moved pursuant to, inter alia, Fed.R.Civ.P. 12(b)(6) to dismiss plaintiffs’ federal claims on the grounds that (1) no implied private right of action exists under § 5310, (2) the HCDA did not create a right that is enforceable under § 1983, and (3) in any event, the Complaint did not sufficiently allege that CPC acted under color of state law within the meaning of § 1983. In an opinion reported at 803 F.Supp. 710 (1992), the district court dismissed plaintiffs’ claims to the extent that they were asserted directly under § 5310 but denied defendants’ motions to dismiss to the extent that the claims were asserted under § 1983.\nIn determining that § 5310 itself did not grant plaintiffs a private right of action, the district court principally applied the analysis set out in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Noting that Congress had created other tools for the enforcement of § 5310 and that there was “no strong indication that Congress intended to create additional remedies,” the court concluded that no private right of action is to be implied under § 5310. 803 F.Supp. at 731.\nThe court ruled, howéver, that § 5310 created a federal right that is enforceable under § 1983. Reading § 5310 literally and finding that its wording reflected an “unambiguous focus on construction workers,” 803 F.Supp. at 723, the court concluded that there was “little doubt that § 5310 [wa]s intended to provide laborers with higher wages than they would receive in the absence of this section,” 803 F.Supp. at 723, and that by using the command “ ‘shall ’ ” in requiring payment of wages at rates not less than the federally recognized prevailing rates, id. (emphasis in opinion), Congress indicated its intent to create a binding obligation, id. at 725. Given that the Secretary of Labor is required to establish with specificity the minimum rates to be paid laborers and mechanics, the court concluded that plaintiffs’ interests were not vague, ambiguous, or amorphous:\nThe contractor knows exactly what wage rates will need to be paid and ... [what] rights are unambiguously conferred on laborers and mechanics. Finally, because the “shall” requirement of § 5310 is directed at the payment of workers’ wages, rather than compelling the inclusion of a contract provision ... the requirement is substantive, not procedural.\nId.\nThe court found “no evidence in the legislative history of the HCDA itself that Congress sought to foreclose a § 1983 remedy under § 5310.” 803 F.Supp. at 729. It noted that the administrative scheme established for enforcement of § 5310, though sufficient to contraindicate a private right of action directly under that section, was not sufficiently comprehensive to preclude a § 1983 right of action, since there was no provision in the statute for judicial remedies and no provision in the federal regulations for an employee to initiate a proceeding for resolution of disputes. 803 F.Supp. at 727-28.\nThe court also concluded that the Complaint sufficiently alleged the state action necessary for a § 1983 suit because there was a close nexus between CPC and the municipal defendants:\nUnder the close nexus test and the facts presently before the Court, ... CPC can be said to be a state actor. On the basis of the CPC/HPD Contracts and the RFPs, plaintiffs have alleged facts which, if proven true, would demonstrate that municipal defendants had “exercised coercive power or ha[d] provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the government.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. [522] at 546, 107 S.Ct. [2971] at 2986 [97 L.Ed.2d 427 (1987)] (citations omitted). In particular, plaintiffs assert that the $90-95 cap on the Person Day Rate, which was required by municipal defendants as a condition for awarding the contract, was so low as to make it financially impossible for CPC to pay prevailing wage rates as required under 42 U.S.C. § 5310. In short, plaintiffs have alleged facts asserting that the municipal defendants ensured that any successful bidder would be forced, for economic reasons, to violate 42 U.S.C. § 5310. If proven true, these facts would be sufficient to demonstrate that the municipal defendants “exercised coercive power or ... provided such significant encouragement” as to establish 42 U.S.C. § 1983 state action under the close nexus test.\n803 F.Supp. at 720-21.\nAccordingly, the district court denied defendants’ motions to dismiss to the extent that the Complaint asserted claims under § 1983.\nPursuant to 28 U.S.C. § 1292(b) (1988), the court certified for interlocutory appeal so much of its order as denied defendants’ motions to dismiss the § 1983 claims, and this Court granted defendants permission to appeal from that portion of the district court’s order. Thereafter, pursuant to Fed.R.Civ.P. 54(b), the district court directed that a final judgment be entered with respect to so much of its order as had granted defendants’ motions to dismiss plaintiffs’ claims directly under § 5310, finding that there was no just reason for delay and that the relationship between those claims and the § 1983 claims was sufficiently close to make it desirable for this Court to have the opportunity to review both rulings together. Plaintiffs’ cross-appeal followed and was consolidated with defendants’ appeal.\nII. DISCUSSION\nThe HCDA, enacted in 1974, provides for federal grants to local governmental units for use in the “development of viable urban communities,” in part “by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income,” 42 U.S.C. § 5301(c). Section 5310, which requires that certain workers employed on construction projects funded by the HCDA be paid at least at federally recognized prevailing wage rates, provides in pertinent part as follows:\nAll laborers and mechanics employed by contractors or subcontractors in the performance of construction work financed in whole or in part with assistance received under this chapter shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5) _ The Secretary of Labor shall have, with respect to such labor standards, the authority and functions set forth in Reorganization Plan Numbered 14 of 1950....\n42 U.S.C. § 5310(a). The Reorganization Plan referred to (hereinafter “1950 Plan”) required federal agencies to cooperate in the enforcement of federal labor standards. Reorganization Plan No. 14 of 1950, 5 U.S.C. app. (1988).\nThe questions presented by these appeals are (1) whether an action for violation of § 5310 is available to plaintiffs directly under that section; (2) whether an action for violation of § 5310 is available to plaintiffs under § 1983; and (3) if such an action is available under § 1983, whether payment of submini-mum wages by CPC can meet § 1983’s requirement of state action. We conclude, substantially for the reasons stated by the district court, that the first question should be answered in the negative but that the second and third should be answered in the affirmative.\nA. Implied, Private Right of Action Under § 5310\nWhether an implied private right of action exists under a federal statute is strictly a matter of congressional intent. “ ‘[U]n-less th[e] congressional intent [to create such a right] can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.’ ” Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988) (quoting Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981)); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979) (court’s “task is limited solely to determining whether Congress intended to create the private right of action asserted”). “The test reflects a concern, grounded in separation of powers, that Congress rather than the courts controls the availability of remedies for violations of statutes.” Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 509 n. 9, 110 S.Ct. 2510, 508 n. 9, 110 L.Ed.2d 455 (1990) (“Wilder”).\nWhen the statute itself is silent as to whether it may be enforced by private action, we normally start by examining the four factors set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, to wit, (1) whether the plaintiff is one of the class for whose “ ‘especial ’ ” benefit the statute was enacted, “that is, does the statute create a federal right in favor of the plaintiff’; (2) whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one”; (3) whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff’; and (4) whether the cause of action is “one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.” Id. at 78, 95 S.Ct. at 2088 (emphasis in original). All four Cort v. Ash factors are guides to determining congressional intent. See Wilder, 496 U.S. at 508 n. 9, 110 S.Ct. at 2517 n. 9; Thompson v. Thompson, 484 U.S. at 179, 108 S.Ct. at 516; Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Health Care Plan, Inc. v. Aetna Life Insurance Co., 966 F.2d 738, 740 (2d Cir.1992). The mere fact that plaintiffs are intended beneficiaries of the statute does not mean that Congress intended the statute to grant them a private right of action to secure that benefit. See, e.g., id. at 741. The courts may, for example, infer that Congress did not intend to create such a right of action if it expressly provided other remedies:\n[W]here a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.... In such cases, “[i]n the absence of strong indicia of contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.”\nKarakalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527, 533, 109 S.Ct. 1282, 1286-87, 103 L.Ed.2d 539 (1989) (quoting Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 15, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981)).\nHere, though we are persuaded that plaintiffs, as workers on an HCDA-funded project, are a class for whose special benefit § 5310 was enacted (see Part II.B.l. below), neither the statute nor the legislative history gives any indication that Congress intended that section to create a private right of action. Further, though the question is close, we tend to agree with the district court that Congress incorporated a regulatory scheme that is sufficiently detailed to suggest that no private right of action was intended. Under the 1950 Plan, to which Congress referred in § 5310, the Secretary had adopted regulations with respect to Davis-Bacon and related statutes; the regulations included provisions for the predetermination of prevailing wage rates, see 29 C.F.R. § 1.1 et seq. (1974); for reconsideration or administrative review of a wage determination at the request of “[a]ny interested person,” see id. §§ 1,8, 1.9; for investigations of complaints, see id. § 5.6; and for the resolution by a hearing officer of disputes of fact or law concerning proper classifications and the payment of prevailing wage rates, see id. § 5.11.\nBy its reference to the 1950 Plan in § 5310, Congress indicated that that section could be enforced through these regulatory provisions. Though there was no statement that these would be the exclusive means of enforcement, there simply was no indication that, along with the cited regulatory mechanism, Congress also intended to authorize laborers to bring private suits. Accordingly, we conclude that § 5310 does not contain an implied private right of action.\nB. Enforceability of § 5310 Under § 1983\nThe fact that a statute conferring substantive rights does not itself give its beneficiaries a private right of action to enforce it does not mean that the beneficiaries are without a private remedy. Section 1983, which provides, in pertinent part, that\n[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured,\n42 U.S.C. § 1983, may be available as a vehicle for remedying violations of federal statutes as well as constitutional violations, see Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Suter v. Artist M., — U.S. -, -, 112 S.Ct. 1360, 1366, 118 L.Ed.2d 1 (1992) (“Suter”). And unlike the inquiry into whether a substantive statute confers a direct private right of action, the § 1983 inquiry begins with a presumption in favor of the right to bring suit, for the “general rule” is that § 1983 provides a remedy for violations of federal statutory rights unless “Congress has affirmatively withdrawn the remedy,” Wilder, 496 U.S. at 509 n. 9, 110 S.Ct. at 2517 n. 9.\nNonetheless, though the Supreme Court has “repeatedly held that the coverage of [§ 1983] must be broadly construed,” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989), not every violation of a federal statute gives rise to a cause of action under § 1983. Section 1983 relief “is not available to enforce a violation of a federal statute ‘where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983.’ ” Suter, — U.S. at -, 112 S.Ct. at 1366 (quoting Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987)); see also Wilder, 496 U.S. at 508, 110 S.Ct. at 2517. As discussed below, neither circumstance exists here to prevent these plaintiffs from suing under § 1983 for the alleged violations of § 5310.\nCreation of an Enforceable Right l.\nIn Wilder, the Supreme Court applied a three-part analysis, which is different from the Cort v. Ash analysis of the existence of a direct right of action, see Wilder, 496 U.S. at 508-09 n. 9, 110 S.Ct. at 2517 n. 9, for determining whether a federal statute creates a right that may be enforced under § 1983. The § 1983 inquiry\nturns on whether “the provision in question was intended] to benefit the putative plaintiff.” ... If so, the provision creates an enforceable right unless it reflects merely a “congressional preference” for a certain kind of conduct rather than a binding obligation on the governmental unit ... or unless the interest the plaintiff asserts is “ ‘too vague and amorphous’ ” such that it is “ ‘beyond the competence of the judiciary to enforce.’ ”\nWilder, 496 U.S. at 509, 110 S.Ct. at 2517; see also Golden State Transit Corp. v. City of Los Angeles, 493 U.S. at 106, 110 S.Ct. at 449.\nThe Wilder Court considered whether health-care providers could maintain a § 1983 action to enforce a provision of the Medicaid Act that required a state, in order to receive reimbursement, to submit to the Secretary of Health and Human Services (“HHS”) a medical assistance plan that set rates which the “ ‘State finds, and makes assurances satisfactory to [HHS] are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities,’ ” Wilder, 496 U.S. at 503, 110 S.Ct. at 2514 (quoting 42 U.S.C. § 1396a(a)(13)(A) (Supp. V 1982)). The Court found that there was “little doubt that health care providers are the intended beneficiaries” of that provision, Wilder, 496 U.S. at 510, 110 S.Ct. at 2517; that the provision imposed a binding obligation on participating states that was “cast in mandatory rather than precatory terms,” id. at 512, 110 S.Ct. at 2519; and that the obligation was not “too ‘vague and amorphous,’ ” as “the statute and regulation set out factors which a State must consider” and provided objective benchmarks for the assessment of the reasonableness of the rates, id. at 519, 110 S.Ct. at 2522-23. Thus, the Court concluded that the statutory provision created a right that health-care providers could enforce in an action under § 1983.\nTwo years later, the Supreme Court in Suter distinguished Wilder, without mentioning its three-part test, in reaching a contrary conclusion as to a different statutory provision. The Suter Court considered whether children who were state wards could, under § 1983, enforce a federal statutory provision that conditioned federal reimbursement for state foster care programs on the acceptance by HHS of a state plan containing a provision that “ ‘reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home...'\" — U.S. at -, 112 S.Ct. at 1364 (quoting 42 U.S.C. § 671(a)(15)). The Suter Court concluded that the children had no right to maintain a § 1983 action because (a) there was insufficient statutory guidance as to how “reasonable efforts” were to be measured; (b) the state’s mode of compliance was, “within broad limits, left up to the State,” — U.S. at -, 112 S.Ct. at 1368; and (c) since the statute provided other enforcement mechanisms, the absence -of a private remedy under § 1983 did not make the “reasonable efforts” clause ineffectual, — U.S. at -, 112 S.Ct. at 1368-69. The Court reasoned that “[t]he term ‘reasonable efforts’ in this context is at least as plausibly read to impose only a rather generalized duty on the State,-to be enforced not by private individuals, but by [HHS],” and thus did not “unambiguously confer an enforceable right upon the Act’s beneficiaries.” Id. at -, 112 S.Ct. at 1370.\nIn the present case, we conclude that under either the Wilder analysis or, to the extent that it differs, the Suter analysis, § 5310 provides these plaintiffs with a right that is sufficiently clear to be enforceable under § 1983. While the ultimate goal of Congress in enacting the HCDA was, as a whole, the development of viable urban communities by providing decent housing and expanding economic opportunities for persons of low and moderate income, there can be no question that the provision for payment of a certain minimum wage confers its principal benefit on the wage earners. The persons whose wages are the subject of § 5310 are clearly specified: they are “laborers and mechanics.” The statutory requirement as to their wages is not merely a hortatory “reasonable efforts” provision; nor is it merely a provision requiring inclusion of wage terms in a state plan; rather, the statute states that at least the required level of wages “shall be paid.” Further, the minimum level of those wages is neither vague nor speculative nor left for determination by the states; rather, it is determinable by reference to an unambiguous specified standard set by a federal official — the Secretary of Labor — in accordance with another federal statute — Davis-Bacon.\nIn sum, there can be little doubt that laborers and mechanics are the intended beneficiaries of an obligation that is cast by § 5310 in mandatory terms and that is readily quantifiable by reference to a stated benchmark as set by a federal official. There is no ambiguity. The contractor is required to- pay such workers wages at rates not lower than the federally recognized prevailing rates.\n2. Congressional Foreclosure\nNotwithstanding a clearly conferred federal right, a § 1983 suit would not be available if Congress had manifested its intention to foreclose such a remedy. Suter, — U.S. at -, 112 S.Ct. at 1366. The courts should “‘“not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy” for the deprivation of a federally secured right.’ ... The burden is on the State to show ‘by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement,’ ” Wilder, 496 U.S. at 520-21, 110 S.Ct. at 2523 (citations omitted). Such “other specific evidence” may include provision of a scheme of remedial devices that is sufficiently comprehensive to demonstrate congressional intent to preclude the remedy of suits under § 1983. See, e.g., Wilder, 496 U.S. at 521, 110 S.Ct. at 2523-24; Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981) (“Sea Clammers”). In Sea Clam-mers, for example, the Court dealt with claims under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. § 1401 et seq. The statutes themselves contained “unusually elaborate enforcement provisions,” 453 U.S. at 13, including, for example, provisions in the water pollution statute (a) authorizing the Environmental Protection Agency Administrator to seek civil penalties of up to $10,000 a day, as well as criminal penalties, (b) allowing “any interested person” to seek review of agency actions in federal courts, and (c) allowing citizens to sue for injunctions or for civil penalties payable to the government, 453 U.S. at 13-14 & n. 25, 101 S.Ct. at 2623 & n. 25. The Sea Clammers Court concluded that because Congress “created so many specific statutory remedies, including the ... citizen-suit provisions,” it “intended to supplant any remedy that otherwise would be. available under § 1983.” 453 U.S. at 20-21, 101 S.Ct. at 2626-27. See also Smith v. Robinson, 468 U.S. 992, 1003, 104 S.Ct. 3457, 3464, 82 L.Ed.2d 746 (1984) (“when a statute creates a comprehensive remedial scheme, intentional ‘omissions’ from that scheme should not be supplanted by the remedial apparatus of § 1983”).\nThe statutory scheme provided by § 5310 is not so comprehensive: The HCDA itself, though it allows the Secretary of Labor to ask the Attorney General to bring a civil action against a grant recipient for noncompliance with the Act, see 42 U.S.C. §§ 5311(b); 5309(b)-(c), makes no reference to any other type of civil suit. As discussed in Part II.A. above, § 5310 authorizes the Secretary of Labor to cooperate with other federal agencies in enforcement and in effect adopts the regulatory scheme fashioned by the Secretary. Even that scheme, however, though providing for the determination of prevailing wage rates, the investigation of complaints, and the resolution of wage disputes, does not make provision for laborers to enforce their rights administratively. The dispute-resolution proceedings may be initiated only by the federal agency administering the HCDA contract, the Secretary, or an HCDA contractor or subcontractor. See 29 C.F.R. § 5.11(a) (1992). Indeed, at the time the HCDA was enacted, the regulations apparently permitted only the contract-administering agency to initiate such proceedings. See 29 C.F.R. § 5.11(b) (1974). The laborers who are the beneficiaries of § 5310 were not and are not allowed to initiate administrative dispute-resolution proceedings. Nor is there any provision for a laborer to obtain judicial review of any administrative decision. In sum, we do not see in § 5310 recognition of a regulatory scheme of such comprehensiveness as to manifest an affirmative congressional intent to preclude invocation of § 1983 as a remedy.\nIn arguing that Congress intended to preclude use of § 1983 actions to enforce § 5310, defendants rely heavily on Universities Research Assn. v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981) (“Coutu ”), which held that there was no private right of action under Davis-Bacon for back wages where (a) the contract did not' provide for Davis-Bacon wage levels, and (b) there had been an administrative predetermination that the contract did not call for Davis-Bacon work. The Coutu Court noted that a contractor needs to know in advance what its labor costs will be and reasoned that implication of a private right of action under Davis-Bacon to sue on a contract that had been predetermined not to call for Davis-Bacon wages would “destroy [the] careful balance” created between contractors and employees. 450 U.S. at 782, 101 S.Ct. at 1467.\nFor several reasons, this ruling does not suggest foreclosure of the § 1983 claims asserted here. First, the conclusion that a direct action may not.be brought to enforce Davis-Bacon rights where it had been administratively predetermined that Davis-Bacon did not apply would not be persuasive authority for even the proposition that no direct action may be brought to enforce a contract that expressly requires the payment of wages at Davis-Bacon levels. Indeed, the Coutu Court expressly “d[id] not decide whether the [Davis-Bacon] Act creates an implied private right of action to enforce a contract that contains specific Davis-Bacon Act stipulations.” 450 U.S. at 769, 101 S.Ct. at 1460. Second, Coutu’s concern for the contractor’s need to know in advance its labor costs is not an issue here, since the Contracts expressly required the payment of wages at Davis-Bacon levels. Finally, and most importantly, Coutu concerned only whether the action could be brought directly under Davis-Bacon, not whether it could be brought under § 1983. Though there can be no implied direct private right of action unless Congress demonstrably intended to create one, the § 1983 remedy is presumptively available unless Congress has affirmatively withdrawn it. As indicated above, we have seen no indication that Congress meant to withdraw the § 1983 remedy for violation of § 5310 where the contracts expressly call for payment of wages at rates not lower than the federally recognized prevailing rates.\nIn sum, we conclude that § 1983 is available as a remedy for state action that violated § 5310.\nC. State Action\nAn action under § 1983 cannot, of course, be maintained .unless the challenged conduct was attributable at least in part to a person acting under color of state law. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 835, 102 S.Ct. 2764, 2768, 73 L.Ed.2d 418 (1982); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993). Thus, plaintiffs must plead and prove that the relationship between CPC, which paid their wages, and the municipal defendants, which established limitations on the wages that could be paid, was sufficient to permit an inference that CPC acted not as an independent organization, but an arm of the state.\nActions by a private party are deemed state action if “there is a sufficiently close nexus between the State and the challenged action” that the actions by the private parties “may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974); see Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1081 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1583, 113 L.Ed.2d 648 (1991). The “close nexus” test is not satisfied merely by the fact that the private entity is a business “ ‘affected with the public interest,’ ” Jackson v. Metropolitan Edison Co., 419 U.S. at 353, 95 S.Ct. at 455; or that the state “ ‘approved] of or acquiesce[d] in the initiatives’ ” of the private entity, San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 547, 107 S.Ct. 2971, 2985, 97 L.Ed.2d 427 (1987) (“San Francisco”) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982)); or that a business is subject to extensive regulation, Jackson v. Metropolitan Edison Co., 419 U.S. at 350, 95 S.Ct. at 453, was publicly subsidized, San Francisco, 483 U.S. at 544, 107 S.Ct. at 2985, or had been given monopoly status by the state, Jackson v. Metropolitan Edison Co., 419 U.S. at 351-52, 95 S.Ct. at 454. “Acts of ... private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.” Rendell-Baker v. Kohn, 457 U.S. at 841, 102 S.Ct. at 2771. “The purpose of [the close-nexus] requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786 (emphasis in original). Such responsibility may be found when, after the facts are sifted and weighed, it is evidence that a state or its political subdivision “ ‘has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [state or political subdivision].’” San Francisco, 483 U.S. at 546, 107 S.Ct. at 2986 (quoting Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786).\nThe present Complaint meets the close-nexus test because the facts alleged, and supported by the Contracts relied on, easily permit the inference that CPC could not pay wages at the level required by § 5310 because of strictures imposed by the municipal defendants. The HPD RFPs provided that the contractor’s overall budget was to be determined by setting a “Person-Day Rate,” multiplied by the number of trainees, multiplied by the number of days worked. The Person-Day Rate was to include wages paid to the worker and all other expenses of running the program, and HPD placed a dollar ceiling on the Person-Day Rate. For the 1986-87 Contract, that ceiling was $90; for the other years, the ceiling was $95. Both ceilings were below the federally recognized prevailing wage minima for a full day’s work. Thus, to win the Contracts, CPC was required to make its bids based on wages below those levels; it was paid a sum that did not give it sufficient funds to pay wages at the § 5310 required minimum levels; and it was prohibited by the Contracts from receiving any additional funding for the work performed thereunder.\nIn sum, the facts alleged would suffice to permit a finding that HPD effectively required CPC to pay less than the minimum wages required by § 5310, that the actions of CPC in paying those subminimum wages were the responsibility of the municipal defendants, and that CPC’s conduct was therefore state action.\nDefendants also contend that even if CPC’s wage payments were constrained by the municipal defendants, CPC could not be deemed a state actor because the municipal defendants themselves were engaged only in federal, not state, action, as they merely expended federal funds under the HCDA. We reject this contention for the principal reason that the “Person-Day Rate” set by the RFPs, along with the provision that the contractor could not obtain other funding to pay its workers, apparently represented an attempt by the City to limit any call upon its own treasury for the projects in question. These restrictions were not required by any federal provision. Thus, the underpayment of wages cannot be attributed to the federal government; and the municipal defendants in limiting the wages that could be paid arid CPC in paying the wages as thus limited cannot legitimately claim to have been federal, rather than state, actors.\nWe conclude that the district court properly denied defendants’ motions to dismiss plaintiffs’ § 1983 claims.\nCONCLUSION\nThe order and judgment of the district court are affirmed. Costs to plaintiffs.", "type": "majority", "author": "KEARSE, Circuit Judge:"}], "attorneys": ["James Reif, New York City (Ellen Dichner, Gladstein, Reif & Meginniss, Shneyer & Shen, Asian American Legal Defense & Educ. Fund, on the brief), for plaintiffs-ap-pellees-cross-appellants.", "Fay Ng, New York City (0. Peter Sherwood, Corp. Counsel, City of New York, Pamela Seider Dolgow, John P. Woods, Goodwin E. Benjamin, on the brief), for defendants-appellants City of New York and Department of Housing Preservation & Development of New York City.", "Peter A. Walker, New York City (Jay W. Waks, Brian G. Cesaratto, Kaye, Scholer, Fierman, Hays & Handler, on the brief), for defendant-appellant Chinese-American Planning Council, Inc."], "corrections": "", "head_matter": "Kam Shing CHAN, Kam Tai Chan, Jing Yi Chen, Shan Non Chiu, Bak Lok Chu, Kok Kun Chu, Israel Gonzalez, Sui Bin Huang, Jian Ning Jiang, Kam Fai Kwok, Moon Shuen Kwong, Wei Xiang Lee, Yang I Lee, Young Shi Lee, Bing Zhao Li, Hao Hui Li, Kei Man Li, Wai Tai Li, Chi Kwong Liu, Jack Ye Louie, Sheng Hua Lu, Tian Guang Mai, Cheuk Mink Ng, Kin Chung Ng, Kin Hin Ng, Shun Gao Shen, Ten Jen Shen, Hau Wing Sin, Vein Dinh Sintruong, Wing Shing Tse, Wai Man Wan, Kong Htyan Wu, Xu Ming Wu, Guo Xuan and Yue Nam Zhu, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF NEW YORK, Department of Housing Preservation & Development of New York City and Chinese-American Planning Council, Inc., Defendants-Appellants-Cross-Appellees.\nNos. 1230, 1231, 2194, Dockets 92-9236, 92-9238 and 93-7038.\nUnited States Court of Appeals, Second Circuit.\nArgued March 8, 1993.\nDecided July 26, 1993.\nJames Reif, New York City (Ellen Dichner, Gladstein, Reif & Meginniss, Shneyer & Shen, Asian American Legal Defense & Educ. Fund, on the brief), for plaintiffs-ap-pellees-cross-appellants.\nFay Ng, New York City (0. Peter Sherwood, Corp. Counsel, City of New York, Pamela Seider Dolgow, John P. Woods, Goodwin E. Benjamin, on the brief), for defendants-appellants City of New York and Department of Housing Preservation & Development of New York City.\nPeter A. Walker, New York City (Jay W. Waks, Brian G. Cesaratto, Kaye, Scholer, Fierman, Hays & Handler, on the brief), for defendant-appellant Chinese-American Planning Council, Inc.\nBefore: KEARSE and CARDAMONE, Circuit Judges, and BURNS, District Judge .\nHonorable Ellen Bree Burns, of the United States District Court for the District of Connecticut, sitting by designation."}	KEARSE	CARDAMONE	BURNS	1	1	1	0	0	0	1 F.3d 96	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Kam Shing CHAN, Kam Tai Chan, Jing Yi Chen, Shan Non Chiu, Bak Lok Chu, Kok Kun Chu, Israel Gonzalez, Sui Bin Huang, Jian Ning Jiang, Kam Fai Kwok, Moon Shuen Kwong, Wei Xiang Lee, Yang I Lee, Young Shi Lee, Bing Zhao Li, Hao Hui Li, Kei Man Li, Wai Tai Li, Chi Kwong Liu, Jack Ye Louie, Sheng Hua Lu, Tian Guang Mai, Cheuk Mink Ng, Kin Chung Ng, Kin Hin Ng, Shun Gao Shen, Ten Jen Shen, Hau Wing Sin, Vein Dinh Sintruong, Wing Shing Tse, Wai Man Wan, Kong Htyan Wu, Xu Ming Wu, Guo Xuan and Yue Nam Zhu, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF NEW YORK, Department of Housing Preservation & Development of New York City and Chinese-American Planning Council, Inc., Defendants-Appellants-Cross-Appellees\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-07-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nKEARSE, Circuit Judge:\nDefendants City of New York (“City”), Department of Housing Preservation & Development of New York City (“HPD”) (collectively “municipal defendants”), and the Chinese-American Planning Council, Inc. (“CPC”), appeal from so much of an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, as denied their motions pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss claims of plaintiffs Kam Shing Chan et al., asserted under 42 U.S.C. § 1983 (1988) for payment of subminimum wages, in violation of § 5310 of the Housing and Community Development Act of 1974, 42 U.S.C. § 5301 et seq. (1988 & Supp. II 1990) (“HCDA” or the “Act”). The district court ruled that although there is no private right of action directly under § 5310, plaintiffs’ claims for violation of that section could be pursued under § 1983. On appeal, defendants contend principally (a) that § 5310 does not create a right that can be enforced under § 1983, and (b) that a § 1983 action cannot be maintained because CPC cannot be considered a state actor. Plaintiffs cross-appeal, challenging the district court’s ruling that § 5310 affords them no private right of action directly under that section. For the reasons below, we reject these challenges and affirm in all respects.\nI. BACKGROUND\nPlaintiffs were employees of CPC who worked on federally funded construction projects. The present controversy arises out of their claims that CPC paid them less than the minimum wage rates federally required for such projects. For purposes of both the appeal and the cross-appeal, we accept as true the allegations of the First Amended Verified Complaint (“Complaint”), as clarified by the actual terms of the contracts invoked by the Complaint and presented to the district court, see Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992).\nA. The Contracts Between CPC and HPD\nFrom 1986 to 1989, CPC was party to a series of three contracts with HPD for the construction, repair, and rehabilitation of certain housing owned by the City (collectively the “Contracts”)- The Contracts were funded in whole or in part by federal grants under the HCDA. Section 5310 of that Act provides generally that laborers employed on construction work financed in whole or in part by HCDA grants “shall be paid wages at rates not less than those prevailing on similar construction in the locality” as determined by the Secretary of Labor (hereinafter “federally recognized prevailing rates”) in accordance with the Davis-Bacon Act, 40 U.S.C. §§ 276a to 276a-5 (1988) (“Davis-Bacon”). See 42 U.S.C. § 5310.\nThe Contracts between CPC and HPD contained certain terms and conditions required by the HCDA. One such provision, entitled “Federal Supplemental Terms and Conditions,” stated that\n[t]he Contractor acknowledges that this Agreement is funded under a program providing direct financial assistance from the Federal government to the City and HPD and is subject to, and the Contractor shall comply with, the requirements of all applicable Federal Statutes, rules and regulations, including, but not limited to, those set forth in Exhibit F attached to this Agreement.\n(1986-87 Contract, Article 18, ¶ 18.1.) Exhibit F specified that the Contracts were subject to the conditions of, inter alia, the HCDA and Davis-Bacon:\nThe Davis-Bacon Act: In construction contracts involving an excess of $2000, unless exclusively in connection with the rehabilitation of a structure designed for residential use by less than 8 families, all laborers and mechanics must be payed at a rate not less than those determined by the Secretary of Labor to be prevailing for the locality, which rates are annexed hereto as Exhibit A. These wage rates are a federally mandated minimum....\n(1986-87 Contract, Exhibit F, Article 3(b)(i) (emphasis in original).)\nEach Contract was awarded following the submission of bids in response to HPD’s Requests for Proposals (“RFPs”). The RFPs, which were incorporated in the Contracts, contained express provisions with respect to the wages to be paid workers on projects covered by the Contracts. For example, the RFP for the 1986-87 Contract stated:\nA Person-Day Rate, which shall be all inclusive of costs within each Proposal, will be the proper method of establishing the overall budget. For example, if $75.00 is the Person-Day Rate, - all costs to run the program, .pay the staff and trainees and provide training equipment and administrative services would be covered by said rate multiplied by the number of trainees multiplied by the number of days worked.\n(1986-87 RFP General Guidelines ¶ 1 (emphasis omitted).) This RFP also provided that “[tjhere shall be 246 work days in the term of the Contract” (id. ¶ 6 (emphasis omitted)), and that “[a] maximum Person-Day Rate is being set at $90.00” (id. ¶2). The Contract prohibited CPC from receiving any additional funding for “Program Work performed pursuant to this Agreement.” (1986-87 Contract, Article 15, ¶ 15.2.)\nCPC bid for and won the 1986-87 Contract with a budget that called for 30 trainees working 246 days at the $90 Person-Day Rate. The total contract price was thus $664,200. The 1988 and 1989 Contracts awarded to CPC were similar, though the RFPs permitted, and the Contracts called for, Person-Day Rates of $95.\nB. The Present Lawsuit and the District Court’s Decision\nIn 1990, plaintiffs commenced the present action, alleging that they were CPC employ-: ees who had performed construction, repair, or rehabilitation work on the projects covered by these Contracts and that from September 1986 to December 1989, (1) the wage rates specified in the Contracts were lower than the then-current federally recognized prevailing rates, and (2) CPC paid plaintiffs at rates even lower than those specified in the Contracts. The Complaint alleged that HPD “knowingly consented to, condoned, authorized, acquiesced in, and acted with deliberate indifference to, the repeated failures and refusals of CPC to pay plaintiffs at the federally mandated prevailing wage rates.” (Complaint ,¶ 53.) Plaintiffs contended principally that CPC in failing to pay federally recognized prevailing rates, and HPD in consenting, condoning, and authorizing that failure, deprived plaintiffs of their rights under § 5310, in violation of § 1983. As damages, plaintiffs requested, inter alia, the difference between the federally mandated wages and the wages they actually received.\nDefendants moved pursuant to, inter alia, Fed.R.Civ.P. 12(b)(6) to dismiss plaintiffs’ federal claims on the grounds that (1) no implied private right of action exists under § 5310, (2) the HCDA did not create a right that is enforceable under § 1983, and (3) in any event, the Complaint did not sufficiently allege that CPC acted under color of state law within the meaning of § 1983. In an opinion reported at 803 F.Supp. 710 (1992), the district court dismissed plaintiffs’ claims to the extent that they were asserted directly under § 5310 but denied defendants’ motions to dismiss to the extent that the claims were asserted under § 1983.\nIn determining that § 5310 itself did not grant plaintiffs a private right of action, the district court principally applied the analysis set out in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Noting that Congress had created other tools for the enforcement of § 5310 and that there was “no strong indication that Congress intended to create additional remedies,” the court concluded that no private right of action is to be implied under § 5310. 803 F.Supp. at 731.\nThe court ruled, howéver, that § 5310 created a federal right that is enforceable under § 1983. Reading § 5310 literally and finding that its wording reflected an “unambiguous focus on construction workers,” 803 F.Supp. at 723, the court concluded that there was “little doubt that § 5310 [wa]s intended to provide laborers with higher wages than they would receive in the absence of this section,” 803 F.Supp. at 723, and that by using the command “ ‘shall ’ ” in requiring payment of wages at rates not less than the federally recognized prevailing rates, id. (emphasis in opinion), Congress indicated its intent to create a binding obligation, id. at 725. Given that the Secretary of Labor is required to establish with specificity the minimum rates to be paid laborers and mechanics, the court concluded that plaintiffs’ interests were not vague, ambiguous, or amorphous:\nThe contractor knows exactly what wage rates will need to be paid and ... [what] rights are unambiguously conferred on laborers and mechanics. Finally, because the “shall” requirement of § 5310 is directed at the payment of workers’ wages, rather than compelling the inclusion of a contract provision ... the requirement is substantive, not procedural.\nId.\nThe court found “no evidence in the legislative history of the HCDA itself that Congress sought to foreclose a § 1983 remedy under § 5310.” 803 F.Supp. at 729. It noted that the administrative scheme established for enforcement of § 5310, though sufficient to contraindicate a private right of action directly under that section, was not sufficiently comprehensive to preclude a § 1983 right of action, since there was no provision in the statute for judicial remedies and no provision in the federal regulations for an employee to initiate a proceeding for resolution of disputes. 803 F.Supp. at 727-28.\nThe court also concluded that the Complaint sufficiently alleged the state action necessary for a § 1983 suit because there was a close nexus between CPC and the municipal defendants:\nUnder the close nexus test and the facts presently before the Court, ... CPC can be said to be a state actor. On the basis of the CPC/HPD Contracts and the RFPs, plaintiffs have alleged facts which, if proven true, would demonstrate that municipal defendants had “exercised coercive power or ha[d] provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the government.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. [522] at 546, 107 S.Ct. [2971] at 2986 [97 L.Ed.2d 427 (1987)] (citations omitted). In particular, plaintiffs assert that the $90-95 cap on the Person Day Rate, which was required by municipal defendants as a condition for awarding the contract, was so low as to make it financially impossible for CPC to pay prevailing wage rates as required under 42 U.S.C. § 5310. In short, plaintiffs have alleged facts asserting that the municipal defendants ensured that any successful bidder would be forced, for economic reasons, to violate 42 U.S.C. § 5310. If proven true, these facts would be sufficient to demonstrate that the municipal defendants “exercised coercive power or ... provided such significant encouragement” as to establish 42 U.S.C. § 1983 state action under the close nexus test.\n803 F.Supp. at 720-21.\nAccordingly, the district court denied defendants’ motions to dismiss to the extent that the Complaint asserted claims under § 1983.\nPursuant to 28 U.S.C. § 1292(b) (1988), the court certified for interlocutory appeal so much of its order as denied defendants’ motions to dismiss the § 1983 claims, and this Court granted defendants permission to appeal from that portion of the district court’s order. Thereafter, pursuant to Fed.R.Civ.P. 54(b), the district court directed that a final judgment be entered with respect to so much of its order as had granted defendants’ motions to dismiss plaintiffs’ claims directly under § 5310, finding that there was no just reason for delay and that the relationship between those claims and the § 1983 claims was sufficiently close to make it desirable for this Court to have the opportunity to review both rulings together. Plaintiffs’ cross-appeal followed and was consolidated with defendants’ appeal.\nII. DISCUSSION\nThe HCDA, enacted in 1974, provides for federal grants to local governmental units for use in the “development of viable urban communities,” in part “by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income,” 42 U.S.C. § 5301(c). Section 5310, which requires that certain workers employed on construction projects funded by the HCDA be paid at least at federally recognized prevailing wage rates, provides in pertinent part as follows:\nAll laborers and mechanics employed by contractors or subcontractors in the performance of construction work financed in whole or in part with assistance received under this chapter shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5) _ The Secretary of Labor shall have, with respect to such labor standards, the authority and functions set forth in Reorganization Plan Numbered 14 of 1950....\n42 U.S.C. § 5310(a). The Reorganization Plan referred to (hereinafter “1950 Plan”) required federal agencies to cooperate in the enforcement of federal labor standards. Reorganization Plan No. 14 of 1950, 5 U.S.C. app. (1988).\nThe questions presented by these appeals are (1) whether an action for violation of § 5310 is available to plaintiffs directly under that section; (2) whether an action for violation of § 5310 is available to plaintiffs under § 1983; and (3) if such an action is available under § 1983, whether payment of submini-mum wages by CPC can meet § 1983’s requirement of state action. We conclude, substantially for the reasons stated by the district court, that the first question should be answered in the negative but that the second and third should be answered in the affirmative.\nA. Implied, Private Right of Action Under § 5310\nWhether an implied private right of action exists under a federal statute is strictly a matter of congressional intent. “ ‘[U]n-less th[e] congressional intent [to create such a right] can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.’ ” Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988) (quoting Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981)); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979) (court’s “task is limited solely to determining whether Congress intended to create the private right of action asserted”). “The test reflects a concern, grounded in separation of powers, that Congress rather than the courts controls the availability of remedies for violations of statutes.” Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 509 n. 9, 110 S.Ct. 2510, 508 n. 9, 110 L.Ed.2d 455 (1990) (“Wilder”).\nWhen the statute itself is silent as to whether it may be enforced by private action, we normally start by examining the four factors set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, to wit, (1) whether the plaintiff is one of the class for whose “ ‘especial ’ ” benefit the statute was enacted, “that is, does the statute create a federal right in favor of the plaintiff’; (2) whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one”; (3) whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff’; and (4) whether the cause of action is “one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.” Id. at 78, 95 S.Ct. at 2088 (emphasis in original). All four Cort v. Ash factors are guides to determining congressional intent. See Wilder, 496 U.S. at 508 n. 9, 110 S.Ct. at 2517 n. 9; Thompson v. Thompson, 484 U.S. at 179, 108 S.Ct. at 516; Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Health Care Plan, Inc. v. Aetna Life Insurance Co., 966 F.2d 738, 740 (2d Cir.1992). The mere fact that plaintiffs are intended beneficiaries of the statute does not mean that Congress intended the statute to grant them a private right of action to secure that benefit. See, e.g., id. at 741. The courts may, for example, infer that Congress did not intend to create such a right of action if it expressly provided other remedies:\n[W]here a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.... In such cases, “[i]n the absence of strong indicia of contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.”\nKarakalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527, 533, 109 S.Ct. 1282, 1286-87, 103 L.Ed.2d 539 (1989) (quoting Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 15, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981)).\nHere, though we are persuaded that plaintiffs, as workers on an HCDA-funded project, are a class for whose special benefit § 5310 was enacted (see Part II.B.l. below), neither the statute nor the legislative history gives any indication that Congress intended that section to create a private right of action. Further, though the question is close, we tend to agree with the district court that Congress incorporated a regulatory scheme that is sufficiently detailed to suggest that no private right of action was intended. Under the 1950 Plan, to which Congress referred in § 5310, the Secretary had adopted regulations with respect to Davis-Bacon and related statutes; the regulations included provisions for the predetermination of prevailing wage rates, see 29 C.F.R. § 1.1 et seq. (1974); for reconsideration or administrative review of a wage determination at the request of “[a]ny interested person,” see id. §§ 1,8, 1.9; for investigations of complaints, see id. § 5.6; and for the resolution by a hearing officer of disputes of fact or law concerning proper classifications and the payment of prevailing wage rates, see id. § 5.11.\nBy its reference to the 1950 Plan in § 5310, Congress indicated that that section could be enforced through these regulatory provisions. Though there was no statement that these would be the exclusive means of enforcement, there simply was no indication that, along with the cited regulatory mechanism, Congress also intended to authorize laborers to bring private suits. Accordingly, we conclude that § 5310 does not contain an implied private right of action.\nB. Enforceability of § 5310 Under § 1983\nThe fact that a statute conferring substantive rights does not itself give its beneficiaries a private right of action to enforce it does not mean that the beneficiaries are without a private remedy. Section 1983, which provides, in pertinent part, that\n[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured,\n42 U.S.C. § 1983, may be available as a vehicle for remedying violations of federal statutes as well as constitutional violations, see Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Suter v. Artist M., — U.S. -, -, 112 S.Ct. 1360, 1366, 118 L.Ed.2d 1 (1992) (“Suter”). And unlike the inquiry into whether a substantive statute confers a direct private right of action, the § 1983 inquiry begins with a presumption in favor of the right to bring suit, for the “general rule” is that § 1983 provides a remedy for violations of federal statutory rights unless “Congress has affirmatively withdrawn the remedy,” Wilder, 496 U.S. at 509 n. 9, 110 S.Ct. at 2517 n. 9.\nNonetheless, though the Supreme Court has “repeatedly held that the coverage of [§ 1983] must be broadly construed,” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989), not every violation of a federal statute gives rise to a cause of action under § 1983. Section 1983 relief “is not available to enforce a violation of a federal statute ‘where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983.’ ” Suter, — U.S. at -, 112 S.Ct. at 1366 (quoting Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987)); see also Wilder, 496 U.S. at 508, 110 S.Ct. at 2517. As discussed below, neither circumstance exists here to prevent these plaintiffs from suing under § 1983 for the alleged violations of § 5310.\nCreation of an Enforceable Right l.\nIn Wilder, the Supreme Court applied a three-part analysis, which is different from the Cort v. Ash analysis of the existence of a direct right of action, see Wilder, 496 U.S. at 508-09 n. 9, 110 S.Ct. at 2517 n. 9, for determining whether a federal statute creates a right that may be enforced under § 1983. The § 1983 inquiry\nturns on whether “the provision in question was intended] to benefit the putative plaintiff.” ... If so, the provision creates an enforceable right unless it reflects merely a “congressional preference” for a certain kind of conduct rather than a binding obligation on the governmental unit ... or unless the interest the plaintiff asserts is “ ‘too vague and amorphous’ ” such that it is “ ‘beyond the competence of the judiciary to enforce.’ ”\nWilder, 496 U.S. at 509, 110 S.Ct. at 2517; see also Golden State Transit Corp. v. City of Los Angeles, 493 U.S. at 106, 110 S.Ct. at 449.\nThe Wilder Court considered whether health-care providers could maintain a § 1983 action to enforce a provision of the Medicaid Act that required a state, in order to receive reimbursement, to submit to the Secretary of Health and Human Services (“HHS”) a medical assistance plan that set rates which the “ ‘State finds, and makes assurances satisfactory to [HHS] are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities,’ ” Wilder, 496 U.S. at 503, 110 S.Ct. at 2514 (quoting 42 U.S.C. § 1396a(a)(13)(A) (Supp. V 1982)). The Court found that there was “little doubt that health care providers are the intended beneficiaries” of that provision, Wilder, 496 U.S. at 510, 110 S.Ct. at 2517; that the provision imposed a binding obligation on participating states that was “cast in mandatory rather than precatory terms,” id. at 512, 110 S.Ct. at 2519; and that the obligation was not “too ‘vague and amorphous,’ ” as “the statute and regulation set out factors which a State must consider” and provided objective benchmarks for the assessment of the reasonableness of the rates, id. at 519, 110 S.Ct. at 2522-23. Thus, the Court concluded that the statutory provision created a right that health-care providers could enforce in an action under § 1983.\nTwo years later, the Supreme Court in Suter distinguished Wilder, without mentioning its three-part test, in reaching a contrary conclusion as to a different statutory provision. The Suter Court considered whether children who were state wards could, under § 1983, enforce a federal statutory provision that conditioned federal reimbursement for state foster care programs on the acceptance by HHS of a state plan containing a provision that “ ‘reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home...'\" — U.S. at -, 112 S.Ct. at 1364 (quoting 42 U.S.C. § 671(a)(15)). The Suter Court concluded that the children had no right to maintain a § 1983 action because (a) there was insufficient statutory guidance as to how “reasonable efforts” were to be measured; (b) the state’s mode of compliance was, “within broad limits, left up to the State,” — U.S. at -, 112 S.Ct. at 1368; and (c) since the statute provided other enforcement mechanisms, the absence -of a private remedy under § 1983 did not make the “reasonable efforts” clause ineffectual, — U.S. at -, 112 S.Ct. at 1368-69. The Court reasoned that “[t]he term ‘reasonable efforts’ in this context is at least as plausibly read to impose only a rather generalized duty on the State,-to be enforced not by private individuals, but by [HHS],” and thus did not “unambiguously confer an enforceable right upon the Act’s beneficiaries.” Id. at -, 112 S.Ct. at 1370.\nIn the present case, we conclude that under either the Wilder analysis or, to the extent that it differs, the Suter analysis, § 5310 provides these plaintiffs with a right that is sufficiently clear to be enforceable under § 1983. While the ultimate goal of Congress in enacting the HCDA was, as a whole, the development of viable urban communities by providing decent housing and expanding economic opportunities for persons of low and moderate income, there can be no question that the provision for payment of a certain minimum wage confers its principal benefit on the wage earners. The persons whose wages are the subject of § 5310 are clearly specified: they are “laborers and mechanics.” The statutory requirement as to their wages is not merely a hortatory “reasonable efforts” provision; nor is it merely a provision requiring inclusion of wage terms in a state plan; rather, the statute states that at least the required level of wages “shall be paid.” Further, the minimum level of those wages is neither vague nor speculative nor left for determination by the states; rather, it is determinable by reference to an unambiguous specified standard set by a federal official — the Secretary of Labor — in accordance with another federal statute — Davis-Bacon.\nIn sum, there can be little doubt that laborers and mechanics are the intended beneficiaries of an obligation that is cast by § 5310 in mandatory terms and that is readily quantifiable by reference to a stated benchmark as set by a federal official. There is no ambiguity. The contractor is required to- pay such workers wages at rates not lower than the federally recognized prevailing rates.\n2. Congressional Foreclosure\nNotwithstanding a clearly conferred federal right, a § 1983 suit would not be available if Congress had manifested its intention to foreclose such a remedy. Suter, — U.S. at -, 112 S.Ct. at 1366. The courts should “‘“not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy” for the deprivation of a federally secured right.’ ... The burden is on the State to show ‘by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement,’ ” Wilder, 496 U.S. at 520-21, 110 S.Ct. at 2523 (citations omitted). Such “other specific evidence” may include provision of a scheme of remedial devices that is sufficiently comprehensive to demonstrate congressional intent to preclude the remedy of suits under § 1983. See, e.g., Wilder, 496 U.S. at 521, 110 S.Ct. at 2523-24; Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981) (“Sea Clammers”). In Sea Clam-mers, for example, the Court dealt with claims under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. § 1401 et seq. The statutes themselves contained “unusually elaborate enforcement provisions,” 453 U.S. at 13, including, for example, provisions in the water pollution statute (a) authorizing the Environmental Protection Agency Administrator to seek civil penalties of up to $10,000 a day, as well as criminal penalties, (b) allowing “any interested person” to seek review of agency actions in federal courts, and (c) allowing citizens to sue for injunctions or for civil penalties payable to the government, 453 U.S. at 13-14 & n. 25, 101 S.Ct. at 2623 & n. 25. The Sea Clammers Court concluded that because Congress “created so many specific statutory remedies, including the ... citizen-suit provisions,” it “intended to supplant any remedy that otherwise would be. available under § 1983.” 453 U.S. at 20-21, 101 S.Ct. at 2626-27. See also Smith v. Robinson, 468 U.S. 992, 1003, 104 S.Ct. 3457, 3464, 82 L.Ed.2d 746 (1984) (“when a statute creates a comprehensive remedial scheme, intentional ‘omissions’ from that scheme should not be supplanted by the remedial apparatus of § 1983”).\nThe statutory scheme provided by § 5310 is not so comprehensive: The HCDA itself, though it allows the Secretary of Labor to ask the Attorney General to bring a civil action against a grant recipient for noncompliance with the Act, see 42 U.S.C. §§ 5311(b); 5309(b)-(c), makes no reference to any other type of civil suit. As discussed in Part II.A. above, § 5310 authorizes the Secretary of Labor to cooperate with other federal agencies in enforcement and in effect adopts the regulatory scheme fashioned by the Secretary. Even that scheme, however, though providing for the determination of prevailing wage rates, the investigation of complaints, and the resolution of wage disputes, does not make provision for laborers to enforce their rights administratively. The dispute-resolution proceedings may be initiated only by the federal agency administering the HCDA contract, the Secretary, or an HCDA contractor or subcontractor. See 29 C.F.R. § 5.11(a) (1992). Indeed, at the time the HCDA was enacted, the regulations apparently permitted only the contract-administering agency to initiate such proceedings. See 29 C.F.R. § 5.11(b) (1974). The laborers who are the beneficiaries of § 5310 were not and are not allowed to initiate administrative dispute-resolution proceedings. Nor is there any provision for a laborer to obtain judicial review of any administrative decision. In sum, we do not see in § 5310 recognition of a regulatory scheme of such comprehensiveness as to manifest an affirmative congressional intent to preclude invocation of § 1983 as a remedy.\nIn arguing that Congress intended to preclude use of § 1983 actions to enforce § 5310, defendants rely heavily on Universities Research Assn. v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981) (“Coutu ”), which held that there was no private right of action under Davis-Bacon for back wages where (a) the contract did not' provide for Davis-Bacon wage levels, and (b) there had been an administrative predetermination that the contract did not call for Davis-Bacon work. The Coutu Court noted that a contractor needs to know in advance what its labor costs will be and reasoned that implication of a private right of action under Davis-Bacon to sue on a contract that had been predetermined not to call for Davis-Bacon wages would “destroy [the] careful balance” created between contractors and employees. 450 U.S. at 782, 101 S.Ct. at 1467.\nFor several reasons, this ruling does not suggest foreclosure of the § 1983 claims asserted here. First, the conclusion that a direct action may not.be brought to enforce Davis-Bacon rights where it had been administratively predetermined that Davis-Bacon did not apply would not be persuasive authority for even the proposition that no direct action may be brought to enforce a contract that expressly requires the payment of wages at Davis-Bacon levels. Indeed, the Coutu Court expressly “d[id] not decide whether the [Davis-Bacon] Act creates an implied private right of action to enforce a contract that contains specific Davis-Bacon Act stipulations.” 450 U.S. at 769, 101 S.Ct. at 1460. Second, Coutu’s concern for the contractor’s need to know in advance its labor costs is not an issue here, since the Contracts expressly required the payment of wages at Davis-Bacon levels. Finally, and most importantly, Coutu concerned only whether the action could be brought directly under Davis-Bacon, not whether it could be brought under § 1983. Though there can be no implied direct private right of action unless Congress demonstrably intended to create one, the § 1983 remedy is presumptively available unless Congress has affirmatively withdrawn it. As indicated above, we have seen no indication that Congress meant to withdraw the § 1983 remedy for violation of § 5310 where the contracts expressly call for payment of wages at rates not lower than the federally recognized prevailing rates.\nIn sum, we conclude that § 1983 is available as a remedy for state action that violated § 5310.\nC. State Action\nAn action under § 1983 cannot, of course, be maintained .unless the challenged conduct was attributable at least in part to a person acting under color of state law. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 835, 102 S.Ct. 2764, 2768, 73 L.Ed.2d 418 (1982); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993). Thus, plaintiffs must plead and prove that the relationship between CPC, which paid their wages, and the municipal defendants, which established limitations on the wages that could be paid, was sufficient to permit an inference that CPC acted not as an independent organization, but an arm of the state.\nActions by a private party are deemed state action if “there is a sufficiently close nexus between the State and the challenged action” that the actions by the private parties “may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974); see Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1081 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1583, 113 L.Ed.2d 648 (1991). The “close nexus” test is not satisfied merely by the fact that the private entity is a business “ ‘affected with the public interest,’ ” Jackson v. Metropolitan Edison Co., 419 U.S. at 353, 95 S.Ct. at 455; or that the state “ ‘approved] of or acquiesce[d] in the initiatives’ ” of the private entity, San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 547, 107 S.Ct. 2971, 2985, 97 L.Ed.2d 427 (1987) (“San Francisco”) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982)); or that a business is subject to extensive regulation, Jackson v. Metropolitan Edison Co., 419 U.S. at 350, 95 S.Ct. at 453, was publicly subsidized, San Francisco, 483 U.S. at 544, 107 S.Ct. at 2985, or had been given monopoly status by the state, Jackson v. Metropolitan Edison Co., 419 U.S. at 351-52, 95 S.Ct. at 454. “Acts of ... private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.” Rendell-Baker v. Kohn, 457 U.S. at 841, 102 S.Ct. at 2771. “The purpose of [the close-nexus] requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786 (emphasis in original). Such responsibility may be found when, after the facts are sifted and weighed, it is evidence that a state or its political subdivision “ ‘has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [state or political subdivision].’” San Francisco, 483 U.S. at 546, 107 S.Ct. at 2986 (quoting Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786).\nThe present Complaint meets the close-nexus test because the facts alleged, and supported by the Contracts relied on, easily permit the inference that CPC could not pay wages at the level required by § 5310 because of strictures imposed by the municipal defendants. The HPD RFPs provided that the contractor’s overall budget was to be determined by setting a “Person-Day Rate,” multiplied by the number of trainees, multiplied by the number of days worked. The Person-Day Rate was to include wages paid to the worker and all other expenses of running the program, and HPD placed a dollar ceiling on the Person-Day Rate. For the 1986-87 Contract, that ceiling was $90; for the other years, the ceiling was $95. Both ceilings were below the federally recognized prevailing wage minima for a full day’s work. Thus, to win the Contracts, CPC was required to make its bids based on wages below those levels; it was paid a sum that did not give it sufficient funds to pay wages at the § 5310 required minimum levels; and it was prohibited by the Contracts from receiving any additional funding for the work performed thereunder.\nIn sum, the facts alleged would suffice to permit a finding that HPD effectively required CPC to pay less than the minimum wages required by § 5310, that the actions of CPC in paying those subminimum wages were the responsibility of the municipal defendants, and that CPC’s conduct was therefore state action.\nDefendants also contend that even if CPC’s wage payments were constrained by the municipal defendants, CPC could not be deemed a state actor because the municipal defendants themselves were engaged only in federal, not state, action, as they merely expended federal funds under the HCDA. We reject this contention for the principal reason that the “Person-Day Rate” set by the RFPs, along with the provision that the contractor could not obtain other funding to pay its workers, apparently represented an attempt by the City to limit any call upon its own treasury for the projects in question. These restrictions were not required by any federal provision. Thus, the underpayment of wages cannot be attributed to the federal government; and the municipal defendants in limiting the wages that could be paid arid CPC in paying the wages as thus limited cannot legitimately claim to have been federal, rather than state, actors.\nWe conclude that the district court properly denied defendants’ motions to dismiss plaintiffs’ § 1983 claims.\nCONCLUSION\nThe order and judgment of the district court are affirmed. Costs to plaintiffs.\n[END_CASE]", "role": "user" } ]
10,508,258	UNITED STATES of America, Plaintiff-Appellee, v. 27.09 ACRES OF LAND, more or less, situated in The Town of Harrison and The Town of North Castle; The County of Westchester, and unknown others, Defendants, Purchase Environmental Protective Association, Inc., Defendant-Intervenor-Appellant, Town of Harrison, Defendant-Intervenor	United States v. 27.09 Acres of Land	1993-07-27	No. 1539, Docket 93-6031	United States Court of Appeals for the Second Circuit	{"judges": ["Before: WINTER and JACOBS, Circuit Judges, and MUKASEY, District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. 27.09 ACRES OF LAND, more or less, situated in The Town of Harrison and The Town of North Castle; The County of Westchester, and unknown others, Defendants, Purchase Environmental Protective Association, Inc., Defendant-Intervenor-Appellant, Town of Harrison, Defendant-Intervenor."], "opinions": [{"text": "JACOBS, Circuit Judge:\nDefendant-intervenor-appellant Purchase Environmental Protective Association, Inc. (the “Association”) appeals from an order of the United States District Court for the Southern District of New York (Lasker, J.), 808 F.Supp. 1030 (1992), denying the Association’s motion for an award of fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 (Supp.1993) (“EAJA”). The Association, a group of homeowners and merchants in Purchase, New York, had sought reimbursement under EAJA for litigation expenses it incurred as one of four parties invoking environmental laws to challenge the planned construction nearby of a new postal facility for Westchester County, New York. EAJA provides that, in a non-tort civil action between the United States and eligible parties, “a court shall award to a prevailing party other than the United States fees and other expenses ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).\nIn a thoughtful decision, the district court denied an award because it found that (a) the United States’ position in this litigation was “substantially justified” within the meaning of the statute; and (b) the active participation on the same side as the Association by units of local government that are not eligible for awards under EAJA, 28 U.S.C. § 2412(d)(2)(B), constituted a special circumstance making a fee award to the Association unjust. 808 F.Supp. at 1032. We vacate the district court’s order and remand this matter for further consideration because no final judgment has been entered in this action terminating it for the purposes of EAJA, and therefore the Association’s EAJA application was premature.\nBACKGROUND\nIn March 1988 the United States filed a complaint in condemnation seeking to acquire land owned by the County of Westchester (“Westchester”) on which the United States Postal Service (“Postal Service”) planned to build a new general mail facility and vehicle maintenance facility. The condemned land, located near the Westchester County Airport, has been referred to by the parties as the “Airport Site.” As the district court noted:\nThe selection of the site generated substantial controversy in response to which the Postal Service published four Environmental Assessments (“EA”s) and two “Wetlands Impact Reports” over the course of nearly two and a half years. The final EA and its appendices consisted of seven volumes containing extensive discussion of many possible environmental effects of the proposed facility.\n808 F.Supp. at 1031.\nThe Association and the Town of Harrison (“Harrison”) promptly moved to intervene in the condemnation proceeding as Westches-ter’s co-defendants. The Association and the two governmental entities sought similar relief, chiefly an order enjoining the United States from condemning the Airport Site until the Postal Service had complied with the requirements set forth in the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (1988) (“NEPA”), and with the Postal Service’s own wetlands regulations. The City of New York commenced a separate action to protect its watershed and drinking water resources, City of New York v. United States Postal Service, 760 F.Supp. 345 (S.D.N.Y.1991), which was deemed a related case. Thus by February 1991, Westchester, Harrison, the Association and the City of New York were aligned in these proceedings opposing the planned post office project.\nThis litigation proceeded in two distinct phases. In the initial phase, the Association and Harrison pressed their motions to intervene and, along with Westchester, moved for preliminary injunctive relief and for partial summary judgment. The central issue raised by the substantive motions was whether the Postal Service was required to comply with all environmental review procedures before condemning the Airport Site. Resolution of this issue was delayed for over a year by stipulation of the parties and by passage of a bill in Congress that restricted funding for the facilities until the Postal Service considered alternative sites and prepared additional environmental evaluations. On May 15, 1990, the district court granted permissive intervention by the Association and Harrison, but denied the substantive motions in their entirety. United States v. 27.09 Acres of Land, 737 F.Supp. 277 (S.D.N.Y.1990) (“27.09 Acres I”).\nThroughout this initial phase in the litigation, the Association was represented by the firm of Sidley & Austin. Having exhausted its litigation fund without obtaining relief, the Association terminated Sidley & Austin’s engagement and substituted as counsel the Association’s president, a lawyer who has been supplying his services without charge. Sid-ley & Austin’s fees for representing the Association in this phase of the litigation are the fees that the Association now seeks to recover from the United States under EAJA.\nAfter the issuance of 27.09 Acres I, the litigation entered a second phase, during which the Association became less active, joining in the submissions of Harrison and Westchester and relying on the experts retained by those parties. The Postal Service proceeded to perform the mandates of NEPA and its own regulations and (in October 1990) issued its final Environmental Assessment. The Postal Service also issued a finding that the proposed postal facilities would have no significant impact on the environment and concluded that a full Environmental Impact Statement (“EIS”) was not required. In early 1991, Westchester, Harrison and the Association, now joined by the City of New York, moved for a preliminary injunction barring construction of the proposed facilities until the Postal Service prepared an EIS. On March 28, 1991, the district court granted this motion, holding that the movants “establish[ed] likely success in proving that the [Postal] Service’s finding of no significant impact was arbitrary and capricious.” United States v. 27.09 Acres of Land, 760 F.Supp. 345, 355 (S.D.N.Y.1991) (“27.09 Acres II”).\nOn June 17,1991, the United States filed a Notice of Appeal seeking interlocutory review of the injunction issued pursuant to 27.09 Acres II. Soon thereafter, however, the Postal Service changed its construction plans and decided to build the required facilities on an already developed parcel of land which had just become available. On October 10,1991, the United States abandoned its appeal. On October 15,1991, the Association sought to renew its motion for summary judgment. (Why this initiative was taken is unclear; in any event, the record indicates that the Association did not pursue it.)\nSince the Postal Service had no further intention of developing the Airport Site, it negotiated with Westchester to return the property and recover the money that the Postal Service had paid for it. The Federal Aviation Administration (“FAA”) also entered the negotiations because of its interest in having the Airport Site dedicated solely to airport use. On November 19, 1991, the Postal Service, Westchester and the FAA entered into a Memorandum of Understanding effecting these objectives, and deeds were executed transferring the Airport Site back to Westchester County.\nOn June 15, 1992, the United States circulated among the parties a Stipulation and Order of Settlement and Dismissal of the condemnation action. The proposed stipulation contained a provision that precluded costs and attorneys’ fees, and that would therefore preclude any EAJA application. Westchester executed the stipulation, but Harrison and the Association did not. The record on appeal does not indicate what effect, if any, was given the partially executed stipulation. According to the docket sheet, no such stipulation and order was filed.\nOn June 29, 1992, pursuant to procedures of the Administrative Office of the United States Courts, the Chief Judge of the district directed the closing of this and other superannuated cases in a “Minute Order” which reads in its entirety:\nThe attached list of cases having been pending for over three years, all presently contemplated proceedings having been completed, and there having been no action for over twelve months, there appears to be no further reason at this time to maintain these files as open for statistical purposes, the Clerk is instructed to complete a JS-6 closing report for each case.\nNothing contained in this minute order shall be considered a dismissal or disposition of these matters, and should further proceedings in them become necessary or desirable, any party may initiate it in the same manner as if this minute order had not been entered.\nOther than the Association’s abandoned motion to renew its request for summary judgment, the Minute Order accurately recorded the absence of any activity in this action during the preceding year.\nOn August 7,1992, the Association submitted an application under EAJA for an award of attorneys’ fees and expenses totalling $229,149.15. This claim represents charges by Sidley & Austin during its representation of the Association from the beginning of this action until July 1990, shortly after the district court denied the Association’s motion for substantive relief in 27.09 Acres I. The United States opposed the application on the grounds, inter alia, that its position was fair ground for litigation, that it prevailed in the phase of the litigation in which the requested fees were incurred, and that the Association was a supernumerary in the phase of the proceedings in which relief against the United States was granted. On December 7, 1992, the district court denied the Association’s claim for an EAJA award “because the government’s overall position was substantially justified and because [the Association] acted only in conjunction with three governmental non-eligible parties who vigorously pressed the challenge to the Postal Service’s action regardless of [the Association’s] intervention.” 808 F.Supp. at 1032.\nDISCUSSION\nWe have laid out the procedural history of this action in some detail because it presents the issue of whether the Association’s EAJA application was premature and therefore not justiciable. Although the parties did not contest this issue below or on this appeal, we must address it:\n[Ejvery federal appellate court has a special obligation to “satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,” even though the parties are prepared to concede it.\nBender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)).\nSection 2412(d)(1)(B) of EAJA states that a party seeking an award must submit its application “within thirty days of final judgment in the action.” Section 2412(d)(2)(G) defines “final judgment” as “a judgment that is final and not appealable and includes an order of settlement.” The district court’s subject matter jurisdiction here is governed by the Supreme Court’s decision in Melkonyan v. Sullivan, — U.S. -, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), which interpreted EAJA’s “final judgment” requirement to mean “a judgment rendered by a court that terminates the civil action for which EAJA fees may be received. The 30-day EAJA clock begins after the time to appeal that ‘final judgment’ has expired.” Id. at -, 111 S.Ct. at 2162; see Federal Election Comm’n v. Political Contributions Data, Inc., 995 F.2d 383, 385 (2d Cir.1993). In Melkonyan, the Supreme Court described as premature an EAJA application filed prior to entry of a “final judgment,” and found that the district court had no authority to hear the application absent entry of a “final judgment.” Melkonyan, — U.S. at -, 111 S.Ct. at 2166.\nThe record on this appeal reflects neither entry of a final judgment, nor the docketing of a settlement order or any order terminating this action. The June 29, 1992 Minute Order closed the case administratively for “statistical purposes,” but does not appear to have achieved finality of the type required by EAJA and Melkonyan. Cf. Shalala v. Schaefer, — U.S. -, -, 113 S.Ct. 2625, 2628, 125 L.Ed.2d 239 (1993). To the contrary, the Minute Order states it should not “be considered a dismissal or disposition” of this action. Thus, it appears that no “final judgment” for EAJA purposes was ever entered in this action. The Association’s EAJA application was therefore premature and the district court lacked jurisdiction to decide it.\nWhen asked on oral argument whether the EAJA application was premature, the United States stated that it decided not to contest the fee application as premature because there was no possibility of further action in this case. A party, however, cannot waive a defect in a federal court’s subject matter jurisdiction. “[T]he parties may not confer subject matter jurisdiction on the court by consent.” Cable Television Ass’n of N.Y., Inc. v. Finneran, 954 F.2d 91, 94 (2d Cir.1992); see Bender, 475 U.S. at 541, 106 S.Ct. at 1331.\nBecause the district court was without subject matter jurisdiction to consider the Association’s fee application, its decision on that issue must be vacated. The parties may seek to have the district court enter a “final judgment,” and if it does so, subsequent proceedings may be guided by Melkonyan:\n[T]he District Court may determine that the application [petitioner] has already filed is sufficient. Alternatively, petitioner can easily reapply for EAJA fees following the District Court’s entry of a final judgment. In either case, petitioner will not be prejudiced by having filed prematurely.\n— U.S. at -, 111 S.Ct. at 2166. The parties owe the district court such efforts as needed to achieve formal closure of legal proceedings; they cannot expect that mooted cases can be parked on the docket for possible further use in unforeseen circumstances or that the district court by administrative order will tie up litigants’ loose ends by dismissing open cases on its own motion.\nCONCLUSION\nWe vacate the district court order denying an EAJA award and remand for further proceedings consistent with this opinion. We direct the Clerk of this Court that any further appeal with respect to an EAJA application in this case should be assigned to this panel and may be heard on the present papers.\n. The Association also filed a separate action against the Postal Service seeking to block the planned condemnation of a parcel of land owned by the State of New York and adjoining the Airport Site. See Purchase Environmental Protective Association, Inc. v. United States Postal Service, 737 F.Supp. 277 (S.D.N.Y.1990). That action was dismissed for lack of ripeness. See United States v. 27.09 Acres of Land, 737 F.Supp. 277, 290 (S.D.N.Y.1990) (\"27.09 Acres I\").", "type": "majority", "author": "JACOBS, Circuit Judge:"}], "attorneys": ["Donald W. Stever, Jr. (Sidley & Austin, New York City, of counsel), for defendant-intervenor-appellant.", "Diana J. Hassel, Asst. U.S. Atty., New York City (Roger S. Hayes, U.S. Atty., S.D.N.Y., Paul K. Milmed, Asst. U.S. Atty., of counsel), for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. 27.09 ACRES OF LAND, more or less, situated in The Town of Harrison and The Town of North Castle; The County of Westchester, and unknown others, Defendants, Purchase Environmental Protective Association, Inc., Defendant-Intervenor-Appellant, Town of Harrison, Defendant-Intervenor.\nNo. 1539, Docket 93-6031.\nUnited States Court of Appeals, Second Circuit.\nArgued May 19, 1993.\nDecided July 27, 1993.\nDonald W. Stever, Jr. (Sidley & Austin, New York City, of counsel), for defendant-intervenor-appellant.\nDiana J. Hassel, Asst. U.S. Atty., New York City (Roger S. Hayes, U.S. Atty., S.D.N.Y., Paul K. Milmed, Asst. U.S. Atty., of counsel), for plaintiff-appellee.\nBefore: WINTER and JACOBS, Circuit Judges, and MUKASEY, District Judge.\nHonorable Michael B. Mukasey, United States District Judge for the Southern District of New York, sitting by designation."}	WINTER	JACOBS	MUKASEY	1	1	1	0	0	0	1 F.3d 107	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. 27.09 ACRES OF LAND, more or less, situated in The Town of Harrison and The Town of North Castle; The County of Westchester, and unknown others, Defendants, Purchase Environmental Protective Association, Inc., Defendant-Intervenor-Appellant, Town of Harrison, Defendant-Intervenor\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-07-27\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nJACOBS, Circuit Judge:\nDefendant-intervenor-appellant Purchase Environmental Protective Association, Inc. (the “Association”) appeals from an order of the United States District Court for the Southern District of New York (Lasker, J.), 808 F.Supp. 1030 (1992), denying the Association’s motion for an award of fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 (Supp.1993) (“EAJA”). The Association, a group of homeowners and merchants in Purchase, New York, had sought reimbursement under EAJA for litigation expenses it incurred as one of four parties invoking environmental laws to challenge the planned construction nearby of a new postal facility for Westchester County, New York. EAJA provides that, in a non-tort civil action between the United States and eligible parties, “a court shall award to a prevailing party other than the United States fees and other expenses ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).\nIn a thoughtful decision, the district court denied an award because it found that (a) the United States’ position in this litigation was “substantially justified” within the meaning of the statute; and (b) the active participation on the same side as the Association by units of local government that are not eligible for awards under EAJA, 28 U.S.C. § 2412(d)(2)(B), constituted a special circumstance making a fee award to the Association unjust. 808 F.Supp. at 1032. We vacate the district court’s order and remand this matter for further consideration because no final judgment has been entered in this action terminating it for the purposes of EAJA, and therefore the Association’s EAJA application was premature.\nBACKGROUND\nIn March 1988 the United States filed a complaint in condemnation seeking to acquire land owned by the County of Westchester (“Westchester”) on which the United States Postal Service (“Postal Service”) planned to build a new general mail facility and vehicle maintenance facility. The condemned land, located near the Westchester County Airport, has been referred to by the parties as the “Airport Site.” As the district court noted:\nThe selection of the site generated substantial controversy in response to which the Postal Service published four Environmental Assessments (“EA”s) and two “Wetlands Impact Reports” over the course of nearly two and a half years. The final EA and its appendices consisted of seven volumes containing extensive discussion of many possible environmental effects of the proposed facility.\n808 F.Supp. at 1031.\nThe Association and the Town of Harrison (“Harrison”) promptly moved to intervene in the condemnation proceeding as Westches-ter’s co-defendants. The Association and the two governmental entities sought similar relief, chiefly an order enjoining the United States from condemning the Airport Site until the Postal Service had complied with the requirements set forth in the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (1988) (“NEPA”), and with the Postal Service’s own wetlands regulations. The City of New York commenced a separate action to protect its watershed and drinking water resources, City of New York v. United States Postal Service, 760 F.Supp. 345 (S.D.N.Y.1991), which was deemed a related case. Thus by February 1991, Westchester, Harrison, the Association and the City of New York were aligned in these proceedings opposing the planned post office project.\nThis litigation proceeded in two distinct phases. In the initial phase, the Association and Harrison pressed their motions to intervene and, along with Westchester, moved for preliminary injunctive relief and for partial summary judgment. The central issue raised by the substantive motions was whether the Postal Service was required to comply with all environmental review procedures before condemning the Airport Site. Resolution of this issue was delayed for over a year by stipulation of the parties and by passage of a bill in Congress that restricted funding for the facilities until the Postal Service considered alternative sites and prepared additional environmental evaluations. On May 15, 1990, the district court granted permissive intervention by the Association and Harrison, but denied the substantive motions in their entirety. United States v. 27.09 Acres of Land, 737 F.Supp. 277 (S.D.N.Y.1990) (“27.09 Acres I”).\nThroughout this initial phase in the litigation, the Association was represented by the firm of Sidley & Austin. Having exhausted its litigation fund without obtaining relief, the Association terminated Sidley & Austin’s engagement and substituted as counsel the Association’s president, a lawyer who has been supplying his services without charge. Sid-ley & Austin’s fees for representing the Association in this phase of the litigation are the fees that the Association now seeks to recover from the United States under EAJA.\nAfter the issuance of 27.09 Acres I, the litigation entered a second phase, during which the Association became less active, joining in the submissions of Harrison and Westchester and relying on the experts retained by those parties. The Postal Service proceeded to perform the mandates of NEPA and its own regulations and (in October 1990) issued its final Environmental Assessment. The Postal Service also issued a finding that the proposed postal facilities would have no significant impact on the environment and concluded that a full Environmental Impact Statement (“EIS”) was not required. In early 1991, Westchester, Harrison and the Association, now joined by the City of New York, moved for a preliminary injunction barring construction of the proposed facilities until the Postal Service prepared an EIS. On March 28, 1991, the district court granted this motion, holding that the movants “establish[ed] likely success in proving that the [Postal] Service’s finding of no significant impact was arbitrary and capricious.” United States v. 27.09 Acres of Land, 760 F.Supp. 345, 355 (S.D.N.Y.1991) (“27.09 Acres II”).\nOn June 17,1991, the United States filed a Notice of Appeal seeking interlocutory review of the injunction issued pursuant to 27.09 Acres II. Soon thereafter, however, the Postal Service changed its construction plans and decided to build the required facilities on an already developed parcel of land which had just become available. On October 10,1991, the United States abandoned its appeal. On October 15,1991, the Association sought to renew its motion for summary judgment. (Why this initiative was taken is unclear; in any event, the record indicates that the Association did not pursue it.)\nSince the Postal Service had no further intention of developing the Airport Site, it negotiated with Westchester to return the property and recover the money that the Postal Service had paid for it. The Federal Aviation Administration (“FAA”) also entered the negotiations because of its interest in having the Airport Site dedicated solely to airport use. On November 19, 1991, the Postal Service, Westchester and the FAA entered into a Memorandum of Understanding effecting these objectives, and deeds were executed transferring the Airport Site back to Westchester County.\nOn June 15, 1992, the United States circulated among the parties a Stipulation and Order of Settlement and Dismissal of the condemnation action. The proposed stipulation contained a provision that precluded costs and attorneys’ fees, and that would therefore preclude any EAJA application. Westchester executed the stipulation, but Harrison and the Association did not. The record on appeal does not indicate what effect, if any, was given the partially executed stipulation. According to the docket sheet, no such stipulation and order was filed.\nOn June 29, 1992, pursuant to procedures of the Administrative Office of the United States Courts, the Chief Judge of the district directed the closing of this and other superannuated cases in a “Minute Order” which reads in its entirety:\nThe attached list of cases having been pending for over three years, all presently contemplated proceedings having been completed, and there having been no action for over twelve months, there appears to be no further reason at this time to maintain these files as open for statistical purposes, the Clerk is instructed to complete a JS-6 closing report for each case.\nNothing contained in this minute order shall be considered a dismissal or disposition of these matters, and should further proceedings in them become necessary or desirable, any party may initiate it in the same manner as if this minute order had not been entered.\nOther than the Association’s abandoned motion to renew its request for summary judgment, the Minute Order accurately recorded the absence of any activity in this action during the preceding year.\nOn August 7,1992, the Association submitted an application under EAJA for an award of attorneys’ fees and expenses totalling $229,149.15. This claim represents charges by Sidley & Austin during its representation of the Association from the beginning of this action until July 1990, shortly after the district court denied the Association’s motion for substantive relief in 27.09 Acres I. The United States opposed the application on the grounds, inter alia, that its position was fair ground for litigation, that it prevailed in the phase of the litigation in which the requested fees were incurred, and that the Association was a supernumerary in the phase of the proceedings in which relief against the United States was granted. On December 7, 1992, the district court denied the Association’s claim for an EAJA award “because the government’s overall position was substantially justified and because [the Association] acted only in conjunction with three governmental non-eligible parties who vigorously pressed the challenge to the Postal Service’s action regardless of [the Association’s] intervention.” 808 F.Supp. at 1032.\nDISCUSSION\nWe have laid out the procedural history of this action in some detail because it presents the issue of whether the Association’s EAJA application was premature and therefore not justiciable. Although the parties did not contest this issue below or on this appeal, we must address it:\n[Ejvery federal appellate court has a special obligation to “satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,” even though the parties are prepared to concede it.\nBender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)).\nSection 2412(d)(1)(B) of EAJA states that a party seeking an award must submit its application “within thirty days of final judgment in the action.” Section 2412(d)(2)(G) defines “final judgment” as “a judgment that is final and not appealable and includes an order of settlement.” The district court’s subject matter jurisdiction here is governed by the Supreme Court’s decision in Melkonyan v. Sullivan, — U.S. -, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), which interpreted EAJA’s “final judgment” requirement to mean “a judgment rendered by a court that terminates the civil action for which EAJA fees may be received. The 30-day EAJA clock begins after the time to appeal that ‘final judgment’ has expired.” Id. at -, 111 S.Ct. at 2162; see Federal Election Comm’n v. Political Contributions Data, Inc., 995 F.2d 383, 385 (2d Cir.1993). In Melkonyan, the Supreme Court described as premature an EAJA application filed prior to entry of a “final judgment,” and found that the district court had no authority to hear the application absent entry of a “final judgment.” Melkonyan, — U.S. at -, 111 S.Ct. at 2166.\nThe record on this appeal reflects neither entry of a final judgment, nor the docketing of a settlement order or any order terminating this action. The June 29, 1992 Minute Order closed the case administratively for “statistical purposes,” but does not appear to have achieved finality of the type required by EAJA and Melkonyan. Cf. Shalala v. Schaefer, — U.S. -, -, 113 S.Ct. 2625, 2628, 125 L.Ed.2d 239 (1993). To the contrary, the Minute Order states it should not “be considered a dismissal or disposition” of this action. Thus, it appears that no “final judgment” for EAJA purposes was ever entered in this action. The Association’s EAJA application was therefore premature and the district court lacked jurisdiction to decide it.\nWhen asked on oral argument whether the EAJA application was premature, the United States stated that it decided not to contest the fee application as premature because there was no possibility of further action in this case. A party, however, cannot waive a defect in a federal court’s subject matter jurisdiction. “[T]he parties may not confer subject matter jurisdiction on the court by consent.” Cable Television Ass’n of N.Y., Inc. v. Finneran, 954 F.2d 91, 94 (2d Cir.1992); see Bender, 475 U.S. at 541, 106 S.Ct. at 1331.\nBecause the district court was without subject matter jurisdiction to consider the Association’s fee application, its decision on that issue must be vacated. The parties may seek to have the district court enter a “final judgment,” and if it does so, subsequent proceedings may be guided by Melkonyan:\n[T]he District Court may determine that the application [petitioner] has already filed is sufficient. Alternatively, petitioner can easily reapply for EAJA fees following the District Court’s entry of a final judgment. In either case, petitioner will not be prejudiced by having filed prematurely.\n— U.S. at -, 111 S.Ct. at 2166. The parties owe the district court such efforts as needed to achieve formal closure of legal proceedings; they cannot expect that mooted cases can be parked on the docket for possible further use in unforeseen circumstances or that the district court by administrative order will tie up litigants’ loose ends by dismissing open cases on its own motion.\nCONCLUSION\nWe vacate the district court order denying an EAJA award and remand for further proceedings consistent with this opinion. We direct the Clerk of this Court that any further appeal with respect to an EAJA application in this case should be assigned to this panel and may be heard on the present papers.\n. The Association also filed a separate action against the Postal Service seeking to block the planned condemnation of a parcel of land owned by the State of New York and adjoining the Airport Site. See Purchase Environmental Protective Association, Inc. v. United States Postal Service, 737 F.Supp. 277 (S.D.N.Y.1990). That action was dismissed for lack of ripeness. See United States v. 27.09 Acres of Land, 737 F.Supp. 277, 290 (S.D.N.Y.1990) (\"27.09 Acres I\").\n[END_CASE]", "role": "user" } ]
10,508,363	WESTNAU LAND CORP., Plaintiff-Appellant, v. U.S. SMALL BUSINESS ADMINISTRATION, as an agency of the United States of America, Defendant-Appellee	Westnau Land Corp. v. U.S. Small Business Administration	1993-07-28	No. 459, Docket 92-6095	United States Court of Appeals for the Second Circuit	{"judges": ["Before: NEWMAN, CARDAMONE, and MAHONEY, Circuit Judges."], "parties": ["WESTNAU LAND CORP., Plaintiff-Appellant, v. U.S. SMALL BUSINESS ADMINISTRATION, as an agency of the United States of America, Defendant-Appellee."], "opinions": [{"text": "MAHONEY, Circuit Judge:\nPlaintiff-appellant Westnau Land Corporation (“Westnau”) appeals from a judgment entered March 9, 1992 in the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, that denied Westnau’s motion for summary judgment and granted summary judgment in favor of cross-movant, defendant-appellee United States Small Business Administration (the “SBA”) dismissing Westnau’s action. Westnau brought suit pursuant to 28 U.S.C. § 2410 (1988 & Supp. II 1990) and N.Y. Real Prop.Acts. Law (“RPAPL”) § 1501(4) (McKinney 1979), to quiet title to a parcel of property subject to a mortgage held by the SBA on the basis that enforcement of the mortgage was barred by 28 U.S.C. § 2415(a) (1988), or alternatively by N.Y.Civ.Prac.L. & R. (“CPLR”) 213(4) (McKinney 1990).\nWe affirm the judgment of the district court.\nBackground\nThe following material facts are not in dispute, and are set forth in the parties’ submissions as well as the district court’s memorandum decision and order. See Westnau Land Corp. v. United States Small Business Admin., 785 F.Supp. 41 (E.D.N.Y.1992).\nOn October 17, 1973, 423 Cooper Road Corporation, through its president, Dominick Mareotrigiano, executed and delivered a promissory note (the “Note”) in the amount of $300,000 to Manufacturers Hanover Trust Company/Suffolk, N.A. (“MHT”). Interest on the Note was to be calculated at eleven per cent per annum and was to be repaid, along with principal, at a rate of $5,137 per month, the balance falling due on October 17, 1980. Mareotrigiano and his wife provided a guaranty (the “Guaranty”) of the Note to MHT. The Guaranty was secured by a mortgage (the “Mortgage”) in favor of MHT on five parcels of land, including 1279 Sycamore Avenue, Bohemia, New York (the “Property”), the subject of the instant action.\nOn or about September 27, 1978, MHT assigned the Note, the Guaranty, and the Mortgage to the SBA. The assignment was recorded in the office of the Suffolk County Clerk on October 19,1978. On December 16, 1978, the Marcotrigianos conveyed the Property by deed to Westnau. This conveyance was allegedly made without notice to the SBA. It was undisputed below, and remains undisputed here, that no payments have been made to the SBA since the transfer of the Property to Westnau.\nOn September 10, 1990, Westnau commenced an action in the Supreme Court of the State of New York, Suffolk County, pursuant to 28 U.S.C. § 2410 and RPAPL § 1501(4) to quiet title to the Property. The SBA removed the action to the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1444 (1988), where it interposed, in its answer to Westnau’s complaint, a counterclaim seeking to foreclose the Mortgage on the Property.\nIn the district court, Westnau maintained that the SBA was precluded from bringing a foreclosure suit because the six year statute of limitations provided in 28 U.S.C. § 2415(a) (1988) for actions by the United States “for money damages ... which [actions are] founded upon any contract expressed or implied in law or fact” governed the SBA’s rights under the Note, Guaranty, and Mortgage, and had expired. Alternatively, West-nau contended, if the court found § 2415 inapplicable, it should borrow New York’s six year statute of limitations for foreclosure actions set forth in CPLR 213(4) and similarly find the SBA powerless to foreclose on the Property.\nThe district court rejected these contentions, finding § 2415(a) inapplicable to an action by the SBA to foreclose upon a mortgage, and declining to apply a state statute of limitations in fight of United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), and United States v. John Hancock Mutual Life Insurance Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960). Westnau, 785 F.Supp. at 43-44. The court accordingly granted the SBA’s cross-motion for summary judgment dismissing Westnau’s complaint, and denied Westnau’s motion for summary judgment. Id. at 44. The SBA’s counterclaim was thereafter dismissed by stipulation of the parties, without prejudice, pursuant to Fed.R.Civ.P. 41(c).\nThis appeal followed.\nDiscussion\nWe note at the outset that we review summary judgment determinations of a district court de novo. See, e.g., Sure-Snap Corp. v. State St. Bank & Trust Co., 948 F.2d 869, 872 (2d Cir.1991); H.L. Hayden Co. v. Siemens Medical Sys., Inc., 879 F.2d 1005, 1011 (2d Cir.1989). Summary judgment is appropriate when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992); see also Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).\nOn appeal, Westnau contends that the district court erred both in its interpretation of § 2415 and in its refusal to apply New York State’s statute of limitations. We address each issue in turn.\nA. Applicability of § 21-15.\nSection 2415(a) provides in pertinent part:\n[Ejvery action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues_ (Emphasis added.)\nThe statute further provides that: “Nothing herein shall be deemed to limit the time for bringing an action to establish the title to, or right of possession of, real or personal property.” 28 U.S.C. § 2415(c) (1988).\nWestnau contends that because a mortgage foreclosure is in substance the collection of money damages by selling the security for the underlying contractual obligation, to treat a foreclosure as anything other than the equivalent of an action at law for “money damages” within the meaning of § 2415(a) is to elevate form over substance. Westnau accordingly urges that the statute’s reference to “money damages” be construed as applicable to a foreclosure action by the SBA. In Westnau’s view, policies of repose, as well as concerns regarding the loss of memory and the destruction of evidence that underlie all statutes of limitation, would be frustrated were the federal government permitted to foreclose upon a mortgage long after the underlying obligation is itself time-barred.\nInsofar as we can ascertain, the first decision to address the question whether § 2415(a) applies to foreclosure actions by the federal government was Cracco v. Cox, 66 A.D.2d 447, 414 N.Y.S.2d 404 (4th Dep’t 1979). Cracco answered this question in the negative, stating that:\nFederal and New York case law establishes that the right to foreclose a mortgage lien on property given to secure a debt which has not been discharged exists independently of the right to bring an action for money damages on the note and that, under common law, the holder of a note and mortgage may proceed either at law to recover on the bond or in equity to foreclose the mortgage (Ober v. Gallager, 93 U.S. 199 [23 L.Ed. 829]; Gilman v. Illinois and Mississippi Telegraph Co., 91 U.S. 603 [23 L.Ed. 405]; Seamen’s Bank for Savings v. Smadbeck, 293 N.Y. 91 [56 N.E.2d 46]; First Nat. Bank and Trust Co. of Walton v. Eisenrod, 263 App.Div. 227, 228 [32 N.Y.S.2d 641]; 38 N.Y.Jur., Mortgages and Deeds of Trust, § 293). Indeed, the right to foreclose survives when an action on the debt is barred by the Statute of Limitations (Union Bank of La. v. Stafford, 53 U.S. [ (12 How.) ] 327, 340-41 [13 L.Ed. 1008]; Hulbert v. Clark, 128 N.Y. 295 [28 N.E. 638] see 2 Glenn, Mortgages [1943], § 141; 1 Wiltsie, Mortgage Foreclosure [5th ed.1939], § 73; cf. Evans v. Pike, 118 U.S. 241, 246 [6 S.Ct. 1090, 1091, 30 L.Ed. 234].\n66 A.D.2d at 449, 414 N.Y.S.2d at 405-06 (alterations in original). Cracco accordingly reversed a lower court decision that had quieted title in favor of a property owner on the basis that the government’s right to foreclose its mortgage on the property was barred by § 2415(a). 66 A.D.2d at 448-49, 452, 414 N.Y.S.2d at 405, 407.\nThe federal courts that have subsequently addressed this issue agree with Cracco. See United States v. Dos Cabezas Corp., 995 F.2d 1486, 1489 (9th Cir.1993) (foreclosure action by federal government not subject to limitations bar of § 2415(a)); United States v. Ward, 985 F.2d 500, 501-03 (10th Cir.1993) (same) (citing district court opinion in Westnau); United States v. Succession of Siddon, 812 F.Supp. 674, 675-76 (W.D.La.1993) (same); United States v. LaSalle Nat’l Trust, 807 F.Supp. 1371, 1372-73 (N.D.Ill.1992) (same); United States v. Mr. Wonderful Enters., No. 90-CV-3227 (DRH), slip op. at 5, 1992 WL 521532 (E.D.N.Y. Feb. 25, 1992) (same); United States v. Freidus, 769 F.Supp. 1266, 1273-74 (S.D.N.Y.1991) (same); United States ex rel. Small Business Admin, v. Edwards, 765 F.Supp. 1215, 1222 (M.D.Pa.1991) (same); United States v. Copper, 709 F.Supp. 905, 908 (N.D.Iowa 1988) (same); United States v. Matthews, 1988 WL 76567, at 1 (E.D.N.Y. Jul. 13, 1988) (same); Curry v. United States, 679 F.Supp. 966, 970 (N.D.Cal.1987) (same); cf. Gerrard v. United States Office of Educ., 656 F.Supp. 570, 573-75 (N.D.Cal.1987) (§ 2415(a) does not bar application of plaintiffs federal tax refunds to pay government claim against plaintiff that is barred by limitations).\nThese rulings accord with the plain meaning of § 2415(a), and thus accomplish the primary task of statutory construction. See Connecticut Nat’l Bank v. Germain, — U.S. -, -, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“courts must presume that a legislature says in a statute what it means and means in a statute what it says”); Ardestani v. INS, — U.S. -, -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (strong presumption that plain language of statute expresses congressional intent). The key language of § 2415(a), “an action for money damages,” is not normally considered to comprehend an equitable action of foreclosure. Indeed, under New York law, a creditor is required to elect between the remedies of an action for money damages on a debt or an equitable action to foreclose a mortgage that secures the debt. See, e.g., First Fidelity Bank, N.A v. Best Petroleum, Inc., 757 F.Supp. 293, 296 (S.D.N.Y.1991) (citing RPAPL § 1301 and Copp v. Sands Point Marina, 17 N.Y.2d 291, 293, 217 N.E.2d 654, 655, 270 N.Y.S.2d 599, 600 (1966)); Wyoming County Bank & Trust Co. v. Kiley, 75 A.D.2d 477, 480, 430 N.Y.S.2d 900, 902 (4th Dep’t 1980).\nA number of the federal court decisions construing § 2415(a) as inapplicable to foreclosure actions invoke the settled rule that “the United States is not bound by a statute of limitations unless Congress has explicitly expressed one.” Ward, 985 F.2d at 502 (citing United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960)); see also Freidus, 769 F.Supp. at 1271; Matthews, 1988 WL 76567, at 1; cf. Gapozzi v. United States, 980 F.2d 872, 875 (2d Cir.1992); United States, v. Podell, 572 F.2d 31, 35 n. 7 (2d Cir.1978) (citing United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940)); United States v. 93 Court Corp., 350 F.2d 386, 388 (2d Cir.1965), cert. denied, 382 U.S. 984, 86 S.Ct. 560, 15 L.Ed.2d 473 (1966). Accordingly, statutes of limitations such as § 2415(a) “ ‘must receive a strict construction in favor of the Government.’ ” Badaracco v. Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984) (quoting E.I. du Pont de Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 366, 68 L.Ed. 788 (1924)).\nWestnau notes that under New York law, an action to foreclose a mortgage establishes neither title nor the right of possession. Accordingly, Westnau contends, because subsection (e) of § 2415 provides that nothing in the statute “shall be deemed to limit the time for bringing an action to establish title to, or right of possession of, real ... property,” application of the maxim expressio unius est exclusio alterius compels the conclusion that § 2415(c) excludes foreclosure actions from the exception that subsection (c) provides to § 2415(a), thereby bringing such actions within the compass of § 2415(a). This is a very convoluted approach to ascertaining the meaning of the straightforward statutory language “action[s] for money damages,” § 2415(a), and we reject the argument. Ger-rard rebuffed a similar contention addressed to § 2415(a), stating:\nThe maxim expressio unius est exclusio alterius ... is only an aid to statutory construction, not a rule of law. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.), cert. denied, [476] U.S. [1159], 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The controlling consideration is legislative intent. Id. Since “[n]ot every silence is pregnant,” expressio unius is an uncertain guide to interpretation. Illinois Dep’t of Pub. Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir.1983).\n656 F.Supp. at 573-74; see also Pauley v. Bethenergy Mines, Inc., — U.S. -, -, 111 S.Ct. 2524, 2537-38, 115 L.Ed.2d 604 (1991); Burns v. United States, — U.S. -, -, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991); United States v. Azeem, 946 F.2d 13, 17 (2d Cir.1991).\nFinally, Westnau argues that United States v. Alessi, 599 F.2d 513, 515 & n. 4 (2d Cir.1979) (per curiam), determines that § 2415(a) applies to mortgagee foreclosure actions. Alessi, however, provides only a footnote reference to § 2415(a) in the course of ruling that a limitations bar against a foreclosure action commenced to run when the federal government, as mortgagee, elected to foreclose by initiating suit. See also United States v. Alvarado, 1991 WL 254412, at 2 (M.D.Fla. Oct. 17, 1991) (measuring limitations period from notice of election to foreclose, citing Alessi), appeal docketed, No. 91-4186 (11th Cir. Dec. 16,1991); cf. Dos Cabezas, 995 F.2d at 1490 (§ 2415(a) limitations period applicable to action to recover deficiency judgment following foreclosure on a deed of trust). Application of the Alessi holding here, of course, would be of no benefit to Westnau, since the government never made any election to foreclose prior to the initiation of this lawsuit by Westnau.\nFurther, the question whether § 2415(a) applies in foreclosure actions was not specifically addressed in Alessi, which ruled that the foreclosure action was timely, so the footnote reference to § 2415(a) “did not amount to a ‘holding' that Section 2415(a) applies to all mortgage foreclosure actions.” Freidus, 769 F.Supp. at 1274; see also Westnau, 785 F.Supp. at 43. Alessi therefore provides no basis for us to depart from the virtually unanimous federal authority ruling that § 2415(a) does not apply to mortgage foreclosure actions by the United States.\nB. Applicability of New York Law. ■\nInvoking United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), Westnau contends that the district court improperly failed to adopt the New York six year statute of limitations provided by CPLR 213(4) for foreclosure actions and actions on an underlying bond or note, see supra note 3, to resolve the instant dispute. Kimbell Foods addressed the issue “whether contractual liens arising from certain federal loan programs take precedence over private liens, in the absence of a federal statute setting priorities.” 440 U.S. at 718, 99 S.Ct. at 1453. The Court observed:\nThis Court has consistently held that federal law governs questions involving the rights of the United States arising under nationwide federal programs. As the Court explained in Clearfield Trust Co. v. United States, [318 U.S. 363, 366-67, 63 S.Ct. 573, 575, 87 L.Ed. 838 (1943) ]:\n“When the United States disburses its funds or pays its debts, it is exercising a constitutional function or power.... The authority [to do so] had its origin in the Constitution and the statutes of the United States and was in no way dependent on the laws [of any State]. The duties imposed upon the United States and the rights acquired by it ... find their roots in the same federal sources. In the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.” (Citations and footnote omitted.)\nId. at 726, 99 S.Ct. at 1467 (alterations of Clearfield Trust quotation in original).\nThe Court went on to rule, however, that the appropriate federal rule might be fashioned by resort to state law in the absence of a federal statutory standard. Id. at 727-28, 99 S.Ct. at 1457-58. After reviewing the relevant considerations, the Court concluded that the balance should be struck against “altering settled commercial practices” established by state law, id. at 739-40, 99 S.Ct. at 1464-65, and held that “absent a congressional directive, the relative priority of private liens and consensual liens arising from these Government lending programs is to be determined under nondiscriminatory state laws.” Id. at 740, 99 S.Ct. at 1465 (emphasis added).\nHere, however, applying Kimbell Foods and Clearfield Trust by their own terms, we do not reach the question whether to look to New York law to fashion an interstitial statute of limitations for foreclosure actions by the government. As the district court stated: “‘[T]here is no vacuum to fill because the ancient rule that the United States is not subject to a limitations period clearly addresses the issue presented.’ ” Westnau, 785 F.Supp. at 44 (quoting Matthews, 1988 WL 76567, at 1). In this ease, furthermore, there is a pertinent congressional directive, § 2415. The fact that § 2415 provides a different rule from CPLR 213(4) does not mean that there is a federal vacuum that should be filled by resort to state law, but rather that the acknowledged federal interest in the “rights of the United States arising under nationwide federal programs,” Kimbell Foods, 440 U.S. at 726, 99 S.Ct. at 1457, should be determined by application of the statutory rule provided by Congress.\nFinally, we reject Westnau’s claim that FDIC v. Roldan Fonseca, 795 F.2d 1102 (1st Cir.1986), and United States v. Crain, 589 F.2d 996 (9th Cir.1979), call for a different result. In Roldan Fonseca, the First Circuit declined to decide whether the limitations bar of § 2415(a) applied to a mortgage foreclosure action by the FDIC, 795 F.2d at 1109 (citing Cracco), noting that the action was timely under both federal and local law. Id. Crain did not involve a limitations issue. That case permitted the assertion of a state law defense, in a suit by the United States against guarantors of an SBA loan, that allowed a guarantor to require that a creditor act to protect the value of security provided by the principal debtor. 589 F.2d at 1000.\nConclusion\nThe judgment of the district court is affirmed.\n. Section 2410(a) provides in pertinent part:\n[Tjhe United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter—\n(1) to quiet title to ...\nreal or personal property on which the United States has or claims a mortgage or other lien.\n. Section 1501(4) provides in pertinent part:\nWhere the period allowed by the applicable statute of limitations for the commencement of an action to foreclose a mortgage ... has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons, known or unknown, ... to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom.... In any action brought under this section it shall be immaterial whether the debt upon which the mortgage or lien was based has, or has not, been paid; and also whether the mortgage in question was, or was not, given to secure a part of the purchase price.\n.CPLR 213(4) provides in pertinent part:\nThe following actions must be commenced within six years:\n* * # * • \n4.an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein....", "type": "majority", "author": "MAHONEY, Circuit Judge:"}], "attorneys": ["Joseph D. Stim, Huntington, NY (Paula J. Warmuth, Stim & Warmuth, P.C., of counsel), for plaintiff-appellant.", "William Young, Sp. Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Andrew J. Malo-ney, U.S. Atty. E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty. for E.D.N.Y., of counsel), for defendant-appellee."], "corrections": "", "head_matter": "WESTNAU LAND CORP., Plaintiff-Appellant, v. U.S. SMALL BUSINESS ADMINISTRATION, as an agency of the United States of America, Defendant-Appellee.\nNo. 459, Docket 92-6095.\nUnited States Court of Appeals, Second Circuit.\nArgued Nov. 12, 1992.\nDecided July 28, 1993.\nJoseph D. Stim, Huntington, NY (Paula J. Warmuth, Stim & Warmuth, P.C., of counsel), for plaintiff-appellant.\nWilliam Young, Sp. Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Andrew J. Malo-ney, U.S. Atty. E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty. for E.D.N.Y., of counsel), for defendant-appellee.\nBefore: NEWMAN, CARDAMONE, and MAHONEY, Circuit Judges."}	NEWMAN	CARDAMONE	MAHONEY	1	1	1	0	0	0	1 F.3d 112	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: WESTNAU LAND CORP., Plaintiff-Appellant, v. U.S. SMALL BUSINESS ADMINISTRATION, as an agency of the United States of America, Defendant-Appellee\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-07-28\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nMAHONEY, Circuit Judge:\nPlaintiff-appellant Westnau Land Corporation (“Westnau”) appeals from a judgment entered March 9, 1992 in the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, that denied Westnau’s motion for summary judgment and granted summary judgment in favor of cross-movant, defendant-appellee United States Small Business Administration (the “SBA”) dismissing Westnau’s action. Westnau brought suit pursuant to 28 U.S.C. § 2410 (1988 & Supp. II 1990) and N.Y. Real Prop.Acts. Law (“RPAPL”) § 1501(4) (McKinney 1979), to quiet title to a parcel of property subject to a mortgage held by the SBA on the basis that enforcement of the mortgage was barred by 28 U.S.C. § 2415(a) (1988), or alternatively by N.Y.Civ.Prac.L. & R. (“CPLR”) 213(4) (McKinney 1990).\nWe affirm the judgment of the district court.\nBackground\nThe following material facts are not in dispute, and are set forth in the parties’ submissions as well as the district court’s memorandum decision and order. See Westnau Land Corp. v. United States Small Business Admin., 785 F.Supp. 41 (E.D.N.Y.1992).\nOn October 17, 1973, 423 Cooper Road Corporation, through its president, Dominick Mareotrigiano, executed and delivered a promissory note (the “Note”) in the amount of $300,000 to Manufacturers Hanover Trust Company/Suffolk, N.A. (“MHT”). Interest on the Note was to be calculated at eleven per cent per annum and was to be repaid, along with principal, at a rate of $5,137 per month, the balance falling due on October 17, 1980. Mareotrigiano and his wife provided a guaranty (the “Guaranty”) of the Note to MHT. The Guaranty was secured by a mortgage (the “Mortgage”) in favor of MHT on five parcels of land, including 1279 Sycamore Avenue, Bohemia, New York (the “Property”), the subject of the instant action.\nOn or about September 27, 1978, MHT assigned the Note, the Guaranty, and the Mortgage to the SBA. The assignment was recorded in the office of the Suffolk County Clerk on October 19,1978. On December 16, 1978, the Marcotrigianos conveyed the Property by deed to Westnau. This conveyance was allegedly made without notice to the SBA. It was undisputed below, and remains undisputed here, that no payments have been made to the SBA since the transfer of the Property to Westnau.\nOn September 10, 1990, Westnau commenced an action in the Supreme Court of the State of New York, Suffolk County, pursuant to 28 U.S.C. § 2410 and RPAPL § 1501(4) to quiet title to the Property. The SBA removed the action to the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1444 (1988), where it interposed, in its answer to Westnau’s complaint, a counterclaim seeking to foreclose the Mortgage on the Property.\nIn the district court, Westnau maintained that the SBA was precluded from bringing a foreclosure suit because the six year statute of limitations provided in 28 U.S.C. § 2415(a) (1988) for actions by the United States “for money damages ... which [actions are] founded upon any contract expressed or implied in law or fact” governed the SBA’s rights under the Note, Guaranty, and Mortgage, and had expired. Alternatively, West-nau contended, if the court found § 2415 inapplicable, it should borrow New York’s six year statute of limitations for foreclosure actions set forth in CPLR 213(4) and similarly find the SBA powerless to foreclose on the Property.\nThe district court rejected these contentions, finding § 2415(a) inapplicable to an action by the SBA to foreclose upon a mortgage, and declining to apply a state statute of limitations in fight of United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), and United States v. John Hancock Mutual Life Insurance Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960). Westnau, 785 F.Supp. at 43-44. The court accordingly granted the SBA’s cross-motion for summary judgment dismissing Westnau’s complaint, and denied Westnau’s motion for summary judgment. Id. at 44. The SBA’s counterclaim was thereafter dismissed by stipulation of the parties, without prejudice, pursuant to Fed.R.Civ.P. 41(c).\nThis appeal followed.\nDiscussion\nWe note at the outset that we review summary judgment determinations of a district court de novo. See, e.g., Sure-Snap Corp. v. State St. Bank & Trust Co., 948 F.2d 869, 872 (2d Cir.1991); H.L. Hayden Co. v. Siemens Medical Sys., Inc., 879 F.2d 1005, 1011 (2d Cir.1989). Summary judgment is appropriate when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992); see also Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).\nOn appeal, Westnau contends that the district court erred both in its interpretation of § 2415 and in its refusal to apply New York State’s statute of limitations. We address each issue in turn.\nA. Applicability of § 21-15.\nSection 2415(a) provides in pertinent part:\n[Ejvery action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues_ (Emphasis added.)\nThe statute further provides that: “Nothing herein shall be deemed to limit the time for bringing an action to establish the title to, or right of possession of, real or personal property.” 28 U.S.C. § 2415(c) (1988).\nWestnau contends that because a mortgage foreclosure is in substance the collection of money damages by selling the security for the underlying contractual obligation, to treat a foreclosure as anything other than the equivalent of an action at law for “money damages” within the meaning of § 2415(a) is to elevate form over substance. Westnau accordingly urges that the statute’s reference to “money damages” be construed as applicable to a foreclosure action by the SBA. In Westnau’s view, policies of repose, as well as concerns regarding the loss of memory and the destruction of evidence that underlie all statutes of limitation, would be frustrated were the federal government permitted to foreclose upon a mortgage long after the underlying obligation is itself time-barred.\nInsofar as we can ascertain, the first decision to address the question whether § 2415(a) applies to foreclosure actions by the federal government was Cracco v. Cox, 66 A.D.2d 447, 414 N.Y.S.2d 404 (4th Dep’t 1979). Cracco answered this question in the negative, stating that:\nFederal and New York case law establishes that the right to foreclose a mortgage lien on property given to secure a debt which has not been discharged exists independently of the right to bring an action for money damages on the note and that, under common law, the holder of a note and mortgage may proceed either at law to recover on the bond or in equity to foreclose the mortgage (Ober v. Gallager, 93 U.S. 199 [23 L.Ed. 829]; Gilman v. Illinois and Mississippi Telegraph Co., 91 U.S. 603 [23 L.Ed. 405]; Seamen’s Bank for Savings v. Smadbeck, 293 N.Y. 91 [56 N.E.2d 46]; First Nat. Bank and Trust Co. of Walton v. Eisenrod, 263 App.Div. 227, 228 [32 N.Y.S.2d 641]; 38 N.Y.Jur., Mortgages and Deeds of Trust, § 293). Indeed, the right to foreclose survives when an action on the debt is barred by the Statute of Limitations (Union Bank of La. v. Stafford, 53 U.S. [ (12 How.) ] 327, 340-41 [13 L.Ed. 1008]; Hulbert v. Clark, 128 N.Y. 295 [28 N.E. 638] see 2 Glenn, Mortgages [1943], § 141; 1 Wiltsie, Mortgage Foreclosure [5th ed.1939], § 73; cf. Evans v. Pike, 118 U.S. 241, 246 [6 S.Ct. 1090, 1091, 30 L.Ed. 234].\n66 A.D.2d at 449, 414 N.Y.S.2d at 405-06 (alterations in original). Cracco accordingly reversed a lower court decision that had quieted title in favor of a property owner on the basis that the government’s right to foreclose its mortgage on the property was barred by § 2415(a). 66 A.D.2d at 448-49, 452, 414 N.Y.S.2d at 405, 407.\nThe federal courts that have subsequently addressed this issue agree with Cracco. See United States v. Dos Cabezas Corp., 995 F.2d 1486, 1489 (9th Cir.1993) (foreclosure action by federal government not subject to limitations bar of § 2415(a)); United States v. Ward, 985 F.2d 500, 501-03 (10th Cir.1993) (same) (citing district court opinion in Westnau); United States v. Succession of Siddon, 812 F.Supp. 674, 675-76 (W.D.La.1993) (same); United States v. LaSalle Nat’l Trust, 807 F.Supp. 1371, 1372-73 (N.D.Ill.1992) (same); United States v. Mr. Wonderful Enters., No. 90-CV-3227 (DRH), slip op. at 5, 1992 WL 521532 (E.D.N.Y. Feb. 25, 1992) (same); United States v. Freidus, 769 F.Supp. 1266, 1273-74 (S.D.N.Y.1991) (same); United States ex rel. Small Business Admin, v. Edwards, 765 F.Supp. 1215, 1222 (M.D.Pa.1991) (same); United States v. Copper, 709 F.Supp. 905, 908 (N.D.Iowa 1988) (same); United States v. Matthews, 1988 WL 76567, at 1 (E.D.N.Y. Jul. 13, 1988) (same); Curry v. United States, 679 F.Supp. 966, 970 (N.D.Cal.1987) (same); cf. Gerrard v. United States Office of Educ., 656 F.Supp. 570, 573-75 (N.D.Cal.1987) (§ 2415(a) does not bar application of plaintiffs federal tax refunds to pay government claim against plaintiff that is barred by limitations).\nThese rulings accord with the plain meaning of § 2415(a), and thus accomplish the primary task of statutory construction. See Connecticut Nat’l Bank v. Germain, — U.S. -, -, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“courts must presume that a legislature says in a statute what it means and means in a statute what it says”); Ardestani v. INS, — U.S. -, -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (strong presumption that plain language of statute expresses congressional intent). The key language of § 2415(a), “an action for money damages,” is not normally considered to comprehend an equitable action of foreclosure. Indeed, under New York law, a creditor is required to elect between the remedies of an action for money damages on a debt or an equitable action to foreclose a mortgage that secures the debt. See, e.g., First Fidelity Bank, N.A v. Best Petroleum, Inc., 757 F.Supp. 293, 296 (S.D.N.Y.1991) (citing RPAPL § 1301 and Copp v. Sands Point Marina, 17 N.Y.2d 291, 293, 217 N.E.2d 654, 655, 270 N.Y.S.2d 599, 600 (1966)); Wyoming County Bank & Trust Co. v. Kiley, 75 A.D.2d 477, 480, 430 N.Y.S.2d 900, 902 (4th Dep’t 1980).\nA number of the federal court decisions construing § 2415(a) as inapplicable to foreclosure actions invoke the settled rule that “the United States is not bound by a statute of limitations unless Congress has explicitly expressed one.” Ward, 985 F.2d at 502 (citing United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960)); see also Freidus, 769 F.Supp. at 1271; Matthews, 1988 WL 76567, at 1; cf. Gapozzi v. United States, 980 F.2d 872, 875 (2d Cir.1992); United States, v. Podell, 572 F.2d 31, 35 n. 7 (2d Cir.1978) (citing United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940)); United States v. 93 Court Corp., 350 F.2d 386, 388 (2d Cir.1965), cert. denied, 382 U.S. 984, 86 S.Ct. 560, 15 L.Ed.2d 473 (1966). Accordingly, statutes of limitations such as § 2415(a) “ ‘must receive a strict construction in favor of the Government.’ ” Badaracco v. Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984) (quoting E.I. du Pont de Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 366, 68 L.Ed. 788 (1924)).\nWestnau notes that under New York law, an action to foreclose a mortgage establishes neither title nor the right of possession. Accordingly, Westnau contends, because subsection (e) of § 2415 provides that nothing in the statute “shall be deemed to limit the time for bringing an action to establish title to, or right of possession of, real ... property,” application of the maxim expressio unius est exclusio alterius compels the conclusion that § 2415(c) excludes foreclosure actions from the exception that subsection (c) provides to § 2415(a), thereby bringing such actions within the compass of § 2415(a). This is a very convoluted approach to ascertaining the meaning of the straightforward statutory language “action[s] for money damages,” § 2415(a), and we reject the argument. Ger-rard rebuffed a similar contention addressed to § 2415(a), stating:\nThe maxim expressio unius est exclusio alterius ... is only an aid to statutory construction, not a rule of law. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.), cert. denied, [476] U.S. [1159], 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The controlling consideration is legislative intent. Id. Since “[n]ot every silence is pregnant,” expressio unius is an uncertain guide to interpretation. Illinois Dep’t of Pub. Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir.1983).\n656 F.Supp. at 573-74; see also Pauley v. Bethenergy Mines, Inc., — U.S. -, -, 111 S.Ct. 2524, 2537-38, 115 L.Ed.2d 604 (1991); Burns v. United States, — U.S. -, -, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991); United States v. Azeem, 946 F.2d 13, 17 (2d Cir.1991).\nFinally, Westnau argues that United States v. Alessi, 599 F.2d 513, 515 & n. 4 (2d Cir.1979) (per curiam), determines that § 2415(a) applies to mortgagee foreclosure actions. Alessi, however, provides only a footnote reference to § 2415(a) in the course of ruling that a limitations bar against a foreclosure action commenced to run when the federal government, as mortgagee, elected to foreclose by initiating suit. See also United States v. Alvarado, 1991 WL 254412, at 2 (M.D.Fla. Oct. 17, 1991) (measuring limitations period from notice of election to foreclose, citing Alessi), appeal docketed, No. 91-4186 (11th Cir. Dec. 16,1991); cf. Dos Cabezas, 995 F.2d at 1490 (§ 2415(a) limitations period applicable to action to recover deficiency judgment following foreclosure on a deed of trust). Application of the Alessi holding here, of course, would be of no benefit to Westnau, since the government never made any election to foreclose prior to the initiation of this lawsuit by Westnau.\nFurther, the question whether § 2415(a) applies in foreclosure actions was not specifically addressed in Alessi, which ruled that the foreclosure action was timely, so the footnote reference to § 2415(a) “did not amount to a ‘holding' that Section 2415(a) applies to all mortgage foreclosure actions.” Freidus, 769 F.Supp. at 1274; see also Westnau, 785 F.Supp. at 43. Alessi therefore provides no basis for us to depart from the virtually unanimous federal authority ruling that § 2415(a) does not apply to mortgage foreclosure actions by the United States.\nB. Applicability of New York Law. ■\nInvoking United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), Westnau contends that the district court improperly failed to adopt the New York six year statute of limitations provided by CPLR 213(4) for foreclosure actions and actions on an underlying bond or note, see supra note 3, to resolve the instant dispute. Kimbell Foods addressed the issue “whether contractual liens arising from certain federal loan programs take precedence over private liens, in the absence of a federal statute setting priorities.” 440 U.S. at 718, 99 S.Ct. at 1453. The Court observed:\nThis Court has consistently held that federal law governs questions involving the rights of the United States arising under nationwide federal programs. As the Court explained in Clearfield Trust Co. v. United States, [318 U.S. 363, 366-67, 63 S.Ct. 573, 575, 87 L.Ed. 838 (1943) ]:\n“When the United States disburses its funds or pays its debts, it is exercising a constitutional function or power.... The authority [to do so] had its origin in the Constitution and the statutes of the United States and was in no way dependent on the laws [of any State]. The duties imposed upon the United States and the rights acquired by it ... find their roots in the same federal sources. In the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.” (Citations and footnote omitted.)\nId. at 726, 99 S.Ct. at 1467 (alterations of Clearfield Trust quotation in original).\nThe Court went on to rule, however, that the appropriate federal rule might be fashioned by resort to state law in the absence of a federal statutory standard. Id. at 727-28, 99 S.Ct. at 1457-58. After reviewing the relevant considerations, the Court concluded that the balance should be struck against “altering settled commercial practices” established by state law, id. at 739-40, 99 S.Ct. at 1464-65, and held that “absent a congressional directive, the relative priority of private liens and consensual liens arising from these Government lending programs is to be determined under nondiscriminatory state laws.” Id. at 740, 99 S.Ct. at 1465 (emphasis added).\nHere, however, applying Kimbell Foods and Clearfield Trust by their own terms, we do not reach the question whether to look to New York law to fashion an interstitial statute of limitations for foreclosure actions by the government. As the district court stated: “‘[T]here is no vacuum to fill because the ancient rule that the United States is not subject to a limitations period clearly addresses the issue presented.’ ” Westnau, 785 F.Supp. at 44 (quoting Matthews, 1988 WL 76567, at 1). In this ease, furthermore, there is a pertinent congressional directive, § 2415. The fact that § 2415 provides a different rule from CPLR 213(4) does not mean that there is a federal vacuum that should be filled by resort to state law, but rather that the acknowledged federal interest in the “rights of the United States arising under nationwide federal programs,” Kimbell Foods, 440 U.S. at 726, 99 S.Ct. at 1457, should be determined by application of the statutory rule provided by Congress.\nFinally, we reject Westnau’s claim that FDIC v. Roldan Fonseca, 795 F.2d 1102 (1st Cir.1986), and United States v. Crain, 589 F.2d 996 (9th Cir.1979), call for a different result. In Roldan Fonseca, the First Circuit declined to decide whether the limitations bar of § 2415(a) applied to a mortgage foreclosure action by the FDIC, 795 F.2d at 1109 (citing Cracco), noting that the action was timely under both federal and local law. Id. Crain did not involve a limitations issue. That case permitted the assertion of a state law defense, in a suit by the United States against guarantors of an SBA loan, that allowed a guarantor to require that a creditor act to protect the value of security provided by the principal debtor. 589 F.2d at 1000.\nConclusion\nThe judgment of the district court is affirmed.\n. Section 2410(a) provides in pertinent part:\n[Tjhe United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter—\n(1) to quiet title to ...\nreal or personal property on which the United States has or claims a mortgage or other lien.\n. Section 1501(4) provides in pertinent part:\nWhere the period allowed by the applicable statute of limitations for the commencement of an action to foreclose a mortgage ... has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons, known or unknown, ... to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom.... In any action brought under this section it shall be immaterial whether the debt upon which the mortgage or lien was based has, or has not, been paid; and also whether the mortgage in question was, or was not, given to secure a part of the purchase price.\n.CPLR 213(4) provides in pertinent part:\nThe following actions must be commenced within six years:\n* * # * • \n4.an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein....\n[END_CASE]", "role": "user" } ]
10,508,421	UNITED STATES of America, Appellee, v. Bosko RADONJICH, Defendant, George Pape, Defendant-Appellant	United States v. Radonjich	1993-07-29	No. 1720, Docket 93-1147	United States Court of Appeals for the Second Circuit	{"judges": ["Before: NEWMAN, Chief Judge, VAN GRAAFEILAND and ALTIMARI, Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Bosko RADONJICH, Defendant, George Pape, Defendant-Appellant."], "opinions": [{"text": "VAN GRAAFEILAND, Circuit Judge:\nGeorge Pape appeals from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.) convicting him of endeavoring to obstruct justice, 18 U.S.C. § 1503, and of conspiring to do so, 18 U.S.C. § 371. For the reasons that follow, we affirm.\nThe instant case arises from Pape’s service as a juror in United States v. John Gotti et al, No. 85 CR 178 (EHN) (E.D.N.Y.1987) [hereinafter “the Gotti trial”]. In that case, John Gotti, the reputed head of the Gambino Organized Crime Family of La Cosa Nostra, and seven co-defendants were tried on criminal RICO charges, based on alleged predicate acts of loan sharking, gambling, armed robbery and murder.\nJury selection in the Gotti trial commenced in April 1986 before United States District Judge Eugene H. Nickerson. When it became apparent that virtually all jurors were being excused, however, Judge Nickerson suspended the proceedings and instituted anonymous selection procedures. These procedures required that several hundred prospective jurors fill out detailed, twenty-two page questionnaires and appear individually before Judge Nickerson for additional voir dire. A jury finally was selected in September 1986, with defendant seated as Juror Number 11. Following the acquittal of Gotti and his seven co-defendants, Pape was indicted for participation in a scheme to accept money in exchange for voting to acquit.\nPrior to indicting Pape, the Government interviewed most of the former Gotti jurors. The Government conducted the first of these interviews prior to informing the court or seeking permission to engage in this practice. The remaining interviews were conducted after receiving court permission, but without court supervision or circumscription.\nFollowing Pape’s indictment, he moved the court for permission to interview the former jurors. In a series of pretrial rulings, Judge Glasser ordered that all jurors be approached by means of a letter sent from the court. Pape’s counsel was permitted to interview only consenting jurors, and then only in Judge Glasser’s presence. Prior to the interviews, the court reviewed the questions proposed to be put to the jurors, and excluded those that were not addressed to the charges in the indictment. Defendant was able to interview three jurors shortly before his trial.\nAt the trial, the Government introduced the testimony of one Salvatore Gravano. Gravano, indicted after the Gotti trial for his activities as underboss of the Gambino family, took the stand as a cooperating witness. He testified that Bosko Radonjich approached him shortly after the Gotti trial commenced and said that he “had a juror” who would cooperate for money by both voting to acquit and influencing his fellow jurors to do the same. At that time, Radonjich was the head of a gang called the “Westies,” which had frequent illegal business dealings with the Gambino family. Though named as a defendant in the instant case, Radonjich has fled to Yugoslavia to avoid prosecution on other criminal charges.\nGravano testified that Radonjich informed him the cooperating juror was a long-standing friend. Gravano gave Radonjich $60,000 to reimburse him for payments to the juror to secure his not-guilty vote. After the Gotti trial, Radonjich asked Gravano to procure a job for the juror. Gravano declined, since to do so might have raised suspicion that the Gotti trial was rigged. Gravano never met Radonjieh’s juror.\nAt trial, it was established that Pape was both a close friend and long-time business associate of Radonjich. Pape admitted to meeting with Radonjich throughout the trial for lunch and dinner. He testified that following the trial, he requested that Radonjich secure him a job. No job ever materialized. During the FBI investigation of Pape’s possible involvement, he initially denied discussing the trial with Radonjich. He subsequently retracted this statement, but insisted that no attempt to influence his vote had been made. Also admitted at trial was evidence that Pape had minimized or misrepresented the nature of his relationship with Radonjich during voir dire in the Gotti trial.\nOn appeal, Pape claims reversible error based on the district court’s pretrial orders regulating the extent and manner of defense interviews of former jurors. He also challenges the sufficiency of the evidence to convict on both counts.\nPápe argues that the district court committed constitutional error in limiting his access to the Gotti jurors. He contends that the district court erroneously applied Fed. R.Evid. 606(b) and unconstitutionally interfered with his Fifth and Sixth Amendment rights to present a defense and to call witnesses. Our review of the district court’s rulings satisfies us that the court properly balanced the defendant’s need to prepare a defense and the public’s interest in maintaining the secrecy of jury deliberations.\nRule 606(b) provides, in pertinent part:\nUpon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.\nThe rule by its terms applies only to inquiries concerning the validity of a verdict or indictment. It is a codified balancing of a defendant’s right to a fair trial and an impartial jury against the public interest in maintaining both the finality of verdicts and full and free discussion within the confines of the jury room. See McDonald v. Pless, 238 U.S. 264, 267-68, 36 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Clark v. United States, 289 U.S. 1, 13-14, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); United States v. Moten, 582 F.2d 654, 664 (2d Cir.1978); Miller v. United States, 403 F.2d 77, 83 n. 11 (2d Cir.1968).\nNeither Pape nor the Government seeks to impeach the Gotti verdict. Nonetheless, a similar balancing of public and private interests is implicated. Pape claims the district court’s rulings violated his right to present a defense and to call witnesses. However, these rights may yield to governmental interests and public policy in some situations. Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-29, 1 L.Ed.2d 639 (1957); see also United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). A defendant has a constitutional right of access to witnesses; he does not have a constitutional right of access to each and every witness he desires. United States v. Oliver, 908 F.2d 260, 262 (8th Cir.1990).\nWe find no interference with Pape’s right to present a defense that rises to the level of a constitutional violation. “[A] district judge has the power, and sometimes the duty, to order that all post-trial investigation of jurors shall be under his supervision.” Moten, supra, 582 F.2d at 665. “[Pjarticularly in cases with semi-anonymous juries, such control would appear to be wise.” United States v. Ianniello, 866 F.2d 540, 544 (2d Cir.1989). Defendant was not barred completely from interviewing the former jurors. Cf Moten, supra, 582 F.2d at 666. Limiting questioning to those jurors who come forward on their own is proper unless the district court determines, in its discretion, that more inquiry is necessary. Ianniello, supra, 866 F.2d at 544. This is especially so where, as here, the defendant was present during the very events concerning which he seeks discovery. In such a case, a defendant “can establish no Sixth Amendment violation without making some plausible explanation of the assistance he would have received” from the testimony of an unavailable witness. Valenzuela-Bernal, supra, 458 U.S. at 871, 102 S.Ct. at 3448; see also United States v. Bailey, 834 F.2d 218, 223-24 (1st Cir.1987). In addition, the trial court is entitled, indeed encouraged, to limit the inquiry to those questions which may yield answers relevant to the asserted wrongdoing. Miller, supra, 403 F.2d at 83-84. Judge Glasser acted precisely within his appropriate role in allowing defense access to the former Gotti jurors within carefully circumscribed limits. See Moten, supra, 582 F.2d at 665-66.\nPape argues that the district court erred in not perceiving the difference in posture between a defendant seeking to impeach a guilty verdict and one seeking evidence for a forthcoming trial. We are not persuaded. As the district court clearly and correctly observed:\nThe indictment has nothing to do with impeaching the verdict. The indictment has to do with obstructing justice and endeavoring to improperly influence the jury-•••\n[M]y understanding of [the cases] is that they are not exclusively concerned with the implication of 606 of the Federal Rules of Evidence.\n* * * * * *\n[T]he jurors have a right to go home at the end of the trial ... secure in the belief that they will not be harassed and they will not be questioned, and they have a right to return- to the community and enjoy the privacy and anonymity that they enjoyed before they were summoned to serve as jurors.\nIn deciding in favor of the Government, we are not unaware that it failed to obtain court permission prior to its first interview of a former juror. “[N]otice to opposing counsel and the court should be given in all cases.” Moten, supra, 582 F.2d at 666. However, in the instant case, no prejudice has been shown from the error. No material required to be revealed to the defendant under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was discovered. In addition, defendant has failed to demonstrate the materiality of any “lost” testimony, and henee has shown no prejudice from this unequal treatment. Although Pape personally might not have been able to make the same detailed description of the deliberations that all the former jurors together might have provided, this does not relieve him of the duty to make some showing of materiality. See Valenzuela-Bernal, supra, 458 U.S. at 873, 102 S.Ct. at 3449. We, like the district court, are at a loss to determine what defendant expected to gain from further inquiry.\nDefendant also challenges the sufficiency of the evidence establishing (i) his identity as the bribed juror, and (ii) an overt act within the five year period of the statute of limitations, 18 U.S.C. § 3282. A defendant challenging the sufficiency of the evidence bears a heavy burden. United States v. Medina, 944 F.2d 60, 66 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1508, 117 L.Ed.2d 646 (1992). A conviction will be upheld if, viewing the evidence in the light most favorable to the government, any rational juror could find the defendant guilty beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Defendant has failed to meet that burden here.\nPape, unable to successfully challenge the proof that a conspiracy existed, contends that the evidence was insufficient to establish his identity as the bribed juror. We disagree. Once a conspiracy is shown to exist, the evidence sufficient to link a defendant to the conspiracy need not be overwhelming. See United States v. Ciambrone, 787 F.2d 799, 806 (2d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). In the instant ease, there was evidence that Pape deceived the court during jury voir dire with respect to his relationship to Radonjieh. In addition, Pape himself provided corroborating testimony tending to establish his identity as a co-conspirator. Pape testified that he met with Radonjieh throughout the trial. While initially denying any discussion of the trial with Radonjieh, Pape later admitted at least limited discussions. Pape also admitted that Radonjieh tried to find him a job following the trial but failed. A jury is entitled to base its verdict on inferences drawn from circumstantial evidence. United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1397, 113 L.Ed.2d 453 (1991). Here, such evidence was sufficient to create a strong inference that Pape was indeed the bribed juror. The issue of identity was not the usual one of identifying a guilty person from among the public at large, but only from among the jurors at the Gotti trial. Furthermore, the deliberations of the Gotti jury and Pape’s wrongful overt acts in connection therewith occurred within the period of the statute of limitations. See Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946).\nJudgment affirmed.", "type": "majority", "author": "VAN GRAAFEILAND, Circuit Judge:"}], "attorneys": ["Barbara L. Hartung, New York City, for defendant-appellant.", "Geoffrey S. Mearns, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., E.D.N.Y., and Stanley J. Okula, Jr., Asst. U.S. Atty., of counsel), for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Bosko RADONJICH, Defendant, George Pape, Defendant-Appellant.\nNo. 1720, Docket 93-1147.\nUnited States Court of Appeals, Second Circuit.\nArgued June 23, 1993.\nDecided July 29, 1993.\nBarbara L. Hartung, New York City, for defendant-appellant.\nGeoffrey S. Mearns, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., E.D.N.Y., and Stanley J. Okula, Jr., Asst. U.S. Atty., of counsel), for appellee.\nBefore: NEWMAN, Chief Judge, VAN GRAAFEILAND and ALTIMARI, Circuit Judges."}	NEWMAN	VAN GRAAFEILAND	ALTIMARI	1	1	1	0	0	0	1 F.3d 117	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Bosko RADONJICH, Defendant, George Pape, Defendant-Appellant\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-07-29\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nVAN GRAAFEILAND, Circuit Judge:\nGeorge Pape appeals from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.) convicting him of endeavoring to obstruct justice, 18 U.S.C. § 1503, and of conspiring to do so, 18 U.S.C. § 371. For the reasons that follow, we affirm.\nThe instant case arises from Pape’s service as a juror in United States v. John Gotti et al, No. 85 CR 178 (EHN) (E.D.N.Y.1987) [hereinafter “the Gotti trial”]. In that case, John Gotti, the reputed head of the Gambino Organized Crime Family of La Cosa Nostra, and seven co-defendants were tried on criminal RICO charges, based on alleged predicate acts of loan sharking, gambling, armed robbery and murder.\nJury selection in the Gotti trial commenced in April 1986 before United States District Judge Eugene H. Nickerson. When it became apparent that virtually all jurors were being excused, however, Judge Nickerson suspended the proceedings and instituted anonymous selection procedures. These procedures required that several hundred prospective jurors fill out detailed, twenty-two page questionnaires and appear individually before Judge Nickerson for additional voir dire. A jury finally was selected in September 1986, with defendant seated as Juror Number 11. Following the acquittal of Gotti and his seven co-defendants, Pape was indicted for participation in a scheme to accept money in exchange for voting to acquit.\nPrior to indicting Pape, the Government interviewed most of the former Gotti jurors. The Government conducted the first of these interviews prior to informing the court or seeking permission to engage in this practice. The remaining interviews were conducted after receiving court permission, but without court supervision or circumscription.\nFollowing Pape’s indictment, he moved the court for permission to interview the former jurors. In a series of pretrial rulings, Judge Glasser ordered that all jurors be approached by means of a letter sent from the court. Pape’s counsel was permitted to interview only consenting jurors, and then only in Judge Glasser’s presence. Prior to the interviews, the court reviewed the questions proposed to be put to the jurors, and excluded those that were not addressed to the charges in the indictment. Defendant was able to interview three jurors shortly before his trial.\nAt the trial, the Government introduced the testimony of one Salvatore Gravano. Gravano, indicted after the Gotti trial for his activities as underboss of the Gambino family, took the stand as a cooperating witness. He testified that Bosko Radonjich approached him shortly after the Gotti trial commenced and said that he “had a juror” who would cooperate for money by both voting to acquit and influencing his fellow jurors to do the same. At that time, Radonjich was the head of a gang called the “Westies,” which had frequent illegal business dealings with the Gambino family. Though named as a defendant in the instant case, Radonjich has fled to Yugoslavia to avoid prosecution on other criminal charges.\nGravano testified that Radonjich informed him the cooperating juror was a long-standing friend. Gravano gave Radonjich $60,000 to reimburse him for payments to the juror to secure his not-guilty vote. After the Gotti trial, Radonjich asked Gravano to procure a job for the juror. Gravano declined, since to do so might have raised suspicion that the Gotti trial was rigged. Gravano never met Radonjieh’s juror.\nAt trial, it was established that Pape was both a close friend and long-time business associate of Radonjich. Pape admitted to meeting with Radonjich throughout the trial for lunch and dinner. He testified that following the trial, he requested that Radonjich secure him a job. No job ever materialized. During the FBI investigation of Pape’s possible involvement, he initially denied discussing the trial with Radonjich. He subsequently retracted this statement, but insisted that no attempt to influence his vote had been made. Also admitted at trial was evidence that Pape had minimized or misrepresented the nature of his relationship with Radonjich during voir dire in the Gotti trial.\nOn appeal, Pape claims reversible error based on the district court’s pretrial orders regulating the extent and manner of defense interviews of former jurors. He also challenges the sufficiency of the evidence to convict on both counts.\nPápe argues that the district court committed constitutional error in limiting his access to the Gotti jurors. He contends that the district court erroneously applied Fed. R.Evid. 606(b) and unconstitutionally interfered with his Fifth and Sixth Amendment rights to present a defense and to call witnesses. Our review of the district court’s rulings satisfies us that the court properly balanced the defendant’s need to prepare a defense and the public’s interest in maintaining the secrecy of jury deliberations.\nRule 606(b) provides, in pertinent part:\nUpon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.\nThe rule by its terms applies only to inquiries concerning the validity of a verdict or indictment. It is a codified balancing of a defendant’s right to a fair trial and an impartial jury against the public interest in maintaining both the finality of verdicts and full and free discussion within the confines of the jury room. See McDonald v. Pless, 238 U.S. 264, 267-68, 36 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Clark v. United States, 289 U.S. 1, 13-14, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); United States v. Moten, 582 F.2d 654, 664 (2d Cir.1978); Miller v. United States, 403 F.2d 77, 83 n. 11 (2d Cir.1968).\nNeither Pape nor the Government seeks to impeach the Gotti verdict. Nonetheless, a similar balancing of public and private interests is implicated. Pape claims the district court’s rulings violated his right to present a defense and to call witnesses. However, these rights may yield to governmental interests and public policy in some situations. Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-29, 1 L.Ed.2d 639 (1957); see also United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). A defendant has a constitutional right of access to witnesses; he does not have a constitutional right of access to each and every witness he desires. United States v. Oliver, 908 F.2d 260, 262 (8th Cir.1990).\nWe find no interference with Pape’s right to present a defense that rises to the level of a constitutional violation. “[A] district judge has the power, and sometimes the duty, to order that all post-trial investigation of jurors shall be under his supervision.” Moten, supra, 582 F.2d at 665. “[Pjarticularly in cases with semi-anonymous juries, such control would appear to be wise.” United States v. Ianniello, 866 F.2d 540, 544 (2d Cir.1989). Defendant was not barred completely from interviewing the former jurors. Cf Moten, supra, 582 F.2d at 666. Limiting questioning to those jurors who come forward on their own is proper unless the district court determines, in its discretion, that more inquiry is necessary. Ianniello, supra, 866 F.2d at 544. This is especially so where, as here, the defendant was present during the very events concerning which he seeks discovery. In such a case, a defendant “can establish no Sixth Amendment violation without making some plausible explanation of the assistance he would have received” from the testimony of an unavailable witness. Valenzuela-Bernal, supra, 458 U.S. at 871, 102 S.Ct. at 3448; see also United States v. Bailey, 834 F.2d 218, 223-24 (1st Cir.1987). In addition, the trial court is entitled, indeed encouraged, to limit the inquiry to those questions which may yield answers relevant to the asserted wrongdoing. Miller, supra, 403 F.2d at 83-84. Judge Glasser acted precisely within his appropriate role in allowing defense access to the former Gotti jurors within carefully circumscribed limits. See Moten, supra, 582 F.2d at 665-66.\nPape argues that the district court erred in not perceiving the difference in posture between a defendant seeking to impeach a guilty verdict and one seeking evidence for a forthcoming trial. We are not persuaded. As the district court clearly and correctly observed:\nThe indictment has nothing to do with impeaching the verdict. The indictment has to do with obstructing justice and endeavoring to improperly influence the jury-•••\n[M]y understanding of [the cases] is that they are not exclusively concerned with the implication of 606 of the Federal Rules of Evidence.\n* * * * * *\n[T]he jurors have a right to go home at the end of the trial ... secure in the belief that they will not be harassed and they will not be questioned, and they have a right to return- to the community and enjoy the privacy and anonymity that they enjoyed before they were summoned to serve as jurors.\nIn deciding in favor of the Government, we are not unaware that it failed to obtain court permission prior to its first interview of a former juror. “[N]otice to opposing counsel and the court should be given in all cases.” Moten, supra, 582 F.2d at 666. However, in the instant case, no prejudice has been shown from the error. No material required to be revealed to the defendant under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was discovered. In addition, defendant has failed to demonstrate the materiality of any “lost” testimony, and henee has shown no prejudice from this unequal treatment. Although Pape personally might not have been able to make the same detailed description of the deliberations that all the former jurors together might have provided, this does not relieve him of the duty to make some showing of materiality. See Valenzuela-Bernal, supra, 458 U.S. at 873, 102 S.Ct. at 3449. We, like the district court, are at a loss to determine what defendant expected to gain from further inquiry.\nDefendant also challenges the sufficiency of the evidence establishing (i) his identity as the bribed juror, and (ii) an overt act within the five year period of the statute of limitations, 18 U.S.C. § 3282. A defendant challenging the sufficiency of the evidence bears a heavy burden. United States v. Medina, 944 F.2d 60, 66 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1508, 117 L.Ed.2d 646 (1992). A conviction will be upheld if, viewing the evidence in the light most favorable to the government, any rational juror could find the defendant guilty beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Defendant has failed to meet that burden here.\nPape, unable to successfully challenge the proof that a conspiracy existed, contends that the evidence was insufficient to establish his identity as the bribed juror. We disagree. Once a conspiracy is shown to exist, the evidence sufficient to link a defendant to the conspiracy need not be overwhelming. See United States v. Ciambrone, 787 F.2d 799, 806 (2d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). In the instant ease, there was evidence that Pape deceived the court during jury voir dire with respect to his relationship to Radonjieh. In addition, Pape himself provided corroborating testimony tending to establish his identity as a co-conspirator. Pape testified that he met with Radonjieh throughout the trial. While initially denying any discussion of the trial with Radonjieh, Pape later admitted at least limited discussions. Pape also admitted that Radonjieh tried to find him a job following the trial but failed. A jury is entitled to base its verdict on inferences drawn from circumstantial evidence. United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1397, 113 L.Ed.2d 453 (1991). Here, such evidence was sufficient to create a strong inference that Pape was indeed the bribed juror. The issue of identity was not the usual one of identifying a guilty person from among the public at large, but only from among the jurors at the Gotti trial. Furthermore, the deliberations of the Gotti jury and Pape’s wrongful overt acts in connection therewith occurred within the period of the statute of limitations. See Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946).\nJudgment affirmed.\n[END_CASE]", "role": "user" } ]
10,508,522	The HERTZ CORPORATION, Plaintiff-Appellant, v. The CITY OF NEW YORK, O. Peter Sherwood, in his official capacity as Corporation Counsel of the City of New York, and Mark Green, in his official capacity as Commissioner of Consumer Affairs of the City of New York, Defendants-Appellees	Hertz Corp. v. City of New York	1993-08-02	No. 1592, Docket 92-7369	United States Court of Appeals for the Second Circuit	{"judges": ["Before: FEINBERG, PRATT and McLAUGHLIN, Circuit Judges."], "parties": ["The HERTZ CORPORATION, Plaintiff-Appellant, v. The CITY OF NEW YORK, O. Peter Sherwood, in his official capacity as Corporation Counsel of the City of New York, and Mark Green, in his official capacity as Commissioner of Consumer Affairs of the City of New York, Defendants-Appellees."], "opinions": [{"text": "GEORGE C. PRATT, Circuit Judge:\nHertz Corporation appeals from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, that dismissed its complaint which sought to enjoin enforcement of Local Law No. 21 of 1992 of the City of New York, referred to informally as the “Hertz law”.\nFACTS AND BACKGROUND\nOn January 2, 1992, Hertz announced that it would increase the daily car-rental rates it charges by $56.00 for residents of the Bronx, $34.00 for residents of Brooklyn, $3.00 for residents of Manhattan, and $15.00 for residents of Queens. The increased rates were to be charged to persons residing in those four boroughs whenever they rented a car at a Hertz outlet in the New York metropolitan area, New Jersey, Southern Connecticut, or Eastern Pennsylvania. Out-of-city Hertz customers who rented a vehicle in one of these four boroughs would have no increased rates.\nHertz claims that renting cars to residents of these boroughs had resulted in extremely high liability expenses for the company. Specifically, Hertz alleges that although only about seven percent of Hertz’s nationwide rentals occur in the New York area, more than 25 percent of its liability losses have occurred there. As one of the reasons, the company points to a state statute that holds car owners vicariously liable for any monetary damages caused by the operation of their vehicles. See N.Y.Veh. & Traf. § 388 (McKinney 1986). Another cause, says Hertz, is that juries in some of the affected boroughs have a history of awarding high damages to plaintiffs in personal injury cases. Hertz avers that its residency surcharges correspond directly to the average excess liability losses incurred per rental in the affected boroughs.\nHertz excludes several groups of renters from the increases: (1) those holding contracts with Hertz, such as federal and corporate accounts, and (2) certain other categories of renters — those possessing airline tickets, members of the Manhattan Preferred Renters Club, and Platinum Service customers — felt to be low-risk groups. In addition, members of the “Hertz Gold Club” are excluded, since they do not check in at a rental-car outlet and therefore could not practicably be notified of the increased rate. Hertz also has announced a “Responsible Renter Qualification Program”, which permits those otherwise subject to the increased rates to apply for and receive an exemption upon meeting certain qualifications, including a safe driving record.\nIn response to Hertz’s proposed surcharges for residents of four of its boroughs, the City of New York passed Local Law No. 21 of 1992 which amended chapter four of title 20 of the city’s administrative code to provide that:\nNo rental vehicle company shall refuse to rent a motor vehicle to any person otherwise qualified based on that person’s residence, nor impose fees or charges based on that person’s residence.\nThrough this local law, the city contends, that it was “exercising its reasoned legislative judgment that the social costs of the [Hertz pricing] practice are too high, given its potential for polarization and the fact that the burden falls hardest on minorities and the working poor.”\nIn addition to enacting Local Law No. 21, the city commenced an action in Supreme Court, New York County, claiming that Hertz’s rate increases violated (1) state and local law because of their disparate impact on minorities, and (2) section 396-z(10) of New York’s General Business Law. That action is pending.\nOn March 27, 1992, Hertz commenced this action in the United States District Court for the Southern District of New York. It sought a declaratory judgment that the Hertz law is invalid and an injunction against its enforcement. The complaint alleged that Local Law No. 21(1) is preempted by state law regulating the rental-car industry, and (2) violates several provisions of the United States Constitution: (a) the contract clause, (b) the commerce clause, and (c) the fourteenth amendment’s protection for substantive due process and its prohibition against uncompensated takings. Finally, Hertz charged that Local Law No. 21 compels a violation of § 1 of the Sherman Act, 15 U.S.C. § 1 (1988), and therefore is preempted and invalid under the supremacy clause of the United States Constitution.\nFour days after it was filed, Hon. Whitman Knapp, ordered Hertz’s complaint dismissed, but he enjoined the city from taking any action to effectuate the law pending the outcome of any appeal by Hertz. Hertz appealed the dismissal; the city did not cross-appeal.\nBecause the determination of Hertz’s state-law preemption claim involved issues that were important to the continuing development of state law and potentially disposi-tive of this appeal, on June 10, 1992, we certified to the New York State Court of Appeals the question of “whether New York State legislation addressing car rental practices sets forth a sufficiently comprehensive scheme of regulations to preempt further legislation in the field by the municipalities of the state.” Hertz v. City of New York, 967 F.2d 54, 57 (2d Cir.1992). On December 22, 1992, the 'Court of Appeals answered this question in the negative. See Hertz v. City of New York, 80 N.Y.2d 565, 592 N.Y.S.2d 637, 607 N.E.2d 784 (1992)..\nThe case is now before us to review the district court’s resolution of the remaining issues: (1) the city’s antitrust liability under the Sherman Act, (2) the impact of Local Law No. 21 on interstate commerce, and (3) Hertz’s claims under 42 U.S.C. § 1983 (1988) based on takings law, the contract clause, and substantive due process.\nDISCUSSION\nReview of the grant of a motion under Fed.R.Civ.P. 12(b)(6) is de novo, and we must construe in Hertz’s favor factual allegations in the complaint. Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). Our consideration, like the district court’s, is limited to facts stated on the face of the complaint and in documents appended to the complaint or incorporated in the complaint by reference, as well as to matters of which judicial notice may be taken. Id. Dismissal of the complaint is proper only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted).\nA. The Sherman Act.\nSection 1 of the Sherman Act provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States * * * is declared to be illegal.” 15 U.S.C. § 1.\nInitially we note that by controlling one aspect of thé pricing process for rental cars, the Hertz law on its face restrained trade within the meaning of § 1 of the Sherman act.. See National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978) (“Price is the ‘central nervous system of the economy,’ and an agreement that ‘interfered with the setting of price by free market forces’ is illegal on its face.”). In National Soc’y of Professional Eng’rs, the Supreme Court concluded that an agreement among competitors to refuse to discuss prices with potential customers until after negotiations had resulted in the selection of an engineer restrains trade within , the meaning of § 1 of the Sherman Act. The Court aptly noted, “[w]hile this is not price fixing as such, no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement.” Id. at 692, 98 S.Ct. at 1365. The agreement impeded the ordinary give and take of the market place. Id.\nThe fact that Local Law No. 21 does impose a restraint on trade only marks the beginning of our analytical journey, however, because the broad language of the Sherman Act precludes only those restraints of trade that are unreasonable. Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 1518, 99 L.Ed.2d 808 (1988); Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984); 'see' generally Earl W. Kintner, 2 Federal Antitrust Law § 9.20, at 56 (1980). Unreasonable contracts, combinations, and conspiracies in restraint of trade enacted by state and local governments are unconstitutional as preempted by federal antitrust laws. See generally Phillip E. Areeda and Donald F. Turner, Antitrust Law ¶ 209, at 60 (Supp.1992).\nThe threshold requirement of the statute is that there be a “contract, combination, * * * or conspiracy” to restrain trade or commerce. This element of the statute is usually clear when the conduct at issue is that of private parties; however, when the actor is a local governmental unit, two additional questions must be answered. The first arises from the Supreme Court’s holding in Fisher v. City of Berkeley, 475 U.S. 260, 106 S.Ct. 1045, 89 L.Ed.2d 206 (1986), that in some circumstances, discussion of which follows, action by a city may not be a contract, combination, or conspiracy at all. Id. at 266-68, 106 S.Ct. at 1049-50. The second additional question addresses the extent to which the local governmental unit may be entitled to share in the immunity from antitrust liability that is accorded state actors, a topic that need be addressed only if we conclude that the challenged action conflicts with antitrust laws. Id. at 264, 106 S.Ct. at 1047. Finally, although courts have deemed some restraints so anticompetitive that they are held per se invalid, the presumption is that restraints are examined in light of the rule of reason — a more flexible standard that demands consideration of a variety of factors. Thus, we must also consider the appropriate standard by which to measure the reasonableness of the city’s action.\nThe antitrust issues we must address, therefore, can bé summarized as follows: (1) whether there is a contract, combination or conspiracy, (2) whether the city enjoys state-action immunity from antitrust liability, (3) the possible applicability of per se analysis to the city’s law, and finally, (4) whether the rule of reason is the appropriate measure of Sherman Act liability for this municipal defendant. We will discuss each issue as applied to Local Law No. 21.\n1. Contract, Combination, or Conspiracy.\nThe Supreme Court addressed the issue of municipal antitrust liability in Fisher, where the City of Berkeley had promulgated a rent-control ordinance that was administered by an independent, quasi-judicial board. The board calculated the annual, general rent adjustments and processed individual claims for variances. Opponents of the ordinance argued that it required pricefbdng that, under the traditional standards, was a per sé unreasonable restraint of trade. The Supreme Court rejected this proposed analysis, and instead held that, on the facts before it, the city’s action was not “concerted” — it did not meet the threshold requirement of being a contract, combination, or conspiracy. This was so because “[t]he rent ceilings imposed by the [city] Ordinance and maintained by the Rent Stabilization Board have been unilaterally imposed by government upon landlords to the exclusion of private control.” Fisher, 475 U.S. at 266, 106 S.Ct. at 1049. Thus, the Court held the Berkeley ordinance to be a “unilateral action outside the purview of § 1.” Id. at 266-67, 106 S.Ct. at 1049.\nThe Court then re-examined its two earlier cases that had addressed governmental antitrust liability. California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951). Despite the lack of an agreement between any of the regulated parties, the Supreme Court found in both Mid-cal and Schwegmann Bros, that the pertinent state statute called for private industry to engage in price-fixing, which the court held to be per se illegal. The Fisher Court explained that the factor distinguishing Mid-cal and Schwegmann Bros, was the role played by the governmental body in implementing the legislation. In both cases, the state had dictated price-setting that was to be performed not by the state, but by wholesalers and producers in the liquor industry.\nThe Fisher Court explained:\nNot all restraints imposed upon private actors by government units necessarily constitute unilateral action outside the purview of § 1. Certain restraints may be characterized as “hybrid,” in that non-market mechanisms merely enforce private marketing decisions. Where private actors are thus granted “a degree of private regulatory power,” the regulatory scheme may be attacked under § 1.\n475 U.S. at 267-68, 106 S.Ct. at 1049-50 (citations omitted).\nFisher can be read to require us to examine first whether Local Law No. 21 qualifies as a “unilateral” restraint; if it does it falls outside § 1 of the Sherman Act, because it is not a “contract, combination * . or conspiracy.” In dismissing Hertz’s Sherman Act claim, the district court adopted the city’s view that the local law was a unilateral municipal action.\nThe Hertz law, however, lacks several features of the “unilateral” Berkeley ordinance. First, the law is not a “pure regulatory scheme”, Fisher, 475 U.S. at 269, 106 S.Ct. at 1050, because it is not a “scheme” at all; the law is simply a directive for all rental-car companies doing business in New York City to remove one factor from their competitive-pricing structures. Second, the law lacks the independent, quasi-judicial board that in Berkeley could adjust rates and provide relief in individual circumstances. Finally, the City of Berkeley was operating in an area vital to its municipal authority — housing; less vital is the rental-car industry in New York City.\nNor does the Hertz law easily fit the fact pattern of the cases held to involve “hybrid” restraints — those that restrain trade through some combination of governmental and private conduct. The three Supreme Court cases in this category involved the pricing of liquor. 3% Liquor Corp. v. Duffy, 479 U.S. 335, 107 S.Ct. 720, 93 L.Ed.2d 667 (1987); Midcal, 445 U.S. 97, 100 S.Ct. 937; Schwegmann Bros., 341 U.S. 384, 71 S.Ct. 745. Each involved classic price-setting that was delegated by statute or regulation to private industry but was left unsupervised by the state legislature. The Hertz law, in contrast, does not purport to authorize price-setting by private industry; it simply eliminates an element of price competition among industry members.\nWe reject the city’s suggestion to apply Fisher expansively so as to view Local Law No. 21 as a unilateral action that lacks the degree of private-governmental agreement required to be a contract, combination, or conspiracy in restraint of trade. To do so would remove from the reach of the antitrust laws all local governmental actions not fitting the precise fact pattern of the liquor cases, and would preclude examination of their anti-competitive effects. At the same time, we also reject Hertz’s contention that this case, like the “hybrid” liquor cases, presents a straight-forward example of price-fixing that is per se invalid.\nPresent here are several anticompetitive risks, gleaned from the Supreme Court’s antitrust jurisprudence, that might warrant antitrust scrutiny for this municipal entity. The Hertz law may permit the city to impose on an industry unnecessary monetary costs that will have an extraterritorial impact. See, e.g., City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 405, 98 S.Ct. 1123, 1132, 55 L.Ed.2d 364 (1978) (plurality). The law may also obstruct regional efficiency and trigger economic Balkanization, because of the possibility that many independent local governments may follow suit and consequently distort the national market economy. Id. at 404, 408, 98 S.Ct. at 1132, 1134.\nIn short, while we have found no case dealing with a governmental act having attributes similar to the Hertz law, we conclude that the Hertz law is not a “unilateral” restraint. It is closer to, although not identical with, those actions categorized as “hybrid”, because it removes one element of competition in car-rental pricing, but does not further regulate or review the prices set by rental companies. In addition, some of the risks of anticompetitive behavior enunciated in City of Lafayette and relied on in 32U Liquor Corp. are present in Local Law No. 21.\nAccordingly, we disagree with the district court’s conclusion that the Hertz law is a unilateral restraint that lacks the requisite contract, combination, or conspiracy to warrant antitrust review. Local Law No. 21 calls for anticompetitive private conduct in setting rental rates and making rental decisions. The law thus merits hybrid treatment; however, we must first determine whether the city has pointed to sufficient state involvement in the enactment of Local Law No. 21 to entitle it to state-action immunity.\n2. State-Action Immunity from Antitrust Liability for Municipality.\nHaving determined that the Hertz law is a contract, combination, or conspiracy in restraint of trade, we now turn to the issue of whether New York State has cloaked the City of New York with immunity for any antitrust violations created by the Hertz law. Fisher, 475 U.S. at 264, 106 S.Ct. at 1047 (consideration of state-action immunity unnecessary unless actual conflict with antitrust laws is established).\nThe Supreme Court in Parker v. Brown, held that the Sherman Act does not apply when anticompetitive restraints are imposed by the states “as an act of government”. 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315 (1943). Under principles of federalism and state sovereignty, a state actor is accorded absolute immunity from antitrust liability. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991).\nLocal governments may be entitled to state-action immunity. While Parker state-action immunity does not apply directly to local governments, a municipality’s restriction of competition may sometimes be an authorized implementation of state policy; if it is, then the municipality may share in the immunity accorded to state actions. City of Lafayette, 435 U.S. at 413, 98 S.Ct. at 1136 (municipal government shares in Parker immunity if its activity was pursuant to state policy to displace competition with regulation or monopoly public service).\nThe Supreme Court in FTC v. Ticor Title Insurance Co. reiterated the “two-part test applicable to instances where private parties participate in a [local government’s] price fixing regime. ‘First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; second, the policy must be actively supervised by the State itself.’” — U.S. -, -, 112 S.Ct. 2169, 2176, 119 L.Ed.2d 410 (1992) (quoting Midcal, 445 U.S. at 105, 100 S.Ct. at 943).\nThus, a municipality may benefit from the “state action” exemption only if it has acted pursuant to a clearly articulated state policy. Community Communications Co. v. City of Boulder, 455 U.S. 40, 52, 102 S.Ct. 835, 841, 70 L.Ed.2d 810 (1982) (plurality); 324 Liquor Corp., 479 U.S. at 343-45, 107 S.Ct. at 724-26. As we held in an analogous Clayton Act context:\nThe clarity of such [articulated state] policy is often a function of how broadly the legislation is drawn, with the existence of such policy being more readily discernible in narrowly drawn legislation. The legislation must contain an affirmative showing of intent, though it need do -no more than authorize the challenged conduct. So long as the resulting anti-competitive activities are a foreseeable consequence of the state delegation, the “clear articulation” standard has been met. To meet this requirement the party claiming the state action defense must show that the “legislature contemplated the action complained of.” “[A]ctive state supervision”—is no longer required in the case of a municipality.\nCine 42nd St. Theater Corp. v. Nederlander Org., 790 F.2d 1032, 1043 (2d Cir.1986) (citations omitted).\nThe State of New York has not granted New York City any particular authority over the car-rental field; instead the Hertz law represents an exercise of the city’s home-rule powers granted by the state constitution and statutes. See N.Y. Const, art. IX, § 2(c)(i) (McKinney 1987) (“[E]very local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government”); Municipal Home Rule Law § 10 (McKinney 1969). The Supreme Court has held that a similar home-rule provision in the Colorado state constitution reflected the state’s position of “mere neutrality” regarding local activities undertaken pursuant to that provision. Community Communications Co., 455 U.S. at 55, 102 S.Ct. at 842 (“A State that allows its municipalities to do as they please can hardly be said to have ‘contemplated’ the specific anticompetitive actions for which municipal liability is sought.”).\nThus, local government actions that are grounded in home-rule authority are not carried out pursuant to a clearly articulated state policy. See also Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Cine 42nd St, 790 F.2d 1032. In adopting Local Law No. 21 the City of New York did not operate from any clearly articulated state policy that encourages or foresees anti-competitive activity in the rental-car field. Cf. Cine 42nd St., 790 F.2d at 1043-44; see also Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 95 (2d Cir.) (citing Town of Hallie, 471 U.S. at 38, 105 S.Ct. at 1716), cert. denied, 479 U.S. 872, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986).\nWe conclude, therefore, that in this challenge to Local Law No. 21, New York City is not protected by state-action immunity from antitrust liability. We recognize that when a state or local governmental action compels private anticompetitive behavior, state-action immunity would additionally require a showing that the state actively supervised that private conduct. Midcal, 445 U.S. at 105, 100 S.Ct. at 943. However, because we have determined that the lack of a clear state policy directing the city’s legislative efforts prevents the city from enjoying state-action immunity here, we need not further address the active-supervision question.\nHaving determined, based on the allegations of the complaint, that the Hertz law comes closest to being a “hybrid” restraint, ie., a contract, combination, or conspiracy in restraint of trade, involving the city and the car-rental industry, and that the city has no state-action immunity, we must reverse the district court’s dismissal of the complaint and remand for further analysis of the remaining antitrust issues. To assist the parties and the district court on the remand, we set forth some guidance for some of the problems that remain in this difficult case.\n3. Per Se Analysis.\nA per se rule is used in the relatively narrow circumstance where courts have sufficient experience with the activity to recognize that it is plainly anticompetitive and lacks any redeeming virtue. Broadcast Music Inc. v. Columbia Broadcasting Sys. Inc., 441 U.S. 1, 8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979); see also Business Elecs., 485 U.S. at 723, 108 S.Ct. at 1518 (per se rule appropriate only for manifestly anticompetitive conduct that would almost always tend to restrict competition and decrease output); National Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. 85, 107-08, 104 S.Ct. 2948, 2963, 82 L.Ed.2d 70 (1984) (court reluctant to extend per se analysis where economic impact of challenged practice not immediately obvious). For example, an agreement to fix prices is invalid regardless of any offer of proof to establish that the resulting price is reasonable. Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958); see also Schwegmann Bros., 341 U.S. at 385-86, 71 S.Ct. at 746; Catalano Inc. v. Target Sales Inc., 446 U.S. 643, 648, 100 S.Ct. 1925, 1928, 64 L.Ed.2d 580 (1980) (per curiam) (agreements between private competitors to eliminate discounts is per se an illegal price fixing scheme).\nHertz argues that this case is sufficiently akin to horizontal price fixing to warrant per se treatment. We disagree. The setting is inappropriate for per se analysis. Not only have courts had little exposure to issues surrounding efforts by local governments to restrain trade through regulation, but this particular effort involves the novel claim by the city that the local law promotes a non-economic objective: the virtue of anti-discrimination.\nMoreover, this' case cannot be easily grouped with previous cases: it is not a rate-setting case, see, e.g., Ticor Title Ins. Co., — U.S. at -, 112 S.Ct. at 2169 and Fisher, 475 U.S. 260, 106 S.Ct. 1045, as the law does not set a maximum or minimum price for rental cars in New York City; nor is it a zoning case, see, e.g., Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991); a licensing case, see, e.g., Broadcast Music, Inc., 441 U.S. 1, 99 S.Ct. 1551 and United States Gypsum Co. v. National Gypsum Co., 352 U.S. 457, 77 S.Ct. 490, 1 L.Ed.2d 465 (1957); or a franchise-granting case, see, e.g., Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Finally, and most significantly, the Supreme Court has specifically suggested that per se treatment may not be well tailored to assessing municipal antitrust liability, noting that “certain activities which might appear anticompetitive when engaged in by private parties, take on a different complexion when adopted by a local government.” Community Communications Co., 455 U.S. at 56 n. 20, 102 S.Ct. at 843 n. 20 (quoting City of Lafayette, 435 U.S. at 417 n. 48, 98 S.Ct. at 1138 n. 48).\nIn short, we do not think it wise to adopt in this case, a restrictive per se rule that would require automatic invalidation of a local government’s duly-passed legislation, without regard to the circumstances prompting its enactment.\n4. Rule-of-Reason.\nWe next consider the applicability of the rule of reason to the Hertz law.\nOrdinarily, whether particular concerted action violates § 1 of the Sherman Act is determined through case-by-case application of the so-called rule of reason — that is, “the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.”\nBusiness Elecs., 485 U.S. at 723, 108 S.Ct. at 1518 (citation omitted).\nThe traditional rule-of-reason approach requires the defendant to demonstrate that the procompetitive aspects of the agreement outweigh its anticompetitive aspects.\n[The Rule of Reason] has been used to give the [Sherman] Act both flexibility and definition, and its central principle of antitrust analysis has remained constant. Contrary to its name, the Rule does not open the field of antitrust inquiry to any argument in favor of a challenged restraint that may fall within the realm of reason. Instead, it focuses directly on the challenged restraint’s impact on competitive conditions.\nNational Soc’y of Professional Eng’rs, 435 U.S. at 688, 98 S.Ct. at 1363.\nAgreements subject to a rule-of-reason analysis have traditionally been evaluated for their competitive effect by\nanalyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed. * * . [T]he purpose of the analysis is to form a judgment about the competitive significance of the restraint; it is not to decide whether a policy favoring competition is in the public interest, or in the interest of the members of an industry. Subject to exceptions defined by statute, that policy decision has been made by the Congress.\nId. at 692, 98 S.Ct. at 1365 (footnote omitted).\n“ ‘The factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.’ ” Business Elecs., 485 U.S. at 723, 108 S.Ct. at 1518 (quoting Continental T.V., Inc., 433 U.S. at 49, 97 S.Ct. at 2557).\nSignificantly, none of these rule-of-reason cases has involved a challenge to restraints on competition imposed by municipal activity. Application of the rule to this emerging legal field will require considerable tailoring to achieve even an approximate fit.\nUnder the rule-of-reason approach, the district court must balance the city’s articulated justifications for promulgating the anticompetitive regulation against the antitrust harm caused by the regulation. National Soc’y of Professional Eng’rs, 435 U.S. at 688, 98 S.Ct. at 1363; accord National Collegiate Athletic Ass’n, 468 U.S. at 104, 104 S.Ct. at 2961 (under Sherman Act, one must judge validity of restraint on trade according to its impact on competition). The legality of the city’s restraint on trade must be determined by weighing all the relevant factors' — including the history of the restraint, and the evil to be prevented, see, e.g., Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984) (rule of reason requires weighing of relevant circumstances of case); United States v. National Soc’y of Professional Eng’rs, 404 F.Supp. 457, 460-61 (D.D.C.1975) (same); the history and practices of the relevant industry, see, e.g., Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984) (inquiry into market power and market structure necessary to gauge combination under rule-of-reason approach); Arizona v. Maricopa County Medical Soc’y, 457 U.S. 332, 343-44, 102 S.Ct. 2466, 2472-73, 73 L.Ed.2d 48 (1982) (same); the local government’s reasons for adopting the particular restraint; and the end sought to be attained,' see Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1571 (5th Cir.1984) (en banc) (Higginbotham, J., concurring) (adaptation of rule of reason to anticompetitive local governmental conduct requires courts to consider factors not traditionally within rule, including above listed factors). Accordingly, the district court may consider the city’s articulated concern of avoiding nondiscrimination by ensuring that Hertz’s pricing and rental decisions do not burden minorities and the working poor. This places into the economic scale of traditional antitrust analysis noneconomic federal values embodied in the thirteenth and fourteenth amendments as well as in many of the federal statutes. We think consideration of such a federal policy is appropriate within the rule-of-reason analysis as it is applied to a municipality.\nHertz, of course, is entitled on remand to present evidence disputing the validity and strength of the city’s justifications for this anticompetitive regulation. The city’s justifications must be assessed in light of its stated end; this makes relevant Hertz’s explanation for its price increase — specifically, its claim to have experienced exceedingly high liability losses in certain boroughs. The city’s history of negotiating with Hertz concerning what it felt to be an objectionable pricing policy is relevant, as is Hertz’s consideration of less burdensome pricing methods. For example, the court may find relevant the city’s contention that Hertz could recoup its losses by raising each renter’s fee by $3.29 in the New York region.\nIn conclusion, on the antitrust issue, we remand to the district court for further proceedings.\nB. Commerce Clause.\nHertz also contends that Local Law No. 21 impermissibly burdens interstate commerce. See U.S. Const, art. I § 8 cl. 3. The constitution’s affirmative grant to congress of powers over interstate commerce means that states have limited authority to erect barriers against interstate trade, see Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35, 100 S.Ct. 2009, 2014, 64 L.Ed.2d 702 (1980), a limitation that applies equally to municipal legislation. Dean Milk v. City of Madison, 340 U.S. 349, 356, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951). Hertz alleged that the city’s local law violates the commerce clause “to the extent that the Hertz Law effectively forces Hertz to raise its rental rates to residents of other states * Hertz outlines in its complaint and other papers several means by which it might comply with Local Law No. 21 and still avoid being overwhelmed by the increased costs of renting to city residents. The corporation could (1) cease entirely its operations in New York City; (2) raise its rates for out-of-state residents who rent in the New York area; or (3) raise rental rates in other states.\nThe district court rejected this commerce-clause claim. Judge Knapp found that Hertz has the additional option of raising its rates evenly throughout all of New York City, or “finding other ways of dealing with the problem”. These options, said the district court, take the sting out of the alleged injury to interstate commerce.\nTo make out a claim that this regulation impermissibly burdens the commerce clause, Hertz must sufficiently plead that the local law discriminates against interstate commerce either on its face, or in its effect. Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979). Local Law No. 21 does not burden out-of-state customers expressly; it states only that rental-car companies may not “impose fees or charges based on [a] person’s residence.” Since the law does not facially burden interstate commerce, it must be upheld unless the actual burden it “impose[s] on interstate trade [is] ‘clearly excessive in relation to the putative local benefits’”. Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 2447, 91 L.Ed.2d 110 (1986) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970)).\nIn its complaint, Hertz has not sufficiently alleged that Local Law No. 21 has a discriminatory impact on interstate commerce. First, Hertz does not allege that an interstate effect must flow from this intrastate municipal regulation. Second, Hertz does not define what significant burden on interstate commerce is posed by Local Law No. 21. Hertz itself tells us that it can comply with the local law and maintain its profit level in New York City through a range of options, not all of which impact interstate commerce. Thus, Hertz has yet to explain how the city’s car-pricing ordinance compels action that discriminates against interstate commerce.\nOf course, there was little time available in the district court proceedings to fully explore the implications of Hertz’s commerce-clause argument. Only four days elapsed between the filing of the complaint and the district court’s order dismissing the complaint. Since this case must be remanded for the district judge to apply a rule-of-reason analysis to Hertz’s Sherman Act claim, Hertz should have the opportunity, if it so desires, to develop further its contentions with respect to the law’s impact on interstate commerce.\nC. Remaining Claims.\nJudge Knapp also dismissed Hertz’s remaining contentions that Local Law No. 21 violates 42 U.S.C. § 1983 because it (1) is an unconstitutional regulatory taking, (2) imper-missibly impairs existing contracts, and (3) offends principles of substantive due process.\n1. Regulatory Taking\nHertz has failed to state a claim that Local Law No. 21 imposes a regulatory taking in violation of the fourteenth amendment. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815 (1984); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922) (regulation of property which goes too far may amount to taking). Even assuming that takings cases connected with the diminution of real estate values apply in this business setting, the local law does not effect a taking because Hertz and other rental-car companies retain the right to set rates in New York City at any level they desire. See, e.g., Sun Oil Co. v. United States, 215 Ct.Cl. 716, 572 F.2d 786, 818 (1978) (per curiam) (not every deprivation of use, possession, or control is “taking”; character and extent of interference must be examined). Hertz unquestionably retains an “economically viable” use of its property, see, e.g., Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 127, 138 n. 36, 98 S.Ct. 2646, 2660, 2666 n. 36, 57 L.Ed.2d 631 (1978), and finally, the taking cases offered by Hertz relating to the public-utility industry do not apply here. See Duquesne Light Co. v. Barasch, 488 U.S. 299, 306-08, 109 S.Ct. 609, 614-15, 102 L.Ed.2d 646 (1989) (defining constraints posed by takings clause on state-rate regulation of public utility).\n2. Impairment of Contract.\nHertz alleged that application of Local Law No. 21 to car-rental contracts in place before it takes effect would unconstitutionally impair those contracts by forbidding Hertz to collect fees for rental cars that it had already contracted to receive. See U.S. Const, art. I, § 10. The city, however, has removed the Hertz law from any collision with the dictates of the contract clause, having assured us that the law does not apply to these outstanding contracts.\n3 Substantive Due Process.\nEconomic regulation need only be rationally related to a legitimate governmental purpose. New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106-07, 99 S.Ct. 403, 410, 58 L.Ed.2d 361 (1978) (since demise of substantive due process in economic area, due process provides legislative bodies broad scope to experiment with economic problems); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978) (citing Ferguson v. Skrupa, 372 U.S. 726, 730-31, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963)) (searching scrutiny of economic legislation has long been abandoned; “vague contours” of due process clause do not permit courts to sit as super-legislature to weigh wisdom of legislation).\nThe city contends that the Hertz Law will help prevent discriminatory business practices in the rental-car industry, by requiring rental-car companies to refrain from using a renter’s residence in pricing and renting decisions. The city’s rationale is that rental-ear companies must find other means of determining and dealing with the customers who are likely to cause them high Lability expenses; thus, individual customers would enjoy rates more closely related to their own particular risk. Since it is not irrational to conclude that the city’s regulation may cut down on incidents of discrimination in car rentals based on the renter’s residence, the Hertz law passes this substantive due process challenge.\n4. Section 1983.\n42 U.S.C. § 1983 creates civil liability for deprivations of certain federal rights under color of state law. It is a procedural vehicle which permits suit for violations of constitutional and federal statutory provisions. See generally 1 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees (2d ed. 1991). The district court dismissed Hertz’s § 1983 claim because it rejected all of the underlying constitutional and antitrust claims. While we affirm the district court’s dismissal of Hertz’s claims of a regulatory taking, impairment of contracts, and violation of substantive due process, we are remanding for further consideration of its antitrust and commerce-clause claims, and leave it for the district court to determine what role, if any, § 1983 may have on the resolution of those claims.\nCONCLUSION\nReversed and remanded for further proceedings in accordance with this opinion.", "type": "majority", "author": "GEORGE C. PRATT, Circuit Judge:"}], "attorneys": ["Paul C. Saunders, New York City (Cra-vath, Swaine & Moore, of counsel), for plaintiff-appellant.", "Alan G. Rrams, New York City (O. Peter Sherwood, Corp. Counsel of the City of New York, Leonard Koerner, Lawrence S. Kahn, Barry P. Schwartz, June R. Buch, Julie Mer-tus, of counsel), for defendants-appellees.", "Timothy Dyk, Washington, DC (Jones, Day, Reavis & Pogue, of counsel), for amicus curiae Chamber of Commerce of the U.S."], "corrections": "", "head_matter": "The HERTZ CORPORATION, Plaintiff-Appellant, v. The CITY OF NEW YORK, O. Peter Sherwood, in his official capacity as Corporation Counsel of the City of New York, and Mark Green, in his official capacity as Commissioner of Consumer Affairs of the City of New York, Defendants-Appellees.\nNo. 1592, Docket 92-7369.\nUnited States Court of Appeals, Second Circuit.\nArgued May 6, 1992.\nDecided Aug. 2, 1993.\nPaul C. Saunders, New York City (Cra-vath, Swaine & Moore, of counsel), for plaintiff-appellant.\nAlan G. Rrams, New York City (O. Peter Sherwood, Corp. Counsel of the City of New York, Leonard Koerner, Lawrence S. Kahn, Barry P. Schwartz, June R. Buch, Julie Mer-tus, of counsel), for defendants-appellees.\nTimothy Dyk, Washington, DC (Jones, Day, Reavis & Pogue, of counsel), for amicus curiae Chamber of Commerce of the U.S.\nBefore: FEINBERG, PRATT and McLAUGHLIN, Circuit Judges."}	FEINBERG	PRATT	McLAUGHLIN	1	1	1	0	0	0	1 F.3d 121	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: The HERTZ CORPORATION, Plaintiff-Appellant, v. The CITY OF NEW YORK, O. Peter Sherwood, in his official capacity as Corporation Counsel of the City of New York, and Mark Green, in his official capacity as Commissioner of Consumer Affairs of the City of New York, Defendants-Appellees\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-08-02\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nGEORGE C. PRATT, Circuit Judge:\nHertz Corporation appeals from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, that dismissed its complaint which sought to enjoin enforcement of Local Law No. 21 of 1992 of the City of New York, referred to informally as the “Hertz law”.\nFACTS AND BACKGROUND\nOn January 2, 1992, Hertz announced that it would increase the daily car-rental rates it charges by $56.00 for residents of the Bronx, $34.00 for residents of Brooklyn, $3.00 for residents of Manhattan, and $15.00 for residents of Queens. The increased rates were to be charged to persons residing in those four boroughs whenever they rented a car at a Hertz outlet in the New York metropolitan area, New Jersey, Southern Connecticut, or Eastern Pennsylvania. Out-of-city Hertz customers who rented a vehicle in one of these four boroughs would have no increased rates.\nHertz claims that renting cars to residents of these boroughs had resulted in extremely high liability expenses for the company. Specifically, Hertz alleges that although only about seven percent of Hertz’s nationwide rentals occur in the New York area, more than 25 percent of its liability losses have occurred there. As one of the reasons, the company points to a state statute that holds car owners vicariously liable for any monetary damages caused by the operation of their vehicles. See N.Y.Veh. & Traf. § 388 (McKinney 1986). Another cause, says Hertz, is that juries in some of the affected boroughs have a history of awarding high damages to plaintiffs in personal injury cases. Hertz avers that its residency surcharges correspond directly to the average excess liability losses incurred per rental in the affected boroughs.\nHertz excludes several groups of renters from the increases: (1) those holding contracts with Hertz, such as federal and corporate accounts, and (2) certain other categories of renters — those possessing airline tickets, members of the Manhattan Preferred Renters Club, and Platinum Service customers — felt to be low-risk groups. In addition, members of the “Hertz Gold Club” are excluded, since they do not check in at a rental-car outlet and therefore could not practicably be notified of the increased rate. Hertz also has announced a “Responsible Renter Qualification Program”, which permits those otherwise subject to the increased rates to apply for and receive an exemption upon meeting certain qualifications, including a safe driving record.\nIn response to Hertz’s proposed surcharges for residents of four of its boroughs, the City of New York passed Local Law No. 21 of 1992 which amended chapter four of title 20 of the city’s administrative code to provide that:\nNo rental vehicle company shall refuse to rent a motor vehicle to any person otherwise qualified based on that person’s residence, nor impose fees or charges based on that person’s residence.\nThrough this local law, the city contends, that it was “exercising its reasoned legislative judgment that the social costs of the [Hertz pricing] practice are too high, given its potential for polarization and the fact that the burden falls hardest on minorities and the working poor.”\nIn addition to enacting Local Law No. 21, the city commenced an action in Supreme Court, New York County, claiming that Hertz’s rate increases violated (1) state and local law because of their disparate impact on minorities, and (2) section 396-z(10) of New York’s General Business Law. That action is pending.\nOn March 27, 1992, Hertz commenced this action in the United States District Court for the Southern District of New York. It sought a declaratory judgment that the Hertz law is invalid and an injunction against its enforcement. The complaint alleged that Local Law No. 21(1) is preempted by state law regulating the rental-car industry, and (2) violates several provisions of the United States Constitution: (a) the contract clause, (b) the commerce clause, and (c) the fourteenth amendment’s protection for substantive due process and its prohibition against uncompensated takings. Finally, Hertz charged that Local Law No. 21 compels a violation of § 1 of the Sherman Act, 15 U.S.C. § 1 (1988), and therefore is preempted and invalid under the supremacy clause of the United States Constitution.\nFour days after it was filed, Hon. Whitman Knapp, ordered Hertz’s complaint dismissed, but he enjoined the city from taking any action to effectuate the law pending the outcome of any appeal by Hertz. Hertz appealed the dismissal; the city did not cross-appeal.\nBecause the determination of Hertz’s state-law preemption claim involved issues that were important to the continuing development of state law and potentially disposi-tive of this appeal, on June 10, 1992, we certified to the New York State Court of Appeals the question of “whether New York State legislation addressing car rental practices sets forth a sufficiently comprehensive scheme of regulations to preempt further legislation in the field by the municipalities of the state.” Hertz v. City of New York, 967 F.2d 54, 57 (2d Cir.1992). On December 22, 1992, the 'Court of Appeals answered this question in the negative. See Hertz v. City of New York, 80 N.Y.2d 565, 592 N.Y.S.2d 637, 607 N.E.2d 784 (1992)..\nThe case is now before us to review the district court’s resolution of the remaining issues: (1) the city’s antitrust liability under the Sherman Act, (2) the impact of Local Law No. 21 on interstate commerce, and (3) Hertz’s claims under 42 U.S.C. § 1983 (1988) based on takings law, the contract clause, and substantive due process.\nDISCUSSION\nReview of the grant of a motion under Fed.R.Civ.P. 12(b)(6) is de novo, and we must construe in Hertz’s favor factual allegations in the complaint. Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). Our consideration, like the district court’s, is limited to facts stated on the face of the complaint and in documents appended to the complaint or incorporated in the complaint by reference, as well as to matters of which judicial notice may be taken. Id. Dismissal of the complaint is proper only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted).\nA. The Sherman Act.\nSection 1 of the Sherman Act provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States * * * is declared to be illegal.” 15 U.S.C. § 1.\nInitially we note that by controlling one aspect of thé pricing process for rental cars, the Hertz law on its face restrained trade within the meaning of § 1 of the Sherman act.. See National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978) (“Price is the ‘central nervous system of the economy,’ and an agreement that ‘interfered with the setting of price by free market forces’ is illegal on its face.”). In National Soc’y of Professional Eng’rs, the Supreme Court concluded that an agreement among competitors to refuse to discuss prices with potential customers until after negotiations had resulted in the selection of an engineer restrains trade within , the meaning of § 1 of the Sherman Act. The Court aptly noted, “[w]hile this is not price fixing as such, no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement.” Id. at 692, 98 S.Ct. at 1365. The agreement impeded the ordinary give and take of the market place. Id.\nThe fact that Local Law No. 21 does impose a restraint on trade only marks the beginning of our analytical journey, however, because the broad language of the Sherman Act precludes only those restraints of trade that are unreasonable. Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 1518, 99 L.Ed.2d 808 (1988); Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984); 'see' generally Earl W. Kintner, 2 Federal Antitrust Law § 9.20, at 56 (1980). Unreasonable contracts, combinations, and conspiracies in restraint of trade enacted by state and local governments are unconstitutional as preempted by federal antitrust laws. See generally Phillip E. Areeda and Donald F. Turner, Antitrust Law ¶ 209, at 60 (Supp.1992).\nThe threshold requirement of the statute is that there be a “contract, combination, * * * or conspiracy” to restrain trade or commerce. This element of the statute is usually clear when the conduct at issue is that of private parties; however, when the actor is a local governmental unit, two additional questions must be answered. The first arises from the Supreme Court’s holding in Fisher v. City of Berkeley, 475 U.S. 260, 106 S.Ct. 1045, 89 L.Ed.2d 206 (1986), that in some circumstances, discussion of which follows, action by a city may not be a contract, combination, or conspiracy at all. Id. at 266-68, 106 S.Ct. at 1049-50. The second additional question addresses the extent to which the local governmental unit may be entitled to share in the immunity from antitrust liability that is accorded state actors, a topic that need be addressed only if we conclude that the challenged action conflicts with antitrust laws. Id. at 264, 106 S.Ct. at 1047. Finally, although courts have deemed some restraints so anticompetitive that they are held per se invalid, the presumption is that restraints are examined in light of the rule of reason — a more flexible standard that demands consideration of a variety of factors. Thus, we must also consider the appropriate standard by which to measure the reasonableness of the city’s action.\nThe antitrust issues we must address, therefore, can bé summarized as follows: (1) whether there is a contract, combination or conspiracy, (2) whether the city enjoys state-action immunity from antitrust liability, (3) the possible applicability of per se analysis to the city’s law, and finally, (4) whether the rule of reason is the appropriate measure of Sherman Act liability for this municipal defendant. We will discuss each issue as applied to Local Law No. 21.\n1. Contract, Combination, or Conspiracy.\nThe Supreme Court addressed the issue of municipal antitrust liability in Fisher, where the City of Berkeley had promulgated a rent-control ordinance that was administered by an independent, quasi-judicial board. The board calculated the annual, general rent adjustments and processed individual claims for variances. Opponents of the ordinance argued that it required pricefbdng that, under the traditional standards, was a per sé unreasonable restraint of trade. The Supreme Court rejected this proposed analysis, and instead held that, on the facts before it, the city’s action was not “concerted” — it did not meet the threshold requirement of being a contract, combination, or conspiracy. This was so because “[t]he rent ceilings imposed by the [city] Ordinance and maintained by the Rent Stabilization Board have been unilaterally imposed by government upon landlords to the exclusion of private control.” Fisher, 475 U.S. at 266, 106 S.Ct. at 1049. Thus, the Court held the Berkeley ordinance to be a “unilateral action outside the purview of § 1.” Id. at 266-67, 106 S.Ct. at 1049.\nThe Court then re-examined its two earlier cases that had addressed governmental antitrust liability. California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951). Despite the lack of an agreement between any of the regulated parties, the Supreme Court found in both Mid-cal and Schwegmann Bros, that the pertinent state statute called for private industry to engage in price-fixing, which the court held to be per se illegal. The Fisher Court explained that the factor distinguishing Mid-cal and Schwegmann Bros, was the role played by the governmental body in implementing the legislation. In both cases, the state had dictated price-setting that was to be performed not by the state, but by wholesalers and producers in the liquor industry.\nThe Fisher Court explained:\nNot all restraints imposed upon private actors by government units necessarily constitute unilateral action outside the purview of § 1. Certain restraints may be characterized as “hybrid,” in that non-market mechanisms merely enforce private marketing decisions. Where private actors are thus granted “a degree of private regulatory power,” the regulatory scheme may be attacked under § 1.\n475 U.S. at 267-68, 106 S.Ct. at 1049-50 (citations omitted).\nFisher can be read to require us to examine first whether Local Law No. 21 qualifies as a “unilateral” restraint; if it does it falls outside § 1 of the Sherman Act, because it is not a “contract, combination * . or conspiracy.” In dismissing Hertz’s Sherman Act claim, the district court adopted the city’s view that the local law was a unilateral municipal action.\nThe Hertz law, however, lacks several features of the “unilateral” Berkeley ordinance. First, the law is not a “pure regulatory scheme”, Fisher, 475 U.S. at 269, 106 S.Ct. at 1050, because it is not a “scheme” at all; the law is simply a directive for all rental-car companies doing business in New York City to remove one factor from their competitive-pricing structures. Second, the law lacks the independent, quasi-judicial board that in Berkeley could adjust rates and provide relief in individual circumstances. Finally, the City of Berkeley was operating in an area vital to its municipal authority — housing; less vital is the rental-car industry in New York City.\nNor does the Hertz law easily fit the fact pattern of the cases held to involve “hybrid” restraints — those that restrain trade through some combination of governmental and private conduct. The three Supreme Court cases in this category involved the pricing of liquor. 3% Liquor Corp. v. Duffy, 479 U.S. 335, 107 S.Ct. 720, 93 L.Ed.2d 667 (1987); Midcal, 445 U.S. 97, 100 S.Ct. 937; Schwegmann Bros., 341 U.S. 384, 71 S.Ct. 745. Each involved classic price-setting that was delegated by statute or regulation to private industry but was left unsupervised by the state legislature. The Hertz law, in contrast, does not purport to authorize price-setting by private industry; it simply eliminates an element of price competition among industry members.\nWe reject the city’s suggestion to apply Fisher expansively so as to view Local Law No. 21 as a unilateral action that lacks the degree of private-governmental agreement required to be a contract, combination, or conspiracy in restraint of trade. To do so would remove from the reach of the antitrust laws all local governmental actions not fitting the precise fact pattern of the liquor cases, and would preclude examination of their anti-competitive effects. At the same time, we also reject Hertz’s contention that this case, like the “hybrid” liquor cases, presents a straight-forward example of price-fixing that is per se invalid.\nPresent here are several anticompetitive risks, gleaned from the Supreme Court’s antitrust jurisprudence, that might warrant antitrust scrutiny for this municipal entity. The Hertz law may permit the city to impose on an industry unnecessary monetary costs that will have an extraterritorial impact. See, e.g., City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 405, 98 S.Ct. 1123, 1132, 55 L.Ed.2d 364 (1978) (plurality). The law may also obstruct regional efficiency and trigger economic Balkanization, because of the possibility that many independent local governments may follow suit and consequently distort the national market economy. Id. at 404, 408, 98 S.Ct. at 1132, 1134.\nIn short, while we have found no case dealing with a governmental act having attributes similar to the Hertz law, we conclude that the Hertz law is not a “unilateral” restraint. It is closer to, although not identical with, those actions categorized as “hybrid”, because it removes one element of competition in car-rental pricing, but does not further regulate or review the prices set by rental companies. In addition, some of the risks of anticompetitive behavior enunciated in City of Lafayette and relied on in 32U Liquor Corp. are present in Local Law No. 21.\nAccordingly, we disagree with the district court’s conclusion that the Hertz law is a unilateral restraint that lacks the requisite contract, combination, or conspiracy to warrant antitrust review. Local Law No. 21 calls for anticompetitive private conduct in setting rental rates and making rental decisions. The law thus merits hybrid treatment; however, we must first determine whether the city has pointed to sufficient state involvement in the enactment of Local Law No. 21 to entitle it to state-action immunity.\n2. State-Action Immunity from Antitrust Liability for Municipality.\nHaving determined that the Hertz law is a contract, combination, or conspiracy in restraint of trade, we now turn to the issue of whether New York State has cloaked the City of New York with immunity for any antitrust violations created by the Hertz law. Fisher, 475 U.S. at 264, 106 S.Ct. at 1047 (consideration of state-action immunity unnecessary unless actual conflict with antitrust laws is established).\nThe Supreme Court in Parker v. Brown, held that the Sherman Act does not apply when anticompetitive restraints are imposed by the states “as an act of government”. 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315 (1943). Under principles of federalism and state sovereignty, a state actor is accorded absolute immunity from antitrust liability. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991).\nLocal governments may be entitled to state-action immunity. While Parker state-action immunity does not apply directly to local governments, a municipality’s restriction of competition may sometimes be an authorized implementation of state policy; if it is, then the municipality may share in the immunity accorded to state actions. City of Lafayette, 435 U.S. at 413, 98 S.Ct. at 1136 (municipal government shares in Parker immunity if its activity was pursuant to state policy to displace competition with regulation or monopoly public service).\nThe Supreme Court in FTC v. Ticor Title Insurance Co. reiterated the “two-part test applicable to instances where private parties participate in a [local government’s] price fixing regime. ‘First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; second, the policy must be actively supervised by the State itself.’” — U.S. -, -, 112 S.Ct. 2169, 2176, 119 L.Ed.2d 410 (1992) (quoting Midcal, 445 U.S. at 105, 100 S.Ct. at 943).\nThus, a municipality may benefit from the “state action” exemption only if it has acted pursuant to a clearly articulated state policy. Community Communications Co. v. City of Boulder, 455 U.S. 40, 52, 102 S.Ct. 835, 841, 70 L.Ed.2d 810 (1982) (plurality); 324 Liquor Corp., 479 U.S. at 343-45, 107 S.Ct. at 724-26. As we held in an analogous Clayton Act context:\nThe clarity of such [articulated state] policy is often a function of how broadly the legislation is drawn, with the existence of such policy being more readily discernible in narrowly drawn legislation. The legislation must contain an affirmative showing of intent, though it need do -no more than authorize the challenged conduct. So long as the resulting anti-competitive activities are a foreseeable consequence of the state delegation, the “clear articulation” standard has been met. To meet this requirement the party claiming the state action defense must show that the “legislature contemplated the action complained of.” “[A]ctive state supervision”—is no longer required in the case of a municipality.\nCine 42nd St. Theater Corp. v. Nederlander Org., 790 F.2d 1032, 1043 (2d Cir.1986) (citations omitted).\nThe State of New York has not granted New York City any particular authority over the car-rental field; instead the Hertz law represents an exercise of the city’s home-rule powers granted by the state constitution and statutes. See N.Y. Const, art. IX, § 2(c)(i) (McKinney 1987) (“[E]very local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government”); Municipal Home Rule Law § 10 (McKinney 1969). The Supreme Court has held that a similar home-rule provision in the Colorado state constitution reflected the state’s position of “mere neutrality” regarding local activities undertaken pursuant to that provision. Community Communications Co., 455 U.S. at 55, 102 S.Ct. at 842 (“A State that allows its municipalities to do as they please can hardly be said to have ‘contemplated’ the specific anticompetitive actions for which municipal liability is sought.”).\nThus, local government actions that are grounded in home-rule authority are not carried out pursuant to a clearly articulated state policy. See also Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Cine 42nd St, 790 F.2d 1032. In adopting Local Law No. 21 the City of New York did not operate from any clearly articulated state policy that encourages or foresees anti-competitive activity in the rental-car field. Cf. Cine 42nd St., 790 F.2d at 1043-44; see also Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 95 (2d Cir.) (citing Town of Hallie, 471 U.S. at 38, 105 S.Ct. at 1716), cert. denied, 479 U.S. 872, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986).\nWe conclude, therefore, that in this challenge to Local Law No. 21, New York City is not protected by state-action immunity from antitrust liability. We recognize that when a state or local governmental action compels private anticompetitive behavior, state-action immunity would additionally require a showing that the state actively supervised that private conduct. Midcal, 445 U.S. at 105, 100 S.Ct. at 943. However, because we have determined that the lack of a clear state policy directing the city’s legislative efforts prevents the city from enjoying state-action immunity here, we need not further address the active-supervision question.\nHaving determined, based on the allegations of the complaint, that the Hertz law comes closest to being a “hybrid” restraint, ie., a contract, combination, or conspiracy in restraint of trade, involving the city and the car-rental industry, and that the city has no state-action immunity, we must reverse the district court’s dismissal of the complaint and remand for further analysis of the remaining antitrust issues. To assist the parties and the district court on the remand, we set forth some guidance for some of the problems that remain in this difficult case.\n3. Per Se Analysis.\nA per se rule is used in the relatively narrow circumstance where courts have sufficient experience with the activity to recognize that it is plainly anticompetitive and lacks any redeeming virtue. Broadcast Music Inc. v. Columbia Broadcasting Sys. Inc., 441 U.S. 1, 8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979); see also Business Elecs., 485 U.S. at 723, 108 S.Ct. at 1518 (per se rule appropriate only for manifestly anticompetitive conduct that would almost always tend to restrict competition and decrease output); National Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. 85, 107-08, 104 S.Ct. 2948, 2963, 82 L.Ed.2d 70 (1984) (court reluctant to extend per se analysis where economic impact of challenged practice not immediately obvious). For example, an agreement to fix prices is invalid regardless of any offer of proof to establish that the resulting price is reasonable. Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958); see also Schwegmann Bros., 341 U.S. at 385-86, 71 S.Ct. at 746; Catalano Inc. v. Target Sales Inc., 446 U.S. 643, 648, 100 S.Ct. 1925, 1928, 64 L.Ed.2d 580 (1980) (per curiam) (agreements between private competitors to eliminate discounts is per se an illegal price fixing scheme).\nHertz argues that this case is sufficiently akin to horizontal price fixing to warrant per se treatment. We disagree. The setting is inappropriate for per se analysis. Not only have courts had little exposure to issues surrounding efforts by local governments to restrain trade through regulation, but this particular effort involves the novel claim by the city that the local law promotes a non-economic objective: the virtue of anti-discrimination.\nMoreover, this' case cannot be easily grouped with previous cases: it is not a rate-setting case, see, e.g., Ticor Title Ins. Co., — U.S. at -, 112 S.Ct. at 2169 and Fisher, 475 U.S. 260, 106 S.Ct. 1045, as the law does not set a maximum or minimum price for rental cars in New York City; nor is it a zoning case, see, e.g., Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991); a licensing case, see, e.g., Broadcast Music, Inc., 441 U.S. 1, 99 S.Ct. 1551 and United States Gypsum Co. v. National Gypsum Co., 352 U.S. 457, 77 S.Ct. 490, 1 L.Ed.2d 465 (1957); or a franchise-granting case, see, e.g., Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Finally, and most significantly, the Supreme Court has specifically suggested that per se treatment may not be well tailored to assessing municipal antitrust liability, noting that “certain activities which might appear anticompetitive when engaged in by private parties, take on a different complexion when adopted by a local government.” Community Communications Co., 455 U.S. at 56 n. 20, 102 S.Ct. at 843 n. 20 (quoting City of Lafayette, 435 U.S. at 417 n. 48, 98 S.Ct. at 1138 n. 48).\nIn short, we do not think it wise to adopt in this case, a restrictive per se rule that would require automatic invalidation of a local government’s duly-passed legislation, without regard to the circumstances prompting its enactment.\n4. Rule-of-Reason.\nWe next consider the applicability of the rule of reason to the Hertz law.\nOrdinarily, whether particular concerted action violates § 1 of the Sherman Act is determined through case-by-case application of the so-called rule of reason — that is, “the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.”\nBusiness Elecs., 485 U.S. at 723, 108 S.Ct. at 1518 (citation omitted).\nThe traditional rule-of-reason approach requires the defendant to demonstrate that the procompetitive aspects of the agreement outweigh its anticompetitive aspects.\n[The Rule of Reason] has been used to give the [Sherman] Act both flexibility and definition, and its central principle of antitrust analysis has remained constant. Contrary to its name, the Rule does not open the field of antitrust inquiry to any argument in favor of a challenged restraint that may fall within the realm of reason. Instead, it focuses directly on the challenged restraint’s impact on competitive conditions.\nNational Soc’y of Professional Eng’rs, 435 U.S. at 688, 98 S.Ct. at 1363.\nAgreements subject to a rule-of-reason analysis have traditionally been evaluated for their competitive effect by\nanalyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed. * * . [T]he purpose of the analysis is to form a judgment about the competitive significance of the restraint; it is not to decide whether a policy favoring competition is in the public interest, or in the interest of the members of an industry. Subject to exceptions defined by statute, that policy decision has been made by the Congress.\nId. at 692, 98 S.Ct. at 1365 (footnote omitted).\n“ ‘The factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.’ ” Business Elecs., 485 U.S. at 723, 108 S.Ct. at 1518 (quoting Continental T.V., Inc., 433 U.S. at 49, 97 S.Ct. at 2557).\nSignificantly, none of these rule-of-reason cases has involved a challenge to restraints on competition imposed by municipal activity. Application of the rule to this emerging legal field will require considerable tailoring to achieve even an approximate fit.\nUnder the rule-of-reason approach, the district court must balance the city’s articulated justifications for promulgating the anticompetitive regulation against the antitrust harm caused by the regulation. National Soc’y of Professional Eng’rs, 435 U.S. at 688, 98 S.Ct. at 1363; accord National Collegiate Athletic Ass’n, 468 U.S. at 104, 104 S.Ct. at 2961 (under Sherman Act, one must judge validity of restraint on trade according to its impact on competition). The legality of the city’s restraint on trade must be determined by weighing all the relevant factors' — including the history of the restraint, and the evil to be prevented, see, e.g., Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984) (rule of reason requires weighing of relevant circumstances of case); United States v. National Soc’y of Professional Eng’rs, 404 F.Supp. 457, 460-61 (D.D.C.1975) (same); the history and practices of the relevant industry, see, e.g., Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984) (inquiry into market power and market structure necessary to gauge combination under rule-of-reason approach); Arizona v. Maricopa County Medical Soc’y, 457 U.S. 332, 343-44, 102 S.Ct. 2466, 2472-73, 73 L.Ed.2d 48 (1982) (same); the local government’s reasons for adopting the particular restraint; and the end sought to be attained,' see Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1571 (5th Cir.1984) (en banc) (Higginbotham, J., concurring) (adaptation of rule of reason to anticompetitive local governmental conduct requires courts to consider factors not traditionally within rule, including above listed factors). Accordingly, the district court may consider the city’s articulated concern of avoiding nondiscrimination by ensuring that Hertz’s pricing and rental decisions do not burden minorities and the working poor. This places into the economic scale of traditional antitrust analysis noneconomic federal values embodied in the thirteenth and fourteenth amendments as well as in many of the federal statutes. We think consideration of such a federal policy is appropriate within the rule-of-reason analysis as it is applied to a municipality.\nHertz, of course, is entitled on remand to present evidence disputing the validity and strength of the city’s justifications for this anticompetitive regulation. The city’s justifications must be assessed in light of its stated end; this makes relevant Hertz’s explanation for its price increase — specifically, its claim to have experienced exceedingly high liability losses in certain boroughs. The city’s history of negotiating with Hertz concerning what it felt to be an objectionable pricing policy is relevant, as is Hertz’s consideration of less burdensome pricing methods. For example, the court may find relevant the city’s contention that Hertz could recoup its losses by raising each renter’s fee by $3.29 in the New York region.\nIn conclusion, on the antitrust issue, we remand to the district court for further proceedings.\nB. Commerce Clause.\nHertz also contends that Local Law No. 21 impermissibly burdens interstate commerce. See U.S. Const, art. I § 8 cl. 3. The constitution’s affirmative grant to congress of powers over interstate commerce means that states have limited authority to erect barriers against interstate trade, see Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35, 100 S.Ct. 2009, 2014, 64 L.Ed.2d 702 (1980), a limitation that applies equally to municipal legislation. Dean Milk v. City of Madison, 340 U.S. 349, 356, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951). Hertz alleged that the city’s local law violates the commerce clause “to the extent that the Hertz Law effectively forces Hertz to raise its rental rates to residents of other states * Hertz outlines in its complaint and other papers several means by which it might comply with Local Law No. 21 and still avoid being overwhelmed by the increased costs of renting to city residents. The corporation could (1) cease entirely its operations in New York City; (2) raise its rates for out-of-state residents who rent in the New York area; or (3) raise rental rates in other states.\nThe district court rejected this commerce-clause claim. Judge Knapp found that Hertz has the additional option of raising its rates evenly throughout all of New York City, or “finding other ways of dealing with the problem”. These options, said the district court, take the sting out of the alleged injury to interstate commerce.\nTo make out a claim that this regulation impermissibly burdens the commerce clause, Hertz must sufficiently plead that the local law discriminates against interstate commerce either on its face, or in its effect. Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979). Local Law No. 21 does not burden out-of-state customers expressly; it states only that rental-car companies may not “impose fees or charges based on [a] person’s residence.” Since the law does not facially burden interstate commerce, it must be upheld unless the actual burden it “impose[s] on interstate trade [is] ‘clearly excessive in relation to the putative local benefits’”. Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 2447, 91 L.Ed.2d 110 (1986) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970)).\nIn its complaint, Hertz has not sufficiently alleged that Local Law No. 21 has a discriminatory impact on interstate commerce. First, Hertz does not allege that an interstate effect must flow from this intrastate municipal regulation. Second, Hertz does not define what significant burden on interstate commerce is posed by Local Law No. 21. Hertz itself tells us that it can comply with the local law and maintain its profit level in New York City through a range of options, not all of which impact interstate commerce. Thus, Hertz has yet to explain how the city’s car-pricing ordinance compels action that discriminates against interstate commerce.\nOf course, there was little time available in the district court proceedings to fully explore the implications of Hertz’s commerce-clause argument. Only four days elapsed between the filing of the complaint and the district court’s order dismissing the complaint. Since this case must be remanded for the district judge to apply a rule-of-reason analysis to Hertz’s Sherman Act claim, Hertz should have the opportunity, if it so desires, to develop further its contentions with respect to the law’s impact on interstate commerce.\nC. Remaining Claims.\nJudge Knapp also dismissed Hertz’s remaining contentions that Local Law No. 21 violates 42 U.S.C. § 1983 because it (1) is an unconstitutional regulatory taking, (2) imper-missibly impairs existing contracts, and (3) offends principles of substantive due process.\n1. Regulatory Taking\nHertz has failed to state a claim that Local Law No. 21 imposes a regulatory taking in violation of the fourteenth amendment. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815 (1984); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922) (regulation of property which goes too far may amount to taking). Even assuming that takings cases connected with the diminution of real estate values apply in this business setting, the local law does not effect a taking because Hertz and other rental-car companies retain the right to set rates in New York City at any level they desire. See, e.g., Sun Oil Co. v. United States, 215 Ct.Cl. 716, 572 F.2d 786, 818 (1978) (per curiam) (not every deprivation of use, possession, or control is “taking”; character and extent of interference must be examined). Hertz unquestionably retains an “economically viable” use of its property, see, e.g., Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 127, 138 n. 36, 98 S.Ct. 2646, 2660, 2666 n. 36, 57 L.Ed.2d 631 (1978), and finally, the taking cases offered by Hertz relating to the public-utility industry do not apply here. See Duquesne Light Co. v. Barasch, 488 U.S. 299, 306-08, 109 S.Ct. 609, 614-15, 102 L.Ed.2d 646 (1989) (defining constraints posed by takings clause on state-rate regulation of public utility).\n2. Impairment of Contract.\nHertz alleged that application of Local Law No. 21 to car-rental contracts in place before it takes effect would unconstitutionally impair those contracts by forbidding Hertz to collect fees for rental cars that it had already contracted to receive. See U.S. Const, art. I, § 10. The city, however, has removed the Hertz law from any collision with the dictates of the contract clause, having assured us that the law does not apply to these outstanding contracts.\n3 Substantive Due Process.\nEconomic regulation need only be rationally related to a legitimate governmental purpose. New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106-07, 99 S.Ct. 403, 410, 58 L.Ed.2d 361 (1978) (since demise of substantive due process in economic area, due process provides legislative bodies broad scope to experiment with economic problems); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978) (citing Ferguson v. Skrupa, 372 U.S. 726, 730-31, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963)) (searching scrutiny of economic legislation has long been abandoned; “vague contours” of due process clause do not permit courts to sit as super-legislature to weigh wisdom of legislation).\nThe city contends that the Hertz Law will help prevent discriminatory business practices in the rental-car industry, by requiring rental-car companies to refrain from using a renter’s residence in pricing and renting decisions. The city’s rationale is that rental-ear companies must find other means of determining and dealing with the customers who are likely to cause them high Lability expenses; thus, individual customers would enjoy rates more closely related to their own particular risk. Since it is not irrational to conclude that the city’s regulation may cut down on incidents of discrimination in car rentals based on the renter’s residence, the Hertz law passes this substantive due process challenge.\n4. Section 1983.\n42 U.S.C. § 1983 creates civil liability for deprivations of certain federal rights under color of state law. It is a procedural vehicle which permits suit for violations of constitutional and federal statutory provisions. See generally 1 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees (2d ed. 1991). The district court dismissed Hertz’s § 1983 claim because it rejected all of the underlying constitutional and antitrust claims. While we affirm the district court’s dismissal of Hertz’s claims of a regulatory taking, impairment of contracts, and violation of substantive due process, we are remanding for further consideration of its antitrust and commerce-clause claims, and leave it for the district court to determine what role, if any, § 1983 may have on the resolution of those claims.\nCONCLUSION\nReversed and remanded for further proceedings in accordance with this opinion.\n[END_CASE]", "role": "user" } ]
10,508,583	ALLSTATE INSURANCE CO., Plaintiff-Appellee, Cross-Appellant, v. A.A. McNAMARA & SONS, INC., and Arthur McNamara, Defendants-Appellants, Cross-Appellees	Allstate Insurance v. A.A. McNamara & Sons, Inc.	1993-08-03	Nos. 763, 1150, Dockets 92-7851, 92-9223	United States Court of Appeals for the Second Circuit	{"judges": ["Before: MESKILL and PRATT, Circuit Judges, and POLLACK, District Judge."], "parties": ["ALLSTATE INSURANCE CO., Plaintiff-Appellee, Cross-Appellant, v. A.A. McNAMARA & SONS, INC., and Arthur McNamara, Defendants-Appellants, Cross-Appellees."], "opinions": [{"text": "MESKILL, Circuit Judge:\nThis is an appeal and cross-appeal from a declaratory judgment of the United States District Court for the District of Connecticut, Eginton, J., dated June 22, 1992, entered in favor of plaintiff-appellee Allstate Insurance Company (Allstate) and against defendant Robert Priga and defendants-appellants A.A. McNamara & Sons, Inc. and Arthur McNamara on their counterclaims for breach of contract. We affirm on the direct appeal and dismiss the cross-appeal.\nAppellants raise two arguments on appeal. They contend that the district court erred in concluding that, under Connecticut law, Arthur McNamara, the assignee, was precluded from recovering on the assigned insurance claim because he had failed to give notice to Allstate, the obligor, of the assignment before Robert Priga, the assignor, made a material misrepresentation to Allstate. Appellants also contend that the district court erred in concluding that, under Connecticut law, Allstate was not required to show that it was prejudiced by any lack of notice of the assignment.\nAllstate argues that the district court correctly applied Connecticut law in holding that the assignment was subject to all defenses and equities available to Allstate that arose before it received notice of the assignment. Allstate also raises four additional arguments in support of the district court’s holding that McNamara could not recover from Allstate. First, Allstate argues that the agreement between Priga and McNamara transferring Priga’s potential recovery from Allstate fails as an assignment. Second, it contends that McNamara as an assignee of rights under a void contract received nothing from Priga. Next, Allstate argues that McNamara may not recover from it because Priga breached the insurance contract by failing to satisfy specified policy conditions. Finally, Allstate contends that it has superior equities to Pri-ga and McNamara. Although many of these additional contentions appear to have merit, we need not address them because we hold that the district court correctly applied the relevant Connecticut law of assignment.\nAllstate also cross-appeals from the district court’s decision. It argues that there was no evidence to support the district court’s conclusion that Priga assigned his rights to his insurance claim to McNamara on September 21, 1987. Allstate also contends that there was no evidence from which the district court could conclude that Allstate was notified of an assignment from Priga to McNamara on October 2, 1987. Allstate is not aggrieved, however, by the judgment entered after these alleged errors. Consequently, Allstate has no standing to appeal. Therefore, we dismiss the cross-appeal.\nBACKGROUND\nThis appeal arises from an action commenced by Allstate pursuant to 28 U.S.C. § 2201 seeking a declaratory judgment that a property insurance policy (Policy) it issued to Robert Priga was null and void as a result of material misrepresentations made by Priga to Allstate. The Policy was issued on April 10, 1987 and covered a residence owned by Priga and the contents therein. The case was tried to the district court for four days. Judge Eginton made the following findings of fact.\nThe Policy was titled a “Deluxe Homeowners Policy,” and covered losses at replacement value of the property and its contents. The Policy provided that it would be void in the event of any intentional concealment or misrepresentation by Priga of any fact or circumstance material to his claim, before or after the loss. A condition of the Policy was that Priga maintain his residence at the insured property. Allstate customarily issues replacement value policies to cover residential buildings only when the policyholder resides in the building.\nOn September 4, 1987, the property suffered fire damage. On September 22, 1987, Priga gave to an Allstate claims examiner a signed statement that Priga had lived almost exclusively at the property for fifteen years prior to the fire. Priga sold the property to appellant McNamara Inc. on September 21, 1987 and, on that same date, assigned to appellant McNamara the claim for the dwelling fire loss. Priga notified Allstate of the assignment on October 2, 1987 and authorized Allstate to make payment to McNamara Inc. on the dwelling fire loss claim arising from the damaged property. On December 15, 1987 Priga submitted a Proof of Loss to Allstate. Allstate employees examined Priga under oath on January 12, 1988 and Priga again asserted that he had.been living at the property before the fire.\nOn March 14, 1988 Allstate notified Priga that it considered the Policy void as a result of his material misrepresentations and that it would not pay any claims pursuant to it. At trial, Priga admitted that the statements made in his signed statement and repeated earlier under oath were false and that during the six months prior to the fire he had lived almost exclusively with his sister.\nThe district court found that on September 22, 1987 in his signed statement Priga had made material misrepresentations to Allstate concerning his residence prior to the fire. The district court also found that the Proof of Loss submitted by Priga on December 15, 1987 did not reflect the true contents of the property at the time of the fire. The court held that these misrepresentations rendered the Policy null and void. The district court also rejected McNamara’s argument that he should be entitled to recover on the Policy as an assignee and, in equity, as an innocent purchaser. Applying Connecticut law, the court held that McNamara as an assignee of the property insurance claim was subject to the defenses that Allstate could assert against Priga because Allstate did not receive notice of the assignment until October 2, 1987, which was after Priga made a material misrepresentation to Allstate. The court concluded that McNamara took the assignment subject to Allstate’s valid defense of material misrepresentation on the residency issue.\nThe district court entered a declaratory judgment in favor of Allstate and against Priga, McNamara & Sons, Inc. and McNamara on their counterclaims for breach of contract. McNamara & Sons, Inc. and McNamara appeal this judgment.\nDISCUSSION\nAppellants do not challenge the court’s conclusion that Priga misrepresented material facts to Allstate thereby voiding his insurance policy. Rather, they argue that the district court incorrectly interpreted the Connecticut law of assignment. Because we are-unpersuaded by this contention, we need not consider alternative arguments for affir-mance even though they may present other issues that could doom appellants’ case.\nWe review de novo a district judge’s interpretation of the law of the state in which he sits. See Salve Regina College v. Russell, 499 U.S. 225, 231-32, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Leon’s Bakery, Inc. v. Grinnell Corp., 990 F.2d 44, 48 (2d Cir.1993). Because we conclude that Judge Eginton properly interpreted Connecticut assignment law, we affirm the judgment.\nAppellants first argue that the district court was incorrect when it stated that Connecticut law recognizes that an assignment is subject to all defenses and equities available to the obligor that arise before notice is given to the obligor of the assignment. They contend that, under Connecticut law, to preserve his right to recover on Priga’s insurance claim McNamara did not have to give notice of the assignment to Allstate prior to the time Priga made material misrepresentations to Allstate.\nThe district court in reaching its decision relied on Bridgeport-City Trust Co. v. Niles-Bement-Pond Co., 128 Conn. 4, 20 A.2d 91 (1941). In that case, a company, after receiving loans from the plaintiff, assigned to the plaintiff accounts receivable due the company from the defendant-obligor. The Connecticut Supreme Court of Errors clearly stated: “Ordinarily the assignee of a chose in action takes it subject to equities and defenses which could have been set up against it in the hands of the assignor, provided they have arisen before receipt of notice of the assignment.” 128 Conn, at 10, 20 A.2d at 94 (emphasis added). The Bridgeport-City Trust Co. Court then applied this principle, refusing to allow the obligor to assert a setoff claim against the amount claimed by the assignee because the setoff claim had not arisen until after the obligor had received notice of the assignment. The court repeatedly noted the importance of the obli-gor’s receipt of notice of the assignment to the defenses available to the obligor. Id. at 10-11, 20 A.2d at 94-95.\nTo support their assertion that the district court erred in its reliance on Bridgeport-City Trust Co. in interpreting Connecticut law, appellants rely on a passage from American Jurisprudence and a Connecticut case cited therein decided by the Connecticut Supreme Court of Errors before it decided Bridgeport-City Trust Co. We are not persuaded by these authorities that the district court erred.\nThe American Jurisprudence passage to which appellants direct our attention indicates that courts disagree as to the effect of equities and defenses arising after the assignment of a nonnegotiable chose in action but before notice has been given to the debt- or.' See 6 Am.Jur.2d, Assignments § 104 (1993). The passage cites in a footnote, inter alia, Hartford-Connecticut Trust Co. v. Riverside Trust Co., 123 Conn. 616, 197 A. 766 (1938), in support of the proposition that some courts limit the equities or defenses to which an assignee is subject, to those in existence at the time of the assignment.\nIn Hartford-Connecticut Trust Co., the Connecticut Supreme Court of Errors stated: “While not affected by defenses arising after the assignment, normally the assignee of a chose in action takes subject to all equities and defenses which could have been set up against the chose in the hands of the assignor at the time of the assignment.” 123 Conn, at 626-27, 197 A. at 771. Appellants’ reliance on this case to show that the district court erred in concluding that assignee McNamara had to give notice to Allstate prior to the time Priga made material misrepresentations to Allstate is misplaced. Hartford-Connecticut Trust Co. does not address the question of notice at issue in this appeal. Furthermore, this case predates Bridgeport-City Trust Co. by three years. Therefore, even if the holdings of these cases are inconsistent, the district court properly relied on the more recent decision of the Connecticut Supreme Court of Errors. See 1A James W. Moore et al., Moore’s Federal Practice ¶ 0.307[3], at 3072 n. 1 (2d ed. 1993) (collecting cases that hold that where there are inconsistent decisions of a state court, federal courts usually apply the most recent decision).\nAppellants also contend that the district court erred when it concluded that Connecticut law does not require Allstate to show prejudice from any lack of notice. Appellants rely on two decisions by the Connecticut Supreme Court of Errors, Ciezynski v. New Britain Transp. Co., 121 Conn. 36, 182 A. 661 (1936), and Travelers Ins. Co. v. Mayo, 103 Conn. 341, 130 A. 379 (1925), for the proposition that the Connecticut court requires a showing of prejudice to an obligor from lack of notice of an assignment before it will defeat the claim of an assignee. Again, we find this argument unpersuasive because these decisions were issued prior to Bridgeport-City Trust Co. and in that opinion no requirement of prejudice was mentioned in the clear statement of the relevant state law.\nThe two decisions appellants cite are also factually distinguishable from the case at hand. The Ciezynski Court addressed the competing claims to a judgment obtained by the assignor of an attaching creditor of the assignor and an assignee when the creditor levied a garnishment on the judgment before the debtor received notice of the assignment. In Travelers Ins. Co., the court addressed the competing claims to the proceeds of a life insurance policy of an attaching creditor of an insured and the assignee of the insured’s right to payment on the policy when no notice of the assignment had been given to the debtor insurance company. Neither Travelers Insurance Co. nor Ciezynski discussed the potential defenses an obligor can assert against an assignee. However, appellants argue that because the Bridgeport-City Trust Co. Court cited each of these decisions with approval directly following the passage relied on by the district court, see 128 Conn, at 10, 20 A.2d at 94, we should ignore the unambiguous language of Bridgeport-City Trust Co. and instead read these earlier cases as creating a rule that an obligor must show he was prejudiced by lack of notice of an assignment before an assignee’s claim will be defeated. Appellants also argue that the Bridgeport-City Trust Co. case should be limited to its facts. We are not persuaded by either argument.\nAppellants’ attempts to circumvent the clear language in Bridgeport-City Trust Co. are to no avail. We are unwilling to second-guess a clear statement of state law by the Connecticut Supreme Court of Errors. Therefore, we conclude that the district court properly chose to follow the most recent statement of the relevant law by that court. Because we disagree with the arguments appellants make in their appeal, we need not consider the other four reasons urged by Allstate as appellee in support of affirmance.\nAllstate also cross-appeals the district court’s judgment arguing that there was no evidence to support the district court’s findings with regard to the date of Priga’s assignment of his rights to his insurance claim to McNamara and with regard to the date that Allstate was notified of the assignment. In its brief, Allstate states that we need only reach the arguments it raises on cross-appeal if we disagree with the five other grounds it urges for affirmance. Allstate assumes too much.\nWe previously have stated that “[i]n order to have standing to appeal, a party must be aggrieved by the judicial action from which it appeals.” Great American Audio Corp. v. Metacom, Inc., 938 F.2d 16, 19 (2d Cir.1991) (per curiam). In its complaint, Allstate sought a declaratory judgment determining that the Policy was null and void and that Allstate had no further obligations to appellants or Priga pursuant to the Policy. The district court entered a declaratory judgment in Allstate’s favor pursuant to the court’s decision that the Policy was null and void. Allstate is not urging that we alter the judgment in any way, but rather that we alter the reasons underlying it. See Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1426 n. 7 (10th Cir.1993). While Allstate “is entitled to urge that we affirm the district court’s decision on any basis submitted to that court and supported by the record, including the basis that the court should have made findings favorable to it,” Great American Audio Corp., 938 F.2d at 19, it is not aggrieved by the district court’s judgment and therefore is not entitled to cross-appeal. Therefore, we dismiss Allstate’s cross-appeal for lack of jurisdiction. See id.\nBecause we affirm the district court’s decision for the reasons stated above, we need not address whether we could properly consider the seemingly meritorious arguments Allstate raises in its cross-appeal as additional grounds for affirmance.\nCONCLUSION\nThe district court did not err when it concluded that, under Connecticut law, to recover on Priga’s policy McNamara had to give notice to Místate of the assignment pri- or to the time Priga made a material misrepresentation to Allstate and that Allstate did not have to show it was prejudiced by any lack of notice of the assignment. Therefore, we affirm the judgment of the district court.\nBecause Allstate was not aggrieved by the district court’s judgment, we dismiss its cross-appeal for lack of appellate jurisdiction.\nThe parties shall bear their own costs.\n. We note that our reliance on Bridgeport-City Trust Co. is strengthened because its statement of the law of assignment is in accord with the rule articulated in section 336(2) of the Restatement (Second) of Contracts. Section 336(2) states that \"[t]he right of an assignee is subject to any defense or claim of the obligor which accrues before the obligor receives notification of the assignment, but not to defenses or claims which accrue thereafter except as stated in this Section or as provided by statute.” Restatement (Second) of Contracts § 336(2) (1981).", "type": "majority", "author": "MESKILL, Circuit Judge:"}], "attorneys": ["Peter A. Treffers, New Haven, CT, for appellants.", "Daniel F. Sullivan, Hartford, CT (John E. Tener, Charles D. Gill, Robinson & Cole, Hartford, CT, of counsel), for appellees."], "corrections": "", "head_matter": "ALLSTATE INSURANCE CO., Plaintiff-Appellee, Cross-Appellant, v. A.A. McNAMARA & SONS, INC., and Arthur McNamara, Defendants-Appellants, Cross-Appellees.\nNos. 763, 1150, Dockets 92-7851, 92-9223.\nUnited States Court of Appeals, Second Circuit.\nArgued March 22, 1993.\nDecided Aug. 3, 1993.\nPeter A. Treffers, New Haven, CT, for appellants.\nDaniel F. Sullivan, Hartford, CT (John E. Tener, Charles D. Gill, Robinson & Cole, Hartford, CT, of counsel), for appellees.\nBefore: MESKILL and PRATT, Circuit Judges, and POLLACK, District Judge.\nHonorable Milton Pollack, United States District Judge for the Southern District of New York, sitting by designation.\n. Priga had claimed that the following items, among others, had been destroyed: two air conditioning units, a stereo, a microwave oven, wall-to-wall carpeting, a color television, a clothes dryer, approximately seventy pairs of pants, seventeen leather jackets and twenty pairs of athletic sneakers. The district court found that \"many, if not all, of the items claimed in Priga’s Proof of Loss ... were not on the property at the time of the fire.”"}	MESKILL	PRATT	POLLACK	1	1	1	0	0	0	1 F.3d 133	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: ALLSTATE INSURANCE CO., Plaintiff-Appellee, Cross-Appellant, v. A.A. McNAMARA & SONS, INC., and Arthur McNamara, Defendants-Appellants, Cross-Appellees\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-08-03\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nMESKILL, Circuit Judge:\nThis is an appeal and cross-appeal from a declaratory judgment of the United States District Court for the District of Connecticut, Eginton, J., dated June 22, 1992, entered in favor of plaintiff-appellee Allstate Insurance Company (Allstate) and against defendant Robert Priga and defendants-appellants A.A. McNamara & Sons, Inc. and Arthur McNamara on their counterclaims for breach of contract. We affirm on the direct appeal and dismiss the cross-appeal.\nAppellants raise two arguments on appeal. They contend that the district court erred in concluding that, under Connecticut law, Arthur McNamara, the assignee, was precluded from recovering on the assigned insurance claim because he had failed to give notice to Allstate, the obligor, of the assignment before Robert Priga, the assignor, made a material misrepresentation to Allstate. Appellants also contend that the district court erred in concluding that, under Connecticut law, Allstate was not required to show that it was prejudiced by any lack of notice of the assignment.\nAllstate argues that the district court correctly applied Connecticut law in holding that the assignment was subject to all defenses and equities available to Allstate that arose before it received notice of the assignment. Allstate also raises four additional arguments in support of the district court’s holding that McNamara could not recover from Allstate. First, Allstate argues that the agreement between Priga and McNamara transferring Priga’s potential recovery from Allstate fails as an assignment. Second, it contends that McNamara as an assignee of rights under a void contract received nothing from Priga. Next, Allstate argues that McNamara may not recover from it because Priga breached the insurance contract by failing to satisfy specified policy conditions. Finally, Allstate contends that it has superior equities to Pri-ga and McNamara. Although many of these additional contentions appear to have merit, we need not address them because we hold that the district court correctly applied the relevant Connecticut law of assignment.\nAllstate also cross-appeals from the district court’s decision. It argues that there was no evidence to support the district court’s conclusion that Priga assigned his rights to his insurance claim to McNamara on September 21, 1987. Allstate also contends that there was no evidence from which the district court could conclude that Allstate was notified of an assignment from Priga to McNamara on October 2, 1987. Allstate is not aggrieved, however, by the judgment entered after these alleged errors. Consequently, Allstate has no standing to appeal. Therefore, we dismiss the cross-appeal.\nBACKGROUND\nThis appeal arises from an action commenced by Allstate pursuant to 28 U.S.C. § 2201 seeking a declaratory judgment that a property insurance policy (Policy) it issued to Robert Priga was null and void as a result of material misrepresentations made by Priga to Allstate. The Policy was issued on April 10, 1987 and covered a residence owned by Priga and the contents therein. The case was tried to the district court for four days. Judge Eginton made the following findings of fact.\nThe Policy was titled a “Deluxe Homeowners Policy,” and covered losses at replacement value of the property and its contents. The Policy provided that it would be void in the event of any intentional concealment or misrepresentation by Priga of any fact or circumstance material to his claim, before or after the loss. A condition of the Policy was that Priga maintain his residence at the insured property. Allstate customarily issues replacement value policies to cover residential buildings only when the policyholder resides in the building.\nOn September 4, 1987, the property suffered fire damage. On September 22, 1987, Priga gave to an Allstate claims examiner a signed statement that Priga had lived almost exclusively at the property for fifteen years prior to the fire. Priga sold the property to appellant McNamara Inc. on September 21, 1987 and, on that same date, assigned to appellant McNamara the claim for the dwelling fire loss. Priga notified Allstate of the assignment on October 2, 1987 and authorized Allstate to make payment to McNamara Inc. on the dwelling fire loss claim arising from the damaged property. On December 15, 1987 Priga submitted a Proof of Loss to Allstate. Allstate employees examined Priga under oath on January 12, 1988 and Priga again asserted that he had.been living at the property before the fire.\nOn March 14, 1988 Allstate notified Priga that it considered the Policy void as a result of his material misrepresentations and that it would not pay any claims pursuant to it. At trial, Priga admitted that the statements made in his signed statement and repeated earlier under oath were false and that during the six months prior to the fire he had lived almost exclusively with his sister.\nThe district court found that on September 22, 1987 in his signed statement Priga had made material misrepresentations to Allstate concerning his residence prior to the fire. The district court also found that the Proof of Loss submitted by Priga on December 15, 1987 did not reflect the true contents of the property at the time of the fire. The court held that these misrepresentations rendered the Policy null and void. The district court also rejected McNamara’s argument that he should be entitled to recover on the Policy as an assignee and, in equity, as an innocent purchaser. Applying Connecticut law, the court held that McNamara as an assignee of the property insurance claim was subject to the defenses that Allstate could assert against Priga because Allstate did not receive notice of the assignment until October 2, 1987, which was after Priga made a material misrepresentation to Allstate. The court concluded that McNamara took the assignment subject to Allstate’s valid defense of material misrepresentation on the residency issue.\nThe district court entered a declaratory judgment in favor of Allstate and against Priga, McNamara & Sons, Inc. and McNamara on their counterclaims for breach of contract. McNamara & Sons, Inc. and McNamara appeal this judgment.\nDISCUSSION\nAppellants do not challenge the court’s conclusion that Priga misrepresented material facts to Allstate thereby voiding his insurance policy. Rather, they argue that the district court incorrectly interpreted the Connecticut law of assignment. Because we are-unpersuaded by this contention, we need not consider alternative arguments for affir-mance even though they may present other issues that could doom appellants’ case.\nWe review de novo a district judge’s interpretation of the law of the state in which he sits. See Salve Regina College v. Russell, 499 U.S. 225, 231-32, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Leon’s Bakery, Inc. v. Grinnell Corp., 990 F.2d 44, 48 (2d Cir.1993). Because we conclude that Judge Eginton properly interpreted Connecticut assignment law, we affirm the judgment.\nAppellants first argue that the district court was incorrect when it stated that Connecticut law recognizes that an assignment is subject to all defenses and equities available to the obligor that arise before notice is given to the obligor of the assignment. They contend that, under Connecticut law, to preserve his right to recover on Priga’s insurance claim McNamara did not have to give notice of the assignment to Allstate prior to the time Priga made material misrepresentations to Allstate.\nThe district court in reaching its decision relied on Bridgeport-City Trust Co. v. Niles-Bement-Pond Co., 128 Conn. 4, 20 A.2d 91 (1941). In that case, a company, after receiving loans from the plaintiff, assigned to the plaintiff accounts receivable due the company from the defendant-obligor. The Connecticut Supreme Court of Errors clearly stated: “Ordinarily the assignee of a chose in action takes it subject to equities and defenses which could have been set up against it in the hands of the assignor, provided they have arisen before receipt of notice of the assignment.” 128 Conn, at 10, 20 A.2d at 94 (emphasis added). The Bridgeport-City Trust Co. Court then applied this principle, refusing to allow the obligor to assert a setoff claim against the amount claimed by the assignee because the setoff claim had not arisen until after the obligor had received notice of the assignment. The court repeatedly noted the importance of the obli-gor’s receipt of notice of the assignment to the defenses available to the obligor. Id. at 10-11, 20 A.2d at 94-95.\nTo support their assertion that the district court erred in its reliance on Bridgeport-City Trust Co. in interpreting Connecticut law, appellants rely on a passage from American Jurisprudence and a Connecticut case cited therein decided by the Connecticut Supreme Court of Errors before it decided Bridgeport-City Trust Co. We are not persuaded by these authorities that the district court erred.\nThe American Jurisprudence passage to which appellants direct our attention indicates that courts disagree as to the effect of equities and defenses arising after the assignment of a nonnegotiable chose in action but before notice has been given to the debt- or.' See 6 Am.Jur.2d, Assignments § 104 (1993). The passage cites in a footnote, inter alia, Hartford-Connecticut Trust Co. v. Riverside Trust Co., 123 Conn. 616, 197 A. 766 (1938), in support of the proposition that some courts limit the equities or defenses to which an assignee is subject, to those in existence at the time of the assignment.\nIn Hartford-Connecticut Trust Co., the Connecticut Supreme Court of Errors stated: “While not affected by defenses arising after the assignment, normally the assignee of a chose in action takes subject to all equities and defenses which could have been set up against the chose in the hands of the assignor at the time of the assignment.” 123 Conn, at 626-27, 197 A. at 771. Appellants’ reliance on this case to show that the district court erred in concluding that assignee McNamara had to give notice to Allstate prior to the time Priga made material misrepresentations to Allstate is misplaced. Hartford-Connecticut Trust Co. does not address the question of notice at issue in this appeal. Furthermore, this case predates Bridgeport-City Trust Co. by three years. Therefore, even if the holdings of these cases are inconsistent, the district court properly relied on the more recent decision of the Connecticut Supreme Court of Errors. See 1A James W. Moore et al., Moore’s Federal Practice ¶ 0.307[3], at 3072 n. 1 (2d ed. 1993) (collecting cases that hold that where there are inconsistent decisions of a state court, federal courts usually apply the most recent decision).\nAppellants also contend that the district court erred when it concluded that Connecticut law does not require Allstate to show prejudice from any lack of notice. Appellants rely on two decisions by the Connecticut Supreme Court of Errors, Ciezynski v. New Britain Transp. Co., 121 Conn. 36, 182 A. 661 (1936), and Travelers Ins. Co. v. Mayo, 103 Conn. 341, 130 A. 379 (1925), for the proposition that the Connecticut court requires a showing of prejudice to an obligor from lack of notice of an assignment before it will defeat the claim of an assignee. Again, we find this argument unpersuasive because these decisions were issued prior to Bridgeport-City Trust Co. and in that opinion no requirement of prejudice was mentioned in the clear statement of the relevant state law.\nThe two decisions appellants cite are also factually distinguishable from the case at hand. The Ciezynski Court addressed the competing claims to a judgment obtained by the assignor of an attaching creditor of the assignor and an assignee when the creditor levied a garnishment on the judgment before the debtor received notice of the assignment. In Travelers Ins. Co., the court addressed the competing claims to the proceeds of a life insurance policy of an attaching creditor of an insured and the assignee of the insured’s right to payment on the policy when no notice of the assignment had been given to the debtor insurance company. Neither Travelers Insurance Co. nor Ciezynski discussed the potential defenses an obligor can assert against an assignee. However, appellants argue that because the Bridgeport-City Trust Co. Court cited each of these decisions with approval directly following the passage relied on by the district court, see 128 Conn, at 10, 20 A.2d at 94, we should ignore the unambiguous language of Bridgeport-City Trust Co. and instead read these earlier cases as creating a rule that an obligor must show he was prejudiced by lack of notice of an assignment before an assignee’s claim will be defeated. Appellants also argue that the Bridgeport-City Trust Co. case should be limited to its facts. We are not persuaded by either argument.\nAppellants’ attempts to circumvent the clear language in Bridgeport-City Trust Co. are to no avail. We are unwilling to second-guess a clear statement of state law by the Connecticut Supreme Court of Errors. Therefore, we conclude that the district court properly chose to follow the most recent statement of the relevant law by that court. Because we disagree with the arguments appellants make in their appeal, we need not consider the other four reasons urged by Allstate as appellee in support of affirmance.\nAllstate also cross-appeals the district court’s judgment arguing that there was no evidence to support the district court’s findings with regard to the date of Priga’s assignment of his rights to his insurance claim to McNamara and with regard to the date that Allstate was notified of the assignment. In its brief, Allstate states that we need only reach the arguments it raises on cross-appeal if we disagree with the five other grounds it urges for affirmance. Allstate assumes too much.\nWe previously have stated that “[i]n order to have standing to appeal, a party must be aggrieved by the judicial action from which it appeals.” Great American Audio Corp. v. Metacom, Inc., 938 F.2d 16, 19 (2d Cir.1991) (per curiam). In its complaint, Allstate sought a declaratory judgment determining that the Policy was null and void and that Allstate had no further obligations to appellants or Priga pursuant to the Policy. The district court entered a declaratory judgment in Allstate’s favor pursuant to the court’s decision that the Policy was null and void. Allstate is not urging that we alter the judgment in any way, but rather that we alter the reasons underlying it. See Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1426 n. 7 (10th Cir.1993). While Allstate “is entitled to urge that we affirm the district court’s decision on any basis submitted to that court and supported by the record, including the basis that the court should have made findings favorable to it,” Great American Audio Corp., 938 F.2d at 19, it is not aggrieved by the district court’s judgment and therefore is not entitled to cross-appeal. Therefore, we dismiss Allstate’s cross-appeal for lack of jurisdiction. See id.\nBecause we affirm the district court’s decision for the reasons stated above, we need not address whether we could properly consider the seemingly meritorious arguments Allstate raises in its cross-appeal as additional grounds for affirmance.\nCONCLUSION\nThe district court did not err when it concluded that, under Connecticut law, to recover on Priga’s policy McNamara had to give notice to Místate of the assignment pri- or to the time Priga made a material misrepresentation to Allstate and that Allstate did not have to show it was prejudiced by any lack of notice of the assignment. Therefore, we affirm the judgment of the district court.\nBecause Allstate was not aggrieved by the district court’s judgment, we dismiss its cross-appeal for lack of appellate jurisdiction.\nThe parties shall bear their own costs.\n. We note that our reliance on Bridgeport-City Trust Co. is strengthened because its statement of the law of assignment is in accord with the rule articulated in section 336(2) of the Restatement (Second) of Contracts. Section 336(2) states that \"[t]he right of an assignee is subject to any defense or claim of the obligor which accrues before the obligor receives notification of the assignment, but not to defenses or claims which accrue thereafter except as stated in this Section or as provided by statute.” Restatement (Second) of Contracts § 336(2) (1981).\n[END_CASE]", "role": "user" } ]
10,508,643	MAY DEPARTMENT STORES COMPANY, doing business as Venture Stores, Plaintiff-Appellant, v. INTERNATIONAL LEASING CORP., INC., and Arnold Frumin, Defendants-Third-Party-Plaintiffs-Appellees, Willing Group, Inc., and Louis Goldstein, Third-Party-Defendants	May Department Stores Co. v. International Leasing Corp.	1993-08-03	No. 1630, Docket No. 93-7106	United States Court of Appeals for the Second Circuit	{"judges": ["Before: KEARSE, MINER and ALTIMARI, Circuit Judges."], "parties": ["MAY DEPARTMENT STORES COMPANY, doing business as Venture Stores, Plaintiff-Appellant, v. INTERNATIONAL LEASING CORP., INC., and Arnold Frumin, Defendants-Third-Party-Plaintiffs-Appellees, Willing Group, Inc., and Louis Goldstein, Third-Party-Defendants."], "opinions": [{"text": "MINER, Circuit Judge:\nPlaintiff-appellant May Department Stores Company (“May”) brought this diversity action in June of 1988, in the United States District Court for the Southern District of New York (Haight, J.), against defendant-third-party-plaintiff-appellee International Leasing Corp., Inc. (“ILC”) for breach of contract and against defendant-third-party-plaintiff-appellee Arnold Frumin for fraud. The gravamen of May’s complaint was that ILC delivered less than the quantity of “Fruit of the Loom” men’s underwear specified in a sales contract it entered into with May and that Frumin (ILC’s vice president) had misrepresented to May that ILC could provide the quantity of underwear required by May in order to induce May to enter into the sales contract.\nAfter discovery had been completed, both parties moved for summary judgment. In their motion for summary judgment, the defendants raised for the first time the affirmative defense of accord and satisfaction. In a Memorandum Opinion and Order dated December 28, 1992, the district court dismissed May’s complaint and directed the entry of summary judgment for the defendants. The district court found that a settlement agreement sent by ILC to May was an accord and that May’s unconditional negotiation of a check accompanying the settlement agreement was a satisfaction of the accord that served to extinguish any liability on the original sales contract. For the reasons set forth below, we hold that ILC failed to satisfy the elements of an accord and satisfaction and remand the ease to the district court to determine what effect, if any, the settlement agreement had on the defendants’ liability under the original sales contract.\nBACKGROUND\nIn April of 1987, ILC entered into a sales contract to provide May with Fruit of the Loom men’s underwear. Acting in accordance with the custom and usage of the underwear trade, May ordered the underwear in packages of three (“three-packs”): 6624 dozen three-packs of men’s briefs; 3312 dozen three-packs of men’s crew neck T-shirts; and 3312 dozen three-packs of men’s V-neck T-shirts. The total contract price was $462,620.16. ILC, through an intermediary, purchased the underwear from third-party-defendants The Willing Group, Inc. and Louis Goldstein (collectively, “Willing”), which had acquired the underwear from Thomas Hoar, Inc., a distributor for Fruit of the Loom.\nThe underwear was delivered in two shipments during the first week of May 1987. Apparently, May’s purchase order was misconstrued by someone in the distribution chain as a request for individual pieces of underwear rather than for three-packs of underwear. Consequently, May received only one-third of the quantity of underwear it ordered.\nThe parties disagree as to when May notified ILC of its dissatisfaction with ILC’s performance and as to what assurances, if any, Frumin gave to May. May claimed that it immediately telephoned ILC to complain about the shortage and that Frumin assured May that the missing underwear would be shipped. Frumin denies making any assurances, and ILC claims that on May 19, May gave ILC notice that May had inspected the underwear shipment and found it to be satisfactory. On May 22, May authorized its bank to pay ILC the purchase price in full, pursuant to a letter of credit. ILC further claims that May did not orally notify ILC of the shortage until May 26 and did not provide written notification until July 2, 1987.\nIn an attempt to resolve the dispute without conceding liability, ILC drafted a settlement proposal and sent it (unsigned) to May in early August of 1987. Upon receiving ILC’s settlement proposal, May made several revisions, signed it and returned it to ILC on August 5. On August 14, ILC prepared a new settlement proposal (the “Settlement Agreement”) that adopted all but one of May’s proposed revisions, signed it and returned it to May, together with a check for $135,000.\nThe Settlement Agreement and check were accompanied by a cover letter, whiph stated: “Enclosed please find my check for $135,000 dollars [sic] as well as the signed agreement concerning Fruit of the Loom.” The Settlement Agreement contained the following preface: “Without in any way addressing the issue of anyone’s liability or fault but rather for the sole purpose of arriving at a mutually satisfactory resolution of our outstanding difference_” The Settlement Agreement provided that ILC immediately tender a cheek in the amount of $135,-000 to May; that ILC tender a check to May in the amount of $35,000 within sixty days, on the condition that ILC first could obtain $35,000 from Willing; that the outstanding balance would be repaid through ILC’s sale of discounted merchandise to May in future business transactions between the two parties; that, if after two years the outstanding balance remained unpaid, ILC would issue a check to May for twenty-five percent of the unpaid balance; and that May was not obligated to buy any discounted merchandise from ILC but was only required to consider, in good faith, offers made by ILC.\nAfter receiving the Settlement Agreement and the $135,000 check, May unconditionally negotiated the check but never signed the Settlement Agreement. ILC never recovered any money from Willing and therefore never issued a second check to May for $35,000 as provided in the agreement. There is no evidence that the two parties have transacted any business since May negotiated the check, although ILC submitted evidence that it made offers to sell certain products to May at a discount.\nIn its complaint, May alleges that ILC breached the contract of sale by failing to deliver the quantity of underwear specified in the contract and that Frumin committed fraud by knowingly misrepresenting ILC’s ability to provide the quantity of underwear requested in order to induce May to enter into the contract. In its answer, ILC raised three affirmative defenses: (1) that May failed to state a cause of action; (2) that the contract of sale was unenforceable because it failed adequately to specify the quantity of underwear; and (3) that May had failed timely to notify ILC of a defect in performance.\nOn January 6, 1992, ILC moved for summary judgment and, for the first time, raised the affirmative defense that the Settlement Agreement was an accord and that May’s unconditional negotiation of the $135,000 check was a satisfaction of the accord and therefore extinguished any liability arising out of the original sales contract. On January 23, 1992, May responded to ILC’s summary judgment motion, arguing that ILC had failed to prove the elements of an accord and satisfaction. On January 5, 1993, the district court entered judgment for ILC, finding that, as a matter of New York law, the Settlement Agreement was an accord that was satisfied by May’s unconditional negotiation of the check. This appeal followed.\nDISCUSSION\n1. Breach of Contract\n' “On appeal of a grant of summary judgment, we determine de novo whether there is a genuine issue of material fact and whether the moving party properly was entitled to judgment as a matter of law.” Healy v. Rich Prods. Corp., 981 F.2d 68, 72 (2d Cir.1992). The district court granted summary judgment for ILC on May’s breach of contract claim upon a finding that the Settlement Agreement was an accord that was satisfied by May’s unconditional negotiation of the check accompanying the agreement. According to the law of New York:\nAn agreement of one party to give, and another party to accept, in settlement of an existing or matured claim, a sum or performance other than that to which he believes himself entitled, is an accord. The execution of the agreement is a satisfaction. Although an accord, by itself, has no effect, an accord and satisfaction bars the assertion of the original claim.\n19 N.Y.Jur.2d Compromise, Accord, and Release § 1, at 296 (1982); see Ber v. Johnson, 163 A.D.2d 817, 558 N.Y.S.2d 350, 351 (App. Div. 4th Dep’t 1990) (mem.). Here, May’s unconditional negotiation of the check did not meet the requirements of a satisfaction because the performance specified in the Settlement Agreement was conditioned upon the occurrence of several future events. For example, ILC has not yet performed its promise to pay twenty-five percent of the outstanding contract balance remaining after making good faith efforts to work down the balance through the sale of discounted merchandise to May. Accordingly, the district court erred in granting summary judgment for ILC on May’s breach of contract claim.\nOn remand, the district court must determine what effect, if any, the Settlement Agreement had on the parties’ liabilities in regard to the original sales contract. For example, the Settlement Agreement might be considered an executory accord: “ ‘an agreement that an existing claim will be discharged in the future by the rendition of a substituted performance.’” National Am. Corp. v. Federal Republic of Nigeria, 448 F.Supp. 622, 643 (S.D.N.Y.1978) (quoting 6 Arthur L. Corbin, Corbin on Contracts § 1269, at 75 (1962) (emphasis added in National American)), aff'd, 597 F.2d 314 (2d Cir.1979); see American Bank & Trust Co. v. Koplik, 87 A.D.2d 351, 451 N.Y.S.2d 426, 428 (App.Div. 1st Dep’t 1982), appeal withdrawn, 58 N.Y.2d 1115 (1983); see also N.Y.Gen. Oblig.Law § 15-501(1) (McKinney 1989). The Settlement Agreement also could be construed as a novation: an agreement for an existing obligation to be extinguished immediately by the acceptance of a new promise. See National Am., 448 F.Supp. at 643; American Bank & Trust, 451 N.Y.S.2d at 428. Finally, the Settlement Agreement may have no effect at all on the parties’ liabilities under the original sales contract because it is no agreement at all. The ultimate determination will be based on the intentions of the parties' — a determination that is best made by the fact finder. See National Am., 448 F.Supp. at 643. In view of the foregoing, we do not determine whether ILC’s failure to plead accord and satisfaction as an affirmative defense, see Fed.R.Civ.P. 8(c), was waived when May addressed the defense on the merits in opposing summary judgment. See Dresser Indus., Inc. v. Pyrrhus AG, 936 F.2d 921, 928 (7th Cir.1991).\n2. Fraud\nThe elements of a fraud claim under New York law are “a material, false representation, an intent to defraud thereby, and reasonable reliance on the representation, causing damage to the plaintiff.” Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970-71 (2d Cir.1987). In dismissing May’s fraud claim, the district court determined that there were material factual disputes concerning all of these elements except the element requiring a causal connection between Frumin’s alleged misrepresentation and the economic damage suffered by May. After finding that the existence of an accord and satisfaction discharged ILC from all liability arising from the original underwear contract, the district court held, as a matter of law, that May could not prove damages. Because we are reversing the district court’s finding that an accord and satisfaction existed, May’s fraud claim is revived and can be pursued on remand.\nCONCLUSION\nThe judgment of the district court is reversed and the ease is remanded for further proceedings consistent with the foregoing.", "type": "majority", "author": "MINER, Circuit Judge:"}], "attorneys": ["Warren S. Landau, Smithtown, NY (David M. Ardam, Spada, Ardam, & Ershowsky, P.C., Smithtown, NY, of counsel), for plaintiff-appellant.", "William J. Coury, Brooklyn, NY (Samuel L. Hagan, Hagan, Poch & Coury, of counsel), for defendants-third-party-plaintiffs-appel-lees."], "corrections": "", "head_matter": "MAY DEPARTMENT STORES COMPANY, doing business as Venture Stores, Plaintiff-Appellant, v. INTERNATIONAL LEASING CORP., INC., and Arnold Frumin, Defendants-Third-Party-Plaintiffs-Appellees, Willing Group, Inc., and Louis Goldstein, Third-Party-Defendants.\nNo. 1630, Docket No. 93-7106.\nUnited States Court of Appeals, Second Circuit.\nArgued June 17, 1993.\nDecided Aug. 3, 1993.\nWarren S. Landau, Smithtown, NY (David M. Ardam, Spada, Ardam, & Ershowsky, P.C., Smithtown, NY, of counsel), for plaintiff-appellant.\nWilliam J. Coury, Brooklyn, NY (Samuel L. Hagan, Hagan, Poch & Coury, of counsel), for defendants-third-party-plaintiffs-appel-lees.\nBefore: KEARSE, MINER and ALTIMARI, Circuit Judges."}	KEARSE	MINER	ALTIMARI	1	1	1	0	0	0	1 F.3d 138	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: MAY DEPARTMENT STORES COMPANY, doing business as Venture Stores, Plaintiff-Appellant, v. INTERNATIONAL LEASING CORP., INC., and Arnold Frumin, Defendants-Third-Party-Plaintiffs-Appellees, Willing Group, Inc., and Louis Goldstein, Third-Party-Defendants\nCourt: United States Court of Appeals for the Second Circuit\nDate decided: 1993-08-03\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nMINER, Circuit Judge:\nPlaintiff-appellant May Department Stores Company (“May”) brought this diversity action in June of 1988, in the United States District Court for the Southern District of New York (Haight, J.), against defendant-third-party-plaintiff-appellee International Leasing Corp., Inc. (“ILC”) for breach of contract and against defendant-third-party-plaintiff-appellee Arnold Frumin for fraud. The gravamen of May’s complaint was that ILC delivered less than the quantity of “Fruit of the Loom” men’s underwear specified in a sales contract it entered into with May and that Frumin (ILC’s vice president) had misrepresented to May that ILC could provide the quantity of underwear required by May in order to induce May to enter into the sales contract.\nAfter discovery had been completed, both parties moved for summary judgment. In their motion for summary judgment, the defendants raised for the first time the affirmative defense of accord and satisfaction. In a Memorandum Opinion and Order dated December 28, 1992, the district court dismissed May’s complaint and directed the entry of summary judgment for the defendants. The district court found that a settlement agreement sent by ILC to May was an accord and that May’s unconditional negotiation of a check accompanying the settlement agreement was a satisfaction of the accord that served to extinguish any liability on the original sales contract. For the reasons set forth below, we hold that ILC failed to satisfy the elements of an accord and satisfaction and remand the ease to the district court to determine what effect, if any, the settlement agreement had on the defendants’ liability under the original sales contract.\nBACKGROUND\nIn April of 1987, ILC entered into a sales contract to provide May with Fruit of the Loom men’s underwear. Acting in accordance with the custom and usage of the underwear trade, May ordered the underwear in packages of three (“three-packs”): 6624 dozen three-packs of men’s briefs; 3312 dozen three-packs of men’s crew neck T-shirts; and 3312 dozen three-packs of men’s V-neck T-shirts. The total contract price was $462,620.16. ILC, through an intermediary, purchased the underwear from third-party-defendants The Willing Group, Inc. and Louis Goldstein (collectively, “Willing”), which had acquired the underwear from Thomas Hoar, Inc., a distributor for Fruit of the Loom.\nThe underwear was delivered in two shipments during the first week of May 1987. Apparently, May’s purchase order was misconstrued by someone in the distribution chain as a request for individual pieces of underwear rather than for three-packs of underwear. Consequently, May received only one-third of the quantity of underwear it ordered.\nThe parties disagree as to when May notified ILC of its dissatisfaction with ILC’s performance and as to what assurances, if any, Frumin gave to May. May claimed that it immediately telephoned ILC to complain about the shortage and that Frumin assured May that the missing underwear would be shipped. Frumin denies making any assurances, and ILC claims that on May 19, May gave ILC notice that May had inspected the underwear shipment and found it to be satisfactory. On May 22, May authorized its bank to pay ILC the purchase price in full, pursuant to a letter of credit. ILC further claims that May did not orally notify ILC of the shortage until May 26 and did not provide written notification until July 2, 1987.\nIn an attempt to resolve the dispute without conceding liability, ILC drafted a settlement proposal and sent it (unsigned) to May in early August of 1987. Upon receiving ILC’s settlement proposal, May made several revisions, signed it and returned it to ILC on August 5. On August 14, ILC prepared a new settlement proposal (the “Settlement Agreement”) that adopted all but one of May’s proposed revisions, signed it and returned it to May, together with a check for $135,000.\nThe Settlement Agreement and check were accompanied by a cover letter, whiph stated: “Enclosed please find my check for $135,000 dollars [sic] as well as the signed agreement concerning Fruit of the Loom.” The Settlement Agreement contained the following preface: “Without in any way addressing the issue of anyone’s liability or fault but rather for the sole purpose of arriving at a mutually satisfactory resolution of our outstanding difference_” The Settlement Agreement provided that ILC immediately tender a cheek in the amount of $135,-000 to May; that ILC tender a check to May in the amount of $35,000 within sixty days, on the condition that ILC first could obtain $35,000 from Willing; that the outstanding balance would be repaid through ILC’s sale of discounted merchandise to May in future business transactions between the two parties; that, if after two years the outstanding balance remained unpaid, ILC would issue a check to May for twenty-five percent of the unpaid balance; and that May was not obligated to buy any discounted merchandise from ILC but was only required to consider, in good faith, offers made by ILC.\nAfter receiving the Settlement Agreement and the $135,000 check, May unconditionally negotiated the check but never signed the Settlement Agreement. ILC never recovered any money from Willing and therefore never issued a second check to May for $35,000 as provided in the agreement. There is no evidence that the two parties have transacted any business since May negotiated the check, although ILC submitted evidence that it made offers to sell certain products to May at a discount.\nIn its complaint, May alleges that ILC breached the contract of sale by failing to deliver the quantity of underwear specified in the contract and that Frumin committed fraud by knowingly misrepresenting ILC’s ability to provide the quantity of underwear requested in order to induce May to enter into the contract. In its answer, ILC raised three affirmative defenses: (1) that May failed to state a cause of action; (2) that the contract of sale was unenforceable because it failed adequately to specify the quantity of underwear; and (3) that May had failed timely to notify ILC of a defect in performance.\nOn January 6, 1992, ILC moved for summary judgment and, for the first time, raised the affirmative defense that the Settlement Agreement was an accord and that May’s unconditional negotiation of the $135,000 check was a satisfaction of the accord and therefore extinguished any liability arising out of the original sales contract. On January 23, 1992, May responded to ILC’s summary judgment motion, arguing that ILC had failed to prove the elements of an accord and satisfaction. On January 5, 1993, the district court entered judgment for ILC, finding that, as a matter of New York law, the Settlement Agreement was an accord that was satisfied by May’s unconditional negotiation of the check. This appeal followed.\nDISCUSSION\n1. Breach of Contract\n' “On appeal of a grant of summary judgment, we determine de novo whether there is a genuine issue of material fact and whether the moving party properly was entitled to judgment as a matter of law.” Healy v. Rich Prods. Corp., 981 F.2d 68, 72 (2d Cir.1992). The district court granted summary judgment for ILC on May’s breach of contract claim upon a finding that the Settlement Agreement was an accord that was satisfied by May’s unconditional negotiation of the check accompanying the agreement. According to the law of New York:\nAn agreement of one party to give, and another party to accept, in settlement of an existing or matured claim, a sum or performance other than that to which he believes himself entitled, is an accord. The execution of the agreement is a satisfaction. Although an accord, by itself, has no effect, an accord and satisfaction bars the assertion of the original claim.\n19 N.Y.Jur.2d Compromise, Accord, and Release § 1, at 296 (1982); see Ber v. Johnson, 163 A.D.2d 817, 558 N.Y.S.2d 350, 351 (App. Div. 4th Dep’t 1990) (mem.). Here, May’s unconditional negotiation of the check did not meet the requirements of a satisfaction because the performance specified in the Settlement Agreement was conditioned upon the occurrence of several future events. For example, ILC has not yet performed its promise to pay twenty-five percent of the outstanding contract balance remaining after making good faith efforts to work down the balance through the sale of discounted merchandise to May. Accordingly, the district court erred in granting summary judgment for ILC on May’s breach of contract claim.\nOn remand, the district court must determine what effect, if any, the Settlement Agreement had on the parties’ liabilities in regard to the original sales contract. For example, the Settlement Agreement might be considered an executory accord: “ ‘an agreement that an existing claim will be discharged in the future by the rendition of a substituted performance.’” National Am. Corp. v. Federal Republic of Nigeria, 448 F.Supp. 622, 643 (S.D.N.Y.1978) (quoting 6 Arthur L. Corbin, Corbin on Contracts § 1269, at 75 (1962) (emphasis added in National American)), aff'd, 597 F.2d 314 (2d Cir.1979); see American Bank & Trust Co. v. Koplik, 87 A.D.2d 351, 451 N.Y.S.2d 426, 428 (App.Div. 1st Dep’t 1982), appeal withdrawn, 58 N.Y.2d 1115 (1983); see also N.Y.Gen. Oblig.Law § 15-501(1) (McKinney 1989). The Settlement Agreement also could be construed as a novation: an agreement for an existing obligation to be extinguished immediately by the acceptance of a new promise. See National Am., 448 F.Supp. at 643; American Bank & Trust, 451 N.Y.S.2d at 428. Finally, the Settlement Agreement may have no effect at all on the parties’ liabilities under the original sales contract because it is no agreement at all. The ultimate determination will be based on the intentions of the parties' — a determination that is best made by the fact finder. See National Am., 448 F.Supp. at 643. In view of the foregoing, we do not determine whether ILC’s failure to plead accord and satisfaction as an affirmative defense, see Fed.R.Civ.P. 8(c), was waived when May addressed the defense on the merits in opposing summary judgment. See Dresser Indus., Inc. v. Pyrrhus AG, 936 F.2d 921, 928 (7th Cir.1991).\n2. Fraud\nThe elements of a fraud claim under New York law are “a material, false representation, an intent to defraud thereby, and reasonable reliance on the representation, causing damage to the plaintiff.” Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970-71 (2d Cir.1987). In dismissing May’s fraud claim, the district court determined that there were material factual disputes concerning all of these elements except the element requiring a causal connection between Frumin’s alleged misrepresentation and the economic damage suffered by May. After finding that the existence of an accord and satisfaction discharged ILC from all liability arising from the original underwear contract, the district court held, as a matter of law, that May could not prove damages. Because we are reversing the district court’s finding that an accord and satisfaction existed, May’s fraud claim is revived and can be pursued on remand.\nCONCLUSION\nThe judgment of the district court is reversed and the ease is remanded for further proceedings consistent with the foregoing.\n[END_CASE]", "role": "user" } ]
10,508,724	Rayya ABDALLAH; David Abdallah, as next of kin of Baby Boy Abdallah, and on their own personal behalf, Appellants, v. Wilbur CALLENDER, M.D.; Government of the Virgin Islands	Abdallah v. Callender	1993-06-07	No. 92-7275	United States Court of Appeals for the Third Circuit	{"judges": ["Before: GREENBERG, SCIRICA, and GARTH, Circuit Judges."], "parties": ["Rayya ABDALLAH; David Abdallah, as next of kin of Baby Boy Abdallah, and on their own personal behalf, Appellants, v. Wilbur CALLENDER, M.D.; Government of the Virgin Islands."], "opinions": [{"text": "OPINION OF THE COURT\nGREENBERG, Circuit Judge.\nI.\nBACKGROUND\nRayya and David Abdallah appeal from a May 15, 1992 order of the district court granting summary judgment to the defendants, Dr. Wilbur Callender and the Government of the Virgin Islands. The Abdallahs had filed a five-count complaint seeking damages for physical and emotional injuries relating to the stillbirth of their son in January 1987. The district court did not grant the summary judgment on the ground that the Abdallahs could not establish that there had been malpractice. Indeed, the defendants did not move for summary judgment on that basis. Rather, the court held that all the counts were barred for jurisdictional and procedural reasons or were derivative of counts so barred. We will vacate the district court’s order in part and will remand the matter for further proceedings.\nA. Factual Background\nMrs. Abdallah, who was almost 37 years old and was pregnant in January 1987, previously had given birth to five children, two by Cesarean section. She desired a vaginal delivery and phoned Dr. Callender to see if this were possible. Dr. Callender said that it was and, after meeting with the Abdallahs, scheduled Mrs. Abdallah for a vaginal delivery. Mrs. Abdallah’s expected delivery date was January 22, 1987.\nIn the evening of January 19, 1987, Mrs. Abdallah was admitted to the St. Thomas Community Hospital because she was having contractions. This hospital is owned and operated by the Government of the Virgin Islands. At 11:35 p.m. on January 20th, Mrs. Abdallah went into labor. Dr. Callender was called at midnight and arrived about 90 minutes later. After Mrs. Abdallah had been in labor for about four hours, Dr. Callender performed a low-segment C-section and a bilateral tubal ligation and transection.\nThe Abdallahs’ baby boy was stillborn. Mrs. Abdallah’s uterine wall had torn near a previous scar, and a large amount of blood had gone into her lower abdominal cavity. Mrs. Abdallah suffered from a morbid postoperative course secondary to anemia, but otherwise recovered well. The Abdallahs contend that the bilateral tubal ligation and transection, though properly done, was performed without Mrs. Abdallah’s informed consent. As a result of this procedure Mrs. Abdallah is sterile.\nB. Procedural Background\nThe Abdallahs filed their five-count complaint on July 15, 1988, in the district court. Count I alleged that Dr. Callender negligently caused Mrs. Abdallah to suffer a ruptured uterus and her son to be stillborn, which in turn caused both parents to suffer severe emotional and mental distress. Count II asserted that Dr. Callender performed a bilateral tubal ligation and transection on Mrs. Abdallah without her informed consent. This count alleged that as a result of Dr. Callender’s “negligence and/or assault and battery” Mrs. Abdallah is now sterile. Count III alleged that the Government of the Virgin Islands, as the owner and operator of the St. Thomas Community Hospital, negligently caused the stillbirth and caused both parents to suffer severe emotional and mental distress. Count IV asserted a wrongful death claim by reason of the stillbirth of the baby boy. Count V was a claim by Mr. Abdallah for loss of consortium based on injuries to his wife.\nVirgin Islands law establishes certain pro-, cedural prerequisites before tort actions may be brought against the Government of the Virgin Islands and before medical malpractice actions may be brought against health care providers. Under the Virgin Islands Tort Claims Act a plaintiff, prior to bringing a tort action against the Government, must file a claim or a written notice of intention to file a claim within 90 days after the accrual of the cause of action. A claimant filing a notice of intention must file the claim itself within two years of its actual accrual. V.I.Code Ann. tit. 33, § 3409 (Supp.1990). While the Abdallahs did file a timely notice of claim on March 25, 1987, the record does not reveal whether they filed a later claim.\nUnder the Virgin Islands Health Care Providers Malpractice Act as a prerequisite to bringing a medical malpractice action against any health care provider, including the Government of the Virgin Islands, a plaintiff first must file a proposed complaint with the Medical Malpractice Action Review Committee. V.I.Code Ann. tit. 27, § 166i(b) (Supp.1990). To meet this requirement, the.Abdallahs filed a proposed complaint with the Review Committee on December 17, 1987. However, the proposed complaint, unlike the complaint they later filed in the district court, did- not include the assault and battery claim.-\nOn October 8, 1991, the defendants filed a motion for partial summary judgment raising three points of law which they thought should be resolved before trial:\n1) whether the Abdallahs’ action brought as Counts I, II, and V is barred as a result of not being included in the notice of claim pursuant to the Tort Claims Act, V.I.Code Ann. tit. 33, § 3409;\n2) whether the Abdallahs’ cause of action brought in Count II is barred by the failure to include the same in the proposed complaint as mandated by the Malpractice Act, V.I.Code Ann. tit. 27, § 166i(b); and\n3) whether the defendants are liable to the Abdallahs, assuming they can prevail, for any amounts in excess of $75,000 in view of the limitation expounded in the Malpractice Act, V.I.Code Ann. tit. 27, § 166b(c).\nAt a hearing on the motion on February 19, 1992, the defendants’ counsel raised the additional contention that Count IV, the wrongful death claim, should be dismissed because it had not been brought by the baby’s personal representative as required by V.I.Code Ann. tit. 5, § 76(d) (Supp.1990). In response, counsel for the Abdallahs withdrew Count IV, which the district court then dismissed without prejudice.\nOn May 15,1992, the district court entered a four-page order granting the defendants summary judgment on the entire complaint. The court first noted that the Abdallahs’ wrongful death claim had been withdrawn. It then concluded that Count II, which charged that Dr. Callender performed the bilateral tubal ligation and transection without Mrs. Abdallah’s informed consent, was barred jurisdictionally because the Abdallahs had not included this count in their proposed complaint filed with the Review Committee. Finally, the court dismissed the Abdallahs’ other claims, believing them to be derivative of the battery claim in Count II and the wrongful death claim in Count IV.\nII.\nDISCUSSION\nThe Abdallahs seek to have the order of May 15, 1992, reversed only insofar as it granted summary judgment on Counts I, II, III, and V. Inasmuch as they do not ask us to reinstate Count IV, which they withdrew in the district court, we do not address this claim on the merits. We also do not discuss the third issue raised in the defendants’ motion for summary judgment, relating to the possible limitation on damages, as the district court never reached this issue and neither party has raised it on appeal. Our review of the district court’s grant of summary judgment is plenary.\nA. The Battery Claim — Count II\nAs we have indicated, in Count II of their complaint the Abdallahs allege that Dr. Callender committed a battery by performing a bilateral tubal ligation and transection on Mrs. Abdallah without her informed consent. Yet, the Abdallahs concede that they did not include this count in their proposed complaint-submitted to the Review Committee pursuant to V.I.Code Ann. tit. 27, § 166L Therefore, as the district court correctly held, it did not have jurisdiction to hear this claim.\nSection 166i(b) states in relevant part: No. action against a health care provider may be commenced in court before the claimant’s proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section....\nClearly, Dr. Callender is a “health care provider” as defined by the statute. See V.I.Code Ann. tit. 27, § 166(c). Thus, the only real question raised by the appeal on this issue is whether the Malpractice Act requires the submission of all proposed tort actions against a health care provider acting in that capacity or whether it only applies to professional negligence actions.\nThe district court did not directly address this issue. Rather, it held the battery count barred, on the authority of cases establishing that a claim not listed in a proposed complaint submitted to the Review Committee is barred jurisdictionally. For example, in Berry v. Curreri, 837 F.2d 623 (3d Cir.1988), the plaintiffs filed a proposed complaint with the Review Committee which did not include any reference to a misdiagnosis or negligent performance of the surgery but asserted only that there had been negligent postoperative treatment. Nevertheless, when the plaintiffs filed their complaint in the district court, they included claims for both misdiagnosis and negligent performance of the surgery. The district court ultimately submitted these claims to the jury, which found in the plaintiffs’ favor. On appeal we held that the court should not have allowed these claims to go to the jury; therefore, we reversed and ordered a new trial. Id. at 626. We stated that section 166i(b), both by its express terms and in keeping with the legislative purpose, requires that medical malpractice claims not submitted to the Review Committee be barred on jurisdictional grounds. Id.; see also Wiltshire by Wiltshire v. Government of Virgin Islands, 893 F.2d 629, 636-37 (3d Cir. 1990) (holding that parents’ loss of service claim based on neurological impairment not maintainable because not included in proposed complaint); Philip v. Government of Virgin Islands, 21 V.I. 3, 6 (D.V.I.1984) (dismissing negligence claims that were not in proposed complaint given to Review Committee); Quinones v. Charles Harwood Memorial Hosp., 573 F.Supp. 1101, 1103-04 (D.V.I. 1983) (dismissing negligence claims because no proposed complaint submitted); Espinosa v. Government of Virgin Islands, 20 V.I, 78, 83 (Terr.Ct.1983) (same).\nThe Abdallahs argue that these cases are not on point because they dealt with unlisted or unsubmitted conventional malpractice claims rather than claims for battery. At first glance, it might seem that the Abdallahs are correct and that the Malpractice Act does not apply to actions for common law battery. See Black’s Law Dictionary 959 (6th ed. 1990) (“In medical malpractice litigation, negligence is the predominant theory of liability.”). However, upon closer inspection, it is clear that the Abdallahs are wrong.\nAs they concede, the Malpractice Act covers all malpractice actions. V.I.Code Ann. tit. 27, § 166i(a). Critically, the Malpractice Act does not limit malpractice to professional negligence. Rather, it defines malpractice as “any tort or breach of contract based on health care or professional services rendered, or which should have been rendered by a health care provider, to a patient.” V.I.Code Ann. tit. 27, § 166(f) (emphasis added). By using the phrase “any tort or breach of contract based on health care or professional services rendered,” the legislature expressed its intent to cover all actions relating to the provision of medical care. A plain reading of the statute, therefore, requires that we affirm the order of the district court insofar as it granted the defendants summary judgment on Count II.\nAlternatively, the Abdallahs argue that even assuming a battery claim falls within the Review Committee submission requirements of the Malpractice Act, their failure to submit the claim should not bar it because the Review Committee does not serve a germane purpose when a plaintiff alleges a health care provider committed a battery. We have stated that the Malpractice Act, by providing for an expert medical opinion, “is designed to eliminate claims lacking merit and encourage prompt settlement of meritorious claims.” Berry, 837 F.2d at 626. According to the Abdallahs, this legislative purpose does not apply in this case, as experts cannot render an opinion on the consent issue. Thus, they urge that their failure to comply with the Review Committee submission requirement with respect to the battery claim does not bar that claim. But cf. Davis v. Omitowoju, 883 F.2d 1155 (3d Cir: 1989) (in medical malpractice action, patient submitted claim to Review Committee in which she alleged doctor performed operation without her informed consent and Review Committee found that no malpractice had occurred). Whatever the logic of this argument, the fact remains that the statute does not create, such an exception as it does not distinguish among tort actions. Accordingly, the district court correctly concluded that Count II should be dismissed for lack of subject matter jurisdiction.\nB.' The Remaining Claims — Counts I, III, and V\nIn their initial memorandum in support of their motion for summary judgment, the defendants did not request that, judgment be entered in their favor on all counts as they limited their argument to the three specific issues we paraphrased above. But as we have indicated, at oral argument on their motion the defendants challenged Count IV on the procedural grounds that a wrongful death action could be brought only by the baby’s personal representative. Then, in their supplemental memorandum filed after the hearing on the motion, they expanded their argument to contend that if Counts II and IV were dismissed, the court should dismiss at least a portion of the remaining claims as derivative of those two counts. In particular, they argued that Count I, which charged Dr. Callender with malpractice, could not be maintained because wrongful delivery “by itself does not establish a cause of action which merits any legal remedy.” They urged that the result of the allegedly wrongful delivery was a wrongful death and the Abdallahs have surrendered that claim. Seemingly, the defendants could have made the same argument as to Count III, which charged the Government with malpractice, but they did not. Instead, they argued that Count III should be dismissed because the notice of claim did not satisfy the requirements of the Tort Claims Act. V.I.Code Ann. tit. 33, § 3410.\nWe address these arguments separately. First, we discuss whether Counts I and III are simply derivative claims that rise and fall with Counts II and IV. We find that they are not. Then, we consider whether Count III is jurisdictionally barred because the Ab-dallahs did not comply with the notice provisions of the Tort Claims Act. We will remand this issue for consideration by the district court. Finally, we conclude that Count V, Mr. Abdallah’s loss of consortium claim, should be reinstated because it is derivative to Counts I and III.\n1. Independence of Counts I and III\nWhile the defendants contended in their supplemental brief in support of their motion for summary judgment that the Abdallahs have no cause of action absent their wrongful death claim, they cited no case law to support this argument. On-appeal, the defendants have ignored this point. Instead, they inexplicably have defended the summary judgment on the wrongful death action even though the Abdallahs do not seek a reversal of that summary judgment. We consider only the matters which the Abdallahs actually have raised.\nClearly it cannot reasonably be argued that Count I in all respects must be related to the wrongful death claim, for the Abdal-lahs charged in that count that Dr. Callen-der’s malpractice caused Mrs. Abdallah to suffer a ruptured uterus. We can perceive of no reason why this claim cannot be pursued without regard for the stillbirth. Thus, we must vacate at least partially the summary judgment on Count I.\nThe more difficult issue relates to the Abdallahs’ claims in Counts I and III for severe mental and emotional distress by reason of the stillbirth. While we have not found any Virgin Islands cases discussing whether a woman has an independent action against her doctor for malpractice resulting in the stillbirth of her child, eases from other jurisdictions clearly support the existence of such an action. • In some jurisdictions a mother can maintain a malpractice action for the stillbirth of her child even though she has not suffered an independent physical injury. In Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988), for example, the New Jersey Supreme Court stated:\nMedical malpractice causing a stillbirth results in infliction of a direct injury to the mother as well as to her unborn child. Even without any permanent physical harm, the mother suffers severe and genuine injuries in the form of emotional distress and mental anguish occasioned by her baby’s stillbirth. This suffering is experienced, also, by the father of the infant. Id. 545 A.2d at 140.\nThus, the court suggested, “Parents under such facts would be entitled to claim compensatory damages based on their emotional distress and mental anguish proximately caused by the negligent conduct of their doctor that results in the stillbirth of their baby.” Id. at 143. Accord Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992) (noting that mother could recover for her emotional distress by reason of physical injuries to fetus caused by negligence during delivery, even absent physical injury of mother); Dunn v. Rose Way, Inc., 333 N.W.2d 830, 832-33 (Iowa 1983) (noting right of recovery in parents for damages done to unborn fetus under Iowa law); Modaber v. Kelley, 232 Va. 60, 348 S.E.2d 233, 236-37 (1986) (noting right of mother to recover for injury to unborn child in womb and for emotional distress caused by death of fetus that was still part of her). The New Jersey Supreme Court recently affirmed this principle in Carey v. Lovett, 132 N.J. 44, 622 A.2d 1279 (1993), holding that parents may recover for severe emotional distress suffered for medical malpractice resulting in the premature birth and death of their baby, without attempting to prove that they suffered physical injuries. The Carey court relied heavily on Giardina. But see id. (Handler, J., concurring) (stating that court ignored holding in Giardina by requiring parents to prove severe emotional distress).\nNevertheless, other jurisdictions apparently require the mother to suffer physical injury before allowing her to recover for the severe emotional distress arising from her fetus’s death. For example, in Coughlin v. George Washington University Health Plan, Inc., 565 A.2d 67 (D.C.1989), the District of Columbia Court of Appeals held that a pregnant woman has an action for malpractice against her doctor where the miscarriage resulted in her physical injury. Id. at 70-71 (citing cases from New York and North Carolina). The court noted that the mere fact that the doctor also may owe a duty of care to the baby does not extinguish the duty of care owed to the mother. ' See also Brown v. Green, 767 F.Supp. 273, 275 (D.D.C.) (following Coughlin’to find a cause of action on behalf of mother irrespective of cause of action in baby), order vacated on reconsideration, 781 F.Supp. 36 (D.D.C.1991); accord Prado v. Catholic Medical Center of Brooklyn & Queens, Inc., 145 A.D.2d 614, 536 N.Y.S.2d 474; 475 (1988) (noting that in New York, mother cannot recover for stillbirth absent physical injuries extending beyond normal pain and suffering associated with childbirth).\nWe, however, at least at this time, need not choose between the two .lines of cases because Mrs. Abdallah suffered from a ruptured uterus, a direct physical injury beyond the normal pain associated with childbirth. Therefore, we believe that in most jurisdictions Mrs. Abdallah would be able to recover for the severe emotional distress that she suffered due to the stillbirth of her child. Because the common law as generally understood and applied in the United States applies in the Virgin Islands absent a statute or Restatement rule to the contrary, .see V.I.Code Ann. tit. 1, § 4 (1967), Mrs. Abdal-lah has stated an independent basis for relief in Counts I and III. Accordingly, the district court erred in granting the defendants summary judgment on Counts I and III as they exist independently of Counts II or IV.\nWe also must consider Mr. Abdallah’s claims in Counts I and III for his own severe emotional and mental distress. The cases quite naturally tend to focus on the severe emotional and mental distress to a mother suffering a stillbirth. Nevertheless we conclude that a father should have his own claim if he experiences that distress, provided he stands in an intimate family relationship to the mother and the fetus, contemporaneously observes the malpractice and the effect on the mother, and is- shocked by the results. See Carey v. Lovett, 622 A.2d at 1290.\n2. The Virgin Islands Tort Claims Act.\nThe defendants argued in their supplemental memorandum on their motion for summary judgment, that Count III should be dismissed because the Abdallahs did not comply with the requirements of the Tort Claims Act in V.I.Code Ann. tit. 33, §§ 3409, 3410. The defendants did not ask for that ruling in their initial memorandum, although they did state that Counts I, II, and V should be dismissed for this reason. The district court did not rule on this argument; rather, it dismissed Counts I, III, and V as being derivative of Counts II and IV.\nSection 3410 states in relevant part:\nThe claim shall state the time when and the place where such claim arose, the nature of same, and items of damage or injuries claimed to have been sustained and the total sum claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated.\nA review of the Abdallahs’ notice of claim reveals that it met all the requirements of section 3410, at least for a notice of intention to file a claim. Their notice of claim recites the time and place of the incident as well as that their claim stemmed from the stillbirth of their child. It further lists the damage and injuries suffered, and the minimum amount claimed. This information satisfies the requirements of section 3410 for a written notice of intention to file a claim, for it provides “enough information to enable the government to make an investigation in order to determine if the claims should be settled without suit.” McBean v. Government of Virgin Islands, 19 V.I. 383, 388 (Terr.Ct.1983). However, we express no opinion as to whether the information was sufficient to satisfy section 3410’s requirements for a claim. Inasmuch as the district court did not rule on the defendants’ argument under the Tort Claims Act, we will remand the case so that this argument may be considered by that court in the first instance on a full record.\n3. Mr. Abdallah’s Loss of Consortium— Count V.\nLastly, we address Mr. Abdallah’s loss of consortium claim. The district court granted the defendants’ summary judgment on this claim because it regarded it as derivative of Counts II and IV, on which it had granted summary judgment to the defendants. But as we have rejected the district court’s holding that Counts I and III are derivative of Counts II and IV, Count V must be reinstated as well. We note, however, that to the extent that Mr. Abdallah seeks to recover for loss of consortium for the results of the battery, his claim remains barred. Instead, he may recover derivatively only through Counts I and III which allege injuries to his wife.\nIII.\nCONCLUSION\nFor the reasons stated above, we will vacate the district court’s order with respect to Counts I, III, and V of the Abdallahs’ complaint but will affirm the district court’s order on Count II. The action will be remanded to the district court for further proceedings consistent with this opinion, in particular including the necessary determination of the validity of the notice under the Tort Claims Act. The parties will bear their own costs on this appeal.\n.We have set forth the facts that find support in the record. Obviously, some may be in dispute. For example, Dr. Callender contends that the Abdallahs only mentioned one prior C-section.\n. Dr. Callender also disputes the consent issue.\n. The Abdallahs obtained a medical opinion that the defendants deviated from good and accepted medical practice, which caused the uterus to rupture and resulted in the stillbirth. However, inasmuch as the district court granted summary judgment for jurisdictional and procedural reasons, we are not concerned with the merits of the Abdallahs’ claims on this appeal.\n. This dismissal without prejudice does not create a finality problem. In using the term \"without prejudice,” the district court intended only to indicate that the personal representatives of the stillborn child's estate were not precluded from later bringing a wrongful death action. Therefore, as to the Abdallahs, who are the only plaintiffs in this case, the court's decision was final. Moreover, given that the two-year statute of limitations has run on the wrongful death claim, see Hatchette v. West Indian Co., 17 V.I. 549, 550 (D.V.I.1980), no plaintiff can bring that action successfully. Thus, there is no risk of piecemeal appeals. See Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.1991); Green v. Humphrey Elevator & Truck Co., 816 F.2d 877, 878 n. 4 (3d Cir.1987).\n. The district court had jurisdiction under 48 U.S.C. § 1612. See Brow v. Family, 994 F.2d 1027, 1033-34 (3d Cir.1993). We have jurisdiction under 28 U.S.C. § 1291.\n. In a similar case, the Indiana Court of Appeals held that a mere allegation of battery was not enough to remove a patient's complaint from the purview of Indiana’s Medical Malpractice Act. See Boruff v. Jesseph, 576 N.E.2d 1297 (Ind.Ct.App.1991). But the Boruff case is distinguishable in that the majority characterized the operation without informed consent in that case as negligence. Id. at 1299; see also id. at 1299-1300 (Barteau, J., concurring in part, dissenting in part) (noting that battery, operation without consent, falls outside Medical Malpractice Act).\n. The Abdallahs cite several cases from other jurisdictions to establish that an unconscnted-to operation constitutes battery. See, e.g., Kelton v. District of Columbia, 413 A.2d 919, 922-23 (D.C. 1980). However, these cases are not material to the issue before us inasmuch as an action for battery is based in tort. Therefore, because Count II is based in tort and is related to health care services rendered, the statute required its submission to the Review Committee prior to the initiation of suit.\n. In view of the defendants' failure to raise this point in the district court, we would be justified in declining to consider whether Count III is derivative of Counts II and IV. Nevertheless, we will consider the issue on the merits, as our disposition of this issue as to Count I inevitably decides the question as to Count III.\n. Count I is not subject to the same argument because it was brought only against Dr. Callen-der acting in his private capacity, and not against the Government of the Virgin Islands. See Sa-ludes v. Ramos, 744 F.2d 992, 993 n. 2 (3d Cir.1984). Indeed, we are at a loss in these circumstances to understand why in their motion for summary judgment the defendants sought a determination of whether Counts I and II were barred by the Tort Claims Act, as they were asserted only against Dr. Callender.\n.The Abdallahs do suggest that the wrongful death claim should have survived the defendants’ motion for summary judgment, but they nevertheless do not seek relief on that count.\n. In Giardina the issue was whether the New Jersey Wrongful Death Act permitted recovery by reason of the wrongful death of an infant before birth. Id., 545 A.2d at 139. However, before holding that it did not, the New Jersey Supreme Court in a comprehensive discussion concluded that the parents could bring a malpractice action against the doctor. In view of the procedural posture of the case that discussion may have been dicta.\n. We point out that we are proceeding on the assumption with respect to the claims of both Abdallahs that they will be able to establish that\n(1) Mrs. Abdallah suffered a ruptured uterus and\n(2) this injury was attributable to malpractice. If at trial they do not establish both of these matters, the district court will have to decide whether Counts I and III nevertheless are viable to the extent that they seek recoveries for severe mental and emotional distress by reason of the stillbirth.\n. We reemphasize as set forth in footnote 12 that we only are determining that Mr. Abdallah's claim is viable on the assumption that Mrs. Ab-dallah suffered a ruptured uterus attributable to malpractice. If not, then the district court will have to make the determination as to whether he has a claim as we have already set forth in footnote 12.\n. Actually the district court's order is not entirely clear as the court seems to have been somewhat confused about what was alleged in each count. We have predicated our opinion on our construction of the order.\n. In particular, the notice of claim filed by the Abdallahs does not mention any physical injuries suffered by Mrs. Abdallah. Thus, Count III might be barred if under Virgin Islands law a mother had to suffer physical injuries before the parents could recover for the emotional injuries associated with the stillbirth of their child. We do not decide this question because of its hypothetical nature. The determination on this issue would be identical to that which the district court will make with respect to the claim for damages for severe emotional and mental distress if the Abdallahs are unable to establish that she suffered a ruptured uterus attributable to malpractice as we discuss in footnote 12, supra. This is because the viability vel non of a claim for severe emotional and mental distress is the same whether it stands alone because the plaintiffs are barred from demonstrating for procedural reasons that the mother suffered physical injuries attributable to the malpractice, or because she simply did not suffer the injuries. We also point out that the serving of the civil complaint following the service of the notice of claim may have satisfied the section 3409 requirement, thus obviating the need to assess whether the notice of claim was sufficient in itself. See Albert v. Abramson's Enters., Inc., 790 F.2d 380, 383 (3d Cir.1986). This possibility may be considered on remand.\n. Of course, the loss of consortium claim as related to Count III will be barred under the Tort Claims Act if Mrs. Abdallah’s direct claim on the count is barred under that Act. We also reiterate that Mr. Abdallah has asserted his own claim for severe mental and emotional distress in Counts I and III, and that the Abdallahs have alleged that there was a direct physical injury inflicted on Mrs. Abdallah only in count I. Obviously Mr. Abdallah should not be permitted a double recovery, i.e., a recoveiy for the same injury from severe mental and emotional distress directly and through a claim of loss of consortium.", "type": "majority", "author": "GREENBERG, Circuit Judge."}], "attorneys": [".Richard H. Hunter (argued), Hunter, Coli-anni, Cole & Turner, St. Croix, USVI, Mark L. Milligan, St. Croix, USVI, for appellants.", "Judith A. Conte (argued), Wilfredo Geigel, St. Croix, USVI, for appellees."], "corrections": "", "head_matter": "Rayya ABDALLAH; David Abdallah, as next of kin of Baby Boy Abdallah, and on their own personal behalf, Appellants, v. Wilbur CALLENDER, M.D.; Government of the Virgin Islands.\nNo. 92-7275.\nUnited States Court of Appeals, Third Circuit.\nArgued April 27, 1993.\nDecided June 7, 1993.\n.Richard H. Hunter (argued), Hunter, Coli-anni, Cole & Turner, St. Croix, USVI, Mark L. Milligan, St. Croix, USVI, for appellants.\nJudith A. Conte (argued), Wilfredo Geigel, St. Croix, USVI, for appellees.\nBefore: GREENBERG, SCIRICA, and GARTH, Circuit Judges."}	GREENBERG	SCIRICA	GARTH	1	1	1	0	0	0	1 F.3d 141	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Rayya ABDALLAH; David Abdallah, as next of kin of Baby Boy Abdallah, and on their own personal behalf, Appellants, v. Wilbur CALLENDER, M.D.; Government of the Virgin Islands\nCourt: United States Court of Appeals for the Third Circuit\nDate decided: 1993-06-07\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION OF THE COURT\nGREENBERG, Circuit Judge.\nI.\nBACKGROUND\nRayya and David Abdallah appeal from a May 15, 1992 order of the district court granting summary judgment to the defendants, Dr. Wilbur Callender and the Government of the Virgin Islands. The Abdallahs had filed a five-count complaint seeking damages for physical and emotional injuries relating to the stillbirth of their son in January 1987. The district court did not grant the summary judgment on the ground that the Abdallahs could not establish that there had been malpractice. Indeed, the defendants did not move for summary judgment on that basis. Rather, the court held that all the counts were barred for jurisdictional and procedural reasons or were derivative of counts so barred. We will vacate the district court’s order in part and will remand the matter for further proceedings.\nA. Factual Background\nMrs. Abdallah, who was almost 37 years old and was pregnant in January 1987, previously had given birth to five children, two by Cesarean section. She desired a vaginal delivery and phoned Dr. Callender to see if this were possible. Dr. Callender said that it was and, after meeting with the Abdallahs, scheduled Mrs. Abdallah for a vaginal delivery. Mrs. Abdallah’s expected delivery date was January 22, 1987.\nIn the evening of January 19, 1987, Mrs. Abdallah was admitted to the St. Thomas Community Hospital because she was having contractions. This hospital is owned and operated by the Government of the Virgin Islands. At 11:35 p.m. on January 20th, Mrs. Abdallah went into labor. Dr. Callender was called at midnight and arrived about 90 minutes later. After Mrs. Abdallah had been in labor for about four hours, Dr. Callender performed a low-segment C-section and a bilateral tubal ligation and transection.\nThe Abdallahs’ baby boy was stillborn. Mrs. Abdallah’s uterine wall had torn near a previous scar, and a large amount of blood had gone into her lower abdominal cavity. Mrs. Abdallah suffered from a morbid postoperative course secondary to anemia, but otherwise recovered well. The Abdallahs contend that the bilateral tubal ligation and transection, though properly done, was performed without Mrs. Abdallah’s informed consent. As a result of this procedure Mrs. Abdallah is sterile.\nB. Procedural Background\nThe Abdallahs filed their five-count complaint on July 15, 1988, in the district court. Count I alleged that Dr. Callender negligently caused Mrs. Abdallah to suffer a ruptured uterus and her son to be stillborn, which in turn caused both parents to suffer severe emotional and mental distress. Count II asserted that Dr. Callender performed a bilateral tubal ligation and transection on Mrs. Abdallah without her informed consent. This count alleged that as a result of Dr. Callender’s “negligence and/or assault and battery” Mrs. Abdallah is now sterile. Count III alleged that the Government of the Virgin Islands, as the owner and operator of the St. Thomas Community Hospital, negligently caused the stillbirth and caused both parents to suffer severe emotional and mental distress. Count IV asserted a wrongful death claim by reason of the stillbirth of the baby boy. Count V was a claim by Mr. Abdallah for loss of consortium based on injuries to his wife.\nVirgin Islands law establishes certain pro-, cedural prerequisites before tort actions may be brought against the Government of the Virgin Islands and before medical malpractice actions may be brought against health care providers. Under the Virgin Islands Tort Claims Act a plaintiff, prior to bringing a tort action against the Government, must file a claim or a written notice of intention to file a claim within 90 days after the accrual of the cause of action. A claimant filing a notice of intention must file the claim itself within two years of its actual accrual. V.I.Code Ann. tit. 33, § 3409 (Supp.1990). While the Abdallahs did file a timely notice of claim on March 25, 1987, the record does not reveal whether they filed a later claim.\nUnder the Virgin Islands Health Care Providers Malpractice Act as a prerequisite to bringing a medical malpractice action against any health care provider, including the Government of the Virgin Islands, a plaintiff first must file a proposed complaint with the Medical Malpractice Action Review Committee. V.I.Code Ann. tit. 27, § 166i(b) (Supp.1990). To meet this requirement, the.Abdallahs filed a proposed complaint with the Review Committee on December 17, 1987. However, the proposed complaint, unlike the complaint they later filed in the district court, did- not include the assault and battery claim.-\nOn October 8, 1991, the defendants filed a motion for partial summary judgment raising three points of law which they thought should be resolved before trial:\n1) whether the Abdallahs’ action brought as Counts I, II, and V is barred as a result of not being included in the notice of claim pursuant to the Tort Claims Act, V.I.Code Ann. tit. 33, § 3409;\n2) whether the Abdallahs’ cause of action brought in Count II is barred by the failure to include the same in the proposed complaint as mandated by the Malpractice Act, V.I.Code Ann. tit. 27, § 166i(b); and\n3) whether the defendants are liable to the Abdallahs, assuming they can prevail, for any amounts in excess of $75,000 in view of the limitation expounded in the Malpractice Act, V.I.Code Ann. tit. 27, § 166b(c).\nAt a hearing on the motion on February 19, 1992, the defendants’ counsel raised the additional contention that Count IV, the wrongful death claim, should be dismissed because it had not been brought by the baby’s personal representative as required by V.I.Code Ann. tit. 5, § 76(d) (Supp.1990). In response, counsel for the Abdallahs withdrew Count IV, which the district court then dismissed without prejudice.\nOn May 15,1992, the district court entered a four-page order granting the defendants summary judgment on the entire complaint. The court first noted that the Abdallahs’ wrongful death claim had been withdrawn. It then concluded that Count II, which charged that Dr. Callender performed the bilateral tubal ligation and transection without Mrs. Abdallah’s informed consent, was barred jurisdictionally because the Abdallahs had not included this count in their proposed complaint filed with the Review Committee. Finally, the court dismissed the Abdallahs’ other claims, believing them to be derivative of the battery claim in Count II and the wrongful death claim in Count IV.\nII.\nDISCUSSION\nThe Abdallahs seek to have the order of May 15, 1992, reversed only insofar as it granted summary judgment on Counts I, II, III, and V. Inasmuch as they do not ask us to reinstate Count IV, which they withdrew in the district court, we do not address this claim on the merits. We also do not discuss the third issue raised in the defendants’ motion for summary judgment, relating to the possible limitation on damages, as the district court never reached this issue and neither party has raised it on appeal. Our review of the district court’s grant of summary judgment is plenary.\nA. The Battery Claim — Count II\nAs we have indicated, in Count II of their complaint the Abdallahs allege that Dr. Callender committed a battery by performing a bilateral tubal ligation and transection on Mrs. Abdallah without her informed consent. Yet, the Abdallahs concede that they did not include this count in their proposed complaint-submitted to the Review Committee pursuant to V.I.Code Ann. tit. 27, § 166L Therefore, as the district court correctly held, it did not have jurisdiction to hear this claim.\nSection 166i(b) states in relevant part: No. action against a health care provider may be commenced in court before the claimant’s proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section....\nClearly, Dr. Callender is a “health care provider” as defined by the statute. See V.I.Code Ann. tit. 27, § 166(c). Thus, the only real question raised by the appeal on this issue is whether the Malpractice Act requires the submission of all proposed tort actions against a health care provider acting in that capacity or whether it only applies to professional negligence actions.\nThe district court did not directly address this issue. Rather, it held the battery count barred, on the authority of cases establishing that a claim not listed in a proposed complaint submitted to the Review Committee is barred jurisdictionally. For example, in Berry v. Curreri, 837 F.2d 623 (3d Cir.1988), the plaintiffs filed a proposed complaint with the Review Committee which did not include any reference to a misdiagnosis or negligent performance of the surgery but asserted only that there had been negligent postoperative treatment. Nevertheless, when the plaintiffs filed their complaint in the district court, they included claims for both misdiagnosis and negligent performance of the surgery. The district court ultimately submitted these claims to the jury, which found in the plaintiffs’ favor. On appeal we held that the court should not have allowed these claims to go to the jury; therefore, we reversed and ordered a new trial. Id. at 626. We stated that section 166i(b), both by its express terms and in keeping with the legislative purpose, requires that medical malpractice claims not submitted to the Review Committee be barred on jurisdictional grounds. Id.; see also Wiltshire by Wiltshire v. Government of Virgin Islands, 893 F.2d 629, 636-37 (3d Cir. 1990) (holding that parents’ loss of service claim based on neurological impairment not maintainable because not included in proposed complaint); Philip v. Government of Virgin Islands, 21 V.I. 3, 6 (D.V.I.1984) (dismissing negligence claims that were not in proposed complaint given to Review Committee); Quinones v. Charles Harwood Memorial Hosp., 573 F.Supp. 1101, 1103-04 (D.V.I. 1983) (dismissing negligence claims because no proposed complaint submitted); Espinosa v. Government of Virgin Islands, 20 V.I, 78, 83 (Terr.Ct.1983) (same).\nThe Abdallahs argue that these cases are not on point because they dealt with unlisted or unsubmitted conventional malpractice claims rather than claims for battery. At first glance, it might seem that the Abdallahs are correct and that the Malpractice Act does not apply to actions for common law battery. See Black’s Law Dictionary 959 (6th ed. 1990) (“In medical malpractice litigation, negligence is the predominant theory of liability.”). However, upon closer inspection, it is clear that the Abdallahs are wrong.\nAs they concede, the Malpractice Act covers all malpractice actions. V.I.Code Ann. tit. 27, § 166i(a). Critically, the Malpractice Act does not limit malpractice to professional negligence. Rather, it defines malpractice as “any tort or breach of contract based on health care or professional services rendered, or which should have been rendered by a health care provider, to a patient.” V.I.Code Ann. tit. 27, § 166(f) (emphasis added). By using the phrase “any tort or breach of contract based on health care or professional services rendered,” the legislature expressed its intent to cover all actions relating to the provision of medical care. A plain reading of the statute, therefore, requires that we affirm the order of the district court insofar as it granted the defendants summary judgment on Count II.\nAlternatively, the Abdallahs argue that even assuming a battery claim falls within the Review Committee submission requirements of the Malpractice Act, their failure to submit the claim should not bar it because the Review Committee does not serve a germane purpose when a plaintiff alleges a health care provider committed a battery. We have stated that the Malpractice Act, by providing for an expert medical opinion, “is designed to eliminate claims lacking merit and encourage prompt settlement of meritorious claims.” Berry, 837 F.2d at 626. According to the Abdallahs, this legislative purpose does not apply in this case, as experts cannot render an opinion on the consent issue. Thus, they urge that their failure to comply with the Review Committee submission requirement with respect to the battery claim does not bar that claim. But cf. Davis v. Omitowoju, 883 F.2d 1155 (3d Cir: 1989) (in medical malpractice action, patient submitted claim to Review Committee in which she alleged doctor performed operation without her informed consent and Review Committee found that no malpractice had occurred). Whatever the logic of this argument, the fact remains that the statute does not create, such an exception as it does not distinguish among tort actions. Accordingly, the district court correctly concluded that Count II should be dismissed for lack of subject matter jurisdiction.\nB.' The Remaining Claims — Counts I, III, and V\nIn their initial memorandum in support of their motion for summary judgment, the defendants did not request that, judgment be entered in their favor on all counts as they limited their argument to the three specific issues we paraphrased above. But as we have indicated, at oral argument on their motion the defendants challenged Count IV on the procedural grounds that a wrongful death action could be brought only by the baby’s personal representative. Then, in their supplemental memorandum filed after the hearing on the motion, they expanded their argument to contend that if Counts II and IV were dismissed, the court should dismiss at least a portion of the remaining claims as derivative of those two counts. In particular, they argued that Count I, which charged Dr. Callender with malpractice, could not be maintained because wrongful delivery “by itself does not establish a cause of action which merits any legal remedy.” They urged that the result of the allegedly wrongful delivery was a wrongful death and the Abdallahs have surrendered that claim. Seemingly, the defendants could have made the same argument as to Count III, which charged the Government with malpractice, but they did not. Instead, they argued that Count III should be dismissed because the notice of claim did not satisfy the requirements of the Tort Claims Act. V.I.Code Ann. tit. 33, § 3410.\nWe address these arguments separately. First, we discuss whether Counts I and III are simply derivative claims that rise and fall with Counts II and IV. We find that they are not. Then, we consider whether Count III is jurisdictionally barred because the Ab-dallahs did not comply with the notice provisions of the Tort Claims Act. We will remand this issue for consideration by the district court. Finally, we conclude that Count V, Mr. Abdallah’s loss of consortium claim, should be reinstated because it is derivative to Counts I and III.\n1. Independence of Counts I and III\nWhile the defendants contended in their supplemental brief in support of their motion for summary judgment that the Abdallahs have no cause of action absent their wrongful death claim, they cited no case law to support this argument. On-appeal, the defendants have ignored this point. Instead, they inexplicably have defended the summary judgment on the wrongful death action even though the Abdallahs do not seek a reversal of that summary judgment. We consider only the matters which the Abdallahs actually have raised.\nClearly it cannot reasonably be argued that Count I in all respects must be related to the wrongful death claim, for the Abdal-lahs charged in that count that Dr. Callen-der’s malpractice caused Mrs. Abdallah to suffer a ruptured uterus. We can perceive of no reason why this claim cannot be pursued without regard for the stillbirth. Thus, we must vacate at least partially the summary judgment on Count I.\nThe more difficult issue relates to the Abdallahs’ claims in Counts I and III for severe mental and emotional distress by reason of the stillbirth. While we have not found any Virgin Islands cases discussing whether a woman has an independent action against her doctor for malpractice resulting in the stillbirth of her child, eases from other jurisdictions clearly support the existence of such an action. • In some jurisdictions a mother can maintain a malpractice action for the stillbirth of her child even though she has not suffered an independent physical injury. In Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988), for example, the New Jersey Supreme Court stated:\nMedical malpractice causing a stillbirth results in infliction of a direct injury to the mother as well as to her unborn child. Even without any permanent physical harm, the mother suffers severe and genuine injuries in the form of emotional distress and mental anguish occasioned by her baby’s stillbirth. This suffering is experienced, also, by the father of the infant. Id. 545 A.2d at 140.\nThus, the court suggested, “Parents under such facts would be entitled to claim compensatory damages based on their emotional distress and mental anguish proximately caused by the negligent conduct of their doctor that results in the stillbirth of their baby.” Id. at 143. Accord Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992) (noting that mother could recover for her emotional distress by reason of physical injuries to fetus caused by negligence during delivery, even absent physical injury of mother); Dunn v. Rose Way, Inc., 333 N.W.2d 830, 832-33 (Iowa 1983) (noting right of recovery in parents for damages done to unborn fetus under Iowa law); Modaber v. Kelley, 232 Va. 60, 348 S.E.2d 233, 236-37 (1986) (noting right of mother to recover for injury to unborn child in womb and for emotional distress caused by death of fetus that was still part of her). The New Jersey Supreme Court recently affirmed this principle in Carey v. Lovett, 132 N.J. 44, 622 A.2d 1279 (1993), holding that parents may recover for severe emotional distress suffered for medical malpractice resulting in the premature birth and death of their baby, without attempting to prove that they suffered physical injuries. The Carey court relied heavily on Giardina. But see id. (Handler, J., concurring) (stating that court ignored holding in Giardina by requiring parents to prove severe emotional distress).\nNevertheless, other jurisdictions apparently require the mother to suffer physical injury before allowing her to recover for the severe emotional distress arising from her fetus’s death. For example, in Coughlin v. George Washington University Health Plan, Inc., 565 A.2d 67 (D.C.1989), the District of Columbia Court of Appeals held that a pregnant woman has an action for malpractice against her doctor where the miscarriage resulted in her physical injury. Id. at 70-71 (citing cases from New York and North Carolina). The court noted that the mere fact that the doctor also may owe a duty of care to the baby does not extinguish the duty of care owed to the mother. ' See also Brown v. Green, 767 F.Supp. 273, 275 (D.D.C.) (following Coughlin’to find a cause of action on behalf of mother irrespective of cause of action in baby), order vacated on reconsideration, 781 F.Supp. 36 (D.D.C.1991); accord Prado v. Catholic Medical Center of Brooklyn & Queens, Inc., 145 A.D.2d 614, 536 N.Y.S.2d 474; 475 (1988) (noting that in New York, mother cannot recover for stillbirth absent physical injuries extending beyond normal pain and suffering associated with childbirth).\nWe, however, at least at this time, need not choose between the two .lines of cases because Mrs. Abdallah suffered from a ruptured uterus, a direct physical injury beyond the normal pain associated with childbirth. Therefore, we believe that in most jurisdictions Mrs. Abdallah would be able to recover for the severe emotional distress that she suffered due to the stillbirth of her child. Because the common law as generally understood and applied in the United States applies in the Virgin Islands absent a statute or Restatement rule to the contrary, .see V.I.Code Ann. tit. 1, § 4 (1967), Mrs. Abdal-lah has stated an independent basis for relief in Counts I and III. Accordingly, the district court erred in granting the defendants summary judgment on Counts I and III as they exist independently of Counts II or IV.\nWe also must consider Mr. Abdallah’s claims in Counts I and III for his own severe emotional and mental distress. The cases quite naturally tend to focus on the severe emotional and mental distress to a mother suffering a stillbirth. Nevertheless we conclude that a father should have his own claim if he experiences that distress, provided he stands in an intimate family relationship to the mother and the fetus, contemporaneously observes the malpractice and the effect on the mother, and is- shocked by the results. See Carey v. Lovett, 622 A.2d at 1290.\n2. The Virgin Islands Tort Claims Act.\nThe defendants argued in their supplemental memorandum on their motion for summary judgment, that Count III should be dismissed because the Abdallahs did not comply with the requirements of the Tort Claims Act in V.I.Code Ann. tit. 33, §§ 3409, 3410. The defendants did not ask for that ruling in their initial memorandum, although they did state that Counts I, II, and V should be dismissed for this reason. The district court did not rule on this argument; rather, it dismissed Counts I, III, and V as being derivative of Counts II and IV.\nSection 3410 states in relevant part:\nThe claim shall state the time when and the place where such claim arose, the nature of same, and items of damage or injuries claimed to have been sustained and the total sum claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated.\nA review of the Abdallahs’ notice of claim reveals that it met all the requirements of section 3410, at least for a notice of intention to file a claim. Their notice of claim recites the time and place of the incident as well as that their claim stemmed from the stillbirth of their child. It further lists the damage and injuries suffered, and the minimum amount claimed. This information satisfies the requirements of section 3410 for a written notice of intention to file a claim, for it provides “enough information to enable the government to make an investigation in order to determine if the claims should be settled without suit.” McBean v. Government of Virgin Islands, 19 V.I. 383, 388 (Terr.Ct.1983). However, we express no opinion as to whether the information was sufficient to satisfy section 3410’s requirements for a claim. Inasmuch as the district court did not rule on the defendants’ argument under the Tort Claims Act, we will remand the case so that this argument may be considered by that court in the first instance on a full record.\n3. Mr. Abdallah’s Loss of Consortium— Count V.\nLastly, we address Mr. Abdallah’s loss of consortium claim. The district court granted the defendants’ summary judgment on this claim because it regarded it as derivative of Counts II and IV, on which it had granted summary judgment to the defendants. But as we have rejected the district court’s holding that Counts I and III are derivative of Counts II and IV, Count V must be reinstated as well. We note, however, that to the extent that Mr. Abdallah seeks to recover for loss of consortium for the results of the battery, his claim remains barred. Instead, he may recover derivatively only through Counts I and III which allege injuries to his wife.\nIII.\nCONCLUSION\nFor the reasons stated above, we will vacate the district court’s order with respect to Counts I, III, and V of the Abdallahs’ complaint but will affirm the district court’s order on Count II. The action will be remanded to the district court for further proceedings consistent with this opinion, in particular including the necessary determination of the validity of the notice under the Tort Claims Act. The parties will bear their own costs on this appeal.\n.We have set forth the facts that find support in the record. Obviously, some may be in dispute. For example, Dr. Callender contends that the Abdallahs only mentioned one prior C-section.\n. Dr. Callender also disputes the consent issue.\n. The Abdallahs obtained a medical opinion that the defendants deviated from good and accepted medical practice, which caused the uterus to rupture and resulted in the stillbirth. However, inasmuch as the district court granted summary judgment for jurisdictional and procedural reasons, we are not concerned with the merits of the Abdallahs’ claims on this appeal.\n. This dismissal without prejudice does not create a finality problem. In using the term \"without prejudice,” the district court intended only to indicate that the personal representatives of the stillborn child's estate were not precluded from later bringing a wrongful death action. Therefore, as to the Abdallahs, who are the only plaintiffs in this case, the court's decision was final. Moreover, given that the two-year statute of limitations has run on the wrongful death claim, see Hatchette v. West Indian Co., 17 V.I. 549, 550 (D.V.I.1980), no plaintiff can bring that action successfully. Thus, there is no risk of piecemeal appeals. See Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.1991); Green v. Humphrey Elevator & Truck Co., 816 F.2d 877, 878 n. 4 (3d Cir.1987).\n. The district court had jurisdiction under 48 U.S.C. § 1612. See Brow v. Family, 994 F.2d 1027, 1033-34 (3d Cir.1993). We have jurisdiction under 28 U.S.C. § 1291.\n. In a similar case, the Indiana Court of Appeals held that a mere allegation of battery was not enough to remove a patient's complaint from the purview of Indiana’s Medical Malpractice Act. See Boruff v. Jesseph, 576 N.E.2d 1297 (Ind.Ct.App.1991). But the Boruff case is distinguishable in that the majority characterized the operation without informed consent in that case as negligence. Id. at 1299; see also id. at 1299-1300 (Barteau, J., concurring in part, dissenting in part) (noting that battery, operation without consent, falls outside Medical Malpractice Act).\n. The Abdallahs cite several cases from other jurisdictions to establish that an unconscnted-to operation constitutes battery. See, e.g., Kelton v. District of Columbia, 413 A.2d 919, 922-23 (D.C. 1980). However, these cases are not material to the issue before us inasmuch as an action for battery is based in tort. Therefore, because Count II is based in tort and is related to health care services rendered, the statute required its submission to the Review Committee prior to the initiation of suit.\n. In view of the defendants' failure to raise this point in the district court, we would be justified in declining to consider whether Count III is derivative of Counts II and IV. Nevertheless, we will consider the issue on the merits, as our disposition of this issue as to Count I inevitably decides the question as to Count III.\n. Count I is not subject to the same argument because it was brought only against Dr. Callen-der acting in his private capacity, and not against the Government of the Virgin Islands. See Sa-ludes v. Ramos, 744 F.2d 992, 993 n. 2 (3d Cir.1984). Indeed, we are at a loss in these circumstances to understand why in their motion for summary judgment the defendants sought a determination of whether Counts I and II were barred by the Tort Claims Act, as they were asserted only against Dr. Callender.\n.The Abdallahs do suggest that the wrongful death claim should have survived the defendants’ motion for summary judgment, but they nevertheless do not seek relief on that count.\n. In Giardina the issue was whether the New Jersey Wrongful Death Act permitted recovery by reason of the wrongful death of an infant before birth. Id., 545 A.2d at 139. However, before holding that it did not, the New Jersey Supreme Court in a comprehensive discussion concluded that the parents could bring a malpractice action against the doctor. In view of the procedural posture of the case that discussion may have been dicta.\n. We point out that we are proceeding on the assumption with respect to the claims of both Abdallahs that they will be able to establish that\n(1) Mrs. Abdallah suffered a ruptured uterus and\n(2) this injury was attributable to malpractice. If at trial they do not establish both of these matters, the district court will have to decide whether Counts I and III nevertheless are viable to the extent that they seek recoveries for severe mental and emotional distress by reason of the stillbirth.\n. We reemphasize as set forth in footnote 12 that we only are determining that Mr. Abdallah's claim is viable on the assumption that Mrs. Ab-dallah suffered a ruptured uterus attributable to malpractice. If not, then the district court will have to make the determination as to whether he has a claim as we have already set forth in footnote 12.\n. Actually the district court's order is not entirely clear as the court seems to have been somewhat confused about what was alleged in each count. We have predicated our opinion on our construction of the order.\n. In particular, the notice of claim filed by the Abdallahs does not mention any physical injuries suffered by Mrs. Abdallah. Thus, Count III might be barred if under Virgin Islands law a mother had to suffer physical injuries before the parents could recover for the emotional injuries associated with the stillbirth of their child. We do not decide this question because of its hypothetical nature. The determination on this issue would be identical to that which the district court will make with respect to the claim for damages for severe emotional and mental distress if the Abdallahs are unable to establish that she suffered a ruptured uterus attributable to malpractice as we discuss in footnote 12, supra. This is because the viability vel non of a claim for severe emotional and mental distress is the same whether it stands alone because the plaintiffs are barred from demonstrating for procedural reasons that the mother suffered physical injuries attributable to the malpractice, or because she simply did not suffer the injuries. We also point out that the serving of the civil complaint following the service of the notice of claim may have satisfied the section 3409 requirement, thus obviating the need to assess whether the notice of claim was sufficient in itself. See Albert v. Abramson's Enters., Inc., 790 F.2d 380, 383 (3d Cir.1986). This possibility may be considered on remand.\n. Of course, the loss of consortium claim as related to Count III will be barred under the Tort Claims Act if Mrs. Abdallah’s direct claim on the count is barred under that Act. We also reiterate that Mr. Abdallah has asserted his own claim for severe mental and emotional distress in Counts I and III, and that the Abdallahs have alleged that there was a direct physical injury inflicted on Mrs. Abdallah only in count I. Obviously Mr. Abdallah should not be permitted a double recovery, i.e., a recoveiy for the same injury from severe mental and emotional distress directly and through a claim of loss of consortium.\n[END_CASE]", "role": "user" } ]
10,508,852	UNITED STATES of America v. Bryan THORNTON, a/k/a "Moochie", Appellant (D.C. Criminal No. 91-00570-03); UNITED STATES of America v. Aaron JONES, a/k/a "A", "J", Appellant (D.C. Criminal No. 91-00570-01); UNITED STATES of America v. Bernard FIELDS, a/k/a "Quadir", "Q", Appellant (D.C. Criminal No. 91-00570-05)	United States v. Thornton	1993-07-19	Nos. 92-1635, 92-1785 and 92-1878	United States Court of Appeals for the Third Circuit	{"judges": ["Before: SLOVITER, Chief Judge, NYGAARD and WEIS, Circuit Judges."], "parties": ["UNITED STATES of America v. Bryan THORNTON, a/k/a “Moochie”, Appellant (D.C. Criminal No. 91-00570-03). UNITED STATES of America v. Aaron JONES, a/k/a “A”, “J”, Appellant (D.C. Criminal No. 91-00570-01). UNITED STATES of America v. Bernard FIELDS, a/k/a “Quadir”, “Q”, Appellant (D.C. Criminal No. 91-00570-05)."], "opinions": [{"text": "OPINION OF THE COURT\nSLOVITER, Chief Judge.\nDefendants Bryan Thornton, Aaron Jones, and Bernard Fields appeal from judgments of conviction and sentence following a jury trial on several drug-related charges. Defendants make, in combination, six claims of error which they argue require a reversal of their convictions and a new trial. We review the evidence in the light most favorable to the verdict winner, in this case the government. See United States v. Ofchinick, 883 F.2d 1172, 1177 (3d Cir.1989), cert. denied, 493 U.S. 1034, 110 S.Ct. 753, 107 L.Ed.2d 769 (1990).\nI.\nOn October 2, 1991 a grand jury in the United States District Court for the Eastern District of Pennsylvania returned a thirty-two count indictment charging Thornton, Jones, Fields, and twenty-three others with conspiracy to distribute cocaine, crack cocaine, and heroin between late 1985 and September 1991. The indictment alleged that all defendants were members of a criminal organization known as the Junior Black Mafia (“the JBM”), which sold and distributed for resale large amounts of cocaine and heroin in the Philadelphia area. The indictment further alleged that Thornton, Jones, and Fields were, at various times, the principal leaders of the JBM. The district court ordered the trial of these three defendants to be severed from the remaining defendants, and then denied motions by Thornton and Jones for separate trials.\nAt the fifteen-day'jury trial that followed, the government introduced a substantial amount of evidence in support of its charges against the three defendants, including the testimony of ten cooperating witnesses who were members of or who had had direct dealings with the JBM, more than sixty wiretapped or consensually recorded • conversations concerning members of the JBM, and physical evidence, including documents, photographs, drugs, weapons, and drug-related paraphernalia. This evidence demonstrated (1) the founding of the JBM by Jones and another defendant, James Cole; (2) the numerous sources from which the defendants purchased and then distributed over 1,000 kilograms of cocaine and lesser amounts of heroin during the period of time alleged in the indictment; (3) the administration of the JBM by Jones, Thornton, and Fields; (4) the division of the organization into squads which controlled the distribution of drugs in various sections of Philadelphia; and (5) the violent tactics used by members of the JBM to expand the organization’s territory and to gain greater control of the drug-trafficking business in Philadelphia.\nThe jury found the defendants guilty of conspiracy to distribute and to possess with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846 (1988) and possession with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) (1988). In addition, Thornton and Jones were convicted of participating in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1988 & Supp. III 1991), and Fields was convicted of using a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1988 & Supp. III 1991), and possession of a firearm after having been previously convicted of a felony in violation of 18 U.S.C. § 922(g)(1) (1988). All three defendants were sentenced under the United States Sentencing Guidelines to life imprisonment, and Thornton and Jones were each ordered to forfeit $6,230,000 to the government pursuant to 21 U.S.C. § 853 (1988). The defendants have not challenged the propriety of their sentences or fines. Nor, significantly, have they alleged that the evidence was insufficient to support the verdicts.\nII.\nOn appeal, Thornton, Jones, and Fields argue that the following errors require a reversal of their convictions and a new trial: (1) they were misjoined under Fed.R.Crim.P. 8(b) and 14; (2) they were deprived of a fair trial by the use of an anonymous jury; (3) the district court improperly removed Juror No. 3 and declined to remove Juror No. 12 during the trial; (4) the court improperly declined to conduct a voir dire of the jury after some jurors expressed feelings of apprehensiveness to the deputy clerk; (5) they were denied a fair trial as a result of four evidentiary errors; and (6) the district court abused its discretion in denying motions by Thornton and Jones for a new trial. We will address each of these allegations seriatim.\nA.\nWe review the joinder of two or more defendants under Fed.R.Crim.P. 8(b) de novo and the denial of a motion for severance under Fed.R.Crim.P. 14 for abuse of discretion. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991).\nThe Supreme Court has noted that joinder under Rule 8 is proper when an indictment “charge[s] all the defendants with one overall count of conspiracy.... ” United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986); see also Eufrasio, 935 F.2d at 567 (“As long as the crimes charged are allegedly a single series of acts or transactions, separate trials are not required.”). In this case, all three defendants were charged with participation in a single overarching drug conspiracy beginning in late 1985 and ending in September 1991. That is sufficient for joining these defendants in a single trial. See' Eufrasio, 935 F.2d at 567. Moreover, the indictment alleged as overt acts in furtherance of the conspiracy the substantive acts with which these defendants were charged, further demonstrating the efficiency of a joint trial.\nThornton asserts that he should not have been joined with Jones and Fields because he was incarcerated on June 27, 1990 on an unrelated charge, and the government failed to prove his continuing participation in the conspiracy after that date. Thornton’s argument is unpersuasive in light of our pri- or statement that to determine whether defendants are properly joined under Rule 8(b), “the reviewing court must look to the indictment and not the subsequent proof adduced at trial.” United States v. McGill, 964 F.2d 222, 241 (3d Cir.), cert. denied, — U.S. -, 113 S.Ct. 664, 121 L.Ed.2d 588 (1992). The indictment in this case alleged that Thornton participated in the conspiracy through its conclusion in September 1991.\nIn any event, joinder would not be improper merely because a defendant did not participate in every act alleged in furtherance of the overarching conspiracy. See, e.g., United States v. DeVarona, 872 F.2d 114, 120 (5th Cir.1989) (joinder proper where “indictment alleged a single overarching conspiracy” even though defendant was “absen[t] from a particular episode in the conspiracy”); United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir.1988) (joinder proper even though defendants’ “respective acts committed in furtherance of the conspiracy occurred during chronologically distinct periods”).\nDefendants’ argument that they were misjoined under Rule 14 is similarly unpersuasive. As the Supreme Court recently explained, “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent, the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, — U.S. —, -, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). The district court in this case concluded that Thornton and Jones were both leaders of the JBM and that severance was inappropriate because the defendants had failed to demonstrate that joinder would be prejudicial.\nIn Eufrasio, we stated that “[t]he public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of. defendants charged with a single conspiracy.” 935 F.2d at 568. See also Zafiro, — U.S. at -, 113 S.Ct. at 937 (“There is a preference in the federal system for joint trials of defendants who are indicted together.”). In order to warrant a reversal of the district court’s discretionary decision to deny a motion for severance, a defendant has a heavy burden: “he must demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.” Eufrasio, 935 F.2d at 568 (quotation and emphasis omitted).\nThe record in this case demonstrates that the defendants suffered no such prejudice. Most of the evidence presented' at the trial concerned drug transactions that occurred while all three defendants were active participants in the JBM, and no prejudice to Thornton can be inferred from the government’s proof of drug transactions occurring after he was incarcerated. As we stated in Eufrasio, “[prejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against each defendant.” Id. Thus, we conclude that the district court did not err in denying the defendants’ motions for separate trials.\nB.\nDefendants next argue that the district court erred in empaneling an anonymous jury. We review the district court’s ruling for abuse of discretion and must be “particularly deferential” to the district court’s “substantial discretion” to empanel an anonymous jury. United States v. Scarfo, 850 F.2d 1015, 1023 (3d Cir.), cert. denied, 488 U.S. 910, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988); see also Eufrasio, 935 F.2d at 574.\nIn its motion requesting jury anonymity, the government argued that the defendants’ history of extreme violence, the extensive press coverage surrounding the JBM’s activities, and the murder charges brought in state court against Thornton and Jones could cause the jury to be apprehensive about its physical safety. The government also asserted that members of the JBM had intimidated witnesses on four prior occasions. In granting the motion, the district court stated that “[i]n light of the news media coverage of persons and events purportedly associated with the so-called ‘Junior Black Mafia,’ ... the court finds that sufficient potential for juror apprehension for their own safety exists to justify use of an anonymous jury to ease such tensions.” App. at 82.\nDefendants do not claim that the empaneling of an anonymous jury limited their ability to conduct voir dire. Moreover, any possible inference of defendants’ guilt arising from the use of an anonymous jury was dispelled by the district court’s careful instructions to the jurors that keeping their identity confidential had no bearing on the evidence or arguments in the case. We find no abuse of discretion by the district court.\nC.\nThe defendants next assert that the district court abused its discretion in replacing Juror No. 3 and declining to remove Juror No.' 12 during the trial. See United States v. Cameron, 464 F.2d 333, 335 (3d Cir.1972) (trial judge has “sound discretion” to remove juror).\nOn Day 13 of the trial, the government informed the court that a United States Marshal had observed “visual communication” between Juror No. 3 and defendant Fields consisting of smiles, nods of assent, and other non-verbal interaction. The court declined the government’s request to question Juror. No. 3 at that time, but when the trial resumed three days later following a weekend recess, the court held a hearing on the matter. After questioning the juror and the Marshal who witnessed the communication, the district court concluded:\nI believe the Marshal. I’ve observed him sitting here day in and day out.... [He saw] Juror No. 3 and Mr. Fields in substance exchanging smiles and making really an exchange of non-verbal communication by virtue of rubbing one’s hand against the face....\n[I]f it were simply an honest reaction, be it scowling, be it smiling or whatever it is-, that is not a reason to remove a juror. But I think what you have here ... is a reasonable inference which I draw, that it was not just an honest reaction ... but rather an exchange of smiles that it was an exchange of non-verbal communication....\nFrankly, I think Juror No. 3 protested too much and I just don’t believe her.\nApp. at 2375-76.\nIn response, Fields moved to strike Juror No. 12 for scowling. The district court denied the motion, stating, “I think Juror No. 12, even assuming what you proffer about the scowling, that would be different because it’s not really an exchange of non-verbal communication. It’s a reaction I suppose to the evidence_” App. at 2378.\nAlthough the defendants claim that they were prejudiced by the timing of these two rulings, we find no prejudice here. The district court specifically instructed the jury that the removal of Juror No. 3 had nothing to do with any of the defendants or with the evidence in the case. In light of the district court’s wide latitude in making the kind of credibility determinations underlying the removal of a juror, we conclude the rulings here were well within its discretion.\nD.\nWe next address defendants’ argument that they were prejudiced by the district court’s refusal to conduct a voir dire of the jury when the court was informed that some jurors had expressed general apprehensiveness about their safety. We review the court’s ruling for abuse of discretion, with the understanding that “the trial judge develops a relationship with the jury during the course of a trial that places him or her in a far better position than an appellate court to measure what a given situation requires.” Government of the Virgin Islands v. Dowling, 814 F.2d 134, 137 (3d Cir.1987).\nOn Day 4 of the trial, the district court called a side bar conference and stated to counsel:\nMy Deputy Clerk advises me that some of the jurors have expressed a general feeling of apprehensiveness about their safety. I told her to contact Marshal Dennis ... [who] can make some kind of arrangements which will make them more comfortable.\nApp. at 742. Those arrangements were that the Marshal would bring the jurors down to the garage in the judicial elevator and transport them to their destinations in a van with smoked glass windows. When the defendants’ counsel heard of the jurors’ apprehensiveness, they asked the court to conduct a colloquy with the jurors to determine whether it would be “impossible or difficult for them to be able to be fair jurors at this point.” App. at 743. The district court responded:\nMy reaction is it’s perfectly understandable why the jurors would feel apprehensive simply from listening to the testimony in the case as I have and I don’t have to ask them why. I don’t really see the need for a colloquy but I’ll be glad to hear the other side. It seems to me a colloquy is going to make the problem worse and the best way to do it is to treat it in a low key way. I’m inclined to follow [the Marshal’s] advice and not make a big deal out of it.\nMy judgment at this moment is that it [a colloquy] is not [necessary and] that the apprehensions are normal, given the evidence .... [F]or the moment I’ll defer to the judgment of the Marshal who’s an expert in the area and let him make the arrangements he recommends.\nApp. at 744-45. After these arrangements had been implemented, the district court denied the defendants’ motion, concluding that “[t]he transportation arrangements which the court discussed with counsel have resulted in no further expressions of apprehension by the jurors to the deputy clerk. Individual voir dire is unnecessary and would be counterproductive.” App. at 75.\nThe defendants argue that the district court was required to conduct a colloquy with the jurors to determine the basis for their apprehension. We have previously expressed a preference for individual juror colloquies “[w]here there is a significant possibility that a juror ... has been exposed to prejudicial extra-record information_” Dowling, 814 F.2d at 137 (emphasis added). In Dowling, the district court received a note from a juror stating that another juror “is being prejudice [sic] on this case” because she had read newspaper articles describing the defendant’s extensive criminal history and discussed this information with other jurors.\nIn this case, by contrast, the district court learned from the Deputy Clerk that the jurors had expressed “a general feeling of apprehensiveness about their safety.” Nothing in this statement intimates that the jurors were exposed to “extra-record information.” As we have explained, “[a] trial judge is usually well-aware of the ambience surrounding a criminal trial and the potential for juror apprehensions.” Eufrasio, 935 F.2d at 574. In this context, the district court’s discretion concerning whether a colloquy should be held is especially broad. See Grooms v. Wainmight, 610 F.2d 344, 347 (5th Cir.) (“The judge’s decision whether to interrogate the jury about juror misconduct is within his sound discretion, especially when the alleged prejudice results from statements made by the jurors themselves, and not from media publicity or other outside influences.”), cert. denied, 445 U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789 (1980). As one court has persuasively asserted,\n[i]n determining whether to [question jurors] ..., the court must balance the probable harm resulting, from the emphasis such action would place upon the misconduct and the disruption involved in conducting a hearing against the likely extent and gravity of the prejudice generated by that misconduct. We, as an appellate tribunal, are in a poor position to evaluate these competing considerations; we have only an insentient record before us.\nUnited States v. Chiantese, 582 F.2d 974, 980 (5th Cir.1978), cert. denied, 441 U.S. 922, 99 5.Ct. 2030, 60 L.Ed.2d 395 (1979).\nThe district court weighed these opposing interests and concluded that voir dire would make the problem worse. Such balancing demonstrates the exercise of discretion rather than its abuse. Our conclusion is reinforced by the fact that no further expressions of apprehensiveness occurred during the following eleven days of the trial and by the court’s instruction to the jury that “there was never the slightest realistic basis for any feeling of insecurity.” 4/21/92 Tr. at 93. Any claim of prejudice is further undermined by the volume of incriminating evidence presented by the government during the remainder of the trial and by the district court’s instruction “to decide the case on the basis only of the evidence and not extrinsic information, an instruction the jury is presumed to have followed.” United States v. Gilsenan, 949 F.2d 90, 96 (3d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2971, 119 L.Ed.2d 590 (1992).\nE.\nDefendants also contend that the cumulative effect of four evidentiary errors resulted in an unfair trial requiring reversal. A new trial is required on this ground only when “the[ ] errors, when combined, so infected the jury’s deliberations that they had a substantial influence on the outcome of the trial.” United States v. Hill, 976 F.2d 132, 145 (3d Cir.1992).\nOn four occasions, the court admitted evidence that was inadmissible or the witnesses made remarks that should not have been heard by the jury. The court issued a curative instruction as to three of the errors, and the other error was clearly harmless.\nThe defendants concede that these four errors, taken individually, do not require a reversal of their conviction. Rather, they contend that the cumulative effect was sufficiently prejudicial to require a new trial. We disagree. Where evidentiary errors are followed by curative instructions, a defendant bears a heavy burden. The Supreme Court has stated that we must “presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is .an overwhelming probability that the jury will be unable to follow the court’s instructions, and a strong likelihood that the effect of the evidence would be devastating to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1987) (citations and quotations omitted). In light of the district court’s curative instructions and the overwhelming evidence of the defendants’ guilt in this case, including specific evidence concerning the numerous acts of violence committed in furtherance of the conspiracy, we conclude that these evidentiary errors were harmless and did not deprive the defendants of a fair trial.\nF.\nDefendants’ final contention on appeal concerns the government’s failure to disclose until after trial two letters from the Drug Enforcement Administration (DEA) detailing payments made to two cooperating government witnesses, Dwight Sutton .and Darrell Jamison. Prior to trial, the defendants had made a general request for all materials that would be favorable to the- defense under the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, including information concerning arrangements with or benefits given to government witnesses. The government produced witness agreements (including immunity agreements) and information documenting payments to several cooperating witnesses. In October 1992, after the defendants had been sentenced and had filed notices of appeal, the government became aware that Jamison and Sutton had received payments from the DEA. Shortly thereafter, it provided this information to defense counsel.\nThornton and Jones then moved for a new trial pursuant to Fed.R.Crim.P. 33 on the ground of newly discovered evidence, asserting that the failure to disclose the DEA payments deprived them of the ability to cross-examine effectively two witnesses whose testimony and credibility were central to the government’s case. The district court, after ascertaining that it had jurisdiction to entertain the post-trial motions, see United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S.Ct. 2039, 2051 n. 42, 80 L.Ed.2d 657 (1984), denied the motions on their merits. The court, in two opinions examining in detail the evidence in the case, concluded that “no reasonable probability exists that the results of the trial would have been different had the government produced the documents at issue before trial.” App. at 55, S.App. at 93.\nThe government contends that we lack jurisdiction to review the denial of Thornton’s and Jones’ new trial motions because they failed to file a second notice of appeal from the district court’s denial of the post-trial motions. Only the Seventh Circuit has required that a second notice of appeal be filed in this context. See United States v. Harvey, 959 F.2d 1371, 1377 (7th Cir.1992). Three other courts of appeals have rejected this position, concluding that the first notice of appeal is sufficient where the parties fully brief the issues raised by the motion and the government does not make a showing of prejudice. United States v. Burns, 668 F.2d 855, 858 (5th Cir.1982); see also United States v. Davis, 960 F.2d 820, 824 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 210, 121 L.Ed.2d 150 (1992); United States v. Wilson, 894 F.2d 1245, 1251-52 (11th Cir.), cert. denied, 497 U.S. 1029, 110 S.Ct. 3284, 111 L.Ed.2d 792 (1990).\nAlthough this court has never expressly considered this issue, we have held, relying on Bums, that notice and prejudice are the touchstones for determining the timeliness of a premature notice of appeal in a criminal case. See United States v. Hashagen, 816 F.2d 899, 903-04 (3d Cir.1987) (in banc). Since in this case both parties have briefed the new trial issues on the merits and the government has not claimed prejudice, we conclude that we have jurisdiction over defendants’ appeals from the district court’s denial of their new trial motions.\nIn considering a district court’s ruling on a motion for a new trial based on the failure to disclose Brady materials, “we will conduct a de novo review of the district court’s conclusions of law as well as a ‘clearly erroneous’ review of any findings of fact where appropriate.” United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991). Where the district court applies the correct legal standard, its “weighing of the evidence merits deference from the Court of Appeals, especially given the difficulty inherent in measuring the effect of a non-disclosure on the course of a lengthy trial covering many witnesses and exhibits.” United States v. Pflaumer, 774 F.2d 1224, 1230 (3d Cir.1985) (citation omitted), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986).\nIt is evident that the information that was not disclosed fell within the Brady rule, and should have been disclosed by the government. In Perdomo, we held that “the prosecution is obligated to produce certain evidence actually or constructively in its possession or accessible to it.” 929 F.2d at 970. More recently, in United States v. Joseph, 996 F.2d 36 (3d Cir.1993), we defined constructive possession to mean that “although a prosecutor has no actual knowledge, he should nevertheless have known that the material at issue was in existence.” Id. at 39.\nWe understand the government’s brief to explain that the prosecutors themselves did not know of the DEA payments to the witnesses. That is hardly an acceptable excuse. The prosecutors have an obligation to make a thorough inquiry of all enforcement agencies that had a potential connection with the witnesses. See Perdomo, 929 F.2d at 970-71.\nAt argument, the government advised the court that it requested that the FBI and DEA agents advise it of any payments that would have to be disclosed under Brady, that the FBI agents responded but that the DEA agents made no response! There is no indication that the prosecutors made any followup inquiry. In light of the non-disclosure by the DEA agents in this case, we believe that the prosecutors have an obligation to establish procedures, such as requiring written responses, which will ensure that the responsible agents are fully cognizant of their disclosure obligations.\nNonetheless, not every failure to disclose requires reversal of a conviction. The defendants do not dispute that the district court applied the correct legal principles in ruling on their new trial motions. The court properly recognized that “ ‘[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (Opinion of Blackmun, J.)).\nTo determine the effect the non-disclosed information would have had on the jury’s verdict, the district court conducted a painstaking review of the evidence introduced by the government at trial. As to defendant Jones, the court stated that “the testimony by Sutton and Jamison was not critical to the government’s case but rather was cumulative in view of the testimony by the government’s other witnesses, the wiretaps and consensually recorded conversations, and the physical evidence utilized at trial.” App. at 49.\nSpecifically, the district court found, contrary to Jones’ argument, that several witnesses other than Sutton testified that Jones wore a “JBM” ring and gave orders to other members of the organization, that Jamison was not the only witness who participated in a recorded conversation with Jones, and that the conversation between Jamison and Jones was incriminating on its face even without Jamison’s testimony. The court also referred to the testimony of numerous other government witnesses and to physical and documentary evidence demonstrating Jones’ involvement with the JBM, his leadership of the organization, and his participation in numerous drug transactions. Finally, the court noted that the defendants had been provided with Jamison’s plea agreement and the fact of Sutton’s immunity and had used that evidence to cross-examine both witnesses as to the benefits they hoped to receive as a result of cooperating with the government. App. at 50-55.\nIn denying defendant Thornton’s motion for a new trial, the district court found:\nSutton did not provide any testimony, on either direct or cross examination, about Thornton. Jamison provided only minimal testimony regarding Thornton. He testified that he saw Thornton on one occasion ... in 1989 with co-conspirator Aaron Jones and Reginald Reaves and on another occasion at Jamison’s house when Thornton had a gun in his possession. Jamison did not implicate Thornton in any specific criminal conduct. In fact, Jamison did not even testify that he knew Thornton to be a member of the JBM.\nS.App. at 92 (record citations omitted). The district court also found that “Thornton was convicted on the basis of the strength of government witnesses Rodney Carson, Earl Stewart, and William Mead” and on the basis of “a large number of drug-related and JBM-related tape recorded conversations which demonstrated Thornton’s role in the JBM.” S.App. at 92. Thus, the court concluded that there was no reasonable probability that the outcome of the trial would have been different had the DEA payments been disclosed.\nOn appeal, defendants raise the same arguments they made before the district court. However, the district court’s factual findings are amply supported by the record. The court conducted the paradigmatic review required when the government fails to meet its Brady obligation. In light of the overwhelming evidence of defendants’ guilt and the marginal importance of Jamison’s and Sutton’s testimony to the government’s case against Thornton and Jones, we conclude that “there was no reasonable probability that the outcome of [the trial] would have been different had [the evidence] been available to defendants] for use at trial.” Hill, 976 F.2d at 139. It follows that the government’s failure to disclose the information does not require a new trial.\nIII.\nFor the foregoing reasons, we will affirm the judgments of conviction and sentence.\n. The jury found Fields not guilty of one count of using a firearm during a drug trafficking offense.\n. Under the Rule, \"Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions .constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”\n.The Rule provides in relevant part: “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separated trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”\n. Thornton’s citation to United States v. Ellis, 709 F.2d 688 (11th Cir.1983), is inapposite because in that case there were three separate conspiracies rather than a single common one.\n. Unlike Thornton and Jones, Fields did not make a motion for severance under Rule 14 before the district court. Thus, he has waived the right to present that issue on appeal.\n. The defendants cite for support United States v. McAnderson, 914 F.2d 934 (7th Cir.1990), and United States v. Watchmaker, 761 F.2d 1459 (11th Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 880, 88 L.Ed.2d 917 (1986), but we believe these cases support the government. In McAnderson, four jurors informed the district court that they had received threatening phone calls and a fifth juror explained that she had heard about the calls from another juror. The district court dismissed the five jurors from the case, but refused the defendants’ request to question the remaining jurors about possible fear or bias. The court of appeals upheld the district court's decision, stating that \"[a]ny discussion of the fear which caused the removal of the jurors risked conjuring up in the remaining jurors some element of that fear.” 914 F.2d at 944.\nIn Watchmaker, the district court met privately with one of the jurors who stated that she feared for her safety and reported that other jurors shared her apprehensiveness. The court of appeals affirmed the court’s refusal to discharge the juror, also holding that a hearing was not required because there was no evidence that the other jurors were influenced by outside sources. 761 F.2d at 1465-66.\n. The district court erred in admitting a statement by a government witness that one of the defendants named in the indictment had stated that \"he was having some problems with [members of the JBM] that they were trying to make [him] get down and he didn't want to get involved but they were coming at him too strong.” App. at 1683. In order for the coconspirator exception to the hearsay rule to apply, the declar-ant must be a member of the conspiracy at the time the statement is uttered. See, e.g., United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir.), cert. denied, - U.S. -, 112 S.Ct. 1511, 117 L.Ed.2d 648 (1992). Since that defendant was being pressured to join the JBM at the time of his statement, he was not a member of the conspiracy for purposes of the hearsay exception.\nHowever, any error in this regard is clearly harmless in light of the testimony of other witnesses that the JBM threatened drug dealers in Philadelphia to “get down or lay down.” App. at 874, 1282, 1334, 1516. See generally United States v. Casoni, 950 F.2d 893, 917-18 (3d Cir.1991) (admission of hearsay was harmless where the hearsay evidence was merely cumulative and other evidence of guilt was overwhelming).\n. The Rule states in relevant part: “A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case.” Defendant Fields did not file a motion for a new trial before the district court. It follows that we may not consider his claim on appeal. See, e.g., United States v. Dansker, 537 F.2d 40, 65 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).", "type": "majority", "author": "SLOVITER, Chief Judge."}], "attorneys": ["Christopher'G. Furlong (argued), Springfield, PA, for appellant Bryan Thornton.", "Gerald A. Stein (argued), Philadelphia, PA, for appellant Aaron Jones.", "Robert J. Rebstock (argued), Louis T. Sa-vino, Jr., Louis T. Savino & Associates, Philadelphia* PA, for appellant Bernard Fields.", "Michael Baylson, U.S. Atty., Allison D. Burroughs, Joel M. Friedman, Abigail R. Simkus, Asst. U.S. Attys., Philadelphia, PA, Joseph C. Wyderko (argued), U.S. Dept, of Justice, Washington, DC, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America v. Bryan THORNTON, a/k/a “Moochie”, Appellant (D.C. Criminal No. 91-00570-03). UNITED STATES of America v. Aaron JONES, a/k/a “A”, “J”, Appellant (D.C. Criminal No. 91-00570-01). UNITED STATES of America v. Bernard FIELDS, a/k/a “Quadir”, “Q”, Appellant (D.C. Criminal No. 91-00570-05).\nNos. 92-1635, 92-1785 and 92-1878.\nUnited States Court of Appeals, Third Circuit.\nArgued July 8, 1993.\nDecided July 19, 1993.\nChristopher'G. Furlong (argued), Springfield, PA, for appellant Bryan Thornton.\nGerald A. Stein (argued), Philadelphia, PA, for appellant Aaron Jones.\nRobert J. Rebstock (argued), Louis T. Sa-vino, Jr., Louis T. Savino & Associates, Philadelphia* PA, for appellant Bernard Fields.\nMichael Baylson, U.S. Atty., Allison D. Burroughs, Joel M. Friedman, Abigail R. Simkus, Asst. U.S. Attys., Philadelphia, PA, Joseph C. Wyderko (argued), U.S. Dept, of Justice, Washington, DC, for appellee.\nBefore: SLOVITER, Chief Judge, NYGAARD and WEIS, Circuit Judges."}	SLOVITER	NYGAARD	WEIS	1	1	1	0	0	0	1 F.3d 149	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America v. Bryan THORNTON, a/k/a \"Moochie\", Appellant (D.C. Criminal No. 91-00570-03); UNITED STATES of America v. Aaron JONES, a/k/a \"A\", \"J\", Appellant (D.C. Criminal No. 91-00570-01); UNITED STATES of America v. Bernard FIELDS, a/k/a \"Quadir\", \"Q\", Appellant (D.C. Criminal No. 91-00570-05)\nCourt: United States Court of Appeals for the Third Circuit\nDate decided: 1993-07-19\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION OF THE COURT\nSLOVITER, Chief Judge.\nDefendants Bryan Thornton, Aaron Jones, and Bernard Fields appeal from judgments of conviction and sentence following a jury trial on several drug-related charges. Defendants make, in combination, six claims of error which they argue require a reversal of their convictions and a new trial. We review the evidence in the light most favorable to the verdict winner, in this case the government. See United States v. Ofchinick, 883 F.2d 1172, 1177 (3d Cir.1989), cert. denied, 493 U.S. 1034, 110 S.Ct. 753, 107 L.Ed.2d 769 (1990).\nI.\nOn October 2, 1991 a grand jury in the United States District Court for the Eastern District of Pennsylvania returned a thirty-two count indictment charging Thornton, Jones, Fields, and twenty-three others with conspiracy to distribute cocaine, crack cocaine, and heroin between late 1985 and September 1991. The indictment alleged that all defendants were members of a criminal organization known as the Junior Black Mafia (“the JBM”), which sold and distributed for resale large amounts of cocaine and heroin in the Philadelphia area. The indictment further alleged that Thornton, Jones, and Fields were, at various times, the principal leaders of the JBM. The district court ordered the trial of these three defendants to be severed from the remaining defendants, and then denied motions by Thornton and Jones for separate trials.\nAt the fifteen-day'jury trial that followed, the government introduced a substantial amount of evidence in support of its charges against the three defendants, including the testimony of ten cooperating witnesses who were members of or who had had direct dealings with the JBM, more than sixty wiretapped or consensually recorded • conversations concerning members of the JBM, and physical evidence, including documents, photographs, drugs, weapons, and drug-related paraphernalia. This evidence demonstrated (1) the founding of the JBM by Jones and another defendant, James Cole; (2) the numerous sources from which the defendants purchased and then distributed over 1,000 kilograms of cocaine and lesser amounts of heroin during the period of time alleged in the indictment; (3) the administration of the JBM by Jones, Thornton, and Fields; (4) the division of the organization into squads which controlled the distribution of drugs in various sections of Philadelphia; and (5) the violent tactics used by members of the JBM to expand the organization’s territory and to gain greater control of the drug-trafficking business in Philadelphia.\nThe jury found the defendants guilty of conspiracy to distribute and to possess with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846 (1988) and possession with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) (1988). In addition, Thornton and Jones were convicted of participating in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1988 & Supp. III 1991), and Fields was convicted of using a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1988 & Supp. III 1991), and possession of a firearm after having been previously convicted of a felony in violation of 18 U.S.C. § 922(g)(1) (1988). All three defendants were sentenced under the United States Sentencing Guidelines to life imprisonment, and Thornton and Jones were each ordered to forfeit $6,230,000 to the government pursuant to 21 U.S.C. § 853 (1988). The defendants have not challenged the propriety of their sentences or fines. Nor, significantly, have they alleged that the evidence was insufficient to support the verdicts.\nII.\nOn appeal, Thornton, Jones, and Fields argue that the following errors require a reversal of their convictions and a new trial: (1) they were misjoined under Fed.R.Crim.P. 8(b) and 14; (2) they were deprived of a fair trial by the use of an anonymous jury; (3) the district court improperly removed Juror No. 3 and declined to remove Juror No. 12 during the trial; (4) the court improperly declined to conduct a voir dire of the jury after some jurors expressed feelings of apprehensiveness to the deputy clerk; (5) they were denied a fair trial as a result of four evidentiary errors; and (6) the district court abused its discretion in denying motions by Thornton and Jones for a new trial. We will address each of these allegations seriatim.\nA.\nWe review the joinder of two or more defendants under Fed.R.Crim.P. 8(b) de novo and the denial of a motion for severance under Fed.R.Crim.P. 14 for abuse of discretion. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991).\nThe Supreme Court has noted that joinder under Rule 8 is proper when an indictment “charge[s] all the defendants with one overall count of conspiracy.... ” United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986); see also Eufrasio, 935 F.2d at 567 (“As long as the crimes charged are allegedly a single series of acts or transactions, separate trials are not required.”). In this case, all three defendants were charged with participation in a single overarching drug conspiracy beginning in late 1985 and ending in September 1991. That is sufficient for joining these defendants in a single trial. See' Eufrasio, 935 F.2d at 567. Moreover, the indictment alleged as overt acts in furtherance of the conspiracy the substantive acts with which these defendants were charged, further demonstrating the efficiency of a joint trial.\nThornton asserts that he should not have been joined with Jones and Fields because he was incarcerated on June 27, 1990 on an unrelated charge, and the government failed to prove his continuing participation in the conspiracy after that date. Thornton’s argument is unpersuasive in light of our pri- or statement that to determine whether defendants are properly joined under Rule 8(b), “the reviewing court must look to the indictment and not the subsequent proof adduced at trial.” United States v. McGill, 964 F.2d 222, 241 (3d Cir.), cert. denied, — U.S. -, 113 S.Ct. 664, 121 L.Ed.2d 588 (1992). The indictment in this case alleged that Thornton participated in the conspiracy through its conclusion in September 1991.\nIn any event, joinder would not be improper merely because a defendant did not participate in every act alleged in furtherance of the overarching conspiracy. See, e.g., United States v. DeVarona, 872 F.2d 114, 120 (5th Cir.1989) (joinder proper where “indictment alleged a single overarching conspiracy” even though defendant was “absen[t] from a particular episode in the conspiracy”); United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir.1988) (joinder proper even though defendants’ “respective acts committed in furtherance of the conspiracy occurred during chronologically distinct periods”).\nDefendants’ argument that they were misjoined under Rule 14 is similarly unpersuasive. As the Supreme Court recently explained, “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent, the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, — U.S. —, -, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). The district court in this case concluded that Thornton and Jones were both leaders of the JBM and that severance was inappropriate because the defendants had failed to demonstrate that joinder would be prejudicial.\nIn Eufrasio, we stated that “[t]he public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of. defendants charged with a single conspiracy.” 935 F.2d at 568. See also Zafiro, — U.S. at -, 113 S.Ct. at 937 (“There is a preference in the federal system for joint trials of defendants who are indicted together.”). In order to warrant a reversal of the district court’s discretionary decision to deny a motion for severance, a defendant has a heavy burden: “he must demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.” Eufrasio, 935 F.2d at 568 (quotation and emphasis omitted).\nThe record in this case demonstrates that the defendants suffered no such prejudice. Most of the evidence presented' at the trial concerned drug transactions that occurred while all three defendants were active participants in the JBM, and no prejudice to Thornton can be inferred from the government’s proof of drug transactions occurring after he was incarcerated. As we stated in Eufrasio, “[prejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against each defendant.” Id. Thus, we conclude that the district court did not err in denying the defendants’ motions for separate trials.\nB.\nDefendants next argue that the district court erred in empaneling an anonymous jury. We review the district court’s ruling for abuse of discretion and must be “particularly deferential” to the district court’s “substantial discretion” to empanel an anonymous jury. United States v. Scarfo, 850 F.2d 1015, 1023 (3d Cir.), cert. denied, 488 U.S. 910, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988); see also Eufrasio, 935 F.2d at 574.\nIn its motion requesting jury anonymity, the government argued that the defendants’ history of extreme violence, the extensive press coverage surrounding the JBM’s activities, and the murder charges brought in state court against Thornton and Jones could cause the jury to be apprehensive about its physical safety. The government also asserted that members of the JBM had intimidated witnesses on four prior occasions. In granting the motion, the district court stated that “[i]n light of the news media coverage of persons and events purportedly associated with the so-called ‘Junior Black Mafia,’ ... the court finds that sufficient potential for juror apprehension for their own safety exists to justify use of an anonymous jury to ease such tensions.” App. at 82.\nDefendants do not claim that the empaneling of an anonymous jury limited their ability to conduct voir dire. Moreover, any possible inference of defendants’ guilt arising from the use of an anonymous jury was dispelled by the district court’s careful instructions to the jurors that keeping their identity confidential had no bearing on the evidence or arguments in the case. We find no abuse of discretion by the district court.\nC.\nThe defendants next assert that the district court abused its discretion in replacing Juror No. 3 and declining to remove Juror No.' 12 during the trial. See United States v. Cameron, 464 F.2d 333, 335 (3d Cir.1972) (trial judge has “sound discretion” to remove juror).\nOn Day 13 of the trial, the government informed the court that a United States Marshal had observed “visual communication” between Juror No. 3 and defendant Fields consisting of smiles, nods of assent, and other non-verbal interaction. The court declined the government’s request to question Juror. No. 3 at that time, but when the trial resumed three days later following a weekend recess, the court held a hearing on the matter. After questioning the juror and the Marshal who witnessed the communication, the district court concluded:\nI believe the Marshal. I’ve observed him sitting here day in and day out.... [He saw] Juror No. 3 and Mr. Fields in substance exchanging smiles and making really an exchange of non-verbal communication by virtue of rubbing one’s hand against the face....\n[I]f it were simply an honest reaction, be it scowling, be it smiling or whatever it is-, that is not a reason to remove a juror. But I think what you have here ... is a reasonable inference which I draw, that it was not just an honest reaction ... but rather an exchange of smiles that it was an exchange of non-verbal communication....\nFrankly, I think Juror No. 3 protested too much and I just don’t believe her.\nApp. at 2375-76.\nIn response, Fields moved to strike Juror No. 12 for scowling. The district court denied the motion, stating, “I think Juror No. 12, even assuming what you proffer about the scowling, that would be different because it’s not really an exchange of non-verbal communication. It’s a reaction I suppose to the evidence_” App. at 2378.\nAlthough the defendants claim that they were prejudiced by the timing of these two rulings, we find no prejudice here. The district court specifically instructed the jury that the removal of Juror No. 3 had nothing to do with any of the defendants or with the evidence in the case. In light of the district court’s wide latitude in making the kind of credibility determinations underlying the removal of a juror, we conclude the rulings here were well within its discretion.\nD.\nWe next address defendants’ argument that they were prejudiced by the district court’s refusal to conduct a voir dire of the jury when the court was informed that some jurors had expressed general apprehensiveness about their safety. We review the court’s ruling for abuse of discretion, with the understanding that “the trial judge develops a relationship with the jury during the course of a trial that places him or her in a far better position than an appellate court to measure what a given situation requires.” Government of the Virgin Islands v. Dowling, 814 F.2d 134, 137 (3d Cir.1987).\nOn Day 4 of the trial, the district court called a side bar conference and stated to counsel:\nMy Deputy Clerk advises me that some of the jurors have expressed a general feeling of apprehensiveness about their safety. I told her to contact Marshal Dennis ... [who] can make some kind of arrangements which will make them more comfortable.\nApp. at 742. Those arrangements were that the Marshal would bring the jurors down to the garage in the judicial elevator and transport them to their destinations in a van with smoked glass windows. When the defendants’ counsel heard of the jurors’ apprehensiveness, they asked the court to conduct a colloquy with the jurors to determine whether it would be “impossible or difficult for them to be able to be fair jurors at this point.” App. at 743. The district court responded:\nMy reaction is it’s perfectly understandable why the jurors would feel apprehensive simply from listening to the testimony in the case as I have and I don’t have to ask them why. I don’t really see the need for a colloquy but I’ll be glad to hear the other side. It seems to me a colloquy is going to make the problem worse and the best way to do it is to treat it in a low key way. I’m inclined to follow [the Marshal’s] advice and not make a big deal out of it.\nMy judgment at this moment is that it [a colloquy] is not [necessary and] that the apprehensions are normal, given the evidence .... [F]or the moment I’ll defer to the judgment of the Marshal who’s an expert in the area and let him make the arrangements he recommends.\nApp. at 744-45. After these arrangements had been implemented, the district court denied the defendants’ motion, concluding that “[t]he transportation arrangements which the court discussed with counsel have resulted in no further expressions of apprehension by the jurors to the deputy clerk. Individual voir dire is unnecessary and would be counterproductive.” App. at 75.\nThe defendants argue that the district court was required to conduct a colloquy with the jurors to determine the basis for their apprehension. We have previously expressed a preference for individual juror colloquies “[w]here there is a significant possibility that a juror ... has been exposed to prejudicial extra-record information_” Dowling, 814 F.2d at 137 (emphasis added). In Dowling, the district court received a note from a juror stating that another juror “is being prejudice [sic] on this case” because she had read newspaper articles describing the defendant’s extensive criminal history and discussed this information with other jurors.\nIn this case, by contrast, the district court learned from the Deputy Clerk that the jurors had expressed “a general feeling of apprehensiveness about their safety.” Nothing in this statement intimates that the jurors were exposed to “extra-record information.” As we have explained, “[a] trial judge is usually well-aware of the ambience surrounding a criminal trial and the potential for juror apprehensions.” Eufrasio, 935 F.2d at 574. In this context, the district court’s discretion concerning whether a colloquy should be held is especially broad. See Grooms v. Wainmight, 610 F.2d 344, 347 (5th Cir.) (“The judge’s decision whether to interrogate the jury about juror misconduct is within his sound discretion, especially when the alleged prejudice results from statements made by the jurors themselves, and not from media publicity or other outside influences.”), cert. denied, 445 U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789 (1980). As one court has persuasively asserted,\n[i]n determining whether to [question jurors] ..., the court must balance the probable harm resulting, from the emphasis such action would place upon the misconduct and the disruption involved in conducting a hearing against the likely extent and gravity of the prejudice generated by that misconduct. We, as an appellate tribunal, are in a poor position to evaluate these competing considerations; we have only an insentient record before us.\nUnited States v. Chiantese, 582 F.2d 974, 980 (5th Cir.1978), cert. denied, 441 U.S. 922, 99 5.Ct. 2030, 60 L.Ed.2d 395 (1979).\nThe district court weighed these opposing interests and concluded that voir dire would make the problem worse. Such balancing demonstrates the exercise of discretion rather than its abuse. Our conclusion is reinforced by the fact that no further expressions of apprehensiveness occurred during the following eleven days of the trial and by the court’s instruction to the jury that “there was never the slightest realistic basis for any feeling of insecurity.” 4/21/92 Tr. at 93. Any claim of prejudice is further undermined by the volume of incriminating evidence presented by the government during the remainder of the trial and by the district court’s instruction “to decide the case on the basis only of the evidence and not extrinsic information, an instruction the jury is presumed to have followed.” United States v. Gilsenan, 949 F.2d 90, 96 (3d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2971, 119 L.Ed.2d 590 (1992).\nE.\nDefendants also contend that the cumulative effect of four evidentiary errors resulted in an unfair trial requiring reversal. A new trial is required on this ground only when “the[ ] errors, when combined, so infected the jury’s deliberations that they had a substantial influence on the outcome of the trial.” United States v. Hill, 976 F.2d 132, 145 (3d Cir.1992).\nOn four occasions, the court admitted evidence that was inadmissible or the witnesses made remarks that should not have been heard by the jury. The court issued a curative instruction as to three of the errors, and the other error was clearly harmless.\nThe defendants concede that these four errors, taken individually, do not require a reversal of their conviction. Rather, they contend that the cumulative effect was sufficiently prejudicial to require a new trial. We disagree. Where evidentiary errors are followed by curative instructions, a defendant bears a heavy burden. The Supreme Court has stated that we must “presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is .an overwhelming probability that the jury will be unable to follow the court’s instructions, and a strong likelihood that the effect of the evidence would be devastating to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1987) (citations and quotations omitted). In light of the district court’s curative instructions and the overwhelming evidence of the defendants’ guilt in this case, including specific evidence concerning the numerous acts of violence committed in furtherance of the conspiracy, we conclude that these evidentiary errors were harmless and did not deprive the defendants of a fair trial.\nF.\nDefendants’ final contention on appeal concerns the government’s failure to disclose until after trial two letters from the Drug Enforcement Administration (DEA) detailing payments made to two cooperating government witnesses, Dwight Sutton .and Darrell Jamison. Prior to trial, the defendants had made a general request for all materials that would be favorable to the- defense under the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, including information concerning arrangements with or benefits given to government witnesses. The government produced witness agreements (including immunity agreements) and information documenting payments to several cooperating witnesses. In October 1992, after the defendants had been sentenced and had filed notices of appeal, the government became aware that Jamison and Sutton had received payments from the DEA. Shortly thereafter, it provided this information to defense counsel.\nThornton and Jones then moved for a new trial pursuant to Fed.R.Crim.P. 33 on the ground of newly discovered evidence, asserting that the failure to disclose the DEA payments deprived them of the ability to cross-examine effectively two witnesses whose testimony and credibility were central to the government’s case. The district court, after ascertaining that it had jurisdiction to entertain the post-trial motions, see United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S.Ct. 2039, 2051 n. 42, 80 L.Ed.2d 657 (1984), denied the motions on their merits. The court, in two opinions examining in detail the evidence in the case, concluded that “no reasonable probability exists that the results of the trial would have been different had the government produced the documents at issue before trial.” App. at 55, S.App. at 93.\nThe government contends that we lack jurisdiction to review the denial of Thornton’s and Jones’ new trial motions because they failed to file a second notice of appeal from the district court’s denial of the post-trial motions. Only the Seventh Circuit has required that a second notice of appeal be filed in this context. See United States v. Harvey, 959 F.2d 1371, 1377 (7th Cir.1992). Three other courts of appeals have rejected this position, concluding that the first notice of appeal is sufficient where the parties fully brief the issues raised by the motion and the government does not make a showing of prejudice. United States v. Burns, 668 F.2d 855, 858 (5th Cir.1982); see also United States v. Davis, 960 F.2d 820, 824 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 210, 121 L.Ed.2d 150 (1992); United States v. Wilson, 894 F.2d 1245, 1251-52 (11th Cir.), cert. denied, 497 U.S. 1029, 110 S.Ct. 3284, 111 L.Ed.2d 792 (1990).\nAlthough this court has never expressly considered this issue, we have held, relying on Bums, that notice and prejudice are the touchstones for determining the timeliness of a premature notice of appeal in a criminal case. See United States v. Hashagen, 816 F.2d 899, 903-04 (3d Cir.1987) (in banc). Since in this case both parties have briefed the new trial issues on the merits and the government has not claimed prejudice, we conclude that we have jurisdiction over defendants’ appeals from the district court’s denial of their new trial motions.\nIn considering a district court’s ruling on a motion for a new trial based on the failure to disclose Brady materials, “we will conduct a de novo review of the district court’s conclusions of law as well as a ‘clearly erroneous’ review of any findings of fact where appropriate.” United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991). Where the district court applies the correct legal standard, its “weighing of the evidence merits deference from the Court of Appeals, especially given the difficulty inherent in measuring the effect of a non-disclosure on the course of a lengthy trial covering many witnesses and exhibits.” United States v. Pflaumer, 774 F.2d 1224, 1230 (3d Cir.1985) (citation omitted), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986).\nIt is evident that the information that was not disclosed fell within the Brady rule, and should have been disclosed by the government. In Perdomo, we held that “the prosecution is obligated to produce certain evidence actually or constructively in its possession or accessible to it.” 929 F.2d at 970. More recently, in United States v. Joseph, 996 F.2d 36 (3d Cir.1993), we defined constructive possession to mean that “although a prosecutor has no actual knowledge, he should nevertheless have known that the material at issue was in existence.” Id. at 39.\nWe understand the government’s brief to explain that the prosecutors themselves did not know of the DEA payments to the witnesses. That is hardly an acceptable excuse. The prosecutors have an obligation to make a thorough inquiry of all enforcement agencies that had a potential connection with the witnesses. See Perdomo, 929 F.2d at 970-71.\nAt argument, the government advised the court that it requested that the FBI and DEA agents advise it of any payments that would have to be disclosed under Brady, that the FBI agents responded but that the DEA agents made no response! There is no indication that the prosecutors made any followup inquiry. In light of the non-disclosure by the DEA agents in this case, we believe that the prosecutors have an obligation to establish procedures, such as requiring written responses, which will ensure that the responsible agents are fully cognizant of their disclosure obligations.\nNonetheless, not every failure to disclose requires reversal of a conviction. The defendants do not dispute that the district court applied the correct legal principles in ruling on their new trial motions. The court properly recognized that “ ‘[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (Opinion of Blackmun, J.)).\nTo determine the effect the non-disclosed information would have had on the jury’s verdict, the district court conducted a painstaking review of the evidence introduced by the government at trial. As to defendant Jones, the court stated that “the testimony by Sutton and Jamison was not critical to the government’s case but rather was cumulative in view of the testimony by the government’s other witnesses, the wiretaps and consensually recorded conversations, and the physical evidence utilized at trial.” App. at 49.\nSpecifically, the district court found, contrary to Jones’ argument, that several witnesses other than Sutton testified that Jones wore a “JBM” ring and gave orders to other members of the organization, that Jamison was not the only witness who participated in a recorded conversation with Jones, and that the conversation between Jamison and Jones was incriminating on its face even without Jamison’s testimony. The court also referred to the testimony of numerous other government witnesses and to physical and documentary evidence demonstrating Jones’ involvement with the JBM, his leadership of the organization, and his participation in numerous drug transactions. Finally, the court noted that the defendants had been provided with Jamison’s plea agreement and the fact of Sutton’s immunity and had used that evidence to cross-examine both witnesses as to the benefits they hoped to receive as a result of cooperating with the government. App. at 50-55.\nIn denying defendant Thornton’s motion for a new trial, the district court found:\nSutton did not provide any testimony, on either direct or cross examination, about Thornton. Jamison provided only minimal testimony regarding Thornton. He testified that he saw Thornton on one occasion ... in 1989 with co-conspirator Aaron Jones and Reginald Reaves and on another occasion at Jamison’s house when Thornton had a gun in his possession. Jamison did not implicate Thornton in any specific criminal conduct. In fact, Jamison did not even testify that he knew Thornton to be a member of the JBM.\nS.App. at 92 (record citations omitted). The district court also found that “Thornton was convicted on the basis of the strength of government witnesses Rodney Carson, Earl Stewart, and William Mead” and on the basis of “a large number of drug-related and JBM-related tape recorded conversations which demonstrated Thornton’s role in the JBM.” S.App. at 92. Thus, the court concluded that there was no reasonable probability that the outcome of the trial would have been different had the DEA payments been disclosed.\nOn appeal, defendants raise the same arguments they made before the district court. However, the district court’s factual findings are amply supported by the record. The court conducted the paradigmatic review required when the government fails to meet its Brady obligation. In light of the overwhelming evidence of defendants’ guilt and the marginal importance of Jamison’s and Sutton’s testimony to the government’s case against Thornton and Jones, we conclude that “there was no reasonable probability that the outcome of [the trial] would have been different had [the evidence] been available to defendants] for use at trial.” Hill, 976 F.2d at 139. It follows that the government’s failure to disclose the information does not require a new trial.\nIII.\nFor the foregoing reasons, we will affirm the judgments of conviction and sentence.\n. The jury found Fields not guilty of one count of using a firearm during a drug trafficking offense.\n. Under the Rule, \"Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions .constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”\n.The Rule provides in relevant part: “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separated trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”\n. Thornton’s citation to United States v. Ellis, 709 F.2d 688 (11th Cir.1983), is inapposite because in that case there were three separate conspiracies rather than a single common one.\n. Unlike Thornton and Jones, Fields did not make a motion for severance under Rule 14 before the district court. Thus, he has waived the right to present that issue on appeal.\n. The defendants cite for support United States v. McAnderson, 914 F.2d 934 (7th Cir.1990), and United States v. Watchmaker, 761 F.2d 1459 (11th Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 880, 88 L.Ed.2d 917 (1986), but we believe these cases support the government. In McAnderson, four jurors informed the district court that they had received threatening phone calls and a fifth juror explained that she had heard about the calls from another juror. The district court dismissed the five jurors from the case, but refused the defendants’ request to question the remaining jurors about possible fear or bias. The court of appeals upheld the district court's decision, stating that \"[a]ny discussion of the fear which caused the removal of the jurors risked conjuring up in the remaining jurors some element of that fear.” 914 F.2d at 944.\nIn Watchmaker, the district court met privately with one of the jurors who stated that she feared for her safety and reported that other jurors shared her apprehensiveness. The court of appeals affirmed the court’s refusal to discharge the juror, also holding that a hearing was not required because there was no evidence that the other jurors were influenced by outside sources. 761 F.2d at 1465-66.\n. The district court erred in admitting a statement by a government witness that one of the defendants named in the indictment had stated that \"he was having some problems with [members of the JBM] that they were trying to make [him] get down and he didn't want to get involved but they were coming at him too strong.” App. at 1683. In order for the coconspirator exception to the hearsay rule to apply, the declar-ant must be a member of the conspiracy at the time the statement is uttered. See, e.g., United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir.), cert. denied, - U.S. -, 112 S.Ct. 1511, 117 L.Ed.2d 648 (1992). Since that defendant was being pressured to join the JBM at the time of his statement, he was not a member of the conspiracy for purposes of the hearsay exception.\nHowever, any error in this regard is clearly harmless in light of the testimony of other witnesses that the JBM threatened drug dealers in Philadelphia to “get down or lay down.” App. at 874, 1282, 1334, 1516. See generally United States v. Casoni, 950 F.2d 893, 917-18 (3d Cir.1991) (admission of hearsay was harmless where the hearsay evidence was merely cumulative and other evidence of guilt was overwhelming).\n. The Rule states in relevant part: “A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case.” Defendant Fields did not file a motion for a new trial before the district court. It follows that we may not consider his claim on appeal. See, e.g., United States v. Dansker, 537 F.2d 40, 65 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).\n[END_CASE]", "role": "user" } ]
10,508,982	Frank G. McALEESE, Appellant at No. 92-1820, v. J.F. MAZURKIEWICZ, Warden; Attorney General of the State of Pennsylvania; District Attorney for Philadelphia County, J.F. Mazurkiewicz, Appellant at No. 92-1718	McAleese v. Mazurkiewicz	1993-07-27	Nos. 92-1718, 92-1820	United States Court of Appeals for the Third Circuit	{"judges": ["Before: BECKER, HUTCHINSON and WEIS, Circuit Judges."], "parties": ["Frank G. McALEESE, Appellant at No. 92-1820, v. J.F. MAZURKIEWICZ, Warden; Attorney General of the State of Pennsylvania; District Attorney for Philadelphia County, J.F. Mazurkiewicz, Appellant at No. 92-1718."], "opinions": [{"text": "OPINION OF THE COURT\nHUTCHINSON, Circuit Judge.\nAppellants are John F. Mazurkiewicz, Superintendent of the State Correctional Institute at Rockview, Ernest D. Preate, Jr., Attorney General of Pennsylvania, and Lynne Abraham, District Attorney of Philadelphia County (collectively the “Commonwealth”). They appeal an order of the United States District Court for the Eastern District of Pennsylvania granting a writ of habeas corpus to appellee Frank G. McAleese because his counsel was ineffective. The district court had subject matter jurisdiction under 28 U.S.C.A. § 2254 (West 1977). This Court has appellate jurisdiction under 28 U.S.C.A. §§ 1291 (West Supp.1993) and 2253 (West 1971). After careful consideration, we have concluded McAleese’s trial counsel was not constitutionally ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, we will reverse.\nI. Procedural History\nOn June 17, 1983, following a jury trial in the Philadelphia Court of Common Pleas, McAleese was convicted of third degree murder and possession of an instrument of crime in the killing of his ex-wife, Ramona Grabow-ski. McAleese retained a new lawyer post-verdict, who raised claims of ineffective assistance of counsel and trial error. Following lengthy evidentiary hearings, during the course of which McAleese’s second retained counsel withdrew and court-appointed counsel was provided, the court of common pleas denied post-verdict relief and sentenced McAleese to ten to twenty years imprisonment for murder, and a consecutive 2.5 to five years for the weapons offense.\nMcAleese appealed directly to the Pennsylvania Superior Court, which affirmed. See Commonwealth v. McAleese, 371 Pa.Super. 645, 534 A.2d 132 (1987) (unpublished mem. op.). The Supreme Court of Pennsylvania allowed an appeal limited to the issue whether trial counsel was ineffective in presenting an alibi defense. After briefing and argument, however, the supreme court dismissed the appeal as improvidently granted. See Commonwealth v. McAleese, 520 Pa. 92, 552 A.2d 667 (1989).\nOn March 27, 1989, McAleese filed a petition for a writ of habeas corpus in the district court. The magistrate judge to whom the district court assigned the case for a report and recommendation appointed counsel to represent McAleese in his quest for federal habeas relief.\nOn March 18, 1992, the magistrate judge issued a report and recommendation rejecting six of the seven claims McAleese had raised in his petition, but recommending that the writ be granted on McAleese’s Sixth Amendment claim that trial counsel was ineffective. The magistrate judge concluded that trial counsel’s investigation of facts that might have supported McAleese’s alibi defense was inadequate because counsel made no effort to obtain telephone records that were available for only a thirty to sixty-day period. McAleese claims that these records would have shown an absence of long distance calls placed about the time of the murder to the Wilmington office of James Natalie, Jr., Esq., a Delaware lawyer who was then representing McAleese in unrelated criminal insurance fraud proceedings in Delaware.\nMcAleese’s claim that trial counsel departed from Strickland’s objective standard of reasonableness when he failed to check the long distance records warrants separate discussion. McAleese claimed that he had telephoned Natalie at about 3:00 p.m. on the afternoon of the murder, close to the time it apparently was committed. Natalie likewise represented to trial counsel that he had received a phone call from McAleese at about that time, and that McAleese had not reversed the charges. The magistrate judge reasoned that the telephone records could have shown that no long distance telephone calls were made to Natalie’s Wilmington office from Philadelphia at or around 3:00 p.m., the approximate time the crime was committed; and, if so, that a jury could have inferred McAleese was in or near Wilmington at the time the crime was being committed in Philadelphia; Despite the present unavailability of the phone records and the consequent absence of any direct evidence of what they would show, the magistrate judge apparently inferred they would support McAleese’s alibi from evidence that showed he was in Wilmington at other times on the day of the crime even though those other times would not rule out his presence in Philadelphia at the time the crime was committed. The magistrate judge then went on to conclude that trial counsel’s failure even to attempt to retrieve the records was inexcusable and so did not meet the objective • standard of competence under Strickland.\nAlternately, the magistrate judge determined that trial counsel had promised the jury in his opening statement that he would present an alibi defense, and then unreasonably failed to do so by not calling Natalie as a witness to establish McAleese’s whereabouts at the time of the murder. The magistrate judge concluded that this mishandling of the defense likewise constituted ineffectiveness and undermined the reliability of the jury’s verdict. Therefore, he recommended the writ be granted unless the Commonwealth granted McAleese a new trial. See McAleese v. Mazurkiewicz, Civ.A. No. 89-2151 (E.D.Pa. Mar. 18, 1992) (hereinafter “Report and Recommendation”); Appendix (“App.”) at 1289-1327. The Commonwealth filed objections to the report and, after McAleese responded, the district court approved and adopted the report and recommendation and, on June 17, 1992, issued an order granting the writ unless the Commonwealth cured the constitutional error by retrying McAleese within 180 days.\nMcAleese filed a motion to alter or amend the June 17 order to shorten the time within which retrial would be allowed. Before the district court had ruled on McAleese’s motion, the Commonwealth filed a notice of appeal from the June 17, 1992 order of the district court granting McAleese’s petition for writ of habeas corpus. The district court denied the motion to alter or amend because of the pending appeal. On July 28,1992, this Court dismissed the Commonwealth’s appeal, with the agreement of the parties, as premature under Federal Rule of Appellate Procedure 4(a)(4). See McAleese v. Mazurkiewicz, No. 92-1579 (3d Cir. July 28, 1992). At that point, McAleese renewed his motion to alter or amend and filed a motion for enlargement, i.e., release from prison pending decision on his appeal. The Commonwealth responded by filing a motion to stay issuance of the writ pending appeal. On August 18, 1992, after hearing argument, the district court vacated its earlier order and granted McAleese’s motion to alter or amend the judgment by allowing the Commonwealth 120 days in which to retry McAleese instead of the 180 days for retrial provided by the original order. Simultaneously the court granted the Commonwealth’s motion for a stay pending appeal and denied McAleese’s motion for enlargement on bail. The Commonwealth then filed a timely notice of appeal in this Court.\nII. Statement of -Facts\nRamona Grabowski was brutally murdered between 2:30 and 3:00 on the afternoon of December 1,1982. The murder took place in the basement of her residence on Hawthorne Street in northeast Philadelphia. A post mortem examination revealed that Grabow-ski had suffered forty anterior stab wounds to the head, neck, trunk, and extremities, as well as anterior fractures of the skull with incised wounds to the brain, and laceration of her lower lip, both nipples, and the right labia. Her injuries also included cuts or wounds to her forehead, nose, right eyebrow, neck, and chin. Fourteen small wounds distributed over Grabowski’s back were caused by the knife or weapon that had inflicted the wounds on the front of her body completely passing through her.\nAt trial, the Commonwealth’s case-in-chief established that nine-year old Monica Hendricks, Grabowski’s daughter by another marriage, arrived home from school on the date of the murder at about 3:00 p.m. Monica entered the house through the basement and went up the cellar steps to the first floor. There she encountered her younger siblings, Tanya, Rebecca, and Joseph. They were screaming. Monica went back down to the basement. Seeing nothing, she returned to the kitchen. On her way back to the kitchen she looked out a window and saw a green car with stripes down its side and a luggage rack on its roof.\nEntreated by her younger sisters and brother, Monica returned to the basement where she saw a man walking out of the door. She described him as fat with gray hair, a mustache, blue eyes, no bottom teeth, and bumps on his face. She said that he was wearing a tan jacket and trousers of a darker brown. Monica testified at trial that he mumbled something as he walked out of the basement door. Later she identified McAleese as the man she had seen in the basement. After he left, Monica saw her mother lying in a corner of the basement, stabbed, with clothing stained and in disarray. .\nMonica ran for help and encountered her school’s crossing guards. She did not at once tell the crossing guards why she needed .help because she wanted to talk to her eleven-year old stepsister, Tara, first. When Tara arrived, Monica talked to her. Tara then told Mary Wijtyszyn, one of the crossing guards, that Monica said her mother had been stabbed.\nMary Wijtyszyn and another crossing guard, Harriet Hughes, went with Monica and Tara to their house. Mary Wijtyszyn testified that Monica said the man she saw in the basement was big with missing front teeth and some gray hair. Monica also said that she thought the man was Tanya’s and Rebecca’s father. Later Monica told Mary Wijtyszyn that “the man she had seen was Frank McAleese, Tanya and Rebecca’s father.” App. at 306. At the Grabowski residence, Monica also told Harriet Hughes that McAleese was the man she saw in the basement.\n• Later, during the evening of December 1, as Detective Roy Gibson of the Philadelphia Police Department was taking Monica to her grandmother’s home, she pointed out a white Ford Fairmount station wagon and, according to Detective Gibson, said that except for its color and the absence of a luggage rack and stripes on the side the car was the same as the one she had seen earlier that day. Then she spotted a car with a luggage rack identical to the one she had seen on the car outside her residence that afternoon and pointed it out. Detective Gibson, accompanied by Detective Bittenbender, located McAleese’s automobile in Delaware parked in a lot next to his apartment. It was a green station wagon with off-white stripes and matched Monica’s description of the car she had seen outside her home that afternoon.\nA search of McAleese’s apartment produced a knife with a brown wooden handle and metal blade. It was chemically analyzed and tested negative for human blood but positive for beef blood. In addition, a beige shirt and brown trousers were found in the washing machine, still wet, together with other clothes, including those of a child. The shirt and trousers were analyzed. They too tested negative for human blood. Monica testified at trial that the shirt looked like the one worn by the man whom she had identified as McAleese.\nEdgar Turner, an employee of Bell Telephone Company, testified from his company’s records that a five-minute telephone call was placed from McAleese’s place of business in Wilmington, Delaware to Grabowski’s residence at 1:10 p.m. on the date of the murder. Over the objection of McAleese’s trial counsel, the Commonwealth produced the testimony of witnesses Darleen Wetton and Regina Boyle, both of whom stated that Grabow-ski had told them during telephone conversations on the date of the murder that McAleese planned to visit her that day and bring her some watches to sell.\nMore specifically, Wetton testified that she had a telephone conversation with Grabowski between 1:15 p.m. and 1:45 p.m. on the day of the murder. During that conversation, Gra-bowski told her that Tanya’s father had telephoned her earlier that day. Grabowski referred to the caller as her ex-husband, but did not call him by name. Wetton estimated that Grabowski had approximately four or five ex-husbands, not including A1 Grabowski, the man to whom she was married on the day she died.\nBoyle testified that she had two “very long” telephone conversations with Grabow-ski on the day of the murder. The first call was at either 10:00 a.m. or 11:00 a.m. The second call was “around” 1:00 p.m. Grabow-ski told Boyle that Frank McAleese, her ex-husband, was “coming down to bring her some watches, and he was going to [meet] her at the 7-11” at three o’clock. App. at 248. Boyle said that the telephone conversation lasted until 2:30 p.m. without any significant interruptions. During the conversation, Grabowski never said, “ Wait a minute. I have to go to the door,’ or, ‘Somebody is at the door,’ or anything like that.” Id. at 257. Instead, Boyle testified that at 2:30 p.m. Grabowski “sounded very scary, and she hung up very quickly.” Id.\nWithout testifying himself, McAleese put on a three-pronged defense. He attacked the identification testimony of the sole eyewitness, nine-year old Monica Hendricks. He showed that he was an established businessman, that he was well-known as such among various tradespeople in Delaware, and that he was something of an expert in his field, having published an article in a trade magazine, thus attempting to suggest that he was not the kind of man who would commit such a brutal murder. Finally, McAleese presented a “loose alibi” defense through the testimony of five disinterested witnesses. App. at 1287. Although this defense did not place him beyond the scene of the crime at the time of the murder, it did place him in Delaware at various times between 10:00 a.m. and 1:30 p.m. and again at 5:45 p.m. on the day of the murder. The defense’s theory was that the loose alibi supported the evidence suggesting McAleese was not the type to commit a brutal murder because a violent murderer would be unlikely to go about his ordinary daily activities just before and after a killing as brutal as the killing of Ramona Grabowski. By this, together with some inconsistencies in Monica’s story and dental records showing McAleese had all his teeth after the crime, the defense hoped to raise in the jury’s mind a reasonable doubt about McAleese’s identity as the killer.\nPursuing the loose alibi defense, trial counsel called five disinterested witnesses to the stand to testify about McAleese’s whereabouts on the day of the murder. These witnesses were:\n—Florence Lincoln, an employee of U.S. Optical in Wilmington, who testified that McAleese had been in the store at 10:03 a.m. on the date of the murder to drop off his daughter’s or stepdaughter’s eyeglasses;\n—Mary DiGiacomo, who was employed by a hardware supply company and testified that she sold a dog house to McAleese between either 11:00 a.m. and noon or 12:30 p.m. and 1:00 p.m.;\n—Alvin Hall, Jr., then vice-president of General Engineering Supply Company of Wilmington, Delaware, who testified that he had a telephone conversation with McAleese between 10:00 a.m. and noon on December 1, and that McAleese also came to his office that same day between noon and 1:30 p.m.;\n—Tracy B. Sharp, a counterman at Green-berg Supply, who testified that he remembered McAleese being in the store on December 1 between noon and 1:30 p.m.; and —Dorothy Martinez, custodian of records for a physical therapist in Wilmington, who testified that McAleese kept a 5:45 p.m. appointment on December 1.\nThe loose alibi defense was originally to include the testimony of attorney Natalie, McAleese’s Wilmington lawyer in the unrelated criminal fraud case. Natalie would have testified that he had spoken to McAleese on the telephone shortly before 3:00 p.m. on the day of the crime. Before counsel called Natalie to the stand, he sought a ruling from the trial court that would have restricted cross-examination of Natalie to whether the phone call had in fact occurred. The trial court refused so to limit Natalie’s cross-examination and ruled instead that if Natalie testified, he would be subject. to cross-examination about the substance of his conversation with McAleese. Trial counsel did not challenge this ruling by informing the court that the substance of the conversation involved pending unrelated Delaware criminal charges against McAleese. Ultimately, trial counsel decided not to call Natalie as a witness.\nIII. Issues on Appeal\nThe Commonwealth argues that Mc-Aleese’s trial counsel was not constitutionally ineffective under the standard set forth .in Sirickland v. Washington, 466 U.S. at 668, 104 S.Ct. at 2052. Specifically, the Commonwealth argues that trial counsel’s decision not to call Natalie as a witness was a reasonable choice of strategy in light of the trial court’s refusal to limit the scope of cross-examination of Natalie’s telephone conversation with McAleese, a conversation in which Natalie and McAleese discussed unrelated pending criminal charges against McAleese. The Commonwealth also argues that trial counsel’s failure to seek Natalie’s phone records of incoming calls on the afternoon of the murder did not render his performance constitutionally deficient.\nIneffective assistance of counsel claims are mixed questions of law and fact. Id. at 698, 104 S.Ct. at 2070; Reese v. Fulcomer, 946 F.2d 247, 253 (3d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992). We subject the legal component to plenary review. Reese, 946 F.2d at 253. Our scope of review over the factual elements depend on their origin. While a state court’s conclusion that counsel rendered effective assistance is not a finding of fact subject to deference by a federal court, Reese, 946 F.2d at 254 (quoting Strickland, 466 U.S. at 698, 104 S.Ct. at 2070), state court findings of historical fact made in the course of deciding an ineffectiveness claim are presumptively correct if they meet the requirements of 28 U.S.C.A. § 2254(d) (West 1977), see Ahmad v. Redman, 782 F.2d 409, 411-12 (3d Cir.), cert. denied, 479 U.S. 831, 107 S.Ct. 119, 93 L.Ed.2d 66 (1986). In addition, when, as in the present case, the district court did not hold an evidentiary hearing and engage in independent fact finding, and the habeas evidence is limited to that contained in the state court record, our review of a district court’s decision to grant the habeas corpus petition is plenary. Lesko v. Owens, 881 F.2d 44, 50-51 (3d Cir.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990); see Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir.1993) (because district court never conducted evidentiary hearing, appellate court exercises die novo review over factual inferences district court drew from state record).\nIV. Discussion\nThe Sixth Amendment right to counsel encompasses the right to effective assistance of counsel. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64. A claim of ineffective assistance requires a defendant to establish that counsel’s representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. at 687-88, 104 S.Ct. at 2064-65. In order to demonstrate prejudice, the defendant must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Id. Stated differently, there will be no award of relief unless the defendant affirmatively establishes the likelihood of an unreliable verdict. See id. at 688-89, 691, 694, 104 S.Ct. at 2064-65, 2066-67, 2068. Keeping these standards in mind, we turn to the Commonwealth’s allegations of error.\nA. Counsel’s Decision Not to Call Natalie as a Witness\n1. The Opening Statement\nPreliminarily, we note the district court, in adopting the magistrate judge’s report and recommendation, found that McAleese’s trial counsel promised the jury an alibi defense in his opening statement, and that Natalie’s testimony that McAleese had telephoned him at approximately 3:00 p.m. on the day of the murder was the cornerstone of that defense. When counsel failed to call Natalie as a witness, the magistrate judge reasoned, the alibi defense became completely untenable. The Commonwealth contends trial counsel never made any such promise.\nThe failure of counsel to produce evidence which he promised the jury during his opening statement that he would produce is indeed a damaging failure sufficient of itself to support a claim of ineffectiveness of counsel. See, e.g., Harris v. Reed, 894 F.2d 871, 879 (7th Cir.1990) (Sixth Amendment violation where defense counsel failed to call witnesses who he claimed in opening statement would support defense version of shooting); Anderson v. Butler, 858 F.2d 16, 17-19 (1st Cir.1988) (Sixth Amendment violation where counsel failed to present promised expert medical testimony that defendant had acted without cognizance of, or feeling for, actions). The rationale for holding such a failure to produce promised evidence ineffective is that when counsel primes the jury to hear a different version of the events from what he ultimately presents, one may infer that reasonable jurors would think the witnesses to which counsel referred in his opening statement were unwilling or unable to deliver the testimony he promised. See Anderson, 858 F.2d at 18.\nTo determine whether trial counsel made a promise to produce evidence that he did not fulfill, we turn to the text of his opening statement. The portion of defense counsel’s opening statement on which the magistrate judge and the district court relied stated:\nWe will show you [that] on the day of this crime, December 1st, ’82, my client wasn’t even in the City of Philadelphia.\nMy client wasn’t even in the State of Pennsylvania. He was in Delaware, where he lives; carrying on his daily activities, running a number of errands, going to a number of different stores for different things. We will show you what he did from the early part of the day throughout the late evening, and we will show you [that] throughout the morning he went throughout several stores, and we won’t be bringing in witnesses who are friends of Mr. McAleese, who are acquaintances of his.\n*****\nWe will show that he ... went to the hardware store, bought a dog house there. We will show you that he ’ went to his house where he worked on some estimates. We will show that he went to Greenberg Supply Company, where he had discussions with a number of people there, and they will testify that he was there in connection with his business, as I told you previously, Delaware Energy and Engineering Corporation, and that they know him as a business client there, and they will tell you that he was there until sometime in the early afternoon, that he then went home, worked on various matters, plans estimates, and you will hear then at 5:AS — excuse me — 5:30 that evening, Mr. McAleese went to a previously scheduled appointment he had with a physical therapist, Frank Kushner,....\nReport and Recommendation at 18-19; App. at 1306-07 (emphasis added by magistrate judge).\nWe see no promise by McAleese’s counsel to produce Natalie’s testimony or even to establish that McAleese was in Wilmington at the time of the murder: We do see a carefully worded recitation of evidence the defendant did produce. From it, counsel hoped to lead the jury into inferring from McAleese’s activities in Wilmington on the day of the murder that there was a reasonable doubt about his presence in Philadelphia at the time and place the crime was committed, even though that evidence might not make impossible his presence at the crime scene when the crime was committed. Trial counsel did not refer to the precise time of the murder. He did not promise to provide witnesses who would testify that McAleese was elsewhere at the time of the murder. He did not promise any airtight alibi. He merely summarized evidence that was later produced from which a jury could be left with a reasonable doubt about McAleese’s identity as his ex-wife’s killer. Trial counsel did not promise the jurors that they would hear any evidence they did not. The district court erred in concluding that trial counsel failed to fulfill any promise he made to the jury in his opening statement.\n2. The Decision Not to Call Natalie\n'The district court also held that trial counsel’s failure to call Natalie constituted ineffectiveness. The Commonwealth argues, however, that counsel’s mid-trial decision not to call Natalie was a reasoned, strategic decision made after considering the trial court’s refusal to restrict cross-examination of Natalie, as well as counsel’s assessment of the ease at that point. See Brief for Appellants at 25; see also United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177 n. 19 (3d Cir.) (“We do not intimate ... that a lawyer of normal competence could not promise to produce evidence in his opening statement and then change his mind during the course of the trial and not produce the promised evidence.”), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). Thus, even if we could imply into the opening a promise to establish McAleese’s presence in Wilmington at the time of the murder by calling Natalie to testify about the 3:00 p.m. phone call, his later decision not to do so is not necessarily ineffective. Trial counsel testified in the state court post-trial proceedings that he did not call Natalie because he did not want the jury to learn of the unrelated criminal charges pending against McAleese for fear that knowledge of them would destroy the image of McAleese as a businessman and father that he had attempted to create. The district court rejected this reason as “little more than a post hoc rationalization.” Report and Recommendation at 29; App. at 1317.\nThis finding is not subject to limited, deferential review under the clearly erroneóus standard because the district court made it on the basis of the state court record. See Lesko, 881 F.2d at 50-51, 51 n. 8. McAleese argues that no evidence was produced at trial from which the “model citizen” image counsel was trying to project could be inferred or suggested. We, however, see nothing in the record that would indicate trial counsel’s proffered explanation for not calling Natalie was not a reasoned, strategic decision. The evidence the defense did produce had a tendency to support the image counsel sought to create — evidence to which he referred in his closing. For example, in his summation counsel described McAleese as “a workman, somebody who works on chimneys, works on boilers, heaters and air-conditioners.” App. at 636. This description, based on evidence, supports the inference that McAleese was a hard-working member of the community. Trial counsel later bolstered that inference by further describing McAleese as “a man who we know is self-employed, who works out of his home address, works out of his home.” Id. at 637. This description was also supported by evidence. The testimony of the five disinterested alibi witnesses painted a picture of McAleese as an ordinary citizen engaged in the affairs of everyday life: dropping off eyeglasses to be repaired, purchasing equipment for his business, buying a doghouse, and going to physical therapy. Any evidence of criminal charges pending against McAleese would, have instantly distinguished him from an average citizen. •The jury’s failure to embrace this image does not make counsel’s efforts to support it, and avoid damaging evidence inconsistent with it, unreasonable.\nMoreover, the district court’s characterization of trial counsel’s explanation as only “post hoc rationalization” is contrary to a finding implicit in the state' trial court made in connection with its earlier ruling on McAleese’s petition for post-conviction relief. See Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983) (“federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them”); see also Ahmad, 782 F.2d at 411-12 (state court findings of fact presumed correct if fairly supported by record). The trial court expressly determined that defense counsel\nas a matter of trial strategy decided, that in light of the court’s evidentiary ruling, it would be unwise and damaging to defendant’s image if the nature of the open criminal charges were made known to the jury. Viewed in the context of the entire defense, said decision was not unreasonable.\nApp. at 1367. The district court’s determination that counsel’s decision not to call Natalie was “post-hoc rationalization” instead of a reasoned, strategic decision is not supported by the record and is contrary to the state court’s finding that it was. See Hakeem, 990 F.2d at 767-68 (presumption of correctness attaches to subsidiary or historical facts in speedy trial calculation).\nThe district court also held that counsel was objectively deficient in failing to apprise the trial court about the nature of the telephone conversation between McAleese and Natalie, and in failing to argue that it would be unfairly prejudicial to permit the Commonwealth to cross-examine Natalie on unrelated criminal charges that were never prosecuted. The trial judge specifically stated at the post trial hearing,\n[Wjhile we are on this subject and again I want to make the record very clear it is my recollection that I merely ruled that if Mr. Natalie was questioned about these phone calls and he actually spoke on the phone with him, that that would open the door for cross-examination by the Commonwealth as to the substance of the conversation. However, I also want to make it clear I did not know what the substance of the conversation was. I did not know that it pertained to any prior crime or anything of that nature. I just ruled as a general proposition that where a party is called and testifies that a phone call was made, that that opens the door on the issue of credibility to cross-examination as to the content of the conversation.\nApp. at 979 (emphasis added). The district court emphasized the above language in determining that counsel should have informed the trial court of the substance of the phone call. See Report and Recommendation at 30 n. 12; App. at 131 n. 12.\nThe Commonwealth argues that counsel’s failure to apprise the district court of the substance of the conversation was of no moment because “Pennsylvania law would have permitted the prosecutor to cross-examine Natalie about the substance of the phone conversation.” Brief for Appellants at 30 (citing Commonwealth v. Saxton, 516 Pa. 196, 532 A.2d 352 (1987)). In Saxton, the defense had presented testimony that the police had not considered Saxton a suspect at the outset of the investigation. In rebuttal, the prosecution called as a witness a detective who made reference to the police department’s possession of Saxton’s photograph and fingerprints in order to establish that the police had in fact made a diligent effort to locate Saxton, using his photograph and prints as a starting point. Defense counsel did not object to the detective’s testimony. 532 A.2d at 357. This could have enabled the jury to infer that Saxton had a prior criminal record. The Pennsylvania Supreme Court commented:\nSuch testimony on behalf of the Commonwealth clearly did not violate the prohibition against referring to prior, unrelated offenses of an accused. Evidence of prior crimes, though generally inadmissible, may be admitted if relevant to prove something other than a defendant’s propensity for committing crimes. E.g., Commonwealth v. Claypool, [508 Pa. 198] 495 A.2d 176 (1985); Commonwealth v. Russell, [459 Pa. 1] 326 A.2d 303 (1974). One exception to the general prohibition is that the Commonwealth may introduce evidence tending to show prior offenses if the purpose is to rebut statements which create inferences favorable to the accused. Commonwealth v. Roots, [452 Pa. 535] 306 A.2d 873 (1973). Therefore, under the “reasonable basis” test as outlined herein, it was appropriate for defense counsel to refrain from objecting to the detective’s reference. Counsel is not ineffective for declining to make a meritless objection.\nId. (citations omitted).\nSaxton is, however, distinguishable from the present situation. Here, there was no compelling reason to disclose the pending criminal charges that were the substance of McAleese’s conversation with Natalie. At the least, it could have been strongly argued that under the circumstances the disclosure of these pending charges would have been more prejudicial than probative. If, for example, McAleese had taken the stand and testified that he had no criminal charges pending against him, it might be likely that the substance of his conversation with Natalie would have been relevant and admissible to rebut McAleese’s credibility. McAleese, however, did not testify. Here, the disclosure of the pending insurance fraud charges against McAleese would have had no probative value in determining Natalie’s credibility nor would it have had any logical tendency to prove or disprove Natalie’s claim that the telephone call was made. Because disclosure of the charges would have been merely incidental to the Commonwealth’s attack on Natalie’s credibility, it would have fallen within the “prohibition against referring to prior, unrelated offenses of an accused.” Id. As a general matter, that prohibition is recognized by Pennsylvania. See id.\nThe Commonwealth notes that the Pennsylvania Superior Court, in affirming McAleese’s conviction, specifically found that the trial court did not err in its ruling, and that cross-examination of Natalie about the nature of the conversation would have been proper. See Brief for Appellant at 30. This decision, however, was not made in the context of a challenge by McAleese to the effectiveness of his counsel, but rather in an attack on the trial judge’s ruling. The superior court held, “The trial judge cannot be faulted for denying a motion to limit cross-examination if he was not told what information was likely to be elicited.” App. at 1343. The court continued:\nThe scope of cross-examination is properly within the discretion of the trial judge and the cross-examiner must be afforded the necessary latitude to insure a fair trial. Cross-examination may be employed to test a witness’ story, to establish his motive for testifying and to impeach his credibility. Appellant was presumed to have been familiar with these principles when he insisted that Natalie take the stand. He cannot now seek to present limited evidence on his own initiative and for his own purposes without allowing the Commonwealth full opportunity to explore this evidence.\nId. (citations omitted). Thus, the superior court held only that the trial court did not err in ruling, based on the information counsel made available to it, that the Commonwealth could cross-examine Natalie on the substance of his conversation with McAleese. This statement does not support the Commonwealth’s argument that counsel was not ineffective in failing to inform the court of the substance of the conversation, because it was the trial court’s lack of such knowledge that rendered its ruling correct.\nDespite our rejection of the Commonwealth’s primary arguments, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. Thus, in order to establish his counsel’s deficiency, McAleese had to show that the failure to inform the trial court of the substance of his telephone conversation with Natalie was an “error[ ] so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064.\nEven if trial counsel had informed the court of common pleas of the substance of the conversation and had received a favorable ruling limiting cross-examination to whether the call in fact took place, trial counsel could have still reasonably decided it was best not to call Natalie to testify. Were Natalie, an attorney, to testify that he talked with McAleese about the time of the crime without disclosing the topic of his conversation, the jury could have speculated about that topic. If it did so, it might have concluded that McAleese had spoken to Natalie in connection with the murder. Simply put, calling Natalie as a witness may have been more damaging to McAleese’s defense than not calling him. Because counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” id. at 690, 104 S.Ct. at 2066, we cannot hold his failure to inform the trial court of the substance of McAleese’s telephone conversation with Natalie was “[unjreasonable considering all the circumstances,” id. at 688, 104 S.Ct. at 2065, or “outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. at 2066.\nNevertheless, it remains possible, as noted above, that the prejudicial effect of disclosing the substance of McAleese’s conversation with Natalie would have outweighed any probative effects of such disclosure. We will thus assume, without deciding, that trial counsel’s failure to advise the court of the topic of the conversation rose to the level of a constitutionally deficient error. Indeed, this Court has “read Strickland as requiring the courts to decide first whether the assumed deficient conduct of counsel prejudiced the defendant.” United States v. Fulford, 825 F.2d 3, 8 (3d Cir.1987); see McNeil v. Cuyler, 782 F.2d 443, 449-50 (3d Cir.), cert. denied, 479 U.S. 1010, 107 S.Ct. 654, 93 L.Ed.2d 709 (1986). Strickland itself recognized that\n[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the .ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.\n466 U.S. at 697, 104 S.Ct. at 2069; see, e.g., Cuyler, 782 F.2d at 451 (reversing order granting writ on grounds of no prejudice; while counsel’s representation was assumed deficient, defendant received fair trial “even if his defense was flawed”).\nThus, even assuming that trial counsel’s failure to advise the court of the substance of McAleese’s telephone conversation with Natalie fell below prevailing professional norms and thereby satisfied the first prong of the Strickland test, McAleese must still show that he was prejudiced by this failure. As Strickland recognized,\nRepresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.\n466 U.S. at 693, 104 S.Ct. at 2067.\nTrial counsel conceded at McAleese’s Big-hum hearing that Natalie could not have established where McAleese was at the precise time of the murder. Only McAleese could have done that. Moreover, Natalie could not have established where McAleese was calling from if he had testified, unless counsel had obtained the telephone records, which he did not. Without those phone records, Natalie’s testimony did no more than bolster McAleese’s “loose alibi” theory that his normal, everyday activities are inconsistent with his alleged commission of the particularly heinous murder at issue. Because of the marginal utility of Natalie’s testimony, counsel’s failure to advise the trial court of the substance of Natalie’s telephone conversation with McAleese did not “so undermine[ ] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 669, 104 S.Ct. at 2055.\nB. The Telephone Records\nFinally, the magistrate judge determined McAleese’s trial counsel was deficient in failing to investigate telephone company records to determine whether they showed any long distance phone calls to Natalie’s office during the critical time period from 2:30 to 3:00 p.m. on the day of the murder, December 1,1982. If they did not, McAleese contends, they would, when coupled with Natalie’s testimony about a 3:00 p.m. phone call, strongly support his alibi defense. In December 1982, the telephone company retained records reflecting the origin of long distance, but not local, phone calls for thirty to sixty days. There is evidence that these records could have been subpoenaed within that period to determine whether Natalie received any long distance calls during the relevant time. Specifically, McAleese consulted trial counsel within that period and says he informed him of his phone calls to Natalie. The absence of any long distance calls about the time of the murder would have permitted the jury to infer that McAleese was not calling Natalie from Philadelphia, so he was not in Philadelphia at the time of the murder and thus could not have committed the crime.\nThe right to effective assistance of counsel encompasses counsel’s duty to investigate. See United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989) (noting general agreement among courts of appeals that failure to conduct any pretrial investigation constitutes clear instance of ineffectiveness) (citations omitted). In this context, “ ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ ” Id. at 710 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066).\nMcAleese’s trial counsel stated at the post-trial hearing that he did not know that the telephone company could identify the origin of non-collect, long distance calls from its records of activity at the receiving phone. McAleese testified that he had told counsel about the ability of the phone company to retrieve such records and had asked him to obtain them. Faced with this conflicting evidence, the trial court decided that trial counsel had thoroughly investigated and considered all the areas about which McAleese complained post-verdict. Implicit in this conclusion is a finding that trial counsel’s testimony was credible. This finding is presumptively correct and should not be disturbed by a federal court on habeas review if it is fairly supported by the record. See Reese, 946 F.2d at 254 (“ ‘underlying facts about counsel’s performance are entitled to the presumption of correctness under 28 U.S.C. § 2254(d), if fairly supported by the record’”) (quoting Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1594, 113 L.Ed.2d 657 (1991)); accord Hakeem, 990 F.2d at 767-68; see also LaVallee v. Delle Rose, 410 U.S. 690, 694-95, 93 S.Ct. 1203, 1205-06, 35 L.Ed.2d 637 (1973). Therefore, we conclude that trial counsel did not actually know that he could have retrieved the records at issue.\nThe fact that counsel was not told about this possibility and was otherwise unaware of it, however, does not end the inquiry. The question remains — was trial counsel’s lack of knowledge objectively reasonable? In deciding it, we must remember that Grabowski’s murder occurred in December 1982, and McAleese was convicted in June 1983. Thus, the specific question at hand is whether trial counsel’s lack of knowledge of the technology available to retrieve records of incoming telephone calls at a particular location fell beneath prevailing professional norms in late 1982 through mid-1983.\nThe magistrate judge held that it was objectively unreasonable for trial counsel to be unaware of the phone company’s ability to identify the source of incoming long distance calls because “the petitioner’s lawyer at the post trial hearing had, apparently, no such difficulty.” Report and Recommendation at 28; App. at 1316. Beyond the fact that McAleese’s counsel during the post-trial proceedings knew of the retrieval technology, the record contains no evidence supporting the magistrate’s implicit determination that all competent lawyers should have known about the technology in 1982.\nSome of the questions that the prosecutors and the trial court asked during the post-verdict evidentiary hearings indicate an unfamiliarity with the retrieval technology even at that time. For example, during the post-trial proceeding, the following colloquy took place between the court and the telephone company representative:\nTHE COURT: All right. Let me ask a few questions because I want to be absolutely sure of this.\nAs I understand what you are telling me, Mr. Brook, you do maintain records which show out-going calls, I am taking this by steps, show out-going calls and to a designated number.\nTHE WITNESS: If it is a toll call and it would be reflected on the bill, yes.\nTHE COURT: Well, the ordinary telephone.\nTHE WITNESS: A local call would not be reflected on the bill. Only toll calls would be shown on the bill.\nIf I am using my phone to call from Philadelphia to Philadelphia, that is not on the bill.\nIf I use my phone to call from Philadelphia to Trenton, New Jersey, it would be on the bill.\nTHE COURT: It’s also possible, as I understand it in the same type of situation where it’s a toll call, to ascertain from records of the receiving phone the phone from which a call was made. That’s also on your tape, but in each case, these are kept for very brief periods of time, until billing has been accomplished.\nIs that it?\nTHE WITNESS: Yes, the tapes are produced which we call automatic AMA tapes that are in this central office are then put into the billing computer and the bill is processed.\nThose other tapes are gone forever.\nTHE COURT: No reason to keep them for a permanent record of it because you are interested in billing, rather than preserving records.\nTHE WITNESS: Right.\nTHE COURT: All right.\nApp. at 803-04.\nIn addition, the following colloquy occurred during the prosecution’s cross-examination of the telephone company representative:\nQ: ... You mentioned that if a person is to place a call to someone else, that the person who is calling — let’s take a local call — if somebody makes a local call in Delaware and calls somebody anywhere else in Delaware and it’s a local call, are you able to trace from either telephone where the call was made or received?\nA: No, sir. That is a local call and because of that, no record of that call is maintained.\nsji ifs ijs # :>{\nQ: This retrieval system that Mr. Preminger was asking, you about as far as if I made a call from Philadelphia to Delaware, and then the person in Delaware naturally picks the phone up, and then you are asked at a later time, are you able to find out the number that was called from Philadelphia to Delaware?\nA: Yes, sir.\nQ: And what about if you only had the number of the person in Delaware, let’s say, a person comes to you and says, “I don’t know the phone number of where or who called me in Philadelphia, but here is my phone number,” are you able to then tell the person in Delaware where somebody in Philadelphia called him from?\nA: We could probably do that, yes, the same.\nQ: And that’s based on this taping system you have?\nA: Yes.\nQ: And that’s what you only keep for a short period of time.\nIs that correct?\nA: Yes.\nQ: As for long distance.\nWhat about for local calls?\nA: No, there is no record of local calls maintained.\nQ: So if somebody were to call — if I were to call from an anonymous phone number in Delaware and then I called let’s say 111, okay let’s say that’s somebody's] phone number, and you then went and subpoenaed or produced the numbers or the records for 111, and it was a local call, is there any way you could tell what number I called in?\nA: No, sir.\nTHE COURT: In other words, toll calls are the only ones — records of toll calls are the only ones kept.\nTHE WITNESS: Yes.\nTHE COURT: All right.\nId. at 805-07.\nSimilarly, at the post-trial proceedings the following exchange took place during defense counsel’s direct examination of trial counsel:\nBY MR. GELB:\n# * * ❖ *\nAre you aware of a procedure whereby magnetic tapes can be obtained from the phone company which would verify whether or not a long distance call had been made from one number to another?\nMRS. FOULKES [for the prosecution]: Your honor, I have to object on the ground of a highly speculative premise and that premise is and I believe based on the questions of the Bell Telephone representative that had been called before that before such a communication could be investigated one would have to know from what number the telephone call was made.\nIn other words, you couldn’t relate back from the receiving call to some unknown long distance number to determine where that call was placed unless it had been placed in a collect call situation or some situation where a recording would be made.\nI think we are getting into the relm [sic] of highly speculative availability of certain evidence, and to subject counsel to questioning in that regard I think really won’t further this inquiry.\nTHE COURT: A Bell Telephone representative did appear at the last hearing as I recall and rather definitively discussed this entire situation as to whether this was possible, feasible, was it done, all that type.\nMRS. FOULKES: Yes. My understanding of the testimony was that where you have one number you don’t have to have both numbers. You can have one number in order to be able to determine what calls were received or what calls went out.\nTHE COURT: From the calling number.\nMRS. FOULKES: The calling number, the receiving number, that’s the question.\nMR. GELB: The received number which in this case presumably would be Mr. Natalie’s number. That’s the point I am making and I think that was the gist of his testimony.\nMRS. FOULKES: That’s counsel’s interpretation of it. I will object subject to it’s [sic] being determined to be irrelevant later.\nThat was not my understanding of the reading of that representative [sic] testimony.\nTHE COURT: That wasn’t mine, either.\nHowever, go ahead.\nId. at 972-75.\nBecause there is no evidence in the record to support the conclusion that a competent criminal defense attorney should have known about the retrieval technology in late 1982 through mid-1983, we cannot conclude that the failure of McAleese’s trial counsel to attempt to retrieve Natalie’s phone records was objectively unreasonable.\nMoreover, even if trial counsel should have known of the available technology, McAleese still must show he was prejudiced by the absence of the phone records in order to prevail. The expert testimony that McAleese presented at the post-trial eviden-tiary hearing in 1985 showed only that retrieving records of incoming long distance calls was indeed possible and might have been accomplished. The expert witness testified:\n[I]t is possible to do that within a certain time-frame, and I am talking about a relatively short time-frame, that if a call is made to a number, we can go back over the tapes and retrieve information similar to what you are requesting, but as I said, that’s a very short time-frame [thirty to sixty days] and we do not normally do that unless it is a life and death type of situation.\nId. at 800. The expert later testified that the phone company would retrieve the calls pursuant to judicial subpoena:\nGiven that our system is not perfect within the relms [sic] of what we can do, we most likely, if we were ordered to do so, with great effort [would retrieve them]. It is not an easy thing to do, but we could probably find out where that call came from.\nId. at 800-01.\nThis testimony indicates that it was more likely than not that had trial counsel subpoenaed phone records of Natalie’s long distance calls, he probably would have gotten them. Once the records were subpoenaed, however, they would become equally available to the Commonwealth. They would have shown one of two possibilities: Either (1) a call or calls at the crucial time from Philadelphia, thus precluding the possibility of alibi, or (2) no calls from Philadelphia, thus supporting the inference that McAleese was in Wilmington or at least not in Philadelphia at the pertinent time. We have no way of knowing which.\nThe possibility of exoneration stemming from the phone records is not enough to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding, would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. As the Strickland Court emphasized, it is not enough to show that the error may have had some “conceivable effect” on the outcome, for “not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” Id. at 693, 104 S.Ct. at 2067; see Larsen v. Maggio, 736 F.2d 215, 218 (5th Cir.) (petitioner must demonstrate that “might have beens” would have been important enough to affect proceedings’ reliability), cert. denied, 469 U.S. 1089, 105 S.Ct. 598, 83 L.Ed.2d 707 (1984).\nMcAleese cannot contend that his trial counsel abdicated the duty to investigate recognized in Strickland. See Gray, 878 F.2d at 712 (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2065-66). The record shows that trial counsel tracked down and presented as witnesses five disinterested persons who testified as to McAleese’s whereabouts on the day of the crime. This testimony supported a plausible defense. The telephone records had the potential of destroying that defense. If the telephone records had indeed shown a call to Natalie’s office from Philadelphia at approximately 3:00 p.m. on December 1, 1982, the prosecution could have subpoenaed them as evidence in its case-in-chief against McAleese. Even assuming that trial counsel’s failure to attempt to retrieve Natalie’s phone records fell below prevailing professional norms, McAleese has not shown he suffered prejudice from the- absence of the phone records at trial.\nFinally, we note that the Commonwealth’s case against McAleese, while not iron-clad, was not a weak one. Cf. Strickland, 466 U.S. at 696, 104 S.Ct. at 2069 (“a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support”); Gray, 878 F.2d at 711. Considering the brutality of the murder and all the evidence indicating McAleese did carry out his intent to call on Mrs. Grabowski about the time she was brutally murdered, we note that the defense successfully avoided a verdict of first degree or capital murder. We are unable to call such a, defense ineffective. Trial counsel may not have tried a perfect case, but a criminal defendant is not entitled to a perfect lawyer. None has ever existed. We hold that McAleese’s trial counsel was not ineffective.\nV. Conclusion\nStrickland emphasizes that a court’s evaluation of an attorney’s performance must be “highly deferential” in order to diminish the possible distortions of hindsight. 466 U.S. at 689, 104 S.Ct. at 2065. A reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. Even if counsel’s performance falls beneath prevailing professional norms, his client must still establish that he has suffered prejudice from that deficient performance in order to prevail on a claim of ineffective assistance of counsel. Id. at 692, 104 S.Ct. at 2067. Applying these principles, we conclude that McAleese’s trial counsel was not constitutionally deficient.\nFirst, his decision not to call Natalie as a witness did not break any promise, either implicit or explicit, to the jury to provide an alibi defense. Moreover, that decision reflects sound trial strategy. Standing alone, Natalie’s testimony would have done little more than bolster McAleese’s loose alibi defense. Coupled with the phone records — -if they existed, were retrievable, and showed no long distance calls — his testimony would have been meaningful, but the jury would have been left to speculate about the nature of McAleese’s call to Natalie. Trial counsel had built an image of McAleese as a hardworking citizen, and he understandably did not want to risk shattering that image.\nSecond, the record establishes that trial counsel did not subjectively know that Natalie’s incoming telephone calls could be retrieved, and there is no substantial evidence supporting the conclusion that counsel should have known in late 1982 through mid-1983 that such technology existed. Even assuming that trial counsel’s lack of knowledge was objectively unreasonable, McAleese suffered no prejudice from the absence of the records of Natalie’s incoming calls because the possibility of exoneration arising from those records was minimal under the circumstances of this case.\nFor these reasons, the representation McAleese’s trial counsel provided comported with the Sixth Amendment guarantee of effective assistance of counsel. Accordingly, we will reverse the district court’s order granting McAleese a writ of habeas corpus.\n. McAleese filed an earlier petition for writ of habeas corpus in the district court before the conclusion of the post-verdict proceedings in state court. The district court dismissed it for failure to exhaust state remedies. See McAleese v. Dukes, Civ.A. No. 86-4370 (E.D.Pa. Jan. 9, 1987). This Court denied a certificate of probable cause to appeal on March 25, 1987. See McAleese v. Dukes, No. 87-1036 (3d Cir. Mar. 25, 1987).\n. Natalie also did not think that McAleese had placed the call from a pay phone because he did not hear the sounds of coins being dropped in a box.\n. On September 1, 1992, McAleese filed a motion in the district court for reconsideration of the order denying enlargement pending appeal. The district court denied reconsideration on September 15. McAleese filed a timely notice of appeal in this Court on October 1. It was docketed as a cross-appeal. Shortly thereafter, McAleese filed a motion for enlargement and/or bail in this Court. We denied it on October 19, 1992. McAleese agrees with the Commonwealth that his cross-appeal from the district court's denial of his motion for reconsideration was thereby rendered moot. He nevertheless urges this Court to grant enlargement under Federal Rule of Appellate Procedure 23 concurrently with af-firmance of the district court’s grant of habeas corpus relief. In view of our disposition, we will deny that request.\n. At the time of the murder in December 1982, Tanya was five years old and Rebecca was three. In his amended complaint for divorce from Ramona Grabowski, the victim, McAleese stated that there were no children born of the marriage. Thus, McAleese disavows paternity of either. See Brief for Appellee at 12. The Commonwealth introduced evidence at trial that McAleese and Grabowski had been married on Juné 24, 1977 and divorced on October 1, 1979, see trial record, Exhibit C-43.\n. A later examination of the automobile revealed a reddish brown stain above the door handle in the interior on the driver’s side. Another reddish brown stain was found on the exterior door on the driver’s side just below the door handle. Chemical analyses of the stains, as well as a floor mat and a vinyl portfolio taken from the automobile, tested negative for human blood.\n. Of course, Natalie could -not have testified regarding the point of origin of McAleese’s call.\n. Natalie also would have testified that he had received a phone message regarding a call from McAleese at 8:33 a.m.\nAt the post-verdict evidentiary hearing, Natalie testified that he dictated a memo of his phone conversation with McAleese within a half hour of the 3:00 p.m. phone call. In that memo he noted that McAleese had called \"twice during the afternoon” and that he finally had spoken to him shortly before 3:00 p.m. Natalie identified photocopies of two phone message slips taken by his secretary from a person identifying himself as Frank McAleese. One showed a call at 8:33 a.m. and one showed a call at 2:38 p.m.\nMcAleese’s trial counsel, on the other hand, testified that he had been provided with only one phone message slip — the one showing a call at 8:33 a.m. He also testified, however, that his investigator had spoken to a secretary in Natalie’s office who said she had taken a call from someone identifying himself as Frank McAleese at around 3:00 p.m. in the afternoon. She said the caller hung up before completely spelling his name, and that she had noted the call on a piece of scrap paper, not a phone message slip of the sort Natalie produced for McAleese at the post-verdict hearing. When trial counsel interviewed her, the piece of scrap paper no longer existed and she was unable to provide him with it. In examining the photocopied message slip of the purported 2:38 p.m. phone call at the post-verdict evidentiary hearing, trial counsel opined that it looked like a doctored version of the 8:33 a.m. message.\n. McAleese contends the desired image was destroyed when two of the five alibi witnesses testified that McAleese had been drinking beer when they encountered him. Trial counsel suggested during summation that it is not \"unusual for a working man to have a couple of beers during the course of the afternoon,” and that this evidence was irrelevant to the question whether McAleese in fact committed the murder. App. at 638-39. Trial counsel’s comments were a reasonable attempt to deal with evidence that could have had a negative impact on the jury’s perception of his client but did not necessarily destroy the image the defense sought to project.\n. The purpose of a hearing under Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), as modified by Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), is to determine whether the prosecution may cross-examine the defendant with evidence of his crimen falsi if he takes the stand, and also to forewarn the defendant that if he chooses to take the stand he may be impeached by prior crimen falsi convictions. Commonwealth v. Ly, 528 Pa. 523, 599 A.2d 613, 620 (1991). The trial court in the present case ruled that the Commonwealth would be permitted to impeach McAleese should he testify. Because McAleese had a lengthy criminal record, he did not testify as a result of this ruling.\n. Whether counsel’s failure in this regard was constitutionally ineffective is a separate issue discussed in Part B infra.", "type": "majority", "author": "HUTCHINSON, Circuit Judge."}], "attorneys": ["Stephen D. Ellis (argued), Richard L. Scheff, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for appellant Frank G. McAleese.", "Donna G. Zucker (argued), Chief, Federal Litigation, Ronald Eisenberg, Deputy Dist. Atty., Law Div., Arnold H. Gordon, Chief Deputy Dist. Atty., Lynne Abraham, Dist. Atty., Philadelphia, PA, for appellant Joseph Mazurkiewicz."], "corrections": "", "head_matter": "Frank G. McALEESE, Appellant at No. 92-1820, v. J.F. MAZURKIEWICZ, Warden; Attorney General of the State of Pennsylvania; District Attorney for Philadelphia County, J.F. Mazurkiewicz, Appellant at No. 92-1718.\nNos. 92-1718, 92-1820.\nUnited States Court of Appeals, Third Circuit.\nArgued April 27, 1993.\nDecided July 27, 1993.\nStephen D. Ellis (argued), Richard L. Scheff, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for appellant Frank G. McAleese.\nDonna G. Zucker (argued), Chief, Federal Litigation, Ronald Eisenberg, Deputy Dist. Atty., Law Div., Arnold H. Gordon, Chief Deputy Dist. Atty., Lynne Abraham, Dist. Atty., Philadelphia, PA, for appellant Joseph Mazurkiewicz.\nBefore: BECKER, HUTCHINSON and WEIS, Circuit Judges."}	BECKER	HUTCHINSON	WEIS	1	1	1	0	0	0	1 F.3d 159	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Frank G. McALEESE, Appellant at No. 92-1820, v. J.F. MAZURKIEWICZ, Warden; Attorney General of the State of Pennsylvania; District Attorney for Philadelphia County, J.F. Mazurkiewicz, Appellant at No. 92-1718\nCourt: United States Court of Appeals for the Third Circuit\nDate decided: 1993-07-27\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION OF THE COURT\nHUTCHINSON, Circuit Judge.\nAppellants are John F. Mazurkiewicz, Superintendent of the State Correctional Institute at Rockview, Ernest D. Preate, Jr., Attorney General of Pennsylvania, and Lynne Abraham, District Attorney of Philadelphia County (collectively the “Commonwealth”). They appeal an order of the United States District Court for the Eastern District of Pennsylvania granting a writ of habeas corpus to appellee Frank G. McAleese because his counsel was ineffective. The district court had subject matter jurisdiction under 28 U.S.C.A. § 2254 (West 1977). This Court has appellate jurisdiction under 28 U.S.C.A. §§ 1291 (West Supp.1993) and 2253 (West 1971). After careful consideration, we have concluded McAleese’s trial counsel was not constitutionally ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, we will reverse.\nI. Procedural History\nOn June 17, 1983, following a jury trial in the Philadelphia Court of Common Pleas, McAleese was convicted of third degree murder and possession of an instrument of crime in the killing of his ex-wife, Ramona Grabow-ski. McAleese retained a new lawyer post-verdict, who raised claims of ineffective assistance of counsel and trial error. Following lengthy evidentiary hearings, during the course of which McAleese’s second retained counsel withdrew and court-appointed counsel was provided, the court of common pleas denied post-verdict relief and sentenced McAleese to ten to twenty years imprisonment for murder, and a consecutive 2.5 to five years for the weapons offense.\nMcAleese appealed directly to the Pennsylvania Superior Court, which affirmed. See Commonwealth v. McAleese, 371 Pa.Super. 645, 534 A.2d 132 (1987) (unpublished mem. op.). The Supreme Court of Pennsylvania allowed an appeal limited to the issue whether trial counsel was ineffective in presenting an alibi defense. After briefing and argument, however, the supreme court dismissed the appeal as improvidently granted. See Commonwealth v. McAleese, 520 Pa. 92, 552 A.2d 667 (1989).\nOn March 27, 1989, McAleese filed a petition for a writ of habeas corpus in the district court. The magistrate judge to whom the district court assigned the case for a report and recommendation appointed counsel to represent McAleese in his quest for federal habeas relief.\nOn March 18, 1992, the magistrate judge issued a report and recommendation rejecting six of the seven claims McAleese had raised in his petition, but recommending that the writ be granted on McAleese’s Sixth Amendment claim that trial counsel was ineffective. The magistrate judge concluded that trial counsel’s investigation of facts that might have supported McAleese’s alibi defense was inadequate because counsel made no effort to obtain telephone records that were available for only a thirty to sixty-day period. McAleese claims that these records would have shown an absence of long distance calls placed about the time of the murder to the Wilmington office of James Natalie, Jr., Esq., a Delaware lawyer who was then representing McAleese in unrelated criminal insurance fraud proceedings in Delaware.\nMcAleese’s claim that trial counsel departed from Strickland’s objective standard of reasonableness when he failed to check the long distance records warrants separate discussion. McAleese claimed that he had telephoned Natalie at about 3:00 p.m. on the afternoon of the murder, close to the time it apparently was committed. Natalie likewise represented to trial counsel that he had received a phone call from McAleese at about that time, and that McAleese had not reversed the charges. The magistrate judge reasoned that the telephone records could have shown that no long distance telephone calls were made to Natalie’s Wilmington office from Philadelphia at or around 3:00 p.m., the approximate time the crime was committed; and, if so, that a jury could have inferred McAleese was in or near Wilmington at the time the crime was being committed in Philadelphia; Despite the present unavailability of the phone records and the consequent absence of any direct evidence of what they would show, the magistrate judge apparently inferred they would support McAleese’s alibi from evidence that showed he was in Wilmington at other times on the day of the crime even though those other times would not rule out his presence in Philadelphia at the time the crime was committed. The magistrate judge then went on to conclude that trial counsel’s failure even to attempt to retrieve the records was inexcusable and so did not meet the objective • standard of competence under Strickland.\nAlternately, the magistrate judge determined that trial counsel had promised the jury in his opening statement that he would present an alibi defense, and then unreasonably failed to do so by not calling Natalie as a witness to establish McAleese’s whereabouts at the time of the murder. The magistrate judge concluded that this mishandling of the defense likewise constituted ineffectiveness and undermined the reliability of the jury’s verdict. Therefore, he recommended the writ be granted unless the Commonwealth granted McAleese a new trial. See McAleese v. Mazurkiewicz, Civ.A. No. 89-2151 (E.D.Pa. Mar. 18, 1992) (hereinafter “Report and Recommendation”); Appendix (“App.”) at 1289-1327. The Commonwealth filed objections to the report and, after McAleese responded, the district court approved and adopted the report and recommendation and, on June 17, 1992, issued an order granting the writ unless the Commonwealth cured the constitutional error by retrying McAleese within 180 days.\nMcAleese filed a motion to alter or amend the June 17 order to shorten the time within which retrial would be allowed. Before the district court had ruled on McAleese’s motion, the Commonwealth filed a notice of appeal from the June 17, 1992 order of the district court granting McAleese’s petition for writ of habeas corpus. The district court denied the motion to alter or amend because of the pending appeal. On July 28,1992, this Court dismissed the Commonwealth’s appeal, with the agreement of the parties, as premature under Federal Rule of Appellate Procedure 4(a)(4). See McAleese v. Mazurkiewicz, No. 92-1579 (3d Cir. July 28, 1992). At that point, McAleese renewed his motion to alter or amend and filed a motion for enlargement, i.e., release from prison pending decision on his appeal. The Commonwealth responded by filing a motion to stay issuance of the writ pending appeal. On August 18, 1992, after hearing argument, the district court vacated its earlier order and granted McAleese’s motion to alter or amend the judgment by allowing the Commonwealth 120 days in which to retry McAleese instead of the 180 days for retrial provided by the original order. Simultaneously the court granted the Commonwealth’s motion for a stay pending appeal and denied McAleese’s motion for enlargement on bail. The Commonwealth then filed a timely notice of appeal in this Court.\nII. Statement of -Facts\nRamona Grabowski was brutally murdered between 2:30 and 3:00 on the afternoon of December 1,1982. The murder took place in the basement of her residence on Hawthorne Street in northeast Philadelphia. A post mortem examination revealed that Grabow-ski had suffered forty anterior stab wounds to the head, neck, trunk, and extremities, as well as anterior fractures of the skull with incised wounds to the brain, and laceration of her lower lip, both nipples, and the right labia. Her injuries also included cuts or wounds to her forehead, nose, right eyebrow, neck, and chin. Fourteen small wounds distributed over Grabowski’s back were caused by the knife or weapon that had inflicted the wounds on the front of her body completely passing through her.\nAt trial, the Commonwealth’s case-in-chief established that nine-year old Monica Hendricks, Grabowski’s daughter by another marriage, arrived home from school on the date of the murder at about 3:00 p.m. Monica entered the house through the basement and went up the cellar steps to the first floor. There she encountered her younger siblings, Tanya, Rebecca, and Joseph. They were screaming. Monica went back down to the basement. Seeing nothing, she returned to the kitchen. On her way back to the kitchen she looked out a window and saw a green car with stripes down its side and a luggage rack on its roof.\nEntreated by her younger sisters and brother, Monica returned to the basement where she saw a man walking out of the door. She described him as fat with gray hair, a mustache, blue eyes, no bottom teeth, and bumps on his face. She said that he was wearing a tan jacket and trousers of a darker brown. Monica testified at trial that he mumbled something as he walked out of the basement door. Later she identified McAleese as the man she had seen in the basement. After he left, Monica saw her mother lying in a corner of the basement, stabbed, with clothing stained and in disarray. .\nMonica ran for help and encountered her school’s crossing guards. She did not at once tell the crossing guards why she needed .help because she wanted to talk to her eleven-year old stepsister, Tara, first. When Tara arrived, Monica talked to her. Tara then told Mary Wijtyszyn, one of the crossing guards, that Monica said her mother had been stabbed.\nMary Wijtyszyn and another crossing guard, Harriet Hughes, went with Monica and Tara to their house. Mary Wijtyszyn testified that Monica said the man she saw in the basement was big with missing front teeth and some gray hair. Monica also said that she thought the man was Tanya’s and Rebecca’s father. Later Monica told Mary Wijtyszyn that “the man she had seen was Frank McAleese, Tanya and Rebecca’s father.” App. at 306. At the Grabowski residence, Monica also told Harriet Hughes that McAleese was the man she saw in the basement.\n• Later, during the evening of December 1, as Detective Roy Gibson of the Philadelphia Police Department was taking Monica to her grandmother’s home, she pointed out a white Ford Fairmount station wagon and, according to Detective Gibson, said that except for its color and the absence of a luggage rack and stripes on the side the car was the same as the one she had seen earlier that day. Then she spotted a car with a luggage rack identical to the one she had seen on the car outside her residence that afternoon and pointed it out. Detective Gibson, accompanied by Detective Bittenbender, located McAleese’s automobile in Delaware parked in a lot next to his apartment. It was a green station wagon with off-white stripes and matched Monica’s description of the car she had seen outside her home that afternoon.\nA search of McAleese’s apartment produced a knife with a brown wooden handle and metal blade. It was chemically analyzed and tested negative for human blood but positive for beef blood. In addition, a beige shirt and brown trousers were found in the washing machine, still wet, together with other clothes, including those of a child. The shirt and trousers were analyzed. They too tested negative for human blood. Monica testified at trial that the shirt looked like the one worn by the man whom she had identified as McAleese.\nEdgar Turner, an employee of Bell Telephone Company, testified from his company’s records that a five-minute telephone call was placed from McAleese’s place of business in Wilmington, Delaware to Grabowski’s residence at 1:10 p.m. on the date of the murder. Over the objection of McAleese’s trial counsel, the Commonwealth produced the testimony of witnesses Darleen Wetton and Regina Boyle, both of whom stated that Grabow-ski had told them during telephone conversations on the date of the murder that McAleese planned to visit her that day and bring her some watches to sell.\nMore specifically, Wetton testified that she had a telephone conversation with Grabowski between 1:15 p.m. and 1:45 p.m. on the day of the murder. During that conversation, Gra-bowski told her that Tanya’s father had telephoned her earlier that day. Grabowski referred to the caller as her ex-husband, but did not call him by name. Wetton estimated that Grabowski had approximately four or five ex-husbands, not including A1 Grabowski, the man to whom she was married on the day she died.\nBoyle testified that she had two “very long” telephone conversations with Grabow-ski on the day of the murder. The first call was at either 10:00 a.m. or 11:00 a.m. The second call was “around” 1:00 p.m. Grabow-ski told Boyle that Frank McAleese, her ex-husband, was “coming down to bring her some watches, and he was going to [meet] her at the 7-11” at three o’clock. App. at 248. Boyle said that the telephone conversation lasted until 2:30 p.m. without any significant interruptions. During the conversation, Grabowski never said, “ Wait a minute. I have to go to the door,’ or, ‘Somebody is at the door,’ or anything like that.” Id. at 257. Instead, Boyle testified that at 2:30 p.m. Grabowski “sounded very scary, and she hung up very quickly.” Id.\nWithout testifying himself, McAleese put on a three-pronged defense. He attacked the identification testimony of the sole eyewitness, nine-year old Monica Hendricks. He showed that he was an established businessman, that he was well-known as such among various tradespeople in Delaware, and that he was something of an expert in his field, having published an article in a trade magazine, thus attempting to suggest that he was not the kind of man who would commit such a brutal murder. Finally, McAleese presented a “loose alibi” defense through the testimony of five disinterested witnesses. App. at 1287. Although this defense did not place him beyond the scene of the crime at the time of the murder, it did place him in Delaware at various times between 10:00 a.m. and 1:30 p.m. and again at 5:45 p.m. on the day of the murder. The defense’s theory was that the loose alibi supported the evidence suggesting McAleese was not the type to commit a brutal murder because a violent murderer would be unlikely to go about his ordinary daily activities just before and after a killing as brutal as the killing of Ramona Grabowski. By this, together with some inconsistencies in Monica’s story and dental records showing McAleese had all his teeth after the crime, the defense hoped to raise in the jury’s mind a reasonable doubt about McAleese’s identity as the killer.\nPursuing the loose alibi defense, trial counsel called five disinterested witnesses to the stand to testify about McAleese’s whereabouts on the day of the murder. These witnesses were:\n—Florence Lincoln, an employee of U.S. Optical in Wilmington, who testified that McAleese had been in the store at 10:03 a.m. on the date of the murder to drop off his daughter’s or stepdaughter’s eyeglasses;\n—Mary DiGiacomo, who was employed by a hardware supply company and testified that she sold a dog house to McAleese between either 11:00 a.m. and noon or 12:30 p.m. and 1:00 p.m.;\n—Alvin Hall, Jr., then vice-president of General Engineering Supply Company of Wilmington, Delaware, who testified that he had a telephone conversation with McAleese between 10:00 a.m. and noon on December 1, and that McAleese also came to his office that same day between noon and 1:30 p.m.;\n—Tracy B. Sharp, a counterman at Green-berg Supply, who testified that he remembered McAleese being in the store on December 1 between noon and 1:30 p.m.; and —Dorothy Martinez, custodian of records for a physical therapist in Wilmington, who testified that McAleese kept a 5:45 p.m. appointment on December 1.\nThe loose alibi defense was originally to include the testimony of attorney Natalie, McAleese’s Wilmington lawyer in the unrelated criminal fraud case. Natalie would have testified that he had spoken to McAleese on the telephone shortly before 3:00 p.m. on the day of the crime. Before counsel called Natalie to the stand, he sought a ruling from the trial court that would have restricted cross-examination of Natalie to whether the phone call had in fact occurred. The trial court refused so to limit Natalie’s cross-examination and ruled instead that if Natalie testified, he would be subject. to cross-examination about the substance of his conversation with McAleese. Trial counsel did not challenge this ruling by informing the court that the substance of the conversation involved pending unrelated Delaware criminal charges against McAleese. Ultimately, trial counsel decided not to call Natalie as a witness.\nIII. Issues on Appeal\nThe Commonwealth argues that Mc-Aleese’s trial counsel was not constitutionally ineffective under the standard set forth .in Sirickland v. Washington, 466 U.S. at 668, 104 S.Ct. at 2052. Specifically, the Commonwealth argues that trial counsel’s decision not to call Natalie as a witness was a reasonable choice of strategy in light of the trial court’s refusal to limit the scope of cross-examination of Natalie’s telephone conversation with McAleese, a conversation in which Natalie and McAleese discussed unrelated pending criminal charges against McAleese. The Commonwealth also argues that trial counsel’s failure to seek Natalie’s phone records of incoming calls on the afternoon of the murder did not render his performance constitutionally deficient.\nIneffective assistance of counsel claims are mixed questions of law and fact. Id. at 698, 104 S.Ct. at 2070; Reese v. Fulcomer, 946 F.2d 247, 253 (3d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992). We subject the legal component to plenary review. Reese, 946 F.2d at 253. Our scope of review over the factual elements depend on their origin. While a state court’s conclusion that counsel rendered effective assistance is not a finding of fact subject to deference by a federal court, Reese, 946 F.2d at 254 (quoting Strickland, 466 U.S. at 698, 104 S.Ct. at 2070), state court findings of historical fact made in the course of deciding an ineffectiveness claim are presumptively correct if they meet the requirements of 28 U.S.C.A. § 2254(d) (West 1977), see Ahmad v. Redman, 782 F.2d 409, 411-12 (3d Cir.), cert. denied, 479 U.S. 831, 107 S.Ct. 119, 93 L.Ed.2d 66 (1986). In addition, when, as in the present case, the district court did not hold an evidentiary hearing and engage in independent fact finding, and the habeas evidence is limited to that contained in the state court record, our review of a district court’s decision to grant the habeas corpus petition is plenary. Lesko v. Owens, 881 F.2d 44, 50-51 (3d Cir.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990); see Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir.1993) (because district court never conducted evidentiary hearing, appellate court exercises die novo review over factual inferences district court drew from state record).\nIV. Discussion\nThe Sixth Amendment right to counsel encompasses the right to effective assistance of counsel. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64. A claim of ineffective assistance requires a defendant to establish that counsel’s representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. at 687-88, 104 S.Ct. at 2064-65. In order to demonstrate prejudice, the defendant must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Id. Stated differently, there will be no award of relief unless the defendant affirmatively establishes the likelihood of an unreliable verdict. See id. at 688-89, 691, 694, 104 S.Ct. at 2064-65, 2066-67, 2068. Keeping these standards in mind, we turn to the Commonwealth’s allegations of error.\nA. Counsel’s Decision Not to Call Natalie as a Witness\n1. The Opening Statement\nPreliminarily, we note the district court, in adopting the magistrate judge’s report and recommendation, found that McAleese’s trial counsel promised the jury an alibi defense in his opening statement, and that Natalie’s testimony that McAleese had telephoned him at approximately 3:00 p.m. on the day of the murder was the cornerstone of that defense. When counsel failed to call Natalie as a witness, the magistrate judge reasoned, the alibi defense became completely untenable. The Commonwealth contends trial counsel never made any such promise.\nThe failure of counsel to produce evidence which he promised the jury during his opening statement that he would produce is indeed a damaging failure sufficient of itself to support a claim of ineffectiveness of counsel. See, e.g., Harris v. Reed, 894 F.2d 871, 879 (7th Cir.1990) (Sixth Amendment violation where defense counsel failed to call witnesses who he claimed in opening statement would support defense version of shooting); Anderson v. Butler, 858 F.2d 16, 17-19 (1st Cir.1988) (Sixth Amendment violation where counsel failed to present promised expert medical testimony that defendant had acted without cognizance of, or feeling for, actions). The rationale for holding such a failure to produce promised evidence ineffective is that when counsel primes the jury to hear a different version of the events from what he ultimately presents, one may infer that reasonable jurors would think the witnesses to which counsel referred in his opening statement were unwilling or unable to deliver the testimony he promised. See Anderson, 858 F.2d at 18.\nTo determine whether trial counsel made a promise to produce evidence that he did not fulfill, we turn to the text of his opening statement. The portion of defense counsel’s opening statement on which the magistrate judge and the district court relied stated:\nWe will show you [that] on the day of this crime, December 1st, ’82, my client wasn’t even in the City of Philadelphia.\nMy client wasn’t even in the State of Pennsylvania. He was in Delaware, where he lives; carrying on his daily activities, running a number of errands, going to a number of different stores for different things. We will show you what he did from the early part of the day throughout the late evening, and we will show you [that] throughout the morning he went throughout several stores, and we won’t be bringing in witnesses who are friends of Mr. McAleese, who are acquaintances of his.\n*****\nWe will show that he ... went to the hardware store, bought a dog house there. We will show you that he ’ went to his house where he worked on some estimates. We will show that he went to Greenberg Supply Company, where he had discussions with a number of people there, and they will testify that he was there in connection with his business, as I told you previously, Delaware Energy and Engineering Corporation, and that they know him as a business client there, and they will tell you that he was there until sometime in the early afternoon, that he then went home, worked on various matters, plans estimates, and you will hear then at 5:AS — excuse me — 5:30 that evening, Mr. McAleese went to a previously scheduled appointment he had with a physical therapist, Frank Kushner,....\nReport and Recommendation at 18-19; App. at 1306-07 (emphasis added by magistrate judge).\nWe see no promise by McAleese’s counsel to produce Natalie’s testimony or even to establish that McAleese was in Wilmington at the time of the murder: We do see a carefully worded recitation of evidence the defendant did produce. From it, counsel hoped to lead the jury into inferring from McAleese’s activities in Wilmington on the day of the murder that there was a reasonable doubt about his presence in Philadelphia at the time and place the crime was committed, even though that evidence might not make impossible his presence at the crime scene when the crime was committed. Trial counsel did not refer to the precise time of the murder. He did not promise to provide witnesses who would testify that McAleese was elsewhere at the time of the murder. He did not promise any airtight alibi. He merely summarized evidence that was later produced from which a jury could be left with a reasonable doubt about McAleese’s identity as his ex-wife’s killer. Trial counsel did not promise the jurors that they would hear any evidence they did not. The district court erred in concluding that trial counsel failed to fulfill any promise he made to the jury in his opening statement.\n2. The Decision Not to Call Natalie\n'The district court also held that trial counsel’s failure to call Natalie constituted ineffectiveness. The Commonwealth argues, however, that counsel’s mid-trial decision not to call Natalie was a reasoned, strategic decision made after considering the trial court’s refusal to restrict cross-examination of Natalie, as well as counsel’s assessment of the ease at that point. See Brief for Appellants at 25; see also United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177 n. 19 (3d Cir.) (“We do not intimate ... that a lawyer of normal competence could not promise to produce evidence in his opening statement and then change his mind during the course of the trial and not produce the promised evidence.”), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). Thus, even if we could imply into the opening a promise to establish McAleese’s presence in Wilmington at the time of the murder by calling Natalie to testify about the 3:00 p.m. phone call, his later decision not to do so is not necessarily ineffective. Trial counsel testified in the state court post-trial proceedings that he did not call Natalie because he did not want the jury to learn of the unrelated criminal charges pending against McAleese for fear that knowledge of them would destroy the image of McAleese as a businessman and father that he had attempted to create. The district court rejected this reason as “little more than a post hoc rationalization.” Report and Recommendation at 29; App. at 1317.\nThis finding is not subject to limited, deferential review under the clearly erroneóus standard because the district court made it on the basis of the state court record. See Lesko, 881 F.2d at 50-51, 51 n. 8. McAleese argues that no evidence was produced at trial from which the “model citizen” image counsel was trying to project could be inferred or suggested. We, however, see nothing in the record that would indicate trial counsel’s proffered explanation for not calling Natalie was not a reasoned, strategic decision. The evidence the defense did produce had a tendency to support the image counsel sought to create — evidence to which he referred in his closing. For example, in his summation counsel described McAleese as “a workman, somebody who works on chimneys, works on boilers, heaters and air-conditioners.” App. at 636. This description, based on evidence, supports the inference that McAleese was a hard-working member of the community. Trial counsel later bolstered that inference by further describing McAleese as “a man who we know is self-employed, who works out of his home address, works out of his home.” Id. at 637. This description was also supported by evidence. The testimony of the five disinterested alibi witnesses painted a picture of McAleese as an ordinary citizen engaged in the affairs of everyday life: dropping off eyeglasses to be repaired, purchasing equipment for his business, buying a doghouse, and going to physical therapy. Any evidence of criminal charges pending against McAleese would, have instantly distinguished him from an average citizen. •The jury’s failure to embrace this image does not make counsel’s efforts to support it, and avoid damaging evidence inconsistent with it, unreasonable.\nMoreover, the district court’s characterization of trial counsel’s explanation as only “post hoc rationalization” is contrary to a finding implicit in the state' trial court made in connection with its earlier ruling on McAleese’s petition for post-conviction relief. See Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983) (“federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them”); see also Ahmad, 782 F.2d at 411-12 (state court findings of fact presumed correct if fairly supported by record). The trial court expressly determined that defense counsel\nas a matter of trial strategy decided, that in light of the court’s evidentiary ruling, it would be unwise and damaging to defendant’s image if the nature of the open criminal charges were made known to the jury. Viewed in the context of the entire defense, said decision was not unreasonable.\nApp. at 1367. The district court’s determination that counsel’s decision not to call Natalie was “post-hoc rationalization” instead of a reasoned, strategic decision is not supported by the record and is contrary to the state court’s finding that it was. See Hakeem, 990 F.2d at 767-68 (presumption of correctness attaches to subsidiary or historical facts in speedy trial calculation).\nThe district court also held that counsel was objectively deficient in failing to apprise the trial court about the nature of the telephone conversation between McAleese and Natalie, and in failing to argue that it would be unfairly prejudicial to permit the Commonwealth to cross-examine Natalie on unrelated criminal charges that were never prosecuted. The trial judge specifically stated at the post trial hearing,\n[Wjhile we are on this subject and again I want to make the record very clear it is my recollection that I merely ruled that if Mr. Natalie was questioned about these phone calls and he actually spoke on the phone with him, that that would open the door for cross-examination by the Commonwealth as to the substance of the conversation. However, I also want to make it clear I did not know what the substance of the conversation was. I did not know that it pertained to any prior crime or anything of that nature. I just ruled as a general proposition that where a party is called and testifies that a phone call was made, that that opens the door on the issue of credibility to cross-examination as to the content of the conversation.\nApp. at 979 (emphasis added). The district court emphasized the above language in determining that counsel should have informed the trial court of the substance of the phone call. See Report and Recommendation at 30 n. 12; App. at 131 n. 12.\nThe Commonwealth argues that counsel’s failure to apprise the district court of the substance of the conversation was of no moment because “Pennsylvania law would have permitted the prosecutor to cross-examine Natalie about the substance of the phone conversation.” Brief for Appellants at 30 (citing Commonwealth v. Saxton, 516 Pa. 196, 532 A.2d 352 (1987)). In Saxton, the defense had presented testimony that the police had not considered Saxton a suspect at the outset of the investigation. In rebuttal, the prosecution called as a witness a detective who made reference to the police department’s possession of Saxton’s photograph and fingerprints in order to establish that the police had in fact made a diligent effort to locate Saxton, using his photograph and prints as a starting point. Defense counsel did not object to the detective’s testimony. 532 A.2d at 357. This could have enabled the jury to infer that Saxton had a prior criminal record. The Pennsylvania Supreme Court commented:\nSuch testimony on behalf of the Commonwealth clearly did not violate the prohibition against referring to prior, unrelated offenses of an accused. Evidence of prior crimes, though generally inadmissible, may be admitted if relevant to prove something other than a defendant’s propensity for committing crimes. E.g., Commonwealth v. Claypool, [508 Pa. 198] 495 A.2d 176 (1985); Commonwealth v. Russell, [459 Pa. 1] 326 A.2d 303 (1974). One exception to the general prohibition is that the Commonwealth may introduce evidence tending to show prior offenses if the purpose is to rebut statements which create inferences favorable to the accused. Commonwealth v. Roots, [452 Pa. 535] 306 A.2d 873 (1973). Therefore, under the “reasonable basis” test as outlined herein, it was appropriate for defense counsel to refrain from objecting to the detective’s reference. Counsel is not ineffective for declining to make a meritless objection.\nId. (citations omitted).\nSaxton is, however, distinguishable from the present situation. Here, there was no compelling reason to disclose the pending criminal charges that were the substance of McAleese’s conversation with Natalie. At the least, it could have been strongly argued that under the circumstances the disclosure of these pending charges would have been more prejudicial than probative. If, for example, McAleese had taken the stand and testified that he had no criminal charges pending against him, it might be likely that the substance of his conversation with Natalie would have been relevant and admissible to rebut McAleese’s credibility. McAleese, however, did not testify. Here, the disclosure of the pending insurance fraud charges against McAleese would have had no probative value in determining Natalie’s credibility nor would it have had any logical tendency to prove or disprove Natalie’s claim that the telephone call was made. Because disclosure of the charges would have been merely incidental to the Commonwealth’s attack on Natalie’s credibility, it would have fallen within the “prohibition against referring to prior, unrelated offenses of an accused.” Id. As a general matter, that prohibition is recognized by Pennsylvania. See id.\nThe Commonwealth notes that the Pennsylvania Superior Court, in affirming McAleese’s conviction, specifically found that the trial court did not err in its ruling, and that cross-examination of Natalie about the nature of the conversation would have been proper. See Brief for Appellant at 30. This decision, however, was not made in the context of a challenge by McAleese to the effectiveness of his counsel, but rather in an attack on the trial judge’s ruling. The superior court held, “The trial judge cannot be faulted for denying a motion to limit cross-examination if he was not told what information was likely to be elicited.” App. at 1343. The court continued:\nThe scope of cross-examination is properly within the discretion of the trial judge and the cross-examiner must be afforded the necessary latitude to insure a fair trial. Cross-examination may be employed to test a witness’ story, to establish his motive for testifying and to impeach his credibility. Appellant was presumed to have been familiar with these principles when he insisted that Natalie take the stand. He cannot now seek to present limited evidence on his own initiative and for his own purposes without allowing the Commonwealth full opportunity to explore this evidence.\nId. (citations omitted). Thus, the superior court held only that the trial court did not err in ruling, based on the information counsel made available to it, that the Commonwealth could cross-examine Natalie on the substance of his conversation with McAleese. This statement does not support the Commonwealth’s argument that counsel was not ineffective in failing to inform the court of the substance of the conversation, because it was the trial court’s lack of such knowledge that rendered its ruling correct.\nDespite our rejection of the Commonwealth’s primary arguments, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. Thus, in order to establish his counsel’s deficiency, McAleese had to show that the failure to inform the trial court of the substance of his telephone conversation with Natalie was an “error[ ] so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064.\nEven if trial counsel had informed the court of common pleas of the substance of the conversation and had received a favorable ruling limiting cross-examination to whether the call in fact took place, trial counsel could have still reasonably decided it was best not to call Natalie to testify. Were Natalie, an attorney, to testify that he talked with McAleese about the time of the crime without disclosing the topic of his conversation, the jury could have speculated about that topic. If it did so, it might have concluded that McAleese had spoken to Natalie in connection with the murder. Simply put, calling Natalie as a witness may have been more damaging to McAleese’s defense than not calling him. Because counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” id. at 690, 104 S.Ct. at 2066, we cannot hold his failure to inform the trial court of the substance of McAleese’s telephone conversation with Natalie was “[unjreasonable considering all the circumstances,” id. at 688, 104 S.Ct. at 2065, or “outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. at 2066.\nNevertheless, it remains possible, as noted above, that the prejudicial effect of disclosing the substance of McAleese’s conversation with Natalie would have outweighed any probative effects of such disclosure. We will thus assume, without deciding, that trial counsel’s failure to advise the court of the topic of the conversation rose to the level of a constitutionally deficient error. Indeed, this Court has “read Strickland as requiring the courts to decide first whether the assumed deficient conduct of counsel prejudiced the defendant.” United States v. Fulford, 825 F.2d 3, 8 (3d Cir.1987); see McNeil v. Cuyler, 782 F.2d 443, 449-50 (3d Cir.), cert. denied, 479 U.S. 1010, 107 S.Ct. 654, 93 L.Ed.2d 709 (1986). Strickland itself recognized that\n[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the .ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.\n466 U.S. at 697, 104 S.Ct. at 2069; see, e.g., Cuyler, 782 F.2d at 451 (reversing order granting writ on grounds of no prejudice; while counsel’s representation was assumed deficient, defendant received fair trial “even if his defense was flawed”).\nThus, even assuming that trial counsel’s failure to advise the court of the substance of McAleese’s telephone conversation with Natalie fell below prevailing professional norms and thereby satisfied the first prong of the Strickland test, McAleese must still show that he was prejudiced by this failure. As Strickland recognized,\nRepresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.\n466 U.S. at 693, 104 S.Ct. at 2067.\nTrial counsel conceded at McAleese’s Big-hum hearing that Natalie could not have established where McAleese was at the precise time of the murder. Only McAleese could have done that. Moreover, Natalie could not have established where McAleese was calling from if he had testified, unless counsel had obtained the telephone records, which he did not. Without those phone records, Natalie’s testimony did no more than bolster McAleese’s “loose alibi” theory that his normal, everyday activities are inconsistent with his alleged commission of the particularly heinous murder at issue. Because of the marginal utility of Natalie’s testimony, counsel’s failure to advise the trial court of the substance of Natalie’s telephone conversation with McAleese did not “so undermine[ ] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 669, 104 S.Ct. at 2055.\nB. The Telephone Records\nFinally, the magistrate judge determined McAleese’s trial counsel was deficient in failing to investigate telephone company records to determine whether they showed any long distance phone calls to Natalie’s office during the critical time period from 2:30 to 3:00 p.m. on the day of the murder, December 1,1982. If they did not, McAleese contends, they would, when coupled with Natalie’s testimony about a 3:00 p.m. phone call, strongly support his alibi defense. In December 1982, the telephone company retained records reflecting the origin of long distance, but not local, phone calls for thirty to sixty days. There is evidence that these records could have been subpoenaed within that period to determine whether Natalie received any long distance calls during the relevant time. Specifically, McAleese consulted trial counsel within that period and says he informed him of his phone calls to Natalie. The absence of any long distance calls about the time of the murder would have permitted the jury to infer that McAleese was not calling Natalie from Philadelphia, so he was not in Philadelphia at the time of the murder and thus could not have committed the crime.\nThe right to effective assistance of counsel encompasses counsel’s duty to investigate. See United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989) (noting general agreement among courts of appeals that failure to conduct any pretrial investigation constitutes clear instance of ineffectiveness) (citations omitted). In this context, “ ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ ” Id. at 710 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066).\nMcAleese’s trial counsel stated at the post-trial hearing that he did not know that the telephone company could identify the origin of non-collect, long distance calls from its records of activity at the receiving phone. McAleese testified that he had told counsel about the ability of the phone company to retrieve such records and had asked him to obtain them. Faced with this conflicting evidence, the trial court decided that trial counsel had thoroughly investigated and considered all the areas about which McAleese complained post-verdict. Implicit in this conclusion is a finding that trial counsel’s testimony was credible. This finding is presumptively correct and should not be disturbed by a federal court on habeas review if it is fairly supported by the record. See Reese, 946 F.2d at 254 (“ ‘underlying facts about counsel’s performance are entitled to the presumption of correctness under 28 U.S.C. § 2254(d), if fairly supported by the record’”) (quoting Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1594, 113 L.Ed.2d 657 (1991)); accord Hakeem, 990 F.2d at 767-68; see also LaVallee v. Delle Rose, 410 U.S. 690, 694-95, 93 S.Ct. 1203, 1205-06, 35 L.Ed.2d 637 (1973). Therefore, we conclude that trial counsel did not actually know that he could have retrieved the records at issue.\nThe fact that counsel was not told about this possibility and was otherwise unaware of it, however, does not end the inquiry. The question remains — was trial counsel’s lack of knowledge objectively reasonable? In deciding it, we must remember that Grabowski’s murder occurred in December 1982, and McAleese was convicted in June 1983. Thus, the specific question at hand is whether trial counsel’s lack of knowledge of the technology available to retrieve records of incoming telephone calls at a particular location fell beneath prevailing professional norms in late 1982 through mid-1983.\nThe magistrate judge held that it was objectively unreasonable for trial counsel to be unaware of the phone company’s ability to identify the source of incoming long distance calls because “the petitioner’s lawyer at the post trial hearing had, apparently, no such difficulty.” Report and Recommendation at 28; App. at 1316. Beyond the fact that McAleese’s counsel during the post-trial proceedings knew of the retrieval technology, the record contains no evidence supporting the magistrate’s implicit determination that all competent lawyers should have known about the technology in 1982.\nSome of the questions that the prosecutors and the trial court asked during the post-verdict evidentiary hearings indicate an unfamiliarity with the retrieval technology even at that time. For example, during the post-trial proceeding, the following colloquy took place between the court and the telephone company representative:\nTHE COURT: All right. Let me ask a few questions because I want to be absolutely sure of this.\nAs I understand what you are telling me, Mr. Brook, you do maintain records which show out-going calls, I am taking this by steps, show out-going calls and to a designated number.\nTHE WITNESS: If it is a toll call and it would be reflected on the bill, yes.\nTHE COURT: Well, the ordinary telephone.\nTHE WITNESS: A local call would not be reflected on the bill. Only toll calls would be shown on the bill.\nIf I am using my phone to call from Philadelphia to Philadelphia, that is not on the bill.\nIf I use my phone to call from Philadelphia to Trenton, New Jersey, it would be on the bill.\nTHE COURT: It’s also possible, as I understand it in the same type of situation where it’s a toll call, to ascertain from records of the receiving phone the phone from which a call was made. That’s also on your tape, but in each case, these are kept for very brief periods of time, until billing has been accomplished.\nIs that it?\nTHE WITNESS: Yes, the tapes are produced which we call automatic AMA tapes that are in this central office are then put into the billing computer and the bill is processed.\nThose other tapes are gone forever.\nTHE COURT: No reason to keep them for a permanent record of it because you are interested in billing, rather than preserving records.\nTHE WITNESS: Right.\nTHE COURT: All right.\nApp. at 803-04.\nIn addition, the following colloquy occurred during the prosecution’s cross-examination of the telephone company representative:\nQ: ... You mentioned that if a person is to place a call to someone else, that the person who is calling — let’s take a local call — if somebody makes a local call in Delaware and calls somebody anywhere else in Delaware and it’s a local call, are you able to trace from either telephone where the call was made or received?\nA: No, sir. That is a local call and because of that, no record of that call is maintained.\nsji ifs ijs # :>{\nQ: This retrieval system that Mr. Preminger was asking, you about as far as if I made a call from Philadelphia to Delaware, and then the person in Delaware naturally picks the phone up, and then you are asked at a later time, are you able to find out the number that was called from Philadelphia to Delaware?\nA: Yes, sir.\nQ: And what about if you only had the number of the person in Delaware, let’s say, a person comes to you and says, “I don’t know the phone number of where or who called me in Philadelphia, but here is my phone number,” are you able to then tell the person in Delaware where somebody in Philadelphia called him from?\nA: We could probably do that, yes, the same.\nQ: And that’s based on this taping system you have?\nA: Yes.\nQ: And that’s what you only keep for a short period of time.\nIs that correct?\nA: Yes.\nQ: As for long distance.\nWhat about for local calls?\nA: No, there is no record of local calls maintained.\nQ: So if somebody were to call — if I were to call from an anonymous phone number in Delaware and then I called let’s say 111, okay let’s say that’s somebody's] phone number, and you then went and subpoenaed or produced the numbers or the records for 111, and it was a local call, is there any way you could tell what number I called in?\nA: No, sir.\nTHE COURT: In other words, toll calls are the only ones — records of toll calls are the only ones kept.\nTHE WITNESS: Yes.\nTHE COURT: All right.\nId. at 805-07.\nSimilarly, at the post-trial proceedings the following exchange took place during defense counsel’s direct examination of trial counsel:\nBY MR. GELB:\n# * * ❖ *\nAre you aware of a procedure whereby magnetic tapes can be obtained from the phone company which would verify whether or not a long distance call had been made from one number to another?\nMRS. FOULKES [for the prosecution]: Your honor, I have to object on the ground of a highly speculative premise and that premise is and I believe based on the questions of the Bell Telephone representative that had been called before that before such a communication could be investigated one would have to know from what number the telephone call was made.\nIn other words, you couldn’t relate back from the receiving call to some unknown long distance number to determine where that call was placed unless it had been placed in a collect call situation or some situation where a recording would be made.\nI think we are getting into the relm [sic] of highly speculative availability of certain evidence, and to subject counsel to questioning in that regard I think really won’t further this inquiry.\nTHE COURT: A Bell Telephone representative did appear at the last hearing as I recall and rather definitively discussed this entire situation as to whether this was possible, feasible, was it done, all that type.\nMRS. FOULKES: Yes. My understanding of the testimony was that where you have one number you don’t have to have both numbers. You can have one number in order to be able to determine what calls were received or what calls went out.\nTHE COURT: From the calling number.\nMRS. FOULKES: The calling number, the receiving number, that’s the question.\nMR. GELB: The received number which in this case presumably would be Mr. Natalie’s number. That’s the point I am making and I think that was the gist of his testimony.\nMRS. FOULKES: That’s counsel’s interpretation of it. I will object subject to it’s [sic] being determined to be irrelevant later.\nThat was not my understanding of the reading of that representative [sic] testimony.\nTHE COURT: That wasn’t mine, either.\nHowever, go ahead.\nId. at 972-75.\nBecause there is no evidence in the record to support the conclusion that a competent criminal defense attorney should have known about the retrieval technology in late 1982 through mid-1983, we cannot conclude that the failure of McAleese’s trial counsel to attempt to retrieve Natalie’s phone records was objectively unreasonable.\nMoreover, even if trial counsel should have known of the available technology, McAleese still must show he was prejudiced by the absence of the phone records in order to prevail. The expert testimony that McAleese presented at the post-trial eviden-tiary hearing in 1985 showed only that retrieving records of incoming long distance calls was indeed possible and might have been accomplished. The expert witness testified:\n[I]t is possible to do that within a certain time-frame, and I am talking about a relatively short time-frame, that if a call is made to a number, we can go back over the tapes and retrieve information similar to what you are requesting, but as I said, that’s a very short time-frame [thirty to sixty days] and we do not normally do that unless it is a life and death type of situation.\nId. at 800. The expert later testified that the phone company would retrieve the calls pursuant to judicial subpoena:\nGiven that our system is not perfect within the relms [sic] of what we can do, we most likely, if we were ordered to do so, with great effort [would retrieve them]. It is not an easy thing to do, but we could probably find out where that call came from.\nId. at 800-01.\nThis testimony indicates that it was more likely than not that had trial counsel subpoenaed phone records of Natalie’s long distance calls, he probably would have gotten them. Once the records were subpoenaed, however, they would become equally available to the Commonwealth. They would have shown one of two possibilities: Either (1) a call or calls at the crucial time from Philadelphia, thus precluding the possibility of alibi, or (2) no calls from Philadelphia, thus supporting the inference that McAleese was in Wilmington or at least not in Philadelphia at the pertinent time. We have no way of knowing which.\nThe possibility of exoneration stemming from the phone records is not enough to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding, would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. As the Strickland Court emphasized, it is not enough to show that the error may have had some “conceivable effect” on the outcome, for “not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” Id. at 693, 104 S.Ct. at 2067; see Larsen v. Maggio, 736 F.2d 215, 218 (5th Cir.) (petitioner must demonstrate that “might have beens” would have been important enough to affect proceedings’ reliability), cert. denied, 469 U.S. 1089, 105 S.Ct. 598, 83 L.Ed.2d 707 (1984).\nMcAleese cannot contend that his trial counsel abdicated the duty to investigate recognized in Strickland. See Gray, 878 F.2d at 712 (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2065-66). The record shows that trial counsel tracked down and presented as witnesses five disinterested persons who testified as to McAleese’s whereabouts on the day of the crime. This testimony supported a plausible defense. The telephone records had the potential of destroying that defense. If the telephone records had indeed shown a call to Natalie’s office from Philadelphia at approximately 3:00 p.m. on December 1, 1982, the prosecution could have subpoenaed them as evidence in its case-in-chief against McAleese. Even assuming that trial counsel’s failure to attempt to retrieve Natalie’s phone records fell below prevailing professional norms, McAleese has not shown he suffered prejudice from the- absence of the phone records at trial.\nFinally, we note that the Commonwealth’s case against McAleese, while not iron-clad, was not a weak one. Cf. Strickland, 466 U.S. at 696, 104 S.Ct. at 2069 (“a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support”); Gray, 878 F.2d at 711. Considering the brutality of the murder and all the evidence indicating McAleese did carry out his intent to call on Mrs. Grabowski about the time she was brutally murdered, we note that the defense successfully avoided a verdict of first degree or capital murder. We are unable to call such a, defense ineffective. Trial counsel may not have tried a perfect case, but a criminal defendant is not entitled to a perfect lawyer. None has ever existed. We hold that McAleese’s trial counsel was not ineffective.\nV. Conclusion\nStrickland emphasizes that a court’s evaluation of an attorney’s performance must be “highly deferential” in order to diminish the possible distortions of hindsight. 466 U.S. at 689, 104 S.Ct. at 2065. A reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. Even if counsel’s performance falls beneath prevailing professional norms, his client must still establish that he has suffered prejudice from that deficient performance in order to prevail on a claim of ineffective assistance of counsel. Id. at 692, 104 S.Ct. at 2067. Applying these principles, we conclude that McAleese’s trial counsel was not constitutionally deficient.\nFirst, his decision not to call Natalie as a witness did not break any promise, either implicit or explicit, to the jury to provide an alibi defense. Moreover, that decision reflects sound trial strategy. Standing alone, Natalie’s testimony would have done little more than bolster McAleese’s loose alibi defense. Coupled with the phone records — -if they existed, were retrievable, and showed no long distance calls — his testimony would have been meaningful, but the jury would have been left to speculate about the nature of McAleese’s call to Natalie. Trial counsel had built an image of McAleese as a hardworking citizen, and he understandably did not want to risk shattering that image.\nSecond, the record establishes that trial counsel did not subjectively know that Natalie’s incoming telephone calls could be retrieved, and there is no substantial evidence supporting the conclusion that counsel should have known in late 1982 through mid-1983 that such technology existed. Even assuming that trial counsel’s lack of knowledge was objectively unreasonable, McAleese suffered no prejudice from the absence of the records of Natalie’s incoming calls because the possibility of exoneration arising from those records was minimal under the circumstances of this case.\nFor these reasons, the representation McAleese’s trial counsel provided comported with the Sixth Amendment guarantee of effective assistance of counsel. Accordingly, we will reverse the district court’s order granting McAleese a writ of habeas corpus.\n. McAleese filed an earlier petition for writ of habeas corpus in the district court before the conclusion of the post-verdict proceedings in state court. The district court dismissed it for failure to exhaust state remedies. See McAleese v. Dukes, Civ.A. No. 86-4370 (E.D.Pa. Jan. 9, 1987). This Court denied a certificate of probable cause to appeal on March 25, 1987. See McAleese v. Dukes, No. 87-1036 (3d Cir. Mar. 25, 1987).\n. Natalie also did not think that McAleese had placed the call from a pay phone because he did not hear the sounds of coins being dropped in a box.\n. On September 1, 1992, McAleese filed a motion in the district court for reconsideration of the order denying enlargement pending appeal. The district court denied reconsideration on September 15. McAleese filed a timely notice of appeal in this Court on October 1. It was docketed as a cross-appeal. Shortly thereafter, McAleese filed a motion for enlargement and/or bail in this Court. We denied it on October 19, 1992. McAleese agrees with the Commonwealth that his cross-appeal from the district court's denial of his motion for reconsideration was thereby rendered moot. He nevertheless urges this Court to grant enlargement under Federal Rule of Appellate Procedure 23 concurrently with af-firmance of the district court’s grant of habeas corpus relief. In view of our disposition, we will deny that request.\n. At the time of the murder in December 1982, Tanya was five years old and Rebecca was three. In his amended complaint for divorce from Ramona Grabowski, the victim, McAleese stated that there were no children born of the marriage. Thus, McAleese disavows paternity of either. See Brief for Appellee at 12. The Commonwealth introduced evidence at trial that McAleese and Grabowski had been married on Juné 24, 1977 and divorced on October 1, 1979, see trial record, Exhibit C-43.\n. A later examination of the automobile revealed a reddish brown stain above the door handle in the interior on the driver’s side. Another reddish brown stain was found on the exterior door on the driver’s side just below the door handle. Chemical analyses of the stains, as well as a floor mat and a vinyl portfolio taken from the automobile, tested negative for human blood.\n. Of course, Natalie could -not have testified regarding the point of origin of McAleese’s call.\n. Natalie also would have testified that he had received a phone message regarding a call from McAleese at 8:33 a.m.\nAt the post-verdict evidentiary hearing, Natalie testified that he dictated a memo of his phone conversation with McAleese within a half hour of the 3:00 p.m. phone call. In that memo he noted that McAleese had called \"twice during the afternoon” and that he finally had spoken to him shortly before 3:00 p.m. Natalie identified photocopies of two phone message slips taken by his secretary from a person identifying himself as Frank McAleese. One showed a call at 8:33 a.m. and one showed a call at 2:38 p.m.\nMcAleese’s trial counsel, on the other hand, testified that he had been provided with only one phone message slip — the one showing a call at 8:33 a.m. He also testified, however, that his investigator had spoken to a secretary in Natalie’s office who said she had taken a call from someone identifying himself as Frank McAleese at around 3:00 p.m. in the afternoon. She said the caller hung up before completely spelling his name, and that she had noted the call on a piece of scrap paper, not a phone message slip of the sort Natalie produced for McAleese at the post-verdict hearing. When trial counsel interviewed her, the piece of scrap paper no longer existed and she was unable to provide him with it. In examining the photocopied message slip of the purported 2:38 p.m. phone call at the post-verdict evidentiary hearing, trial counsel opined that it looked like a doctored version of the 8:33 a.m. message.\n. McAleese contends the desired image was destroyed when two of the five alibi witnesses testified that McAleese had been drinking beer when they encountered him. Trial counsel suggested during summation that it is not \"unusual for a working man to have a couple of beers during the course of the afternoon,” and that this evidence was irrelevant to the question whether McAleese in fact committed the murder. App. at 638-39. Trial counsel’s comments were a reasonable attempt to deal with evidence that could have had a negative impact on the jury’s perception of his client but did not necessarily destroy the image the defense sought to project.\n. The purpose of a hearing under Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), as modified by Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), is to determine whether the prosecution may cross-examine the defendant with evidence of his crimen falsi if he takes the stand, and also to forewarn the defendant that if he chooses to take the stand he may be impeached by prior crimen falsi convictions. Commonwealth v. Ly, 528 Pa. 523, 599 A.2d 613, 620 (1991). The trial court in the present case ruled that the Commonwealth would be permitted to impeach McAleese should he testify. Because McAleese had a lengthy criminal record, he did not testify as a result of this ruling.\n. Whether counsel’s failure in this regard was constitutionally ineffective is a separate issue discussed in Part B infra.\n[END_CASE]", "role": "user" } ]
10,509,069	George KOST and Francis Ferri, Appellants, v. Charles KOZAKIEWICZ, Warden, James Gregg, Deputy Warden, (FNU) Balogh, Lieutenant, Allegheny County Jail, Unknown Executives and Officers, Allegheny County Solicitor's Office, Goldline Laboratories, Gatti Services	Kost v. Kozakiewicz	1993-07-28	No. 92-3386	United States Court of Appeals for the Third Circuit	{"judges": ["Before: COWEN, ROTH, and ROSENN, Circuit Judges"], "parties": ["George KOST and Francis Ferri, Appellants, v. Charles KOZAKIEWICZ, Warden, James Gregg, Deputy Warden, (FNU) Balogh, Lieutenant, Allegheny County Jail, Unknown Executives and Officers, Allegheny County Solicitor’s Office, Goldline Laboratories, Gatti Services."], "opinions": [{"text": "OPINION OF THE COURT\nROSENN, Circuit Judge.\nThis appeal by two federal pretrial detainees housed under contract in the Allegheny County, Pennsylvania jail raises the question whether an existing class action against the defendants provided the plaintiffs with all the relief afforded them for their claims arising from their confinement under the United States Constitution and the Civil Rights Act, 42 U.S.C.A. §§ 1983, 1985, and 1986 (West 1991). We also consider whether certain counts of the complaint regarding alleged intolerable conditions and treatment at the facility are barred by a two- or six-year statute of limitations. The district court entered summary judgment in favor of all defendants. The plaintiffs timely appealed. We affirm the court’s grant of summary judgment as to some of their claims. We vacate the court’s grant of summary judgment as to other claims and remand with instructions to dismiss. As to the remaining claims, we reverse and remand for further proceedings consistent with this opinion.\nI. BACKGROUND\nOn July 18, 1991, the plaintiffs George Kost and Francis Ferri filed a lengthy complaint in the United States District Court for the Western District of Pennsylvania against the defendants Charles Kozakiewicz, warden of the Allegheny County Jail (ACJ), other jail officials, Allegheny County, and certain county officials (referred to hereinafter collectively as the ACJ defendants or appellees); Goldline Laboratories (Goldline), a distributor of medical supplies; and Gatti Services (Gatti), a pharmacy. The complaint alleged in five counts forty-five various violations of plaintiffs’ rights under §§ 1983, 1985(2) and (3), and 1986, and the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution.\nGoldline and the ACJ defendants filed separate motions to dismiss pursuant to various subsections of Federal Rule of Civil Procedure Rule 12(b). Gatti filed a similar motion to dismiss, and in the alternative, because it submitted with its filing an affidavit executed by its president, a motion for summary judgment. The district court referred the case to a magistrate judge who submitted a report stating that “[e]ach defendant has filed either a Rule 56 motion for summary judgment or a Rule 12(b)(6) motion to dismiss. Review of the pleadings and case law reveals that defendants’ motions should be granted.”\nPlaintiffs filed objections to the magistrate judge’s report. After de novo review, the district court entered an order adopting the report as the opinion of the court and granting summary judgment in favor of all defendants. Appellants timely appealed.\nOver the years, the ACJ has been the subject of considerable litigation regarding conditions at the facility, and some conditions have been adjudged unconstitutional. The ACJ was under court order to remedy these conditions by 1992.\nAll events relied upon by plaintiffs to establish their claims took place between February 20,1987, and August 3,1989. At some time during this period, each plaintiff was a federal pretrial detainee housed at the ACJ pursuant to a contract or some other arrangement between the United States and Allegheny County. Each plaintiff spent part of his time at the ACJ in the Disciplinary Housing Unit (DHU). Kost was housed in the DHU during the month of June 1988. Ferri was housed in the DHU from May 16, 1989, through August 1, 1989. They are currently inmates at the federal penitentiary in Leavenworth, Kansas.\nII. ANALYSIS OF PLAINTIFFS’ CLAIMS\nA.COUNT I\nPlaintiffs alleged in Count I of their complaint that 1) inadequate heating and ventilation in the ACJ, combined with inmate exposure to toxic chemicals, exhaust fumes from gasoline operated combustion engines, and other fumes have shortened their life expectancy; 2) unbearable noise pollution and poor lighting within the cells at the ACJ have caused them “to suffer degenerative hearing and eyesight”; 3) unsanitary food preparation and serving procedures, coupled with inadequate and unsanitary personal hygiene and general living conditions, have caused them to incur diseases and have shortened their life expectancy; and 4) they have been caused needless pain and suffering.\nB. COUNT II\nPlaintiffs alleged in Count II of their complaint that the ACJ defendants: 1) impeded and obstructed their access to the courts and adequate law library facilities; 2) confiscated their legal documents; 3) provided no facilities within their individual cells for the retention of their legal documents; 4) allowed unbearable temperatures and overcrowding in the waiting area (bull-pen) where they were held for court appearances; and 5) caused them needless pain and suffering.\nC. COUNT III\nCount III of the complaint is based on two sets of events that allegedly occurred during Ferri’s confinement in the DHU between May 16, 1989, and August 1, 1989. These events allegedly culminated in Ferri’s suffering a lice infestation and a series of heat-strokes.\nAs to the lice infestation, plaintiffs alleged in their complaint that: 1) Goldline supplied the ACJ and/or Gatti with medical supplies for use in the treatment of inmates at the ACJ; 2) Gatti was under contract to provide medical services for the inmate population; 3) Goldline and Gatti bore a duty to them with respect to their medical care and welfare; 4) while in the DHU, the ACJ deten-dants inflicted upon Ferri unsanitary cells, shower facilities, bedding, and towels; 5) Ferri became infested with head and body lice because the ACJ defendants provided him with dirty bedding; 6) Goldline and Gatti supplied Ferri with inferior products and services in the treatment of the lice infestation; 7) the ACJ defendants failed to provide Ferri with the necessary medical care to cure the infestation; and 8) the infestation therefore remained with him until he was transferred out of the ACJ on August 4, 1989, causing him unbearable and needless pain and' suffering for a 70-day period.\nAs to the series of heatstrokes, plaintiffs alleged in their complaint that: the ACJ defendants inflicted upon Ferri a total lack of ventilation coupled with cell temperatures “in excess of 90 to 100 degrees daily for 24 hours a day”; unbearable temperatures and lack of ventilation caused Ferri to suffer eight heat-strokes, which have had a degenerative effect upon his mental, physical, and “physicological” capacities; and his complaints to jail officials regarding the heatstrokes fell on deaf ears.\nD. COUNT IV\nCount IV of the complaint is based on events that occurred during Kost’s confinement in the DHU in June 1988. Plaintiffs alleged in their complaint that: 1) certain ACJ defendants beat Kost at various times, often while he was handcuffed; 2) he was told during one of the beatings that “unless he cooperated with information about an aborted escape attempt ... he would receive more beatings”; 3) when he denied knowledge of the escape attempt, Kozakiewicz informed four of the inmates accused of attempting escape that Kost had indeed informed on them and then placed him in the range of cells within the DHU where the four inmates were housed, thereby jeopardizing his life; 4) during a two-week period, a jail official made daily inspections of Kost’s cell, throwing away all toiletry articles and legal documents; and 5) when Kost was called to trial in his criminal case in federal court, jail officials refused to let him shower or shave prior to his appearances and had discarded all his clothing, forcing him to appear in court “like a drunken derelict,” which had a negative effect upon his ability to present a defense.\nE. COUNT V\nPlaintiffs alleged in Count V of their complaint that, beginning some time before the period in question in this case and shortly after Kozakiewicz became warden at the ACJ, various jail officials conspired to create a “goon squad” to inflict pain and suffering upon inmates to satisfy their “lust for brutality” and to instill fear in the general inmate population. Plaintiffs further alleged, as part of this conspiracy, that: 1) various jail officials committed attempted murder and murder; 2) an unusually high number of inmate beatings and injuries took place during the “goon squad” period as compared with prior periods; 3) an unusually high number of inmate deaths, attributable to unknown factors and ruled suicides, occurred during this period; 4) complaints made to jail officials and to members of the Prison Board about the beatings fell on deaf ears and that it was -part of the conspiracy that such complaints would be ignored.\nPlaintiffs also alleged that one object of the conspiracy was to- disguise or mask acts of brutality by: performing them in isolated parts of the ACJ; writing an incident report against a beaten inmate falsely accusing him of attacking an officer or of other conduct requiring a physical response from the conspirators; causing internal medical reports to reflect retaliatory action by the conspirators whenever a gratuitously beaten inmate suffered physical injuries that required medical treatment within the ACJ; and having at least one conspirator claim personal injuries from a falsely alleged attack by a gratuitously beaten inmate whenever such an inmate suffered injuries requiring outside .medical treatment.\nAdditionally, plaintiffs alleged that:- various jail officials used a parabolic microphone to intercept conversations between Ferri and another inmate; in May 1989, Kozakiewicz had all windows and other means and methods of air ventilation in the DHU sealed off, as a result of which from June 1989 through August 1, 1989, Ferri suffered eight heat-strokes in the DHU for which neither jail officials nor Gatti attempted to provide him with any medical care.\nPlaintiffs also listed overt acts related to the alleged conspiracy. This list primarily sets forth acts involving inmates other than plaintiffs that took place before June 1989. Any acts involving the plaintiffs and/or taking place after July 18, 1989, are those already set forth in Counts III and IV.\nPlaintiffs requested compensatory and punitive damages in each count.\nIII. DISCUSSION\nA. PRESERVATION OF ISSUES ON APPEAL\nBefore discussing the appellants’ contentions on appeal, we note first that under Federal Rule of Appellate Procedure 28(a)(3) and (5) and Third Circuit Local Appellate Rule 28.1(a), appellants are required to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief. Simmons v. City of Philadelphia, 947 F.2d 1042,1065 (3d Cir.1991) (“absent extraordinary circumstances, briefs must contain statements of all issues presented for appeal, together with supporting arguments and citations”), cert. denied, — U.S. -, 112 S.Ct. 1671, 118 L.Ed.2d 391 (1992); 16 Charles A. Wright et al., Federal Practice and Procedure § 3974, at 421 (1977 and Supp.1993, at 690) (“to assure consideration of an issue by the court, the appellant must both raise it in [the] Statement of the Issues and pursue it in the Argument section of the brief’). It is well settled that if an appellant fails to comply with these requirements on a particular issue, the appellant normally has abandoned and waived that issue on appeal and it need not be addressed by the court of appeals. Institute for Scientific Info., Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1011 (3d Cir.1991); Roberts v. N.C. Sawyer, 252 F.2d 286, 287 (10th Cir.1958).\nIn the present case, the appellants have not set forth any issues related to §§ 1985 and 1986 in their issue statement; additionally, there are no arguments or citations relevant to these statutory sections in the remainder of their brief. Moreover, in their reply brief, they acknowledge the argument advanced by all appellees that the complaint failed to allege a set of facts to support the §§ 1985 and 1986 claims, and they concede that they have not argued this issue on appeal. Appellants therefore have not preserved any §§ 1985 and 1986 issues on appeal against any appellee, and thus we decline to address these statutory sections on review.\nAdditionally, appellants seem to suggest on appeal that Goldline and Gatti are liable for injury caused by the allegedly ineffective lice medication prescribed for Ferri under Pennsylvania products liability law. It is also well settled, however, that casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal. Simmons, 947 F.2d at 1066. The appellants only suggest the existence of these claims in passing in a short footnote in their opening brief, without argument or relevant citation. They never articulate or argue anywhere in that brief the necessary contention that the district court erred in failing to recognize such claims in their complaint. We therefore conclude that appellants have abandoned and waived this issue on appeal.\nIn summary, as to Goldline, we conclude that appellants have not appealed any products liability issue or any § 1985 or § 1986 issue. Further, insofar as appellants concede in their reply brief that no § 1983 claim was ever brought against Goldline, they obviously do not now appeal the district court’s disposition of this claim. Therefore, there are no issues whatsoever before us as to Goldline.\nAs to Gatti, we conclude that appellants have not appealed any products liability issue or any § 1985 or § 1986 issue. As to the ACJ appellees, we conclude that appellants have not appealed any § 1985 or §' 1986 issue. Therefore, the only issues remaining before this court on appeal relate to appellants’ § 1983 claims against both Gatti and the ACJ appellees.'\nB. STANDARD OF REVIEW\nIn that 1) there is nothing in the magistrate judge’s report indicating that the ACJ defendants’ motion to dismiss was treated as a motion for summary judgment and 2) the district court’s order specifically adopted that report with its recommendation that this motion to dismiss be granted, the district court appears to have inadvertently entered summary judgment in favor of these defendants. Therefore, appellants’ appeal as to them will be treated as an appeal from dismissal under Rule 12(b)(6). Only appellants’ appeal' as to Gatti appears from all the circumstances to be from a grant of summary judgment, and only it will be treated as such.\nBecause we treat the portion of this appeal involving the ACJ appellees as if it were from the dismissal of all claims against those appellees, the only pertinent facts on appeal are those alleged in the complaint. As to the claims against Gatti, however, which were disposed of by summary judgment in a procedurally correct manner, facts not alleged in the complaint but appearing in evidentiary sources provided in the record on appeal will be considered.\n1. Dismissal under Rule 12(b)(6)\nOur review of a district court’s dismissal under Rule 12(b)(6) is plenary. Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir.1992). A 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint. See id. The question, then, is whether “the facts alleged in the complaint, even if true, fail to support the ... claim.” Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). The pleader is required to “set forth sufficient information to outline the elements of his claim or- to permit inferences to be drawn that these elements exist.” 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 340 (2d ed. 1990).\nWe apply the same standard the district court is required to apply. We therefore accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir.1985). However, “we are not required to accept legal conclusions either alleged or inferred from the pleaded facts.” Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir.1979).\n2. Summary Judgment\nOur review of a district court’s grant of summary judgment also is plenary. Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 413 (3d Cir.1990). “On review the appellate court is required to apply the same test the district court should have utilized initially.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).\nRule 56(c) sets forth the test to be utilized by the district court. Summary judgment is appropriate only if there are no genuine issues of material fact and the relevant law entitles the moving party to judgment. Fed. R.Civ.P. 56(c); Carlson, 918 F.2d at 413. In addressing the question of the existence of a genuine issue of material fact, the Supreme Court has stated:\n[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. [Where there is] a complete failure of proof concerning an essential element of the nonmoving party’s case[, all other facts are rendered immaterial and t]he moving party is “entitled to summary judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.\nCelotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Celotex also holds that in responding to a motion for summary judgment, Rule 56(e) requires that the non-moving party with the burden of proof on a dispositive issue at trial “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. at 2553.\nC. SUMMARY JUDGMENT IN FAVOR OF GATTI\nFactual allegations supporting the plaintiffs’ claims against Gatti appear in Counts III and V. The record also contains a copy of an affidavit submitted by Gatti with its motion. The affidavit averred that Gatti had a contract with a third party, Corrections Medical Systems, Inc., under which it provided off-site prescription filling services for physicians who treated prisoners at ACJ from January 1, 1989, to August 31, 1989; and that Gatti filled all prescriptions at its offices and had no contact with any prisoners in the ACJ. The complaint alleged that: Gatti owed plaintiffs some kind of duty with respect to their medical care and welfare; Gatti supplied Ferri with an inferior product for use in treating his lice infestation, which did not rid him of the infestation; and Gatti did not attempt to provide Ferri with any medical care for his heatstrokes.\nBased on these allegations, plaintiffs claimed that Gatti violated Ferri’s rights under § 1983 and that Gatti conspired with the ACJ defendants to violate those rights. We address the § 1983 claim first. The Supreme Court has set forth the two essential elements of a § 1983 action: “(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parrott v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).\nAlthough it is possible for a private party to violate an .individual’s § 1983 rights, the individual alleging such a violation is not relieved of the obligation to establish that the private party acted under color of state law. “[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action [of the private party] so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974).\nPlaintiffs’ § 1983 claim against Gatti cannot, withstand Gatti’s summary judgment motion because they have failed to make a showing sufficient to establish the existence of the element of state action, the first element essential to their case. Had Gatti contracted directly with the ACJ or Allegheny County to provide off-site prescription filling services, an inference might have arisen that a sufficient connection existed between a state actor and Gatti to create a genuine issue of material fact on the element of state action. Gatti contracted, however, with a private, intermediary third party; it had no contact whatsoever with a state actor and was not one itself.\nThus, nothing in the complaint’s factual allegations provides a basis for establishing the nexus necessary to show that Gatti acted (or failed to act) under color of state law with regard to Ferri, and plaintiffs have failed to go beyond their pleadings to designate facts that would create a genuine issue of material fact on this element. This complete failure of proof on an essential element of plaintiffs’ § 1983 claim entitles Gatti to summary judgment as a matter of law, Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552, and therefore the district court did not err in granting summary judgment in favor of Gatti on plaintiffs’ § 1983 claim.\nPlaintiffs’ § 1983 claim against Gatti is also vulnerable to summary judgment on the second element articulated by the Court because they have failed to establish that Gatti’s allegedly ineffective lice treatment deprived Ferri of any federal rights. This court has set forth the elements of a Due Process Clause violation based on the government’s duty to provide pretrial detainees with appropriate medical care: Such a violation requires “ ‘acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.’ ” Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)). This court further noted:\nThe Court emphasized that simple negligence was not the appropriate standard because “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” [Estelle, 429 U.S. at 106[, 97 S.Ct. at 292]]. Medical malpractice may give rise to a tort claim in state court but not necessarily to a constitutional claim.\nId.\nTherefore, to establish that Gatti’s conduct deprived Ferri of any federal rights in a manner sufficient to withstand a motion for summary judgment, plaintiffs were obligated to designate facts supporting the existence of both deliberate indifference on the part of Gatti and a serious medical condition on the part of Ferri. The record does not show that the plaintiffs attempted, much less succeeded, in doing so. Therefore, as to the alleged lice infestation, plaintiffs have failed to establish a genuine issue of material fact as to the existence of both deliberate indifference and a serious medical condition. As to the alleged heatstrokes, they have failed to establish a genuine issue of material fact as to the existence of deliberate indifference. Thus, although plaintiffs’ allegations, like the allegations of medical malpractice in Estelle and Boring, may give rise to a state tort claim, they do not rise to the level of federal constitutional violations.\nThis complete failure of proof on the second essential element of plaintiffs’ § 1983 claim against Gatti also entitles Gatti to summary judgment as a matter of law. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. Thus, the district court did not err in granting summary judgment in favor of Gatti on plaintiffs’ § 1983 claim.\nAs to the § 1983 conspiracy claim against Gatti, appellants would be entitled to relief if they could show that Gatti and at least one of the state actors named as defendants in their complaint somehow reached an understanding to deny Ferri his rights under § 1983. Adickes, 398 U.S. at 150,152, 90 S.Ct. at 1604, 1605. Establishing the existence of this “understanding,” however, is really nothing more than another way to show state action as required by § 1983 when a private party is alleged to have violated that statute. See id. at 152, 90 S.Ct. at 1605. In the present case, just as there was a complete failure of proof on the nexus necessary to show state action in the context of plaintiffs’ § 1983 claim against Gatti, there is an analogous failure of proof on the understanding necessary to establish Gatti’s participation in a § 1983 conspiracy. This failure of proof entitles Gatti to summary judgment as a matter of law on plaintiffs’ § 1983 conspiracy claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. Thus, the district court did not err in granting summary judgment in favor of Gatti on this claim.\nIn summary, the district court did not err in granting summary judgment of all claims against Gatti, and its judgment will therefore be affirmed.\nD. DISMISSAL OF CLAIMS AGAINST THE ACJ DEFENDANTS\n1. Counts I and II\nThe magistrate judge found that the plaintiffs complained of various conditions of confinement that were previously addressed by the United States District Court for the Western District of Pennsylvania in a series of decisions and orders in a class action suit brought on behalf of present and future ACJ inmates against certain ACJ defendants, in which the class requested injunctive relief from unconstitutional jail conditions. See, e.g., Owens-El v. Robinson (Owens-El I), 442 F.Supp. 1368 (W.D.Pa.1978); Owens-El v. Robinson (Owens-El II), 457 F.Supp. 984 (W.D.Pa.1978), aff'd in part, vacated in part by Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir.1979); Inmates of Allegheny County Jail v. Wecht (Wecht I), 699 F.Supp. 1137 (W.D.Pa.1988), appeal dismissed in part, aff'd in part, 874 F.2d 147 (3d Cir.), cert. granted and judgment vacated by 493 U.S. 948, 110 S.Ct. 355, 107 L.Ed.2d 343 (1989); Inmates of the Allegheny County Jail v. Wecht (Wecht II), 901 F.2d 1191 (3d Cir.1990).\nA reading of these and other related decisions fails to verify that all of plaintiffs’ allegations have already been addressed in these earlier decisions. Specifically, although the court discussed temperature extremes in the facility as contributing to a general finding of unconstitutional jail conditions, there is no discussion of inadequate ventilation or of the combined effects of inadequate ventilation, temperature extremes, and the use within the facility of chemicals and machines that give off toxic fumes. There is also no discussion of noise, lighting levels, or unsanitary food preparation and service procedures.\nAlthough prior decisions do discuss the inadequacy of the law library and lack of access to it by female inmates housed in an annex to the jail, there is no discussion of hindered access to the library for male occupants of the jail itself or of problems in the maintenance of legal documents.\nConditions of confinement at the ACJ are the continuing concern of the district court. The court, however, cannot respond to new or different problems related to those conditions if it deems that, by addressing some conditions at the jail, all conditions have been addressed. Further, it may very well be that only through complaints such as the one under consideration will the court become apprised of the ACJ defendants’ failure to comply with prior court orders on conditions that actually have already been addressed.\nIn Jordan v. Jones, 563 F.2d 148 (5th Cir.1977), an individual inmate brought a civil rights action claiming deprivations at a county jail. As in the present case, the district court dismissed on the ground that the claims asserted were similar to those involved in a class action previously decided. The court stated:\nSome of [the inmate’s] long litany of complaints are subsumed in the [class action] opinion and order, some are patently frivolous, but others fall in neither of these categories. The District Court could reopen the [class action] and refer [the inmate’s] complaints to plaintiff counsel therein for them to handle as attorneys for the class, or could consolidate the present case with the [class action]. But it could not dismiss the present case on the basis that it presents issues which are similar to those in the class suit and could be presented in that suit Also, one of the allegations is that jail officials are not complying with the [class action] order. This has to be dealt with in some manner other than dismissal.\nJordan, 563 F.2d at 148 (emphasis added).\nAlthough the plaintiffs did not specifically allege in their complaint that jail and county officials were not complying with prior orders in the ACJ class action suit, they did raise matters in their complaint that are not patently frivolous or specifically subsumed in the prior class action opinions and orders. To this extent, they complained of conditions that should have been considered within the context of the class action suit or in a case consolidated with that suit; and the district court therefore erred in granting summary judgment on, and would have erred had it dismissed, those portions of plaintiffs’ complaint dealing with such matters.\nFurther, to the extent that the court deciding the ACJ class action suit found no basis for money damages on claims raised in the consolidated class action against certain ACJ defendants, which may or may not include all jail and county officials, named in the present case, that finding was based on a lack of evidence of wrongful intention or culpable negligence on the part of those particular ACJ defendants. Owens-El I, 442 F.Supp. at 1391. Because plaintiffs complain of matters not addressed in prior opinions and orders and against an 'apparently broader group of defendants, no such determination has been made as to jail and county officials with regard to the new matters pressed in the instant suit.\nIt may yet be, however, that Counts I and II of the complaint fail to state a claim upon which relief can be granted, but if so, it must be either because 1) the alleged conduct and conditions do not fall within the limitations period; or 2) the complaint fails to allege sufficient facts to support the essential elements of plaintiffs’ claims or to permit inferences to be drawn that these elements exist. In the latter ease, the necessary determination should be made upon remand with reference to the elements set . forth in Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).\nTherefore, we will vacate the district court’s summary judgment on appellants’ § 1983 claim based on the allegations contained in Counts I and II of their complaint and remand with instructions that, • to the extent that each allegation in the complaint is not patently frivolous or specifically subsumed in existing orders stemming from the class action, the case should be treated in the context of the class action or consolidated with the class action as suggested in Jordan, 563 F.2d at 148.\n2. Count III\nIn this count, plaintiffs alleged two general conditions of confinement violations and two specific violations based on inadequate medical treatment. See Seiter, — U.S. at -, III S.Ct. at 2326 (“the medical care a prisoner receives is just as much a ‘condition’ of his confinement as the food he eats ... or the temperature he is subjected to in his cell”). Specifically, plaintiffs alleged that the ACJ defendants’ deliberate indifference both caused Ferri’s lice infestation and heat-strokes and prevented him from receiving effective treatment for those conditions.\nAs to claims by pretrial detainees of inadequate medical treatment, this court has stated:\nPretrial detainees are not within the ambit of the Eighth Amendment but are entitled to the protections of the Due Process clause. The Due Process clause requires the government to provide appropriate medical care. As the [Supreme] Court -observed in [City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244[, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605] (1983) ], the Due Process rights of a pretrial detainee are “at least as great as the Eighth Amendment protections available to a convicted prisoner.”\n* * *\nThe protection afforded a sentenced prisoner under the Eighth Amendment was discussed in Estelle v. Gamble, 429 U.S. 97, 106[, 97 S.Ct. 285, 292, 50 L.Ed.2d 251] ... (1976). There the Court said: “Acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” constitute cruel and unusual punishment under the Constitution.\nBoring, 833 F.2d at 471.\nThe Supreme Court has recently set forth the standard for violations of the Eighth Amendment based on nonmedical conditions of confinement. Setter, — U.S. at -, 111 S.Ct. at 2324, 2326-27. This standard would also apply to appellants as pretrial detainees through the Due Process Clause. The standard has an objective and a subjective component, just as the Estelle standard does. A plaintiff must prove that prison officials acted with deliberate indifference and that he or she suffered a deprivation of “ ‘the minimal civilized measure of life’s necessities.’ ” Setter, — U.S. at —, —, 111 S.Ct. at 2324, 2326-27 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)).\na. Causing the Lice Infestation\nPlaintiffs alleged that the jail and county officials’ “deliberate indifference towards Ferri’s care and welfare while he was housed in the DHU caused him to become infected with head and body lice as a result of providing him with dirty bed linen or mattresses.” Although we recognize that the Eighth Amendment “does not mandate comfortable prisons,” Rhodes, 452 U.S. at 349, 101 S.Ct. at 2400, we believe that inmates do have a right to be free of conditions that generate infestations of vermin. Plaintiffs have therefore stated a claim sufficient to withstand dismissal under the Seiter standard, provided the claim also withstands scrutiny under the applicable statute of limitations.\nPlaintiffs filed their complaint on July 18, 1991. Therefore, if their claim that the ACJ defendants caused Ferri’s infestation accrued before July 18, 1989, it is barred by the Pennsylvania two-year statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985); 42 Pa.Con.Stat. Ann. § 5524 (Supp.1993). Ferri’s alleged infestation did in fact commence before that date: The remaining pertinent allegations show that Ferri suffered from the infestation for 70 days while in the DHU until his release on August 4, 1989; counting backward, this places the commencement date, and thus causation, prior to July 18. The claim is therefore time-barred.\nThus, although it was error to grant summary judgment on this claim, see supra section III.B., it would not have been error to dismiss it on statute of limitations grounds. Therefore, the district court’s grant of summary judgment will be vacated and the claim remanded with instructions to dismiss it.\nb. Causing the Heatstrokes\nPlaintiffs alleged that “the unbearable temperatures and lack of ventilation brought about by the deliberate indifference of the Defendants caused Ferri to suffer eight (8) heat strokes”, while he was in the DHU. It cannot be ascertained from the complaint whether any .of the alleged heat-strokes occurred after July 18, 1989. If one or some of these heatstrokes did occur after this date, so too would the cause. Heatstroke is a serious medical condition. Acts or omissions of a deliberately indifferent nature that repeatedly cause a serious medical condition are more than sufficient to meet the Seiter standard. Therefore, the complaint would state a claim upon which relief can be granted if any of Ferri’s heatstrokes occurred after July 18.\nThe district court’s grant of summary judgment on this § 1983 claim against the ACJ defendants will be vacated and the claim remanded for a determination of whether the statute of limitations bars it. ■ If appellants’ claim survives this scrutiny, they should be allowed to proceed on the merits.\nc. Inadequate Treatment of the Lice Infestation\nA prison’s dispensing of vermin infested bedding, which causes that detainee’s personal infestation, may establish a violation of a pretrial detainee’s due process rights paralleling an Eighth Amendment violation against a convicted inmate. Ferri’s alleged infestation in and of itself, however, fails to establish the existence of a. serious medical need as required under Estelle and Boring. Therefore, plaintiffs fail to set forth sufficient information in their complaint as to this element of their claim.\nThus, although summary judgment on this portion of Count III should not have been granted, see supra section III.B., it would not have been error to have dismissed this claim pursuant to Rule 12(b)(6). The court’s grant of summary judgment on this § 1983 claim against the ACJ defendants will, therefore, be vacated and the claim remanded with instructions to dismiss it.\nd. Lack of Treatment for Heatstroke\nThe same cannot be said for plaintiffs’ § 1983 claim related to the alleged lack of treatment for the eight heatstrokes Ferri allegedly suffered during the summer months of his confinement in the DHU. Heatstroke is considered a serious medical condition that requires treatment. The complaint alleged that jail and county officials were given notice of his condition and did nothing. Under the liberal pleading requirements of Rule 8(a), this is sufficient to establish the existence of deliberate indifference to the extent necessary to survive a motion to dismiss. Therefore, this portion of plaintiffs’ § 1983 claim will survive a motion to dismiss under Estelle and Boring and they should be allowed to proceed on the merits if on remand it survives the same statute of limitations scrutiny that the claim of causing the heatstrokes must undergo.\n3.- Count IV\nThe magistrate judge found that all of the incidents alleged to support the § 1983 claim contained in Count IV, which pertain to physical abuse and mistreatment of Kost during his confinement in the DHU, took place prior to July 18, 1989. Therefore, the magistrate judge concluded that Pennsylvania’s two-year statute of limitations for personal injury, 42 Pa.Cons.Stat.Ann. § 5524, barred the claim in its entirety. Appellants argue on appeal that this two-year limitations period should not apply and, instead, that Pennsylvania’s four- or six-year statutes of limitations for contracts should govern because Kost was a federal pretrial detainee housed at the ACJ pursuant to a contract between the United States Marshal’s Service and Allegheny County and his claims constitute. violations of that contract. This argument actually raises two separate issues: We must first determine the appropriate limitations period for the § 1983 claim alleged in Count IV; second, we must determine whether the plaintiffs’ complaint made out a contract claim.\na. The Statute of Limitations on § 1983 Claims\nThere is no federal statute of limitations for § 1983 actions. Title 42 U.S.C.A. § 1988 (West Supp.1993), however, contains a borrowing provision under which this gap shall be filled by reference to “the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil ... cause is held.” In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Supreme Court determined after extensive discussion that all § 1983 actions, should be classified as claims for personal injury for the purpose of determining the limitations period under the applicable state law. Garcia, 471 U.S. at 272-76, 280, 105 S.Ct. at 1944-47, 1949.\nIn the face of this precedent, appellants’ argument for application of the longer Pennsylvania limitations period for breach of contract is plainly frivolous. As already set forth, the Pennsylvania limitations period for personal injury actions is two years. The complaint was filed in 1991. All events related to Kost’s confinement in the DHU occurred in 1988. The Count IV § 1983 claim based on these events is therefore entirely time-barred. Thus, although it was error to have entered summary judgment on this claim, see supra section III.B., it would not have been error to have dismissed this portion of the complaint pursuant to the ACJ defendants’ Rule 12(b)(6) motion. The district court’s order granting summary judgment on plaintiffs’ Count IV § 1983 claim will therefore be vacated and the claim remanded with instructions to dismiss it.\nb. The Contract Claim .\nAs to the contract claim, appellants raise an issue on'objections to the magistrate judge’s report and on appeal that has no predicate in their complaint. Count IV of the complaint alleges that certain ACJ defendants, “by their acts of deliberate indifference towards the care and welfare of the Plaintiff George Kost infliced [sic] the following torts upon him.” This allegation is then followed by a statement of the misconduct alleged of these defendants. Kost makes no allegation, explicit or implicit, that this activity constituted violations of any contract between United States and Allegheny County or that he had standing to sue under such a contract. The contract is neither attached as an exhibit to the complaint nor are its pertinent provisions incorporated into the complaint.\nMoreover, in his comprehensive statement in the complaint of the legal bases for his claim, Kost alleges a denial of federal due process and other federal constitutional violations; statutory violations under §§ 1983, 1985(2) and (3), and 1986; and breach of “the tort laws of the Commonwealth of Pennsylvania.” Appellants do not here appeal the §§ 1985 and 1986 claims or the state tort claim. We therefore can perceive no error in the magistrate judge’s application of Pennsylvania’s two-year statute of limitations for personal injury to the remaining § 1983 claim. 42 Pa.Cons.Stat.Ann. § 5524, Garcia, 471 U.S. at 272-76, 280,105 S.Ct. at 1944-47, 1949. Count IV of the complaint fails to make out a contract claim, to which a longer limitations period would apply, because the factual allegations contained therein are simply not sufficient, even if true, to support such a claim. Ditri, 954 F.2d at 871; Ransom, 848 F.2d at 401.\nTherefore, although it was error to grant summary judgment on this phase of the case, see section III.B., it would not have been error to dismiss it pursuant to the ACJ defendants’ Rule 12(b)(6) motion for failure to state a claim. As already stated above, the district court’s grant of summary judgment on Count IV of the complaint will thus be vacated and this portion of the ease remanded with instructions to dismiss it.\n4. Count V\nThe conspiracy alleged in Count V of the plaintiffs’ complaint is a civil conspiracy to deprive them of civil rights guaranteed under § 1983. They incorporated by reference all § 1983 claims contained in Counts I through IV into this count alleging the § 1983 conspiracy. The law governing civil conspiracy differs from that which governs criminal conspiracy. This court set forth and analyzed this difference in Wells v. Rockefeller, 728 F.2d 209 (3d Cir.1984), cert. denied, 471 U.S. 1107, 105 S.Ct. 2343, 85 L.Ed.2d 858 (1985):\nThere is a split of authority on when the limitations period for a civil conspiracy commences. Some courts apply the rule used in criminal cases, that is, the limitations period begins on the commission of the last overt act of the conspiracy.\nOther jurisdictions, including those of this circuit, have applied the rule that the period runs from each overt act causing damage.\nThe rule generally adopted by the case law in this circuit provides greater certainty as to when a particular cause of action arises. For each act causing injtiry, a claimant must seek redress within the prescribed limitations period. Such a nde is consistent with the distinction between civil and criminal conspiracies. In the civil case, actual injury is the focal point, not the illegal agreement per se, as is true in the criminal context.\nAdoption of the last overt act rule urged by [the plaintiff] would invite attempts to revive time-barred injuries by piggy-backing them onto actions occurring within the relevant period. No unfairness results in requiring diligence in seeking a remedy within the period measured from the date an injury occurs. We conclude that [the plaintiffs] conspiracy allegation would not preserve claims that the district court ruled were otherwise barred by the two-year statute of limitations.\nWells, 728 F.2d at 217 (emphasis added).\nAppellants attempt to defeat this precedent by pointing to allegations of murder and attempted murder — allegations which would otherwise be disregarded as legal conclusions, Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir.1979) — to dispense with a limitations period entirely. Under Garcia, however, even murder would be considered a personal injury under a claim of civil conspiracy for purposes of determining the applicable statute of limitations. Therefore, by synthesizing Wells, Garcia, and Pennsylvania’s personal injury statute of limitations, plaintiffs were required to seek redress for each act of the alleged conspiracy causing injury within two years of its occurrence. Thus; in the present case, all claims based on acts occurring before July 18, 1989, are time-barred.\nAs noted above, plaintiffs incorporated by reference all § 1983 claims set forth in Counts I through IV into this fifth count. Based on our preceding analysis of Counts I through IV and our determination that we are barred from considering any acts set forth in Count V that occurred before July 18, 1989, appellants are left with nothing more to support their conspiracy claim than the ongoing conditions of confinement alleged in Counts I and II and the conditions causing and the lack of treatment for Ferri’s heat-strokes discussed in Count III, if the claims based on these conditions survive scrutiny for dismissal on remand.\nUnder these circumstances, plaintiffs’ conspiracy claim may appear redundant; however, should plaintiffs’ remaining § 1983 claims survive to trial and should a jury decide in favor of plaintiffs on some or all of these claims, the existence of a conspiracy to deprive them of rights guaranteed under § 1983, if proved, may factor into the calculation of damages, especially in a case such as this where punitive damages have been requested. The district court’s grant of summary judgment on plaintiffs’ § 1983 conspiracy claim against the ACJ appellees will, therefore, be reversed and the claim remanded for further proceedings consistent with this opinion.\nIV. CONCLUSION\nIn the instant case, appellants’ appeal presents no issue involving Goldline. It presents no products liability issue involving Gatti. It presents no § 1985 or § 1986 issue involving any appellee.\n- As to the issues presented on appeal involving Gatti, the district court did not err in granting Gatti’s motion for summary judgment on both plaintiffs’ § 1983 claim and their § 1983 conspiracy claim. The judgment of the district court on these claims will therefore be affirmed.\nAs to issues on appeal involving the ACJ defendants, the district court’s grant of summary judgment on plaintiffs’ § 1983 claims based on the allegations contained in Counts I and II of the complaint will be reversed and this phase of the case remanded for further proceedings consistent with this opinion. The district court’s grant of summary judgment on plaintiffs’ Count III claims alleging Ferri’s lice infestation and inadequate treatment for it will be vacated and the claims remanded with instructions to dismiss them. The distinct court’s grant of summary judgment on plaintiffs’ Count III claims alleging Ferri’s heatstrokes and lack of treatment will be reversed and these claims remanded for further proceedings consistent with this opinion.\nAdditionally, the district court’s grant of summary judgment on Count IV of plaintiffs’ complaint against the ACJ defendants will be vacated and this portion of the case remanded with instructions to dismiss it. Finally, the district court’s grant of summary judgment on plaintiffs’ § 1983 conspiracy claim against the ACJ defendants will be reversed and this claim remanded for further proceedings consistent with this opinion.\nThe appellants will be assessed costs as to Goldline and Gatti. As to all other issues, each side will bear its own costs.\n. The district court exercised jurisdiction pursuant to 28 U.S.C.A. §§ 1331, 1332, and 1343 (West Supp.1993). This court exercises jurisdiction pursuant to 28 U.S.C.A. § 1291 (West Supp. 1993).\n. Further, appellants state specifically in their reply brief that they never brought a § 1985 or § 1986 claim against Goldline.\n. Appellants’ only other mention of a products liability claim appears in their reply brief where they state, \"Goldline was sued under a products liability restatement of tort action.” Even if this statement were seen to raise squarely the issue of the district court's error in failing to recognize a products liability claim in their complaint, it would raise such an issue with respect to Gold-line alone. More importantly, however, where an issue is raised for the first time in a reply brief, we deem it insufficiently preserved for review before this court. See Lunderstadt v. Colafella, 885 F.2d 66, 78 (3d Cir.1989).\n. We firmly reject appellants' attempt to augment the factual record relevant to their claims by the voluminous inclusion in their briefs on appeal of facts not alleged in their complaint or otherwise properly appearing in the record.\n. Section 1983 provides in pertinent part:\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress....\n42 U.S.C.A. § 1983.\n. Originally two cases had been filed against certain ACJ defendants: one by an inmate who challenged the constitutionality of jail conditions and sought money damages and equitable relief, the other by inmates as a class who sought a declaratory judgment that jail conditions were unconstitutional. The cases were consolidated and certified as a class action. Owens-El I, 442 F.Supp. at 1372. Eventually, money damages were denied on the issues originally raised by the individual inmate because no evidence was presented to permit the necessary predicate finding of wrongful intention or culpable negligence on the part of the ACJ defendants. Id. at 1391.\n. Ferri filed a prior action challenging the inadequate ventilation in the DHU. In an unreported decision, the district court dismissed the action because the complained of condition was previously addressed in Wecht I. Wecht I, however, does not discuss ventilation in the jail as a whole or in the DHU, and further, appellants' present complaint indicates that the DHU was not sealed until 1989, well after Wecht I was decided. This court affirmed the district court without opinion. Ferri v. Kozakiewicz, 919 F.2d 134 (3d Cir.1990).\n.It seems, in fact, that some of the problems complained of are \"second generation\" problems caused by solutions to the original problems addressed by the district court. For example, the court originally found that there was a build-up of filth in many areas of the jail and that \"the walls, floors, and steel bars were dirty with a kind of greasy dirt, such as one might find in a dirty kitchen.” Owens-El I, 442 F.Supp. at 1376-77. Testimony was introduced \"that a steam cleaning apparatus could be used effectively to clean ... the greasy dirt.” Id. at 1377. Although the complaint is not explicit as to why gasoline operated combustion engines are used within the jail (giving off exhaust fumes), appellants indicate that these machines are used to operate steam jennies to clean various parts of the jail on a bi-weekly basis.\n. Seiter mandates proof of deliberate indifference and a sufficiently serious deprivation, i.e., one that denies \"the minimal civilized measure of life's necessities.\" - U.S. at -, -, 111 S.Ct. at 2325, 2327 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). This standard is discussed further, infra, in section III.C.2. of this opinion.\n. Pretrial detainees, such as the appellants in this case, are entitled to at least as much protection as convicted prisoners, so the protections of the Eighth Amendment would seem to establish a floor of sorts. It appears that no determination has as yet been made regarding how much more protection unconvicted prisoners should receive. The appellants, however, have not raised this issue, and therefore we do not address it.\n. In a footnote, appellants state, \"With respect to the argument that the statute of limitations governing contracts applies to the torts-[against Kost] cited in Count IV, Ferri argues he is entitled to the same considerations regarding the torts set forth as committed against him in Counts I, II and III.” We agree. We therefore conclude, for the same reasons set forth above, that Ferri’s § 1983 claims are governed by Pennsylvania's two-year personal injury statute of limitations pursuant to Garcia, 471 U.S. at 272-76, 280, 105 S.Ct. at 1944-47, 1949, and that appellants' complaint fails to make out a contract claim on behalf of Ferri.\n. See infra subsections III.D.l, III.D.2.", "type": "majority", "author": "ROSENN, Circuit Judge."}], "attorneys": ["David E. Kenner, Professional Law Corp., Encino, CA, for appellants.", "Mark F. Haak, Vincent A. Coppola, Pietra-gallo, Bosick & Gordon, Pittsburgh, PA, for appellees Kozakiewicz, Gregg, Balogh, Allegheny County Jail, Allegheny Solicitor.", "Amy E. Ault, Robb, Leonard & Mulvihill, Pittsburgh, PA, for Goldline Lab.", "Thomas R.'Doyle, Pittsburgh, PA, for Gat-ti Services."], "corrections": "", "head_matter": "George KOST and Francis Ferri, Appellants, v. Charles KOZAKIEWICZ, Warden, James Gregg, Deputy Warden, (FNU) Balogh, Lieutenant, Allegheny County Jail, Unknown Executives and Officers, Allegheny County Solicitor’s Office, Goldline Laboratories, Gatti Services.\nNo. 92-3386.\nUnited States Court of Appeals, Third Circuit.\nSubmitted Under Third Circuit Rule 12(6) May 3, 1993.\nDecided July 28, 1993.\nDavid E. Kenner, Professional Law Corp., Encino, CA, for appellants.\nMark F. Haak, Vincent A. Coppola, Pietra-gallo, Bosick & Gordon, Pittsburgh, PA, for appellees Kozakiewicz, Gregg, Balogh, Allegheny County Jail, Allegheny Solicitor.\nAmy E. Ault, Robb, Leonard & Mulvihill, Pittsburgh, PA, for Goldline Lab.\nThomas R.'Doyle, Pittsburgh, PA, for Gat-ti Services.\nBefore: COWEN, ROTH, and ROSENN, Circuit Judges"}	COWEN	ROTH	ROSENN	1	1	1	0	0	0	1 F.3d 176	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: George KOST and Francis Ferri, Appellants, v. Charles KOZAKIEWICZ, Warden, James Gregg, Deputy Warden, (FNU) Balogh, Lieutenant, Allegheny County Jail, Unknown Executives and Officers, Allegheny County Solicitor's Office, Goldline Laboratories, Gatti Services\nCourt: United States Court of Appeals for the Third Circuit\nDate decided: 1993-07-28\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION OF THE COURT\nROSENN, Circuit Judge.\nThis appeal by two federal pretrial detainees housed under contract in the Allegheny County, Pennsylvania jail raises the question whether an existing class action against the defendants provided the plaintiffs with all the relief afforded them for their claims arising from their confinement under the United States Constitution and the Civil Rights Act, 42 U.S.C.A. §§ 1983, 1985, and 1986 (West 1991). We also consider whether certain counts of the complaint regarding alleged intolerable conditions and treatment at the facility are barred by a two- or six-year statute of limitations. The district court entered summary judgment in favor of all defendants. The plaintiffs timely appealed. We affirm the court’s grant of summary judgment as to some of their claims. We vacate the court’s grant of summary judgment as to other claims and remand with instructions to dismiss. As to the remaining claims, we reverse and remand for further proceedings consistent with this opinion.\nI. BACKGROUND\nOn July 18, 1991, the plaintiffs George Kost and Francis Ferri filed a lengthy complaint in the United States District Court for the Western District of Pennsylvania against the defendants Charles Kozakiewicz, warden of the Allegheny County Jail (ACJ), other jail officials, Allegheny County, and certain county officials (referred to hereinafter collectively as the ACJ defendants or appellees); Goldline Laboratories (Goldline), a distributor of medical supplies; and Gatti Services (Gatti), a pharmacy. The complaint alleged in five counts forty-five various violations of plaintiffs’ rights under §§ 1983, 1985(2) and (3), and 1986, and the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution.\nGoldline and the ACJ defendants filed separate motions to dismiss pursuant to various subsections of Federal Rule of Civil Procedure Rule 12(b). Gatti filed a similar motion to dismiss, and in the alternative, because it submitted with its filing an affidavit executed by its president, a motion for summary judgment. The district court referred the case to a magistrate judge who submitted a report stating that “[e]ach defendant has filed either a Rule 56 motion for summary judgment or a Rule 12(b)(6) motion to dismiss. Review of the pleadings and case law reveals that defendants’ motions should be granted.”\nPlaintiffs filed objections to the magistrate judge’s report. After de novo review, the district court entered an order adopting the report as the opinion of the court and granting summary judgment in favor of all defendants. Appellants timely appealed.\nOver the years, the ACJ has been the subject of considerable litigation regarding conditions at the facility, and some conditions have been adjudged unconstitutional. The ACJ was under court order to remedy these conditions by 1992.\nAll events relied upon by plaintiffs to establish their claims took place between February 20,1987, and August 3,1989. At some time during this period, each plaintiff was a federal pretrial detainee housed at the ACJ pursuant to a contract or some other arrangement between the United States and Allegheny County. Each plaintiff spent part of his time at the ACJ in the Disciplinary Housing Unit (DHU). Kost was housed in the DHU during the month of June 1988. Ferri was housed in the DHU from May 16, 1989, through August 1, 1989. They are currently inmates at the federal penitentiary in Leavenworth, Kansas.\nII. ANALYSIS OF PLAINTIFFS’ CLAIMS\nA.COUNT I\nPlaintiffs alleged in Count I of their complaint that 1) inadequate heating and ventilation in the ACJ, combined with inmate exposure to toxic chemicals, exhaust fumes from gasoline operated combustion engines, and other fumes have shortened their life expectancy; 2) unbearable noise pollution and poor lighting within the cells at the ACJ have caused them “to suffer degenerative hearing and eyesight”; 3) unsanitary food preparation and serving procedures, coupled with inadequate and unsanitary personal hygiene and general living conditions, have caused them to incur diseases and have shortened their life expectancy; and 4) they have been caused needless pain and suffering.\nB. COUNT II\nPlaintiffs alleged in Count II of their complaint that the ACJ defendants: 1) impeded and obstructed their access to the courts and adequate law library facilities; 2) confiscated their legal documents; 3) provided no facilities within their individual cells for the retention of their legal documents; 4) allowed unbearable temperatures and overcrowding in the waiting area (bull-pen) where they were held for court appearances; and 5) caused them needless pain and suffering.\nC. COUNT III\nCount III of the complaint is based on two sets of events that allegedly occurred during Ferri’s confinement in the DHU between May 16, 1989, and August 1, 1989. These events allegedly culminated in Ferri’s suffering a lice infestation and a series of heat-strokes.\nAs to the lice infestation, plaintiffs alleged in their complaint that: 1) Goldline supplied the ACJ and/or Gatti with medical supplies for use in the treatment of inmates at the ACJ; 2) Gatti was under contract to provide medical services for the inmate population; 3) Goldline and Gatti bore a duty to them with respect to their medical care and welfare; 4) while in the DHU, the ACJ deten-dants inflicted upon Ferri unsanitary cells, shower facilities, bedding, and towels; 5) Ferri became infested with head and body lice because the ACJ defendants provided him with dirty bedding; 6) Goldline and Gatti supplied Ferri with inferior products and services in the treatment of the lice infestation; 7) the ACJ defendants failed to provide Ferri with the necessary medical care to cure the infestation; and 8) the infestation therefore remained with him until he was transferred out of the ACJ on August 4, 1989, causing him unbearable and needless pain and' suffering for a 70-day period.\nAs to the series of heatstrokes, plaintiffs alleged in their complaint that: the ACJ defendants inflicted upon Ferri a total lack of ventilation coupled with cell temperatures “in excess of 90 to 100 degrees daily for 24 hours a day”; unbearable temperatures and lack of ventilation caused Ferri to suffer eight heat-strokes, which have had a degenerative effect upon his mental, physical, and “physicological” capacities; and his complaints to jail officials regarding the heatstrokes fell on deaf ears.\nD. COUNT IV\nCount IV of the complaint is based on events that occurred during Kost’s confinement in the DHU in June 1988. Plaintiffs alleged in their complaint that: 1) certain ACJ defendants beat Kost at various times, often while he was handcuffed; 2) he was told during one of the beatings that “unless he cooperated with information about an aborted escape attempt ... he would receive more beatings”; 3) when he denied knowledge of the escape attempt, Kozakiewicz informed four of the inmates accused of attempting escape that Kost had indeed informed on them and then placed him in the range of cells within the DHU where the four inmates were housed, thereby jeopardizing his life; 4) during a two-week period, a jail official made daily inspections of Kost’s cell, throwing away all toiletry articles and legal documents; and 5) when Kost was called to trial in his criminal case in federal court, jail officials refused to let him shower or shave prior to his appearances and had discarded all his clothing, forcing him to appear in court “like a drunken derelict,” which had a negative effect upon his ability to present a defense.\nE. COUNT V\nPlaintiffs alleged in Count V of their complaint that, beginning some time before the period in question in this case and shortly after Kozakiewicz became warden at the ACJ, various jail officials conspired to create a “goon squad” to inflict pain and suffering upon inmates to satisfy their “lust for brutality” and to instill fear in the general inmate population. Plaintiffs further alleged, as part of this conspiracy, that: 1) various jail officials committed attempted murder and murder; 2) an unusually high number of inmate beatings and injuries took place during the “goon squad” period as compared with prior periods; 3) an unusually high number of inmate deaths, attributable to unknown factors and ruled suicides, occurred during this period; 4) complaints made to jail officials and to members of the Prison Board about the beatings fell on deaf ears and that it was -part of the conspiracy that such complaints would be ignored.\nPlaintiffs also alleged that one object of the conspiracy was to- disguise or mask acts of brutality by: performing them in isolated parts of the ACJ; writing an incident report against a beaten inmate falsely accusing him of attacking an officer or of other conduct requiring a physical response from the conspirators; causing internal medical reports to reflect retaliatory action by the conspirators whenever a gratuitously beaten inmate suffered physical injuries that required medical treatment within the ACJ; and having at least one conspirator claim personal injuries from a falsely alleged attack by a gratuitously beaten inmate whenever such an inmate suffered injuries requiring outside .medical treatment.\nAdditionally, plaintiffs alleged that:- various jail officials used a parabolic microphone to intercept conversations between Ferri and another inmate; in May 1989, Kozakiewicz had all windows and other means and methods of air ventilation in the DHU sealed off, as a result of which from June 1989 through August 1, 1989, Ferri suffered eight heat-strokes in the DHU for which neither jail officials nor Gatti attempted to provide him with any medical care.\nPlaintiffs also listed overt acts related to the alleged conspiracy. This list primarily sets forth acts involving inmates other than plaintiffs that took place before June 1989. Any acts involving the plaintiffs and/or taking place after July 18, 1989, are those already set forth in Counts III and IV.\nPlaintiffs requested compensatory and punitive damages in each count.\nIII. DISCUSSION\nA. PRESERVATION OF ISSUES ON APPEAL\nBefore discussing the appellants’ contentions on appeal, we note first that under Federal Rule of Appellate Procedure 28(a)(3) and (5) and Third Circuit Local Appellate Rule 28.1(a), appellants are required to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief. Simmons v. City of Philadelphia, 947 F.2d 1042,1065 (3d Cir.1991) (“absent extraordinary circumstances, briefs must contain statements of all issues presented for appeal, together with supporting arguments and citations”), cert. denied, — U.S. -, 112 S.Ct. 1671, 118 L.Ed.2d 391 (1992); 16 Charles A. Wright et al., Federal Practice and Procedure § 3974, at 421 (1977 and Supp.1993, at 690) (“to assure consideration of an issue by the court, the appellant must both raise it in [the] Statement of the Issues and pursue it in the Argument section of the brief’). It is well settled that if an appellant fails to comply with these requirements on a particular issue, the appellant normally has abandoned and waived that issue on appeal and it need not be addressed by the court of appeals. Institute for Scientific Info., Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1011 (3d Cir.1991); Roberts v. N.C. Sawyer, 252 F.2d 286, 287 (10th Cir.1958).\nIn the present case, the appellants have not set forth any issues related to §§ 1985 and 1986 in their issue statement; additionally, there are no arguments or citations relevant to these statutory sections in the remainder of their brief. Moreover, in their reply brief, they acknowledge the argument advanced by all appellees that the complaint failed to allege a set of facts to support the §§ 1985 and 1986 claims, and they concede that they have not argued this issue on appeal. Appellants therefore have not preserved any §§ 1985 and 1986 issues on appeal against any appellee, and thus we decline to address these statutory sections on review.\nAdditionally, appellants seem to suggest on appeal that Goldline and Gatti are liable for injury caused by the allegedly ineffective lice medication prescribed for Ferri under Pennsylvania products liability law. It is also well settled, however, that casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal. Simmons, 947 F.2d at 1066. The appellants only suggest the existence of these claims in passing in a short footnote in their opening brief, without argument or relevant citation. They never articulate or argue anywhere in that brief the necessary contention that the district court erred in failing to recognize such claims in their complaint. We therefore conclude that appellants have abandoned and waived this issue on appeal.\nIn summary, as to Goldline, we conclude that appellants have not appealed any products liability issue or any § 1985 or § 1986 issue. Further, insofar as appellants concede in their reply brief that no § 1983 claim was ever brought against Goldline, they obviously do not now appeal the district court’s disposition of this claim. Therefore, there are no issues whatsoever before us as to Goldline.\nAs to Gatti, we conclude that appellants have not appealed any products liability issue or any § 1985 or § 1986 issue. As to the ACJ appellees, we conclude that appellants have not appealed any § 1985 or §' 1986 issue. Therefore, the only issues remaining before this court on appeal relate to appellants’ § 1983 claims against both Gatti and the ACJ appellees.'\nB. STANDARD OF REVIEW\nIn that 1) there is nothing in the magistrate judge’s report indicating that the ACJ defendants’ motion to dismiss was treated as a motion for summary judgment and 2) the district court’s order specifically adopted that report with its recommendation that this motion to dismiss be granted, the district court appears to have inadvertently entered summary judgment in favor of these defendants. Therefore, appellants’ appeal as to them will be treated as an appeal from dismissal under Rule 12(b)(6). Only appellants’ appeal' as to Gatti appears from all the circumstances to be from a grant of summary judgment, and only it will be treated as such.\nBecause we treat the portion of this appeal involving the ACJ appellees as if it were from the dismissal of all claims against those appellees, the only pertinent facts on appeal are those alleged in the complaint. As to the claims against Gatti, however, which were disposed of by summary judgment in a procedurally correct manner, facts not alleged in the complaint but appearing in evidentiary sources provided in the record on appeal will be considered.\n1. Dismissal under Rule 12(b)(6)\nOur review of a district court’s dismissal under Rule 12(b)(6) is plenary. Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir.1992). A 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint. See id. The question, then, is whether “the facts alleged in the complaint, even if true, fail to support the ... claim.” Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). The pleader is required to “set forth sufficient information to outline the elements of his claim or- to permit inferences to be drawn that these elements exist.” 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 340 (2d ed. 1990).\nWe apply the same standard the district court is required to apply. We therefore accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir.1985). However, “we are not required to accept legal conclusions either alleged or inferred from the pleaded facts.” Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir.1979).\n2. Summary Judgment\nOur review of a district court’s grant of summary judgment also is plenary. Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 413 (3d Cir.1990). “On review the appellate court is required to apply the same test the district court should have utilized initially.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).\nRule 56(c) sets forth the test to be utilized by the district court. Summary judgment is appropriate only if there are no genuine issues of material fact and the relevant law entitles the moving party to judgment. Fed. R.Civ.P. 56(c); Carlson, 918 F.2d at 413. In addressing the question of the existence of a genuine issue of material fact, the Supreme Court has stated:\n[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. [Where there is] a complete failure of proof concerning an essential element of the nonmoving party’s case[, all other facts are rendered immaterial and t]he moving party is “entitled to summary judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.\nCelotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Celotex also holds that in responding to a motion for summary judgment, Rule 56(e) requires that the non-moving party with the burden of proof on a dispositive issue at trial “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. at 2553.\nC. SUMMARY JUDGMENT IN FAVOR OF GATTI\nFactual allegations supporting the plaintiffs’ claims against Gatti appear in Counts III and V. The record also contains a copy of an affidavit submitted by Gatti with its motion. The affidavit averred that Gatti had a contract with a third party, Corrections Medical Systems, Inc., under which it provided off-site prescription filling services for physicians who treated prisoners at ACJ from January 1, 1989, to August 31, 1989; and that Gatti filled all prescriptions at its offices and had no contact with any prisoners in the ACJ. The complaint alleged that: Gatti owed plaintiffs some kind of duty with respect to their medical care and welfare; Gatti supplied Ferri with an inferior product for use in treating his lice infestation, which did not rid him of the infestation; and Gatti did not attempt to provide Ferri with any medical care for his heatstrokes.\nBased on these allegations, plaintiffs claimed that Gatti violated Ferri’s rights under § 1983 and that Gatti conspired with the ACJ defendants to violate those rights. We address the § 1983 claim first. The Supreme Court has set forth the two essential elements of a § 1983 action: “(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parrott v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).\nAlthough it is possible for a private party to violate an .individual’s § 1983 rights, the individual alleging such a violation is not relieved of the obligation to establish that the private party acted under color of state law. “[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action [of the private party] so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974).\nPlaintiffs’ § 1983 claim against Gatti cannot, withstand Gatti’s summary judgment motion because they have failed to make a showing sufficient to establish the existence of the element of state action, the first element essential to their case. Had Gatti contracted directly with the ACJ or Allegheny County to provide off-site prescription filling services, an inference might have arisen that a sufficient connection existed between a state actor and Gatti to create a genuine issue of material fact on the element of state action. Gatti contracted, however, with a private, intermediary third party; it had no contact whatsoever with a state actor and was not one itself.\nThus, nothing in the complaint’s factual allegations provides a basis for establishing the nexus necessary to show that Gatti acted (or failed to act) under color of state law with regard to Ferri, and plaintiffs have failed to go beyond their pleadings to designate facts that would create a genuine issue of material fact on this element. This complete failure of proof on an essential element of plaintiffs’ § 1983 claim entitles Gatti to summary judgment as a matter of law, Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552, and therefore the district court did not err in granting summary judgment in favor of Gatti on plaintiffs’ § 1983 claim.\nPlaintiffs’ § 1983 claim against Gatti is also vulnerable to summary judgment on the second element articulated by the Court because they have failed to establish that Gatti’s allegedly ineffective lice treatment deprived Ferri of any federal rights. This court has set forth the elements of a Due Process Clause violation based on the government’s duty to provide pretrial detainees with appropriate medical care: Such a violation requires “ ‘acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.’ ” Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)). This court further noted:\nThe Court emphasized that simple negligence was not the appropriate standard because “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” [Estelle, 429 U.S. at 106[, 97 S.Ct. at 292]]. Medical malpractice may give rise to a tort claim in state court but not necessarily to a constitutional claim.\nId.\nTherefore, to establish that Gatti’s conduct deprived Ferri of any federal rights in a manner sufficient to withstand a motion for summary judgment, plaintiffs were obligated to designate facts supporting the existence of both deliberate indifference on the part of Gatti and a serious medical condition on the part of Ferri. The record does not show that the plaintiffs attempted, much less succeeded, in doing so. Therefore, as to the alleged lice infestation, plaintiffs have failed to establish a genuine issue of material fact as to the existence of both deliberate indifference and a serious medical condition. As to the alleged heatstrokes, they have failed to establish a genuine issue of material fact as to the existence of deliberate indifference. Thus, although plaintiffs’ allegations, like the allegations of medical malpractice in Estelle and Boring, may give rise to a state tort claim, they do not rise to the level of federal constitutional violations.\nThis complete failure of proof on the second essential element of plaintiffs’ § 1983 claim against Gatti also entitles Gatti to summary judgment as a matter of law. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. Thus, the district court did not err in granting summary judgment in favor of Gatti on plaintiffs’ § 1983 claim.\nAs to the § 1983 conspiracy claim against Gatti, appellants would be entitled to relief if they could show that Gatti and at least one of the state actors named as defendants in their complaint somehow reached an understanding to deny Ferri his rights under § 1983. Adickes, 398 U.S. at 150,152, 90 S.Ct. at 1604, 1605. Establishing the existence of this “understanding,” however, is really nothing more than another way to show state action as required by § 1983 when a private party is alleged to have violated that statute. See id. at 152, 90 S.Ct. at 1605. In the present case, just as there was a complete failure of proof on the nexus necessary to show state action in the context of plaintiffs’ § 1983 claim against Gatti, there is an analogous failure of proof on the understanding necessary to establish Gatti’s participation in a § 1983 conspiracy. This failure of proof entitles Gatti to summary judgment as a matter of law on plaintiffs’ § 1983 conspiracy claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. Thus, the district court did not err in granting summary judgment in favor of Gatti on this claim.\nIn summary, the district court did not err in granting summary judgment of all claims against Gatti, and its judgment will therefore be affirmed.\nD. DISMISSAL OF CLAIMS AGAINST THE ACJ DEFENDANTS\n1. Counts I and II\nThe magistrate judge found that the plaintiffs complained of various conditions of confinement that were previously addressed by the United States District Court for the Western District of Pennsylvania in a series of decisions and orders in a class action suit brought on behalf of present and future ACJ inmates against certain ACJ defendants, in which the class requested injunctive relief from unconstitutional jail conditions. See, e.g., Owens-El v. Robinson (Owens-El I), 442 F.Supp. 1368 (W.D.Pa.1978); Owens-El v. Robinson (Owens-El II), 457 F.Supp. 984 (W.D.Pa.1978), aff'd in part, vacated in part by Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir.1979); Inmates of Allegheny County Jail v. Wecht (Wecht I), 699 F.Supp. 1137 (W.D.Pa.1988), appeal dismissed in part, aff'd in part, 874 F.2d 147 (3d Cir.), cert. granted and judgment vacated by 493 U.S. 948, 110 S.Ct. 355, 107 L.Ed.2d 343 (1989); Inmates of the Allegheny County Jail v. Wecht (Wecht II), 901 F.2d 1191 (3d Cir.1990).\nA reading of these and other related decisions fails to verify that all of plaintiffs’ allegations have already been addressed in these earlier decisions. Specifically, although the court discussed temperature extremes in the facility as contributing to a general finding of unconstitutional jail conditions, there is no discussion of inadequate ventilation or of the combined effects of inadequate ventilation, temperature extremes, and the use within the facility of chemicals and machines that give off toxic fumes. There is also no discussion of noise, lighting levels, or unsanitary food preparation and service procedures.\nAlthough prior decisions do discuss the inadequacy of the law library and lack of access to it by female inmates housed in an annex to the jail, there is no discussion of hindered access to the library for male occupants of the jail itself or of problems in the maintenance of legal documents.\nConditions of confinement at the ACJ are the continuing concern of the district court. The court, however, cannot respond to new or different problems related to those conditions if it deems that, by addressing some conditions at the jail, all conditions have been addressed. Further, it may very well be that only through complaints such as the one under consideration will the court become apprised of the ACJ defendants’ failure to comply with prior court orders on conditions that actually have already been addressed.\nIn Jordan v. Jones, 563 F.2d 148 (5th Cir.1977), an individual inmate brought a civil rights action claiming deprivations at a county jail. As in the present case, the district court dismissed on the ground that the claims asserted were similar to those involved in a class action previously decided. The court stated:\nSome of [the inmate’s] long litany of complaints are subsumed in the [class action] opinion and order, some are patently frivolous, but others fall in neither of these categories. The District Court could reopen the [class action] and refer [the inmate’s] complaints to plaintiff counsel therein for them to handle as attorneys for the class, or could consolidate the present case with the [class action]. But it could not dismiss the present case on the basis that it presents issues which are similar to those in the class suit and could be presented in that suit Also, one of the allegations is that jail officials are not complying with the [class action] order. This has to be dealt with in some manner other than dismissal.\nJordan, 563 F.2d at 148 (emphasis added).\nAlthough the plaintiffs did not specifically allege in their complaint that jail and county officials were not complying with prior orders in the ACJ class action suit, they did raise matters in their complaint that are not patently frivolous or specifically subsumed in the prior class action opinions and orders. To this extent, they complained of conditions that should have been considered within the context of the class action suit or in a case consolidated with that suit; and the district court therefore erred in granting summary judgment on, and would have erred had it dismissed, those portions of plaintiffs’ complaint dealing with such matters.\nFurther, to the extent that the court deciding the ACJ class action suit found no basis for money damages on claims raised in the consolidated class action against certain ACJ defendants, which may or may not include all jail and county officials, named in the present case, that finding was based on a lack of evidence of wrongful intention or culpable negligence on the part of those particular ACJ defendants. Owens-El I, 442 F.Supp. at 1391. Because plaintiffs complain of matters not addressed in prior opinions and orders and against an 'apparently broader group of defendants, no such determination has been made as to jail and county officials with regard to the new matters pressed in the instant suit.\nIt may yet be, however, that Counts I and II of the complaint fail to state a claim upon which relief can be granted, but if so, it must be either because 1) the alleged conduct and conditions do not fall within the limitations period; or 2) the complaint fails to allege sufficient facts to support the essential elements of plaintiffs’ claims or to permit inferences to be drawn that these elements exist. In the latter ease, the necessary determination should be made upon remand with reference to the elements set . forth in Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).\nTherefore, we will vacate the district court’s summary judgment on appellants’ § 1983 claim based on the allegations contained in Counts I and II of their complaint and remand with instructions that, • to the extent that each allegation in the complaint is not patently frivolous or specifically subsumed in existing orders stemming from the class action, the case should be treated in the context of the class action or consolidated with the class action as suggested in Jordan, 563 F.2d at 148.\n2. Count III\nIn this count, plaintiffs alleged two general conditions of confinement violations and two specific violations based on inadequate medical treatment. See Seiter, — U.S. at -, III S.Ct. at 2326 (“the medical care a prisoner receives is just as much a ‘condition’ of his confinement as the food he eats ... or the temperature he is subjected to in his cell”). Specifically, plaintiffs alleged that the ACJ defendants’ deliberate indifference both caused Ferri’s lice infestation and heat-strokes and prevented him from receiving effective treatment for those conditions.\nAs to claims by pretrial detainees of inadequate medical treatment, this court has stated:\nPretrial detainees are not within the ambit of the Eighth Amendment but are entitled to the protections of the Due Process clause. The Due Process clause requires the government to provide appropriate medical care. As the [Supreme] Court -observed in [City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244[, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605] (1983) ], the Due Process rights of a pretrial detainee are “at least as great as the Eighth Amendment protections available to a convicted prisoner.”\n* * *\nThe protection afforded a sentenced prisoner under the Eighth Amendment was discussed in Estelle v. Gamble, 429 U.S. 97, 106[, 97 S.Ct. 285, 292, 50 L.Ed.2d 251] ... (1976). There the Court said: “Acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” constitute cruel and unusual punishment under the Constitution.\nBoring, 833 F.2d at 471.\nThe Supreme Court has recently set forth the standard for violations of the Eighth Amendment based on nonmedical conditions of confinement. Setter, — U.S. at -, 111 S.Ct. at 2324, 2326-27. This standard would also apply to appellants as pretrial detainees through the Due Process Clause. The standard has an objective and a subjective component, just as the Estelle standard does. A plaintiff must prove that prison officials acted with deliberate indifference and that he or she suffered a deprivation of “ ‘the minimal civilized measure of life’s necessities.’ ” Setter, — U.S. at —, —, 111 S.Ct. at 2324, 2326-27 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)).\na. Causing the Lice Infestation\nPlaintiffs alleged that the jail and county officials’ “deliberate indifference towards Ferri’s care and welfare while he was housed in the DHU caused him to become infected with head and body lice as a result of providing him with dirty bed linen or mattresses.” Although we recognize that the Eighth Amendment “does not mandate comfortable prisons,” Rhodes, 452 U.S. at 349, 101 S.Ct. at 2400, we believe that inmates do have a right to be free of conditions that generate infestations of vermin. Plaintiffs have therefore stated a claim sufficient to withstand dismissal under the Seiter standard, provided the claim also withstands scrutiny under the applicable statute of limitations.\nPlaintiffs filed their complaint on July 18, 1991. Therefore, if their claim that the ACJ defendants caused Ferri’s infestation accrued before July 18, 1989, it is barred by the Pennsylvania two-year statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985); 42 Pa.Con.Stat. Ann. § 5524 (Supp.1993). Ferri’s alleged infestation did in fact commence before that date: The remaining pertinent allegations show that Ferri suffered from the infestation for 70 days while in the DHU until his release on August 4, 1989; counting backward, this places the commencement date, and thus causation, prior to July 18. The claim is therefore time-barred.\nThus, although it was error to grant summary judgment on this claim, see supra section III.B., it would not have been error to dismiss it on statute of limitations grounds. Therefore, the district court’s grant of summary judgment will be vacated and the claim remanded with instructions to dismiss it.\nb. Causing the Heatstrokes\nPlaintiffs alleged that “the unbearable temperatures and lack of ventilation brought about by the deliberate indifference of the Defendants caused Ferri to suffer eight (8) heat strokes”, while he was in the DHU. It cannot be ascertained from the complaint whether any .of the alleged heat-strokes occurred after July 18, 1989. If one or some of these heatstrokes did occur after this date, so too would the cause. Heatstroke is a serious medical condition. Acts or omissions of a deliberately indifferent nature that repeatedly cause a serious medical condition are more than sufficient to meet the Seiter standard. Therefore, the complaint would state a claim upon which relief can be granted if any of Ferri’s heatstrokes occurred after July 18.\nThe district court’s grant of summary judgment on this § 1983 claim against the ACJ defendants will be vacated and the claim remanded for a determination of whether the statute of limitations bars it. ■ If appellants’ claim survives this scrutiny, they should be allowed to proceed on the merits.\nc. Inadequate Treatment of the Lice Infestation\nA prison’s dispensing of vermin infested bedding, which causes that detainee’s personal infestation, may establish a violation of a pretrial detainee’s due process rights paralleling an Eighth Amendment violation against a convicted inmate. Ferri’s alleged infestation in and of itself, however, fails to establish the existence of a. serious medical need as required under Estelle and Boring. Therefore, plaintiffs fail to set forth sufficient information in their complaint as to this element of their claim.\nThus, although summary judgment on this portion of Count III should not have been granted, see supra section III.B., it would not have been error to have dismissed this claim pursuant to Rule 12(b)(6). The court’s grant of summary judgment on this § 1983 claim against the ACJ defendants will, therefore, be vacated and the claim remanded with instructions to dismiss it.\nd. Lack of Treatment for Heatstroke\nThe same cannot be said for plaintiffs’ § 1983 claim related to the alleged lack of treatment for the eight heatstrokes Ferri allegedly suffered during the summer months of his confinement in the DHU. Heatstroke is considered a serious medical condition that requires treatment. The complaint alleged that jail and county officials were given notice of his condition and did nothing. Under the liberal pleading requirements of Rule 8(a), this is sufficient to establish the existence of deliberate indifference to the extent necessary to survive a motion to dismiss. Therefore, this portion of plaintiffs’ § 1983 claim will survive a motion to dismiss under Estelle and Boring and they should be allowed to proceed on the merits if on remand it survives the same statute of limitations scrutiny that the claim of causing the heatstrokes must undergo.\n3.- Count IV\nThe magistrate judge found that all of the incidents alleged to support the § 1983 claim contained in Count IV, which pertain to physical abuse and mistreatment of Kost during his confinement in the DHU, took place prior to July 18, 1989. Therefore, the magistrate judge concluded that Pennsylvania’s two-year statute of limitations for personal injury, 42 Pa.Cons.Stat.Ann. § 5524, barred the claim in its entirety. Appellants argue on appeal that this two-year limitations period should not apply and, instead, that Pennsylvania’s four- or six-year statutes of limitations for contracts should govern because Kost was a federal pretrial detainee housed at the ACJ pursuant to a contract between the United States Marshal’s Service and Allegheny County and his claims constitute. violations of that contract. This argument actually raises two separate issues: We must first determine the appropriate limitations period for the § 1983 claim alleged in Count IV; second, we must determine whether the plaintiffs’ complaint made out a contract claim.\na. The Statute of Limitations on § 1983 Claims\nThere is no federal statute of limitations for § 1983 actions. Title 42 U.S.C.A. § 1988 (West Supp.1993), however, contains a borrowing provision under which this gap shall be filled by reference to “the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil ... cause is held.” In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Supreme Court determined after extensive discussion that all § 1983 actions, should be classified as claims for personal injury for the purpose of determining the limitations period under the applicable state law. Garcia, 471 U.S. at 272-76, 280, 105 S.Ct. at 1944-47, 1949.\nIn the face of this precedent, appellants’ argument for application of the longer Pennsylvania limitations period for breach of contract is plainly frivolous. As already set forth, the Pennsylvania limitations period for personal injury actions is two years. The complaint was filed in 1991. All events related to Kost’s confinement in the DHU occurred in 1988. The Count IV § 1983 claim based on these events is therefore entirely time-barred. Thus, although it was error to have entered summary judgment on this claim, see supra section III.B., it would not have been error to have dismissed this portion of the complaint pursuant to the ACJ defendants’ Rule 12(b)(6) motion. The district court’s order granting summary judgment on plaintiffs’ Count IV § 1983 claim will therefore be vacated and the claim remanded with instructions to dismiss it.\nb. The Contract Claim .\nAs to the contract claim, appellants raise an issue on'objections to the magistrate judge’s report and on appeal that has no predicate in their complaint. Count IV of the complaint alleges that certain ACJ defendants, “by their acts of deliberate indifference towards the care and welfare of the Plaintiff George Kost infliced [sic] the following torts upon him.” This allegation is then followed by a statement of the misconduct alleged of these defendants. Kost makes no allegation, explicit or implicit, that this activity constituted violations of any contract between United States and Allegheny County or that he had standing to sue under such a contract. The contract is neither attached as an exhibit to the complaint nor are its pertinent provisions incorporated into the complaint.\nMoreover, in his comprehensive statement in the complaint of the legal bases for his claim, Kost alleges a denial of federal due process and other federal constitutional violations; statutory violations under §§ 1983, 1985(2) and (3), and 1986; and breach of “the tort laws of the Commonwealth of Pennsylvania.” Appellants do not here appeal the §§ 1985 and 1986 claims or the state tort claim. We therefore can perceive no error in the magistrate judge’s application of Pennsylvania’s two-year statute of limitations for personal injury to the remaining § 1983 claim. 42 Pa.Cons.Stat.Ann. § 5524, Garcia, 471 U.S. at 272-76, 280,105 S.Ct. at 1944-47, 1949. Count IV of the complaint fails to make out a contract claim, to which a longer limitations period would apply, because the factual allegations contained therein are simply not sufficient, even if true, to support such a claim. Ditri, 954 F.2d at 871; Ransom, 848 F.2d at 401.\nTherefore, although it was error to grant summary judgment on this phase of the case, see section III.B., it would not have been error to dismiss it pursuant to the ACJ defendants’ Rule 12(b)(6) motion for failure to state a claim. As already stated above, the district court’s grant of summary judgment on Count IV of the complaint will thus be vacated and this portion of the ease remanded with instructions to dismiss it.\n4. Count V\nThe conspiracy alleged in Count V of the plaintiffs’ complaint is a civil conspiracy to deprive them of civil rights guaranteed under § 1983. They incorporated by reference all § 1983 claims contained in Counts I through IV into this count alleging the § 1983 conspiracy. The law governing civil conspiracy differs from that which governs criminal conspiracy. This court set forth and analyzed this difference in Wells v. Rockefeller, 728 F.2d 209 (3d Cir.1984), cert. denied, 471 U.S. 1107, 105 S.Ct. 2343, 85 L.Ed.2d 858 (1985):\nThere is a split of authority on when the limitations period for a civil conspiracy commences. Some courts apply the rule used in criminal cases, that is, the limitations period begins on the commission of the last overt act of the conspiracy.\nOther jurisdictions, including those of this circuit, have applied the rule that the period runs from each overt act causing damage.\nThe rule generally adopted by the case law in this circuit provides greater certainty as to when a particular cause of action arises. For each act causing injtiry, a claimant must seek redress within the prescribed limitations period. Such a nde is consistent with the distinction between civil and criminal conspiracies. In the civil case, actual injury is the focal point, not the illegal agreement per se, as is true in the criminal context.\nAdoption of the last overt act rule urged by [the plaintiff] would invite attempts to revive time-barred injuries by piggy-backing them onto actions occurring within the relevant period. No unfairness results in requiring diligence in seeking a remedy within the period measured from the date an injury occurs. We conclude that [the plaintiffs] conspiracy allegation would not preserve claims that the district court ruled were otherwise barred by the two-year statute of limitations.\nWells, 728 F.2d at 217 (emphasis added).\nAppellants attempt to defeat this precedent by pointing to allegations of murder and attempted murder — allegations which would otherwise be disregarded as legal conclusions, Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir.1979) — to dispense with a limitations period entirely. Under Garcia, however, even murder would be considered a personal injury under a claim of civil conspiracy for purposes of determining the applicable statute of limitations. Therefore, by synthesizing Wells, Garcia, and Pennsylvania’s personal injury statute of limitations, plaintiffs were required to seek redress for each act of the alleged conspiracy causing injury within two years of its occurrence. Thus; in the present case, all claims based on acts occurring before July 18, 1989, are time-barred.\nAs noted above, plaintiffs incorporated by reference all § 1983 claims set forth in Counts I through IV into this fifth count. Based on our preceding analysis of Counts I through IV and our determination that we are barred from considering any acts set forth in Count V that occurred before July 18, 1989, appellants are left with nothing more to support their conspiracy claim than the ongoing conditions of confinement alleged in Counts I and II and the conditions causing and the lack of treatment for Ferri’s heat-strokes discussed in Count III, if the claims based on these conditions survive scrutiny for dismissal on remand.\nUnder these circumstances, plaintiffs’ conspiracy claim may appear redundant; however, should plaintiffs’ remaining § 1983 claims survive to trial and should a jury decide in favor of plaintiffs on some or all of these claims, the existence of a conspiracy to deprive them of rights guaranteed under § 1983, if proved, may factor into the calculation of damages, especially in a case such as this where punitive damages have been requested. The district court’s grant of summary judgment on plaintiffs’ § 1983 conspiracy claim against the ACJ appellees will, therefore, be reversed and the claim remanded for further proceedings consistent with this opinion.\nIV. CONCLUSION\nIn the instant case, appellants’ appeal presents no issue involving Goldline. It presents no products liability issue involving Gatti. It presents no § 1985 or § 1986 issue involving any appellee.\n- As to the issues presented on appeal involving Gatti, the district court did not err in granting Gatti’s motion for summary judgment on both plaintiffs’ § 1983 claim and their § 1983 conspiracy claim. The judgment of the district court on these claims will therefore be affirmed.\nAs to issues on appeal involving the ACJ defendants, the district court’s grant of summary judgment on plaintiffs’ § 1983 claims based on the allegations contained in Counts I and II of the complaint will be reversed and this phase of the case remanded for further proceedings consistent with this opinion. The district court’s grant of summary judgment on plaintiffs’ Count III claims alleging Ferri’s lice infestation and inadequate treatment for it will be vacated and the claims remanded with instructions to dismiss them. The distinct court’s grant of summary judgment on plaintiffs’ Count III claims alleging Ferri’s heatstrokes and lack of treatment will be reversed and these claims remanded for further proceedings consistent with this opinion.\nAdditionally, the district court’s grant of summary judgment on Count IV of plaintiffs’ complaint against the ACJ defendants will be vacated and this portion of the case remanded with instructions to dismiss it. Finally, the district court’s grant of summary judgment on plaintiffs’ § 1983 conspiracy claim against the ACJ defendants will be reversed and this claim remanded for further proceedings consistent with this opinion.\nThe appellants will be assessed costs as to Goldline and Gatti. As to all other issues, each side will bear its own costs.\n. The district court exercised jurisdiction pursuant to 28 U.S.C.A. §§ 1331, 1332, and 1343 (West Supp.1993). This court exercises jurisdiction pursuant to 28 U.S.C.A. § 1291 (West Supp. 1993).\n. Further, appellants state specifically in their reply brief that they never brought a § 1985 or § 1986 claim against Goldline.\n. Appellants’ only other mention of a products liability claim appears in their reply brief where they state, \"Goldline was sued under a products liability restatement of tort action.” Even if this statement were seen to raise squarely the issue of the district court's error in failing to recognize a products liability claim in their complaint, it would raise such an issue with respect to Gold-line alone. More importantly, however, where an issue is raised for the first time in a reply brief, we deem it insufficiently preserved for review before this court. See Lunderstadt v. Colafella, 885 F.2d 66, 78 (3d Cir.1989).\n. We firmly reject appellants' attempt to augment the factual record relevant to their claims by the voluminous inclusion in their briefs on appeal of facts not alleged in their complaint or otherwise properly appearing in the record.\n. Section 1983 provides in pertinent part:\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress....\n42 U.S.C.A. § 1983.\n. Originally two cases had been filed against certain ACJ defendants: one by an inmate who challenged the constitutionality of jail conditions and sought money damages and equitable relief, the other by inmates as a class who sought a declaratory judgment that jail conditions were unconstitutional. The cases were consolidated and certified as a class action. Owens-El I, 442 F.Supp. at 1372. Eventually, money damages were denied on the issues originally raised by the individual inmate because no evidence was presented to permit the necessary predicate finding of wrongful intention or culpable negligence on the part of the ACJ defendants. Id. at 1391.\n. Ferri filed a prior action challenging the inadequate ventilation in the DHU. In an unreported decision, the district court dismissed the action because the complained of condition was previously addressed in Wecht I. Wecht I, however, does not discuss ventilation in the jail as a whole or in the DHU, and further, appellants' present complaint indicates that the DHU was not sealed until 1989, well after Wecht I was decided. This court affirmed the district court without opinion. Ferri v. Kozakiewicz, 919 F.2d 134 (3d Cir.1990).\n.It seems, in fact, that some of the problems complained of are \"second generation\" problems caused by solutions to the original problems addressed by the district court. For example, the court originally found that there was a build-up of filth in many areas of the jail and that \"the walls, floors, and steel bars were dirty with a kind of greasy dirt, such as one might find in a dirty kitchen.” Owens-El I, 442 F.Supp. at 1376-77. Testimony was introduced \"that a steam cleaning apparatus could be used effectively to clean ... the greasy dirt.” Id. at 1377. Although the complaint is not explicit as to why gasoline operated combustion engines are used within the jail (giving off exhaust fumes), appellants indicate that these machines are used to operate steam jennies to clean various parts of the jail on a bi-weekly basis.\n. Seiter mandates proof of deliberate indifference and a sufficiently serious deprivation, i.e., one that denies \"the minimal civilized measure of life's necessities.\" - U.S. at -, -, 111 S.Ct. at 2325, 2327 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). This standard is discussed further, infra, in section III.C.2. of this opinion.\n. Pretrial detainees, such as the appellants in this case, are entitled to at least as much protection as convicted prisoners, so the protections of the Eighth Amendment would seem to establish a floor of sorts. It appears that no determination has as yet been made regarding how much more protection unconvicted prisoners should receive. The appellants, however, have not raised this issue, and therefore we do not address it.\n. In a footnote, appellants state, \"With respect to the argument that the statute of limitations governing contracts applies to the torts-[against Kost] cited in Count IV, Ferri argues he is entitled to the same considerations regarding the torts set forth as committed against him in Counts I, II and III.” We agree. We therefore conclude, for the same reasons set forth above, that Ferri’s § 1983 claims are governed by Pennsylvania's two-year personal injury statute of limitations pursuant to Garcia, 471 U.S. at 272-76, 280, 105 S.Ct. at 1944-47, 1949, and that appellants' complaint fails to make out a contract claim on behalf of Ferri.\n. See infra subsections III.D.l, III.D.2.\n[END_CASE]", "role": "user" } ]
10,509,147	UNITED STATES of America, Appellee, v. DEANER et al. Tab Deaner, Appellant	United States v. Deaner	1993-07-29	No. 92-7626	United States Court of Appeals for the Third Circuit	{"judges": ["Before: BECKER, HUTCHINSON and ROTH, Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. DEANER et al. Tab Deaner, Appellant."], "opinions": [{"text": "OPINION OF THE COURT\nHUTCHINSON, Circuit Judge.\nTab R. Deaner (“Deaner”) appeals an order of the United States District Court for the Middle District of Pennsylvania denying his motion to suppress evidence seized from his residence upon execution of a search warrant and the term of incarceration imposed on him by the Guidelines sentencing order the district court entered after Deaner’s conditional guilty plea. . We will affirm.\nThe district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). This Court has appellate jurisdiction under 28 U.S.C.A. § 1291 (West Supp.1993) and 18 U.S.C.A. § 3742(a) (West 1985 & Supp.1993).\nI.\nAfter a search of Deaner’s residence revealed the indoor cultivation of marijuana, a grand jury indicted him on one count of possession of marijuana with intent to manufacture and distribute under 21 U.S.C.A. § 841(a)(1) (West 1981), and one count of conspiracy to possess marijuana with intent to manufacture and distribute under 21 U.S.C.A. § 846 (West Supp.1993) and § 841(a)(1). Deaner filed a motion to suppress the marijuana plants and horticultural equipment that were seized during the search arguing that the government’s use of a forward-looking infra-red device (“FLIR”) to gauge the heat emanating from his residence was a prohibited warrantless search, and that the affidavit upon which issuance of the search warrant was based did not establish probable cause. The district court ruled against Deaner on both issues in denying his motion to suppress. Deaner then entered a conditional guilty plea to the count in the indictment charging him with possession with intent to manufacture or distribute marijuana.\nBefore he pleaded guilty, Deaner had submitted to the government a written request for discovery of physical evidence. The government concedes that the request included the marijuana plants it had seized during the physical search of Deaner’s residence. See Brief for Appellee at 29. The government did not respond to the request, and defense counsel made no attempt to inspect the marijuana before Deaner entered his guilty plea.\nAfter Deaner’s conditional guilty plea, his counsel specifically asked to examine the marijuana. The government informed him that it had been destroyed because it was rotting and taking up needed space. After a sentencing hearing, the district court sentenced Deaner under the United States Sen-teneing Guidelines (“Guidelines”) to twenty-one months incarceration,, followed by two years supervised release, and a $50 special assessment. Deaner’s sentence was based in part on the weight of the marijuana. He filed a timely notice of appeal.\nII.\nOn April 1,1992, a magistrate judge issued a search warrant to Drug Enforcement Administration (“DEA”) agents. The decision to issue the warrant was based upon an affidavit of probable cause executed by DEA Special Agent Mark Andrasi. The facts set out in the affidavit control at least one of the suppression issues Deaner raises. Therefore, we recite them in detail.\nAndrasi began the affidavit by stating that he had been employed as a special agent since June 1991, during which time he had participated in numerous narcotics investigations. He went on to say that from December 1991 through March 1992, he was taking part in an investigation of indoor cultivation of cannabis. Deaner became a suspect after the DEA learned that he had made mail order purchases of 244 pounds of supplies from Wormsway Organic Indoor/Outdoor Garden Supply (“Wormsway”) between May 1987 and April 1991. Andrasi related in the affidavit that he had learned “[tjhrough additional intelligence information” that Worms-way was a supplier of cultivation equipment seized in various indoor marijuana cultivation operations, and that Wormsway was an advertiser in Hightimes Magazine, a publication devoted to promoting the growth and use of marijuana. Appellant’s Appendix (“App.”) at 23. Andrasi cited a copy of an affidavit written by another DEA special agent as the source of his knowledge. That affidavit had been used to obtain a search warrant for Wormsway in October 1989. Andrasi also stated that undercover agents had discussed marijuana cultivation with Wormsway’s owner and at least one of its employees “on numerous occasions,” id. at 24, and that the agents had purchased equipment from Wormsway after telling its owner that the purchases would be entirely used in marijuana cultivation.\nAndrasi’s affidavit also said that on January 24 and March 16,1992, he “examined the household refuse” of Deaner and recovered marijuana stems and leaves mixed with soil on both occasions. Id. at 25. The affidavit described the marijuana retrieved on one occasion as “very fresh and green.” Id. The search of Deaner’s garbage also uncovered several halves of one gallon plastic jugs, which the affidavit explains cannabis producers often use for germination, and a Worms-way receipt for the purchase of fertilizer. Andrasi’s affidavit did not precisely indicate where the garbage was located when it was seized or where it was searched.\nIn the affidavit Andrasi goes on to state that he reviewed UPS shipping records on March 19, 1992, and they indicated that Deaner had received five packages from Wormsway at regular intervals between April 26, 1991 and January 22, 1992, each weighing two pounds. Because he knew that marijuana growers must use a large amount of fertilizer over a long period of time, An-drasi said this regular flow of packages from Wormsway supported his belief that Deaner was cultivating marijuana.\nIn addition, the affidavit stated that the rear windows of Deaner’s residence were boarded up and a side window was covered with opaque plastic. It explained that people cultivating marijuana indoors often cover the windows of their homes with plastic both to keep the heat resulting from cultivation inside and to prevent persons outside from seeing in. The affidavit described Deaner’s house in detail, stating it is surrounded by a corral-style fence with a large metal gate protecting the driveway and a dog house located about 100 yards from the back of the residence.\nThe affidavit also stated that on March 31 and April 1, 1992, DEA agents conducted an aerial reconnaissance of the properties located in Deaner’s neighborhood using a FLIR. The FLIR is a forward-looking infra-red device that detects heat sources and measures their relative intensity. DEA Agent Phelan testified at the suppression hearing that the FLIR is a “passive” device which detects only thermal energy that has been radiated from a particular source through the air to the point where the FLIR receives the signal. Aerial reconnaissance of Deaner’s neighborhood with the FLIR did indicate his residence was emanating an inordinate amount of heat, in comparison with other residences in the area. With respect to the FLIR, Andrasi’s affidavit stated that the amount of heat radiating from Deaner’s premises was consistent with another positive FLIR sighting for indoor cannabis cultivation. The affidavit explained that grow lights used in cultivating marijuana produce a great intensity of heat.\nUsing a warrant issued in reliance on this affidavit, DEA agents, along with Alcohol, Tobacco and Firearms (“ATF”) agents, the U.S. Marshal’s service, and the Pennsylvania State Police, searched Deaner’s residence. They found and seized about twenty marijuana plants, each approximately three feet high, equipment and other items used in growing marijuana, as well as pre-packaged harvested marijuana. The agents videotaped Deaner’s residence during the search. The videotape shows the number of plants, their size, and the indoor growing operation. In addition, the DEA photographed the plants a number of times from different angles and had them weighed by an official of the Bureau of Standards,. Weights and Measures, an agency in the Commonwealth of Pennsylvania’s Department of Agriculture.\nIII.\nDeaner raises three issues on appeal. First, he argues that the magistrate erred in relying on the evidence found in his “household refuse” to establish probable cause because the affidavit did not indicate on its face that Andrasi had found and searched the refuse outside the curtilage of Deaner’s residence. Deaner’s second argument is that the DEA had to get a search warrant before it could constitutionally use the FLIR to monitor the heat emanating from his residence. In short, Deaner contends that the use of a FLIR to monitor heat emanation is a search within the meaning of the Fourth Amendment’s prohibition against unreasonable searches and seizures and therefore requires a warrant. Finally, Deaner contends that the district court erred in using the government’s evidence of the marijuana’s weight to calculate his Guidelines sentence because the government’s destruction of the marijuana after he asked to inspect it was fundamentally unfair.\nThis Court’s review of the legal questions involved in the denial of a suppression motion is plenary, but “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). Instead, the standard for review of a determination of probable cause is whether the issuing authority, in this case a magistrate judge, had a substantial basis for concluding a search would uncover evidence of wrongdoing. Id. Reviewing courts must defer to determinations of probable cause made by the judicial officer who issued the warrant if, based on the whole affidavit, there is a reasonable common sense likelihood that the search will uncover evidence of criminal acts. The Gates standard is often referred to as a totality of the circumstances test. Id.\nThis Court’s examination of Deaner’s sentence to determine whether it was imposed in violation of law or as a result of an incorrect application of the Guidelines involves issues of law subject to plenary review. See 18 U.S.C.A. § 3742(a)(1), (2); United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.1991).\nIV.\nWe discuss first the suppression issues, beginning our analysis with the search of the garbage.\nA.\nDeaner argues that the affidavit did not show that the garbage was constitutionally seized and therefore the magistrate judge could not rely on the marijuana or other evidence found in the garbage to establish probable cause. The United States Supreme Court held in California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 1628-29, 100 L.Ed.2d 30 (1988), that a warrantless search and seizure of garbage left for collection outside the curtilage of a home does not violate the Fourth Amendment. In so holding, the Court reasoned that when “refuse [is placed] at the curb for the express purpose of conveying it to a third party, the trash collector ... might himself have sorted through respondents’ trash or permitted others, such as the police, to do so” and therefore the persons who produced it have “exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection.” Id. Greenwood does, however, require the government to show that the garbage it inspected was readily accessible to the public. See United States v. Hedrick, 922 F.2d 396, 398 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 147, 116 L.Ed.2d 113 (1991).\nAndrasi’s affidavit stated,\nOn two separate occasions, once on January 24,1992 and again on March 16,1992, your affiant examined the household refuse of Tab R. DEANER. On both occasions your affiant recovered stems and leaves of marijuana mixed with soil and on one occasion the recovered marijuana was very fresh and green. The marijuana was field tested by your affiant with positive results for the presence of cannabis.\nThe examination of the household refuse also produced a receipt dated January 17, 1992 from Wormsway for the purchase of fertilizer. Several halves of one gallon plastic jugs were also observed in the refuse. Discussions with the Harrisburg Resident Office Marijuana Coordinator concluded that plastic jugs are often used as germination containers by cannabis producers.\nApp. at 25. The affidavit did not state where the garbage was found, where it was searched, or who seized it.\nWhile the better practice might have been to include in the affidavit a statement on the location of the garbage at the time it was seized, the absence of an express specification of this location is not fatal. The natural implication of the defendant’s argument is that every piece of evidence relied on by an affiant must be shown to have been acquired constitutionally. This would constitute a substantial burden on affiants, as imaginative defense counsel will often successfully be able to argue that the failure to disprove some hypothetical set of facts left it ambiguous as to whether the facts contained within the four-corners of the affidavit established that the evidence was seized in a constitutional manner.\nMore importantly, accepting the defendant’s argument that the facts recited in an affidavit must establish that the particular evidence was seized in a constitutional manner would subject probable cause determinations to a hyper-technical analysis insupportable under governing case law. As explained by the Supreme Court in Illinois v. Gates: “ ‘Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.’” Gates, 462 U.S. at 235, 103 S.Ct. at 2330-31. This, and other concerns, led the Court to abandon the two-pronged test of Aguilar and Spinelli and adopt in its place the “totality-of-the-circumstanees analysis that traditionally has informed probable-cause determinations.” Id. at 238,103 S.Ct. at 2332. As the Court explained, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id.\nIf a defendant has a substantial basis upon which to question whether this implicit representation is true, then he or she may be entitled to a hearing on the veracity of the implicit representation that the evidence was obtained in a constitutional manner. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). In the present case, however, Deaner has not even suggested that the implicit statement as to the constitutionality of the search was false. In fact, not only has he not made that argument, he specifically declined the government’s offer to have Andrasi testify as to how the garbage was obtained. Accordingly, we conclude that the magistrate could rely on the evidence discovered during Andrasi’s search of Deaner’s household, refuse in deciding that there was probable cause to issue a warrant to search Deaner’s residence. .\nB.\nOther information in the affidavit indicated that the rear windows of Deaner’s house were boarded up and a side window was covered with opaque plastic, a technique Andrasi stated marijuana growers used both to prevent heat from escaping and to shield their illegal crop from external view. The affidavit also described the shipment of 244 pounds of merchandise from Wormsway, a known supplier of marijuana cultivation equipment, and five two-pound packages from Wormsway consistent with the ever present need of marijuana growers for fertilizer. The affidavit noted that Deaner’s residence was surrounded by a corral-style fence with a doghouse in the backyard, again consistent with a desire to keep persons from venturing too close to the house because of Deaner’s illegal activity of growing marijuana there. This information, coupled with the evidence Andrasi retrieved from Deaner’s household garbage, established probable cause for issuing the search warrant.\nBecause the affidavit establishes probable cause without the evidence obtained by such device, we express no opinion on whether the use of a FLIR device in aerial surveillance of a residence is a search within the meaning of the Fourth Amendment. See United States v. Herrold, 962 F.2d 1131, 1138 (3d Cir.) (even assuming some factual averments in affidavit are tainted, they do not vitiate warrant otherwise validly issued upon other information in affidavit that establishes probable cause) (quoting United States v. Johnson, 690 F.2d 60, 63 (3d Cir.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 450 (1983)), cert. denied, — U.S. —, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992).\nV.\nOur decision to affirm the order denying Deaner’s motion to suppress requires us to consider his sentencing issue. Section 2D1.1 of the Sentencing Guidelines provides that the base offense level of a-defendant convicted of manufacturing and conspiring to manufacture scheduled drugs varies directly with the quantity of drugs the sentencing judge finds the defendant manufactured or conspired to manufacture. United States v. Touby, 909 F.2d 759, 772 (3d Cir.1990), aff'd on other grounds, — U.S. —, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). Specifically, section 2Dl.l(a)(3) instructs us to determine the offense level by reference to the Drug Quantity Table set forth in section 2D1.1(c). See United States Sentencing Commission, Guidelines Manual, §§ 2D.1.1(a)(3), 2Dl.l(c) (Nov.1992).\nDeaner argues that the district court should have sentenced him for possession of marijuana with intent' to manufacture and distribute without considering the marijuana’s weight because the government denied him an opportunity to inspect or weigh the marijuana plants by destroying them in the face of his outstanding discovery request. If the government’s evidence on the marijuana’s weight cannot be considered, Deaner’s base offense level would be six. After the two point reduction for acceptance of responsibility under Guideline section 3E1.1 the district court granted him, his total offense level would be four. Because Deaner falls within Criminal History Category I, an offense level of four would result in a Guideline sentencing range of zero to six months. Under section 2Dl.l(c), however, the base offense level for unlawful possession of 23.9 kilograms of marijuana is eighteen. Dean-er’s sentence was reduced two levels for acceptance of responsibility, leaving a total offense level of sixteen. This net offense level gives a Guideline range of twenty-one to twenty-seven months imprisonment. Using an offense level of sixteen, the district court sentenced Deaner to twenty-one months in prison, followed by two years supervised release, and a $50 special assessment.\nThe following sequence of events is central to Deaner’s argument:\n—Deaner was arrested on April 2, 1992.\n—On May 20, Deaner sent the government a discovery request, including a request for discovery of all “tangible objects.” —Deaner filed his suppression motion on June 10.\n—On July 2, without notice to either Dean-er or the court, the U.S. Attorney’s Of■fice authorized the DEA to destroy the marijuana.\n—On July 7, without notice to either Dean-er or the court, the government destroyed the marijuana.\n—On August 3, Deaner entered his guilty plea.\n—At some time after pleading guilty, Deaner specifically requested access to the marijuana in order to inspect it and was told that it had been destroyed. —On November 2, Deaner was sentenced.\nAt sentencing, the government presented a certificate from the Bureau of Standards, Weights and Measures of the Commonwealth of Pennsylvania, Department of Agriculture. It stated that the scale used to weigh the marijuana plants was acceptable and certified for accuracy. Neal Cashman, Jr., Director of the Bureau of Standards, Weights and Measures, certified that the marijuana plants weighed 23.9 kilograms. On the evidence, the district court calculated Deaner’s sentence to reflect the weight of the marijuana under section 2D1.1.\nPreliminarily, we consider the reliability of the evidence the government produced to show the weight of the marijuana. In that connection, we note that the sentencing phase of a criminal proceeding is distinct from the adjudicatory phase. While “[tribunals passing on the guilt of a defendant always have been hedged in by strict eviden-tiary procedural limitations,” Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949) (footnote omitted), courts imposing sentence are “free to consider a wide range of relevant material.” Payne v. Tennessee, — U.S. -, -, 111 S.Ct. 2597, 2606, 115 L.Ed.2d 720 (1991); accord Dawson v. Delaware, — U.S. -, -, 112 S.Ct. 1093, 1097, 117 L.Ed.2d 309 (1992). The Federal Rules of Evidence and the Sentencing Guidelines reflect this practice. See Fed.R.Evid. 1101(d)(3) (rules of evidence not applicable at sentencing); U.S.S.G. § 1B1.4 (“In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.”); U.S.S.G. § 6A1.3(a), p.s. (“In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); see also United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir.) (hearsay admissible at sentencing hearing to determine amount of marijuana involved in offense as long as sufficient indicia of reliability), cert. denied, 493 U.S. 997, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989).\nUnder these principles, the evidence the government produced passes the reliability test. We first note that Deaner gets no benefit from Federal Rule of Criminal Procedure 16. It specifically provides:\nUpon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, ... which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.\nFed.R.Crim.P. 16(a)(1)(C) (emphasis added). Rule 16 governs only pretrial discovery. See United States v. Nobles, 422 U.S. 225, 235, 95 S.Ct. 2160, 2168-69, 45 L.Ed.2d 141 (1975). Although Deaner made a general discovery request for “all tangible objects” before pleading guilty, he did not specifically ask to inspect the marijuana or make arrangements for such inspection until after he had entered his plea. Thus, Rule 16 has no application.\nDeaner’s argument, however, goes beyond reliability and attempts to raise a problem of fundamental fairness implicating constitutional concerns that are rooted in due process. Indeed, as we said in United States v. Rosa, 891 F.2d 1074, 1079 (3d Cir.1989), “We believe the sentence imposed on a defendant is the most critical stage of criminal proceedings, and is, in effect, the ‘bottom-line’ for the defendant, particularly where the defendant has pled guilty.”\nResolution of the effect the destruction of the marijuana plants had on their use as evidence at Deaner’s sentencing hearing seems to us to involve “what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). Deaner made only a general discovery request for “all tangible objects.” The government concedes this included the marijuana the DEA had seized from his residence. Nevertheless, there is no reason to believe that Deaner’s scales would have shown a weight more favorable to him than those of the state’s Bureau of Weights and Measures. We think the destruction of drugs whose weight is material to sentencing is analogous to the prosecution’s failure “to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988); e.g., California v. Trombetta, 467 U.S. 479, 491, 104 S.Ct. 2528, 2535, 81 L.Ed.2d 413 (1984) (failure to preserve breath samples of suspected drunk drivers used in breath-analysis tests); Valenzuela-Bernal, 458 U.S. at 872, 102 S.Ct. at 3449 (deportation of two witnesses who were illegal aliens).\nA defendant who claims destroyed evidence might have proved exculpatory if it could have been subjected to tests has to show the prosecution’s bad faith in ordering or permitting its destruction. Without a showing of bad faith, failure to preserve evidence that might be of use to a criminal defendant after testing is not a denial of due process. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38; see Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533-34 (citing Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 308-09, 7 L.Ed.2d 256 (1961)). With respect to reliable evidence concerning an attribute of physical evidence material to a defendant’s sentence, which the government has destroyed, application of the bad faith standard is, we believe, appropriate in deciding whether such evidence is admissible in a Guideline sentencing proceeding.\nDeaner does not expressly argue bad faith on the part of the government, but he does contend that the government did not follow the procedure for destruction of the marijuana set out at 28 C.F.R. § 50.21 (1992). We have previously held that destruction of evidence in accordance with an established procedure precludes a finding of bad faith absent other compelling evidence. See, e.g., Griffin v. Spratt, 969 F.2d 16, 21 (3d Cir.1992); United States v. Boyd, 961 F.2d 434, 437 (3d Cir.), cert. denied, — U.S. -, 113 S.Ct. 233, 121 L.Ed.2d 168 (1992); United States v. Stevens, 935 F.2d 1380, 1388 (3d Cir.1991). While a showing that the government did not follow standard procedure could provide some evidence of bad faith, we have not held that an improper procedure in and of itself implies bad faith. While it may permit such an inference, it does not syllogis-tically imply the presence of bad faith as a matter of deductive logic. We address Dean-er’s allegations that the government failed to follow the procedure set forth in 20 C.F.R. § 50.21 for the destruction of contraband drug substances with these principles in mind.\nSection 50.21 instructs an agency having custody of contraband drugs seized pursuant to a criminal investigation “[immediately [to] notify the appropriate United States Attorney ... that the amount of seized contraband drug exceeding the threshold amount and its packaging, will be destroyed after sixty days from the date notice is provided of the seizures, unless the agency providing notice is requested in writing by the authority receiving notice not to destroy the excess contraband drug.” 20 C.F.R. § 50.21(e)(1). Dean-er asserts that the DEA did not notify the U.S. Attorney’s Office immediately after the seizure that the marijuana would be destroyed, see Brief for Appellant at 27, but he does not point to anything in the record supporting that statement and we have not found anything there that would do so. The government, to the contrary, represented at the sentencing hearing that it did receive an oral request from a DEA agent for permission to destroy the marijuana “because a substantial period of time had gone by[, i]t was incredibly bulky[, and i]t was starting to rot.” App. at 164. We think the district court was justified in relying on the government’s statement and rejecting Deaner’s unsupported assertion.\nDeaner also argues that the DEA did not wait sixty days from the date on which notice of destruction was given before destroying the marijuana. Instead, he asserts that the marijuana was destroyed only five days later. Brief for Appellant at 27-28. The record does not clearly show just when the DEA asked for permission to destroy it. The subsection of section 50.21 on which Deaner relies, however, provides that destruction can take place sixty days after the date notice of the seizure is provided, not sixty days after DEA gives the prosecution notice of its intent to destroy the seized material. See 28 C.F.R. § 50.21(e)(1). Here the seizure occurred in April and the marijuana was destroyed in July. Thus, between seizure and destruction, more than the sixty days the regulation requires had passed.\nFinally, section 50.21(e)(4) provides that “a representative sample” of marijuana “shall be retained.” 28 C.F.R. § 50.21(e)(4). It is undisputed that this was not done in the present case. The district court nevertheless decided that the evidence indicating that the marijuana weighed 23.9 kilograms was “more than sufficient for the purpose of sentencing as corroborated by the photographs of the plants ..., by the certificate with respect to the scale that was used, and ... from the laboratory report that that was the weight found.” App. at 174. The court concluded that although the regulations were “not precisely followed by not maintaining a [representative marijuana] sample, it really does not prejudice the defendant in this situation.” Id.\nThe fact that the government did not retain a representative sample does not affect the conclusion that the DEA complied substantially with the procedure set forth in section 50.21 for destruction of contraband evidence. Deaner does not challenge the government’s explanation that the marijuana was destroyed because it was deteriorating and taking up limited space. At most, the government was negligent in failing to preserve a representative sample. See Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38 (failure of police to refrigerate clothing and perform tests on semen samples was at worst negligent). Deaner proffers no other evidence that would preclude admission of otherwise reliable evidence on the weight of the marijuana seized from his home. We therefore conclude that this record does not show bad faith on the part of the government.\nConsidering the reliability of the procedures the government used in determining the weight of the marijuana, the possibility that it was something different from what the government has represented is slim. See Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534 (preservation of breath samples probably not exculpatory because accuracy of Intoxilyzer machine had been certified). As the government points out, Deaner does not argue that the weight of the marijuana stated by the government at sentencing was incorrect, and he does not otherwise contest certification of its weight by the Director of the Pennsylvania Bureau of Standards, Weights and Measures. Therefore, we believe that the certification provided a reasonable substitute for the actual marijuana. Under all the present circumstances, the evidence produced on the marijuana’s weight had indicia of reliability sufficient to meet the requirement of fundamental fairness that is at the core of due process.\nNevertheless, we take this opportunity to caution the government against routine destruction of evidence material to sentencing. In other circumstances the government’s contentions about the evidence’s characteristics may be expressly denied, or may lack the strong indicia of reliability present here. In such cases, destruction of physical evidence material to sentence that the defendant has sought to discover, without giving him notice and an opportunity to inspect the evidence before it is destroyed, could be detrimental to the government. Though, the failure to preserve the marijuana, standing alone, is here insufficient to show bad faith, we think it would be wise for the government to notify a defendant who has an outstanding discovery request of its intentions before it destroys evidence material to the defendant’s sentence. We also think that it would be a simple matter for United States Attorneys to adopt a policy of giving defendants who have sought discovery of tangible evidence express notice, when practicable, of its impending destruction in sufficient time to permit inspection. That practice could avoid problems in cases in which the tangible evidence’s material characteristics are denied or the government’s proof of them lacks the indicia of reliability present in Deaner’s case.\nThe official certification of the marijuana’s weight constitutes reliable evidence from which the district court could determine the weight of the marijuana. That evidence is not directly attacked and the weight it shows is likewise not directly contested. There is no evidence of bad faith. Thus, on the facts of this case, we believe that no due process violation occurred. The marijuana’s destruction did not violate Deaner’s constitutional right to the fundamental fairness due process guarantees in every aspect of a criminal proceeding. See Boyd, 961 F.2d at 436-37. For these reasons, the district court did not err in relying on the government’s evidence of the marijuana’s weight to compute Deaner’s base offense level under section 2D 1.1 of the Sentencing Guidelines.\nVI. Conclusion\nA common-sense reading of the affidavit supports an inference that the garbage was not within the curtilage of Deaner’s residence when it was searched. Therefore, the magistrate properly relied on the information the Government swore it had obtained from the garbage in issuing the search warrant. The evidence retrieved from Deaner’s household refuse, coupled with the other information detailed in the warrant, establishes probable cause upon which the magistrate properly issued the search warrant, without regard to the FLIR. Therefore, we do not reach or decide the issue whether use of the FLIR was a prohibited warrantless search. Finally, the district court did not err in computing Deaner’s sentence in reliance on evidence that reliably showed the marijuana seized from his residence weighed 23.9 kilograms. We will accordingly affirm Deaner’s conviction and sentence.\n. A co-defendant, Melinda Kurtz, entered a plea of guilty to a reduced charge of simple possession. She was sentenced to probation and did not appeal.\n. In addition to these two possible Guideline sentencing ranges, a third possibility exists. Under the Drug Quantity Table set forth in section 2D 1.1(c), the weight of whole plants may be estimated. Here, because there were less than fifty plants, each plant would be deemed to be the equivalent of 100 grams of marijuana, Applying this calculation to the twenty marijuana plants seized from Deaner’s residence would result in a base offense level of ten, which the two-level reduction for acceptance of .responsibility would further reduce to eight. This net offense level would give Deaner a Guideline sentencing range of zero to six months incarceration.\n. Rosa is a pre-Guidelines case. There we held that the Jencks Act, which requires the government to provide a defendant with its witnesses’ statements, upon request, after a witness has testified on direct examination at trial, applies in sentencing proceedings. See 891 F.2d at 1078-79. Nevertheless, hearsay is admissible at sentencing so long as it is \"reliable.” See Sciarrino, 884 F.2d at 97; see also United States v. Miele, 989 F.2d 659, 663-64 (3d Cir.1993) (further elaborating on applicable standard of reliability).", "type": "majority", "author": "HUTCHINSON, Circuit Judge."}], "attorneys": ["Spero T. Lappas (argued), Harrisburg, PA, for appellant.", "James J. West, U.S. Atty., William- A. Behe (argued),. Asst. U.S. Atty., Harrisburg, PA, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. DEANER et al. Tab Deaner, Appellant.\nNo. 92-7626.\nUnited States Court of Appeals, Third Circuit.\nArgued May 12, 1993.\nDecided July 29, 1993.\nSpero T. Lappas (argued), Harrisburg, PA, for appellant.\nJames J. West, U.S. Atty., William- A. Behe (argued),. Asst. U.S. Atty., Harrisburg, PA, for appellee.\nBefore: BECKER, HUTCHINSON and ROTH, Circuit Judges."}	BECKER	HUTCHINSON	ROTH	1	1	1	0	0	0	1 F.3d 192	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. DEANER et al. Tab Deaner, Appellant\nCourt: United States Court of Appeals for the Third Circuit\nDate decided: 1993-07-29\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION OF THE COURT\nHUTCHINSON, Circuit Judge.\nTab R. Deaner (“Deaner”) appeals an order of the United States District Court for the Middle District of Pennsylvania denying his motion to suppress evidence seized from his residence upon execution of a search warrant and the term of incarceration imposed on him by the Guidelines sentencing order the district court entered after Deaner’s conditional guilty plea. . We will affirm.\nThe district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). This Court has appellate jurisdiction under 28 U.S.C.A. § 1291 (West Supp.1993) and 18 U.S.C.A. § 3742(a) (West 1985 & Supp.1993).\nI.\nAfter a search of Deaner’s residence revealed the indoor cultivation of marijuana, a grand jury indicted him on one count of possession of marijuana with intent to manufacture and distribute under 21 U.S.C.A. § 841(a)(1) (West 1981), and one count of conspiracy to possess marijuana with intent to manufacture and distribute under 21 U.S.C.A. § 846 (West Supp.1993) and § 841(a)(1). Deaner filed a motion to suppress the marijuana plants and horticultural equipment that were seized during the search arguing that the government’s use of a forward-looking infra-red device (“FLIR”) to gauge the heat emanating from his residence was a prohibited warrantless search, and that the affidavit upon which issuance of the search warrant was based did not establish probable cause. The district court ruled against Deaner on both issues in denying his motion to suppress. Deaner then entered a conditional guilty plea to the count in the indictment charging him with possession with intent to manufacture or distribute marijuana.\nBefore he pleaded guilty, Deaner had submitted to the government a written request for discovery of physical evidence. The government concedes that the request included the marijuana plants it had seized during the physical search of Deaner’s residence. See Brief for Appellee at 29. The government did not respond to the request, and defense counsel made no attempt to inspect the marijuana before Deaner entered his guilty plea.\nAfter Deaner’s conditional guilty plea, his counsel specifically asked to examine the marijuana. The government informed him that it had been destroyed because it was rotting and taking up needed space. After a sentencing hearing, the district court sentenced Deaner under the United States Sen-teneing Guidelines (“Guidelines”) to twenty-one months incarceration,, followed by two years supervised release, and a $50 special assessment. Deaner’s sentence was based in part on the weight of the marijuana. He filed a timely notice of appeal.\nII.\nOn April 1,1992, a magistrate judge issued a search warrant to Drug Enforcement Administration (“DEA”) agents. The decision to issue the warrant was based upon an affidavit of probable cause executed by DEA Special Agent Mark Andrasi. The facts set out in the affidavit control at least one of the suppression issues Deaner raises. Therefore, we recite them in detail.\nAndrasi began the affidavit by stating that he had been employed as a special agent since June 1991, during which time he had participated in numerous narcotics investigations. He went on to say that from December 1991 through March 1992, he was taking part in an investigation of indoor cultivation of cannabis. Deaner became a suspect after the DEA learned that he had made mail order purchases of 244 pounds of supplies from Wormsway Organic Indoor/Outdoor Garden Supply (“Wormsway”) between May 1987 and April 1991. Andrasi related in the affidavit that he had learned “[tjhrough additional intelligence information” that Worms-way was a supplier of cultivation equipment seized in various indoor marijuana cultivation operations, and that Wormsway was an advertiser in Hightimes Magazine, a publication devoted to promoting the growth and use of marijuana. Appellant’s Appendix (“App.”) at 23. Andrasi cited a copy of an affidavit written by another DEA special agent as the source of his knowledge. That affidavit had been used to obtain a search warrant for Wormsway in October 1989. Andrasi also stated that undercover agents had discussed marijuana cultivation with Wormsway’s owner and at least one of its employees “on numerous occasions,” id. at 24, and that the agents had purchased equipment from Wormsway after telling its owner that the purchases would be entirely used in marijuana cultivation.\nAndrasi’s affidavit also said that on January 24 and March 16,1992, he “examined the household refuse” of Deaner and recovered marijuana stems and leaves mixed with soil on both occasions. Id. at 25. The affidavit described the marijuana retrieved on one occasion as “very fresh and green.” Id. The search of Deaner’s garbage also uncovered several halves of one gallon plastic jugs, which the affidavit explains cannabis producers often use for germination, and a Worms-way receipt for the purchase of fertilizer. Andrasi’s affidavit did not precisely indicate where the garbage was located when it was seized or where it was searched.\nIn the affidavit Andrasi goes on to state that he reviewed UPS shipping records on March 19, 1992, and they indicated that Deaner had received five packages from Wormsway at regular intervals between April 26, 1991 and January 22, 1992, each weighing two pounds. Because he knew that marijuana growers must use a large amount of fertilizer over a long period of time, An-drasi said this regular flow of packages from Wormsway supported his belief that Deaner was cultivating marijuana.\nIn addition, the affidavit stated that the rear windows of Deaner’s residence were boarded up and a side window was covered with opaque plastic. It explained that people cultivating marijuana indoors often cover the windows of their homes with plastic both to keep the heat resulting from cultivation inside and to prevent persons outside from seeing in. The affidavit described Deaner’s house in detail, stating it is surrounded by a corral-style fence with a large metal gate protecting the driveway and a dog house located about 100 yards from the back of the residence.\nThe affidavit also stated that on March 31 and April 1, 1992, DEA agents conducted an aerial reconnaissance of the properties located in Deaner’s neighborhood using a FLIR. The FLIR is a forward-looking infra-red device that detects heat sources and measures their relative intensity. DEA Agent Phelan testified at the suppression hearing that the FLIR is a “passive” device which detects only thermal energy that has been radiated from a particular source through the air to the point where the FLIR receives the signal. Aerial reconnaissance of Deaner’s neighborhood with the FLIR did indicate his residence was emanating an inordinate amount of heat, in comparison with other residences in the area. With respect to the FLIR, Andrasi’s affidavit stated that the amount of heat radiating from Deaner’s premises was consistent with another positive FLIR sighting for indoor cannabis cultivation. The affidavit explained that grow lights used in cultivating marijuana produce a great intensity of heat.\nUsing a warrant issued in reliance on this affidavit, DEA agents, along with Alcohol, Tobacco and Firearms (“ATF”) agents, the U.S. Marshal’s service, and the Pennsylvania State Police, searched Deaner’s residence. They found and seized about twenty marijuana plants, each approximately three feet high, equipment and other items used in growing marijuana, as well as pre-packaged harvested marijuana. The agents videotaped Deaner’s residence during the search. The videotape shows the number of plants, their size, and the indoor growing operation. In addition, the DEA photographed the plants a number of times from different angles and had them weighed by an official of the Bureau of Standards,. Weights and Measures, an agency in the Commonwealth of Pennsylvania’s Department of Agriculture.\nIII.\nDeaner raises three issues on appeal. First, he argues that the magistrate erred in relying on the evidence found in his “household refuse” to establish probable cause because the affidavit did not indicate on its face that Andrasi had found and searched the refuse outside the curtilage of Deaner’s residence. Deaner’s second argument is that the DEA had to get a search warrant before it could constitutionally use the FLIR to monitor the heat emanating from his residence. In short, Deaner contends that the use of a FLIR to monitor heat emanation is a search within the meaning of the Fourth Amendment’s prohibition against unreasonable searches and seizures and therefore requires a warrant. Finally, Deaner contends that the district court erred in using the government’s evidence of the marijuana’s weight to calculate his Guidelines sentence because the government’s destruction of the marijuana after he asked to inspect it was fundamentally unfair.\nThis Court’s review of the legal questions involved in the denial of a suppression motion is plenary, but “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). Instead, the standard for review of a determination of probable cause is whether the issuing authority, in this case a magistrate judge, had a substantial basis for concluding a search would uncover evidence of wrongdoing. Id. Reviewing courts must defer to determinations of probable cause made by the judicial officer who issued the warrant if, based on the whole affidavit, there is a reasonable common sense likelihood that the search will uncover evidence of criminal acts. The Gates standard is often referred to as a totality of the circumstances test. Id.\nThis Court’s examination of Deaner’s sentence to determine whether it was imposed in violation of law or as a result of an incorrect application of the Guidelines involves issues of law subject to plenary review. See 18 U.S.C.A. § 3742(a)(1), (2); United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.1991).\nIV.\nWe discuss first the suppression issues, beginning our analysis with the search of the garbage.\nA.\nDeaner argues that the affidavit did not show that the garbage was constitutionally seized and therefore the magistrate judge could not rely on the marijuana or other evidence found in the garbage to establish probable cause. The United States Supreme Court held in California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 1628-29, 100 L.Ed.2d 30 (1988), that a warrantless search and seizure of garbage left for collection outside the curtilage of a home does not violate the Fourth Amendment. In so holding, the Court reasoned that when “refuse [is placed] at the curb for the express purpose of conveying it to a third party, the trash collector ... might himself have sorted through respondents’ trash or permitted others, such as the police, to do so” and therefore the persons who produced it have “exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection.” Id. Greenwood does, however, require the government to show that the garbage it inspected was readily accessible to the public. See United States v. Hedrick, 922 F.2d 396, 398 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 147, 116 L.Ed.2d 113 (1991).\nAndrasi’s affidavit stated,\nOn two separate occasions, once on January 24,1992 and again on March 16,1992, your affiant examined the household refuse of Tab R. DEANER. On both occasions your affiant recovered stems and leaves of marijuana mixed with soil and on one occasion the recovered marijuana was very fresh and green. The marijuana was field tested by your affiant with positive results for the presence of cannabis.\nThe examination of the household refuse also produced a receipt dated January 17, 1992 from Wormsway for the purchase of fertilizer. Several halves of one gallon plastic jugs were also observed in the refuse. Discussions with the Harrisburg Resident Office Marijuana Coordinator concluded that plastic jugs are often used as germination containers by cannabis producers.\nApp. at 25. The affidavit did not state where the garbage was found, where it was searched, or who seized it.\nWhile the better practice might have been to include in the affidavit a statement on the location of the garbage at the time it was seized, the absence of an express specification of this location is not fatal. The natural implication of the defendant’s argument is that every piece of evidence relied on by an affiant must be shown to have been acquired constitutionally. This would constitute a substantial burden on affiants, as imaginative defense counsel will often successfully be able to argue that the failure to disprove some hypothetical set of facts left it ambiguous as to whether the facts contained within the four-corners of the affidavit established that the evidence was seized in a constitutional manner.\nMore importantly, accepting the defendant’s argument that the facts recited in an affidavit must establish that the particular evidence was seized in a constitutional manner would subject probable cause determinations to a hyper-technical analysis insupportable under governing case law. As explained by the Supreme Court in Illinois v. Gates: “ ‘Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.’” Gates, 462 U.S. at 235, 103 S.Ct. at 2330-31. This, and other concerns, led the Court to abandon the two-pronged test of Aguilar and Spinelli and adopt in its place the “totality-of-the-circumstanees analysis that traditionally has informed probable-cause determinations.” Id. at 238,103 S.Ct. at 2332. As the Court explained, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id.\nIf a defendant has a substantial basis upon which to question whether this implicit representation is true, then he or she may be entitled to a hearing on the veracity of the implicit representation that the evidence was obtained in a constitutional manner. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). In the present case, however, Deaner has not even suggested that the implicit statement as to the constitutionality of the search was false. In fact, not only has he not made that argument, he specifically declined the government’s offer to have Andrasi testify as to how the garbage was obtained. Accordingly, we conclude that the magistrate could rely on the evidence discovered during Andrasi’s search of Deaner’s household, refuse in deciding that there was probable cause to issue a warrant to search Deaner’s residence. .\nB.\nOther information in the affidavit indicated that the rear windows of Deaner’s house were boarded up and a side window was covered with opaque plastic, a technique Andrasi stated marijuana growers used both to prevent heat from escaping and to shield their illegal crop from external view. The affidavit also described the shipment of 244 pounds of merchandise from Wormsway, a known supplier of marijuana cultivation equipment, and five two-pound packages from Wormsway consistent with the ever present need of marijuana growers for fertilizer. The affidavit noted that Deaner’s residence was surrounded by a corral-style fence with a doghouse in the backyard, again consistent with a desire to keep persons from venturing too close to the house because of Deaner’s illegal activity of growing marijuana there. This information, coupled with the evidence Andrasi retrieved from Deaner’s household garbage, established probable cause for issuing the search warrant.\nBecause the affidavit establishes probable cause without the evidence obtained by such device, we express no opinion on whether the use of a FLIR device in aerial surveillance of a residence is a search within the meaning of the Fourth Amendment. See United States v. Herrold, 962 F.2d 1131, 1138 (3d Cir.) (even assuming some factual averments in affidavit are tainted, they do not vitiate warrant otherwise validly issued upon other information in affidavit that establishes probable cause) (quoting United States v. Johnson, 690 F.2d 60, 63 (3d Cir.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 450 (1983)), cert. denied, — U.S. —, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992).\nV.\nOur decision to affirm the order denying Deaner’s motion to suppress requires us to consider his sentencing issue. Section 2D1.1 of the Sentencing Guidelines provides that the base offense level of a-defendant convicted of manufacturing and conspiring to manufacture scheduled drugs varies directly with the quantity of drugs the sentencing judge finds the defendant manufactured or conspired to manufacture. United States v. Touby, 909 F.2d 759, 772 (3d Cir.1990), aff'd on other grounds, — U.S. —, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). Specifically, section 2Dl.l(a)(3) instructs us to determine the offense level by reference to the Drug Quantity Table set forth in section 2D1.1(c). See United States Sentencing Commission, Guidelines Manual, §§ 2D.1.1(a)(3), 2Dl.l(c) (Nov.1992).\nDeaner argues that the district court should have sentenced him for possession of marijuana with intent' to manufacture and distribute without considering the marijuana’s weight because the government denied him an opportunity to inspect or weigh the marijuana plants by destroying them in the face of his outstanding discovery request. If the government’s evidence on the marijuana’s weight cannot be considered, Deaner’s base offense level would be six. After the two point reduction for acceptance of responsibility under Guideline section 3E1.1 the district court granted him, his total offense level would be four. Because Deaner falls within Criminal History Category I, an offense level of four would result in a Guideline sentencing range of zero to six months. Under section 2Dl.l(c), however, the base offense level for unlawful possession of 23.9 kilograms of marijuana is eighteen. Dean-er’s sentence was reduced two levels for acceptance of responsibility, leaving a total offense level of sixteen. This net offense level gives a Guideline range of twenty-one to twenty-seven months imprisonment. Using an offense level of sixteen, the district court sentenced Deaner to twenty-one months in prison, followed by two years supervised release, and a $50 special assessment.\nThe following sequence of events is central to Deaner’s argument:\n—Deaner was arrested on April 2, 1992.\n—On May 20, Deaner sent the government a discovery request, including a request for discovery of all “tangible objects.” —Deaner filed his suppression motion on June 10.\n—On July 2, without notice to either Dean-er or the court, the U.S. Attorney’s Of■fice authorized the DEA to destroy the marijuana.\n—On July 7, without notice to either Dean-er or the court, the government destroyed the marijuana.\n—On August 3, Deaner entered his guilty plea.\n—At some time after pleading guilty, Deaner specifically requested access to the marijuana in order to inspect it and was told that it had been destroyed. —On November 2, Deaner was sentenced.\nAt sentencing, the government presented a certificate from the Bureau of Standards, Weights and Measures of the Commonwealth of Pennsylvania, Department of Agriculture. It stated that the scale used to weigh the marijuana plants was acceptable and certified for accuracy. Neal Cashman, Jr., Director of the Bureau of Standards, Weights and Measures, certified that the marijuana plants weighed 23.9 kilograms. On the evidence, the district court calculated Deaner’s sentence to reflect the weight of the marijuana under section 2D1.1.\nPreliminarily, we consider the reliability of the evidence the government produced to show the weight of the marijuana. In that connection, we note that the sentencing phase of a criminal proceeding is distinct from the adjudicatory phase. While “[tribunals passing on the guilt of a defendant always have been hedged in by strict eviden-tiary procedural limitations,” Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949) (footnote omitted), courts imposing sentence are “free to consider a wide range of relevant material.” Payne v. Tennessee, — U.S. -, -, 111 S.Ct. 2597, 2606, 115 L.Ed.2d 720 (1991); accord Dawson v. Delaware, — U.S. -, -, 112 S.Ct. 1093, 1097, 117 L.Ed.2d 309 (1992). The Federal Rules of Evidence and the Sentencing Guidelines reflect this practice. See Fed.R.Evid. 1101(d)(3) (rules of evidence not applicable at sentencing); U.S.S.G. § 1B1.4 (“In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.”); U.S.S.G. § 6A1.3(a), p.s. (“In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); see also United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir.) (hearsay admissible at sentencing hearing to determine amount of marijuana involved in offense as long as sufficient indicia of reliability), cert. denied, 493 U.S. 997, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989).\nUnder these principles, the evidence the government produced passes the reliability test. We first note that Deaner gets no benefit from Federal Rule of Criminal Procedure 16. It specifically provides:\nUpon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, ... which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.\nFed.R.Crim.P. 16(a)(1)(C) (emphasis added). Rule 16 governs only pretrial discovery. See United States v. Nobles, 422 U.S. 225, 235, 95 S.Ct. 2160, 2168-69, 45 L.Ed.2d 141 (1975). Although Deaner made a general discovery request for “all tangible objects” before pleading guilty, he did not specifically ask to inspect the marijuana or make arrangements for such inspection until after he had entered his plea. Thus, Rule 16 has no application.\nDeaner’s argument, however, goes beyond reliability and attempts to raise a problem of fundamental fairness implicating constitutional concerns that are rooted in due process. Indeed, as we said in United States v. Rosa, 891 F.2d 1074, 1079 (3d Cir.1989), “We believe the sentence imposed on a defendant is the most critical stage of criminal proceedings, and is, in effect, the ‘bottom-line’ for the defendant, particularly where the defendant has pled guilty.”\nResolution of the effect the destruction of the marijuana plants had on their use as evidence at Deaner’s sentencing hearing seems to us to involve “what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). Deaner made only a general discovery request for “all tangible objects.” The government concedes this included the marijuana the DEA had seized from his residence. Nevertheless, there is no reason to believe that Deaner’s scales would have shown a weight more favorable to him than those of the state’s Bureau of Weights and Measures. We think the destruction of drugs whose weight is material to sentencing is analogous to the prosecution’s failure “to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988); e.g., California v. Trombetta, 467 U.S. 479, 491, 104 S.Ct. 2528, 2535, 81 L.Ed.2d 413 (1984) (failure to preserve breath samples of suspected drunk drivers used in breath-analysis tests); Valenzuela-Bernal, 458 U.S. at 872, 102 S.Ct. at 3449 (deportation of two witnesses who were illegal aliens).\nA defendant who claims destroyed evidence might have proved exculpatory if it could have been subjected to tests has to show the prosecution’s bad faith in ordering or permitting its destruction. Without a showing of bad faith, failure to preserve evidence that might be of use to a criminal defendant after testing is not a denial of due process. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38; see Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533-34 (citing Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 308-09, 7 L.Ed.2d 256 (1961)). With respect to reliable evidence concerning an attribute of physical evidence material to a defendant’s sentence, which the government has destroyed, application of the bad faith standard is, we believe, appropriate in deciding whether such evidence is admissible in a Guideline sentencing proceeding.\nDeaner does not expressly argue bad faith on the part of the government, but he does contend that the government did not follow the procedure for destruction of the marijuana set out at 28 C.F.R. § 50.21 (1992). We have previously held that destruction of evidence in accordance with an established procedure precludes a finding of bad faith absent other compelling evidence. See, e.g., Griffin v. Spratt, 969 F.2d 16, 21 (3d Cir.1992); United States v. Boyd, 961 F.2d 434, 437 (3d Cir.), cert. denied, — U.S. -, 113 S.Ct. 233, 121 L.Ed.2d 168 (1992); United States v. Stevens, 935 F.2d 1380, 1388 (3d Cir.1991). While a showing that the government did not follow standard procedure could provide some evidence of bad faith, we have not held that an improper procedure in and of itself implies bad faith. While it may permit such an inference, it does not syllogis-tically imply the presence of bad faith as a matter of deductive logic. We address Dean-er’s allegations that the government failed to follow the procedure set forth in 20 C.F.R. § 50.21 for the destruction of contraband drug substances with these principles in mind.\nSection 50.21 instructs an agency having custody of contraband drugs seized pursuant to a criminal investigation “[immediately [to] notify the appropriate United States Attorney ... that the amount of seized contraband drug exceeding the threshold amount and its packaging, will be destroyed after sixty days from the date notice is provided of the seizures, unless the agency providing notice is requested in writing by the authority receiving notice not to destroy the excess contraband drug.” 20 C.F.R. § 50.21(e)(1). Dean-er asserts that the DEA did not notify the U.S. Attorney’s Office immediately after the seizure that the marijuana would be destroyed, see Brief for Appellant at 27, but he does not point to anything in the record supporting that statement and we have not found anything there that would do so. The government, to the contrary, represented at the sentencing hearing that it did receive an oral request from a DEA agent for permission to destroy the marijuana “because a substantial period of time had gone by[, i]t was incredibly bulky[, and i]t was starting to rot.” App. at 164. We think the district court was justified in relying on the government’s statement and rejecting Deaner’s unsupported assertion.\nDeaner also argues that the DEA did not wait sixty days from the date on which notice of destruction was given before destroying the marijuana. Instead, he asserts that the marijuana was destroyed only five days later. Brief for Appellant at 27-28. The record does not clearly show just when the DEA asked for permission to destroy it. The subsection of section 50.21 on which Deaner relies, however, provides that destruction can take place sixty days after the date notice of the seizure is provided, not sixty days after DEA gives the prosecution notice of its intent to destroy the seized material. See 28 C.F.R. § 50.21(e)(1). Here the seizure occurred in April and the marijuana was destroyed in July. Thus, between seizure and destruction, more than the sixty days the regulation requires had passed.\nFinally, section 50.21(e)(4) provides that “a representative sample” of marijuana “shall be retained.” 28 C.F.R. § 50.21(e)(4). It is undisputed that this was not done in the present case. The district court nevertheless decided that the evidence indicating that the marijuana weighed 23.9 kilograms was “more than sufficient for the purpose of sentencing as corroborated by the photographs of the plants ..., by the certificate with respect to the scale that was used, and ... from the laboratory report that that was the weight found.” App. at 174. The court concluded that although the regulations were “not precisely followed by not maintaining a [representative marijuana] sample, it really does not prejudice the defendant in this situation.” Id.\nThe fact that the government did not retain a representative sample does not affect the conclusion that the DEA complied substantially with the procedure set forth in section 50.21 for destruction of contraband evidence. Deaner does not challenge the government’s explanation that the marijuana was destroyed because it was deteriorating and taking up limited space. At most, the government was negligent in failing to preserve a representative sample. See Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38 (failure of police to refrigerate clothing and perform tests on semen samples was at worst negligent). Deaner proffers no other evidence that would preclude admission of otherwise reliable evidence on the weight of the marijuana seized from his home. We therefore conclude that this record does not show bad faith on the part of the government.\nConsidering the reliability of the procedures the government used in determining the weight of the marijuana, the possibility that it was something different from what the government has represented is slim. See Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534 (preservation of breath samples probably not exculpatory because accuracy of Intoxilyzer machine had been certified). As the government points out, Deaner does not argue that the weight of the marijuana stated by the government at sentencing was incorrect, and he does not otherwise contest certification of its weight by the Director of the Pennsylvania Bureau of Standards, Weights and Measures. Therefore, we believe that the certification provided a reasonable substitute for the actual marijuana. Under all the present circumstances, the evidence produced on the marijuana’s weight had indicia of reliability sufficient to meet the requirement of fundamental fairness that is at the core of due process.\nNevertheless, we take this opportunity to caution the government against routine destruction of evidence material to sentencing. In other circumstances the government’s contentions about the evidence’s characteristics may be expressly denied, or may lack the strong indicia of reliability present here. In such cases, destruction of physical evidence material to sentence that the defendant has sought to discover, without giving him notice and an opportunity to inspect the evidence before it is destroyed, could be detrimental to the government. Though, the failure to preserve the marijuana, standing alone, is here insufficient to show bad faith, we think it would be wise for the government to notify a defendant who has an outstanding discovery request of its intentions before it destroys evidence material to the defendant’s sentence. We also think that it would be a simple matter for United States Attorneys to adopt a policy of giving defendants who have sought discovery of tangible evidence express notice, when practicable, of its impending destruction in sufficient time to permit inspection. That practice could avoid problems in cases in which the tangible evidence’s material characteristics are denied or the government’s proof of them lacks the indicia of reliability present in Deaner’s case.\nThe official certification of the marijuana’s weight constitutes reliable evidence from which the district court could determine the weight of the marijuana. That evidence is not directly attacked and the weight it shows is likewise not directly contested. There is no evidence of bad faith. Thus, on the facts of this case, we believe that no due process violation occurred. The marijuana’s destruction did not violate Deaner’s constitutional right to the fundamental fairness due process guarantees in every aspect of a criminal proceeding. See Boyd, 961 F.2d at 436-37. For these reasons, the district court did not err in relying on the government’s evidence of the marijuana’s weight to compute Deaner’s base offense level under section 2D 1.1 of the Sentencing Guidelines.\nVI. Conclusion\nA common-sense reading of the affidavit supports an inference that the garbage was not within the curtilage of Deaner’s residence when it was searched. Therefore, the magistrate properly relied on the information the Government swore it had obtained from the garbage in issuing the search warrant. The evidence retrieved from Deaner’s household refuse, coupled with the other information detailed in the warrant, establishes probable cause upon which the magistrate properly issued the search warrant, without regard to the FLIR. Therefore, we do not reach or decide the issue whether use of the FLIR was a prohibited warrantless search. Finally, the district court did not err in computing Deaner’s sentence in reliance on evidence that reliably showed the marijuana seized from his residence weighed 23.9 kilograms. We will accordingly affirm Deaner’s conviction and sentence.\n. A co-defendant, Melinda Kurtz, entered a plea of guilty to a reduced charge of simple possession. She was sentenced to probation and did not appeal.\n. In addition to these two possible Guideline sentencing ranges, a third possibility exists. Under the Drug Quantity Table set forth in section 2D 1.1(c), the weight of whole plants may be estimated. Here, because there were less than fifty plants, each plant would be deemed to be the equivalent of 100 grams of marijuana, Applying this calculation to the twenty marijuana plants seized from Deaner’s residence would result in a base offense level of ten, which the two-level reduction for acceptance of .responsibility would further reduce to eight. This net offense level would give Deaner a Guideline sentencing range of zero to six months incarceration.\n. Rosa is a pre-Guidelines case. There we held that the Jencks Act, which requires the government to provide a defendant with its witnesses’ statements, upon request, after a witness has testified on direct examination at trial, applies in sentencing proceedings. See 891 F.2d at 1078-79. Nevertheless, hearsay is admissible at sentencing so long as it is \"reliable.” See Sciarrino, 884 F.2d at 97; see also United States v. Miele, 989 F.2d 659, 663-64 (3d Cir.1993) (further elaborating on applicable standard of reliability).\n[END_CASE]", "role": "user" } ]
10,509,293	OLDE DISCOUNT CORPORATION v. W. Michael TUPMAN, and as Deputy Attorney General of the State of Delaware; Richard W. Hubbard, Securities Commissioner of the State of Delaware; Eugene H. Engelhardt and Carol D. Engelhardt, W. Michael Tupman, individually and as Deputy Attorney General of the State of Delaware; Richard W. Hubbard, Securities Commissioner of the State of Delaware; Eugene H. Engelhardt, Carol D. Engelhardt, Appellants	Olde Discount Corp. v. Tupman	1993-07-30	No. 92-7557	United States Court of Appeals for the Third Circuit	{"judges": ["Before: GREENBERG, NYGAARD and ROSENN, Circuit Judges.", "Before: SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and ROSEN.N, Circuit Judges."], "parties": ["OLDE DISCOUNT CORPORATION v. W. Michael TUPMAN, and as Deputy Attorney General of the State of Delaware; Richard W. Hubbard, Securities Commissioner of the State of Delaware; Eugene H. Engelhardt and Carol D. Engelhardt, W. Michael Tupman, individually and as Deputy Attorney General of the State of Delaware; Richard W. Hubbard, Securities Commissioner of the State of Delaware; Eugene H. Engelhardt, Carol D. Engelhardt, Appellants."], "opinions": [{"text": "OPINION\nGREENBERG, Circuit Judge.\nThis case presents a novel question of the relationship between a contracting party’s right to enforcement of an arbitration agreement under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA), and a state’s interest in pursuing a remedy of rescission in an administrative proceeding. The district court enjoined the Delaware securities commissioner from seeking rescission on behalf of two investors who had entered into a predispute arbitration agreement. 805 F.Supp. 1130. We will affirm the district court’s order. Judge Greenberg votes to affirm on the grounds that the FAA preempts Delaware’s rescission remedy in these circumstances and this opinion reflects the reasons why he has reached this conclusion. Judge Rosenn votes to affirm on the ground that the rescission remedy is barred by reason of contract law as set forth in his separate concurring opinion. Judge Ny-gaard dissents on this issue for the reasons set forth in his separate opinion. We unanimously hold that this claim, i.e., that a state statute is preempted to the extent it authorizes relief in conflict with rights secured by the FAA, necessarily falls within an exception to the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).\nI. BACKGROUND\nAppellee Olde Discount Corporation, a securities broker-dealer, is a Michigan corporation with its principal place of business in Detroit and numerous offices throughout the United States. Olde Discount is registered in Delaware as a broker-dealer and has an office in Wilmington. Appellants Eugene and Carol Engelhardt are former customers of Olde Discount. The Engelhardts, then Michigan residents, opened a brokerage account with Olde Discount’s Detroit office in 1983. When they moved to Wilmington in 1986, the Engelhardts transferred their account to its Wilmington office.\nOlde Discount is primarily, as its name implies, a discount broker. It also makes a market in a few selected stocks; at the times relevant to this action, Second National Federal Savings Bank (SNFS) was among those stocks. Allegedly at the instance of Olde Discount’s Wilmington office manager, Michael Donohoe, the Engelhardts purchased 6,000 shares of SNFS stock on May 15,1990. On May 25, 1990, the Engelhardts signed an account agreement with Olde Discount that required them “to submit any and all controversies or claims arising out of the relationship established by this agreement to arbitration to be conducted according to the rules and procedures of the New York Stock Exchange, Inc. (NYSE) or of the National Association of Securities Dealers, Inc. (NASD).... ” Investors Account Agreement, ¶ 18, J.A. at 53. Also on May 25,1990, the Engelhardts provided Olde Discount with a “customer preference profile” that expressed their interest in “aggressive” investments for the purposes of “growth” and “speculation.” J.A. at 48.' On June 6, 1990, the Engelhardts purchased an additional 5,000 shares of SNFS. Thus, by early June 1990, the Engelhardts had purchased 10,000 shares of SNFS. These purchases cost the Engelhardts over $50,000.\nThe price of SNFS stock declined steadily during the summer and fall of 1990, as the bank suspended its dividend and came under the scrutiny of federal regulators because it failed to fulfill capital requirements. The Engelhardts, apparently because of their bad experience with this investment, terminated their Olde Discount brokerage account and removed their SNFS shares from Olde Discount on September 6, 1990. By then the Engelhardts’ SNFS stock had declined • in value to approximately $32,500.\nNearly a year later, in July 1991, the En-gelhardts first contacted the Division of Securities of the Delaware Department of Justice with a complaint about their purchase of SNFS stock from Olde Discount. The Division, primarily through appellant Michael Tupman, a Delaware Deputy Attorney General responsible for securities law enforcement, investigated the Engelhardts’ complaint. In early June 1992, after the Division substantially- had completed its investigation, it sent Olde Discount a draft “Notice of Intent to Suspend or Revoke Broker-Dealer Registration.” The draft Notice of Intent alleged that Olde Discount and its agent Donohoe had engaged in fraudulent and unethical practices in connection with the sales of SNFS stock to the Engelhardts, in violation of Del.Code Ann. tit. 6, §§ 7303(2) and 7316(a) (1974 & Supp.1992).\nIn particular, the Notice asserted that Do-nohoe repeatedly had urged the Engelhardts to invest in SNFS and had made false statements of material fact about the stock. Further, the Notice alleged that Olde Discount had not kept the Engelhardts advised of information that could have been pertinent to their decision whether to hold or sell the stock. The Notice indicated that the Delaware securities commissioner sought the remedies of suspension or revocation of Olde Discount’s broker-dealer registration and imposition of fines; and, central to the preemption question in this case, that the commissioner would seek rescission of the SNFS stock transactions between Olde Discount and the Engelhardts, as authorized by Del. Code Ann. tit. 6, § 7325(b). The Notice, however, did not suggest that either Olde Discount or Donohoe had violated any duty to customers other than the Engelhardts; the Notice thus proposed individual relief for the Engelhardts only.\nDuring the summer of 1992, the Division of Securities and Olde Discount tried to negotiate a settlement of the proposed charges. Ultimately Olde Discount, desiring to bring the settlement negotiations to fruition, offered to pay $15,000 to the Delaware Investors Protection Fund and to pay $20,375 to the Engelhardts. The proposed payment to the Engelhardts represented the difference between the total price they had paid for the SNFS stock, and its value of approximately $32,500 on September 6, 1990, when the En-gelhardts had closed their brokerage account with Olde Discount.\nThe appellants do not dispute that Tupman agreed in principle to accept $15,000 in partial settlement of the Division’s proposed charges. Nevertheless, Tupman insisted that Olde Discount also must rescind the Engelhardts’ SNFS purchases. This demand was not acceptable to Olde Discount, which apparently had consistently maintained that the securities commissioner could not properly pursue a rescission, because Olde had a contractual right to arbitrate the Engelhardts’ claims. Tupman, however, viewed Olde Discount’s claims of its contractual right to arbitration and of the federal preemption of Delaware’s rescission remedy as “baffling.” See Tupman’s August 7, 1992 letter to Olde Discount, J.A. at 111. He consequently would not abandon the demand that it rescind the SNFS sales to the Engel-hardts.\nOlde Discount determined to pursue its right to arbitration, and served the Engel-hardts with a demand to arbitrate on August 5, 1992. Shortly thereafter, on August 17, 1992, Tupman issued the Notice of Intent in substantially the same form as the June 1992 draft, i.e., including the demand for rescission of the Engelhardts’ SNFS transactions. Notice of Intent, ¶43, J.A. at 139. The Notice provided that Olde Discount would be entitled to a hearing before the Delaware securities commissioner if it made a written request within 30 days. However, if Olde Discount did not request a hearing, the allegations would be deeméd admitted and the commissioner would issue a final order of suspension, revocation, rescission, fine and/or costs.\nOn August 25, 1992, Olde Discount commenced this action against Tupman, Delaware Securities Commissioner Richard W. Hubbard, and the Engelhardts. The complaint’s four counts alleged that: (1) the rescission remedy of Del.Code Ann. tit. 6, § 7325(b), as applied by the defendants, circumvents Olde Discount’s rights under the FAA and thus violates the Supremacy Clause; (2) the application of Del.Code Ann. tit. 6, § 7325(b), to Olde Discount’s transactions with the Engelhardts in SNFS stock would constitute an ex post facto punishment in violation of the Due Process Clause; (3) Tupman and Hubbard had violated 42 U.S.C. § 1983 by employing the Delaware securities laws in a manner that impaired Olde Discount’s federal constitutional and statutory rights; and (4) Tupman’s actions constituted a common law abuse of process. Olde Discount sought an injunction, a declaratory judgment, compensatory damages, and punitive damages.\nOlde Discount most immediately was concerned with preserving its federal right to arbitration of the Engelhardt dispute. It therefore vigorously pressed for a preliminary injunction to halt further proceedings before the Delaware Division of Securities. After expedited briefing and argument, the district court, by order dated September 16, 1992, accompanied by a comprehensive memorandum opinion, partially granted Olde Discount’s motion for preliminary relief, enjoining “the Securities Commissioner[ ] [from pursuing] a rescission action under [Del.Code Ann. tit. 6, § 7325(b) ] on behalf of defendants Engelhardt, individual investors who are parties to a predispute arbitration agreement with plaintiff, which agreement is enforceable under the Federal Arbitration Act, 9 U.S.C. § 2.” In its opinion, the district court determined that the FAA preempted the Delaware rescission remedy. Furthermore, the district court declined to abstain under Younger from issuing injunctive relief. Tupman, Hubbard, and the Engelhardts jointly appealed from the September 16,1992 order, contending that the district court “erred as a matter of law” both in declining to abstain under Younger and in holding that the rescission remedy was preempted.\nII. JURISDICTION AND STANDARD OF REVIEW\nBefore turning to the merits of the preemption and abstention issues, we must resolve a challenge to our jurisdiction raised by Olde Discount. It argues that the appeal is from an interlocutory order “directing arbitration to proceed,” which is specifically nonappealable under 9 U.S.C. § 16(b)(2). However, contrary to Olde Discount’s characterization, the district court’s order in this case is not an order “directing arbitration to proceed.” Rather, the district court directed the Delaware securities commissioner not to pursue a remedy of rescission in the administrative proceedings. Thus, the order falls within the usual rule of 28 U.S.C. § 1292(a)(1), which permits immediate appeals from “[i]nterlocutory orders ... granting [or] refusing ... injunctions.”\nOur review of a determination regarding preliminary injunctive relief is limited to examining whether the district court abused its discretion, committed an obvious error in applying the law, made a clear mistake in considering the proof, or improperly applied the law to the facts. Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242, 1250 n. 9 (3d Cir.1992); Philadelphia Marine Trade Ass’n v. Local 1291, Int’l Longshoremen’s Ass’n, 909 F.2d 754, 756 (3d Cir.1990), cert. denied, 498 U.S. 1083, 111 S.Ct. 953, 112 L.Ed.2d 1041 (1991). This standard requires a plenary review here, as the appellants contend that the district court erred as a matter of law in entering the injunction. We also exercise plenary review over the abstention question because we are resolving that issue by making a legal determination. General Glass Indus. Corp. v. Monsowr Medical Found., 973 F.2d 197, 200 (3d Cir.1992); Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1199 (3d Cir.1992).\nIII. PREEMPTION\nThe Supremacy Clause allows Congress to preempt state legislation if it so intends. See United States Dep’t of Treasury v. Fabe, — U.S. -, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993). The development of the law of federal preemption has defined three ways of discerning a congressional intent to preempt state law: express or explicit preemption, implied preemption, or “actual conflict” preemption. The Supreme Court thus has differentiated among the three types of preemption:\nCongress explicitly may define the extent to which its enactments pre-empt state law.... In the absence of explicit statutory language, however, Congress implicitly may indicate an intent to occupy a given field to the exclusion of state law. Such a purpose properly may be inferred where the pervasiveness of the federal regulation precludes supplementation by the states, where the federal interest in the field is sufficiently dominant, or where ‘the object sought to be obtained by the federal law and the character of obligations imposed by it ... reveal the same purpose’.... Finally, even where Congress has not entirely displaced state regulation in a particular field, state law is pre-empted when it actually conflicts with federal law. Such a conflict will be found ‘ “when it is impossible to comply with both state and federal law ... or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress ....”’\nSchneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300, 108 S.Ct. 1145, 1150-51, 99 L.Ed.2d 316 (1988) (citations omitted).\nThe preemption claim before us is that the FAA demands enforcement of an agreement to arbitrate which cannot be abrogated by a state agency’s pursuit of an administrative remedy that would duplicate the .remedy sought in an arbitration. Section 2 of the FAA, 9 U.S.C. § 2, directs the enforcement of arbitration agreements as broadly as Congress’ powers under the Commerce Clause permit:\nA written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.\nOlde Discount contends that the FAA’s directive compels enforcement of the arbitration clause of the Engelhardts’ account agreement. Thus, if the Delaware securities commissioner pursues rescission in the administrative proceeding, Olde Discount’s federal right to arbitration would be impaired, as the merits of the claim that the arbitration agreement reserves for an arbitral forum will be resolved administratively.\nYet it is clear that the FAA does not explicitly preempt any particular remedy that might be sought in state administrative proceedings. Nor does the FAA entirely occupy the field of securities regulation so as to give rise to implied preemption; to the contrary, both the Securities Act of 1933 and the Securities Exchange Act of 1934 specifically preserve the traditional rights of the states to regulate securities transactions within their own jurisdictions. See, e.g., 1933 Act, 15 U.S.C. § 77r (“[njothing in this sub-chapter shall affect the jurisdiction of the securities commission ... of any State or Territory ... over any security or any person”); 1934 Act, 15 U.S.C. § 78bb(a) (“[njothing in this chapter shall affect the jurisdiction of the securities commission ... of any State over any security or any person insofar as it does not conflict with the provisions of this chapter”). In fact the FAA is not concerned in particular with securities regulation, as 9 U.S.C. § 2 deals generally with contracts involving commerce. Therefore, to preserve its right to a meaningful arbitral forum Olde Discount relies on the third type of preemption, “actual conflict” preemption.\nThere can be “actual conflict” preemption in two circumstances, either where it is impossible to comply with the 'conflicting demands of federal and state statutes, or where the state law is an “obstacle” to the fulfillment of the congressional purposes embodied in the federal law. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963) (holding federal regulation concerning maturity of avocados did not preempt California regulation, where it was not impossible for growers to comply with both regulations); Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941) (holding federal Alien Registration Act-preempted Pennsylvania Alien Registration Act because state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”); Pennsylvania Medical Soc’y v. Marconis, 942 F.2d 842, 848 (3d Cir.1991) (holding Pennsylvania statute governing limited aspects of Medicare billing not preempted by federal Medicare Act because state statute did not create obstacle to fulfillment of Congress’ objectives). As our analysis of the interaction between the Delaware administrative rescission remedy and Olde Discount’s arbitration agreement with the Engelhardts will make clear, both factors indicating conflict preemption, conflicting statutory demands and an obstacle to Congress’ purposes, are present in this case.\nThe context of this preemption claim, i.e., the preservation of a federal right to an arbitral forum, is critical. At one time other substantive and procedural rights of parties were thought to outweigh a right to arbitration. See Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953) (stating Securities Act of 1933 precluded waiver of judicial forum, rendering arbitration agreement invalid). But that time is no more. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (overruling Wilko v. Swan). The Supreme Court unstintingly has promoted a favorable climate for arbitration through vigorous enforcement of the FAA over the last 20 years. The gradual erosion of the principles of Wilko v. Swan began with the 1974 decision of Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270, which held that a claim under the Securities Exchange Act of 1934 would be arbitrable in the distinctive context of an international business transaction. The international character of the dispute was also an important consideration in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), which upheld an order compelling submission of Sherman Act claims to arbitration in Japan. More generally, Mitsubishi noted that there is “no warrant in the Arbitration Act for implying in every contract within its ken a presumption against arbitration of statutory claims.” Id. at 625, 105 S.Ct. at 3353.\nThe Court moved beyond the specialized international context and enforced arbitration of 1934 Act claims and RICO claims, pursuant to a clause in a standard brokerage agreement, in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). Shortly thereafter, the Court resolved the inconsistency between McMahon and Wilko by expressly overruling Wilko in Rodriguez de Quijas. Two Terms later, the Court extended the ascendancy of arbitration beyond commercial disputes to age-discrimination claims in Gilmer v. Interstate/Johnson Lane Corp., — U.S. -, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), which rejected the contention that the involvement of an agency, there the Equal Employment Opportunity Commission, in a scheme of enforcement created any impediment to the private arbitration of the claims arising in a particular case.\nTwo aspects of the development of the federal right to arbitration that we have traced are particularly noteworthy here. First, the arbitration of securities disputes now is not only permitted, but favored, under federal law, according to the line of decisions culminating in McMahon and Rodriguez de Quijas. See also Osterneck v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 841 F.2d 508 (3d Cir.1988) (stating FAA preempts provision of Pennsylvania Securities Act purporting to preclude enforcement of agreements to arbitrate state law securities claims). Second, there is no longer any doubt that statutory claims are arbitrable, and the existence of an enforcing agency, as in Gilmer, does not interfere with the arbi-trability of individual claims. Similarly, it is clear that state statutory claims, as well as federal statutory claims, are subject to the federal right to an arbitral forum. See Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (holding FAA preempts California statutory provision requiring judicial forum for claims under California Franchise Investment Law); Osterneck v. Merrill Lynch, 841 F.2d at 512-13.\nThus, the claims that the Delaware Division of Securities is pursuing on behalf of the Engelhardts, i.e., claims of fraudulent dealings in violation of Del.Code Ann. tit. 6, § 7303, certainly would be subject to arbitration if pursued by the Engelhardts themselves. See Del.Code Ann. tit. 6, § 7323 (creating private right of action for securities fraud). However, the appellants argue that for preemption purposes we must distinguish between the advancement of essentially identical claims on the basis of whether their proponent is a state agency or a private litigant. The appellants contend that the state’s enforcement action implicates the public interest, and not simply the rights of the Engelhardts. Further, the appellants cite Gilmer for the proposition that “arbitration agreements will not preclude [an administrative agency] from bringing actions seeking class-wide and equitable relief.” — U.S. at -, 111 S.Ct. at 1655. In the appellants’ view, the agency’s pursuit of “equitable relief’ sanctioned in Gilmer should include the remedy of rescission of specific trades of securities sought in this case. The appellants view the rescission remedy as an integral component of the state’s regulation of securities transactions which, they argue, should not be weakened by the application of federal preemption.\nHowever, we think the rescission remedy as applied here necessarily would render Olde Discount’s right to arbitration meaning: less. The particular remedy therefore must fall before the conflicting right to an arbitral forum granted by the FAA. The FAA’s fundamental purpose was to create “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). “In enacting § 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” Southland Corp. v. Keating, 465 U.S. at 10, 104 S.Ct. at 858. Yet the Delaware Division of Securities claims that it must be permitted to adjudicate administratively the very same questions regarding Olde Discount’s sale of SNFS stock to the Engelhardts, that the Engel-hardts themselves could pursue only within an arbitration. In that regard, Delaware has interfered with Olde Discount’s right under the FAA to resolution of these issues through arbitration. Therefore, in the application here of the rescission remedy of Del. Code Ann. tit. 6, § 7325(b), Delaware has created an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. at 67, 61 S.Ct. at 404.\nThe very community of interest between the state appellants and the Engelhardts implicitly demonstrates that the administrative proceedings are an obstacle to Congress’ purpose in adopting the FAA. Clearly the Engelhardts are relying on the state appellants to obtain a remedy that would frustrate the arbitration. As the appellants acknowledge, the administrative proceedings were initiated on the complaint of the Engelhardts. Indeed, the Notice of Intent issued to Olde Discount was concerned exclusively with dealings between Olde Discount and the En-gelhardts. Furthermore, Tupman filed this appeal on behalf of the Engelhardts, who are not represented by separate counsel on appeal, and were not so represented in the earlier settlement negotiations with Olde Discount. In the circumstances, the state administrative proceedings, to the extent they concern claims and liabilities between the Engelhardts and Olde Discount, are nothing other than a substitute for the arbitration.\nThe circumstance that the state appellants are not parties to the arbitration clause does not alter our result. As the Supreme Court explained in Moses H. Cone Memorial Hospital, “[u]nder the Arbitration Act, an arbitration must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.” 460 U.S. at 20,103 S.Ct. at 939. In partial reliance on Moses H. Cone, we recently upheld a district court’s eviction of a subtenant to facilitate an award arising from an arbitration between the property owner and the tenant, even though the subtenant was not a party to the arbitration. See Isidor Paiewonsky Assocs. v. Sharp Properties, Inc., 998 F.2d 145 (3d Cir.1993).\nIt is also apparent that, in any practical sense, Olde Discount cannot simultaneously arbitrate its claims against the Engelhardts and defend against the Delaware securities commissioner’s pursuit of the rescission remedy in an administrative proceeding. Notwithstanding the appellants’ statement that they will not, and cannot, prevent Olde Discount from commencing the arbitration, the appellants’ view of a possible harmonious interaction of the state and federal statutes is illusory. While in a physical sense Olde Discount could be represented in two proceedings at once, the potential for actual conflict in that scenario is manifest. If an arbitration panel decides that the Engelhardts’ claims are without merit and Olde Discount has no liability to them, while the Delaware securities commissioner concludes that the SNFS purchases must be rescinded, the results of the proceedings will be irreconcilable.\nEven if the two proceedings were to reach similar results on the merits, Olde Discount still would be deprived of its right to the presumed simplicity and efficiency of the ar-bitral forum. Thus, to the extent rescission is involved, it is impossible to fulfill the demands of both the federal and state statutes. Therefore, Delaware’s pursuit of the rescission remedy is preempted by the FAA both because Del.Code Ann. tit. 6, § 7325(b) presents an obstacle to the accomplishment of the congressional purpose of enforcing arbitration agreements, and because it is impossible to give effect to both the administrative rescission remedy and the federal right to arbitration.\nWe also reject the appellants’ contention that an administrative rescission remedy is not preempted because Gilmer sanctions “equitable relief’ by an agency despite a parallel arbitration of private claims. First, Gilmer on its facts did not address a question of equitable relief and its statements thereon are not dispositive of how the Supreme Court might resolve an actual controversy involving private arbitration and an agency’s “equitable” remedies. Second, we believe the precise statement in Gilmer, ie., “that arbitration agreements will not preclude the EEOC from bringing actions seeking class-wide and equitable relief,” — U.S. -, 111 S.Ct. at 1655, was meant to draw a distinction between private remedies available in arbitration for one employee, versus remedies available through an action of the EEOC for a group of employees. In other words, the reference in Gilmer to class-wide equitable relief apparently was directed toward a situation where the EEOC could bring its enforcement powers to bear against an employer violating the law in its dealings with numerous employees by, for example, seeking an injunction on behalf of a class of employees against future acts of age discrimination. The analog in our case would be that the Delaware Division of Securities, if convinced that Olde Discount has committed widespread violations beyond those alleged in relation to the Engelhardts’ stock purchases, is free to protect Delaware investors by imposing fines or licensing restrictions on Olde Discount, regardless of the progress or outcome of any arbitration of the Engelhardts’ claims. Thus, there is no foundation for appellants’ assertion that Gilmer establishes that the state’s interest in the “equitable” remedy of rescission should be given special exemption from standard preemption principles.\nWhile our analysis might be different if a finding of preemption were to work a substantial interference with traditional state objectives of securities law enforcement, that is not the case here. The district court did not enjoin the Delaware securities commissioner from investigating Olde Discount or from pursuing administrative remedies other than rescission of the Engelhardts’ purchases. Accordingly, Delaware may take whatever action it sees fit consonant with federal law, concerning Olde Discount’s state registration as a broker-dealer. Delaware is also free to pursue individualized remedies, including rescission, as to securities transactions not subject to arbitration agreements. Delaware therefore retains many avenues for the exercise of its proper role in dealing with alleged violations of its securities laws. Thus, federal preemption of the rescission remedy for investors who have agreed to arbitration will narrow but not eliminate the state regulators’ choices of means of enforcement of the Delaware securities laws.\nIV. ABSTENTION\nThe appellants argue, aside from the merits of the preemption question, that the district court should have abstained from granting an injunction that will interfere with Delaware’s ongoing administrative proceedings against Olde Discount. The district court concluded that the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, was not applicable to Olde Discount’s preemption claim under the FAA. We agree with the district court’s resolution. Indeed, the circumstances presented make clear that a nonfrivolous claim of FAA preemption of a state statutory remedy necessarily presents an exception to the Younger doctrine.\nYounger established that, despite the assertion of claims based on the federal constitution or federal statutes, a federal court should not enjoin pending state proceedings where three elements are present: (1) the ongoing state proceedings are “judicial” in nature; (2) the proceedings implicate important state interests; and (3) the proceedings afford an adequate opportunity to raise the federal claims. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). Nevertheless, the Supreme Court has emphasized that a court should abstain only in rare cases.\nThe doctrine of abstention ... is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in ... exceptional circumstances....\nMoses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 14, 103 S.Ct. at 936 (quotation marks omitted).\nThe Court recently reiterated the exceptional quality of abstention in New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). The Court noted that abstention is confined to rare circumstances because it runs counter to “the proposition that federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred_ ‘They cannot abdicate their authority or duty in any case in favor of another jurisdiction.’ ” Id. 491 U.S. at 359, 109 S.Ct. at 2512-13 (quoting Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S.Ct. 695, 697-98, 37 L.Ed. 546 (1893)). Those principles enunciated in New Orleans Public Service guided our approach in Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195. In Gwynedd, mindful that “a federal court has no authority to abstain from the exercise of jurisdiction that has been properly conferred,” id. at 1199, we partially reversed the district court’s dismissal of a complaint alleging federal constitutional claims concerning municipal land-use regulatory decisions that were concurrently the subject of state court and municipal zoning board proceedings.\nNotwithstanding the strict limits of abstention, the doctrine, where appropriate, forbids injunctive interference with state administrative proceedings as well as state court proceedings, though Younger itself forbade an injunction against a state criminal prosecution. In Middlesex County Ethics Committee, which upheld a district court’s refusal to enjoin a state bar disciplinary proceeding on the grounds that the New Jersey Supreme Court would review the plaintiffs federal constitutional claims, the Court made explicit that “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” 457 U.S. at 432, 102 S.Ct. at 2521. In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), the Court again endorsed Younger abstention in relation to an ongoing state administrative proceeding. In that case, a religious school sought a federal injunction on First Amendment free-exercise grounds against the state’s investigation of a sex-discrimination complaint. The Court found that the third requisite of the Younger doctrine, availability of an opportunity to raise federal claims, was provided because the school’s “constitutional claims may be raised in state-court judicial review of the administrative proceeding.” Id. at 629, 106 S.Ct. at 2724.\nIt is therefore clear that conceptually Younger abstention can apply to the situation raised by Delaware’s administrative proceedings against Olde Discount. The investigation and pending hearing by the Delaware securities commissioner is an ongoing state proceeding, “judicial” in nature, within the meaning of Younger, Middlesex County, and Dayton Christian Schools. Delaware’s proceeding also undoubtedly serves the important state interest of regulating securities transactions, insofar as such power of regulation is reserved to the states under both the Securities Act of 1933 and the Securities Exchange Act of 1934. See 15 U.S.C. §§ 77r, 78bb(a). Finally, even if the Delaware Division of Securities has reached a conclusion that its pursuit of a rescission remedy is not preempted by the FAA, under Dayton Christian Schools it would be sufficient that Olde Discount could raise its preemption arguments again in a review of the administrative proceedings by the Delaware Court of Chancery. See Del.Code Ann. tit. 6, § 7324(a).\nHowever, our conclusion that this situation formally fits within a Younger framework does not end our abstention inquiry, for Younger abstention is not always appropriate even if its elements are present. Thus, if “a genuine threat of prosecution exists, a litigant is entitled to resort to a federal forum to seek redress for an alleged deprivation of federal rights.” Wooley v. Maynard, 430 U.S. 705, 710, 97 S.Ct. 1428, 1433, 51 L.Ed.2d 752 (1977); see also Dayton Christian Schools, 477 U.S. at 626, 106 S.Ct. at 2722 (interpreting Younger to prevent injunctions against state proceedings “except in the very unusual situation that an injunction is necessary to prevent great and immediate irreparable injury”); Harman v. Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 1183, 14 L.Ed.2d 50 (1965) (stating that district court properly refused to abstain “[gjiven the importance and immediacy of the problem, and the delay inherent” in awaiting guidance from state courts). We addressed a similar situation of immediate need for intervention by a federal court in Ford Motor Co. v. Insurance Commissioner, 874 F.2d 926 (3d Cir.1989). There, various insurers brought a preemption challenge to a Pennsylvania statute that prohibited the insurers from owning interests in savings and loan institutions. We applied the counsel of Wooley v. Maynard to articulate an exception to the Younger doctrine for state civil as well as criminal proceedings, in instances where “deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.” Id. at 932.\nDelaware’s insistence upon the rescission remedy presents just such an immediate potential for irreparable harm to Olde Discount’s right under the FAA to an arbitral forum. The Delaware regulators have chosen to stand firm in their pursuit of administrative rescission despite Olde Discount’s repeated invocation of the FAA, its efforts to commence an actual arbitration with the En-gelhardts, and the district court’s suggestion that the issue of rescission could be bifurcated from the state’s determination concerning other proposed remedies.\nIndeed the very nature of arbitration demonstrates the irreparable harm Olde Discount faces, for its right to arbitration is a contractual right, sanctioned by statute, to have claims addressed in a particular forum. Thus, if the district court abstained in this case it would not simply be declining to exercise its statutorily created jurisdiction, which is the usual consequence pf abstention. Rather, it would be refusing to protect Olde Discount’s access to the forum that it and the Engelhardts contractually selected to resolve their disputes.\nFurthermore, Olde Discount’s right to arbitration cannot be satisfied if an alternate administrative forum is determining at the same time whether a claim to the identical remedy is available. The concern underlying a federal right to enforcement of arbitration agreements is a party’s entitlement to a proceeding and a forum that are, at least ideally, speedy, efficient, and simpler than litigation in the courts or before agencies. See Rodriguez de Quijas, 490 U.S. at 479-80, 109 S.Ct. at 1919; Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354. Therefore, in the context of arbitration, a litigant’s procedural right to the agreed forum is raised to a substantive right by the FAA. Accordingly, if Olde Discount were forced to address rescission of its sales to the Engelhardts in an administrative proceeding, even if it simultaneously could pursue an arbitration, it would suffer an immediate, irreparable harm to the federal right established by the FAA.\nWe find authority that Younger abstention would be inappropriate here in Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852. In Southland the Supreme Court determined to take jurisdiction over the appeal precisely because of the immediacy of the harm suffered by a party denied a right to arbitration. The California Supreme Court had held that the FAA did not preempt a California statute requiring a judicial forum for certain franchise claims, and had remanded the case to the state trial court for a disposition on the merits. Despite the remand, which arguably rendered the state court’s decision not final, the Supreme Court took jurisdiction, reasoning that “[cjontracts to arbitrate are not to be avoided by allowing one party to ignore the contract and resort to the courts. Such a course could lead to prolonged litigation, one of the very risks the parties, by contracting for arbitration, sought to eliminate.” 465 U.S. at 6-8, 104 S.Ct. at 856-57. In this case, abstention would have precisely the same consequence, i.e., it would permit the Engelhardts’ claims to be brought before the Delaware securities commissioner, thus circumventing the agreement to arbitrate. We think Southland teaches that the federal courts ought not countenance such frustration of the FAA’s mandate.\nWe also point out that abstention in this case would be difficult to justify in light of the congressional intent reflected in 9 U.S.C. § 16. That section provides that while orders compelling arbitration are not immediately appeálable, orders denying motions to compel arbitration or to stay judicial proceedings pending arbitration are immediately appealable. This dichotomy reflects the paramount importance that Congress has placed on arbitration. In effect, Congress has given the courts of appeals broad authority to ensure that district courts are not circumscribing the rights granted by the FAA in a manner contrary to the expansive enforcement of arbitration clauses that has been dictated by Congress itself and by the Supreme Court in, e.g., McMahon, Rodriguez de Quijas, and Gilmer.\nWe are mindful that generally a claim of federal, preemption, in and of itself, is not entitled to more deferential treatment than other constitutional claims in the face of an abstention challenge. The Supreme Court said as much in New Orleans Public Service:\nThere is no greater federal interest in enforcing the supremacy of federal statutes than in enforcing the supremacy of explicit constitutional guaranties, and constitutional challenges to state action, no less than preemption-based challenges, call into question the legitimacy of the State’s interest in its proceedings reviewing or enforcing that action. Yet is clear that the mere assertion of a substantial constitutional challenge to state action will not alone compel the exercise of federal jurisdiction.\n491 U.S. at 365, 109 S.Ct. at 2516.\nIn New Orleans Public Service, the Court ultimately found that the district court should not have abstained. However, the Court did not conclude that simply because the case implicated findings of the Federal Energy Regulatory Commission which preempted a decision of local rate-making authorities, a blanket exception to Younger principles was warranted. See also Ford Motor Co., 874 F.2d at 934 (“there is no absolute rule prohibiting the application of Younger abstention doctrine whenever the Supremacy Clause is invoked”).\nBut in New Orleans Public Service, the Court did not confront a collision between the normal application of Younger principles and the highly favored right to arbitration which the Court itself has developed in FAA cases from Scherk v. AlbertoCulver through Rodriguez de Quijas and Gilmer. The collision is imminent in the present case, and we must resolve it by application of the Supreme Court’s FAA cases and the Court’s recognition in Wooley v. Maynard that, even when the Younger doctrine strictly might be applicable, a threat of immediate, irreparable harm to federal rights can warrant an injunction against state proceedings. We think that where, as here, a state agency is engaged in a course of action openly inconsistent with a litigant’s rights under Section 2 of the FAA, that litigant cannot be turned away from federal court by an invocation of Younger abstention. This very narrow exception to Younger will not create difficulties in cases involving frivolous or weak claims of FAA preemption, because such claims would not meet the traditional requisites for injunctive relief and thus will not even require a district court to reach a Younger challenge.\nWe make one final point. A district court’s decision to abstain does not necessarily mean that a federal court will never consider the proffered federal claim. Rather, abstention delays the review by a federal court until a state forum has had an opportunity to pass on the issue. For example, if a criminal prosecution is claimed to violate federal free speech, free exercise, or due process rights, a defendant not satisfied by the state court’s resolution of those claims ultimately can seek a federal forum by petition for certiorari or petition for writ of habeas corpus. In most — indeed, nearly all — circumstances in which the elements of Younger abstention are present, Younger counsels that such a delay is an appropriate price to pay for the preservation of comity between the federal government and the states.\nIn the context of arbitration, however, delayed enforcement destroys the federal statutory right. It would be incongruous if abstention, merely a prudential doctrine, could have such a consequence. In our case, the district court correctly did not abstain because the Delaware regulators’ repeated rejection of Olde Discount’s FAA preemption claim already ensured that the right to arbitration would be lost, absent a federal court’s intervention. Accordingly, despite the rule of Dayton Christian Schools that a right to an ultimate state court appeal of agency action suffices to support Younger abstention, we hold that where Section 2 of the FAA provides the basis for a federal preemption claim, a district court may not abstain, but must address the merits of the FAA claim.\nV. CONCLUSION\nIn view of the aforesaid and Judge Ro-senn’s concurring opinion, we will affirm the district court’s order of September 16, 1992, and will remand the case to the district court for further proceedings.\n. In their opening brief, the appellants asserted that the district court's consideration of events that occurred during settlement negotiations was contrary to Fed.R.Evid. 408, which prohibits the admission of \"[ejvidence of conduct or statements made in compromise negotiations However, as counsel for Olde Discount has noted, the appellants have not preserved this eviden-tiary point because they did not object to the introduction of these facts before the district court. In any event, these facts are background information, helpful to an understanding of the context of the dispute; they are not critical to our disposition, as we anchor our result on legal principles.\n. Olde Discount contends that at the time of its transactions with the Engelhardts, Delaware law did not provide for a rescission remedy in proceedings concerning suspension or revocation of the registration of a broker.\n. While as a matter of convenience this section of the opinion entitled \"III. PREEMPTION” is written as if for the court, it in fact is the opinion only of Judge Greenberg.\n. We are not suggesting that an award in an arbitration proceeding would be preclusive in administrative proceedings; that issue is not presented by this appeal.\n. It is conceivable that in the case of widespread violations of uniform character, e.g., the distribution of fraudulently issued securities, individualized relief for members of a victimized class of customers might be possible notwithstanding the presence of arbitration agreements, on a theory that the violations did not arise from the particular relationship between the customer and the broker. We, of course, state no opinion on that possibility as it is not before us. In this case, the Notice of Intent was predicated on Olde Discount’s and Donohoe's alleged individual maltreatment of the Engelhardts, which the Notice described in great detail.\n. On December 7, 1992, the Division of Securities initiated a second proceeding against Olde Discount and Donohoe by reason of alleged improprieties in their dealings with other investors in SNFS stock. We are not concerned with those proceedings in this opinion.\n. Although the appellants seem not to have stressed this point before the district court, the Engelhardts’ initial purchase of 5,000 shares of SNFS stock on May 15, 1990, was before they signed the account agreement containing the arbitration clause on May 25, 1990. The district court did not take this sequence of events into account in reaching its result and neither will we as there is no issue as to the arbitrability of disputes arising from that purchase before us on this appeal. Nevertheless the district court's order of September 16, 1990, by its terms enjoins the commissioner from, pursuing a rescission remedy for the May 15, 1990 purchase of SNFS stock. Thus, we do not preclude the appellants on remand from seeking an order modifying the preliminary injunction so as to exclude that purchase.\n. The amici curiae in their brief contend that the district court’s opinion could have a major impact in \"the criminal law area\" because of an increasing tendency for courts to impose restitution as part of a sentence. They suggest that if we affirm the district court's order, the state \"could not seek nor could the court grant such relief where the defendant had entered into an arbitration agreement with his victims.” Brief at 8. We, of course, cannot rule on what the law would be in the situation the amici describe. However, it is apparent that a case involving a criminal conviction is distinguishable from that involved here: In this case the administrative proceeding was in part brought for the express purpose of obtaining a rescission remedy. On the other hand, a criminal case is brought to determine whether a defendant is criminally liable and, if so, to fix the penalty for the violation.\n. Tupman, appearing for the State at the district court's August 27, 1992 hearing, rejected any separation of the rescission question from the State's broader proceedings:\nTHE COURT: Mr. Tupman, just a comment or two. I do have a question for you:\nAside from Paragraph 42 of your notice of intent to suspend or revoke, is there any reason why the public regulatory part of the Commission's prosecution can’t be bifurcated from the [rescission] remedy ... ? MR. TUPMAN: .... [S]ince the statute and the General Assembly do clearly contemplate that all of this will be resolved in a single administrative proceeding, I don’t think that it is — serves any interest, since, as we contend there’s no impairment of the arbitration agreement. If they want to go to arbitration, they can go to arbitration. I can’t stop them.\nSupplemental App. at 92-93.\n. In its opinion, the district court cited Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989), with respect to the general showing that must be made by an applicant for a preliminary injunction to obtain relief. The appellants' brief is not cast in terms of whether the criteria have been met but instead focuses on the preemption and abstention issues. The brief of the amici, however, does discuss the Instant Air Freight criteria. In these circumstances, we will not discuss these criteria in detail but simply will indicate that in view of our conclusions we agree that the district court properly issued the preliminary injunction.", "type": "majority", "author": "GREENBERG, Circuit Judge."}, {"text": "ROSENN, Circuit Judge,\nconcurring.\nAlthough I agree with Judge Greenberg’s conclusion that the Delaware Securities Commissioner cannot seek rescission as a remedy under 6 Del.C. § 7325(b), I write separately because I arrive at this result by way of contract law rather than the doctrine of preemption.\nWhen Congress enacted the Federal Arbitration Act (FAA), it rejected the traditional hostility of the courts towards arbitration as a remedy in civil disputes and emphasized a strong federal policy in favor of arbitral dispute resolution in cases where a contract exists evidencing a transaction involving commerce. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). In Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), a case similar to the one sub judice in that it involved a dispute over a purchase of securities through a broker-dealer, the Court held that the FAA requires district courts to compel arbitration of pendent arbitrable claims, even where the result would be the possible inefficient maintenance of separate proceedings in different forums. The Court observed:\nThe preeminent concern of Congress in passing the Act was' to enforce private agreements into which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate ... at least absent a countervailing policy manifested in another federal statute. By compelling arbitration of state-law claims, a district court successfully protects the contractual rights of the parties and their rights under the Arbitration Act.\nId. at 221, 105 S.Ct. at 1242-43.\nSignificantly, the Court dwelt upon the necessity of enforcing the contractual rights of the parties under the agreement to arbitrate, also observing that “arbitration is not a judicial proceeding.” Id. at 222, 105 S.Ct. at 1243 (citing McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984)). Thus, the right of a party to enforce an arbitration agreement under the FAA depends not upon the federal doctrine of preemption, but upon the traditional duty of the courts to protect the contractual rights of the parties.\nIn the present case, Olde’s investors’ account agreement with the Engelhardts contained a provision stating:\nYou agree to submit any and all controversies or claims arising out of this agreement to arbitration to be conducted according to the rules and procedures of the New York Stock Exchange, Inc. (NYSE) or the National Association of Securities Dealers, Inc. (NASD) as you may elect_\nThe agreement further provides, “The parties are waiving their right to seek remedies in court, including the right to a jury trial.” Recently, in Gilmer v. Interstate/Johnson Lane Corp., — U.S. —, —, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991) (citations omitted), the United States Supreme Court stated:\nIt is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.... [B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.\nTherefore, Olde and the Engelhardts lawfully bound themselves by the provisions of the agreement to arbitrate claims arising out of their securities transactions.\nAs noted by Judge Greenberg, section 7325’s remedy of rescission would interfere with the contractually created arbitration agreement in this case. To the extent that the Engelhardts attempted an “end run” around the terms of the arbitration agreement by seeking relief in a state administrative proceeding, the district court properly restrained them. Federal courts will not “permit a party to a contract to circumvent an arbitration clause by commencing litigation in a state court.” In re Mercury Constr. Corp., 656 F.2d 933, 941 (4th Cir.1981).\nFinally, the mere involvement of an administrative agency in the enforcement of a statute is not sufficient to preclude arbitration. For example, the Securities Exchange Commission is heavily involved in the enforcement of the Exchange Act of 1934 and the Securities Act of 1938, but we have held that claims under both of these statutes may be subject to compulsory arbitration. See McMahon; Rodriguez de Quijas.\nGilmer, — U.S. at -, 111 S.Ct. at 1653.\nMy disagreement with Judge Greenberg stems from my belief that the district court’s injunction should not be based on preemption doctrine, but rather the law of contracts. The fundament of Olde’s right to settle the Engelhardts’ demand for rescission of the securities transaction by arbitration is the arbitration provision contained in the inves-’ tors’ account contract, not the application of the doctrine of preemption.\n“[FJederal pre-emption of state law can occur in three types of situations: where Congress explicitly pre-empts state law, where pre-emption is implied because Congress has occupied the entire field and where pre-emption is implied because there is an actual conflict between federal and state law.” Pokorny v. Ford Motor Co., 902 F.2d 1116, 1120 (3d Cir.1990) (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988)), cert. denied, 498 U.S. 853, 111 S.Ct. 147, 112 L.Ed.2d 113 (1990).\nThe FAA “contains no express pre-emptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration.” Volt Info. Sciences, Inc. v. Stanford University, 489 U.S. 468, 477, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989). Nor has Congress occupied the entire field of securities regulation. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 135, 94 S.Ct. 383, 393-94, 38 L.Ed.2d 348 (1973). The FAA, therefore, preempts a state securities law only “to the extent that it actually conflicts with federal law.” Volt, 489 U.S. at 477, 109 S.Ct. at 1255.\nIn the case sub judice, however, the federal law and the state law do not conflict. The Delaware Statute does not even deal with arbitration, which is the subject of the FAA. Rather, the conflict in this case arises between the state statute, as it relates to rescission, and the parties’ contractually created right to arbitrate disputes relating to the securities transaction. The FAA becomes relevant only as it protects the enforcement of the contractual right to arbitrate. Thus, there is no conflict for preemption purposes between a state law and a federal law in this case, but rather a partial remedial conflict between a state law and a contract. Cf. Ostemeck v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 841 F.2d 508, 510 (state statute precluding enforcement of an agreement to arbitrate conflicts with FAA).\nTherefore, for the foregoing reasons I would affirm the district court’s order enjoining the Delaware Securities Commissioner from pursuing the remedy of rescission of the claims which are subject to the arbitration agreement between Olde and the Engel-hardts. I agree with Judge Greenberg that the district court was not required to abstain from enjoining the Commissioner’s pursuit of rescission.\n. The agreement to arbitrate cannot usurp a state's public interest in enforcing its criminal laws for securities transactions violations or its laws enacted under its police power to protect the public interest generally. \"The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole.”- Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986). Therefore, the district court was correct not to enjoin the Commissioner from seeking other penal remedies against Olde besides rescission.", "type": "concurrence", "author": "ROSENN, Circuit Judge,"}, {"text": "NYGAARD, Circuit Judge,\ndissenting.\nI disagree with the court’s conclusion that the Federal Arbitration Act, 9 U.S.C. § 2, preempts 6 Del.Code Ann. § 7325(b) for essentially the same reasons articulated in Judge Rosenn’s concurrence. There is no conflict between federal and state law because, as Judge Rosenn notes, the FAA protects the enforcement of the contractual right to arbitrate. Where there has been an allegation of securities fraud, section 7325(b) empowers the Delaware Securities Commissioner to seek rescission at his discretion and in the interest of the public; it says nothing about the validity of the arbitration agreement or the arbitrability of the dispute between Olde Discount and the Engelhardts. Since section 7325(b) does not “require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration,” Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1 (1984), the FAA does not preempt the Delaware statute.\nI depart from the reasoning of the concurrence, however, to the extent it concludes that the Engelhardts have the capacity to contract away under Delaware law the Commissioner’s authority to institute administrative proceedings and to seek remedies against securities firms doing business in Delaware. The essence of Olde Discount’s argument is that there is no distinction between the Engelhardts’ civil suit in their own interest to seek a compensatory award and the Commissioner’s administrative actions in the public interest to seek appropriate equitable or punitive measures. This argument is unpersuasive in light of the statutory scheme.\nThe Delaware Securities Act was enacted “to prevent the public from being victimized by unscrupulous or overreaching broker-dealers, investment advisers or agents in the context of selling securities or giving investment advice, as well as to remedy any harm caused by securities law violations.” 6 Del. Code Ann. § .7301(b) (emphasis added). The Commissioner administers the statute and serves this policy. Among other things, he may “deny, suspend or revoke any registration if he finds that the order is in the public interest,” and he may in his discretion bring an action “to temporarily restrain or to enjoin the acts or practices ... [as well as seek] such other ancillary relief as is in the public interest-” Id. §§ 7316(a), 7320 (emphasis added). In section 7325(b), the Delaware legislature gave the Commissioner the exclusive power to bring administrative proceedings in which he may order the violator “to pay restitution and costs (or to rescind the transaction or transactions and pay costs) if the Commissioner- finds it in the public interest. ... ” (Emphasis added.) And in section 7323(a), the legislature also gave “the person” who is a victim of securities fraud a nonexclusive, private cause of action in law or equity.\nThus, the Delaware statutory scheme makes clear that the Commissioner is not a surrogate for a plaintiffs attorney, but is a public official .who administers the state’s blue sky laws “in the public interest” and is endowed with broad enforcement and rule-making powers. See Blinder, Robinson & Co. v. Bruton, 552 A.2d 466, 475 (Del.1989) (“The Commissioner has discretion to impose any penalty deemed necessary to protect the public interest and further the Act’s prophylactic purpose.”). Although the Engelhardts’ and the Commissioner’s suits arise from the same transaction, their respective right or power to sue arises from two separate and distinct statutory provisions.\nThe arbitration agreement between the Engelhardts and Olde Discount provides that the Engelhardts must “submit any and all controversies or claims arising out of this agreement to arbitration.” It also provides, “The parties are waiving their right to seek remedies in court, including the right to a jury trial.” Under the FAA and this arbitration agreement, there is no doubt that the Engelhardts cannot enforce a claim for legal damages or equitable relief under section 7323(a) in a judicial forum. But that is not at issue in this appeal because nothing in the Delaware laws precludes the Engelhardts and Olde Discount from arbitrating.\nHere, Olde Discount contends, and the opinion of the court agrees, that the arbitration agreement, between it and the Engel-hardts precludes the Commissioner, acting under the authority of the Delaware legislature, from seeking appropriate remedies and sanctions in the public interest if the Engel-hardts have also asked for the “same” relief in their civil complaint. Thus, while this case concerns rescission as a remedy, had the Engelhardts sought injunctive relief as well as money damages in arbitration, there is no reason under the court’s opinion why these private parties could not have also contracted away the Commissioner’s authority under section.7320 to seek an injunction against Olde Discount.\nThe Commissioner cannot be bound by an agreement to which he neither agreed nor was a party. One cannot bargain away that which one does not possess; since the power to sue under section 7325(b) and seek appropriate equitable remedies on behalf of the State of Delaware and in the public interest belongs exclusively to the Commissioner, that power cannot be compromised by an agreement between private individuals. Cf. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19-21, 103 S.Ct. 927, 939, 74 L.Ed.2d 765 (1983) (in a multiparty/claim case, arbitration agreement will be enforced as to those parties and claims subject to the agreement despite piecemeal litigation in the arbitral and judicial forums). Further, the Commissioner’s authority to sue and seek remedies exists independently of a plaintiffs right to sue and thus is not derivative of the Engelhardts’ rights. See 6 Del. Code Ann. § 7319 (“The Commissioner in his discretion may make such public or private investigations within or outside of this State as he deems necessary_”). See also Gilmer v. Interstate/Johnson Lane Corp., — U.S. -, -, 111 S.Ct. 1647, 1653, 114 L.Ed.2d 26 (1991) (“In any event, the EEOC’s role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA ‘from any source,’ and it has independent authority to investigate age discrimination”). Cf. Isidor Paiewonsky Assocs. v. Sharp Properties, Inc., 998 F.2d 145 (3d Cir.1993) (a subtenant who was not a party to an arbitration agreement was bound by the conclusions of the arbitrator because the subtenant and tenant are in privity and thus the subtenant’s rights are derivative of the tenant’s under traditional landlord-tenant laws).\nThe argument that section 7325(b) is “preempted” by the FAA or that the Commission is “contractually bound” by the arbitration agreement rests on the unsound assumption that legal damages by the Engel-hardts and rescission sought by the Commissioner in the public interest are in essence the same remedies. In Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), although regulations provided that a landlord could not be required to make a tender of illegally collected rent if the suit was brought by any person who had commenced an action against the defendant under Section 205(e) of the Emergency Price Control Act of 1942, a federal agency brought suit against the landlord and sought restitution of illegally collected rent under the authority of § 205(a) of the statute. The Supreme Court considered whether a federal district court had jurisdiction, in an enforcement proceeding brought by a federal agency under § 205(a), to order restitution of illegally collected rents. The Court held that it did, and reasoned:\nIt is' true that § 205(e) authorizes an aggrieved purchaser or tenant to sue for damages on his own behalf.... To the extent that damages might properly be awarded by a court of equity in the exercise of its jurisdiction under § 205(a), § 205(e) supersedes that possibility and provides an exclusive remedy relative to damages. It establishes the sole means whereby individuals may assert their private right to [legal] damages_ Moreover, a court giving relief under § 205(e) acts as a court of law rather than as a court of equity. But with the exception of damages, § 205(e) in no way conflicts with the jurisdiction of equity courts under § 205(a) to issue whatever “other orders” may be necessary to vindicate the public interest, to compel compliance with the Act and to prevent and undo inflationary tendencies. •\nRestitution, which lies within that equitable jurisdiction, is consistent with and differs greatly from the damages and penalties which may be awarded under § 205(e). When the Administrator seeks restitution under § 205(a) he does not request the court to award statutory damages to the purchaser or tenant or to pay to such person part of the penalties which go to the United States treasury in a suit by the Administrator under § 205(e). Rather he asks the court to act in the public interest by restoring the status quo and ordering the return of that which rightfully belongs to the purchaser or tenant. Such action is within the recognized power and within the highest tradition of a court of equity. Thus it is plainly unaffected by the provisions of § 205(e).\n328 U.S. at 399-403, 66 S.Ct. at 1090-91 (emphasis added and citations omitted). Thus, legal damages and equitable relief, such as restitution and rescission, are different forms of relief, serving different interests and arising from different powers of the court. Even if an arbitrator decides that the Engelhardts are not entitled to legal damages, that decision neither conflicts with nor precludes a court of equity from granting the remedy of rescission to the Engelhardts in the interest of the public.\nThe Supreme Court recognized this difference in the arbitration context. In Gilmer, the Supreme Court considered whether a claim under the Age Discrimination in Employment Act of 1967 (ADEA) can be subject to arbitration under the FAA. The Court held that ADEA claims were arbitrable. The Court found unpersuasive the argument that arbitration would undermine the role of the EEOC in enforcing the ADEA. It reasoned, “An individual ADEA claimant subject to an arbitration agreement will still be free to file a charge with the EEOC, even though the claimant is not able to institute a private judicial action.” — U.S. at -, 111 S.Ct. at 1663. Furthermore, “it should be remembered that arbitration agreements will not preclude the EEOC from bringing actions seeking class-wide and equitable relief.” Id. — U.S. at -, 111 S.Ct. at 1655 (emphasis in original). Equitable relief includes such remedies as injunction and rescission. Porter, 328 U.S. at 399-403, 66 S.Ct. at 1090-91.\nI believe that the opinion of the court unlawfully transfers the authority vested in the Commissioner to private parties. Thus, the boundaries of what the Commissioner or any other agency with enforcement powers can or cannot do is not defined by statute, but is limited by the agreements of private individuals. I would hold that since section 7325(b) of the Delaware Securities Act expressly provides that the Commissioner may seek appropriate equitable relief against a violator of the state’s securities laws, he is not bound by a private arbitration agreement, nor need he refrain from seeking rescission in the public interest simply because a private party agreed to seek legal damages in an arbitral forum rather than a court of law. I therefore respectfully dissent.", "type": "dissent", "author": "NYGAARD, Circuit Judge,"}, {"text": "SUR PETITION FOR REHEARING\nAug. 26, 1993.\nBefore: SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and ROSEN.N, Circuit Judges.\nThe petition for rehearing filed by the appellants W. Michael Tupman, Richard W. Hubbard, Eugene H. Engelhardt, and Carol D. Engelhardt in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the court in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judge Nygaard would grant rehearing by the court in banc for the reasons set forth in his dissenting opinion limited to the preemption issue.", "type": "rehearing", "author": null}], "attorneys": ["Richard E. Fairbanks, Jr. (argued), Chief of Appeals Div., Loren C. Meyers, Deputy Atty. Gen., DE Dept, of Justice, Wilmington, DE, for appellants.", "James S. Green, Duane, Morris & Heckscher, Wilmington, DE, Robert P. Bramnik (argued), Thomas P. Fitzgerald, Michael I. Behn, Altheimer & Gray, Chicago, IL, for appellee.", "Joseph C. Long, 300 Timberdell Road, Norman, OK, for amici curiae North American Securities Administrators Ass’n, Inc. and Nat. Consumers League."], "corrections": "", "head_matter": "OLDE DISCOUNT CORPORATION v. W. Michael TUPMAN, and as Deputy Attorney General of the State of Delaware; Richard W. Hubbard, Securities Commissioner of the State of Delaware; Eugene H. Engelhardt and Carol D. Engelhardt, W. Michael Tupman, individually and as Deputy Attorney General of the State of Delaware; Richard W. Hubbard, Securities Commissioner of the State of Delaware; Eugene H. Engelhardt, Carol D. Engelhardt, Appellants.\nNo. 92-7557.\nUnited States Court of Appeals, Third Circuit.\nArgued June 10, 1993.\nDecided July 30, 1993.\nAs Amended Aug. 5, 1993.\nSur Petition for Rehearing Aug. 26, 1993.\nRichard E. Fairbanks, Jr. (argued), Chief of Appeals Div., Loren C. Meyers, Deputy Atty. Gen., DE Dept, of Justice, Wilmington, DE, for appellants.\nJames S. Green, Duane, Morris & Heckscher, Wilmington, DE, Robert P. Bramnik (argued), Thomas P. Fitzgerald, Michael I. Behn, Altheimer & Gray, Chicago, IL, for appellee.\nJoseph C. Long, 300 Timberdell Road, Norman, OK, for amici curiae North American Securities Administrators Ass’n, Inc. and Nat. Consumers League.\nBefore: GREENBERG, NYGAARD and ROSENN, Circuit Judges."}	GREENBERG	NYGAARD	ROSENN	2	4	1	1	1	1	1 F.3d 202	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: OLDE DISCOUNT CORPORATION v. W. Michael TUPMAN, and as Deputy Attorney General of the State of Delaware; Richard W. Hubbard, Securities Commissioner of the State of Delaware; Eugene H. Engelhardt and Carol D. Engelhardt, W. Michael Tupman, individually and as Deputy Attorney General of the State of Delaware; Richard W. Hubbard, Securities Commissioner of the State of Delaware; Eugene H. Engelhardt, Carol D. Engelhardt, Appellants\nCourt: United States Court of Appeals for the Third Circuit\nDate decided: 1993-07-30\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nGREENBERG, Circuit Judge.\nThis case presents a novel question of the relationship between a contracting party’s right to enforcement of an arbitration agreement under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA), and a state’s interest in pursuing a remedy of rescission in an administrative proceeding. The district court enjoined the Delaware securities commissioner from seeking rescission on behalf of two investors who had entered into a predispute arbitration agreement. 805 F.Supp. 1130. We will affirm the district court’s order. Judge Greenberg votes to affirm on the grounds that the FAA preempts Delaware’s rescission remedy in these circumstances and this opinion reflects the reasons why he has reached this conclusion. Judge Rosenn votes to affirm on the ground that the rescission remedy is barred by reason of contract law as set forth in his separate concurring opinion. Judge Ny-gaard dissents on this issue for the reasons set forth in his separate opinion. We unanimously hold that this claim, i.e., that a state statute is preempted to the extent it authorizes relief in conflict with rights secured by the FAA, necessarily falls within an exception to the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).\nI. BACKGROUND\nAppellee Olde Discount Corporation, a securities broker-dealer, is a Michigan corporation with its principal place of business in Detroit and numerous offices throughout the United States. Olde Discount is registered in Delaware as a broker-dealer and has an office in Wilmington. Appellants Eugene and Carol Engelhardt are former customers of Olde Discount. The Engelhardts, then Michigan residents, opened a brokerage account with Olde Discount’s Detroit office in 1983. When they moved to Wilmington in 1986, the Engelhardts transferred their account to its Wilmington office.\nOlde Discount is primarily, as its name implies, a discount broker. It also makes a market in a few selected stocks; at the times relevant to this action, Second National Federal Savings Bank (SNFS) was among those stocks. Allegedly at the instance of Olde Discount’s Wilmington office manager, Michael Donohoe, the Engelhardts purchased 6,000 shares of SNFS stock on May 15,1990. On May 25, 1990, the Engelhardts signed an account agreement with Olde Discount that required them “to submit any and all controversies or claims arising out of the relationship established by this agreement to arbitration to be conducted according to the rules and procedures of the New York Stock Exchange, Inc. (NYSE) or of the National Association of Securities Dealers, Inc. (NASD).... ” Investors Account Agreement, ¶ 18, J.A. at 53. Also on May 25,1990, the Engelhardts provided Olde Discount with a “customer preference profile” that expressed their interest in “aggressive” investments for the purposes of “growth” and “speculation.” J.A. at 48.' On June 6, 1990, the Engelhardts purchased an additional 5,000 shares of SNFS. Thus, by early June 1990, the Engelhardts had purchased 10,000 shares of SNFS. These purchases cost the Engelhardts over $50,000.\nThe price of SNFS stock declined steadily during the summer and fall of 1990, as the bank suspended its dividend and came under the scrutiny of federal regulators because it failed to fulfill capital requirements. The Engelhardts, apparently because of their bad experience with this investment, terminated their Olde Discount brokerage account and removed their SNFS shares from Olde Discount on September 6, 1990. By then the Engelhardts’ SNFS stock had declined • in value to approximately $32,500.\nNearly a year later, in July 1991, the En-gelhardts first contacted the Division of Securities of the Delaware Department of Justice with a complaint about their purchase of SNFS stock from Olde Discount. The Division, primarily through appellant Michael Tupman, a Delaware Deputy Attorney General responsible for securities law enforcement, investigated the Engelhardts’ complaint. In early June 1992, after the Division substantially- had completed its investigation, it sent Olde Discount a draft “Notice of Intent to Suspend or Revoke Broker-Dealer Registration.” The draft Notice of Intent alleged that Olde Discount and its agent Donohoe had engaged in fraudulent and unethical practices in connection with the sales of SNFS stock to the Engelhardts, in violation of Del.Code Ann. tit. 6, §§ 7303(2) and 7316(a) (1974 & Supp.1992).\nIn particular, the Notice asserted that Do-nohoe repeatedly had urged the Engelhardts to invest in SNFS and had made false statements of material fact about the stock. Further, the Notice alleged that Olde Discount had not kept the Engelhardts advised of information that could have been pertinent to their decision whether to hold or sell the stock. The Notice indicated that the Delaware securities commissioner sought the remedies of suspension or revocation of Olde Discount’s broker-dealer registration and imposition of fines; and, central to the preemption question in this case, that the commissioner would seek rescission of the SNFS stock transactions between Olde Discount and the Engelhardts, as authorized by Del. Code Ann. tit. 6, § 7325(b). The Notice, however, did not suggest that either Olde Discount or Donohoe had violated any duty to customers other than the Engelhardts; the Notice thus proposed individual relief for the Engelhardts only.\nDuring the summer of 1992, the Division of Securities and Olde Discount tried to negotiate a settlement of the proposed charges. Ultimately Olde Discount, desiring to bring the settlement negotiations to fruition, offered to pay $15,000 to the Delaware Investors Protection Fund and to pay $20,375 to the Engelhardts. The proposed payment to the Engelhardts represented the difference between the total price they had paid for the SNFS stock, and its value of approximately $32,500 on September 6, 1990, when the En-gelhardts had closed their brokerage account with Olde Discount.\nThe appellants do not dispute that Tupman agreed in principle to accept $15,000 in partial settlement of the Division’s proposed charges. Nevertheless, Tupman insisted that Olde Discount also must rescind the Engelhardts’ SNFS purchases. This demand was not acceptable to Olde Discount, which apparently had consistently maintained that the securities commissioner could not properly pursue a rescission, because Olde had a contractual right to arbitrate the Engelhardts’ claims. Tupman, however, viewed Olde Discount’s claims of its contractual right to arbitration and of the federal preemption of Delaware’s rescission remedy as “baffling.” See Tupman’s August 7, 1992 letter to Olde Discount, J.A. at 111. He consequently would not abandon the demand that it rescind the SNFS sales to the Engel-hardts.\nOlde Discount determined to pursue its right to arbitration, and served the Engel-hardts with a demand to arbitrate on August 5, 1992. Shortly thereafter, on August 17, 1992, Tupman issued the Notice of Intent in substantially the same form as the June 1992 draft, i.e., including the demand for rescission of the Engelhardts’ SNFS transactions. Notice of Intent, ¶43, J.A. at 139. The Notice provided that Olde Discount would be entitled to a hearing before the Delaware securities commissioner if it made a written request within 30 days. However, if Olde Discount did not request a hearing, the allegations would be deeméd admitted and the commissioner would issue a final order of suspension, revocation, rescission, fine and/or costs.\nOn August 25, 1992, Olde Discount commenced this action against Tupman, Delaware Securities Commissioner Richard W. Hubbard, and the Engelhardts. The complaint’s four counts alleged that: (1) the rescission remedy of Del.Code Ann. tit. 6, § 7325(b), as applied by the defendants, circumvents Olde Discount’s rights under the FAA and thus violates the Supremacy Clause; (2) the application of Del.Code Ann. tit. 6, § 7325(b), to Olde Discount’s transactions with the Engelhardts in SNFS stock would constitute an ex post facto punishment in violation of the Due Process Clause; (3) Tupman and Hubbard had violated 42 U.S.C. § 1983 by employing the Delaware securities laws in a manner that impaired Olde Discount’s federal constitutional and statutory rights; and (4) Tupman’s actions constituted a common law abuse of process. Olde Discount sought an injunction, a declaratory judgment, compensatory damages, and punitive damages.\nOlde Discount most immediately was concerned with preserving its federal right to arbitration of the Engelhardt dispute. It therefore vigorously pressed for a preliminary injunction to halt further proceedings before the Delaware Division of Securities. After expedited briefing and argument, the district court, by order dated September 16, 1992, accompanied by a comprehensive memorandum opinion, partially granted Olde Discount’s motion for preliminary relief, enjoining “the Securities Commissioner[ ] [from pursuing] a rescission action under [Del.Code Ann. tit. 6, § 7325(b) ] on behalf of defendants Engelhardt, individual investors who are parties to a predispute arbitration agreement with plaintiff, which agreement is enforceable under the Federal Arbitration Act, 9 U.S.C. § 2.” In its opinion, the district court determined that the FAA preempted the Delaware rescission remedy. Furthermore, the district court declined to abstain under Younger from issuing injunctive relief. Tupman, Hubbard, and the Engelhardts jointly appealed from the September 16,1992 order, contending that the district court “erred as a matter of law” both in declining to abstain under Younger and in holding that the rescission remedy was preempted.\nII. JURISDICTION AND STANDARD OF REVIEW\nBefore turning to the merits of the preemption and abstention issues, we must resolve a challenge to our jurisdiction raised by Olde Discount. It argues that the appeal is from an interlocutory order “directing arbitration to proceed,” which is specifically nonappealable under 9 U.S.C. § 16(b)(2). However, contrary to Olde Discount’s characterization, the district court’s order in this case is not an order “directing arbitration to proceed.” Rather, the district court directed the Delaware securities commissioner not to pursue a remedy of rescission in the administrative proceedings. Thus, the order falls within the usual rule of 28 U.S.C. § 1292(a)(1), which permits immediate appeals from “[i]nterlocutory orders ... granting [or] refusing ... injunctions.”\nOur review of a determination regarding preliminary injunctive relief is limited to examining whether the district court abused its discretion, committed an obvious error in applying the law, made a clear mistake in considering the proof, or improperly applied the law to the facts. Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242, 1250 n. 9 (3d Cir.1992); Philadelphia Marine Trade Ass’n v. Local 1291, Int’l Longshoremen’s Ass’n, 909 F.2d 754, 756 (3d Cir.1990), cert. denied, 498 U.S. 1083, 111 S.Ct. 953, 112 L.Ed.2d 1041 (1991). This standard requires a plenary review here, as the appellants contend that the district court erred as a matter of law in entering the injunction. We also exercise plenary review over the abstention question because we are resolving that issue by making a legal determination. General Glass Indus. Corp. v. Monsowr Medical Found., 973 F.2d 197, 200 (3d Cir.1992); Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1199 (3d Cir.1992).\nIII. PREEMPTION\nThe Supremacy Clause allows Congress to preempt state legislation if it so intends. See United States Dep’t of Treasury v. Fabe, — U.S. -, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993). The development of the law of federal preemption has defined three ways of discerning a congressional intent to preempt state law: express or explicit preemption, implied preemption, or “actual conflict” preemption. The Supreme Court thus has differentiated among the three types of preemption:\nCongress explicitly may define the extent to which its enactments pre-empt state law.... In the absence of explicit statutory language, however, Congress implicitly may indicate an intent to occupy a given field to the exclusion of state law. Such a purpose properly may be inferred where the pervasiveness of the federal regulation precludes supplementation by the states, where the federal interest in the field is sufficiently dominant, or where ‘the object sought to be obtained by the federal law and the character of obligations imposed by it ... reveal the same purpose’.... Finally, even where Congress has not entirely displaced state regulation in a particular field, state law is pre-empted when it actually conflicts with federal law. Such a conflict will be found ‘ “when it is impossible to comply with both state and federal law ... or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress ....”’\nSchneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300, 108 S.Ct. 1145, 1150-51, 99 L.Ed.2d 316 (1988) (citations omitted).\nThe preemption claim before us is that the FAA demands enforcement of an agreement to arbitrate which cannot be abrogated by a state agency’s pursuit of an administrative remedy that would duplicate the .remedy sought in an arbitration. Section 2 of the FAA, 9 U.S.C. § 2, directs the enforcement of arbitration agreements as broadly as Congress’ powers under the Commerce Clause permit:\nA written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.\nOlde Discount contends that the FAA’s directive compels enforcement of the arbitration clause of the Engelhardts’ account agreement. Thus, if the Delaware securities commissioner pursues rescission in the administrative proceeding, Olde Discount’s federal right to arbitration would be impaired, as the merits of the claim that the arbitration agreement reserves for an arbitral forum will be resolved administratively.\nYet it is clear that the FAA does not explicitly preempt any particular remedy that might be sought in state administrative proceedings. Nor does the FAA entirely occupy the field of securities regulation so as to give rise to implied preemption; to the contrary, both the Securities Act of 1933 and the Securities Exchange Act of 1934 specifically preserve the traditional rights of the states to regulate securities transactions within their own jurisdictions. See, e.g., 1933 Act, 15 U.S.C. § 77r (“[njothing in this sub-chapter shall affect the jurisdiction of the securities commission ... of any State or Territory ... over any security or any person”); 1934 Act, 15 U.S.C. § 78bb(a) (“[njothing in this chapter shall affect the jurisdiction of the securities commission ... of any State over any security or any person insofar as it does not conflict with the provisions of this chapter”). In fact the FAA is not concerned in particular with securities regulation, as 9 U.S.C. § 2 deals generally with contracts involving commerce. Therefore, to preserve its right to a meaningful arbitral forum Olde Discount relies on the third type of preemption, “actual conflict” preemption.\nThere can be “actual conflict” preemption in two circumstances, either where it is impossible to comply with the 'conflicting demands of federal and state statutes, or where the state law is an “obstacle” to the fulfillment of the congressional purposes embodied in the federal law. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963) (holding federal regulation concerning maturity of avocados did not preempt California regulation, where it was not impossible for growers to comply with both regulations); Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941) (holding federal Alien Registration Act-preempted Pennsylvania Alien Registration Act because state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”); Pennsylvania Medical Soc’y v. Marconis, 942 F.2d 842, 848 (3d Cir.1991) (holding Pennsylvania statute governing limited aspects of Medicare billing not preempted by federal Medicare Act because state statute did not create obstacle to fulfillment of Congress’ objectives). As our analysis of the interaction between the Delaware administrative rescission remedy and Olde Discount’s arbitration agreement with the Engelhardts will make clear, both factors indicating conflict preemption, conflicting statutory demands and an obstacle to Congress’ purposes, are present in this case.\nThe context of this preemption claim, i.e., the preservation of a federal right to an arbitral forum, is critical. At one time other substantive and procedural rights of parties were thought to outweigh a right to arbitration. See Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953) (stating Securities Act of 1933 precluded waiver of judicial forum, rendering arbitration agreement invalid). But that time is no more. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (overruling Wilko v. Swan). The Supreme Court unstintingly has promoted a favorable climate for arbitration through vigorous enforcement of the FAA over the last 20 years. The gradual erosion of the principles of Wilko v. Swan began with the 1974 decision of Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270, which held that a claim under the Securities Exchange Act of 1934 would be arbitrable in the distinctive context of an international business transaction. The international character of the dispute was also an important consideration in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), which upheld an order compelling submission of Sherman Act claims to arbitration in Japan. More generally, Mitsubishi noted that there is “no warrant in the Arbitration Act for implying in every contract within its ken a presumption against arbitration of statutory claims.” Id. at 625, 105 S.Ct. at 3353.\nThe Court moved beyond the specialized international context and enforced arbitration of 1934 Act claims and RICO claims, pursuant to a clause in a standard brokerage agreement, in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). Shortly thereafter, the Court resolved the inconsistency between McMahon and Wilko by expressly overruling Wilko in Rodriguez de Quijas. Two Terms later, the Court extended the ascendancy of arbitration beyond commercial disputes to age-discrimination claims in Gilmer v. Interstate/Johnson Lane Corp., — U.S. -, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), which rejected the contention that the involvement of an agency, there the Equal Employment Opportunity Commission, in a scheme of enforcement created any impediment to the private arbitration of the claims arising in a particular case.\nTwo aspects of the development of the federal right to arbitration that we have traced are particularly noteworthy here. First, the arbitration of securities disputes now is not only permitted, but favored, under federal law, according to the line of decisions culminating in McMahon and Rodriguez de Quijas. See also Osterneck v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 841 F.2d 508 (3d Cir.1988) (stating FAA preempts provision of Pennsylvania Securities Act purporting to preclude enforcement of agreements to arbitrate state law securities claims). Second, there is no longer any doubt that statutory claims are arbitrable, and the existence of an enforcing agency, as in Gilmer, does not interfere with the arbi-trability of individual claims. Similarly, it is clear that state statutory claims, as well as federal statutory claims, are subject to the federal right to an arbitral forum. See Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (holding FAA preempts California statutory provision requiring judicial forum for claims under California Franchise Investment Law); Osterneck v. Merrill Lynch, 841 F.2d at 512-13.\nThus, the claims that the Delaware Division of Securities is pursuing on behalf of the Engelhardts, i.e., claims of fraudulent dealings in violation of Del.Code Ann. tit. 6, § 7303, certainly would be subject to arbitration if pursued by the Engelhardts themselves. See Del.Code Ann. tit. 6, § 7323 (creating private right of action for securities fraud). However, the appellants argue that for preemption purposes we must distinguish between the advancement of essentially identical claims on the basis of whether their proponent is a state agency or a private litigant. The appellants contend that the state’s enforcement action implicates the public interest, and not simply the rights of the Engelhardts. Further, the appellants cite Gilmer for the proposition that “arbitration agreements will not preclude [an administrative agency] from bringing actions seeking class-wide and equitable relief.” — U.S. at -, 111 S.Ct. at 1655. In the appellants’ view, the agency’s pursuit of “equitable relief’ sanctioned in Gilmer should include the remedy of rescission of specific trades of securities sought in this case. The appellants view the rescission remedy as an integral component of the state’s regulation of securities transactions which, they argue, should not be weakened by the application of federal preemption.\nHowever, we think the rescission remedy as applied here necessarily would render Olde Discount’s right to arbitration meaning: less. The particular remedy therefore must fall before the conflicting right to an arbitral forum granted by the FAA. The FAA’s fundamental purpose was to create “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). “In enacting § 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” Southland Corp. v. Keating, 465 U.S. at 10, 104 S.Ct. at 858. Yet the Delaware Division of Securities claims that it must be permitted to adjudicate administratively the very same questions regarding Olde Discount’s sale of SNFS stock to the Engelhardts, that the Engel-hardts themselves could pursue only within an arbitration. In that regard, Delaware has interfered with Olde Discount’s right under the FAA to resolution of these issues through arbitration. Therefore, in the application here of the rescission remedy of Del. Code Ann. tit. 6, § 7325(b), Delaware has created an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. at 67, 61 S.Ct. at 404.\nThe very community of interest between the state appellants and the Engelhardts implicitly demonstrates that the administrative proceedings are an obstacle to Congress’ purpose in adopting the FAA. Clearly the Engelhardts are relying on the state appellants to obtain a remedy that would frustrate the arbitration. As the appellants acknowledge, the administrative proceedings were initiated on the complaint of the Engelhardts. Indeed, the Notice of Intent issued to Olde Discount was concerned exclusively with dealings between Olde Discount and the En-gelhardts. Furthermore, Tupman filed this appeal on behalf of the Engelhardts, who are not represented by separate counsel on appeal, and were not so represented in the earlier settlement negotiations with Olde Discount. In the circumstances, the state administrative proceedings, to the extent they concern claims and liabilities between the Engelhardts and Olde Discount, are nothing other than a substitute for the arbitration.\nThe circumstance that the state appellants are not parties to the arbitration clause does not alter our result. As the Supreme Court explained in Moses H. Cone Memorial Hospital, “[u]nder the Arbitration Act, an arbitration must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.” 460 U.S. at 20,103 S.Ct. at 939. In partial reliance on Moses H. Cone, we recently upheld a district court’s eviction of a subtenant to facilitate an award arising from an arbitration between the property owner and the tenant, even though the subtenant was not a party to the arbitration. See Isidor Paiewonsky Assocs. v. Sharp Properties, Inc., 998 F.2d 145 (3d Cir.1993).\nIt is also apparent that, in any practical sense, Olde Discount cannot simultaneously arbitrate its claims against the Engelhardts and defend against the Delaware securities commissioner’s pursuit of the rescission remedy in an administrative proceeding. Notwithstanding the appellants’ statement that they will not, and cannot, prevent Olde Discount from commencing the arbitration, the appellants’ view of a possible harmonious interaction of the state and federal statutes is illusory. While in a physical sense Olde Discount could be represented in two proceedings at once, the potential for actual conflict in that scenario is manifest. If an arbitration panel decides that the Engelhardts’ claims are without merit and Olde Discount has no liability to them, while the Delaware securities commissioner concludes that the SNFS purchases must be rescinded, the results of the proceedings will be irreconcilable.\nEven if the two proceedings were to reach similar results on the merits, Olde Discount still would be deprived of its right to the presumed simplicity and efficiency of the ar-bitral forum. Thus, to the extent rescission is involved, it is impossible to fulfill the demands of both the federal and state statutes. Therefore, Delaware’s pursuit of the rescission remedy is preempted by the FAA both because Del.Code Ann. tit. 6, § 7325(b) presents an obstacle to the accomplishment of the congressional purpose of enforcing arbitration agreements, and because it is impossible to give effect to both the administrative rescission remedy and the federal right to arbitration.\nWe also reject the appellants’ contention that an administrative rescission remedy is not preempted because Gilmer sanctions “equitable relief’ by an agency despite a parallel arbitration of private claims. First, Gilmer on its facts did not address a question of equitable relief and its statements thereon are not dispositive of how the Supreme Court might resolve an actual controversy involving private arbitration and an agency’s “equitable” remedies. Second, we believe the precise statement in Gilmer, ie., “that arbitration agreements will not preclude the EEOC from bringing actions seeking class-wide and equitable relief,” — U.S. -, 111 S.Ct. at 1655, was meant to draw a distinction between private remedies available in arbitration for one employee, versus remedies available through an action of the EEOC for a group of employees. In other words, the reference in Gilmer to class-wide equitable relief apparently was directed toward a situation where the EEOC could bring its enforcement powers to bear against an employer violating the law in its dealings with numerous employees by, for example, seeking an injunction on behalf of a class of employees against future acts of age discrimination. The analog in our case would be that the Delaware Division of Securities, if convinced that Olde Discount has committed widespread violations beyond those alleged in relation to the Engelhardts’ stock purchases, is free to protect Delaware investors by imposing fines or licensing restrictions on Olde Discount, regardless of the progress or outcome of any arbitration of the Engelhardts’ claims. Thus, there is no foundation for appellants’ assertion that Gilmer establishes that the state’s interest in the “equitable” remedy of rescission should be given special exemption from standard preemption principles.\nWhile our analysis might be different if a finding of preemption were to work a substantial interference with traditional state objectives of securities law enforcement, that is not the case here. The district court did not enjoin the Delaware securities commissioner from investigating Olde Discount or from pursuing administrative remedies other than rescission of the Engelhardts’ purchases. Accordingly, Delaware may take whatever action it sees fit consonant with federal law, concerning Olde Discount’s state registration as a broker-dealer. Delaware is also free to pursue individualized remedies, including rescission, as to securities transactions not subject to arbitration agreements. Delaware therefore retains many avenues for the exercise of its proper role in dealing with alleged violations of its securities laws. Thus, federal preemption of the rescission remedy for investors who have agreed to arbitration will narrow but not eliminate the state regulators’ choices of means of enforcement of the Delaware securities laws.\nIV. ABSTENTION\nThe appellants argue, aside from the merits of the preemption question, that the district court should have abstained from granting an injunction that will interfere with Delaware’s ongoing administrative proceedings against Olde Discount. The district court concluded that the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, was not applicable to Olde Discount’s preemption claim under the FAA. We agree with the district court’s resolution. Indeed, the circumstances presented make clear that a nonfrivolous claim of FAA preemption of a state statutory remedy necessarily presents an exception to the Younger doctrine.\nYounger established that, despite the assertion of claims based on the federal constitution or federal statutes, a federal court should not enjoin pending state proceedings where three elements are present: (1) the ongoing state proceedings are “judicial” in nature; (2) the proceedings implicate important state interests; and (3) the proceedings afford an adequate opportunity to raise the federal claims. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). Nevertheless, the Supreme Court has emphasized that a court should abstain only in rare cases.\nThe doctrine of abstention ... is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in ... exceptional circumstances....\nMoses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 14, 103 S.Ct. at 936 (quotation marks omitted).\nThe Court recently reiterated the exceptional quality of abstention in New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). The Court noted that abstention is confined to rare circumstances because it runs counter to “the proposition that federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred_ ‘They cannot abdicate their authority or duty in any case in favor of another jurisdiction.’ ” Id. 491 U.S. at 359, 109 S.Ct. at 2512-13 (quoting Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S.Ct. 695, 697-98, 37 L.Ed. 546 (1893)). Those principles enunciated in New Orleans Public Service guided our approach in Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195. In Gwynedd, mindful that “a federal court has no authority to abstain from the exercise of jurisdiction that has been properly conferred,” id. at 1199, we partially reversed the district court’s dismissal of a complaint alleging federal constitutional claims concerning municipal land-use regulatory decisions that were concurrently the subject of state court and municipal zoning board proceedings.\nNotwithstanding the strict limits of abstention, the doctrine, where appropriate, forbids injunctive interference with state administrative proceedings as well as state court proceedings, though Younger itself forbade an injunction against a state criminal prosecution. In Middlesex County Ethics Committee, which upheld a district court’s refusal to enjoin a state bar disciplinary proceeding on the grounds that the New Jersey Supreme Court would review the plaintiffs federal constitutional claims, the Court made explicit that “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” 457 U.S. at 432, 102 S.Ct. at 2521. In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), the Court again endorsed Younger abstention in relation to an ongoing state administrative proceeding. In that case, a religious school sought a federal injunction on First Amendment free-exercise grounds against the state’s investigation of a sex-discrimination complaint. The Court found that the third requisite of the Younger doctrine, availability of an opportunity to raise federal claims, was provided because the school’s “constitutional claims may be raised in state-court judicial review of the administrative proceeding.” Id. at 629, 106 S.Ct. at 2724.\nIt is therefore clear that conceptually Younger abstention can apply to the situation raised by Delaware’s administrative proceedings against Olde Discount. The investigation and pending hearing by the Delaware securities commissioner is an ongoing state proceeding, “judicial” in nature, within the meaning of Younger, Middlesex County, and Dayton Christian Schools. Delaware’s proceeding also undoubtedly serves the important state interest of regulating securities transactions, insofar as such power of regulation is reserved to the states under both the Securities Act of 1933 and the Securities Exchange Act of 1934. See 15 U.S.C. §§ 77r, 78bb(a). Finally, even if the Delaware Division of Securities has reached a conclusion that its pursuit of a rescission remedy is not preempted by the FAA, under Dayton Christian Schools it would be sufficient that Olde Discount could raise its preemption arguments again in a review of the administrative proceedings by the Delaware Court of Chancery. See Del.Code Ann. tit. 6, § 7324(a).\nHowever, our conclusion that this situation formally fits within a Younger framework does not end our abstention inquiry, for Younger abstention is not always appropriate even if its elements are present. Thus, if “a genuine threat of prosecution exists, a litigant is entitled to resort to a federal forum to seek redress for an alleged deprivation of federal rights.” Wooley v. Maynard, 430 U.S. 705, 710, 97 S.Ct. 1428, 1433, 51 L.Ed.2d 752 (1977); see also Dayton Christian Schools, 477 U.S. at 626, 106 S.Ct. at 2722 (interpreting Younger to prevent injunctions against state proceedings “except in the very unusual situation that an injunction is necessary to prevent great and immediate irreparable injury”); Harman v. Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 1183, 14 L.Ed.2d 50 (1965) (stating that district court properly refused to abstain “[gjiven the importance and immediacy of the problem, and the delay inherent” in awaiting guidance from state courts). We addressed a similar situation of immediate need for intervention by a federal court in Ford Motor Co. v. Insurance Commissioner, 874 F.2d 926 (3d Cir.1989). There, various insurers brought a preemption challenge to a Pennsylvania statute that prohibited the insurers from owning interests in savings and loan institutions. We applied the counsel of Wooley v. Maynard to articulate an exception to the Younger doctrine for state civil as well as criminal proceedings, in instances where “deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.” Id. at 932.\nDelaware’s insistence upon the rescission remedy presents just such an immediate potential for irreparable harm to Olde Discount’s right under the FAA to an arbitral forum. The Delaware regulators have chosen to stand firm in their pursuit of administrative rescission despite Olde Discount’s repeated invocation of the FAA, its efforts to commence an actual arbitration with the En-gelhardts, and the district court’s suggestion that the issue of rescission could be bifurcated from the state’s determination concerning other proposed remedies.\nIndeed the very nature of arbitration demonstrates the irreparable harm Olde Discount faces, for its right to arbitration is a contractual right, sanctioned by statute, to have claims addressed in a particular forum. Thus, if the district court abstained in this case it would not simply be declining to exercise its statutorily created jurisdiction, which is the usual consequence pf abstention. Rather, it would be refusing to protect Olde Discount’s access to the forum that it and the Engelhardts contractually selected to resolve their disputes.\nFurthermore, Olde Discount’s right to arbitration cannot be satisfied if an alternate administrative forum is determining at the same time whether a claim to the identical remedy is available. The concern underlying a federal right to enforcement of arbitration agreements is a party’s entitlement to a proceeding and a forum that are, at least ideally, speedy, efficient, and simpler than litigation in the courts or before agencies. See Rodriguez de Quijas, 490 U.S. at 479-80, 109 S.Ct. at 1919; Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354. Therefore, in the context of arbitration, a litigant’s procedural right to the agreed forum is raised to a substantive right by the FAA. Accordingly, if Olde Discount were forced to address rescission of its sales to the Engelhardts in an administrative proceeding, even if it simultaneously could pursue an arbitration, it would suffer an immediate, irreparable harm to the federal right established by the FAA.\nWe find authority that Younger abstention would be inappropriate here in Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852. In Southland the Supreme Court determined to take jurisdiction over the appeal precisely because of the immediacy of the harm suffered by a party denied a right to arbitration. The California Supreme Court had held that the FAA did not preempt a California statute requiring a judicial forum for certain franchise claims, and had remanded the case to the state trial court for a disposition on the merits. Despite the remand, which arguably rendered the state court’s decision not final, the Supreme Court took jurisdiction, reasoning that “[cjontracts to arbitrate are not to be avoided by allowing one party to ignore the contract and resort to the courts. Such a course could lead to prolonged litigation, one of the very risks the parties, by contracting for arbitration, sought to eliminate.” 465 U.S. at 6-8, 104 S.Ct. at 856-57. In this case, abstention would have precisely the same consequence, i.e., it would permit the Engelhardts’ claims to be brought before the Delaware securities commissioner, thus circumventing the agreement to arbitrate. We think Southland teaches that the federal courts ought not countenance such frustration of the FAA’s mandate.\nWe also point out that abstention in this case would be difficult to justify in light of the congressional intent reflected in 9 U.S.C. § 16. That section provides that while orders compelling arbitration are not immediately appeálable, orders denying motions to compel arbitration or to stay judicial proceedings pending arbitration are immediately appealable. This dichotomy reflects the paramount importance that Congress has placed on arbitration. In effect, Congress has given the courts of appeals broad authority to ensure that district courts are not circumscribing the rights granted by the FAA in a manner contrary to the expansive enforcement of arbitration clauses that has been dictated by Congress itself and by the Supreme Court in, e.g., McMahon, Rodriguez de Quijas, and Gilmer.\nWe are mindful that generally a claim of federal, preemption, in and of itself, is not entitled to more deferential treatment than other constitutional claims in the face of an abstention challenge. The Supreme Court said as much in New Orleans Public Service:\nThere is no greater federal interest in enforcing the supremacy of federal statutes than in enforcing the supremacy of explicit constitutional guaranties, and constitutional challenges to state action, no less than preemption-based challenges, call into question the legitimacy of the State’s interest in its proceedings reviewing or enforcing that action. Yet is clear that the mere assertion of a substantial constitutional challenge to state action will not alone compel the exercise of federal jurisdiction.\n491 U.S. at 365, 109 S.Ct. at 2516.\nIn New Orleans Public Service, the Court ultimately found that the district court should not have abstained. However, the Court did not conclude that simply because the case implicated findings of the Federal Energy Regulatory Commission which preempted a decision of local rate-making authorities, a blanket exception to Younger principles was warranted. See also Ford Motor Co., 874 F.2d at 934 (“there is no absolute rule prohibiting the application of Younger abstention doctrine whenever the Supremacy Clause is invoked”).\nBut in New Orleans Public Service, the Court did not confront a collision between the normal application of Younger principles and the highly favored right to arbitration which the Court itself has developed in FAA cases from Scherk v. AlbertoCulver through Rodriguez de Quijas and Gilmer. The collision is imminent in the present case, and we must resolve it by application of the Supreme Court’s FAA cases and the Court’s recognition in Wooley v. Maynard that, even when the Younger doctrine strictly might be applicable, a threat of immediate, irreparable harm to federal rights can warrant an injunction against state proceedings. We think that where, as here, a state agency is engaged in a course of action openly inconsistent with a litigant’s rights under Section 2 of the FAA, that litigant cannot be turned away from federal court by an invocation of Younger abstention. This very narrow exception to Younger will not create difficulties in cases involving frivolous or weak claims of FAA preemption, because such claims would not meet the traditional requisites for injunctive relief and thus will not even require a district court to reach a Younger challenge.\nWe make one final point. A district court’s decision to abstain does not necessarily mean that a federal court will never consider the proffered federal claim. Rather, abstention delays the review by a federal court until a state forum has had an opportunity to pass on the issue. For example, if a criminal prosecution is claimed to violate federal free speech, free exercise, or due process rights, a defendant not satisfied by the state court’s resolution of those claims ultimately can seek a federal forum by petition for certiorari or petition for writ of habeas corpus. In most — indeed, nearly all — circumstances in which the elements of Younger abstention are present, Younger counsels that such a delay is an appropriate price to pay for the preservation of comity between the federal government and the states.\nIn the context of arbitration, however, delayed enforcement destroys the federal statutory right. It would be incongruous if abstention, merely a prudential doctrine, could have such a consequence. In our case, the district court correctly did not abstain because the Delaware regulators’ repeated rejection of Olde Discount’s FAA preemption claim already ensured that the right to arbitration would be lost, absent a federal court’s intervention. Accordingly, despite the rule of Dayton Christian Schools that a right to an ultimate state court appeal of agency action suffices to support Younger abstention, we hold that where Section 2 of the FAA provides the basis for a federal preemption claim, a district court may not abstain, but must address the merits of the FAA claim.\nV. CONCLUSION\nIn view of the aforesaid and Judge Ro-senn’s concurring opinion, we will affirm the district court’s order of September 16, 1992, and will remand the case to the district court for further proceedings.\n. In their opening brief, the appellants asserted that the district court's consideration of events that occurred during settlement negotiations was contrary to Fed.R.Evid. 408, which prohibits the admission of \"[ejvidence of conduct or statements made in compromise negotiations However, as counsel for Olde Discount has noted, the appellants have not preserved this eviden-tiary point because they did not object to the introduction of these facts before the district court. In any event, these facts are background information, helpful to an understanding of the context of the dispute; they are not critical to our disposition, as we anchor our result on legal principles.\n. Olde Discount contends that at the time of its transactions with the Engelhardts, Delaware law did not provide for a rescission remedy in proceedings concerning suspension or revocation of the registration of a broker.\n. While as a matter of convenience this section of the opinion entitled \"III. PREEMPTION” is written as if for the court, it in fact is the opinion only of Judge Greenberg.\n. We are not suggesting that an award in an arbitration proceeding would be preclusive in administrative proceedings; that issue is not presented by this appeal.\n. It is conceivable that in the case of widespread violations of uniform character, e.g., the distribution of fraudulently issued securities, individualized relief for members of a victimized class of customers might be possible notwithstanding the presence of arbitration agreements, on a theory that the violations did not arise from the particular relationship between the customer and the broker. We, of course, state no opinion on that possibility as it is not before us. In this case, the Notice of Intent was predicated on Olde Discount’s and Donohoe's alleged individual maltreatment of the Engelhardts, which the Notice described in great detail.\n. On December 7, 1992, the Division of Securities initiated a second proceeding against Olde Discount and Donohoe by reason of alleged improprieties in their dealings with other investors in SNFS stock. We are not concerned with those proceedings in this opinion.\n. Although the appellants seem not to have stressed this point before the district court, the Engelhardts’ initial purchase of 5,000 shares of SNFS stock on May 15, 1990, was before they signed the account agreement containing the arbitration clause on May 25, 1990. The district court did not take this sequence of events into account in reaching its result and neither will we as there is no issue as to the arbitrability of disputes arising from that purchase before us on this appeal. Nevertheless the district court's order of September 16, 1990, by its terms enjoins the commissioner from, pursuing a rescission remedy for the May 15, 1990 purchase of SNFS stock. Thus, we do not preclude the appellants on remand from seeking an order modifying the preliminary injunction so as to exclude that purchase.\n. The amici curiae in their brief contend that the district court’s opinion could have a major impact in \"the criminal law area\" because of an increasing tendency for courts to impose restitution as part of a sentence. They suggest that if we affirm the district court's order, the state \"could not seek nor could the court grant such relief where the defendant had entered into an arbitration agreement with his victims.” Brief at 8. We, of course, cannot rule on what the law would be in the situation the amici describe. However, it is apparent that a case involving a criminal conviction is distinguishable from that involved here: In this case the administrative proceeding was in part brought for the express purpose of obtaining a rescission remedy. On the other hand, a criminal case is brought to determine whether a defendant is criminally liable and, if so, to fix the penalty for the violation.\n. Tupman, appearing for the State at the district court's August 27, 1992 hearing, rejected any separation of the rescission question from the State's broader proceedings:\nTHE COURT: Mr. Tupman, just a comment or two. I do have a question for you:\nAside from Paragraph 42 of your notice of intent to suspend or revoke, is there any reason why the public regulatory part of the Commission's prosecution can’t be bifurcated from the [rescission] remedy ... ? MR. TUPMAN: .... [S]ince the statute and the General Assembly do clearly contemplate that all of this will be resolved in a single administrative proceeding, I don’t think that it is — serves any interest, since, as we contend there’s no impairment of the arbitration agreement. If they want to go to arbitration, they can go to arbitration. I can’t stop them.\nSupplemental App. at 92-93.\n. In its opinion, the district court cited Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989), with respect to the general showing that must be made by an applicant for a preliminary injunction to obtain relief. The appellants' brief is not cast in terms of whether the criteria have been met but instead focuses on the preemption and abstention issues. The brief of the amici, however, does discuss the Instant Air Freight criteria. In these circumstances, we will not discuss these criteria in detail but simply will indicate that in view of our conclusions we agree that the district court properly issued the preliminary injunction.\n[END_CASE]", "role": "user" } ]
10,509,327	UNITED STATES of America, Plaintiff-Appellee, v. Abel Parama BORROMEO, Defendant-Appellant. and Seven (7) Parcels of Real Property; Two (2) Automobiles; Undetermined Amount of United States Currency Contained In Several Bank Accounts, Stocks, Bonds, Securities and Other Negotiable Instruments and Various Items of Personal Property, Defendants	United States v. Borromeo	1993-05-26	No. 91-7070	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before HAMILTON, Circuit Judge, SPROUSE, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Abel Parama BORROMEO, Defendant-Appellant. and Seven (7) Parcels of Real Property; Two (2) Automobiles; Undetermined Amount of United States Currency Contained In Several Bank Accounts, Stocks, Bonds, Securities and Other Negotiable Instruments and Various Items of Personal Property, Defendants."], "opinions": [{"text": "OPINION\nFRANK A. KAUFMAN, Senior District Judge:\nOn May 26, 1993, this Court filed an opinion in this case. 995 F.2d 23. Thereafter, Borromeo, noting the pendency of a Supreme Court decision on a related topic, moved for an extension of time within which to seek a rehearing or rehearing in banc and a stay of the issuance of the mandate. On June 23, 1993, we granted that motion, extending the time within which the parties might seek rehearing until thirty days after the Supreme Court decided the case of Austin v. United States, — U.S. -, 113 S.Ct. 1036, 122 L.Ed.2d 347 (1993), and recalled our mandate in this case, which had issued in the interim. Subsequently, on June 28, 1993, the Supreme Court handed down its opinion in Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and Borromeo moved for a rehearing of this case.\nBorromeo contends that Austin mandates a result different from that reached by this Court in part III of our earlier opinion with regard to Borromeo’s Double Jeopardy claim. Further, Borromeo takes the position that we misunderstood his apparent concession, during oral argument, of the appropriateness of the forfeiture of the building which housed the Jefferson Family Health Clinic. He now claims that he did not intend to concede that the district court had sufficient evidence before it from which it could have permissibly concluded that the building in question was in fact an instrumentality of Borromeo’s crime. Rather, Borromeo contends that he conceded only the forfeitability of an instrumentality, as a general proposition, but did not concede the sufficiency of the evidence establishing the building as an instrumentality.\nThe government, for its part, agrees that Austin “is a change in the controlling law with respect to forfeitures,” but apparently does not agree with Borromeo’s conclusion that it necessarily vitiates Part III of our prior opinion. With respect to Borromeo’s seeming concession, the government asserts that Borromeo did in fact concede, during oral argument, the sufficiency of the evidence before the district court.\nA\nAs an initial matter, our review of the recorded oral argument reveals that while Borromeo’s concession of the appropriateness of the forfeiture of the building housing the Jefferson Family Health Center was certainly not as carefully circumscribed as he would have this Court interpret it to be, it may perhaps be possible to characterize it as less than a fully clear concession. However, even if Borromeo did not concede the sufficiency of the evidence, we would have concluded from the record before the trial court in the forfeiture proceeding that the building was a forfeitable instrumentality. Indeed, we continue so to conclude. The transcript of Borromeo’s criminal trial is replete with testimony concerning the use of the accused building to facilitate Borromeo’s illegal activity-\nB\nIn Austin, the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment may, in a particular case, be applicable to a civil forfeiture action brought against items of property alleged to be instrumentalities of crime, and as such to be forfeitable under 21 U.S.C. §§ 881(a)(4) and 881(a)(7). The Court, however, expressly declined to “establish a multi-factor test for determining whether a forfeiture is constitutionally ‘excessive,’ ” — U.S. at —, 113 S.Ct. at 2812, preferring to “allow the lower courts to consider that question in the first instance.” Id. In the wake of Austin, an inquiry into the proportionality between the value of the instrumentality sought to be forfeited and the amount needed to effectuate the legitimate remedial purposes of the forfeiture would seem to be in order. Accordingly, we hereby remand to the district court for consideration of the proportionality of the forfeiture of the Jefferson building to Borromeo’s crimes.\nC\nWhether a similar inquiry into the proportionality of forfeitures of the proceeds of illegal activity is necessai-y is less clear. Both Justice Scalia’s concurrence, — U.S. —, 113 S.Ct. at 2814-15, and a portion of the majority’s opinion, — U.S. at — n. 15, 113 S.Ct. at 2812 n. 15, suggest that a close enough connection between the property sought to be forfeited and the criminal activity might support a forfeiture regardless of proportionality. It is arguable that there is little justification for the position that one who successfully parlays his tainted dollar into a fortune should be permitted to enjoy a windfall — a result which a strict focus upon proportionality might bring about in a given case with regard to the proceeds of crime. Nevertheless, the proportional relationship of the value of proceeds to the harm occasioned by a defendant’s criminal conduct may, in a given case, be relevant under the Supreme Court’s approach in Austin. Accordingly, we remand this case to the district court for the type of inquiry into the substantial connection issue mandated by Part II of our earlier opinion, and also for a proportionality determination with regard to each and all items of the property which the government seeks to forfeit.\nIn sum, we reaffirm Part II of our prior opinion, remand in accordance therewith, vacate part III of our prior opinion, and remand in accordance with this Supplemental Opinion.\nAFFIRMED IN PART, VACATED IN PART, AND REMANDED.", "type": "majority", "author": "FRANK A. KAUFMAN, Senior District Judge:"}], "attorneys": ["Stanley K. Joynes, III, LeClair, Ryan & Joynes, Richmond, VA, for defendant-appellant.", "Betty Adkins Pullin, Asst. U.S. Atty., Charleston, WV, (Michael W. Carey, U.S. Atty., Stephen M. Horn, Asst. U.S. Atty., on brief), for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Abel Parama BORROMEO, Defendant-Appellant. and Seven (7) Parcels of Real Property; Two (2) Automobiles; Undetermined Amount of United States Currency Contained In Several Bank Accounts, Stocks, Bonds, Securities and Other Negotiable Instruments and Various Items of Personal Property, Defendants.\nNo. 91-7070.\nUnited States Court of Appeals, Fourth Circuit.\nArgued Oct. 29, 1992.\nDecided May 26, 1993.\nSupplemental Opinion Decided Sept. 7, 1993.\nStanley K. Joynes, III, LeClair, Ryan & Joynes, Richmond, VA, for defendant-appellant.\nBetty Adkins Pullin, Asst. U.S. Atty., Charleston, WV, (Michael W. Carey, U.S. Atty., Stephen M. Horn, Asst. U.S. Atty., on brief), for plaintiff-appellee.\nBefore HAMILTON, Circuit Judge, SPROUSE, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation."}	HAMILTON	SPROUSE	KAUFMAN	1	1	1	0	0	0	1 F.3d 219	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Abel Parama BORROMEO, Defendant-Appellant. and Seven (7) Parcels of Real Property; Two (2) Automobiles; Undetermined Amount of United States Currency Contained In Several Bank Accounts, Stocks, Bonds, Securities and Other Negotiable Instruments and Various Items of Personal Property, Defendants\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-05-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nFRANK A. KAUFMAN, Senior District Judge:\nOn May 26, 1993, this Court filed an opinion in this case. 995 F.2d 23. Thereafter, Borromeo, noting the pendency of a Supreme Court decision on a related topic, moved for an extension of time within which to seek a rehearing or rehearing in banc and a stay of the issuance of the mandate. On June 23, 1993, we granted that motion, extending the time within which the parties might seek rehearing until thirty days after the Supreme Court decided the case of Austin v. United States, — U.S. -, 113 S.Ct. 1036, 122 L.Ed.2d 347 (1993), and recalled our mandate in this case, which had issued in the interim. Subsequently, on June 28, 1993, the Supreme Court handed down its opinion in Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and Borromeo moved for a rehearing of this case.\nBorromeo contends that Austin mandates a result different from that reached by this Court in part III of our earlier opinion with regard to Borromeo’s Double Jeopardy claim. Further, Borromeo takes the position that we misunderstood his apparent concession, during oral argument, of the appropriateness of the forfeiture of the building which housed the Jefferson Family Health Clinic. He now claims that he did not intend to concede that the district court had sufficient evidence before it from which it could have permissibly concluded that the building in question was in fact an instrumentality of Borromeo’s crime. Rather, Borromeo contends that he conceded only the forfeitability of an instrumentality, as a general proposition, but did not concede the sufficiency of the evidence establishing the building as an instrumentality.\nThe government, for its part, agrees that Austin “is a change in the controlling law with respect to forfeitures,” but apparently does not agree with Borromeo’s conclusion that it necessarily vitiates Part III of our prior opinion. With respect to Borromeo’s seeming concession, the government asserts that Borromeo did in fact concede, during oral argument, the sufficiency of the evidence before the district court.\nA\nAs an initial matter, our review of the recorded oral argument reveals that while Borromeo’s concession of the appropriateness of the forfeiture of the building housing the Jefferson Family Health Center was certainly not as carefully circumscribed as he would have this Court interpret it to be, it may perhaps be possible to characterize it as less than a fully clear concession. However, even if Borromeo did not concede the sufficiency of the evidence, we would have concluded from the record before the trial court in the forfeiture proceeding that the building was a forfeitable instrumentality. Indeed, we continue so to conclude. The transcript of Borromeo’s criminal trial is replete with testimony concerning the use of the accused building to facilitate Borromeo’s illegal activity-\nB\nIn Austin, the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment may, in a particular case, be applicable to a civil forfeiture action brought against items of property alleged to be instrumentalities of crime, and as such to be forfeitable under 21 U.S.C. §§ 881(a)(4) and 881(a)(7). The Court, however, expressly declined to “establish a multi-factor test for determining whether a forfeiture is constitutionally ‘excessive,’ ” — U.S. at —, 113 S.Ct. at 2812, preferring to “allow the lower courts to consider that question in the first instance.” Id. In the wake of Austin, an inquiry into the proportionality between the value of the instrumentality sought to be forfeited and the amount needed to effectuate the legitimate remedial purposes of the forfeiture would seem to be in order. Accordingly, we hereby remand to the district court for consideration of the proportionality of the forfeiture of the Jefferson building to Borromeo’s crimes.\nC\nWhether a similar inquiry into the proportionality of forfeitures of the proceeds of illegal activity is necessai-y is less clear. Both Justice Scalia’s concurrence, — U.S. —, 113 S.Ct. at 2814-15, and a portion of the majority’s opinion, — U.S. at — n. 15, 113 S.Ct. at 2812 n. 15, suggest that a close enough connection between the property sought to be forfeited and the criminal activity might support a forfeiture regardless of proportionality. It is arguable that there is little justification for the position that one who successfully parlays his tainted dollar into a fortune should be permitted to enjoy a windfall — a result which a strict focus upon proportionality might bring about in a given case with regard to the proceeds of crime. Nevertheless, the proportional relationship of the value of proceeds to the harm occasioned by a defendant’s criminal conduct may, in a given case, be relevant under the Supreme Court’s approach in Austin. Accordingly, we remand this case to the district court for the type of inquiry into the substantial connection issue mandated by Part II of our earlier opinion, and also for a proportionality determination with regard to each and all items of the property which the government seeks to forfeit.\nIn sum, we reaffirm Part II of our prior opinion, remand in accordance therewith, vacate part III of our prior opinion, and remand in accordance with this Supplemental Opinion.\nAFFIRMED IN PART, VACATED IN PART, AND REMANDED.\n[END_CASE]", "role": "user" } ]
10,509,381	Christopher WOLSKY, Plaintiff-Appellee, v. MEDICAL COLLEGE OF HAMPTON ROADS, formerly known as Eastern VA Medical Authority, formerly known as Norfolk Area Medical Center Authority, Defendant-Appellant	Wolsky v. Medical College	1993-07-28	No. 92-2275	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before ERVIN, Chief Judge, and WIDENER and HAMILTON, Circuit Judges."], "parties": ["Christopher WOLSKY, Plaintiff-Appellee, v. MEDICAL COLLEGE OF HAMPTON ROADS, formerly known as Eastern VA Medical Authority, formerly known as Norfolk Area Medical Center Authority, Defendant-Appellant."], "opinions": [{"text": "OPINION\nERVIN, Chief Judge:\nThe Medical College of Hampton Roads (“Medical College”) appeals from an order entered by the district court denying its motion to dismiss, 795 F.Supp. 171. This is an interlocutory appeal, permission to appeal was granted under 28 U.S.C.A. § 1292(b), in which the Medical College raises one issue: whether the district court erred by applying the Virginia personal injury statute of limitations to the Federal Rehabilitation Act, 29 U.S.C. § 794. We hold that the district court did not apply the proper statute of limitations and reverse its decision.\nI\nChristopher Wolsky enrolled as a medical student at the Medical College of Hampton Roads in 1986. At the time he entered medical school, Wolsky suffered from a panic disorder. During Wolsky’s first year at the Medical College, a resident diagnosed him as addicted to his panic disorder medication and ordered it changed. During his second and third years of medical school, Wolsky’s academic performance worsened in part due to the side effects of his new medication for the panic disorder. In May 1990 Wolsky was dismissed from the Medical College. He applied for readmission both in August 1990 and February 1991 and was denied readmission on both occasions.\nIn April 1992 Wolsky filed suit against the Medical College claiming discrimination in his dismissal and subsequent denials of readmission based upon his alleged disability under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”). Wolsky contends that his panic disorder is a disability under the Rehabilitation Act, and that the disorder’s effects and complications resulted in his dismissal from the Medical College.\nThe Medical College filed a motion to dismiss Wolsky’s complaint, alleging that the statute of limitations had expired. In its motion, the Medical College argued that since the Rehabilitation Act did not have a statute of limitations, the district court should apply the most analogous state statute of limitations. It believed that the most appropriate statute of limitations was that provided by the Virginia Rights of Persons with Disabilities Act, Va.Code Ann. §§ 51.5— 40 to 46, (the “Virginia Act”) which has a one-year statute of limitations. See id. The district court agreed that it should apply the most analogous state statute of limitations; however, it held that Virginia’s statute of limitations for personal injury was more analogous than the Virginia Act’s limitations period. Since the Virginia personal injury statute of limitations is two years, see Va. Code Ann. § 8.01-243(A), the district court held that Wolsky had filed the action in a timely manner. This appeal ensued.\nII\nCongress occasionally omits statutes of limitations in civil rights legislation and did so when it enacted the Rehabilitation Act. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In the event of such an omission, 42 U.S.C. § 1988(a) provides for the selection of an appropriate common-law statute of limitations, which is most applicable to the federal action.\nIn Wilson, the Supreme Court addressed the issue of which state statute of limitations should be employed when the federal statute omits a statute of limitations. Id. at 268, 105 S.Ct. at 1942. The Wilson Court stated that the central issue was “the selection of ‘the most appropriate,’ or ‘the most analogous’ state statute of limitations to apply.” Id. (footnotes omitted). The Court opined that section 1988 required courts to look to the most appropriate statute in each individual state, and noted that uniformity within the state was critical. The Wilson Court held that the section 1983 claim before it was most closely analogous to a “tort action for the recovery of damages for personal injuries.” Id. at 276, 105 S.Ct. at 1947. It found that the broad purposes of section 1983 and the variety of claims encompassed under it most closely resembled tort law. The Supreme Court subsequently extended this reasoning to section 1981 claims in Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987).\nAt the outset we note that the statute at issue in the instant case is neither section 1981 nor section 1983, but section 504 of the Rehabilitation Act. The Act states that no otherwise qualified individual shall be discriminated against solely by reason of his or her handicap in any program that receives federal funding. Since the Rehabilitation Act does not provide its own statute of limitations and 28 U.S.C. § 1658, the general federal statute of limitations is not applicable in this case, the district court must turn to state law for an appropriate statute of limitations.\nThis case offers us the opportunity to answer the question we left open in Eastman v. Virginia Polytechnic Inst. & State University, 939 F.2d 204 (4th Cir.1991). There we concluded that the Rehabilitation Act neither provided for the award of compensatory damages for pain and suffering nor punitive damages. Id. at 209. The district court had held that the statute of limitations found in the Virginia Act was the most similar statute to the Rehabilitation Act. We declined, however, to decide which was the most appropriate statute of limitations to apply to the Rehabilitation Act; we decided the case on the grounds that the Rehabilitation Act does not provide the damages the plaintiff sought. This case requires us to decide that issue squarely.\nThe Virginia Rights of Persons with Disabilities Act was modeled after and is almost identical to the Rehabilitation Act. The Virginia Act prohibits discrimination on account of handicap status in any program receiving state funding. The Virginia Act’s language tracks the Rehabilitation Act’s language almost precisely. It, however, contains a one-year statute of limitations for filing an action.\nGiven that the Virginia Act is patterned after the Rehabilitation Act, the district court should have applied the statute of limitations found in the Virginia Act rather than the personal injury statute of limitations. Wilson requires district courts to look to the most appropriate state statute of limitations. We have held that federal courts should follow the limitations period set by the state in which the district court sits. Almond v. Kent, 459 F.2d 200, 203 (4th Cir.1972) (citing O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914)).\nThe district court, however, attempted to follow the precedent of the other courts that have addressed this issue. See Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir.1992); Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir.1992); Hall v. Knott County Bd. of Educ., 941 F.2d 402, 409-10 (6th Cir.1991). The reasoning in those cases was similar; the Rehabilitation Act is an anti-discrimination statute similar to section 1983 or Title VI of the Civil Rights Act of 1964. In those circuits the personal injury statutes were applied because Rehabilitation Act claims are injuries to individuals and analogous to personal injury claims.\nMorse and Hall are readily distinguishable from the instant case on the grounds that the respective states had not enacted statutes forbidding discrimination against disabled persons or similar statutes. Those courts, on the one hand, could not consider applying a statute of limitations found in a state statute which had been modeled on the Rehabilitation Act. Virginia, on the other hand, seemingly intended its legislation to track the federal Act and provide its citizens with the same rights and remedies. The Virginia Act states\nThe Department for Rights of Virginians with Disabilities shall promulgate such regulations as may be necessary to implement this section. Such regulations shall be consistent, whenever applicable, with regulations imposed under the Federal Rehabilitation Act of 1973....\nVa.Code Ann. § 51.5-43. Both statutes prohibit discrimination against handicapped persons by entities that receive either state or federal funding. Id. at § 51.5-40 and 29 U.S.C. § 794. Portions of the Virginia Act directly quote from the corresponding sections of the Rehabilitation Act. Both the Rehabilitation Act and the Virginia Act afford only equitable remedies. Applying the Virginia Act’s statute of limitations is consistent with the mandates of Wilson and Goodman.\nOnly in Hickey did a court have the opportunity to apply a statute aimed at ending discrimination based on handicapped status. Hickey, 976 F.2d at 982. There the court noted, however, that “[t]he Texas statute which prohibits discrimination against handicapped persons and creates a civil cause of action for redress of such discrimination does not contain a limitations period.” Id. at 982-83 n. 3. Therefore, it had to look to another statute. In a footnote the Hickey court examined numerous possible applicable statutes of limitations before deciding to use the one contained in the Texas personal injury statute. Id. In the instant action the district court should have looked no further than the Virginia Act.\nThe district court drew an analogy between this action and a Title VI action. Since Title VI has no statute of limitations, the court extended the analogy to section 1981 and 1983 actions. The district court’s reasoning overlooked the fact section 1983 actions cannot have parallel state law provisions. Therefore, district courts have to look to more general statutes and their limitations periods. The Wilson Court noted that\n[b]ecause the § 1983 remedy is one that can “override certain kinds of state laws” and is, in all events, “supplementary to any remedy any State might have,” it can have no precise counterpart in state law. Therefore, it is the “purest coincidence” when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect.\nWilson, 471 U.S. at 272, 105 S.Ct. at 1944 (citations omitted). Given that a section 1983 action does not have a counterpart in state law, a general personal injury statute of limitations may be appropriate. Wilson acknowledged that minor differences between state and federal statutes are acceptable and the most analogous statute need not be identical. Id. In the instant matter, however, the Rehabilitation Act does have an exact state law counterpart.\nWolsky contends that the exact counterpart or most similar state statute analogy is not appropriate, but fails to demonstrate precisely how it is inappropriate. He argues that even if the exact counterpart analysis is correct, the Virginia Act exempts some discrimination that the federal law permits and therefore that the Virginia Act is not an exact counterpart. We find the distinctions between the two statutes are not significant enough to decline applying the statute of limitations as set forth in the Virginia Act.\nIll\nGiven that the Virginia Act is modeled after the Rehabilitation Act, we break with the conclusions of the other circuits to apply a personal injury statute of limitations. See Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir.1992); Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir.1992); Hall v. Knott County Bd. of Educ., 941 F.2d 402, 409-10 (6th Cir.1991); Andrews v. Consolidated R.R. Corp., 831 F.2d 678, 683 (7th Cir.1987). The Virginia Act is the most analogous statute, and its statute of limitations is applicable. Therefore, the decision of the district court is reversed and the case is remanded to the district court with instructions to dismiss Wolsky’s claim.\nREVERSED AND REMANDED.\n. Section 1988(a) provides in relevant part:\nThe jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title and of Title “CIVIL RIGHTS,” ... shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the States wherein the court having jurisdiction of such civil ... case is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....\n42 U.S.C.A. § 1988(a).\n. The Fifth Circuit ably paraphrased the Wilson Court’s test of when to apply a state statute of limitations under section 1988:\n(1) follow federal law if federal law provides a limitations period; (2) apply the common law as modified by state constitution or statute, if no limitations period is provided by federal law; (3) but apply state law only if it is not inconsistent with the constitution and laws of the United States.\nHickey v. Irving Indep. School Dist, 976 F.2d 980, 982 (5th Cir.1992). We find this test instructive in the instant matter.", "type": "majority", "author": "ERVIN, Chief Judge:"}], "attorneys": ["Alfred James Johnston, Post & Schell, P.C., Philadelphia, PA, argued (Sidney R. Steinberg, on brief), for defendant-appellant.", "Stephen Poliak, Shea & Gardner, Washington, DC, argued (Linda D. Friedman, Leng, Stowell, Friedman & Vernon, Chicago, IL, on brief), for plaintiff-appellee."], "corrections": "", "head_matter": "Christopher WOLSKY, Plaintiff-Appellee, v. MEDICAL COLLEGE OF HAMPTON ROADS, formerly known as Eastern VA Medical Authority, formerly known as Norfolk Area Medical Center Authority, Defendant-Appellant.\nNo. 92-2275.\nUnited States Court of Appeals, Fourth Circuit.\nArgued March 30, 1993.\nDecided July 28, 1993.\nAlfred James Johnston, Post & Schell, P.C., Philadelphia, PA, argued (Sidney R. Steinberg, on brief), for defendant-appellant.\nStephen Poliak, Shea & Gardner, Washington, DC, argued (Linda D. Friedman, Leng, Stowell, Friedman & Vernon, Chicago, IL, on brief), for plaintiff-appellee.\nBefore ERVIN, Chief Judge, and WIDENER and HAMILTON, Circuit Judges."}	ERVIN	WIDENER	HAMILTON	1	1	1	0	0	0	1 F.3d 222	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Christopher WOLSKY, Plaintiff-Appellee, v. MEDICAL COLLEGE OF HAMPTON ROADS, formerly known as Eastern VA Medical Authority, formerly known as Norfolk Area Medical Center Authority, Defendant-Appellant\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-07-28\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nERVIN, Chief Judge:\nThe Medical College of Hampton Roads (“Medical College”) appeals from an order entered by the district court denying its motion to dismiss, 795 F.Supp. 171. This is an interlocutory appeal, permission to appeal was granted under 28 U.S.C.A. § 1292(b), in which the Medical College raises one issue: whether the district court erred by applying the Virginia personal injury statute of limitations to the Federal Rehabilitation Act, 29 U.S.C. § 794. We hold that the district court did not apply the proper statute of limitations and reverse its decision.\nI\nChristopher Wolsky enrolled as a medical student at the Medical College of Hampton Roads in 1986. At the time he entered medical school, Wolsky suffered from a panic disorder. During Wolsky’s first year at the Medical College, a resident diagnosed him as addicted to his panic disorder medication and ordered it changed. During his second and third years of medical school, Wolsky’s academic performance worsened in part due to the side effects of his new medication for the panic disorder. In May 1990 Wolsky was dismissed from the Medical College. He applied for readmission both in August 1990 and February 1991 and was denied readmission on both occasions.\nIn April 1992 Wolsky filed suit against the Medical College claiming discrimination in his dismissal and subsequent denials of readmission based upon his alleged disability under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”). Wolsky contends that his panic disorder is a disability under the Rehabilitation Act, and that the disorder’s effects and complications resulted in his dismissal from the Medical College.\nThe Medical College filed a motion to dismiss Wolsky’s complaint, alleging that the statute of limitations had expired. In its motion, the Medical College argued that since the Rehabilitation Act did not have a statute of limitations, the district court should apply the most analogous state statute of limitations. It believed that the most appropriate statute of limitations was that provided by the Virginia Rights of Persons with Disabilities Act, Va.Code Ann. §§ 51.5— 40 to 46, (the “Virginia Act”) which has a one-year statute of limitations. See id. The district court agreed that it should apply the most analogous state statute of limitations; however, it held that Virginia’s statute of limitations for personal injury was more analogous than the Virginia Act’s limitations period. Since the Virginia personal injury statute of limitations is two years, see Va. Code Ann. § 8.01-243(A), the district court held that Wolsky had filed the action in a timely manner. This appeal ensued.\nII\nCongress occasionally omits statutes of limitations in civil rights legislation and did so when it enacted the Rehabilitation Act. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In the event of such an omission, 42 U.S.C. § 1988(a) provides for the selection of an appropriate common-law statute of limitations, which is most applicable to the federal action.\nIn Wilson, the Supreme Court addressed the issue of which state statute of limitations should be employed when the federal statute omits a statute of limitations. Id. at 268, 105 S.Ct. at 1942. The Wilson Court stated that the central issue was “the selection of ‘the most appropriate,’ or ‘the most analogous’ state statute of limitations to apply.” Id. (footnotes omitted). The Court opined that section 1988 required courts to look to the most appropriate statute in each individual state, and noted that uniformity within the state was critical. The Wilson Court held that the section 1983 claim before it was most closely analogous to a “tort action for the recovery of damages for personal injuries.” Id. at 276, 105 S.Ct. at 1947. It found that the broad purposes of section 1983 and the variety of claims encompassed under it most closely resembled tort law. The Supreme Court subsequently extended this reasoning to section 1981 claims in Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987).\nAt the outset we note that the statute at issue in the instant case is neither section 1981 nor section 1983, but section 504 of the Rehabilitation Act. The Act states that no otherwise qualified individual shall be discriminated against solely by reason of his or her handicap in any program that receives federal funding. Since the Rehabilitation Act does not provide its own statute of limitations and 28 U.S.C. § 1658, the general federal statute of limitations is not applicable in this case, the district court must turn to state law for an appropriate statute of limitations.\nThis case offers us the opportunity to answer the question we left open in Eastman v. Virginia Polytechnic Inst. & State University, 939 F.2d 204 (4th Cir.1991). There we concluded that the Rehabilitation Act neither provided for the award of compensatory damages for pain and suffering nor punitive damages. Id. at 209. The district court had held that the statute of limitations found in the Virginia Act was the most similar statute to the Rehabilitation Act. We declined, however, to decide which was the most appropriate statute of limitations to apply to the Rehabilitation Act; we decided the case on the grounds that the Rehabilitation Act does not provide the damages the plaintiff sought. This case requires us to decide that issue squarely.\nThe Virginia Rights of Persons with Disabilities Act was modeled after and is almost identical to the Rehabilitation Act. The Virginia Act prohibits discrimination on account of handicap status in any program receiving state funding. The Virginia Act’s language tracks the Rehabilitation Act’s language almost precisely. It, however, contains a one-year statute of limitations for filing an action.\nGiven that the Virginia Act is patterned after the Rehabilitation Act, the district court should have applied the statute of limitations found in the Virginia Act rather than the personal injury statute of limitations. Wilson requires district courts to look to the most appropriate state statute of limitations. We have held that federal courts should follow the limitations period set by the state in which the district court sits. Almond v. Kent, 459 F.2d 200, 203 (4th Cir.1972) (citing O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914)).\nThe district court, however, attempted to follow the precedent of the other courts that have addressed this issue. See Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir.1992); Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir.1992); Hall v. Knott County Bd. of Educ., 941 F.2d 402, 409-10 (6th Cir.1991). The reasoning in those cases was similar; the Rehabilitation Act is an anti-discrimination statute similar to section 1983 or Title VI of the Civil Rights Act of 1964. In those circuits the personal injury statutes were applied because Rehabilitation Act claims are injuries to individuals and analogous to personal injury claims.\nMorse and Hall are readily distinguishable from the instant case on the grounds that the respective states had not enacted statutes forbidding discrimination against disabled persons or similar statutes. Those courts, on the one hand, could not consider applying a statute of limitations found in a state statute which had been modeled on the Rehabilitation Act. Virginia, on the other hand, seemingly intended its legislation to track the federal Act and provide its citizens with the same rights and remedies. The Virginia Act states\nThe Department for Rights of Virginians with Disabilities shall promulgate such regulations as may be necessary to implement this section. Such regulations shall be consistent, whenever applicable, with regulations imposed under the Federal Rehabilitation Act of 1973....\nVa.Code Ann. § 51.5-43. Both statutes prohibit discrimination against handicapped persons by entities that receive either state or federal funding. Id. at § 51.5-40 and 29 U.S.C. § 794. Portions of the Virginia Act directly quote from the corresponding sections of the Rehabilitation Act. Both the Rehabilitation Act and the Virginia Act afford only equitable remedies. Applying the Virginia Act’s statute of limitations is consistent with the mandates of Wilson and Goodman.\nOnly in Hickey did a court have the opportunity to apply a statute aimed at ending discrimination based on handicapped status. Hickey, 976 F.2d at 982. There the court noted, however, that “[t]he Texas statute which prohibits discrimination against handicapped persons and creates a civil cause of action for redress of such discrimination does not contain a limitations period.” Id. at 982-83 n. 3. Therefore, it had to look to another statute. In a footnote the Hickey court examined numerous possible applicable statutes of limitations before deciding to use the one contained in the Texas personal injury statute. Id. In the instant action the district court should have looked no further than the Virginia Act.\nThe district court drew an analogy between this action and a Title VI action. Since Title VI has no statute of limitations, the court extended the analogy to section 1981 and 1983 actions. The district court’s reasoning overlooked the fact section 1983 actions cannot have parallel state law provisions. Therefore, district courts have to look to more general statutes and their limitations periods. The Wilson Court noted that\n[b]ecause the § 1983 remedy is one that can “override certain kinds of state laws” and is, in all events, “supplementary to any remedy any State might have,” it can have no precise counterpart in state law. Therefore, it is the “purest coincidence” when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect.\nWilson, 471 U.S. at 272, 105 S.Ct. at 1944 (citations omitted). Given that a section 1983 action does not have a counterpart in state law, a general personal injury statute of limitations may be appropriate. Wilson acknowledged that minor differences between state and federal statutes are acceptable and the most analogous statute need not be identical. Id. In the instant matter, however, the Rehabilitation Act does have an exact state law counterpart.\nWolsky contends that the exact counterpart or most similar state statute analogy is not appropriate, but fails to demonstrate precisely how it is inappropriate. He argues that even if the exact counterpart analysis is correct, the Virginia Act exempts some discrimination that the federal law permits and therefore that the Virginia Act is not an exact counterpart. We find the distinctions between the two statutes are not significant enough to decline applying the statute of limitations as set forth in the Virginia Act.\nIll\nGiven that the Virginia Act is modeled after the Rehabilitation Act, we break with the conclusions of the other circuits to apply a personal injury statute of limitations. See Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir.1992); Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir.1992); Hall v. Knott County Bd. of Educ., 941 F.2d 402, 409-10 (6th Cir.1991); Andrews v. Consolidated R.R. Corp., 831 F.2d 678, 683 (7th Cir.1987). The Virginia Act is the most analogous statute, and its statute of limitations is applicable. Therefore, the decision of the district court is reversed and the case is remanded to the district court with instructions to dismiss Wolsky’s claim.\nREVERSED AND REMANDED.\n. Section 1988(a) provides in relevant part:\nThe jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title and of Title “CIVIL RIGHTS,” ... shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the States wherein the court having jurisdiction of such civil ... case is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....\n42 U.S.C.A. § 1988(a).\n. The Fifth Circuit ably paraphrased the Wilson Court’s test of when to apply a state statute of limitations under section 1988:\n(1) follow federal law if federal law provides a limitations period; (2) apply the common law as modified by state constitution or statute, if no limitations period is provided by federal law; (3) but apply state law only if it is not inconsistent with the constitution and laws of the United States.\nHickey v. Irving Indep. School Dist, 976 F.2d 980, 982 (5th Cir.1992). We find this test instructive in the instant matter.\n[END_CASE]", "role": "user" } ]
10,509,500	Jan J. ROSCISZEWSKI, Assignee of Physical Dynamics, Incorporated, Plaintiff-Appellant, v. ARETE ASSOCIATES, INCORPORATED; David E. Mann; Richard A. Martini; Wilma R. Murphy; Frank Fernandez, Defendants-Appellees. (Two Cases)	Rosciszewski v. Arete Associates, Inc.	1993-07-29	Nos. 92-2122, 92-2390	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before WILKINS and LUTTIG, Circuit Judges, and KISER, United States District Judge for the Western District of Virginia, sitting by designation."], "parties": ["Jan J. ROSCISZEWSKI, Assignee of Physical Dynamics, Incorporated, Plaintiff-Appellant, v. ARETE ASSOCIATES, INCORPORATED; David E. Mann; Richard A. Martini; Wilma R. Murphy; Frank Fernandez, Defendants-Appellees. (Two Cases)"], "opinions": [{"text": "OPINION\nWILKINS, Circuit Judge:\nJan J. Rosciszewski appeals orders of the district court dismissing all counts of the complaint except one, remanding the remaining count (Count V) to state court, and awarding attorneys’ fees and costs in favor of Arete Associates, Incorporated, David E. Mann, Richard A Martini, Wilma R. Murphy, and Frank Fernandez (collectively, “Ar-ete”). Rosciszewski maintains that the district court lacked subject matter jurisdiction and therefore erroneously refused to remand the entire action to state court. In addition, Rosciszewski contends that the award of attorneys’ fees and costs was inappropriate and excessive. We conclude that subject matter jurisdiction was proper because § 301(a) of the Copyright Act, 17 U.S.C.A. § 301(a) (West 1977), completely preempts Rosciszew-ski’s claim that Arete violated § 18.2-152.3 of the Virginia Computer Crimes Act, Va.Code Ann. § 18.2-152.3 (Michie 1988). However, because we take this opportunity to adopt a legal standard for determining whether an award of attorneys’ fees and costs under 17 U.S.C.A. § 505 (West 1977) is appropriate, we vacate the award imposed by the district court and remand for the district court to exercise its discretion utilizing this standard.\nI.\nDuring the late 1980s, Physical Dynamics, Incorporated (PDI) engaged primarily in providing technical and computer research services to the United States Department of Defense. PDI developed a copyrighted computer program called ORBIS which was used to analyze military systems. As alleged by Rosciszewski, Appellee Mann, while employed as General Manager of PDI, executed an agreement to keep secret all confidential matters of PDI both during and after his employment. However, both during and after Mann’s employment with PDI, he attempted to persuade PDFs clients to engage in business with Arete by telling them that Arete possessed ORBIS and that PDI could not fulfill its contracts with them. Arete attempted to hire PDFs employees, particularly those computer programmers most knowledgeable about ORBIS, and some of PDFs key employees resigned from PDI to accept employment with Arete. Rosciszew-ski further alleges that two of these employees, acting under the direction of Arete, breached secure areas on PDFs property, accessed PDFs computer system, and procured copies of ORBIS and other proprietary works.\nApproximately one year prior to the litigation that is the subject of this appeal, PDI filed an action in the United States District Court for the Eastern District of Virginia against Appellees in this action. Seeking injunctive relief and damages, PDI alleged a cause of action for federal copyright infringement and seven state-law causes of action. PDI subsequently filed an amended complaint that omitted the state claims. The parties settled the federal copyright claim, and the district court entered a consent decree in March 1991.\nIn May 1992, Rosciszewski, as an assignee of PDI, filed the present action against Arete in the Circuit Court of Fairfax County, Virginia, attempting to litigate the state-law claims that had not been pursued in the earlier action. Rosciszewski alleged: (Count I) violations of the Virginia Computer Crimes Act, see Va.Code Ann. §§ 18.2-152.1 to .14 (Michie 1988 & Supp.1993); (Count II) violations of the Virginia Uniform Trade Secrets Act, see Va.Code Ann. §§ 59.1-336 to -343 (Michie 1992); (Count III) conspiracy to injure PDI; (Count IV) intentional interference with PDFs contract rights and business expectancies; (Count V) conversion of PDFs corporate funds; (Count VI) breach of fiduciary duties owed to PDI; and (Count VII) disparagement of PDFs business.\nArete removed the action to the United States District Court for the Eastern District of Virginia. Rosciszewski moved to remand the action to state court, arguing that the district court lacked subject matter jurisdiction. Arete responded by moving to dismiss Rosciszewski’s complaint on the alternative bases that all of the claims, except Count V, were barred by res judicata as a result of the prior consent decree and were preempted by § 301(a) of the Copyright Act. The district court agreed and granted Arete’s motion to dismiss. Denying Rosciszewski’s motion to remand the case in its entirety, the district court ordered that the remaining claim, Count V, be remanded to state court. After Rosciszewski filed a notice of appeal, however, the court stayed execution of its remand order. On appeal Rosciszewski does not contend that the district court was in error in holding that the claims, except for Count V, were barred by res judicata. Thus, since no challenge was made to this ruling, if jurisdiction was properly vested in the district court by virtue of preemption, it must stand absent plain error.\nThereafter, Arete moved for attorneys’ fees and costs pursuant to 17 U.S.C.A. § 505. The district court awarded $93,354.00 in fees and $3,141.87 in costs; Rosciszewski also appealed from this order. The two appeals have been consolidated before this court.\nII.\nRosciszewski maintains that the district court erred in finding that § 301(a) of the Copyright Act preempted the state-law claims alleged in the complaint. In addition, Rosciszewski argues that even if § 301(a) does preempt one of thé state-law claims, removal based on the preemption defense was improper because the claim did not arise under federal law. Thus, Rosciszewski concludes, because the district court lacked subject matter jurisdiction, it should have remanded the action to state court without addressing the merits. See Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). We first address whether § 301(a) of the Copyright Act preempted any of Rosciszewski’s claims. Concluding that Rosciszewski’s allegation that Arete violated § 18.2-152.3 of the Virginia Computer Crimes Act by copying PDFs ORBIS computer program is preempted, we then turn to the question of whether removal on this basis provided subject matter jurisdiction to the district court.\nA.\nSection 301(a) of the Copyright Act states in pertinent part:\n[A]ll legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 [of the Copyright Act] in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 ... are governed exclusively by this title.\n17 U.S.C.A. § 301(a) (West 1977). Thus, § 301(a) preempts state-law claims if “the work is within the scope of the ‘subject matter of copyright’ as specified in 17 U.S.C. §§ 102, 103” and “the rights granted under state law are equivalent to any exclusive rights within the scope of federal copyright as set out in 17 U.S.C. § 106.” Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir.1985), cert. denied, 479 U.S. 820, 107 S.Ct. 86, 93 L.Ed.2d 39 (1986).\nCount I of Rosciszewski’s complaint alleges that the unauthorized copying by Arete of PDFs ORBIS computer program violated § 18.2-152.3 of the Virginia Computer Crimes Act. The parties do not dispute that computer programs, like the one at issue here, are within the subject matter of copyright because they are “original works of authorship fixed in [a] tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C.A. § 102(a) (West Supp.1993); see Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 659 (4th Cir. 1993). The critical question before the court, then, is whether rights granted under the state laws upon which Rosciszewski relies are equivalent to any of the exclusive rights granted by copyright law. This is a question of law that we review de novo. See id. at *1.\nSection 106 of the'Copyright Act “affords a copyright owner the exclusive right to: (1) reproduce the copyrighted work; (2) prepare derivative works; (3) distribute copies of the work by sale or otherwise; and, with respect to certain artistic works, (4) perform the work publicly; and (5) display the work publicly.” Computer Assocs. Int’l v. Altai Inc., 982 F.2d 693, 716 (2d Cir.1992). In order to ascertain whether a specific state cause of action involves a right equivalent to one of those identified in § 106, reference must be made to the elements of the state cause of action. See Trandes Corp., 996 F.2d at 659. State-law claims that infringe one of the exclusive rights contained in § 106 are preempted by § 301(a) if the right defined by state law “ ‘may be abridged by an act which, in and of itself, would infringe one of the exclusive rights.’ ” Computer Assocs. Int’l, 982 F.2d at 716 (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195, 200 (2d Cir.1983), rev’d on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). However, “if an ‘extra element’ is ‘required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, ... there is no preemption,’” id. (quoting 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B], at 1-14 to 1-15 (1992)), provided that “the ‘extra element’ changes the ‘nature of the action so that it is qualitatively different from a copyright infringement claim,’ ” id. (quoting Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535 (S.D.N.Y.1985)); see Trandes Corp., 996 F.2d at 660.\nThe elements necessary to show a violation of § 18.2-152.3 of the Virginia Computer Crimes Act are: (1) that the defendant “use[d] a computer or computer network;” (2) “without authority;” and (3) “with the intent to ... [o]btain property or services by false pretenses; ... [e]mbezzle or commit larceny; or ... [cjonvert the property of another.” Va.Code Ann. § 18.2-152.3; see also id. § 18.2-152.12(A) (providing a civil cause of action for damages to one injured as a result of a violation of the Act).\nRosciszewski’s claim under the Virginia Computer Crimes Act does not require proof of elements beyond those necessary to prove copyright infringement of a computer program that make the claim qualitatively different from a copyright infringement claim; the core of both causes of action, in the context of Rosciszewski’s claim, is the unauthorized copying of a computer program. Cf. Trandes Corp., 996 F.2d at 658 (holding that a state claim of misappropriation of trade secrets is not preempted by § 301(a) because “the breach of a duty of trust or confidentiality comprises the core of actions for trade secret misappropriation”). That the first element of § 18.2-152.3 requires use of a computer does not qualitatively change the nature of the claim from that of unauthorized copying because, in the context of Rosciszewski’s claim, use of the computer is “a necessary condition to [the] copying.” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B], at 1-14 n. 62 (1992). Further, the second element of the violation of § 18.2-152.3, requiring that use of the computer be “without authority,” does' not add a qualitatively different element. The Virginia Computer Crimes Act specifies that “[a] person is ‘without authority’ when he has no right or permission of the owner to use a computer, or, he uses a computer in a manner exceeding such right or permission.” Va.Code Ann. § 18.2-152.2 (Michie 1988) (emphasis omitted). Thus, under § 18.2-152.3, unauthorized copying of a computer program, as alleged by Rosciszewski, necessarily involves using the computer without authority. The third element of a § 18.2-152.3 violation, “with the intent to ... [ojbtain property or services by false pretenses; ... [ejmbezzle or commit larceny; or ... [cjonvert the property of another,” does not add an element qualitatively changing the state claim from one of unauthorized copying; “[ajn action will not be saved from preemption by elements such as awareness or intent, which alter ‘the action’s scope but not its nature.’ ” Computer Assocs. Int’l, 982 F.2d at 717 (quoting Mayer, 601 F.Supp. at 1535). Consequently, we hold that the protection of computer programs from unauthorized copying granted under § 18.2-152.3 is equivalent to the exclusive right of the copyright owner to reproduce a copyrighted work under the Copyright Act. Therefore, Ros-ciszewski’s cause of action under this section is preempted to the extent that it is based on reproduction of the copyrighted computer program.\nB.\nHaving concluded that § 301(a) of the Copyright Act preempts one of Rosciszew-ski’s claims, we now consider whether removal on the basis of § 301(a) preemption was proper. “[AJny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States ... where such action is pending.” 28 U.S.C.A. § 1441(a) (West Supp.1993). “The district courts ... have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.A. § 1331 (West Supp.1993). Accordingly, an action filed in a state court that presents a question arising under federal law may be removed to federal district court “without regard to the citizenship or residence of the parties.” 28 U.S.C.A. § 1441(b) (West 1973).\nIn order to determine if an action arises under federal law, we must apply the well-pleaded complaint rule. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). This rule “provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Id. Because “[t]he well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to then-removal jurisdiction,” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10 n. 9, 103 S.Ct. 2841, 2847 n. 9, 77 L.Ed.2d 420 (1983), a plaintiff “may avoid federal jurisdiction by exclusive reliance on state law” in pleading its ease, Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. at 2429.\nGenerally, federal preemption is a defense to a plaintiffs action, and as such, “it does not appear on the face of a well-pleaded complaint.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). Consequently, it “does not authorize removal to federal court.” Id. In certain circumstances, however, “the preemptive force of [federal law] is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Caterpillar, Inc., 482 U.S. at 393, 107 S.Ct. at 2430 (quoting Metropolitan Life Ins. Co., 481 U.S. at 65, 107 S.Ct. at 1547). This so-called complete preemption occurs when “an area of state law has been [so] completely pre-empted, [that] any claim purportedly based on th[e] pre-empted state law is considered ... a federal claim.” Id. When state-law claims are completely preempted by federal law, the plaintiffs complaint arises under federal law and removal is proper. See Metropolitan Life Ins. Co., 481 U.S. at 67, 107 S.Ct. at 1548.\nThe parties correctly acknowledge that Rosciszewski’s complaint alleges only violations of state law. Arete nevertheless maintains that removal was proper because the Copyright Act is one of those areas of federal law that so completely preempts state law that it converts claims purportedly based on state law into claims under the Copyright Act. Having previously concluded that § 301(a) of the Copyright Act preempts Ros-ciszewski’s claim that Arete violated the Virginia Computer Crimes Act by copying PDI’s ORBIS computer program, we must resolve whether the complete preemption doctrine made removal proper.\nIn Metropolitan Life Insurance Co., 481 U.S. at 63-67, 107 S.Ct. at 1546-48, the Supreme Court upheld removal of state-law causes of action that came within the scope of § 502(a)(1)(B) of ERISA, 29 U.S.C.A. § 1132(a)(1)(B) (West 1985 & Supp.1993), and that were preempted by § 514(a), 29 U.S.C.A. § 1144(a) (West 1985). The Court stated that, despite “the unique pre-emptive force of ERISA,” it nevertheless “would be reluctant to” infer that the preemptive force of ERISA is so extraordinary as to convert state causes of action into “federal elaim[s] for purposes of the well-pleaded complaint rule,” absent clearly expressed congressional intent. Id. at 65, 107 S.Ct. at 1547. Thus, in deciding whether the preemptive force of the Copyright Act is so extraordinary that a state-law claim, preempted by § 301(a), becomes federal in nature, the focus of our inquiry must be congressional intent. See id.; see also 13B Charles A. Wright et al., Federal Practice and Procedure § 3566 (Supp.1993) (“[T]he Supreme Court gives great weight to the intent of Congress” in resolving whether the complete preemption doctrine applies.).\nIn Metropolitan Life Insurance Co., the Court found congressional intent expressed through the fact that in § 502(f), granting the federal courts jurisdiction to accord relief under ERISA, Congress used language that was virtually identical to the language that had previously been interpreted by the Avco Court to provide for complete preemption of an action preempted by § 301 of the LMRA, 29 U.S.C.A. § 185 (West 1978). Id. at 65-66, 107 S.Ct. at 1547-48. In addition, the legislative history surrounding the enactment of ERISA, specifically the Conference Report, was instructive of congressional intent. It provided that although suits to enforce rights or recover benefits under an ERISA plan may be brought in state or federal court, “ ‘[a]ll such actions ... are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the [LMRA].’ ” Id. at 65-66, 107 S.Ct. at 1547-48 (emphasis omitted) (quoting H.R.Conf. Rep. No. 1280, 93d Cong., 2d Sess. 327 (1974)).\nWe likewise conclude that Congress intended that actions pre-empted by § 301(a) of the Copyright Act be regarded as arising under federal law. First, Congress employed a broad mandatory preemption provision for causes of action equivalent to copyright claims. See 17 U.S.C.A. § 301(a). Concerning this provision, Congress has stated, “The declaration ... in section 301 is intended to be stated in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation of its unqualified intention that Congress shall act preemptively.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 130 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5746. Thus, Congress has clearly indicated that state-law claims which come within the subject matter of copyright law and which protect rights equivalent to any of the exclusive rights within the scope of federal copyright law, such as Rosciszewski’s claim that Arete copied PDFs copyrighted ORBIS computer program, should be litigated only as federal copyright claims.\nSecond, 28 U.S.C.A. § 1338(a) (West 1976) provides in pertinent part, “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to ... copyrights_ Such jurisdiction shall be exclusive of the courts of the states in ... copyright cases.” Congress, therefore, afforded exclusive jurisdiction over copyright claims to the district courts, while providing for concurrent jurisdiction in state and federal courts over LMRA and ERISA actions. Compare 28 U.S.C.A. § 1338(a) with 28 U.S.C.A. § 1337 (West Supp.1993) and 29 U.S.C.A. § 1132(f). Thus, although Congress did not use language virtually identical to that contained in the jurisdictional provisions governing suits under the LMRA or ERISA, we view the grant of exclusive original jurisdiction over copyright claims to the district courts as strong evidence that Congress intended copyright litigation to take place in federal courts. Cf. Holman v. Laulo-Rowe Agency, 994 F.2d 666, 669 (9th Cir.1993) (refusing to apply complete preemption doctrine to suit raising only state-law claims because although the Federal Crop Insurance Act of 1978 granted exclusive jurisdiction to federal district courts over actions by or against the Federal Crop Insurance Corporation, that entity was not a party to the lawsuit).\nThe grant of exclusive jurisdiction to the federal district courts over civil actions arising under the Copyright Act, combined with the preemptive force of § 301(a), compels the conclusion that Congress intended that state-law actions preempted by § 301(a) of the Copyright Act arise under federal law. Accordingly, we hold that the preemptive force of § 301(a) of the Copyright Act transforms a state-law complaint asserting claims that are preempted by § 301(a) into a complaint stating a federal claim for purposes of the well-pleaded complaint rule. Since claims preempted by § 301(a) arise under federal law, removal of actions raising these claims to federal district court is proper. Therefore, the removal of Roseiszewski’s complaint was proper inasmuch as § 301(a) preempted the claim under § 18.2-152.3 of the Virginia Computer Crimes Act to the extent that it was based on Arete’s copying of PDI’s computer program ORBIS. The district court, accordingly, had subject matter jurisdiction.\nIII.\nRosciszewski next challenges the award of attorneys’ fees and costs to Arete. The district court awarded Arete $93,354.00 in attorneys’ fees and $3,141.87 in costs pursuant to § 505 of the Copyright Act, which provides in pertinent part:\nIn any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party.... Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.\n17 U.S.C.A. § 505 (West 1977).\nRosciszewski first claims that no award under § 505 was proper because the action was not one under Title 17. Rosciszewski maintains that the complaint alleged only violations of the laws of Virginia and that, therefore, § 505 is inapplicable. Rosciszew-ski offers no authority for this argument, and we do not find it persuasive. Rather, we conclude that when § 301(a) completely preempts a state-law claim, it becomes a federal claim under Title 17. Cf. Metropolitan Life Ins. Co., 481 U.S. at 67, 107 S.Ct. at 1548 (holding that suit alleging state-law claims that were completely preempted by ERISA “is necessarily federal in character”). Section 505, therefore, is applicable.\nRosciszewski next contends that a district court must find that the plaintiffs suit was frivolous or pursued in bad faith before an award of attorneys’ fees to a prevailing defendant is permitted. Although some courts have imposed such a requirement as a condition to a prevailing defendant’s receiving an award under § 505, see Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1022 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 181, 116 L.Ed.2d 143 (1991); Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1108 (9th Cir.1990); Roth v. Pritikin, 787 F.2d 54, 57 (2d Cir.1986), other courts have rejected such a requirement, see Lieb v. Topstone Indus., 788 F.2d 151, 155-56 (3d Cir.1986); Cohen v. Virginia Elec. & Power Co., 617 F.Supp. 619 (E.D.Va.1985), aff'd on other grounds, 788 F.2d 247 (4th Cir.1986). The Supreme Court recently granted certiorari to resolve the split in the circuits. See Fogerty v. Fantasy, Inc., — U.S. -, 113 S.Ct. 2992, 125 L.Ed.2d 687 (1993).\nBecause we find “no indication either in statutory language or legislative history that bad faith should be a prerequisite to a fee award, we decline to” condition an award of attorneys’ fees under § 505 to a prevailing defendant on a finding that the plaintiff pursued copyright litigation in bad faith. Lieb, 788 F.2d at 155. The statute imposes no such requirement, instead leaving the award of fees to the sound discretion of the trial court. Cf. Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1028-30 (4th Cir.1993) (en banc) (declining to recognize a presumption in favor of awarding prevailing ERISA plaintiffs attorneys’ fees because statute permitting award left decision to discretion of district court).\nAs noted by the district court, this court has not heretofore specifically addressed the standard a district court should apply in exercising its discretion to award attorneys’ fees and costs under § 505. We now take this opportunity to do so. In deciding whether to award attorneys’ fees and costs under § 505, the district court should consider, and make findings with respect to, the following factors. First, the district court should evaluate the motivation of the parties. Lieb, 788 F.2d at 156. While a finding of willful infringement or bad faith on the part of the opposing party properly may be considered by the district court, the presence or absence of such motivation is not necessarily dispositive. Id. Second, the district court should weigh the objective reasonableness of the legal and factual positions advanced. Id. The court may consider, for example, whether the positions advanced by the parties were frivolous, on the one hand, or well-grounded in law and fact, on the other. Third, the court should consider “the need in particular circumstances to advance considerations of compensation and deterrence.” Id. In evaluating this factor, the court may find relevant, among other circumstances, the ability of the non-prevailing party to fund an award. Finally, these enumerated factors are not intended as an exhaustive list; the district court may also weigh any other relevant factor presented. Id.\nAlthough the district court found an award of attorneys’ fees and costs to Arete justified by Rosciszewski’s concession that the majority of the claims forwarded were barred by res judicata, it did not have the benefit of our holding today establishing the factors that should be considered in making this determination. We therefore remand for the district court to consider whether an award to Arete under § 505 is appropriate under this standard.\nrv.\nIn sum, we conclude that § 301(a) of the Copyright Act preempts Rosciszewski’s claim that Arete violated § 18.2-152.3 of the Virginia Computer Crimes Act by copying PDFs ORBIS computer program and that claims preempted by § 301(a) of the Copyright Act arise under federal law for purposes of applying the well-pleaded complaint rule. Thus, removal from state to federal court of state-law claims that are preempted by § 301(a) of the Copyright Act is proper. Accordingly, we hold that removal of Roscis-zewski’s action to federal district court was proper and, therefore, that the district court had jurisdiction to dismiss Counts I, II, III, IV, VI, and VII on the basis of res judicata. However, because the district court did not have the benefit of the legal standard we adopt to determine whether an award of attorneys’ fees and costs under 17 U.S.C.A. § 505 is appropriate, we vacate the award and remand for further proceedings.\nAFFIRMED IN PART; VACATED AND REMANDED IN PART.\n. Although irrelevant to the issues presented here, we note that Frank Fernandez was not a party to the prior litigation.\n. Rosciszewski also alleges numerous other ways in which Arete violated the Virginia Computer Crimes Act that are not pertinent to this discussion. For example, Rosciszewski alleges that Arete committed computer trespass in violation of § 18.2-152.4(6) of the Virginia Computer Crimes Act by using PDFs computer facilities without authority. See Va.Code Ann. § 18.2— 152.4(6) (Michie Supp.1993).\n. While the ruling of the district court that all of the state-law claims alleged by Rosciszewski in Counts I, II, III, IV, VI, and VII were preempted is obviously erroneous, we need not resolve whether each of these claims is preempted by § 301(a). Based on our conclusion in Part II.B. that the complete preemption doctrine applies, our decision that Rosciszewski’s claim of unauthorized copying' under § 18.2-152.3 of the Virginia.Computer Crimes Act is preempted is sufficient to make removal of that claim proper. See 28 U.S.C.A. § 1441(b) (West 1973). The remainder of the claims were properly removed to the district court pursuant to 28 U.S.C.A. § 1441(c) (West Supp.1993).\n. The Supreme Court has found complete preemption in only a few situations — for example, claims alleging a breach of-a collective bargaining agreement that fall under § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C.A. § 185 (West 1978), see Avco Corp. v. Aero Lodge No. 735, Int'l Assoc. of Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968), and claims for benefits or enforcement of rights under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1001 et seq. (West 1985 & Supp.1993), see Metropolitan Life Ins. Co., 481 U.S. at 63-67, 107 S.Ct. at 1546-48.\n. Section 502(f) of ERISA provides:\nThe district courts of the United States shall have jurisdiction, without respect to the amount in controversy or the citizenship of the parties, to grant the relief provided for in subsection (a) of this section in any action.\n29 U.S.C.A. § 1132(f) (West 1985).\n. When Congress enacted both 28 U.S.C.A. § 1338(a) and 17 U.S.C.A. § 301(a), the derivative jurisdiction rule prevented removal of claims within the exclusive jurisdiction of the federal courts. See generally 14A Charles A. Wright et ah, Federal Practice and Procedure § 3721, at 195198 (1985). The derivative jurisdiction rule was not abolished until 1986. See id. at § 3721 (Supp.1993); see also 28 U.S.C.A. § 1441(e) (West Supp.1993) (permitting district court to hear claims removed from state court even if state court did not have jurisdiction). Thus, although there is no language in the legislative history surrounding the enactment of the Copyright Act to indicate that state claims preempted by copyright law are removable, this omission is not indicative of a congressional intent that such an action not be removable. Gemcraft Homes, Inc. v. Sumurdy, 688 F.Supp. 289, 293-94 (E.D.Tex.1988). In addition, because § 1338(a) was adopted prior to Avco, we do not draw a negative inference from the failure of Congress to reference that opinion. Cf. Metropolitan Life Ins. Co., 481 U.S. at 65-66, 107 S.Ct. at 1547-48 (relying on statement in legislative history of ERISA that actions for benefits under ERISA plans are to be regarded as arising under federal law in the same manner as actions under § 301 of the LMRA).\n. Rosciszewski also asserts that because § 505 provides for a reasonable \"attorney's fee,” the district court should only have awarded a fee to one of Arete’s attorneys. Rosciszewski offers no support for such a position, and we conclude that this argument lacks merit. We do not read the statute as limiting a fee award to one attorney only.\n. Rosciszewski also maintains that the fees awarded to Arete were excessive and unreasonable. While the award appears to be unreasonably high on its face, we do not reach this issue since we must vacate the award of fees and remand to permit the district court to determine the appropriateness of the fee award under the legal standard we adopt today. We remind the district court that if it finds an award to be appropriate, it must make specific findings on each of the factors set forth in Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 & n. 28 (4th Cir.), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978), in order to facilitate our review of the reasonableness of the amount of the fee award.\n. The decision of the district court that each of Rosciszewski's causes of action, except Count V, was barred by res judicata does not present plain error, and permitting the decision to stand will not result in a miscarriage of justice. Thus, since Rosciszewski does not challenge this ruling of the district court, it must stand.", "type": "majority", "author": "WILKINS, Circuit Judge:"}], "attorneys": ["Alex N. Saleh, David L. Duff, P.C., Fair-fax, VA, argued, for appellant.", "Mark L. Gerchiek, Paul, Hastings, Janof-sky & Walker, Washington, DC (Kenneth M. Willner, Michael D. Taxay, on brief), for ap-pellees."], "corrections": "", "head_matter": "Jan J. ROSCISZEWSKI, Assignee of Physical Dynamics, Incorporated, Plaintiff-Appellant, v. ARETE ASSOCIATES, INCORPORATED; David E. Mann; Richard A. Martini; Wilma R. Murphy; Frank Fernandez, Defendants-Appellees. (Two Cases)\nNos. 92-2122, 92-2390.\nUnited States Court of Appeals, Fourth Circuit.\nArgued May 5, 1993.\nDecided July 29, 1993.\nAlex N. Saleh, David L. Duff, P.C., Fair-fax, VA, argued, for appellant.\nMark L. Gerchiek, Paul, Hastings, Janof-sky & Walker, Washington, DC (Kenneth M. Willner, Michael D. Taxay, on brief), for ap-pellees.\nBefore WILKINS and LUTTIG, Circuit Judges, and KISER, United States District Judge for the Western District of Virginia, sitting by designation."}	WILKINS	LUTTIG	KISER	1	1	1	0	0	0	1 F.3d 225	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jan J. ROSCISZEWSKI, Assignee of Physical Dynamics, Incorporated, Plaintiff-Appellant, v. ARETE ASSOCIATES, INCORPORATED; David E. Mann; Richard A. Martini; Wilma R. Murphy; Frank Fernandez, Defendants-Appellees. (Two Cases)\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-07-29\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nWILKINS, Circuit Judge:\nJan J. Rosciszewski appeals orders of the district court dismissing all counts of the complaint except one, remanding the remaining count (Count V) to state court, and awarding attorneys’ fees and costs in favor of Arete Associates, Incorporated, David E. Mann, Richard A Martini, Wilma R. Murphy, and Frank Fernandez (collectively, “Ar-ete”). Rosciszewski maintains that the district court lacked subject matter jurisdiction and therefore erroneously refused to remand the entire action to state court. In addition, Rosciszewski contends that the award of attorneys’ fees and costs was inappropriate and excessive. We conclude that subject matter jurisdiction was proper because § 301(a) of the Copyright Act, 17 U.S.C.A. § 301(a) (West 1977), completely preempts Rosciszew-ski’s claim that Arete violated § 18.2-152.3 of the Virginia Computer Crimes Act, Va.Code Ann. § 18.2-152.3 (Michie 1988). However, because we take this opportunity to adopt a legal standard for determining whether an award of attorneys’ fees and costs under 17 U.S.C.A. § 505 (West 1977) is appropriate, we vacate the award imposed by the district court and remand for the district court to exercise its discretion utilizing this standard.\nI.\nDuring the late 1980s, Physical Dynamics, Incorporated (PDI) engaged primarily in providing technical and computer research services to the United States Department of Defense. PDI developed a copyrighted computer program called ORBIS which was used to analyze military systems. As alleged by Rosciszewski, Appellee Mann, while employed as General Manager of PDI, executed an agreement to keep secret all confidential matters of PDI both during and after his employment. However, both during and after Mann’s employment with PDI, he attempted to persuade PDFs clients to engage in business with Arete by telling them that Arete possessed ORBIS and that PDI could not fulfill its contracts with them. Arete attempted to hire PDFs employees, particularly those computer programmers most knowledgeable about ORBIS, and some of PDFs key employees resigned from PDI to accept employment with Arete. Rosciszew-ski further alleges that two of these employees, acting under the direction of Arete, breached secure areas on PDFs property, accessed PDFs computer system, and procured copies of ORBIS and other proprietary works.\nApproximately one year prior to the litigation that is the subject of this appeal, PDI filed an action in the United States District Court for the Eastern District of Virginia against Appellees in this action. Seeking injunctive relief and damages, PDI alleged a cause of action for federal copyright infringement and seven state-law causes of action. PDI subsequently filed an amended complaint that omitted the state claims. The parties settled the federal copyright claim, and the district court entered a consent decree in March 1991.\nIn May 1992, Rosciszewski, as an assignee of PDI, filed the present action against Arete in the Circuit Court of Fairfax County, Virginia, attempting to litigate the state-law claims that had not been pursued in the earlier action. Rosciszewski alleged: (Count I) violations of the Virginia Computer Crimes Act, see Va.Code Ann. §§ 18.2-152.1 to .14 (Michie 1988 & Supp.1993); (Count II) violations of the Virginia Uniform Trade Secrets Act, see Va.Code Ann. §§ 59.1-336 to -343 (Michie 1992); (Count III) conspiracy to injure PDI; (Count IV) intentional interference with PDFs contract rights and business expectancies; (Count V) conversion of PDFs corporate funds; (Count VI) breach of fiduciary duties owed to PDI; and (Count VII) disparagement of PDFs business.\nArete removed the action to the United States District Court for the Eastern District of Virginia. Rosciszewski moved to remand the action to state court, arguing that the district court lacked subject matter jurisdiction. Arete responded by moving to dismiss Rosciszewski’s complaint on the alternative bases that all of the claims, except Count V, were barred by res judicata as a result of the prior consent decree and were preempted by § 301(a) of the Copyright Act. The district court agreed and granted Arete’s motion to dismiss. Denying Rosciszewski’s motion to remand the case in its entirety, the district court ordered that the remaining claim, Count V, be remanded to state court. After Rosciszewski filed a notice of appeal, however, the court stayed execution of its remand order. On appeal Rosciszewski does not contend that the district court was in error in holding that the claims, except for Count V, were barred by res judicata. Thus, since no challenge was made to this ruling, if jurisdiction was properly vested in the district court by virtue of preemption, it must stand absent plain error.\nThereafter, Arete moved for attorneys’ fees and costs pursuant to 17 U.S.C.A. § 505. The district court awarded $93,354.00 in fees and $3,141.87 in costs; Rosciszewski also appealed from this order. The two appeals have been consolidated before this court.\nII.\nRosciszewski maintains that the district court erred in finding that § 301(a) of the Copyright Act preempted the state-law claims alleged in the complaint. In addition, Rosciszewski argues that even if § 301(a) does preempt one of thé state-law claims, removal based on the preemption defense was improper because the claim did not arise under federal law. Thus, Rosciszewski concludes, because the district court lacked subject matter jurisdiction, it should have remanded the action to state court without addressing the merits. See Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). We first address whether § 301(a) of the Copyright Act preempted any of Rosciszewski’s claims. Concluding that Rosciszewski’s allegation that Arete violated § 18.2-152.3 of the Virginia Computer Crimes Act by copying PDFs ORBIS computer program is preempted, we then turn to the question of whether removal on this basis provided subject matter jurisdiction to the district court.\nA.\nSection 301(a) of the Copyright Act states in pertinent part:\n[A]ll legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 [of the Copyright Act] in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 ... are governed exclusively by this title.\n17 U.S.C.A. § 301(a) (West 1977). Thus, § 301(a) preempts state-law claims if “the work is within the scope of the ‘subject matter of copyright’ as specified in 17 U.S.C. §§ 102, 103” and “the rights granted under state law are equivalent to any exclusive rights within the scope of federal copyright as set out in 17 U.S.C. § 106.” Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir.1985), cert. denied, 479 U.S. 820, 107 S.Ct. 86, 93 L.Ed.2d 39 (1986).\nCount I of Rosciszewski’s complaint alleges that the unauthorized copying by Arete of PDFs ORBIS computer program violated § 18.2-152.3 of the Virginia Computer Crimes Act. The parties do not dispute that computer programs, like the one at issue here, are within the subject matter of copyright because they are “original works of authorship fixed in [a] tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C.A. § 102(a) (West Supp.1993); see Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 659 (4th Cir. 1993). The critical question before the court, then, is whether rights granted under the state laws upon which Rosciszewski relies are equivalent to any of the exclusive rights granted by copyright law. This is a question of law that we review de novo. See id. at *1.\nSection 106 of the'Copyright Act “affords a copyright owner the exclusive right to: (1) reproduce the copyrighted work; (2) prepare derivative works; (3) distribute copies of the work by sale or otherwise; and, with respect to certain artistic works, (4) perform the work publicly; and (5) display the work publicly.” Computer Assocs. Int’l v. Altai Inc., 982 F.2d 693, 716 (2d Cir.1992). In order to ascertain whether a specific state cause of action involves a right equivalent to one of those identified in § 106, reference must be made to the elements of the state cause of action. See Trandes Corp., 996 F.2d at 659. State-law claims that infringe one of the exclusive rights contained in § 106 are preempted by § 301(a) if the right defined by state law “ ‘may be abridged by an act which, in and of itself, would infringe one of the exclusive rights.’ ” Computer Assocs. Int’l, 982 F.2d at 716 (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195, 200 (2d Cir.1983), rev’d on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). However, “if an ‘extra element’ is ‘required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, ... there is no preemption,’” id. (quoting 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B], at 1-14 to 1-15 (1992)), provided that “the ‘extra element’ changes the ‘nature of the action so that it is qualitatively different from a copyright infringement claim,’ ” id. (quoting Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535 (S.D.N.Y.1985)); see Trandes Corp., 996 F.2d at 660.\nThe elements necessary to show a violation of § 18.2-152.3 of the Virginia Computer Crimes Act are: (1) that the defendant “use[d] a computer or computer network;” (2) “without authority;” and (3) “with the intent to ... [o]btain property or services by false pretenses; ... [e]mbezzle or commit larceny; or ... [cjonvert the property of another.” Va.Code Ann. § 18.2-152.3; see also id. § 18.2-152.12(A) (providing a civil cause of action for damages to one injured as a result of a violation of the Act).\nRosciszewski’s claim under the Virginia Computer Crimes Act does not require proof of elements beyond those necessary to prove copyright infringement of a computer program that make the claim qualitatively different from a copyright infringement claim; the core of both causes of action, in the context of Rosciszewski’s claim, is the unauthorized copying of a computer program. Cf. Trandes Corp., 996 F.2d at 658 (holding that a state claim of misappropriation of trade secrets is not preempted by § 301(a) because “the breach of a duty of trust or confidentiality comprises the core of actions for trade secret misappropriation”). That the first element of § 18.2-152.3 requires use of a computer does not qualitatively change the nature of the claim from that of unauthorized copying because, in the context of Rosciszewski’s claim, use of the computer is “a necessary condition to [the] copying.” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B], at 1-14 n. 62 (1992). Further, the second element of the violation of § 18.2-152.3, requiring that use of the computer be “without authority,” does' not add a qualitatively different element. The Virginia Computer Crimes Act specifies that “[a] person is ‘without authority’ when he has no right or permission of the owner to use a computer, or, he uses a computer in a manner exceeding such right or permission.” Va.Code Ann. § 18.2-152.2 (Michie 1988) (emphasis omitted). Thus, under § 18.2-152.3, unauthorized copying of a computer program, as alleged by Rosciszewski, necessarily involves using the computer without authority. The third element of a § 18.2-152.3 violation, “with the intent to ... [ojbtain property or services by false pretenses; ... [ejmbezzle or commit larceny; or ... [cjonvert the property of another,” does not add an element qualitatively changing the state claim from one of unauthorized copying; “[ajn action will not be saved from preemption by elements such as awareness or intent, which alter ‘the action’s scope but not its nature.’ ” Computer Assocs. Int’l, 982 F.2d at 717 (quoting Mayer, 601 F.Supp. at 1535). Consequently, we hold that the protection of computer programs from unauthorized copying granted under § 18.2-152.3 is equivalent to the exclusive right of the copyright owner to reproduce a copyrighted work under the Copyright Act. Therefore, Ros-ciszewski’s cause of action under this section is preempted to the extent that it is based on reproduction of the copyrighted computer program.\nB.\nHaving concluded that § 301(a) of the Copyright Act preempts one of Rosciszew-ski’s claims, we now consider whether removal on the basis of § 301(a) preemption was proper. “[AJny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States ... where such action is pending.” 28 U.S.C.A. § 1441(a) (West Supp.1993). “The district courts ... have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.A. § 1331 (West Supp.1993). Accordingly, an action filed in a state court that presents a question arising under federal law may be removed to federal district court “without regard to the citizenship or residence of the parties.” 28 U.S.C.A. § 1441(b) (West 1973).\nIn order to determine if an action arises under federal law, we must apply the well-pleaded complaint rule. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). This rule “provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Id. Because “[t]he well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to then-removal jurisdiction,” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10 n. 9, 103 S.Ct. 2841, 2847 n. 9, 77 L.Ed.2d 420 (1983), a plaintiff “may avoid federal jurisdiction by exclusive reliance on state law” in pleading its ease, Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. at 2429.\nGenerally, federal preemption is a defense to a plaintiffs action, and as such, “it does not appear on the face of a well-pleaded complaint.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). Consequently, it “does not authorize removal to federal court.” Id. In certain circumstances, however, “the preemptive force of [federal law] is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Caterpillar, Inc., 482 U.S. at 393, 107 S.Ct. at 2430 (quoting Metropolitan Life Ins. Co., 481 U.S. at 65, 107 S.Ct. at 1547). This so-called complete preemption occurs when “an area of state law has been [so] completely pre-empted, [that] any claim purportedly based on th[e] pre-empted state law is considered ... a federal claim.” Id. When state-law claims are completely preempted by federal law, the plaintiffs complaint arises under federal law and removal is proper. See Metropolitan Life Ins. Co., 481 U.S. at 67, 107 S.Ct. at 1548.\nThe parties correctly acknowledge that Rosciszewski’s complaint alleges only violations of state law. Arete nevertheless maintains that removal was proper because the Copyright Act is one of those areas of federal law that so completely preempts state law that it converts claims purportedly based on state law into claims under the Copyright Act. Having previously concluded that § 301(a) of the Copyright Act preempts Ros-ciszewski’s claim that Arete violated the Virginia Computer Crimes Act by copying PDI’s ORBIS computer program, we must resolve whether the complete preemption doctrine made removal proper.\nIn Metropolitan Life Insurance Co., 481 U.S. at 63-67, 107 S.Ct. at 1546-48, the Supreme Court upheld removal of state-law causes of action that came within the scope of § 502(a)(1)(B) of ERISA, 29 U.S.C.A. § 1132(a)(1)(B) (West 1985 & Supp.1993), and that were preempted by § 514(a), 29 U.S.C.A. § 1144(a) (West 1985). The Court stated that, despite “the unique pre-emptive force of ERISA,” it nevertheless “would be reluctant to” infer that the preemptive force of ERISA is so extraordinary as to convert state causes of action into “federal elaim[s] for purposes of the well-pleaded complaint rule,” absent clearly expressed congressional intent. Id. at 65, 107 S.Ct. at 1547. Thus, in deciding whether the preemptive force of the Copyright Act is so extraordinary that a state-law claim, preempted by § 301(a), becomes federal in nature, the focus of our inquiry must be congressional intent. See id.; see also 13B Charles A. Wright et al., Federal Practice and Procedure § 3566 (Supp.1993) (“[T]he Supreme Court gives great weight to the intent of Congress” in resolving whether the complete preemption doctrine applies.).\nIn Metropolitan Life Insurance Co., the Court found congressional intent expressed through the fact that in § 502(f), granting the federal courts jurisdiction to accord relief under ERISA, Congress used language that was virtually identical to the language that had previously been interpreted by the Avco Court to provide for complete preemption of an action preempted by § 301 of the LMRA, 29 U.S.C.A. § 185 (West 1978). Id. at 65-66, 107 S.Ct. at 1547-48. In addition, the legislative history surrounding the enactment of ERISA, specifically the Conference Report, was instructive of congressional intent. It provided that although suits to enforce rights or recover benefits under an ERISA plan may be brought in state or federal court, “ ‘[a]ll such actions ... are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the [LMRA].’ ” Id. at 65-66, 107 S.Ct. at 1547-48 (emphasis omitted) (quoting H.R.Conf. Rep. No. 1280, 93d Cong., 2d Sess. 327 (1974)).\nWe likewise conclude that Congress intended that actions pre-empted by § 301(a) of the Copyright Act be regarded as arising under federal law. First, Congress employed a broad mandatory preemption provision for causes of action equivalent to copyright claims. See 17 U.S.C.A. § 301(a). Concerning this provision, Congress has stated, “The declaration ... in section 301 is intended to be stated in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation of its unqualified intention that Congress shall act preemptively.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 130 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5746. Thus, Congress has clearly indicated that state-law claims which come within the subject matter of copyright law and which protect rights equivalent to any of the exclusive rights within the scope of federal copyright law, such as Rosciszewski’s claim that Arete copied PDFs copyrighted ORBIS computer program, should be litigated only as federal copyright claims.\nSecond, 28 U.S.C.A. § 1338(a) (West 1976) provides in pertinent part, “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to ... copyrights_ Such jurisdiction shall be exclusive of the courts of the states in ... copyright cases.” Congress, therefore, afforded exclusive jurisdiction over copyright claims to the district courts, while providing for concurrent jurisdiction in state and federal courts over LMRA and ERISA actions. Compare 28 U.S.C.A. § 1338(a) with 28 U.S.C.A. § 1337 (West Supp.1993) and 29 U.S.C.A. § 1132(f). Thus, although Congress did not use language virtually identical to that contained in the jurisdictional provisions governing suits under the LMRA or ERISA, we view the grant of exclusive original jurisdiction over copyright claims to the district courts as strong evidence that Congress intended copyright litigation to take place in federal courts. Cf. Holman v. Laulo-Rowe Agency, 994 F.2d 666, 669 (9th Cir.1993) (refusing to apply complete preemption doctrine to suit raising only state-law claims because although the Federal Crop Insurance Act of 1978 granted exclusive jurisdiction to federal district courts over actions by or against the Federal Crop Insurance Corporation, that entity was not a party to the lawsuit).\nThe grant of exclusive jurisdiction to the federal district courts over civil actions arising under the Copyright Act, combined with the preemptive force of § 301(a), compels the conclusion that Congress intended that state-law actions preempted by § 301(a) of the Copyright Act arise under federal law. Accordingly, we hold that the preemptive force of § 301(a) of the Copyright Act transforms a state-law complaint asserting claims that are preempted by § 301(a) into a complaint stating a federal claim for purposes of the well-pleaded complaint rule. Since claims preempted by § 301(a) arise under federal law, removal of actions raising these claims to federal district court is proper. Therefore, the removal of Roseiszewski’s complaint was proper inasmuch as § 301(a) preempted the claim under § 18.2-152.3 of the Virginia Computer Crimes Act to the extent that it was based on Arete’s copying of PDI’s computer program ORBIS. The district court, accordingly, had subject matter jurisdiction.\nIII.\nRosciszewski next challenges the award of attorneys’ fees and costs to Arete. The district court awarded Arete $93,354.00 in attorneys’ fees and $3,141.87 in costs pursuant to § 505 of the Copyright Act, which provides in pertinent part:\nIn any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party.... Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.\n17 U.S.C.A. § 505 (West 1977).\nRosciszewski first claims that no award under § 505 was proper because the action was not one under Title 17. Rosciszewski maintains that the complaint alleged only violations of the laws of Virginia and that, therefore, § 505 is inapplicable. Rosciszew-ski offers no authority for this argument, and we do not find it persuasive. Rather, we conclude that when § 301(a) completely preempts a state-law claim, it becomes a federal claim under Title 17. Cf. Metropolitan Life Ins. Co., 481 U.S. at 67, 107 S.Ct. at 1548 (holding that suit alleging state-law claims that were completely preempted by ERISA “is necessarily federal in character”). Section 505, therefore, is applicable.\nRosciszewski next contends that a district court must find that the plaintiffs suit was frivolous or pursued in bad faith before an award of attorneys’ fees to a prevailing defendant is permitted. Although some courts have imposed such a requirement as a condition to a prevailing defendant’s receiving an award under § 505, see Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1022 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 181, 116 L.Ed.2d 143 (1991); Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1108 (9th Cir.1990); Roth v. Pritikin, 787 F.2d 54, 57 (2d Cir.1986), other courts have rejected such a requirement, see Lieb v. Topstone Indus., 788 F.2d 151, 155-56 (3d Cir.1986); Cohen v. Virginia Elec. & Power Co., 617 F.Supp. 619 (E.D.Va.1985), aff'd on other grounds, 788 F.2d 247 (4th Cir.1986). The Supreme Court recently granted certiorari to resolve the split in the circuits. See Fogerty v. Fantasy, Inc., — U.S. -, 113 S.Ct. 2992, 125 L.Ed.2d 687 (1993).\nBecause we find “no indication either in statutory language or legislative history that bad faith should be a prerequisite to a fee award, we decline to” condition an award of attorneys’ fees under § 505 to a prevailing defendant on a finding that the plaintiff pursued copyright litigation in bad faith. Lieb, 788 F.2d at 155. The statute imposes no such requirement, instead leaving the award of fees to the sound discretion of the trial court. Cf. Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1028-30 (4th Cir.1993) (en banc) (declining to recognize a presumption in favor of awarding prevailing ERISA plaintiffs attorneys’ fees because statute permitting award left decision to discretion of district court).\nAs noted by the district court, this court has not heretofore specifically addressed the standard a district court should apply in exercising its discretion to award attorneys’ fees and costs under § 505. We now take this opportunity to do so. In deciding whether to award attorneys’ fees and costs under § 505, the district court should consider, and make findings with respect to, the following factors. First, the district court should evaluate the motivation of the parties. Lieb, 788 F.2d at 156. While a finding of willful infringement or bad faith on the part of the opposing party properly may be considered by the district court, the presence or absence of such motivation is not necessarily dispositive. Id. Second, the district court should weigh the objective reasonableness of the legal and factual positions advanced. Id. The court may consider, for example, whether the positions advanced by the parties were frivolous, on the one hand, or well-grounded in law and fact, on the other. Third, the court should consider “the need in particular circumstances to advance considerations of compensation and deterrence.” Id. In evaluating this factor, the court may find relevant, among other circumstances, the ability of the non-prevailing party to fund an award. Finally, these enumerated factors are not intended as an exhaustive list; the district court may also weigh any other relevant factor presented. Id.\nAlthough the district court found an award of attorneys’ fees and costs to Arete justified by Rosciszewski’s concession that the majority of the claims forwarded were barred by res judicata, it did not have the benefit of our holding today establishing the factors that should be considered in making this determination. We therefore remand for the district court to consider whether an award to Arete under § 505 is appropriate under this standard.\nrv.\nIn sum, we conclude that § 301(a) of the Copyright Act preempts Rosciszewski’s claim that Arete violated § 18.2-152.3 of the Virginia Computer Crimes Act by copying PDFs ORBIS computer program and that claims preempted by § 301(a) of the Copyright Act arise under federal law for purposes of applying the well-pleaded complaint rule. Thus, removal from state to federal court of state-law claims that are preempted by § 301(a) of the Copyright Act is proper. Accordingly, we hold that removal of Roscis-zewski’s action to federal district court was proper and, therefore, that the district court had jurisdiction to dismiss Counts I, II, III, IV, VI, and VII on the basis of res judicata. However, because the district court did not have the benefit of the legal standard we adopt to determine whether an award of attorneys’ fees and costs under 17 U.S.C.A. § 505 is appropriate, we vacate the award and remand for further proceedings.\nAFFIRMED IN PART; VACATED AND REMANDED IN PART.\n. Although irrelevant to the issues presented here, we note that Frank Fernandez was not a party to the prior litigation.\n. Rosciszewski also alleges numerous other ways in which Arete violated the Virginia Computer Crimes Act that are not pertinent to this discussion. For example, Rosciszewski alleges that Arete committed computer trespass in violation of § 18.2-152.4(6) of the Virginia Computer Crimes Act by using PDFs computer facilities without authority. See Va.Code Ann. § 18.2— 152.4(6) (Michie Supp.1993).\n. While the ruling of the district court that all of the state-law claims alleged by Rosciszewski in Counts I, II, III, IV, VI, and VII were preempted is obviously erroneous, we need not resolve whether each of these claims is preempted by § 301(a). Based on our conclusion in Part II.B. that the complete preemption doctrine applies, our decision that Rosciszewski’s claim of unauthorized copying' under § 18.2-152.3 of the Virginia.Computer Crimes Act is preempted is sufficient to make removal of that claim proper. See 28 U.S.C.A. § 1441(b) (West 1973). The remainder of the claims were properly removed to the district court pursuant to 28 U.S.C.A. § 1441(c) (West Supp.1993).\n. The Supreme Court has found complete preemption in only a few situations — for example, claims alleging a breach of-a collective bargaining agreement that fall under § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C.A. § 185 (West 1978), see Avco Corp. v. Aero Lodge No. 735, Int'l Assoc. of Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968), and claims for benefits or enforcement of rights under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1001 et seq. (West 1985 & Supp.1993), see Metropolitan Life Ins. Co., 481 U.S. at 63-67, 107 S.Ct. at 1546-48.\n. Section 502(f) of ERISA provides:\nThe district courts of the United States shall have jurisdiction, without respect to the amount in controversy or the citizenship of the parties, to grant the relief provided for in subsection (a) of this section in any action.\n29 U.S.C.A. § 1132(f) (West 1985).\n. When Congress enacted both 28 U.S.C.A. § 1338(a) and 17 U.S.C.A. § 301(a), the derivative jurisdiction rule prevented removal of claims within the exclusive jurisdiction of the federal courts. See generally 14A Charles A. Wright et ah, Federal Practice and Procedure § 3721, at 195198 (1985). The derivative jurisdiction rule was not abolished until 1986. See id. at § 3721 (Supp.1993); see also 28 U.S.C.A. § 1441(e) (West Supp.1993) (permitting district court to hear claims removed from state court even if state court did not have jurisdiction). Thus, although there is no language in the legislative history surrounding the enactment of the Copyright Act to indicate that state claims preempted by copyright law are removable, this omission is not indicative of a congressional intent that such an action not be removable. Gemcraft Homes, Inc. v. Sumurdy, 688 F.Supp. 289, 293-94 (E.D.Tex.1988). In addition, because § 1338(a) was adopted prior to Avco, we do not draw a negative inference from the failure of Congress to reference that opinion. Cf. Metropolitan Life Ins. Co., 481 U.S. at 65-66, 107 S.Ct. at 1547-48 (relying on statement in legislative history of ERISA that actions for benefits under ERISA plans are to be regarded as arising under federal law in the same manner as actions under § 301 of the LMRA).\n. Rosciszewski also asserts that because § 505 provides for a reasonable \"attorney's fee,” the district court should only have awarded a fee to one of Arete’s attorneys. Rosciszewski offers no support for such a position, and we conclude that this argument lacks merit. We do not read the statute as limiting a fee award to one attorney only.\n. Rosciszewski also maintains that the fees awarded to Arete were excessive and unreasonable. While the award appears to be unreasonably high on its face, we do not reach this issue since we must vacate the award of fees and remand to permit the district court to determine the appropriateness of the fee award under the legal standard we adopt today. We remind the district court that if it finds an award to be appropriate, it must make specific findings on each of the factors set forth in Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 & n. 28 (4th Cir.), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978), in order to facilitate our review of the reasonableness of the amount of the fee award.\n. The decision of the district court that each of Rosciszewski's causes of action, except Count V, was barred by res judicata does not present plain error, and permitting the decision to stand will not result in a miscarriage of justice. Thus, since Rosciszewski does not challenge this ruling of the district court, it must stand.\n[END_CASE]", "role": "user" } ]
10,509,586	UNITED STATES of America, Plaintiff-Appellee, v. Paul Michael MITCHELL, Defendant-Appellant	United States v. Mitchell	1993-08-03	No. 92-5506	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before RUSSELL and HALL, Circuit Judges, and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Paul Michael MITCHELL, Defendant-Appellant."], "opinions": [{"text": "OPINION\nDONALD RUSSELL, Circuit Judge:\nThis case presents us with the question of whether prosecutorial overreaching was sufficiently egregious in this case to require reversal. The alleged error arose out of the repetition throughout the testimony and argument of counsel of inadmissible and prejudicial evidence. The rule in connection with prosecutorial overreaching has been stated in many opinions. That rule has been framed as the maxim that “fi]t is often said and often forgotten that the duty of a prosecuting attorney is not to convict defendants but to try them fairly.” McFarland v. United States, 150 F.2d 593, 594 (D.C.Cir.1945). A more detailed statement appeared in the offrquot-ed case of Berger v. United States, which merits repetition here:\nThe United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.\nBerger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). With these basic principles in mind, upon a review of the record in this case we are of the opinion that the prosecution did exceed the bounds of established propriety and conclude that we must reverse the appellant’s conviction and remand for a new trial.\nA jury convicted Paul Mitchell (“appellant”) of conspiracy to distribute cocaine and distribution of cocaine after a two-day trial in which he faced the adverse testimony of three of his cousins who had pled guilty to charges arising out of the same conspiracy. To counter this testimony, the appellant put his brother, Joel Mitchell, on the stand to testify in his behalf. Joel, however, had been convicted of participating in the same conspiracy after an earlier trial. On cross-examination, after attempting to impeach Joel with his prior conviction and with prior inconsistent statements from his trial, the prosecution made statements to the effect that the jury at Joel’s trial “obviously” did not believe his testimony. Apparently believing that this cross-examination laid a foundation for closing argument, the prosecution argued to the jury that Joel’s testimony should be discredited because he had told the same story to another jury, and that jury convicted him. The prosecution also attempted to link that conviction to Joel’s relationship to the appellant, suggesting that the appellant was guilty of involvement in the conspiracy by implication. Because we conclude that the prosecution’s references to Joel’s conviction and relationship to the appellant on cross-examination and in argument to the jury, when coupled with the district court’s failure to give the jury a limiting instruction, constitutes plain error, we reverse the appellant’s conviction and remand for a new trial.\nI.\nThe facts surrounding the underlying conspiracy in this case, which led to the convictions of three co-conspirators and the guilty pleas of eight others, are set forth in this Court’s opinion in United States v. Blevins, 960 F.2d 1252, 1254-55 (4th Cir.1992). The November 16, 1990, indictment against the appellant came about as a result of statements made by the conspirators in the Blevins case after their arrests. Three of those defendants were siblings, and were also first cousins of the appellant: Wesley Mitchell, Ellen Sue Mitchell, and Jerry Mitchell. All three testified against the appellant at his trial. Two additional members of the conspiracy testified against the appellant: Robert Helton, Ellen’s boyfriend, and Rodney Allison, a long-time associate of Jerry Mitchell. The appellant called four witnesses to testify on his behalf: Joel Mitchell, another convicted co-conspirator and the appellant’s brother; Linda Mitchell, the appellant’s wife; a state parole officer; and a state sheriffs office criminal investigator.\nAt trial on February 11 and 12, 1992, the prosecution began its case by calling DEA Agent David High, the agent responsible for this investigation. Agent High testified at trial as to the results of his year-long investigation into the drug conspiracy. The majority of his testimony covered his investigation that began in May of 1989 and led to the arrest and conviction of the eleven defendants indicted in March of 1990. High testified that he believed at the time of his investigation that Joel Mitchell was the leader of the conspiracy, and that Joel gave the drugs to Jerry for distribution. High stated, however, that he later concluded that the drugs flowed from Joel to the appellant, and then to Jerry for distribution on the street. High stated at the appellant’s trial that he had never encountered the appellant during the investigation.\nThe prosecution then called Wesley Mitchell to testify. The substance of his testimony related to a drug transaction that took place on June 14, 1989 between Agent High, Joel, and the appellant. This transaction was the basis for Count 2 of the appellant’s indictment, of which he was acquitted.\nEllen Sue Mitchell testified next. She stated that the appellant had asked her to sell marijuana for him. She also stated that the appellant had provided her and Robert Helton, her boyfriend, with cocaine for their personal use at her apartment on a number of occasions for free. Helton’s statements at trial corroborated her testimony.\nThe next witness, Jerry Mitchell, was the government’s key witness against the appellant. Jerry testified that after being released from jail in June of 1989, he purchased ah eighth of an ounce of cocaine from the appellant. Jerry’s testimony indicated that he thereafter purchased cocaine from the appellant on a regular basis — at least once a week until December 1989. These sales ran between a half an ounce to two ounces. Jerry had pled guilty to the charges against him as a result of this investigation, and in exchange for his testimony, had his sentence reduced from 230 to 51 months in custody.\nThe government’s final witness, Rodney Allison, Jerry’s distributor for the cocaine, testified that he was unaware of the source of Jerry’s cocaine until one evening in Jerry’s home. During their recreational use of cocaine and methamphetamine, Jerry revealed to Rodney that his source was the appellant. The government also elicited testimony from Rodney that he had sold the appellant “a bag of pot in the early seventies.”\nIn the appellant’s defense, Joel testified that he had not supplied the drugs to the appellant. The thrust of Joel’s testimony was to rebut Jerry’s testimony that the appellant had been Jerry’s source for cocaine. The appellant’s wife testified as to their financial condition (poverty), and testified that, to her knowledge, the appellant did not use drugs.\nOn rebuttal, the government again called Agent High. High testified that it had been during the debriefing of the other co-conspirators that the appellant’s name had arisen as a member of the conspiracy. He also admitted that he had testified at Joel’s trial that he believed Joel had been the source of cocaine in the area. On redirect, High clarified his view of the framework of the conspiracy, and stated his belief that they had accidentally bypassed the appellant when their investigation had proceeded up the chain of the conspiracy to Joel at the top.\nOn February 12, 1992, the jury found the appellant guilty on one count of conspiracy to distribute cocaine and two counts of distribution of cocaine. The appellant was acquitted on one count of distribution of cocaine. The appellant’s trial counsel withdrew before the sentencing hearing, and was replaced by counsel representing him on appeal. The district court sentenced the appellant to 63 months, the bottom of the Guideline range based on his presentence report. The appellant now appeals, raising numerous issues. We need not address all of these issues, however, because the appellant’s argument that the prosecution’s conduct in this case deprived him of a fair trial is well taken and is sufficient to require a new trial.\nII.\nA.\nDuring the appellant’s trial, on cross-examination and in closing argument, the prosecution referred to, and indeed emphasized, Joel’s conviction and relationship to the appellant. The pertinent portions of Joel’s cross-examination and the prosecution’s closing argument are as follows:\nCross-Examination of Joel:\n[AUSA] You were tried and convicted in this court on July of 1990; is that correct?\n[Joel] Yes.\nQ And were you convicted of a drug distribution conspiracy?\nA Yes.\nQ And I asked you, I said,\n“Mr. Mitchell, you’ve been here and you’ve heard Wesley Mitchell tell this jury that on June 14, 1989 he went to your residence and obtained six grams of cocaine from you, and your brother Paul Mitchell for $400.” Are you denying that to this jury?\nA I never seen any cocaine.\nQ Your answer at that time was, “I’m denying that I didn’t give him no cocaine.”\nA I didn’t give him any cocaine, and I never seen any cocaine.\nQ And I asked you, “Are you denying that you knew that cocaine was present and handed it to him for the $400?” And you said, yes, you didn’t know it wasn’t, know it was cocaine, and I asked you what you did think he was giving you $400 for. You said you didn’t ask.\nA I didn’t ask.\nQ But the jury obviously didn’t believe that, did they, Mr. Mitchell?\nA No, Ma’am.\nQ They didn’t because they convicted you of that charge, didn’t they, sir?\nA Yes, ma’am.\nClosing Argument:\n[W]hat you’ve seen is that Paul Mitchell’s case is part of a larger case that was tried in July of 1990, and that ... his brother was convicted of being involved, the head of a drug organization involving cocaine distribution, and the appellant Mitchell wasn’t indicted at that time because the evidence wasn’t clear about his involvement until after some others had come forward and given their information....\n[After listing the prosecution’s witnesses].... Nothing about what they said has been contradicted except by Joel Mitchell who was convicted for doing this and has still not admitted to anyone that he was involved in a cocaine distribution organization.\n[After describing the transaction of which the appellant was acquitted].... [L]adies and gentlemen, other than Joel Mitchell’s denial of what happened, and I ask you to question the credibility of Joel Mitchell, convicted of that same transaction by a jury sitting where you’re sitting back in July of 1990 when he denied it at that time as well. He’s also the brother of the defendant. So, ladies and gentlemen, ask yourselves what motivation he has not to tell the truth about what happened on June 14 of 1989....\n[On rebuttal].... Ladies and gentlemen, ... Joel Mitchell wouldn’t admit to you he was involved in the drug trade and he was convicted by a jury. His case is on appeal. He’s hoping it’s going to get reversed.\nAnd then Joel Mitchell testified. And ladies and gentlemen, you have to evaluate Joel Mitchell’s testimony with great care. He got up and told the same story to another jury in July of 1990. They didn’t believe it then either. And ladies and gentlemen, he denied any involvement in the June Ilf. transaction back in 1990. He was convicted of that transaction. He was convicted of drug conspiracy, and he was convicted of distribution activities, and he was convicted of using the telephone, and he was convicted of attempting to possess kilogram quantities of cocaine and pounds of marijuana. He’s convicted of using a firearm during the course of a drug transaction, and his case is on appeal. He got 17 years. So, when you’re talking about persons who are motivated not to tell the truth, look closely at Joel Mitchell’s motivations to, one, help his brother, not implicate himself, deny everything. So, you must look at that, [emphasis added]\nDespite the clear implication in the prosecution’s closing argument that Joel’s conviction should be considered as evidence of the appellant’s guilt, the district court failed to instruct the jury that Joel’s conviction after trial could not be used as substantive evidence of the appellant’s guilt, even though the district court instructed the jury that the guilty pleas of the testifying co-conspirators could not be so considered. We must now determine whether the prosecution’s conduct constituted reversible error.\nAt the outset, we note that a new trial is required in this case only if the prosecution’s improper conduct constituted plain error under Fed.R.Crim.Pro. 52(b), because the appellant’s trial counsel failed to enter an objection to either the cross-examination or the prosecution’s argument during closing. Rule 52(b) enables the Courts of Appeals to correct “those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings,’ ” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)), but only if those errors are “ ‘particularly egregious,’ ” id. at 15, 105 S.Ct. at 1046 (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)). The plain error doctrine is to be employed only in “ ‘those circumstances in which a miscarriage of justice would otherwise result.’ ” Id. (quoting Frady, 456 U.S. at 163 n. 14, 102 S.Ct. at 1592 n. 14). This Court must examine the record as a whole because the evaluation of plain error claims is not to be an extraction of isolated instances of error; the question is whether the error was “such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” See id. at 16, 105 S.Ct. at 1046.\nThe appellant argues that the prosecution impermissibly referred to Joel’s conviction and relationship to the appellant on cross-examination and in argument to the jury, and that these errors, coupled with the district court’s failure to give the jury a limiting instruction, require reversal. Because plain error analysis requires us to examine the record as a whole, in ruling on the appellant’s contentions we necessarily consider the effect of these alleged errors on the trial collectively.\nB.\nThe appellant’s primary contention is that the prosecution’s closing argument deprived him of a fair trial by improperly emphasizing his brother’s conviction for participating in the same conspiracy and arguing that the jury should discredit Joel’s testimony because Joel’s jury had disbelieved him at his trial. We agree that the prosecution’s conduct deprived the appellant of a fair trial.\n“Improper remarks during closing argument do not always mandate retrial. ‘The relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Adams v. Aiken, 965 F.2d 1306, 1318 (4th Cir.1992) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986)), cert. denied — U.S. -, 113 S.Ct. 2966, 125 L.Ed.2d 666 (1992). In this Circuit, “[t]he test for reversible prosecutorial misconduct generally has two components: that ‘(1) the prosecutor’s remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudi-cially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.’ ” United States v. Brockingham, 849 F.2d 872, 875 (4th Cir.1988) (quoted in United States v. Chorman, 910 F.2d 102, 113 (4th Cir.1990)).\n1.\nWith respect' to the first prong of the Brockingham analysis, on these facts, we find the prosecution’s statements to be improper. We find the prosecution’s closing argument particularly improper because those statements encouraged the jury to convict the appellant for an impermissible reason: it urged the jury to convict the appellant because the appellant’s brother had been convicted of participating in the same conspiracy.\nIt is a well-accepted principle that “evidence about the conviction of a co-conspirator is not admissible as substantive proof of the guilt of a defendant.” United States v. Leach, 918 F.2d 464, 467 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2802, 115 L.Ed.2d 976 (1991). In criminal cases, it is the province of the defendant’s jury to resolve questions of credibility; referring to what another jury may have done is clearly improper because the defendant’s jury cannot permissibly rely on what they may assume a previous jury to have found. See United States v. Samad, 754 F.2d 1091, 1100 (4th Cir.1984) (observing that a prosecutor may not argue evidence not presented to the jury). Such conduct “raises the concern that a defendant might be convicted based upon the disposition of the charges against the [co-conspirator], rather than upon an individual assessment of the remaining defendant’s personal culpability.” Blevins, 960 F.2d at 1260. Indeed, improper use of a co-conspirator’s conviction infringes on the principle that the “central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” Delaware v. Van Arsdale, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).\nIn the case at hand, the prosecution made multiple references to Joel’s conviction. Those references were often accompanied by references to Joel’s relationship to the appellant. It is apparent from the record that the clear thrust of the prosecution’s argument was that the appellant’s brother’s conviction should be used as substantive evidence of the appellant’s guilt. This is clearly not permissible. Accordingly, we conclude that the prosecution’s closing argument, in fact, was improper.\n2.\nIn addition to examining the propriety of the prosecution’s conduct in this ease, under Brockingham, we must consider whether the conduct in this case “prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.” Brockingham, 849 F.2d at 875. A number of factors should be considered when evaluating the issue of prejudice to the defendant: “(1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarte, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2345, 80 L.Ed.2d 819 (1984) (quoted in Chorman, 910 F.2d at 113). The issue of “[w]hether improper argument by government counsel has so prejudiced the trial process as to require reversal must be gauged from the facts of each trial.” Id. at 1051. On these facts, we find that the appellant was deprived of his right to a fair trial.\nHarrison first requires us to consider the extent to which the prosecution’s conduct in this case had a tendency to mislead the jury and prejudice the appellant. Harrison, 716 F.2d at 1052. The courts’ concerns with respect to impeachment by prior conviction inform our analysis on this point. Impeachment on cross-examination of a defendant’s witness by inquiry into a prior conviction of the witness can be seriously prejudicial to a criminal defendant, especially where the witness has a special relationship to the defendant. See Fed.R.Evid. 609 advisory committee’s note; 3 Weinstein & Berger, Wein-stein’s Evidence ¶ 609[04], at 609-59 (1992). In those situations, the witness’ criminal conviction may be held against the defendant, raising the concern that the defendant may be convicted by implication. Although our analysis at this point only centers on the prosecution’s closing argument, the concern expressed above is implicated by the prosecution’s conduct in this case. The misleading nature of the prosecution’s comments is best seen in the prosecution’s reference to Joel’s jury not believing him, and that therefore the appellant’s jury should not believe him as well. That comment clearly calls into question evidence not before the appellant’s jury, which implicates the appellant’s 6th Amendment confrontation rights. See Pointer v. Texas, 380 U.S. 400, 403-08, 85 S.Ct. 1065, 1067-70, 13 L.Ed.2d 923 (1965); see also United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir.1982). The prosecution’s references to Joel’s relationship to the appellant and to Joel’s conviction for participating in the same conspiracy thus had a strong tendency to mislead the jury and prejudice the appellant.\nThe second factor we ’ must consider is whether the remarks were isolated or extensive. Harrison, 716 F.2d at 1052. In this case, the prosecution repeatedly referred to Joel’s conviction and his relationship to the appellant. The prosecution stressed the fact that'Joel was the appellant’s brother in its opening statement to the jury, pressed the issue of Joel’s conviction on cross-examination of Joel, stressed to the jury in closing argument that another jury did not believe Joel, that the jury had convicted him, and that he was the appellant’s brother, and, finally, repeated those statements on rebuttal. Even considering the extent of the prosecution’s statements only during closing argument, we cannot help but conclude that the statements were extensive, and not merely isolated instances of error.\nHaying concluded that the prosecution’s argument had a tendency to mislead the jury and was extensive in scope, we apply a modified harmless error analysis as the next factor in weighing the prejudice to the appellant. That factor requires us to weigh, absent the prosecution’s comments, the strength of competent proof introduced against the appellant. Id.\nTo prove its case against the appellant, the prosecution introduced the testimony of the appellant’s co-conspirators to prove his involvement in this extensive drug distribution conspiracy. Although we express no opinion as to the merits of such a claim, the record does tend to show that the prosecution introduced evidence that would have been sufficient to withstand a challenge based on sufficiency of the evidence on appeal, although the prosecution’s case was not overwhelming. Had the prosecution avoided the improper argument concerning Joel’s conviction and relationship to the appellant, the remaining case may have garnered a conviction.\nFinally, we must consider whether the prosecution deliberately placed the improper comments before the jury in order to divert the jury’s attention to those improper matters. Id. Given the extent of the improper argument, which ran throughout the appellant’s trial, we believe that no other conclusion is possible than our finding that the improper argument was deliberately placed before the jury in an attempt “to divert attention to extraneous matters.” Id.\nThe consideration of all of these factors leads us to conclude that the prosecution’s closing argument “prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial,” id., thereby constituting prosecutorial misconduct. Consequently, we find that the prosecution’s improper argument “has so prejudiced the trial process as to require reversal.” Harrison, 716 F.2d at 1051.\nC.\nBecause the appellant failed to object to this conduct at trial, we are now forced' to review his claims for plain error. In order to determine whether the prosecution’s conduct prejudiced the appellant’s substantial rights for purposes of Fed.R.Crim.Pro. 52(b), we must again weigh a number of considerations. In a case similar to the one at hand, the Fifth Circuit considered a number of ' factors that we find to be relevant to our plain error review in this case:\nthe presence or absence of a limiting instruction; whether there was a proper purpose in introducing the conviction or guilty plea of the [witness]; whether the plea or conviction was improperly emphasized or used as substantive evidence of guilt; whether the alleged error was invited by defense counsel; whether an objection was entered or an instruction requested; whether the failure to object could have been the result of tactical considerations; and whether, in light of all the evidence, the error was harmless beyond a reasonable doubt.\nUnited States v. Miranda, 593 F.2d 590, 594 (5th Cir.1979). We now consider those factors in conjunction with the prejudicial effect of these errors on the appellant.\nIn Miranda, the prosecution had urged the jury in closing argument to convict the defendant because an earlier jury had found a co-conspirator guilty of the same offenses. Miranda, 593 F.2d at 592-93. The court agreed with the defendant that “the clear import of the prosecutor’s argument was that the jury should convict appellant because an earlier jury had convicted his co-conspirator of the same charges on much less evidence,” id. at 593, and recognizing that it is clearly improper for a prosecutor to urge a jury to use a co-conspirator’s conviction as substantive evidence of guilt, concluded that “a foul blow has been struck here, one which has affected the substantial rights of the defendant and requires a new trial free of such prejudicial comments,” id.\nThe first factor that we examine is whether or not a limiting instruction was given. In the ease at hand, in the face of the prosecution’s repeated improper comments, the district court failed to give the jury a limiting instruction concerning the use of Joel’s conviction. Thus, this factor weighs in the appellant’s favor.\nGenerally, the district court should instruct the jury that evidence of a witness’ conviction is to be used only for the limited purpose of impeachment and not as substantive evidence of the defendant’s guilt. United States v. Davis, 838 F.2d 909, 917 (7th Cir.1988). In this case, the district court failed to give an instruction concerning Joel’s conviction. Although that conviction was properly before the jury for impeachment purposes, in light of the overwhelming prejudicial effect that Joel’s conviction would have on the appellant as his brother, the district court should have given an instruction to the jury limiting their use of Joel’s conviction to impeachment.\nAlthough we find it difficult to believe that any limiting instruction could have cured the prejudicial effect of the prosecution’s repeated improper comments, we believe that the failure of the district court to instruct the jury that Joel’s conviction could not be used as substantive evidence of the appellant’s guilt was error weighing in the appellant’s favor.\nThe second and third factors to consider are whether the prosecution had a proper purpose for the introduction of the co-conspirator’s conviction, and whether the prosecution improperly emphasized the conviction or used it as substantive evidence of guilt. We have already concluded, supra, that the prosecution introduced this evidence for the improper purpose of misleading the jury and that Joel’s conviction was argued as substantive evidence of guilt by implication. These factors also favor the appellant.\nThe fourth and fifth factors focus on the conduct of defense counsel. This inquiry looks to not only whether the error was invited by defense counsel, but also whether the failure of defense counsel to object was conceivably the result of tactical considerations. We acknowledge that defense counsel failed to object to the prosecution’s improper comments in this case.\nWe find it difficult to believe, on these facts, that defense counsel invited the repeated comments about Joel’s conviction and his relationship to the appellant — the defense’s posture at trial can hardly be described as aggressive. We also find it impossible to believe that defense counsel failed to object to these comments for tactical reasons: what tactical reason could exist to allow the prosecution to advance improper arguments that are likely to result in the conviction of one’s client? Despite defense counsel’s failure to object to this conduct, we do not find these factors to weigh against the appellant; in fact, we conclude that they favor his argument.\nFinally, we consider whether, in light of the evidence presented against the appellant, the error in this case was harmless beyond a reasonable doubt. As we indicated above, although we have sustained convictions as based on sufficient evidence in cases such as this, we believe that the prosecution’s conduct in this case so infected the appellant’s trial that it would be impossible for us to determine whether the error was harmless beyond a reasonable doubt. While the prosecution presented testimony that implicated the appellant in a drug distribution conspiracy, the DEA’s investigation had failed to turn up the appellant as a participant in the organization. The appellant is entitled to have a jury consider the conflicting inferences to be drawn from that evidence without having the impermissible taint of Joel’s conviction and relationship to the appellant clouding their judgment. Thus, we conclude that the error was not harmless beyond a reasonable doubt.\nIn sum, the factors employed by the Fifth Circuit in Miranda weigh heavily in the appellant’s favor. The only factor that we find to favor the prosecution is the lack of objection by defense counsel to these errors. In light of the overwhelming weight of the other factors, however, we conclude that the prosecution’s conduct has prejudiced the appellant’s substantial rights. We find support for this conclusion in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), a case interpreting the precursor to Fed.R.Crim.Pro. 52(b). In Kotteakos, the Supreme Court stated that,\nif one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.\nId. at 765, 66 S.Ct. at 1248. Keeping in mind the Supreme Court’s strictures in Young, that Rule 52(b) allows the Courts of Appeals to correct “those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings,” Young, 470 U.S. at 15, 105 S.Ct. at 1046 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)), only if those errors are “ ‘particularly egregious,’ ” id. at 15, 105 S.Ct. at 1046 (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)), we believe that this case presents “ ‘circumstances in which a miscarriage of justice would otherwise result,’ ” id. (quoting Frady, 456 U.S. at 163 n. 14, 102 S.Ct. at 1592 n. 14), were we not to grant the appellant a new trial.\nThe prosecution’s errors in this case present us with a clear case of overreaching. Not content with its case against the appellant, the prosecution chose to use improper suggestion on cross-examination and improper jury argument to obtain a conviction. We believe that an examination of the appellant’s trial as a whole reveals “particularly egregious” error that requires a new trial.\nIn addition to the improper jury argument, which we have discussed at length, the prosecution posed the following questions to Joel on cross-examination after attempting to impeach Joel with evidence of his past convictions under Fed.R.Evid. 609(a) and his prior inconsistent statements:\n[AUSA] But the jury obviously didn’t believe that, did they, Mr. Mitchell?\n[Joel] No, Ma’am.\nQ They didn’t because they convicted you of that charge, didn’t they, sir?\nA Yes, ma’am.\nAlthough we express no opinion as to whether the cross-examination concerning Joel’s convictions constitutes reversible error under Fed.R.Evid. 609(a), the two above quoted questions raise the specter, described above, of impermissibly placing another jury’s conclusions before the defendant’s jury. A brief examination of Rule 609 itself will explain these concerns.\nRule 609(a) allows the admission of evidence that a witness has been convicted of a crime “[f\|or the purpose of attacking the credibility of [that] witness,” subject to the balancing test of Fed.R.Evid. 403. Fed. R.Evid. 609(a)(1). Rule 403 is used, in part, to prevent prejudice to the defendant through impeachment of witnesses with convictions that may implicate the defendant by association. The Advisory Committee Note on the 1990 Amendment to Rule 609(a) makes this point clear:\nRule 403 now clearly protects against unfair impeachment of any defense witness other than the defendant. There are cases in which a defendant might be prejudiced when a defense witness is impeached. Such cases may arise, for example, when the witness bears a special relationship to the defendant such that the defendant is likely to suffer some spill-over effect from impeachment of the witness.\nFed.R.Evid. 609 advisory committee’s note. This policy protects the defendant from those “instances where the defense witness’s prior criminal past would be held against the defendant. For instance, if the witness is a close relative of the defendant, the jury’s distrust of the witness if informed of his criminal past may rub off on the defendant.” 3 Weinstein & Berger, Weinstein’s Evidence ¶ 609[04], at 609-59 (1992). If the trial court decides, in its discretion, to admit the conviction, then “[i]n proving the felony conviction on cross-examination, the United States Attorney may ‘ask about “the name of the crime, the time and place of conviction, and the punishment.” ’ ” United States v. Boyce, 611 F.2d 530, 530 (4th Cir. 1979) (citation omitted). Limiting cross-examination to those facts prevents the government from adding “to the pungency of the impeachment,” 3 Weinstein, supra ¶ 609[05], at 609-66 (quoting McCormick, Evidence § 43 at 98 (1984)), a fact that the courts have recognized for many years:\nFrom the common sense point of view a plea of guilty by an alleged fellow conspirator is highly relevant upon the question of the guilt of another alleged conspirator. If A’s admission that he conspired with B is believed, it is pretty hard to avoid the conclusion that B must have conspired with A. This is one of the cases, therefore, where evidence logically probative is to be excluded because of some countervailing policy. There are many such instances in the law....\nThe foundation of the countervailing policy is the light of every defendant to stand or fall with the proof of the charge made against him, not against somebody else. Acquittal of an alleged fellow conspirator is not evidence for a man being tried for conspiracy. So, likewise, conviction of an alleged fellow conspirator after a trial is not admissible as against one now being charged. The defendant has a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.\nUnited States v. Toner, 173 F.2d 140, 142 (3d Cir.1949) (emphasis added). That countervailing policy is the concern that the prosecution’s conduct implicates in this case. We believe that the prosecution’s cross-examination of Joel contributed to the overall effect of the improper conduct in this case and find that it was prejudicial to the appellant.\nThe district court compounded the prosecution’s errors in this case when it failed to give a limiting instruction with respect to the effect of the non-testifying co-conspirators’ guilty pleas. Considering this error in connection with the other instances of error, we conclude that the district court’s failure to give a limiting instruction on this point compounded the prejudicial effect of the prosecution’s improper argument.\nWith respect to the guilty pleas of non-testifying co-conspirators, this Court has observed that “any mention of guilty pleas of non-testifying co-defendants should be avoided at trial wherever possible.” Blevins, 960 F.2d at 1260. In Blevins, we concluded that “it was ... error for any mention of the pleas of the non-testifying co-defendants to have been made,” id. at 1261, and that the error was of constitutional dimension, id. at 1262. In this case, the prosecution referred to the non-testifying co-conspirators’ guilty pleas on a number of occasions and the district court failed to instruct the jury on this point as well. Thus, this was error as well, and we believe that it was prejudicial to the appellant.\nIn light of the errors in this case and the prosecution’s improper actions, which permeated the entire trial, we “cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error.” Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248. Accordingly, we must reverse the appellant’s conviction.\nIII.\nAs we have observed, this case presents us with a prosecutor who chose to employ impermissible argument to achieve a conviction. In light of the pervasive nature of this error, and the failure of the district court to even attempt to cure that error, we conclude that this case presents the “rare instance” where fundamental fairness requires that we grant the appellant a new trial. Because we conclude that, on these facts, the prosecution’s improper conduct amounts to plain error affecting substantial rights, we reverse the appellant’s conviction and remand for a new trial.\nREVERSED AND REMANDED.\n. The district court aptly observed that the substance of High’s testimony on rebuttal was not really rebuttal testimony in that it had all come out already. Without objection from cither side on this issue, the district court halted the rebuttal testimony sua sponte.\n. 'The transaction that was the subject of this portion of the cross-examination was the count of which the appellant was acquitted.\n. Fed.R.Crim.Pro. 52(b) provides: \"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”\n. While we find these factors helpful in resolving this difficult case, we in no way suggest that the Fifth Circuit’s analysis in Miranda supplants our analysis in Harrison. We merely employ the factors set forth in Miranda to illuminate the prejudice to the appellant in this case.\n. Although wc conclude that the district court’s failure to give a limiting instruction was error in the face of repeated instances of improper comment and questioning by the prosecution, we do recognize the difficulty the district court faced in this case. It made numerous efforts to assist defense counsel in an effort to protect the appellant’s right to a fair trial, including excluding clearly inadmissible evidence without objection from defendant's counsel. It is not clear from the record whether defense counsel objected to the jury instructions, or even proposed instructions for the district court’s use. It is clear, however, that counsel for the defendant was delinquent in his representation and the district court took great pains to insure the defendant a fair trial. In light of the situation, the failure to issue a limiting instruction on this point is understandable.\n. As one court has noted, \"[ojnly in those rare situations in which other 'aggravating circumstances’ have exacerbated the prejudice will the failure to give cautionary instructions result in plain and reversible error.” United States v. DeLucca, 630 F.2d 294, 299 (5th Cir.1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 819 (1981). This case presents the converse of that situation: in this case, the failure to give cautionary instructions is an \"aggravating circumstance” that exacerbated the prejudice to the appellant.\n. The district court instructed the jury as follows: Some witnesses have pled guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant, and you may consider it only in determining the witness' believability. You should consider this witness' testimony with great caution, giving it the weight you feel it deserves.", "type": "majority", "author": "DONALD RUSSELL, Circuit Judge:"}], "attorneys": ["Anna M. Durbin, Law Offices of Alan Ellis, P.C., Philadelphia, PA, argued (Alan Ellis, on brief), for defendant-appellant.", "Jennie L.M. Waering, Asst. U.S. Atty., Roanoke, VA, argued, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Paul Michael MITCHELL, Defendant-Appellant.\nNo. 92-5506.\nUnited States Court of Appeals, Fourth Circuit.\nArgued Feb. 5, 1993.\nDecided Aug. 3, 1993.\nAmended by Order Filed Aug. 25, 1993.\nAnna M. Durbin, Law Offices of Alan Ellis, P.C., Philadelphia, PA, argued (Alan Ellis, on brief), for defendant-appellant.\nJennie L.M. Waering, Asst. U.S. Atty., Roanoke, VA, argued, for plaintiff-appellee.\nBefore RUSSELL and HALL, Circuit Judges, and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation."}	RUSSELL	HALL	PAYNE	1	1	1	0	0	0	1 F.3d 235	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Paul Michael MITCHELL, Defendant-Appellant\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-08-03\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nDONALD RUSSELL, Circuit Judge:\nThis case presents us with the question of whether prosecutorial overreaching was sufficiently egregious in this case to require reversal. The alleged error arose out of the repetition throughout the testimony and argument of counsel of inadmissible and prejudicial evidence. The rule in connection with prosecutorial overreaching has been stated in many opinions. That rule has been framed as the maxim that “fi]t is often said and often forgotten that the duty of a prosecuting attorney is not to convict defendants but to try them fairly.” McFarland v. United States, 150 F.2d 593, 594 (D.C.Cir.1945). A more detailed statement appeared in the offrquot-ed case of Berger v. United States, which merits repetition here:\nThe United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.\nBerger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). With these basic principles in mind, upon a review of the record in this case we are of the opinion that the prosecution did exceed the bounds of established propriety and conclude that we must reverse the appellant’s conviction and remand for a new trial.\nA jury convicted Paul Mitchell (“appellant”) of conspiracy to distribute cocaine and distribution of cocaine after a two-day trial in which he faced the adverse testimony of three of his cousins who had pled guilty to charges arising out of the same conspiracy. To counter this testimony, the appellant put his brother, Joel Mitchell, on the stand to testify in his behalf. Joel, however, had been convicted of participating in the same conspiracy after an earlier trial. On cross-examination, after attempting to impeach Joel with his prior conviction and with prior inconsistent statements from his trial, the prosecution made statements to the effect that the jury at Joel’s trial “obviously” did not believe his testimony. Apparently believing that this cross-examination laid a foundation for closing argument, the prosecution argued to the jury that Joel’s testimony should be discredited because he had told the same story to another jury, and that jury convicted him. The prosecution also attempted to link that conviction to Joel’s relationship to the appellant, suggesting that the appellant was guilty of involvement in the conspiracy by implication. Because we conclude that the prosecution’s references to Joel’s conviction and relationship to the appellant on cross-examination and in argument to the jury, when coupled with the district court’s failure to give the jury a limiting instruction, constitutes plain error, we reverse the appellant’s conviction and remand for a new trial.\nI.\nThe facts surrounding the underlying conspiracy in this case, which led to the convictions of three co-conspirators and the guilty pleas of eight others, are set forth in this Court’s opinion in United States v. Blevins, 960 F.2d 1252, 1254-55 (4th Cir.1992). The November 16, 1990, indictment against the appellant came about as a result of statements made by the conspirators in the Blevins case after their arrests. Three of those defendants were siblings, and were also first cousins of the appellant: Wesley Mitchell, Ellen Sue Mitchell, and Jerry Mitchell. All three testified against the appellant at his trial. Two additional members of the conspiracy testified against the appellant: Robert Helton, Ellen’s boyfriend, and Rodney Allison, a long-time associate of Jerry Mitchell. The appellant called four witnesses to testify on his behalf: Joel Mitchell, another convicted co-conspirator and the appellant’s brother; Linda Mitchell, the appellant’s wife; a state parole officer; and a state sheriffs office criminal investigator.\nAt trial on February 11 and 12, 1992, the prosecution began its case by calling DEA Agent David High, the agent responsible for this investigation. Agent High testified at trial as to the results of his year-long investigation into the drug conspiracy. The majority of his testimony covered his investigation that began in May of 1989 and led to the arrest and conviction of the eleven defendants indicted in March of 1990. High testified that he believed at the time of his investigation that Joel Mitchell was the leader of the conspiracy, and that Joel gave the drugs to Jerry for distribution. High stated, however, that he later concluded that the drugs flowed from Joel to the appellant, and then to Jerry for distribution on the street. High stated at the appellant’s trial that he had never encountered the appellant during the investigation.\nThe prosecution then called Wesley Mitchell to testify. The substance of his testimony related to a drug transaction that took place on June 14, 1989 between Agent High, Joel, and the appellant. This transaction was the basis for Count 2 of the appellant’s indictment, of which he was acquitted.\nEllen Sue Mitchell testified next. She stated that the appellant had asked her to sell marijuana for him. She also stated that the appellant had provided her and Robert Helton, her boyfriend, with cocaine for their personal use at her apartment on a number of occasions for free. Helton’s statements at trial corroborated her testimony.\nThe next witness, Jerry Mitchell, was the government’s key witness against the appellant. Jerry testified that after being released from jail in June of 1989, he purchased ah eighth of an ounce of cocaine from the appellant. Jerry’s testimony indicated that he thereafter purchased cocaine from the appellant on a regular basis — at least once a week until December 1989. These sales ran between a half an ounce to two ounces. Jerry had pled guilty to the charges against him as a result of this investigation, and in exchange for his testimony, had his sentence reduced from 230 to 51 months in custody.\nThe government’s final witness, Rodney Allison, Jerry’s distributor for the cocaine, testified that he was unaware of the source of Jerry’s cocaine until one evening in Jerry’s home. During their recreational use of cocaine and methamphetamine, Jerry revealed to Rodney that his source was the appellant. The government also elicited testimony from Rodney that he had sold the appellant “a bag of pot in the early seventies.”\nIn the appellant’s defense, Joel testified that he had not supplied the drugs to the appellant. The thrust of Joel’s testimony was to rebut Jerry’s testimony that the appellant had been Jerry’s source for cocaine. The appellant’s wife testified as to their financial condition (poverty), and testified that, to her knowledge, the appellant did not use drugs.\nOn rebuttal, the government again called Agent High. High testified that it had been during the debriefing of the other co-conspirators that the appellant’s name had arisen as a member of the conspiracy. He also admitted that he had testified at Joel’s trial that he believed Joel had been the source of cocaine in the area. On redirect, High clarified his view of the framework of the conspiracy, and stated his belief that they had accidentally bypassed the appellant when their investigation had proceeded up the chain of the conspiracy to Joel at the top.\nOn February 12, 1992, the jury found the appellant guilty on one count of conspiracy to distribute cocaine and two counts of distribution of cocaine. The appellant was acquitted on one count of distribution of cocaine. The appellant’s trial counsel withdrew before the sentencing hearing, and was replaced by counsel representing him on appeal. The district court sentenced the appellant to 63 months, the bottom of the Guideline range based on his presentence report. The appellant now appeals, raising numerous issues. We need not address all of these issues, however, because the appellant’s argument that the prosecution’s conduct in this case deprived him of a fair trial is well taken and is sufficient to require a new trial.\nII.\nA.\nDuring the appellant’s trial, on cross-examination and in closing argument, the prosecution referred to, and indeed emphasized, Joel’s conviction and relationship to the appellant. The pertinent portions of Joel’s cross-examination and the prosecution’s closing argument are as follows:\nCross-Examination of Joel:\n[AUSA] You were tried and convicted in this court on July of 1990; is that correct?\n[Joel] Yes.\nQ And were you convicted of a drug distribution conspiracy?\nA Yes.\nQ And I asked you, I said,\n“Mr. Mitchell, you’ve been here and you’ve heard Wesley Mitchell tell this jury that on June 14, 1989 he went to your residence and obtained six grams of cocaine from you, and your brother Paul Mitchell for $400.” Are you denying that to this jury?\nA I never seen any cocaine.\nQ Your answer at that time was, “I’m denying that I didn’t give him no cocaine.”\nA I didn’t give him any cocaine, and I never seen any cocaine.\nQ And I asked you, “Are you denying that you knew that cocaine was present and handed it to him for the $400?” And you said, yes, you didn’t know it wasn’t, know it was cocaine, and I asked you what you did think he was giving you $400 for. You said you didn’t ask.\nA I didn’t ask.\nQ But the jury obviously didn’t believe that, did they, Mr. Mitchell?\nA No, Ma’am.\nQ They didn’t because they convicted you of that charge, didn’t they, sir?\nA Yes, ma’am.\nClosing Argument:\n[W]hat you’ve seen is that Paul Mitchell’s case is part of a larger case that was tried in July of 1990, and that ... his brother was convicted of being involved, the head of a drug organization involving cocaine distribution, and the appellant Mitchell wasn’t indicted at that time because the evidence wasn’t clear about his involvement until after some others had come forward and given their information....\n[After listing the prosecution’s witnesses].... Nothing about what they said has been contradicted except by Joel Mitchell who was convicted for doing this and has still not admitted to anyone that he was involved in a cocaine distribution organization.\n[After describing the transaction of which the appellant was acquitted].... [L]adies and gentlemen, other than Joel Mitchell’s denial of what happened, and I ask you to question the credibility of Joel Mitchell, convicted of that same transaction by a jury sitting where you’re sitting back in July of 1990 when he denied it at that time as well. He’s also the brother of the defendant. So, ladies and gentlemen, ask yourselves what motivation he has not to tell the truth about what happened on June 14 of 1989....\n[On rebuttal].... Ladies and gentlemen, ... Joel Mitchell wouldn’t admit to you he was involved in the drug trade and he was convicted by a jury. His case is on appeal. He’s hoping it’s going to get reversed.\nAnd then Joel Mitchell testified. And ladies and gentlemen, you have to evaluate Joel Mitchell’s testimony with great care. He got up and told the same story to another jury in July of 1990. They didn’t believe it then either. And ladies and gentlemen, he denied any involvement in the June Ilf. transaction back in 1990. He was convicted of that transaction. He was convicted of drug conspiracy, and he was convicted of distribution activities, and he was convicted of using the telephone, and he was convicted of attempting to possess kilogram quantities of cocaine and pounds of marijuana. He’s convicted of using a firearm during the course of a drug transaction, and his case is on appeal. He got 17 years. So, when you’re talking about persons who are motivated not to tell the truth, look closely at Joel Mitchell’s motivations to, one, help his brother, not implicate himself, deny everything. So, you must look at that, [emphasis added]\nDespite the clear implication in the prosecution’s closing argument that Joel’s conviction should be considered as evidence of the appellant’s guilt, the district court failed to instruct the jury that Joel’s conviction after trial could not be used as substantive evidence of the appellant’s guilt, even though the district court instructed the jury that the guilty pleas of the testifying co-conspirators could not be so considered. We must now determine whether the prosecution’s conduct constituted reversible error.\nAt the outset, we note that a new trial is required in this case only if the prosecution’s improper conduct constituted plain error under Fed.R.Crim.Pro. 52(b), because the appellant’s trial counsel failed to enter an objection to either the cross-examination or the prosecution’s argument during closing. Rule 52(b) enables the Courts of Appeals to correct “those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings,’ ” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)), but only if those errors are “ ‘particularly egregious,’ ” id. at 15, 105 S.Ct. at 1046 (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)). The plain error doctrine is to be employed only in “ ‘those circumstances in which a miscarriage of justice would otherwise result.’ ” Id. (quoting Frady, 456 U.S. at 163 n. 14, 102 S.Ct. at 1592 n. 14). This Court must examine the record as a whole because the evaluation of plain error claims is not to be an extraction of isolated instances of error; the question is whether the error was “such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” See id. at 16, 105 S.Ct. at 1046.\nThe appellant argues that the prosecution impermissibly referred to Joel’s conviction and relationship to the appellant on cross-examination and in argument to the jury, and that these errors, coupled with the district court’s failure to give the jury a limiting instruction, require reversal. Because plain error analysis requires us to examine the record as a whole, in ruling on the appellant’s contentions we necessarily consider the effect of these alleged errors on the trial collectively.\nB.\nThe appellant’s primary contention is that the prosecution’s closing argument deprived him of a fair trial by improperly emphasizing his brother’s conviction for participating in the same conspiracy and arguing that the jury should discredit Joel’s testimony because Joel’s jury had disbelieved him at his trial. We agree that the prosecution’s conduct deprived the appellant of a fair trial.\n“Improper remarks during closing argument do not always mandate retrial. ‘The relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Adams v. Aiken, 965 F.2d 1306, 1318 (4th Cir.1992) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986)), cert. denied — U.S. -, 113 S.Ct. 2966, 125 L.Ed.2d 666 (1992). In this Circuit, “[t]he test for reversible prosecutorial misconduct generally has two components: that ‘(1) the prosecutor’s remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudi-cially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.’ ” United States v. Brockingham, 849 F.2d 872, 875 (4th Cir.1988) (quoted in United States v. Chorman, 910 F.2d 102, 113 (4th Cir.1990)).\n1.\nWith respect' to the first prong of the Brockingham analysis, on these facts, we find the prosecution’s statements to be improper. We find the prosecution’s closing argument particularly improper because those statements encouraged the jury to convict the appellant for an impermissible reason: it urged the jury to convict the appellant because the appellant’s brother had been convicted of participating in the same conspiracy.\nIt is a well-accepted principle that “evidence about the conviction of a co-conspirator is not admissible as substantive proof of the guilt of a defendant.” United States v. Leach, 918 F.2d 464, 467 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2802, 115 L.Ed.2d 976 (1991). In criminal cases, it is the province of the defendant’s jury to resolve questions of credibility; referring to what another jury may have done is clearly improper because the defendant’s jury cannot permissibly rely on what they may assume a previous jury to have found. See United States v. Samad, 754 F.2d 1091, 1100 (4th Cir.1984) (observing that a prosecutor may not argue evidence not presented to the jury). Such conduct “raises the concern that a defendant might be convicted based upon the disposition of the charges against the [co-conspirator], rather than upon an individual assessment of the remaining defendant’s personal culpability.” Blevins, 960 F.2d at 1260. Indeed, improper use of a co-conspirator’s conviction infringes on the principle that the “central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” Delaware v. Van Arsdale, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).\nIn the case at hand, the prosecution made multiple references to Joel’s conviction. Those references were often accompanied by references to Joel’s relationship to the appellant. It is apparent from the record that the clear thrust of the prosecution’s argument was that the appellant’s brother’s conviction should be used as substantive evidence of the appellant’s guilt. This is clearly not permissible. Accordingly, we conclude that the prosecution’s closing argument, in fact, was improper.\n2.\nIn addition to examining the propriety of the prosecution’s conduct in this ease, under Brockingham, we must consider whether the conduct in this case “prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.” Brockingham, 849 F.2d at 875. A number of factors should be considered when evaluating the issue of prejudice to the defendant: “(1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarte, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2345, 80 L.Ed.2d 819 (1984) (quoted in Chorman, 910 F.2d at 113). The issue of “[w]hether improper argument by government counsel has so prejudiced the trial process as to require reversal must be gauged from the facts of each trial.” Id. at 1051. On these facts, we find that the appellant was deprived of his right to a fair trial.\nHarrison first requires us to consider the extent to which the prosecution’s conduct in this case had a tendency to mislead the jury and prejudice the appellant. Harrison, 716 F.2d at 1052. The courts’ concerns with respect to impeachment by prior conviction inform our analysis on this point. Impeachment on cross-examination of a defendant’s witness by inquiry into a prior conviction of the witness can be seriously prejudicial to a criminal defendant, especially where the witness has a special relationship to the defendant. See Fed.R.Evid. 609 advisory committee’s note; 3 Weinstein & Berger, Wein-stein’s Evidence ¶ 609[04], at 609-59 (1992). In those situations, the witness’ criminal conviction may be held against the defendant, raising the concern that the defendant may be convicted by implication. Although our analysis at this point only centers on the prosecution’s closing argument, the concern expressed above is implicated by the prosecution’s conduct in this case. The misleading nature of the prosecution’s comments is best seen in the prosecution’s reference to Joel’s jury not believing him, and that therefore the appellant’s jury should not believe him as well. That comment clearly calls into question evidence not before the appellant’s jury, which implicates the appellant’s 6th Amendment confrontation rights. See Pointer v. Texas, 380 U.S. 400, 403-08, 85 S.Ct. 1065, 1067-70, 13 L.Ed.2d 923 (1965); see also United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir.1982). The prosecution’s references to Joel’s relationship to the appellant and to Joel’s conviction for participating in the same conspiracy thus had a strong tendency to mislead the jury and prejudice the appellant.\nThe second factor we ’ must consider is whether the remarks were isolated or extensive. Harrison, 716 F.2d at 1052. In this case, the prosecution repeatedly referred to Joel’s conviction and his relationship to the appellant. The prosecution stressed the fact that'Joel was the appellant’s brother in its opening statement to the jury, pressed the issue of Joel’s conviction on cross-examination of Joel, stressed to the jury in closing argument that another jury did not believe Joel, that the jury had convicted him, and that he was the appellant’s brother, and, finally, repeated those statements on rebuttal. Even considering the extent of the prosecution’s statements only during closing argument, we cannot help but conclude that the statements were extensive, and not merely isolated instances of error.\nHaying concluded that the prosecution’s argument had a tendency to mislead the jury and was extensive in scope, we apply a modified harmless error analysis as the next factor in weighing the prejudice to the appellant. That factor requires us to weigh, absent the prosecution’s comments, the strength of competent proof introduced against the appellant. Id.\nTo prove its case against the appellant, the prosecution introduced the testimony of the appellant’s co-conspirators to prove his involvement in this extensive drug distribution conspiracy. Although we express no opinion as to the merits of such a claim, the record does tend to show that the prosecution introduced evidence that would have been sufficient to withstand a challenge based on sufficiency of the evidence on appeal, although the prosecution’s case was not overwhelming. Had the prosecution avoided the improper argument concerning Joel’s conviction and relationship to the appellant, the remaining case may have garnered a conviction.\nFinally, we must consider whether the prosecution deliberately placed the improper comments before the jury in order to divert the jury’s attention to those improper matters. Id. Given the extent of the improper argument, which ran throughout the appellant’s trial, we believe that no other conclusion is possible than our finding that the improper argument was deliberately placed before the jury in an attempt “to divert attention to extraneous matters.” Id.\nThe consideration of all of these factors leads us to conclude that the prosecution’s closing argument “prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial,” id., thereby constituting prosecutorial misconduct. Consequently, we find that the prosecution’s improper argument “has so prejudiced the trial process as to require reversal.” Harrison, 716 F.2d at 1051.\nC.\nBecause the appellant failed to object to this conduct at trial, we are now forced' to review his claims for plain error. In order to determine whether the prosecution’s conduct prejudiced the appellant’s substantial rights for purposes of Fed.R.Crim.Pro. 52(b), we must again weigh a number of considerations. In a case similar to the one at hand, the Fifth Circuit considered a number of ' factors that we find to be relevant to our plain error review in this case:\nthe presence or absence of a limiting instruction; whether there was a proper purpose in introducing the conviction or guilty plea of the [witness]; whether the plea or conviction was improperly emphasized or used as substantive evidence of guilt; whether the alleged error was invited by defense counsel; whether an objection was entered or an instruction requested; whether the failure to object could have been the result of tactical considerations; and whether, in light of all the evidence, the error was harmless beyond a reasonable doubt.\nUnited States v. Miranda, 593 F.2d 590, 594 (5th Cir.1979). We now consider those factors in conjunction with the prejudicial effect of these errors on the appellant.\nIn Miranda, the prosecution had urged the jury in closing argument to convict the defendant because an earlier jury had found a co-conspirator guilty of the same offenses. Miranda, 593 F.2d at 592-93. The court agreed with the defendant that “the clear import of the prosecutor’s argument was that the jury should convict appellant because an earlier jury had convicted his co-conspirator of the same charges on much less evidence,” id. at 593, and recognizing that it is clearly improper for a prosecutor to urge a jury to use a co-conspirator’s conviction as substantive evidence of guilt, concluded that “a foul blow has been struck here, one which has affected the substantial rights of the defendant and requires a new trial free of such prejudicial comments,” id.\nThe first factor that we examine is whether or not a limiting instruction was given. In the ease at hand, in the face of the prosecution’s repeated improper comments, the district court failed to give the jury a limiting instruction concerning the use of Joel’s conviction. Thus, this factor weighs in the appellant’s favor.\nGenerally, the district court should instruct the jury that evidence of a witness’ conviction is to be used only for the limited purpose of impeachment and not as substantive evidence of the defendant’s guilt. United States v. Davis, 838 F.2d 909, 917 (7th Cir.1988). In this case, the district court failed to give an instruction concerning Joel’s conviction. Although that conviction was properly before the jury for impeachment purposes, in light of the overwhelming prejudicial effect that Joel’s conviction would have on the appellant as his brother, the district court should have given an instruction to the jury limiting their use of Joel’s conviction to impeachment.\nAlthough we find it difficult to believe that any limiting instruction could have cured the prejudicial effect of the prosecution’s repeated improper comments, we believe that the failure of the district court to instruct the jury that Joel’s conviction could not be used as substantive evidence of the appellant’s guilt was error weighing in the appellant’s favor.\nThe second and third factors to consider are whether the prosecution had a proper purpose for the introduction of the co-conspirator’s conviction, and whether the prosecution improperly emphasized the conviction or used it as substantive evidence of guilt. We have already concluded, supra, that the prosecution introduced this evidence for the improper purpose of misleading the jury and that Joel’s conviction was argued as substantive evidence of guilt by implication. These factors also favor the appellant.\nThe fourth and fifth factors focus on the conduct of defense counsel. This inquiry looks to not only whether the error was invited by defense counsel, but also whether the failure of defense counsel to object was conceivably the result of tactical considerations. We acknowledge that defense counsel failed to object to the prosecution’s improper comments in this case.\nWe find it difficult to believe, on these facts, that defense counsel invited the repeated comments about Joel’s conviction and his relationship to the appellant — the defense’s posture at trial can hardly be described as aggressive. We also find it impossible to believe that defense counsel failed to object to these comments for tactical reasons: what tactical reason could exist to allow the prosecution to advance improper arguments that are likely to result in the conviction of one’s client? Despite defense counsel’s failure to object to this conduct, we do not find these factors to weigh against the appellant; in fact, we conclude that they favor his argument.\nFinally, we consider whether, in light of the evidence presented against the appellant, the error in this case was harmless beyond a reasonable doubt. As we indicated above, although we have sustained convictions as based on sufficient evidence in cases such as this, we believe that the prosecution’s conduct in this case so infected the appellant’s trial that it would be impossible for us to determine whether the error was harmless beyond a reasonable doubt. While the prosecution presented testimony that implicated the appellant in a drug distribution conspiracy, the DEA’s investigation had failed to turn up the appellant as a participant in the organization. The appellant is entitled to have a jury consider the conflicting inferences to be drawn from that evidence without having the impermissible taint of Joel’s conviction and relationship to the appellant clouding their judgment. Thus, we conclude that the error was not harmless beyond a reasonable doubt.\nIn sum, the factors employed by the Fifth Circuit in Miranda weigh heavily in the appellant’s favor. The only factor that we find to favor the prosecution is the lack of objection by defense counsel to these errors. In light of the overwhelming weight of the other factors, however, we conclude that the prosecution’s conduct has prejudiced the appellant’s substantial rights. We find support for this conclusion in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), a case interpreting the precursor to Fed.R.Crim.Pro. 52(b). In Kotteakos, the Supreme Court stated that,\nif one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.\nId. at 765, 66 S.Ct. at 1248. Keeping in mind the Supreme Court’s strictures in Young, that Rule 52(b) allows the Courts of Appeals to correct “those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings,” Young, 470 U.S. at 15, 105 S.Ct. at 1046 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)), only if those errors are “ ‘particularly egregious,’ ” id. at 15, 105 S.Ct. at 1046 (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)), we believe that this case presents “ ‘circumstances in which a miscarriage of justice would otherwise result,’ ” id. (quoting Frady, 456 U.S. at 163 n. 14, 102 S.Ct. at 1592 n. 14), were we not to grant the appellant a new trial.\nThe prosecution’s errors in this case present us with a clear case of overreaching. Not content with its case against the appellant, the prosecution chose to use improper suggestion on cross-examination and improper jury argument to obtain a conviction. We believe that an examination of the appellant’s trial as a whole reveals “particularly egregious” error that requires a new trial.\nIn addition to the improper jury argument, which we have discussed at length, the prosecution posed the following questions to Joel on cross-examination after attempting to impeach Joel with evidence of his past convictions under Fed.R.Evid. 609(a) and his prior inconsistent statements:\n[AUSA] But the jury obviously didn’t believe that, did they, Mr. Mitchell?\n[Joel] No, Ma’am.\nQ They didn’t because they convicted you of that charge, didn’t they, sir?\nA Yes, ma’am.\nAlthough we express no opinion as to whether the cross-examination concerning Joel’s convictions constitutes reversible error under Fed.R.Evid. 609(a), the two above quoted questions raise the specter, described above, of impermissibly placing another jury’s conclusions before the defendant’s jury. A brief examination of Rule 609 itself will explain these concerns.\nRule 609(a) allows the admission of evidence that a witness has been convicted of a crime “[f\|or the purpose of attacking the credibility of [that] witness,” subject to the balancing test of Fed.R.Evid. 403. Fed. R.Evid. 609(a)(1). Rule 403 is used, in part, to prevent prejudice to the defendant through impeachment of witnesses with convictions that may implicate the defendant by association. The Advisory Committee Note on the 1990 Amendment to Rule 609(a) makes this point clear:\nRule 403 now clearly protects against unfair impeachment of any defense witness other than the defendant. There are cases in which a defendant might be prejudiced when a defense witness is impeached. Such cases may arise, for example, when the witness bears a special relationship to the defendant such that the defendant is likely to suffer some spill-over effect from impeachment of the witness.\nFed.R.Evid. 609 advisory committee’s note. This policy protects the defendant from those “instances where the defense witness’s prior criminal past would be held against the defendant. For instance, if the witness is a close relative of the defendant, the jury’s distrust of the witness if informed of his criminal past may rub off on the defendant.” 3 Weinstein & Berger, Weinstein’s Evidence ¶ 609[04], at 609-59 (1992). If the trial court decides, in its discretion, to admit the conviction, then “[i]n proving the felony conviction on cross-examination, the United States Attorney may ‘ask about “the name of the crime, the time and place of conviction, and the punishment.” ’ ” United States v. Boyce, 611 F.2d 530, 530 (4th Cir. 1979) (citation omitted). Limiting cross-examination to those facts prevents the government from adding “to the pungency of the impeachment,” 3 Weinstein, supra ¶ 609[05], at 609-66 (quoting McCormick, Evidence § 43 at 98 (1984)), a fact that the courts have recognized for many years:\nFrom the common sense point of view a plea of guilty by an alleged fellow conspirator is highly relevant upon the question of the guilt of another alleged conspirator. If A’s admission that he conspired with B is believed, it is pretty hard to avoid the conclusion that B must have conspired with A. This is one of the cases, therefore, where evidence logically probative is to be excluded because of some countervailing policy. There are many such instances in the law....\nThe foundation of the countervailing policy is the light of every defendant to stand or fall with the proof of the charge made against him, not against somebody else. Acquittal of an alleged fellow conspirator is not evidence for a man being tried for conspiracy. So, likewise, conviction of an alleged fellow conspirator after a trial is not admissible as against one now being charged. The defendant has a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.\nUnited States v. Toner, 173 F.2d 140, 142 (3d Cir.1949) (emphasis added). That countervailing policy is the concern that the prosecution’s conduct implicates in this case. We believe that the prosecution’s cross-examination of Joel contributed to the overall effect of the improper conduct in this case and find that it was prejudicial to the appellant.\nThe district court compounded the prosecution’s errors in this case when it failed to give a limiting instruction with respect to the effect of the non-testifying co-conspirators’ guilty pleas. Considering this error in connection with the other instances of error, we conclude that the district court’s failure to give a limiting instruction on this point compounded the prejudicial effect of the prosecution’s improper argument.\nWith respect to the guilty pleas of non-testifying co-conspirators, this Court has observed that “any mention of guilty pleas of non-testifying co-defendants should be avoided at trial wherever possible.” Blevins, 960 F.2d at 1260. In Blevins, we concluded that “it was ... error for any mention of the pleas of the non-testifying co-defendants to have been made,” id. at 1261, and that the error was of constitutional dimension, id. at 1262. In this case, the prosecution referred to the non-testifying co-conspirators’ guilty pleas on a number of occasions and the district court failed to instruct the jury on this point as well. Thus, this was error as well, and we believe that it was prejudicial to the appellant.\nIn light of the errors in this case and the prosecution’s improper actions, which permeated the entire trial, we “cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error.” Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248. Accordingly, we must reverse the appellant’s conviction.\nIII.\nAs we have observed, this case presents us with a prosecutor who chose to employ impermissible argument to achieve a conviction. In light of the pervasive nature of this error, and the failure of the district court to even attempt to cure that error, we conclude that this case presents the “rare instance” where fundamental fairness requires that we grant the appellant a new trial. Because we conclude that, on these facts, the prosecution’s improper conduct amounts to plain error affecting substantial rights, we reverse the appellant’s conviction and remand for a new trial.\nREVERSED AND REMANDED.\n. The district court aptly observed that the substance of High’s testimony on rebuttal was not really rebuttal testimony in that it had all come out already. Without objection from cither side on this issue, the district court halted the rebuttal testimony sua sponte.\n. 'The transaction that was the subject of this portion of the cross-examination was the count of which the appellant was acquitted.\n. Fed.R.Crim.Pro. 52(b) provides: \"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”\n. While we find these factors helpful in resolving this difficult case, we in no way suggest that the Fifth Circuit’s analysis in Miranda supplants our analysis in Harrison. We merely employ the factors set forth in Miranda to illuminate the prejudice to the appellant in this case.\n. Although wc conclude that the district court’s failure to give a limiting instruction was error in the face of repeated instances of improper comment and questioning by the prosecution, we do recognize the difficulty the district court faced in this case. It made numerous efforts to assist defense counsel in an effort to protect the appellant’s right to a fair trial, including excluding clearly inadmissible evidence without objection from defendant's counsel. It is not clear from the record whether defense counsel objected to the jury instructions, or even proposed instructions for the district court’s use. It is clear, however, that counsel for the defendant was delinquent in his representation and the district court took great pains to insure the defendant a fair trial. In light of the situation, the failure to issue a limiting instruction on this point is understandable.\n. As one court has noted, \"[ojnly in those rare situations in which other 'aggravating circumstances’ have exacerbated the prejudice will the failure to give cautionary instructions result in plain and reversible error.” United States v. DeLucca, 630 F.2d 294, 299 (5th Cir.1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 819 (1981). This case presents the converse of that situation: in this case, the failure to give cautionary instructions is an \"aggravating circumstance” that exacerbated the prejudice to the appellant.\n. The district court instructed the jury as follows: Some witnesses have pled guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant, and you may consider it only in determining the witness' believability. You should consider this witness' testimony with great caution, giving it the weight you feel it deserves.\n[END_CASE]", "role": "user" } ]
10,509,651	D.P. MUTH; J.P. Muth, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee	Muth v. United States	1993-08-06	No. 92-2414	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before RUSSELL and LUTTIG, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation."], "parties": ["D.P. MUTH; J.P. Muth, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee."], "opinions": [{"text": "OPINION\nHILTON, District Judge:\nAppellants D.P. Muth and J.P. Muth bring this appeal from an order of the district court granting summary judgment to appellee United States, on the grounds that the statute of limitations for this action, pursuant to the Federal Torts Claims Act (FTCA), 28 U.S.C. § 2401(b), has expired. 804 F.Supp. 838. Appellants also appeal the district court’s dismissal of J.P. Muth according to Federal Rule of Civil Procedure 12(h)(3), for failure to fulfill a jurisdictional prerequisite. We affirm.\nAppellants D.P. Muth and J.P. Muth own approximately 20 acres of land near the center of what was an 8000 acre complex known as the West Virginia Ordnance Works (WVOW). The WVOW produced trinitrotoluene (TNT) from 1942 until 1945. Following efforts to clean up any areas contaminated by TNT by-products, parcels of the WVOW were sold to private individuals. D.P. Muth obtained 20 acres of property through four separate conveyances from the United States over the course of four decades. Each conveyance was originally to Mason Furniture Company (MFC), a business operated by D.P. Muth from 1948 until 1976. In 1988, MFC deeded all four parcels, totalling the twenty acres, to D.P. and J.P. Muth.\nBy May of 1981, certain areas of the former WVOW were found to be contaminated with by-products of'the TNT manufacturing process. After an investigation, the Environmental Protection Agency (EPA) listed the WVOW on its National Priorities List. The USATHMA conducted a remedial investigation of the site from 1984 until 1986, and in 1986 published and disseminated the Remedial Investigation Final Report (RIFR). The RIFR showed no nitroaromatic contamination of the Muths’ water wells, but did document contamination in areas within one quarter mile of their property.\nDuring 1989 and 1990, a supplemental investigation of the WVOW was conducted, which included taking over 22 soil and water samples from appellants’ property. Again, the USATHMA concluded in its 1991 Supplemental Investigation Final Report (SIFR) that neither the soil nor water samples from appellants’ property showed signs of nitro-aromatic contamination.\nBeginning in September 1988, and continuing through August 1992, appellant D.P. Muth corresponded with the Army, the EPA and various elected representatives on matters relating to contamination discovered at the WVOW site. In at least three letters written to the government before July of 1989 — more than two years before the administrative claim was filed — the appellant explicitly indicated that he knew the former use of his property, that contaminants had been discovered at property adjacent to and surrounding his property, and that, as a result, his property had been rendered worthless.\nIn his first correspondence with the government, dated September 19, 1988, D.P. Muth wrote to the Army and the EPA, requesting that the Army check his property for contamination. Muth ■ specifically noted in the letter that his property was located near or adjacent to sites where contaminants were detected. He advised the government that he knew that a facility used in the TNT production process, the sellite plant, had been located on his property. Muth further stated that he was aware that the Army had sampled the water supply wells on his property, and had installed numerous test wells on the WVOW site. He in fact noted, “the [Army contractor] ... used my property as their base of operations.” Finally, Muth admitted in the letter that he knew that the value of his property had been affected by the discovery of contamination: “This past week I offered my property for the new industrial park and I was told by the management of the present industrial park that property in the old TNT plant site was not desirable for any industry....”\nIn early November 1988, both the EPA and the Army responded to D.P. Muth’s inquiries. Both agencies advised the appellant of the pertinent results of the aforementioned remedial investigation, indicating that no explosives-related contaminants had been detected on his property, and explaining in detail the basis for their conclusion that there was no potential for future contamination of Mr. Muth’s property from nearby sites at which contaminants had been detected. The Army reminded Mr. Muth that the results of samples drawn from the wells on his property had been supplied to him by the State of West Virginia in July of 1985.\nOn December 5, 1988, Mr. Muth again wrote to the Army requesting that it provide a letter stating that the property was not a “hazardous situation.” Mr. Muth stated that, “I have made a direct offer to the Mason County Development Authority ... to consider my property for the future industrial site. They immediately advised me that they consider any property of the old West Virginia Ordnance Works as undesirable for anything.” (Emphasis added.) Mr. Muth also reported that he had offered to sell or lease his property, but “the real estate people informed me it will be difficult to dispose of this property because of contamination found on the former West Virginia Ordnance site.” On January 9,1989, Mr. Muth wrote to Senator Byrd regarding the Army’s purchase of the Mason County Industrial Park, which was located adjacent to his property. Mr. Muth acknowledged that he was aware that the Army had purchased the Industrial Park because it was “hazardous and dangerous.” Mr. Muth further informed Senator Byrd that, “I recently offered my property to Mason County Industrial Board for a future Industrial Park. Several members of the board have informed me that any property of the former West Virginia Ordnance Works is undesirable and unsafe for anything.”\nOn the same date, January 9, 1989, appellant wrote to USATHMA requesting copies of the analysis of soil and groundwater samples taken from his property. On February 28, 1989, the Army responded, and enclosed copies of three reports summarizing the information known about the nature and extent of the contamination at the WVOW. Among the reports provided was the 1986 RIFR, which contained information about the use of appellant’s property and surrounding land during World War II, and the analysis of samples taken from Mr. Muth’s wells.\nMr. Muth continued to carry on a considerable volume of correspondence with the Army and his elected representatives after July of 1989. His correspondence during this period reveals a steady effort to convince the Army to purchase his land, which he asserted, consistent with earlier statements, was worthless.\nIn spite of the aforementioned correspondence, appellant D.P. Muth did not file his administrative complaint with the Army until July 19, 1991. Appellant J.P. Muth did not file an administrative complaint at all. D.P. Muth’s claim was denied on September 25, 1991, and appellants filed the district court action on March 5, 1992. The complaint alleged that as a result of the negligent contamination of the WVOW in the 1940’s, appellants’ property diminished in value, effectively rendering it economically worthless.\nThe United States sought summary judgment in the district court action on the grounds that the FTCA’s two-year statute of limitations for this action, 28 U.S.C. § 2401(b) (1988), had expired. The lower court found that a claim accrues under the FTCA “when the plaintiff knows, or in the exercise of due diligence, should have known both the existence and the cause of his injury.” Gould v. United States Dept. of Health and Human Servs., 905 F.2d 738, 742 (4th Cir.1990) (en banc), cert. denied, 498 U.S. 1025, 111 S.Ct. 673, 112 L.Ed.2d 666 (1991); see also United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Mr. Muth argued that the cause of action was timely because he acted with due diligence and/or the principle of equitable tolling extended the time in which to file the claim. Nevertheless, the district court stated that the administrative complaint was filed with the Army in July 19, 1991, and thus if plaintiffs claim accrued prior to July 19,1989, his action was barred by the statute of limitations, § 2401(b).\nI.\nFirst, we agree with the district court’s decision to dismiss appellant J.P. Muth from this case for failure to follow the jurisdictional prerequisite for this FTCA action, namely, filing an administrative claim with the appropriate federal agency. See 28 U.S.C. § 2675(a) (1988). The district court found, and this court agrees, that if there are multiple claimants in the matter, each claimant must “individually satisfy the jurisdictional prerequisite of filing a proper claim, unless another is legally entitled to assert such a claim on their behalf.” Frantz v. United States, 791 F.Supp. 445, 447 (D.Del. 1992). Thus appellant J.P. Muth was properly dismissed from this case.\nII.\nSecond, this court notes that the FTCA is a limited waiver of sovereign immunity. See 28 U.S.C. §§ 2671-2680; Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Among the limitations Congress placed on the consent to suit is the requirement that the plaintiff initially present an administrative claim to an appropriate federal agency within two years of the date the cause of action accrues. The FTCA explicitly provides that a tort claim is “forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues.... ” 28 U.S.C. § 2401(b); see Gould v. United States Dept. of Health and Human Servs., 905 F.2d at 741. For the purposes of section 2401(b), a cause of action accrues when the plaintiff knows, or in the exercise of due diligence, should have known, first, of the existence of the injury, and second, of the cause thereof.\nKubrick, 444 U.S. at 120, 100 S.Ct. at 358; Gould, 905 F.2d at 742; Gilbert v. United States, 720 F.2d 372, 374 (4th Cir.1983).\nAppellant’s injury was identified by the district court as the “diminution of the value of his land,” and the cause of the diminution in value was characterized as the contamination of surrounding and adjacent properties. The district court properly found that appellant D.P. Muth knew of the facts constituting a cause of action greater than two years before he filed his administrative claim. Three years before the appellant first wrote the Army, and five years before the appellant filed his administrative claim, he had more than sufficient notice of facts and circumstances that should have compelled him to undertake a diligent investigation to determine if any of his legal rights had been violated, and thus to determine the existence of any injury.\nAs discussed in detail above, appellant’s first-hand knowledge via correspondence with various individuals, and the information contained in the deeds to the property, imposed upon him an obligation to make reasonable efforts to learn more about the contamination on surrounding properties, the effects of any such contamination, and the possibility that his own property was contaminated. See Gould, 905 F.2d at 745-46. A person armed with the facts known to appellant at that time, undertaking a reasonably diligent investigation, could not have avoided learning both of the claimed injury, and the cause thereof no later than February of 1989.\nThe appellant still argues that his claim did not arise until September 27, 1990, when the Deputy Assistant Secretary of the Army informed him that the Army would not purchase his property. Appellant claims he was not “injured” until this point. He further argues that his correspondence with government officials up to that point constitutes a reasonably diligent investigation to learn the facts underlying his claim.\nDespite appellant’s contentions, the cause of action accrues under the FTCA when the plaintiffs knows, or in the exercise of reasonable diligence should have known, that he is injured and of the cause of the injury. Kubrick, 444 U.S. at 120, 100 S.Ct. at 358; Gould, 905 F.2d at 742. The district court was correct in finding that once the plaintiff is in possession of these “critical facts,” his cause of action accrues, and that Mr. Muth had two years from that point to develop and present the claim to the appropriate federal agency.\nCorrespondence between appellant and others dated from September 1988 to February 1989 demonstrates unequivocally that appellant had firsthand knowledge of both his injury, and the cause thereof, at the latest in February 1989 — which is after the expiration of the statute of limitations. These letters clearly indicate that the property included in the old TNT plant site was undesirable and unsafe for any industry or an industrial park and that the cause of the injury to his property was the “contaminated nature of the adjacent properties.”\nIII.\nAppellant tries to further wrangle its way around the statute of limitations by arguing both a “continuing injury” theory and the theory of equitable tolling of the limitations period. Appellant may not argue a “continuing injury” theory in this court because he did not raise the issue in the district court below. As this court has repeatedly held, issues raised for the first time on appeal generally will not be considered. National Wildlife Fed. v. Hanson, 859 F.2d 313, 318 (4th Cir.1988); Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir.1985); Maynard v. General Elec. Co., 486 F.2d 538, 539 (4th Cir.1973). Exceptions to this general rule are made only in very limited circumstances, such as where refusal to consider the newly-raised issue would be plain error or would result in a fundamental miscarriage of justice. National Wildlife Fed., 859 F.2d at 318. Appellant has not even argued that exceptional circumstances justifying departure from the general rule are present, and based on the record before this court, there are no exceptional circumstances warranting such departure.\nAppellant’s attempt to argue that the district court erred in not equitably tolling the statute of limitations fails as well. Appellant argues that the statute of limitations period should be tolled until March 1991— when the Army sent Mr: Muth the SIFR which indicated that low levels of a small number of chemicals had been detected on the property. Appellant alleges that based on the appellee’s representations, he did not know that the property was contaminated, and thus could not have been injured prior to this date.\nAppellant similarly alleges that before March of 1991, the government deliberately misled him by continually denying that his property was contaminated.\nEquitable tolling is not appropriate where “the claimant has failed to exercise due diligence in preserving his legal rights,” and such relief is appropriate only for the most deserving complainant. Polsby v. Chase, 970 F.2d 1360, 1363 (quoting Irwin v. Veterans Administration, 498 U.S. 89, 111 S.Ct. 463, 112 L.Ed.2d 435 (1990)). As the district court set forth in detail, plaintiff did not exercise due diligence by actively investigating the basis for his claim. To the contrary: Despite being informed that chemicals had been detected on his property; despite being informed that contaminants associated with operations at the WVOW had been detected on adjacent and surrounding properties; despite first-hand knowledge of the investigation underway on the site; despite his firsthand knowledge that WVOW operations had been conducted on his property — plaintiff took no independent steps to determine whether he had a claim against the United States. Thus, the district court did not err in finding that the appellant has no right to invoke the equitable powers of the court.\nFurther, the district court was correct in finding that equitable tolling would not apply for a second reason: The United States did not deliberately mislead or conceal information from the appellant. See English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir.1987), cert. denied, 486 U.S. 1044, 108 S.Ct. 2037, 100 L.Edüd 621 (1988). To invoke the doctrine, Mr. Muth must show that the “defendant attempted to mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a timely charge.” Id.; Lawson v. Burlington Inds., 683 F.2d 862, 864 (4th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982).\nThe 1991 SIFR report contains no information which is in contradiction to the first report in response to appellant’s first correspondence with officials in November 1988. The SIFR documents that slightly elevated levels of several metals were found in the soil at appellant’s site. It does not conclude that the contaminants are the result of WVOW operations or that they are of any environmental significance. Instead, it finds that there was no “significant soil contamination ... by military or private industrial contaminants”, and that “metals detected in the [appellant’s] soil samples can occur naturally in clayey soils.” Notably, in the very first letter to appellant in November of 1988 the Army reported the presence of elevated levels of some levels of iron and sulfates. Similar information was provided in July of 1985 from the State of West Virginia’s results of well water sampling. Given the prior information in his possession, appellant clearly cannot reasonably assert that he relied on any “misrepresentations” by the government in neglecting to file a timely claim.\nIV.\nLastly, the allegation that the United States used elevated detection levels is without merit, for there is no evidence in the record that the Army chose the detection levels in a deliberate and fraudulent effort to conceal information from the appellants.\nThe decision of the district court is affirmed.\nAFFIRMED.\n.The first parcel of 5.197 acres was purchased by Mason Furniture Company (MFC) directly from the United States in 1948. In 1951, MFC purchased an additional .477 acres directly from the United States by quitclaim deed. In 1966, MFC purchased the surface rights to an additional 5.026 acres from G.P.B. Trading Company; G.P.B. had obtained ownership through a 1961 conveyance from Jerome and Alta Goldberg, who, in turn, had obtained their title from the United States earlier in 1961. The 1961 deed to the Goldbergs contained language clearly indicating that the property was formerly a part of the West Virginia Ordnance Works established in 1943, and was developed for the manufacture and production of TNT.\n. The United States Army’s Toxic and Hazardous Materials Agency (USATHMA) was designated as the agency responsible for investigation and remediation at the WVOW.\n. Following the discovery of the contamination, the appellee held four public meetings, which received considerable news coverage, to address concerns regarding possible contamination and to solicit community input and comment.\n. The sites from which the samples were taken were determined by appellant D.P. Muth.", "type": "majority", "author": "HILTON, District Judge:"}], "attorneys": ["Gary Edward Pullin, Cleek, Pullin & Bibb, Charleston, WV, argued (Travis S. Haley, on brief), for plaintiffs-appellants.", "Paul Lee Yanowitch, Civil Div., U.S. Dept, of Justice, Washington, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., Michael W. Carey, U.S. Atty., Donald L. Stennett, Asst. U.S. Atty., J. Patrick Glynn, Director, Torts Branch, Joann J. Bordeaux, Deputy Director, Torts Branch, Christina M. Humway, Civil Div., U.S. Dept, of Justice, on brief), for defendant-appellee."], "corrections": "", "head_matter": "D.P. MUTH; J.P. Muth, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.\nNo. 92-2414.\nUnited States Court of Appeals, Fourth Circuit.\nArgued March 31, 1993.\nDecided August 6, 1993.\nGary Edward Pullin, Cleek, Pullin & Bibb, Charleston, WV, argued (Travis S. Haley, on brief), for plaintiffs-appellants.\nPaul Lee Yanowitch, Civil Div., U.S. Dept, of Justice, Washington, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., Michael W. Carey, U.S. Atty., Donald L. Stennett, Asst. U.S. Atty., J. Patrick Glynn, Director, Torts Branch, Joann J. Bordeaux, Deputy Director, Torts Branch, Christina M. Humway, Civil Div., U.S. Dept, of Justice, on brief), for defendant-appellee.\nBefore RUSSELL and LUTTIG, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation."}	RUSSELL	LUTTIG	HILTON	1	1	1	0	0	0	1 F.3d 246	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: D.P. MUTH; J.P. Muth, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-08-06\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nHILTON, District Judge:\nAppellants D.P. Muth and J.P. Muth bring this appeal from an order of the district court granting summary judgment to appellee United States, on the grounds that the statute of limitations for this action, pursuant to the Federal Torts Claims Act (FTCA), 28 U.S.C. § 2401(b), has expired. 804 F.Supp. 838. Appellants also appeal the district court’s dismissal of J.P. Muth according to Federal Rule of Civil Procedure 12(h)(3), for failure to fulfill a jurisdictional prerequisite. We affirm.\nAppellants D.P. Muth and J.P. Muth own approximately 20 acres of land near the center of what was an 8000 acre complex known as the West Virginia Ordnance Works (WVOW). The WVOW produced trinitrotoluene (TNT) from 1942 until 1945. Following efforts to clean up any areas contaminated by TNT by-products, parcels of the WVOW were sold to private individuals. D.P. Muth obtained 20 acres of property through four separate conveyances from the United States over the course of four decades. Each conveyance was originally to Mason Furniture Company (MFC), a business operated by D.P. Muth from 1948 until 1976. In 1988, MFC deeded all four parcels, totalling the twenty acres, to D.P. and J.P. Muth.\nBy May of 1981, certain areas of the former WVOW were found to be contaminated with by-products of'the TNT manufacturing process. After an investigation, the Environmental Protection Agency (EPA) listed the WVOW on its National Priorities List. The USATHMA conducted a remedial investigation of the site from 1984 until 1986, and in 1986 published and disseminated the Remedial Investigation Final Report (RIFR). The RIFR showed no nitroaromatic contamination of the Muths’ water wells, but did document contamination in areas within one quarter mile of their property.\nDuring 1989 and 1990, a supplemental investigation of the WVOW was conducted, which included taking over 22 soil and water samples from appellants’ property. Again, the USATHMA concluded in its 1991 Supplemental Investigation Final Report (SIFR) that neither the soil nor water samples from appellants’ property showed signs of nitro-aromatic contamination.\nBeginning in September 1988, and continuing through August 1992, appellant D.P. Muth corresponded with the Army, the EPA and various elected representatives on matters relating to contamination discovered at the WVOW site. In at least three letters written to the government before July of 1989 — more than two years before the administrative claim was filed — the appellant explicitly indicated that he knew the former use of his property, that contaminants had been discovered at property adjacent to and surrounding his property, and that, as a result, his property had been rendered worthless.\nIn his first correspondence with the government, dated September 19, 1988, D.P. Muth wrote to the Army and the EPA, requesting that the Army check his property for contamination. Muth ■ specifically noted in the letter that his property was located near or adjacent to sites where contaminants were detected. He advised the government that he knew that a facility used in the TNT production process, the sellite plant, had been located on his property. Muth further stated that he was aware that the Army had sampled the water supply wells on his property, and had installed numerous test wells on the WVOW site. He in fact noted, “the [Army contractor] ... used my property as their base of operations.” Finally, Muth admitted in the letter that he knew that the value of his property had been affected by the discovery of contamination: “This past week I offered my property for the new industrial park and I was told by the management of the present industrial park that property in the old TNT plant site was not desirable for any industry....”\nIn early November 1988, both the EPA and the Army responded to D.P. Muth’s inquiries. Both agencies advised the appellant of the pertinent results of the aforementioned remedial investigation, indicating that no explosives-related contaminants had been detected on his property, and explaining in detail the basis for their conclusion that there was no potential for future contamination of Mr. Muth’s property from nearby sites at which contaminants had been detected. The Army reminded Mr. Muth that the results of samples drawn from the wells on his property had been supplied to him by the State of West Virginia in July of 1985.\nOn December 5, 1988, Mr. Muth again wrote to the Army requesting that it provide a letter stating that the property was not a “hazardous situation.” Mr. Muth stated that, “I have made a direct offer to the Mason County Development Authority ... to consider my property for the future industrial site. They immediately advised me that they consider any property of the old West Virginia Ordnance Works as undesirable for anything.” (Emphasis added.) Mr. Muth also reported that he had offered to sell or lease his property, but “the real estate people informed me it will be difficult to dispose of this property because of contamination found on the former West Virginia Ordnance site.” On January 9,1989, Mr. Muth wrote to Senator Byrd regarding the Army’s purchase of the Mason County Industrial Park, which was located adjacent to his property. Mr. Muth acknowledged that he was aware that the Army had purchased the Industrial Park because it was “hazardous and dangerous.” Mr. Muth further informed Senator Byrd that, “I recently offered my property to Mason County Industrial Board for a future Industrial Park. Several members of the board have informed me that any property of the former West Virginia Ordnance Works is undesirable and unsafe for anything.”\nOn the same date, January 9, 1989, appellant wrote to USATHMA requesting copies of the analysis of soil and groundwater samples taken from his property. On February 28, 1989, the Army responded, and enclosed copies of three reports summarizing the information known about the nature and extent of the contamination at the WVOW. Among the reports provided was the 1986 RIFR, which contained information about the use of appellant’s property and surrounding land during World War II, and the analysis of samples taken from Mr. Muth’s wells.\nMr. Muth continued to carry on a considerable volume of correspondence with the Army and his elected representatives after July of 1989. His correspondence during this period reveals a steady effort to convince the Army to purchase his land, which he asserted, consistent with earlier statements, was worthless.\nIn spite of the aforementioned correspondence, appellant D.P. Muth did not file his administrative complaint with the Army until July 19, 1991. Appellant J.P. Muth did not file an administrative complaint at all. D.P. Muth’s claim was denied on September 25, 1991, and appellants filed the district court action on March 5, 1992. The complaint alleged that as a result of the negligent contamination of the WVOW in the 1940’s, appellants’ property diminished in value, effectively rendering it economically worthless.\nThe United States sought summary judgment in the district court action on the grounds that the FTCA’s two-year statute of limitations for this action, 28 U.S.C. § 2401(b) (1988), had expired. The lower court found that a claim accrues under the FTCA “when the plaintiff knows, or in the exercise of due diligence, should have known both the existence and the cause of his injury.” Gould v. United States Dept. of Health and Human Servs., 905 F.2d 738, 742 (4th Cir.1990) (en banc), cert. denied, 498 U.S. 1025, 111 S.Ct. 673, 112 L.Ed.2d 666 (1991); see also United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Mr. Muth argued that the cause of action was timely because he acted with due diligence and/or the principle of equitable tolling extended the time in which to file the claim. Nevertheless, the district court stated that the administrative complaint was filed with the Army in July 19, 1991, and thus if plaintiffs claim accrued prior to July 19,1989, his action was barred by the statute of limitations, § 2401(b).\nI.\nFirst, we agree with the district court’s decision to dismiss appellant J.P. Muth from this case for failure to follow the jurisdictional prerequisite for this FTCA action, namely, filing an administrative claim with the appropriate federal agency. See 28 U.S.C. § 2675(a) (1988). The district court found, and this court agrees, that if there are multiple claimants in the matter, each claimant must “individually satisfy the jurisdictional prerequisite of filing a proper claim, unless another is legally entitled to assert such a claim on their behalf.” Frantz v. United States, 791 F.Supp. 445, 447 (D.Del. 1992). Thus appellant J.P. Muth was properly dismissed from this case.\nII.\nSecond, this court notes that the FTCA is a limited waiver of sovereign immunity. See 28 U.S.C. §§ 2671-2680; Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Among the limitations Congress placed on the consent to suit is the requirement that the plaintiff initially present an administrative claim to an appropriate federal agency within two years of the date the cause of action accrues. The FTCA explicitly provides that a tort claim is “forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues.... ” 28 U.S.C. § 2401(b); see Gould v. United States Dept. of Health and Human Servs., 905 F.2d at 741. For the purposes of section 2401(b), a cause of action accrues when the plaintiff knows, or in the exercise of due diligence, should have known, first, of the existence of the injury, and second, of the cause thereof.\nKubrick, 444 U.S. at 120, 100 S.Ct. at 358; Gould, 905 F.2d at 742; Gilbert v. United States, 720 F.2d 372, 374 (4th Cir.1983).\nAppellant’s injury was identified by the district court as the “diminution of the value of his land,” and the cause of the diminution in value was characterized as the contamination of surrounding and adjacent properties. The district court properly found that appellant D.P. Muth knew of the facts constituting a cause of action greater than two years before he filed his administrative claim. Three years before the appellant first wrote the Army, and five years before the appellant filed his administrative claim, he had more than sufficient notice of facts and circumstances that should have compelled him to undertake a diligent investigation to determine if any of his legal rights had been violated, and thus to determine the existence of any injury.\nAs discussed in detail above, appellant’s first-hand knowledge via correspondence with various individuals, and the information contained in the deeds to the property, imposed upon him an obligation to make reasonable efforts to learn more about the contamination on surrounding properties, the effects of any such contamination, and the possibility that his own property was contaminated. See Gould, 905 F.2d at 745-46. A person armed with the facts known to appellant at that time, undertaking a reasonably diligent investigation, could not have avoided learning both of the claimed injury, and the cause thereof no later than February of 1989.\nThe appellant still argues that his claim did not arise until September 27, 1990, when the Deputy Assistant Secretary of the Army informed him that the Army would not purchase his property. Appellant claims he was not “injured” until this point. He further argues that his correspondence with government officials up to that point constitutes a reasonably diligent investigation to learn the facts underlying his claim.\nDespite appellant’s contentions, the cause of action accrues under the FTCA when the plaintiffs knows, or in the exercise of reasonable diligence should have known, that he is injured and of the cause of the injury. Kubrick, 444 U.S. at 120, 100 S.Ct. at 358; Gould, 905 F.2d at 742. The district court was correct in finding that once the plaintiff is in possession of these “critical facts,” his cause of action accrues, and that Mr. Muth had two years from that point to develop and present the claim to the appropriate federal agency.\nCorrespondence between appellant and others dated from September 1988 to February 1989 demonstrates unequivocally that appellant had firsthand knowledge of both his injury, and the cause thereof, at the latest in February 1989 — which is after the expiration of the statute of limitations. These letters clearly indicate that the property included in the old TNT plant site was undesirable and unsafe for any industry or an industrial park and that the cause of the injury to his property was the “contaminated nature of the adjacent properties.”\nIII.\nAppellant tries to further wrangle its way around the statute of limitations by arguing both a “continuing injury” theory and the theory of equitable tolling of the limitations period. Appellant may not argue a “continuing injury” theory in this court because he did not raise the issue in the district court below. As this court has repeatedly held, issues raised for the first time on appeal generally will not be considered. National Wildlife Fed. v. Hanson, 859 F.2d 313, 318 (4th Cir.1988); Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir.1985); Maynard v. General Elec. Co., 486 F.2d 538, 539 (4th Cir.1973). Exceptions to this general rule are made only in very limited circumstances, such as where refusal to consider the newly-raised issue would be plain error or would result in a fundamental miscarriage of justice. National Wildlife Fed., 859 F.2d at 318. Appellant has not even argued that exceptional circumstances justifying departure from the general rule are present, and based on the record before this court, there are no exceptional circumstances warranting such departure.\nAppellant’s attempt to argue that the district court erred in not equitably tolling the statute of limitations fails as well. Appellant argues that the statute of limitations period should be tolled until March 1991— when the Army sent Mr: Muth the SIFR which indicated that low levels of a small number of chemicals had been detected on the property. Appellant alleges that based on the appellee’s representations, he did not know that the property was contaminated, and thus could not have been injured prior to this date.\nAppellant similarly alleges that before March of 1991, the government deliberately misled him by continually denying that his property was contaminated.\nEquitable tolling is not appropriate where “the claimant has failed to exercise due diligence in preserving his legal rights,” and such relief is appropriate only for the most deserving complainant. Polsby v. Chase, 970 F.2d 1360, 1363 (quoting Irwin v. Veterans Administration, 498 U.S. 89, 111 S.Ct. 463, 112 L.Ed.2d 435 (1990)). As the district court set forth in detail, plaintiff did not exercise due diligence by actively investigating the basis for his claim. To the contrary: Despite being informed that chemicals had been detected on his property; despite being informed that contaminants associated with operations at the WVOW had been detected on adjacent and surrounding properties; despite first-hand knowledge of the investigation underway on the site; despite his firsthand knowledge that WVOW operations had been conducted on his property — plaintiff took no independent steps to determine whether he had a claim against the United States. Thus, the district court did not err in finding that the appellant has no right to invoke the equitable powers of the court.\nFurther, the district court was correct in finding that equitable tolling would not apply for a second reason: The United States did not deliberately mislead or conceal information from the appellant. See English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir.1987), cert. denied, 486 U.S. 1044, 108 S.Ct. 2037, 100 L.Edüd 621 (1988). To invoke the doctrine, Mr. Muth must show that the “defendant attempted to mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a timely charge.” Id.; Lawson v. Burlington Inds., 683 F.2d 862, 864 (4th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982).\nThe 1991 SIFR report contains no information which is in contradiction to the first report in response to appellant’s first correspondence with officials in November 1988. The SIFR documents that slightly elevated levels of several metals were found in the soil at appellant’s site. It does not conclude that the contaminants are the result of WVOW operations or that they are of any environmental significance. Instead, it finds that there was no “significant soil contamination ... by military or private industrial contaminants”, and that “metals detected in the [appellant’s] soil samples can occur naturally in clayey soils.” Notably, in the very first letter to appellant in November of 1988 the Army reported the presence of elevated levels of some levels of iron and sulfates. Similar information was provided in July of 1985 from the State of West Virginia’s results of well water sampling. Given the prior information in his possession, appellant clearly cannot reasonably assert that he relied on any “misrepresentations” by the government in neglecting to file a timely claim.\nIV.\nLastly, the allegation that the United States used elevated detection levels is without merit, for there is no evidence in the record that the Army chose the detection levels in a deliberate and fraudulent effort to conceal information from the appellants.\nThe decision of the district court is affirmed.\nAFFIRMED.\n.The first parcel of 5.197 acres was purchased by Mason Furniture Company (MFC) directly from the United States in 1948. In 1951, MFC purchased an additional .477 acres directly from the United States by quitclaim deed. In 1966, MFC purchased the surface rights to an additional 5.026 acres from G.P.B. Trading Company; G.P.B. had obtained ownership through a 1961 conveyance from Jerome and Alta Goldberg, who, in turn, had obtained their title from the United States earlier in 1961. The 1961 deed to the Goldbergs contained language clearly indicating that the property was formerly a part of the West Virginia Ordnance Works established in 1943, and was developed for the manufacture and production of TNT.\n. The United States Army’s Toxic and Hazardous Materials Agency (USATHMA) was designated as the agency responsible for investigation and remediation at the WVOW.\n. Following the discovery of the contamination, the appellee held four public meetings, which received considerable news coverage, to address concerns regarding possible contamination and to solicit community input and comment.\n. The sites from which the samples were taken were determined by appellant D.P. Muth.\n[END_CASE]", "role": "user" } ]
10,509,708	Gladys CHARLES, the Surviving Divorced Spouse of Verdie Charles, on behalf of herself and on behalf of Verdie Charles, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent	Charles v. Director, Office of Workers' Compensation Programs	1993-08-09	No. 91-3028	United States Court of Appeals for the Fourth Circuit	{"judges": "Before HALL and MURNAGHAN, Circuit Judges, and G. Ross ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.", "parties": ["Gladys CHARLES, the Surviving Divorced Spouse of Verdie Charles, on behalf of herself and on behalf of Verdie Charles, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent."], "opinions": [{"text": "OPINION\nK.K. HALL, Circuit Judge:\nGladys Charles petitions for review of an order of the Benefits Review Board (BRB) affirming the denial of her claim for her deceased ex-husband’s black lung benefits. Because we conclude that the petitioner does not have standing to pursue a claim for underpayments to the miner during the miner’s lifetime, we dismiss the petition.\nI.\nVerdie Charles worked in the mines for over twenty years between 1940 and 1967. He later moved to Chicago with his wife, petitioner Gladys Charles. The couple divorced on June 11, 1979, after over thirty years of marriage. The Illinois divorce decree ordered Verdie to pay Gladys support of $25 per week for five years, ie., until June 11, 1984. Verdie quit paying in 1981.\nOn February 17, 1984, Verdie filed a claim for black lung benefits. His claim was denied on May 31, 1984, and he died of a heart attack on August 6, 1984.\nOn September 25, 1984, Gladys filed a survivor’s claim for benefits, which was promptly denied on October 18. Then, purporting to be acting on behalf of both claims (her own and her ex-husband’s claim for living miner’s benefits), Gladys requested a hearing. A hearing before an administrative law judge (ALJ) was held November 20, 1986. On July 14, 1987, the ALJ ruled that Gladys was entitled to bring the claims, but he denied them on the merits.\nGladys sought BRB review. The Director of the Office of Workers’ Compensation Programs argued that Gladys did not have standing to assert the claims; however, on the merits, the Director conceded that the ALJ’s reasoning was flawed and that a remand was required. Notwithstanding this concession, the BRB affirmed the denial of the claims on the merits without addressing the Director’s argument that Gladys did not have standing.\nGladys petitions for review. She no longer asserts that Verdie’s death was “due to” pneumoconiosis, see 30 U.S.C. § 922(a)(2), so her survivor’s claim is abandoned. However, she continues to pursue Verdie’s claim for benefits from the date of onset of disability through the month before his death. The Director renews his concession that the ALJ erred in considering the merits of the claim, but also again challenges Gladys’ standing.\nII.\nA.\nIf a miner dies before receiving black lung benefits due him on a claim he has already filed, the benefits are payable to certain persons in a descending level of priority. 20 C.F.R. § 725.545(c). The first rank in the hierarchy includes a “surviving spouse” who lived with the miner at the time of his death, § 725.545(c)(l)(i)), and a “surviving spouse” or “surviving divorced spouse” who is herself eligible for survivor’s benefits (see § 725.-212 — if the miner’s death was “due to pneu-moconiosis” and the spouse or divorced spouse meets the dependency requirements of the regulations). § 725.545(e)(l)(ii). Next are “surviving children,” (c)(2), and then “surviving parents,” (c)(3), but, in both cases, only if they are personally eligible for surviv- or’s benefits. Thus, with the exception of a “surviving spouse” living with the miner at the time of his death, the defining characteristic of eligibility under (c)(1) — (c)(3) is personal entitlement to survivor’s benefits.\nIf no one is so entitled, the regulation looks simply to the next of kin. The “surviving spouse” takes first, followed by children and parents, (c)(4) — (c)(6). The legal representative of the miner’s estate is last in line. (e)(7).\nB.\nGladys is a “surviving divorced spouse” because she was married to the miner for more than ten years. § 725.216. Section 725.545(c)(l)(ii) gives a “surviving divorced spouse” standing to pursue a claim for underpayment to the miner if she were “entitled for the month of death to black lung benefits as [the miner’s] surviving spouse or surviving divorced spouse.” (emphasis supplied). The emphasized phrase is the regulations’ “Byzantine” way of saying if the divorced spouse qualified for survivor’s benefits under § 725.212.\nGladys focuses her efforts on showing that she was a “dependent” under § 725.217. This showing, though necessary to her claim, is insufficient. Dependency is a requirement for survivor’s benefits under § 725.212; however, because Gladys concedes that Verdie’s death was not “due to pneumoconiosis,” she has no claim for survivor’s benefits, irrespective of whether she was dependent on Verdie. Consequently, she does not qualify to receive underpayments under § 725.545(c)(l)(ii), again irrespective of her dependency.\nFinally, Gladys does not qualify under any other subsection. She is patently not Verdie’s child or parent, and she does not claim to be his legal representative. Subsection (c)(4) does mention the “surviving spouse,” and Gladys asserts that “surviving spouse” includes “surviving divorced spouse.” We are not persuaded.\nInasmuch as “surviving spouse” and “surviving divorced spouse” are terms of art with separate definitions in the regulations, the Director has interpreted the omission of “surviving divorced spouses” in (c)(4) to mean that they are not included. An agency’s interpretation of a regulation it authored deserves “substantial deference ‘unless it is plainly erroneous or inconsistent with the regulation.’ ” Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 159, 108 S.Ct. 427, 440, 98 L.Ed.2d 450 (1987) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)). The Director’s interpretation would likely survive even de novo review, and it easily satisfies the Mullins Coal standard.\nMoreover, the distinction drawn by the Director’s interpretation of (e)(1) and (c)(4) is not arbitrary. Unlike a survivor’s benefit, which is the personal claim of the.dependent spouse, child, or parent, the miner’s claim for underpayment of benefits during his life passes by a quasi-inheritance system. The first policy is to take care of other beneficiaries under the Act; hence, if there is someone who qualifies in his or her own right to benefits, the living miner’s benefits go to that person. If not, a simple hierarchy of intestate succession is prescribed (spouse, then children, then parents, then personal representative). There is every reason why a surviving divorced spouse might receive the miner’s benefits in conjunction with being a beneficiary in her own right, but little reason she should take as an ordinary heir. Thus, we think it is perfectly rational that “surviving divorced spouses” are not mentioned in § 725.545(c)(4).\nWe must therefore dismiss the petition for lack of standing.\nDISMISSED.\n.Verdie's treating physician diagnosed chronic obstructive pulmonary disease, though other evidence tended to show little or no respiratory impairment. Rather than resolve the conflicting evidence, the ALJ stated:\nThe claimant relies upon this physician's report to establish the existence of black lung, claiming on page 2 of her brief that “[chronic obstructive pulmonary disease] qualifies as legal pneumoconiosis under § 718.201.” This contention is completely without foundation.\nAs the Director acknowledges, the ALJ would have discovered his “foundation'' by simply reading the cited regulation. \"Pneumoconiosis” includes \"respiratory and pulmonary impairments ... arising from coal mine employment.\" Impairments arising from coal mine employment \"include[] any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201. (emphasis added).\nThe ALJ also held that the treating physician's opinion was too equivocal to support a finding of pneumoconiosis. The Director disavows this latter holding as well.\n. Pauley v. BethEnergy Mines, Inc., - U.S. -, -, 111 S.Ct. 2524, 2535, 115 L.Ed.2d 604 (1991).\n. The living miner's benefits terminate in the month before his death. 20 C.F.R. § 725.203.\n. Below, when Gladys was pursuing her claim for survivor's benefits, the dependency issue was pertinent. The dependency test for surviving divorced spouses is stated in 20 C.F.R. § 725.217 (emphasis added):\n(a) An individual who is the miner's surviving divorced spouse ... shall be determined to have been dependent on the miner if, for the month before the month in which the miner died:\n(3) A court order required the miner to furnish substantial contributions to the individual's support....\nWe will assume for today’s purposes that Ver-die’s $25 per week obligation was a “substantial” contribution to Gladys’ support. Nonetheless, this modest obligation expired on June 11, 1984. Thus, Verdie owed Gladys nothing \"for the month before the month” he died, which was July, 1984. Gladys argued, and the ALJ apparently agreed, that, because Verdie was almost three years in arrears on his support payments, Gladys’ legal claim against Verdie operated to extend her dependency status forever.\nThe Director disagrees. The regulation says nothing about having an accrued cause of action against the miner in the month before he died; it requires a court order that the miner pay support for the month before he died. Verdie had no obligation to pay support for July, 1984. Gladys could possibly have enforced her claim for June in July, but that is not the same thing. The Director's interpretation of the regulation is entitled to substantial deference, but, because Gladys is not pursuing her survivor's claim here, we need not rule upon this issue today.\n. See 20 C.F.R. §§ 725.214 and 725.216.", "type": "majority", "author": "K.K. HALL, Circuit Judge:"}], "attorneys": ["Leslie Ann Jones, Johnson, Schaaf, Jones & Snelling, Chicago, IL, argued (Thomas E. Johnson, on brief), for petitioner.", "Edward Waldman, Office of the Sol., U.S. Dept, of Labor, Washington, DC, argued (David S. Fortney, Deputy Sol. of Labor, Donald S. Shire, Associate Sol. for Black Lung Benefits, Barbara J. Johnson, Counsel for Appellate Litigation, Priscilla Anne Schwab, Office of the Sol., U.S. Dept, of Labor, Washington, DC, on brief), for respondent.", "Before HALL and MURNAGHAN, Circuit Judges, and G. Ross ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation."], "corrections": "", "head_matter": "Gladys CHARLES, the Surviving Divorced Spouse of Verdie Charles, on behalf of herself and on behalf of Verdie Charles, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.\nNo. 91-3028.\nUnited States Court of Appeals, Fourth Circuit.\nArgued June 11, 1993.\nDecided Aug. 9, 1993.\nLeslie Ann Jones, Johnson, Schaaf, Jones & Snelling, Chicago, IL, argued (Thomas E. Johnson, on brief), for petitioner.\nEdward Waldman, Office of the Sol., U.S. Dept, of Labor, Washington, DC, argued (David S. Fortney, Deputy Sol. of Labor, Donald S. Shire, Associate Sol. for Black Lung Benefits, Barbara J. Johnson, Counsel for Appellate Litigation, Priscilla Anne Schwab, Office of the Sol., U.S. Dept, of Labor, Washington, DC, on brief), for respondent.\nBefore HALL and MURNAGHAN, Circuit Judges, and G. Ross ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation."}	HALL	MURNAGHAN	ANDERSON	1	1	1	0	0	0	1 F.3d 251	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Gladys CHARLES, the Surviving Divorced Spouse of Verdie Charles, on behalf of herself and on behalf of Verdie Charles, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-08-09\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nK.K. HALL, Circuit Judge:\nGladys Charles petitions for review of an order of the Benefits Review Board (BRB) affirming the denial of her claim for her deceased ex-husband’s black lung benefits. Because we conclude that the petitioner does not have standing to pursue a claim for underpayments to the miner during the miner’s lifetime, we dismiss the petition.\nI.\nVerdie Charles worked in the mines for over twenty years between 1940 and 1967. He later moved to Chicago with his wife, petitioner Gladys Charles. The couple divorced on June 11, 1979, after over thirty years of marriage. The Illinois divorce decree ordered Verdie to pay Gladys support of $25 per week for five years, ie., until June 11, 1984. Verdie quit paying in 1981.\nOn February 17, 1984, Verdie filed a claim for black lung benefits. His claim was denied on May 31, 1984, and he died of a heart attack on August 6, 1984.\nOn September 25, 1984, Gladys filed a survivor’s claim for benefits, which was promptly denied on October 18. Then, purporting to be acting on behalf of both claims (her own and her ex-husband’s claim for living miner’s benefits), Gladys requested a hearing. A hearing before an administrative law judge (ALJ) was held November 20, 1986. On July 14, 1987, the ALJ ruled that Gladys was entitled to bring the claims, but he denied them on the merits.\nGladys sought BRB review. The Director of the Office of Workers’ Compensation Programs argued that Gladys did not have standing to assert the claims; however, on the merits, the Director conceded that the ALJ’s reasoning was flawed and that a remand was required. Notwithstanding this concession, the BRB affirmed the denial of the claims on the merits without addressing the Director’s argument that Gladys did not have standing.\nGladys petitions for review. She no longer asserts that Verdie’s death was “due to” pneumoconiosis, see 30 U.S.C. § 922(a)(2), so her survivor’s claim is abandoned. However, she continues to pursue Verdie’s claim for benefits from the date of onset of disability through the month before his death. The Director renews his concession that the ALJ erred in considering the merits of the claim, but also again challenges Gladys’ standing.\nII.\nA.\nIf a miner dies before receiving black lung benefits due him on a claim he has already filed, the benefits are payable to certain persons in a descending level of priority. 20 C.F.R. § 725.545(c). The first rank in the hierarchy includes a “surviving spouse” who lived with the miner at the time of his death, § 725.545(c)(l)(i)), and a “surviving spouse” or “surviving divorced spouse” who is herself eligible for survivor’s benefits (see § 725.-212 — if the miner’s death was “due to pneu-moconiosis” and the spouse or divorced spouse meets the dependency requirements of the regulations). § 725.545(e)(l)(ii). Next are “surviving children,” (c)(2), and then “surviving parents,” (c)(3), but, in both cases, only if they are personally eligible for surviv- or’s benefits. Thus, with the exception of a “surviving spouse” living with the miner at the time of his death, the defining characteristic of eligibility under (c)(1) — (c)(3) is personal entitlement to survivor’s benefits.\nIf no one is so entitled, the regulation looks simply to the next of kin. The “surviving spouse” takes first, followed by children and parents, (c)(4) — (c)(6). The legal representative of the miner’s estate is last in line. (e)(7).\nB.\nGladys is a “surviving divorced spouse” because she was married to the miner for more than ten years. § 725.216. Section 725.545(c)(l)(ii) gives a “surviving divorced spouse” standing to pursue a claim for underpayment to the miner if she were “entitled for the month of death to black lung benefits as [the miner’s] surviving spouse or surviving divorced spouse.” (emphasis supplied). The emphasized phrase is the regulations’ “Byzantine” way of saying if the divorced spouse qualified for survivor’s benefits under § 725.212.\nGladys focuses her efforts on showing that she was a “dependent” under § 725.217. This showing, though necessary to her claim, is insufficient. Dependency is a requirement for survivor’s benefits under § 725.212; however, because Gladys concedes that Verdie’s death was not “due to pneumoconiosis,” she has no claim for survivor’s benefits, irrespective of whether she was dependent on Verdie. Consequently, she does not qualify to receive underpayments under § 725.545(c)(l)(ii), again irrespective of her dependency.\nFinally, Gladys does not qualify under any other subsection. She is patently not Verdie’s child or parent, and she does not claim to be his legal representative. Subsection (c)(4) does mention the “surviving spouse,” and Gladys asserts that “surviving spouse” includes “surviving divorced spouse.” We are not persuaded.\nInasmuch as “surviving spouse” and “surviving divorced spouse” are terms of art with separate definitions in the regulations, the Director has interpreted the omission of “surviving divorced spouses” in (c)(4) to mean that they are not included. An agency’s interpretation of a regulation it authored deserves “substantial deference ‘unless it is plainly erroneous or inconsistent with the regulation.’ ” Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 159, 108 S.Ct. 427, 440, 98 L.Ed.2d 450 (1987) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)). The Director’s interpretation would likely survive even de novo review, and it easily satisfies the Mullins Coal standard.\nMoreover, the distinction drawn by the Director’s interpretation of (e)(1) and (c)(4) is not arbitrary. Unlike a survivor’s benefit, which is the personal claim of the.dependent spouse, child, or parent, the miner’s claim for underpayment of benefits during his life passes by a quasi-inheritance system. The first policy is to take care of other beneficiaries under the Act; hence, if there is someone who qualifies in his or her own right to benefits, the living miner’s benefits go to that person. If not, a simple hierarchy of intestate succession is prescribed (spouse, then children, then parents, then personal representative). There is every reason why a surviving divorced spouse might receive the miner’s benefits in conjunction with being a beneficiary in her own right, but little reason she should take as an ordinary heir. Thus, we think it is perfectly rational that “surviving divorced spouses” are not mentioned in § 725.545(c)(4).\nWe must therefore dismiss the petition for lack of standing.\nDISMISSED.\n.Verdie's treating physician diagnosed chronic obstructive pulmonary disease, though other evidence tended to show little or no respiratory impairment. Rather than resolve the conflicting evidence, the ALJ stated:\nThe claimant relies upon this physician's report to establish the existence of black lung, claiming on page 2 of her brief that “[chronic obstructive pulmonary disease] qualifies as legal pneumoconiosis under § 718.201.” This contention is completely without foundation.\nAs the Director acknowledges, the ALJ would have discovered his “foundation'' by simply reading the cited regulation. \"Pneumoconiosis” includes \"respiratory and pulmonary impairments ... arising from coal mine employment.\" Impairments arising from coal mine employment \"include[] any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201. (emphasis added).\nThe ALJ also held that the treating physician's opinion was too equivocal to support a finding of pneumoconiosis. The Director disavows this latter holding as well.\n. Pauley v. BethEnergy Mines, Inc., - U.S. -, -, 111 S.Ct. 2524, 2535, 115 L.Ed.2d 604 (1991).\n. The living miner's benefits terminate in the month before his death. 20 C.F.R. § 725.203.\n. Below, when Gladys was pursuing her claim for survivor's benefits, the dependency issue was pertinent. The dependency test for surviving divorced spouses is stated in 20 C.F.R. § 725.217 (emphasis added):\n(a) An individual who is the miner's surviving divorced spouse ... shall be determined to have been dependent on the miner if, for the month before the month in which the miner died:\n(3) A court order required the miner to furnish substantial contributions to the individual's support....\nWe will assume for today’s purposes that Ver-die’s $25 per week obligation was a “substantial” contribution to Gladys’ support. Nonetheless, this modest obligation expired on June 11, 1984. Thus, Verdie owed Gladys nothing \"for the month before the month” he died, which was July, 1984. Gladys argued, and the ALJ apparently agreed, that, because Verdie was almost three years in arrears on his support payments, Gladys’ legal claim against Verdie operated to extend her dependency status forever.\nThe Director disagrees. The regulation says nothing about having an accrued cause of action against the miner in the month before he died; it requires a court order that the miner pay support for the month before he died. Verdie had no obligation to pay support for July, 1984. Gladys could possibly have enforced her claim for June in July, but that is not the same thing. The Director's interpretation of the regulation is entitled to substantial deference, but, because Gladys is not pursuing her survivor's claim here, we need not rule upon this issue today.\n. See 20 C.F.R. §§ 725.214 and 725.216.\n[END_CASE]", "role": "user" } ]
10,509,797	Charles E. LITTLE, Jr., Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; Joseph V. Corless; John Doe; William P. Barr, Attorney General of the United States, Defendants-Appellees	Little v. Federal Bureau of Investigation	1993-08-10	No. 92-2058	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before HALL, Circuit Judge, SPROUSE, Senior Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation."], "parties": ["Charles E. LITTLE, Jr., Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; Joseph V. Corless; John Doe; William P. Barr, Attorney General of the United States, Defendants-Appellees."], "opinions": [{"text": "OPINION\nMICHAEL, District Judge:\nThis case arose out of the termination of Charles E. Little, Jr. from his employment as a special agent with the Federal Bureau of Investigation (“FBI”). In his complaint, Little asserted claims under the Rehabilitation Act, the Privacy Act, and Bivens. The district court dismissed all of Little’s claims pursuant to Fed.R.Civ.P. 12(b)(6), 793 F.Supp. 652 (D.Md.1992). On Little’s appeal, we affirm.\nI.\nIn reviewing a dismissal based on insufficiency of the complaint, we accept as true the allegations of the complaint and draw any permissible inferences therefrom in favor of the plaintiff, in this case Little.\nLittle was employed as a special agent with the FBI for more than seven years before his termination on January 14, 1991. He had been assigned to the Baltimore Division since 1986. Little was an alcoholic, perhaps during his entire tenure with the FBI. His superiors knew of his problems with alcohol, but his job performance evaluations were always at least “fully satisfactory” and never “unacceptable.”\nPrior to December 1989, Little was involved in three separate alcohol-related incidents. The third incident was a July 1988 off-duty drunk-driving episode, which resulted in a December 1988 conviction for driving while intoxicated. As part of his sentence for that conviction, Little was placed on 18 months probation. Following this incident, Little unsuccessfully attempted on his own to quit drinking.\nOn December 19, 1989, Little was involved in another off-duty drunk-driving incident for which he was again charged with driving while intoxicated. He reported this incident to his superiors, and, recognizing that he needed professional treatment for his alcoholism, he sought assistance from his supervisor.\nAt that time, the FBI had in place an Employee Assistance Program (“EAP”) which was designed, inter alia, to assist employees who were suffering from various handicaps, including alcoholism. Under the EAP, the FBI had specially designated and, trained counselors, who were on duty in the Baltimore field office and at the Washington, D.C. headquarters. In addition, the FBI had regulations regarding procedures to assist and manage alcoholic employees, which regulations were set out in the FBI’s Manual of Administrative Operations and Procedures (“MAOP”). The MAOP’s alcoholism program provided that “[a]n employee who has accepted treatment will be dismissed only when he/she has been granted sick leave, treatment has failed, and he/she is clearly not capable of meeting the demands of the job.” MAOP § 15-3.1. The MAOP further provided that, notwithstanding the provisions of the alcoholism program, “FBI policy continues to require that employees should never cause themselves to be mentally or physically unfit for duty.” MAOP § 15-3.3(2).\nLittle was not referred to an EAP counsel- or but was instead referred to a private physician, who directed Little to an outpatient alcohol treatment program. During treatment, Little was placed on limited duty status, but he was not apprised of the nature or terms of that status. He completed the outpatient program in March 1990, and he was reinstated to full duty on May 4, 1990.\nDespite having completed a treatment program, Little relapsed into alcohol abuse, and on May 16,1990, he was intoxicated while on duty, to an extent that he was escorted to his home by two of his fellow agents. Following that incident, Little entered and completed an inpatient alcohol treatment program. He has engaged in no further drinking since May 16, 1990.\nLittle was discharged from the inpatient program on June 4, 1990, and he returned to work the next day. Upon his return to work, he was interviewed by his superiors about the May 16, 1990 incident. After Little admitted to drinking on duty, he was asked to resign. When he refused to resign, he was told that he would be treated like a clerk, and he was in fact given exclusively clerical duties thereafter. In addition, his superiors informed the appropriate state court of his drinking, which would constitute a violation of his probation.\nLittle received a letter dated September 21, 1990 from Assistant FBI Director Kennedy, to the effect that serious consideration was being given to Little’s termination from the FBI. Finally, on January 14,1991, Little was terminated. A “Notification of Personnel Action” dated January 17, 1991, which gave Little formal notice of his removal as a special agent, stated that he was terminated because of his “inability to conform to the FBI’s established standards that special agents must remain mentally and physically fit for duty at all times.”\nThis lawsuit followed. In his complaint, Little asserted claims under the Rehabilitation Act, the Privacy Act, and Bivens. The FBI filed a “Motion for Judgment on the Pleadings and to Dismiss the Second Amended Complaint.” The district court treated the motion as one made under Fed.R.Civ.P. 12(b)(6) and dismissed all of Little’s claims. In dismissing the Rehabilitation Act claim, the district court primarily relied on the Fifth Circuit opinion in Butler v. Thorn-burgh, 900 F.2d 871 (5th Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990), for the principle that “an F.B.I. Special Agent who is an alcoholic and who manifests such conduct on duty is not within the protection of the Rehabilitation Act, because he is not ‘otherwise qualified.’ ” App. at 71.\nII.\nOn appeal, Little raises only the issue of whether Count I of his complaint states a claim for the violation of the Rehabilitation Act of 1978, as amended, 29 U.S.C. §§ 701-797b. Since the court below dismissed Count I of the complaint as a matter of law, review in this court is de novo.\nAt the heart of this appeal, the parties are sharply divided in their views of the reason for Little’s termination. The appellant alleged in his complaint and now asserts on appeal that his employment with the FBI was terminated because of his alcoholism. The appellant argues that the district court erred by construing facts in favor of the FBI and against Little; by failing to undertake an “individualized inquiry” of the facts as mandated by School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987); by following Butler v. Thornburgh, supra; and by holding that Little was not entitled to reasonable accommodation as provided for in Rodgers v. Lehman, 869 F.2d 253 (4th Cir.1989). On the other hand, the appellee claims that Little was fired because he was intoxicated while on duty. In other words, the appellee maintains that Little was fired because of misconduct, not alcoholism. Indeed, in our view, the case turns on whether Little was terminated because of his alcoholism or because of his misconduct. Only if Little has alleged facts to support his claim that he was terminated because of his alcoholism has he stated a claim under the Rehabilitation Act.\nLittle brought his claim under both Sections 501 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 791 and 794. Section 501 imposes an affirmative duty on federal agencies toward handicapped applicants and employees. 29 U.S.C. § 791(b). Section 504 provides that “[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency....” 29 U.S.C. § 794. Thus, to- be entitled to the protection of the Rehabilitation Act, the handicapped person must be “otherwise qualified.” 29 U.S.C. § 794. It is settled that alcoholism is a handicapping condition within the meaning of the Act. Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir.1989).\nThe phrase “otherwise qualified” has been interpreted by the Supreme Court on several occasion's.. In Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979), the Supreme Court said that “[a]n otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.” In a more recent case, the Supreme Court revisited the issue and stated that “[i]n the employment context, an otherwise qualified person is one who can perform ‘the essential functions’ of the job in question.” Arline, 480 U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17. Moreover, even if a handicapped employee is not able to perform the essential functions of the job, “the court must also consider whether any ‘reasonable accommodation’ by the employer would enable the handicapped- person to perform those functions.” Id. at 287 n. 17, 107 S.Ct. at 1131 n. 17. Finally, the employer must make reasonable accommodation for a handicapped employee unless reasonable accommodation would impose “undue hardship” on the employer.\nThe application of the Rehabilitation Act, especially in the context of termination after misconduct, is illuminated by its implementing regulations. In developing regulations to implement Section 504 in 1977, the Secretary of Health, Education, and Welfare (later Health and Human Services) solicited the opinion of the Attorney General as to whether an alcoholic or a drug addict is a “handicapped individual” under the Act. While the Attorney General concluded that both alcoholics and drug addicts are handicapped individuals for purposes of Title V of the Act, which includes Sections 501 and 504, he made clear that the Act does not protect alcoholics or drug addicts from the consequences of them misconduct. Specifically, the Attorney General stated that the Act does not “prevent the application to persons suffering from alcoholism or drug addiction of reasonable rules of conduct, such as prohibitions against the possession or use of alcohol or drugs” at the location of the employment or the federally assisted project. 43 Op. Att’y Gen. No. 12, 1977 WL 17999 at *1.\nBoth the Secretary of Health, Education, and Welfare and the Civil Service Commission cited the Attorney General’s opinion in promulgating regulations implementing Section 504, see 42 Fed.Reg. 22,686 (1977), and Section 501, see 43 Fed.Reg. 12,294 (1978), respectively. The Secretary of Health, Education, and Welfare specifically stated that the employer “may hold a drug addict or alcoholic to the same standard of performance and behavior to which it holds others, even if any unsatisfactory performance or behavior is related to the person’s drug addiction or alcoholism.” 42 Fed.Reg. 22,686 (1977). The Secretary also noted that the various behavioral manifestations of the employee’s condition may be considered by the employer, and “rules prohibiting the possession or use of alcohol and drugs in the workplace” may be enforced against all employees. Id. Equally pointed is the Civil Service Commission commentary to the effect that an alcoholic employee may be terminated “if there is a nexus between such abuse or use and the nature of the employment or if the symptoms resulting from the use of these substances may be so severe that such use, in and of itself, will be sufficient to justify an adverse suitability determination.” 43 Fed. Reg. 12,294 (1978). While these agency statements are not binding authority, we accord them considerable deference. See Richland-Lexington Airport Dist. v. Atlas Properties, Inc., 901 F.2d 1206, 1208-09 (4th Cir.1990).\nFurthermore, the provisions of the FBI’s Manual of Administrative Operations and Procedures (“MAOP”) bear clearly on the resolution of this appeal. The MAOP established a program for the prevention and treatment of alcoholism and the rehabilitation of alcoholic employees within the FBI. However, the MAOP recited that “this program should not be construed as a relaxation of FBI standards of conduct. FBI policy continues to require that employees should never cause themselves to be mentally or physically unfit for duty.” MAOP § 15.-3.3(2) (emphasis added). The next subsection of the MAOP provided that while it is generally required that “rehabilitative efforts be made before disciplinary action for unsatisfactory job performance can be taken,” those efforts “do not preclude agency action if ... other actions or activities are present and constitute employee misconduct.” MAOP § 15-3.3(3).\nIn addition, a number of cases decided since the adoption of the Rehabilitation Act have considered the issue of misconduct as distinct from status as an alcoholic or drug addict. See, e.g., Taub v. Frank, 957 F.2d 8 (1st Cir.1992) (alcoholic Postal Service employee discharge because of criminal conduct). One case similar to this case involved a police officer who was found to have been a user of illegal drugs, and therefore not “otherwise qualified,” because his unlawful behavior in the use of illegal drugs violated “an essential function of the officer’s position to enforce the laws.” Copeland v. Philadelphia Police Dept., 840 F.2d 1139 (3d Cir.1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1636, 104 L.Ed.2d 153 (1989). In a more severe case, an alcoholic Postal Service employee was held not to be protected by the Rehabilitation Act where he committed assault with intent to kill. See Richardson v. USPS, 613 F.Supp. 1213 (D.D.C.1985). As Judge Gesell noted in his opinion, the plaintiff in that case “was discharged for his criminal conduct, not because of alcoholism or poor job performance due to alcohol.” Id. at 1215.\nBased on the foregoing authority — the agency regulations implementing the Rehabilitation Act, the provisions of the FBI’s MAOP, and the judicial opinions just discussed — and based on no lesser authority than common sense, it is clear that an employer subject to the Rehabilitation Act must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped.\nOn the record before us, it plainly appears that the appellant was fired because of his misconduct, not because of his alcoholism. The “Notification of Personnel Action” of January 17, 1991, indicated that Little’s dismissal was “taken in view of his inability to conform to the FBI’s established standards that special agents must remain mentally and physically fit for duty at all times.” Although the notice fails to give any more specific basis for Little’s termination, the only permissible inference from the allegations of the complaint is that Little was fired because he was intoxicated while on duty on May 16, 1990. Little’s superiors had knowledge of his previous alcohol-related incidents, particularly the December 1989 driving-while-intoxieated charge, but the FBI did not terminate him. It is notable that Little’s previous alcohol-related incidents all occurred while Little was off-duty. Rather than being terminated, Little was referred for outpatient treatment, and, after completing that treatment, he was reinstated to full duty. It was only after Little was intoxicated while on duty on May 16, 1990, and only after he admitted such during an interview by his superiors, that the FBI asked him to resign and ultimately, when he did not resign, terminated him. Without attempting to recite in detail the duties of an FBI special agent, it is certain that being intoxicated while on duty will undoubtedly prevent an FBI special agent from being “mentally and physically fit for duty at all times.”\nWhile the appellant is correct that ordinarily the district court must undertake an “individualized inquiry” into the facts, there is no such requirement where the allegations of the complaint fail to state a claim. Although the appellant made the conclusory allegation in his complaint that he was fired because of his alcoholism, that allegation is simply not supported by the other allegations of the complaint.\nIn short, we agree with the district court that Little was not “otherwise qualified” to be an FBI special agent. However, we also rest our decision on a different portion of the statute, a portion virtually ignored by the parties. The Rehabilitation Act applies only where the “otherwise qualified handicapped individual” is subjected to adverse action taken “solely by reason of his handicap.” 29 U.S.C. § 794. In this case, it is manifest that Little was not terminated “solely by reason of his handicap.” Therefore, on that basis, too, Little fails to state a claim under the Rehabilitation Act.\nBecause Little falls outside the protection of the Rehabilitation Act, he cannot avail himself of this circuit’s five-step procedure to be followed by federal agencies in dealing with alcoholic employees. See Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989). In any event, we need not decide whether that procedure applies to the FBI.\nIII.\nBased on a full review of the record, the briefs and arguments of the parties, and the opinion of the district court, we conclude that the appellant has failed to state a claim under the Rehabilitation Act. Accordingly, the judgment of the court below is\nAFFIRMED.\n“Complaint” herein refers to the Second Amended Complaint.", "type": "majority", "author": "MICHAEL, District Judge:"}], "attorneys": ["John Edward Gagliano, Cohen, Gettings, Dunham & Harrison, Arlington, VA, argued (Brian P. Gettings, Frank W. Dunham, Jr., Cohen, Gettings, Dunham & Harrison, on the brief), for plaintiff-appellant.", "Edward Terrell Swaine, Civ. Div., U.S. Dept, of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Richard D. Bennett, U.S. Atty., Robert V. Zener, Civ. Div., U.S. Dept, of Justice, on the brief), for defendants-appellees."], "corrections": "", "head_matter": "Charles E. LITTLE, Jr., Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; Joseph V. Corless; John Doe; William P. Barr, Attorney General of the United States, Defendants-Appellees.\nNo. 92-2058.\nUnited States Court of Appeals, Fourth Circuit.\nArgued May 5, 1993.\nDecided Aug. 10, 1993.\nJohn Edward Gagliano, Cohen, Gettings, Dunham & Harrison, Arlington, VA, argued (Brian P. Gettings, Frank W. Dunham, Jr., Cohen, Gettings, Dunham & Harrison, on the brief), for plaintiff-appellant.\nEdward Terrell Swaine, Civ. Div., U.S. Dept, of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Richard D. Bennett, U.S. Atty., Robert V. Zener, Civ. Div., U.S. Dept, of Justice, on the brief), for defendants-appellees.\nBefore HALL, Circuit Judge, SPROUSE, Senior Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation."}	HALL	SPROUSE	MICHAEL	1	1	1	0	0	0	1 F.3d 255	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Charles E. LITTLE, Jr., Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; Joseph V. Corless; John Doe; William P. Barr, Attorney General of the United States, Defendants-Appellees\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-08-10\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nMICHAEL, District Judge:\nThis case arose out of the termination of Charles E. Little, Jr. from his employment as a special agent with the Federal Bureau of Investigation (“FBI”). In his complaint, Little asserted claims under the Rehabilitation Act, the Privacy Act, and Bivens. The district court dismissed all of Little’s claims pursuant to Fed.R.Civ.P. 12(b)(6), 793 F.Supp. 652 (D.Md.1992). On Little’s appeal, we affirm.\nI.\nIn reviewing a dismissal based on insufficiency of the complaint, we accept as true the allegations of the complaint and draw any permissible inferences therefrom in favor of the plaintiff, in this case Little.\nLittle was employed as a special agent with the FBI for more than seven years before his termination on January 14, 1991. He had been assigned to the Baltimore Division since 1986. Little was an alcoholic, perhaps during his entire tenure with the FBI. His superiors knew of his problems with alcohol, but his job performance evaluations were always at least “fully satisfactory” and never “unacceptable.”\nPrior to December 1989, Little was involved in three separate alcohol-related incidents. The third incident was a July 1988 off-duty drunk-driving episode, which resulted in a December 1988 conviction for driving while intoxicated. As part of his sentence for that conviction, Little was placed on 18 months probation. Following this incident, Little unsuccessfully attempted on his own to quit drinking.\nOn December 19, 1989, Little was involved in another off-duty drunk-driving incident for which he was again charged with driving while intoxicated. He reported this incident to his superiors, and, recognizing that he needed professional treatment for his alcoholism, he sought assistance from his supervisor.\nAt that time, the FBI had in place an Employee Assistance Program (“EAP”) which was designed, inter alia, to assist employees who were suffering from various handicaps, including alcoholism. Under the EAP, the FBI had specially designated and, trained counselors, who were on duty in the Baltimore field office and at the Washington, D.C. headquarters. In addition, the FBI had regulations regarding procedures to assist and manage alcoholic employees, which regulations were set out in the FBI’s Manual of Administrative Operations and Procedures (“MAOP”). The MAOP’s alcoholism program provided that “[a]n employee who has accepted treatment will be dismissed only when he/she has been granted sick leave, treatment has failed, and he/she is clearly not capable of meeting the demands of the job.” MAOP § 15-3.1. The MAOP further provided that, notwithstanding the provisions of the alcoholism program, “FBI policy continues to require that employees should never cause themselves to be mentally or physically unfit for duty.” MAOP § 15-3.3(2).\nLittle was not referred to an EAP counsel- or but was instead referred to a private physician, who directed Little to an outpatient alcohol treatment program. During treatment, Little was placed on limited duty status, but he was not apprised of the nature or terms of that status. He completed the outpatient program in March 1990, and he was reinstated to full duty on May 4, 1990.\nDespite having completed a treatment program, Little relapsed into alcohol abuse, and on May 16,1990, he was intoxicated while on duty, to an extent that he was escorted to his home by two of his fellow agents. Following that incident, Little entered and completed an inpatient alcohol treatment program. He has engaged in no further drinking since May 16, 1990.\nLittle was discharged from the inpatient program on June 4, 1990, and he returned to work the next day. Upon his return to work, he was interviewed by his superiors about the May 16, 1990 incident. After Little admitted to drinking on duty, he was asked to resign. When he refused to resign, he was told that he would be treated like a clerk, and he was in fact given exclusively clerical duties thereafter. In addition, his superiors informed the appropriate state court of his drinking, which would constitute a violation of his probation.\nLittle received a letter dated September 21, 1990 from Assistant FBI Director Kennedy, to the effect that serious consideration was being given to Little’s termination from the FBI. Finally, on January 14,1991, Little was terminated. A “Notification of Personnel Action” dated January 17, 1991, which gave Little formal notice of his removal as a special agent, stated that he was terminated because of his “inability to conform to the FBI’s established standards that special agents must remain mentally and physically fit for duty at all times.”\nThis lawsuit followed. In his complaint, Little asserted claims under the Rehabilitation Act, the Privacy Act, and Bivens. The FBI filed a “Motion for Judgment on the Pleadings and to Dismiss the Second Amended Complaint.” The district court treated the motion as one made under Fed.R.Civ.P. 12(b)(6) and dismissed all of Little’s claims. In dismissing the Rehabilitation Act claim, the district court primarily relied on the Fifth Circuit opinion in Butler v. Thorn-burgh, 900 F.2d 871 (5th Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990), for the principle that “an F.B.I. Special Agent who is an alcoholic and who manifests such conduct on duty is not within the protection of the Rehabilitation Act, because he is not ‘otherwise qualified.’ ” App. at 71.\nII.\nOn appeal, Little raises only the issue of whether Count I of his complaint states a claim for the violation of the Rehabilitation Act of 1978, as amended, 29 U.S.C. §§ 701-797b. Since the court below dismissed Count I of the complaint as a matter of law, review in this court is de novo.\nAt the heart of this appeal, the parties are sharply divided in their views of the reason for Little’s termination. The appellant alleged in his complaint and now asserts on appeal that his employment with the FBI was terminated because of his alcoholism. The appellant argues that the district court erred by construing facts in favor of the FBI and against Little; by failing to undertake an “individualized inquiry” of the facts as mandated by School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987); by following Butler v. Thornburgh, supra; and by holding that Little was not entitled to reasonable accommodation as provided for in Rodgers v. Lehman, 869 F.2d 253 (4th Cir.1989). On the other hand, the appellee claims that Little was fired because he was intoxicated while on duty. In other words, the appellee maintains that Little was fired because of misconduct, not alcoholism. Indeed, in our view, the case turns on whether Little was terminated because of his alcoholism or because of his misconduct. Only if Little has alleged facts to support his claim that he was terminated because of his alcoholism has he stated a claim under the Rehabilitation Act.\nLittle brought his claim under both Sections 501 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 791 and 794. Section 501 imposes an affirmative duty on federal agencies toward handicapped applicants and employees. 29 U.S.C. § 791(b). Section 504 provides that “[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency....” 29 U.S.C. § 794. Thus, to- be entitled to the protection of the Rehabilitation Act, the handicapped person must be “otherwise qualified.” 29 U.S.C. § 794. It is settled that alcoholism is a handicapping condition within the meaning of the Act. Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir.1989).\nThe phrase “otherwise qualified” has been interpreted by the Supreme Court on several occasion's.. In Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979), the Supreme Court said that “[a]n otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.” In a more recent case, the Supreme Court revisited the issue and stated that “[i]n the employment context, an otherwise qualified person is one who can perform ‘the essential functions’ of the job in question.” Arline, 480 U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17. Moreover, even if a handicapped employee is not able to perform the essential functions of the job, “the court must also consider whether any ‘reasonable accommodation’ by the employer would enable the handicapped- person to perform those functions.” Id. at 287 n. 17, 107 S.Ct. at 1131 n. 17. Finally, the employer must make reasonable accommodation for a handicapped employee unless reasonable accommodation would impose “undue hardship” on the employer.\nThe application of the Rehabilitation Act, especially in the context of termination after misconduct, is illuminated by its implementing regulations. In developing regulations to implement Section 504 in 1977, the Secretary of Health, Education, and Welfare (later Health and Human Services) solicited the opinion of the Attorney General as to whether an alcoholic or a drug addict is a “handicapped individual” under the Act. While the Attorney General concluded that both alcoholics and drug addicts are handicapped individuals for purposes of Title V of the Act, which includes Sections 501 and 504, he made clear that the Act does not protect alcoholics or drug addicts from the consequences of them misconduct. Specifically, the Attorney General stated that the Act does not “prevent the application to persons suffering from alcoholism or drug addiction of reasonable rules of conduct, such as prohibitions against the possession or use of alcohol or drugs” at the location of the employment or the federally assisted project. 43 Op. Att’y Gen. No. 12, 1977 WL 17999 at *1.\nBoth the Secretary of Health, Education, and Welfare and the Civil Service Commission cited the Attorney General’s opinion in promulgating regulations implementing Section 504, see 42 Fed.Reg. 22,686 (1977), and Section 501, see 43 Fed.Reg. 12,294 (1978), respectively. The Secretary of Health, Education, and Welfare specifically stated that the employer “may hold a drug addict or alcoholic to the same standard of performance and behavior to which it holds others, even if any unsatisfactory performance or behavior is related to the person’s drug addiction or alcoholism.” 42 Fed.Reg. 22,686 (1977). The Secretary also noted that the various behavioral manifestations of the employee’s condition may be considered by the employer, and “rules prohibiting the possession or use of alcohol and drugs in the workplace” may be enforced against all employees. Id. Equally pointed is the Civil Service Commission commentary to the effect that an alcoholic employee may be terminated “if there is a nexus between such abuse or use and the nature of the employment or if the symptoms resulting from the use of these substances may be so severe that such use, in and of itself, will be sufficient to justify an adverse suitability determination.” 43 Fed. Reg. 12,294 (1978). While these agency statements are not binding authority, we accord them considerable deference. See Richland-Lexington Airport Dist. v. Atlas Properties, Inc., 901 F.2d 1206, 1208-09 (4th Cir.1990).\nFurthermore, the provisions of the FBI’s Manual of Administrative Operations and Procedures (“MAOP”) bear clearly on the resolution of this appeal. The MAOP established a program for the prevention and treatment of alcoholism and the rehabilitation of alcoholic employees within the FBI. However, the MAOP recited that “this program should not be construed as a relaxation of FBI standards of conduct. FBI policy continues to require that employees should never cause themselves to be mentally or physically unfit for duty.” MAOP § 15.-3.3(2) (emphasis added). The next subsection of the MAOP provided that while it is generally required that “rehabilitative efforts be made before disciplinary action for unsatisfactory job performance can be taken,” those efforts “do not preclude agency action if ... other actions or activities are present and constitute employee misconduct.” MAOP § 15-3.3(3).\nIn addition, a number of cases decided since the adoption of the Rehabilitation Act have considered the issue of misconduct as distinct from status as an alcoholic or drug addict. See, e.g., Taub v. Frank, 957 F.2d 8 (1st Cir.1992) (alcoholic Postal Service employee discharge because of criminal conduct). One case similar to this case involved a police officer who was found to have been a user of illegal drugs, and therefore not “otherwise qualified,” because his unlawful behavior in the use of illegal drugs violated “an essential function of the officer’s position to enforce the laws.” Copeland v. Philadelphia Police Dept., 840 F.2d 1139 (3d Cir.1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1636, 104 L.Ed.2d 153 (1989). In a more severe case, an alcoholic Postal Service employee was held not to be protected by the Rehabilitation Act where he committed assault with intent to kill. See Richardson v. USPS, 613 F.Supp. 1213 (D.D.C.1985). As Judge Gesell noted in his opinion, the plaintiff in that case “was discharged for his criminal conduct, not because of alcoholism or poor job performance due to alcohol.” Id. at 1215.\nBased on the foregoing authority — the agency regulations implementing the Rehabilitation Act, the provisions of the FBI’s MAOP, and the judicial opinions just discussed — and based on no lesser authority than common sense, it is clear that an employer subject to the Rehabilitation Act must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped.\nOn the record before us, it plainly appears that the appellant was fired because of his misconduct, not because of his alcoholism. The “Notification of Personnel Action” of January 17, 1991, indicated that Little’s dismissal was “taken in view of his inability to conform to the FBI’s established standards that special agents must remain mentally and physically fit for duty at all times.” Although the notice fails to give any more specific basis for Little’s termination, the only permissible inference from the allegations of the complaint is that Little was fired because he was intoxicated while on duty on May 16, 1990. Little’s superiors had knowledge of his previous alcohol-related incidents, particularly the December 1989 driving-while-intoxieated charge, but the FBI did not terminate him. It is notable that Little’s previous alcohol-related incidents all occurred while Little was off-duty. Rather than being terminated, Little was referred for outpatient treatment, and, after completing that treatment, he was reinstated to full duty. It was only after Little was intoxicated while on duty on May 16, 1990, and only after he admitted such during an interview by his superiors, that the FBI asked him to resign and ultimately, when he did not resign, terminated him. Without attempting to recite in detail the duties of an FBI special agent, it is certain that being intoxicated while on duty will undoubtedly prevent an FBI special agent from being “mentally and physically fit for duty at all times.”\nWhile the appellant is correct that ordinarily the district court must undertake an “individualized inquiry” into the facts, there is no such requirement where the allegations of the complaint fail to state a claim. Although the appellant made the conclusory allegation in his complaint that he was fired because of his alcoholism, that allegation is simply not supported by the other allegations of the complaint.\nIn short, we agree with the district court that Little was not “otherwise qualified” to be an FBI special agent. However, we also rest our decision on a different portion of the statute, a portion virtually ignored by the parties. The Rehabilitation Act applies only where the “otherwise qualified handicapped individual” is subjected to adverse action taken “solely by reason of his handicap.” 29 U.S.C. § 794. In this case, it is manifest that Little was not terminated “solely by reason of his handicap.” Therefore, on that basis, too, Little fails to state a claim under the Rehabilitation Act.\nBecause Little falls outside the protection of the Rehabilitation Act, he cannot avail himself of this circuit’s five-step procedure to be followed by federal agencies in dealing with alcoholic employees. See Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989). In any event, we need not decide whether that procedure applies to the FBI.\nIII.\nBased on a full review of the record, the briefs and arguments of the parties, and the opinion of the district court, we conclude that the appellant has failed to state a claim under the Rehabilitation Act. Accordingly, the judgment of the court below is\nAFFIRMED.\n“Complaint” herein refers to the Second Amended Complaint.\n[END_CASE]", "role": "user" } ]
10,509,853	Delbert O. TOPPING, Plaintiff-Appellee, v. CSX TRANSPORTATION, INCORPORATED, Defendant-Appellant	Topping v. CSX Transportation, Inc.	1993-08-11	No. 92-2449	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before WILKINSON, Circuit Judge, SPROUSE, Senior Circuit Judge, and G. Ross ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation."], "parties": ["Delbert O. TOPPING, Plaintiff-Appellee, v. CSX TRANSPORTATION, INCORPORATED, Defendant-Appellant."], "opinions": [{"text": "OPINION\nWILKINSON, Circuit Judge:\nPlaintiff Delbert Topping, a locomotive engineer, won a $350,000 verdict under the Boiler Inspection Act from his employer CSX Transportation, Inc., for injuries suffered when he slipped and fell in the cab of his train. CSX claims it should not be liable because Topping slipped on a loose metal object that was not a part of the train. We see no basis for interpreting the Act so strictly, since it requires the train to be “in proper condition” and “safe to operate.” CSX also contends that Topping’s failure to notice the metal object and remove it absolves CSX of liability for his accident. The Supreme Court has held, however, that the Act comprehends no defense of contributory negligence. Finding no merit in the remainder of defendant’s arguments, we affirm the judgment of the district court.\nI.\nOn June 15, 1990, while traversing the cab of his train, Delbert Topping slipped on a metal object that was lying on the floor and fell, sustaining injuries to his back and neck. The brakeman who was with Topping at the time testified that he had seen the object earlier that day on the emergency brake stand. Evidently it had since shaken off and fallen to the floor.\nTopping sued his employer CSX under the Federal Employers’ Liability Act and the Boiler Inspection Act. A jury determined that Topping had suffered $350,000 in total damages. On his FELA claim, the jury found CSX 90% negligent and Topping 10% negligent, reducing Topping’s total award to $315,000. Under the Boiler Inspection Act, however, fault is not a factor. The jury therefore awarded Topping the full $350,000.\nCSX appeals this verdict on a variety of grounds. We shall address the most significant.\nII.\nThe Boiler Inspection Act provides in relevant part as follows:\nIt shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put....\n45 U.S.C. § 23. CSX contends that Topping’s accident did not arise out of a violation of the Act, because Topping slipped on an object that was not a part of the train. Topping responds that the railroad is still liable, because the Act requires the railroad to keep the locomotive clear of “dangerous objects or foreign matter” as well. Lilly v. Grand Trunk Western R.R. Co., 317 U.S. 481, 487, 63 S.Ct. 347, 351-52, 87 L.Ed. 411 (1943) (railroad responsible for removing ice from top of locomotive tender).\nTopping is correct. “The Act without limitation speaks of equipment ‘in proper condition and safe to operate ... without unnecessary peril to life or limb.’ Conditions other than mechanical imperfections can plainly render equipment unsafe to operate.... ” Id. at 488, 63 S.Ct. at 352. It seems to us a classic jury question whether the presence of the loose metal object rendered the locomotive cab “unsafe to operate.” We see no basis for reading CSX’s limitation into the Act.\nCSX also argues that it should not be responsible for the accident because Topping should have noticed the loose metal object and removed it from the cab. We disagree. The Supreme Court emphasized in Lilly that when a railroad violates the Boiler Inspection Act, “the partial defense of contributory negligence and the bar of assumption of risk are not available” to the railroad. Id. at 491, 63 S.Ct. at 353-54. Thus, to recover under the Act, an injured railroad worker need only prove that a violation on the part of the railroad was a cause of his injury. Here the jury found CSX 90% responsible for the accident. CSX is therefore liable for all of Topping’s damages.\nOur decision in Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088 (4th Cir.1987), does not mandate a different result. In Mosco, this court held the railroad not liable to an employee who had been struck by an object flying through the open window of the train. The employee had left the window open because it was dirty and because the train cab was hot. He claimed that the railroad was responsible for his accident because it had not put a protective screen over the window. The court rejected this claim, ruling that the railroad had no duty to install such equipment “unless the omitted equipment (1) [wa]s required by applicable federal regulations; or (2) constitute^] an integral or essential part of a completed locomotive.” Id. at 1091. Neither was true in Mosco.\nThe court also noted in passing that “any impaired visibility resulting from dirt on the windows was due to [plaintiffs] own failure to clean the windows-” Id. at 1092. This statement does not contemplate a partial contributory negligence defense, as CSX submits. It only reinforces the court’s ruling that the railroad had breached no duty under the Boiler Inspection Act — in other words, that plaintiffs negligence was the sole cause of his accident. Mosco stands merely for the proposition that the Federal Railroad Administration, not the federal courts, has the power to require the installation of safety equipment that is not “an integral or essential part” of the train.\nIn this case, Topping does not claim that CSX failed to install safety equipment on the train. He claims simply that CSX did not keep the train cab safe. Mosco thus provides no reason to disturb the jury’s verdict.\nOur holding does not imply that railroad employees may bring loose items on board with impunity. A worker who slips on an item that he brought with him — a candy wrapper or a banana peel — may well be responsible for his accident. We need not settle such a question in this case. CSX did not establish that Topping had brought on board the metal object on which he slipped. The question of responsibility was appropriately left for the jury.\nIII.\nCSX also claims that the district court erred by not giving a “sole cause” instruction to the jury. According to CSX, a jury could have concluded from the evidence that Topping was 100% responsible for his accident; CSX argues that the district court should explicitly have advised the jury so. We think the court adequately apprised the jury of this option. The court instructed the jury that it should find for CSX if Topping failed to establish by a preponderance of the evidence that a “defective or unsafe condition was in whole or.in part a direct cause of his injury.” This instruction encompasses the “sole cause” rule; any further attention would only have skewed the court’s presentation of issues to the jury.\nWe need not address CSX’s remaining challenges to the FELA verdict, since we have upheld the $350,000 verdict under the Boiler Inspection Act. Finally, we decline CSX’s suggestion that the damages in this case were so excessive as to warrant remitti-tur or new trial. The judgment of the district court is accordingly\nAFFIRMED.", "type": "majority", "author": "WILKINSON, Circuit Judge:"}], "attorneys": ["Fred Adkins, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, .argued (James W. Turner, on brief), for defendant-appellant.", "Robert Thomas Dolan, Hunegs, Stone, Koenig & Dolan, P.A., Minneapolis, MN, argued (Lawrence J. Lewis, on brief), for plaintiff-appellee."], "corrections": "", "head_matter": "Delbert O. TOPPING, Plaintiff-Appellee, v. CSX TRANSPORTATION, INCORPORATED, Defendant-Appellant.\nNo. 92-2449.\nUnited States Court of Appeals, Fourth Circuit.\nArgued June 8, 1993.\nDecided Aug. 11, 1993.\nFred Adkins, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, .argued (James W. Turner, on brief), for defendant-appellant.\nRobert Thomas Dolan, Hunegs, Stone, Koenig & Dolan, P.A., Minneapolis, MN, argued (Lawrence J. Lewis, on brief), for plaintiff-appellee.\nBefore WILKINSON, Circuit Judge, SPROUSE, Senior Circuit Judge, and G. Ross ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation."}	WILKINSON	SPROUSE	ANDERSON	1	1	1	0	0	0	1 F.3d 260	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Delbert O. TOPPING, Plaintiff-Appellee, v. CSX TRANSPORTATION, INCORPORATED, Defendant-Appellant\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-08-11\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nWILKINSON, Circuit Judge:\nPlaintiff Delbert Topping, a locomotive engineer, won a $350,000 verdict under the Boiler Inspection Act from his employer CSX Transportation, Inc., for injuries suffered when he slipped and fell in the cab of his train. CSX claims it should not be liable because Topping slipped on a loose metal object that was not a part of the train. We see no basis for interpreting the Act so strictly, since it requires the train to be “in proper condition” and “safe to operate.” CSX also contends that Topping’s failure to notice the metal object and remove it absolves CSX of liability for his accident. The Supreme Court has held, however, that the Act comprehends no defense of contributory negligence. Finding no merit in the remainder of defendant’s arguments, we affirm the judgment of the district court.\nI.\nOn June 15, 1990, while traversing the cab of his train, Delbert Topping slipped on a metal object that was lying on the floor and fell, sustaining injuries to his back and neck. The brakeman who was with Topping at the time testified that he had seen the object earlier that day on the emergency brake stand. Evidently it had since shaken off and fallen to the floor.\nTopping sued his employer CSX under the Federal Employers’ Liability Act and the Boiler Inspection Act. A jury determined that Topping had suffered $350,000 in total damages. On his FELA claim, the jury found CSX 90% negligent and Topping 10% negligent, reducing Topping’s total award to $315,000. Under the Boiler Inspection Act, however, fault is not a factor. The jury therefore awarded Topping the full $350,000.\nCSX appeals this verdict on a variety of grounds. We shall address the most significant.\nII.\nThe Boiler Inspection Act provides in relevant part as follows:\nIt shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put....\n45 U.S.C. § 23. CSX contends that Topping’s accident did not arise out of a violation of the Act, because Topping slipped on an object that was not a part of the train. Topping responds that the railroad is still liable, because the Act requires the railroad to keep the locomotive clear of “dangerous objects or foreign matter” as well. Lilly v. Grand Trunk Western R.R. Co., 317 U.S. 481, 487, 63 S.Ct. 347, 351-52, 87 L.Ed. 411 (1943) (railroad responsible for removing ice from top of locomotive tender).\nTopping is correct. “The Act without limitation speaks of equipment ‘in proper condition and safe to operate ... without unnecessary peril to life or limb.’ Conditions other than mechanical imperfections can plainly render equipment unsafe to operate.... ” Id. at 488, 63 S.Ct. at 352. It seems to us a classic jury question whether the presence of the loose metal object rendered the locomotive cab “unsafe to operate.” We see no basis for reading CSX’s limitation into the Act.\nCSX also argues that it should not be responsible for the accident because Topping should have noticed the loose metal object and removed it from the cab. We disagree. The Supreme Court emphasized in Lilly that when a railroad violates the Boiler Inspection Act, “the partial defense of contributory negligence and the bar of assumption of risk are not available” to the railroad. Id. at 491, 63 S.Ct. at 353-54. Thus, to recover under the Act, an injured railroad worker need only prove that a violation on the part of the railroad was a cause of his injury. Here the jury found CSX 90% responsible for the accident. CSX is therefore liable for all of Topping’s damages.\nOur decision in Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088 (4th Cir.1987), does not mandate a different result. In Mosco, this court held the railroad not liable to an employee who had been struck by an object flying through the open window of the train. The employee had left the window open because it was dirty and because the train cab was hot. He claimed that the railroad was responsible for his accident because it had not put a protective screen over the window. The court rejected this claim, ruling that the railroad had no duty to install such equipment “unless the omitted equipment (1) [wa]s required by applicable federal regulations; or (2) constitute^] an integral or essential part of a completed locomotive.” Id. at 1091. Neither was true in Mosco.\nThe court also noted in passing that “any impaired visibility resulting from dirt on the windows was due to [plaintiffs] own failure to clean the windows-” Id. at 1092. This statement does not contemplate a partial contributory negligence defense, as CSX submits. It only reinforces the court’s ruling that the railroad had breached no duty under the Boiler Inspection Act — in other words, that plaintiffs negligence was the sole cause of his accident. Mosco stands merely for the proposition that the Federal Railroad Administration, not the federal courts, has the power to require the installation of safety equipment that is not “an integral or essential part” of the train.\nIn this case, Topping does not claim that CSX failed to install safety equipment on the train. He claims simply that CSX did not keep the train cab safe. Mosco thus provides no reason to disturb the jury’s verdict.\nOur holding does not imply that railroad employees may bring loose items on board with impunity. A worker who slips on an item that he brought with him — a candy wrapper or a banana peel — may well be responsible for his accident. We need not settle such a question in this case. CSX did not establish that Topping had brought on board the metal object on which he slipped. The question of responsibility was appropriately left for the jury.\nIII.\nCSX also claims that the district court erred by not giving a “sole cause” instruction to the jury. According to CSX, a jury could have concluded from the evidence that Topping was 100% responsible for his accident; CSX argues that the district court should explicitly have advised the jury so. We think the court adequately apprised the jury of this option. The court instructed the jury that it should find for CSX if Topping failed to establish by a preponderance of the evidence that a “defective or unsafe condition was in whole or.in part a direct cause of his injury.” This instruction encompasses the “sole cause” rule; any further attention would only have skewed the court’s presentation of issues to the jury.\nWe need not address CSX’s remaining challenges to the FELA verdict, since we have upheld the $350,000 verdict under the Boiler Inspection Act. Finally, we decline CSX’s suggestion that the damages in this case were so excessive as to warrant remitti-tur or new trial. The judgment of the district court is accordingly\nAFFIRMED.\n[END_CASE]", "role": "user" } ]
10,509,924	NATIONAL CREDIT UNION ADMINISTRATION BOARD, Plaintiff-Appellee, v. Rosalind D. GRAY, Administratrix of the Estate of Herman Wilson, Defendant-Appellant	National Credit Union Administration Board v. Gray	1993-08-13	No. 92-1226	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before HALL and WILKINS, Circuit Judges, and KISER, United States District Judge for the Western District of Virginia, sitting by designation."], "parties": ["NATIONAL CREDIT UNION ADMINISTRATION BOARD, Plaintiff-Appellee, v. Rosalind D. GRAY, Administratrix of the Estate of Herman Wilson, Defendant-Appellant."], "opinions": [{"text": "OPINION\nK.K. HALL, Circuit Judge:\nThis appeal was taken from the denial of two Rule 60(b) motions to set aside the judgment against the estate of Herman Wilson. We remand with instructions to vacate the judgments against the now-deceased Wilson and against the administratrix of his estate.\nI\nIn 1986, Craven County Federal Credit Union (Craven) loaned $38,000 to Aqualands Community Housing Development (Aqua-lands). The loan was secured by a deed of trust on property on which Aqualands intended to develop low-income housing. The loan documents contain the signatures of Aqualands’ president, Rosalind Gray, and its secretary, Herman Wilson. Wilson’s signatures are followed by the notation “(GJG)”, and his purported signature on the deed of trust is not notarized (Rosalind’s is).\nIn 1987, the National Credit Union Administration Board (National), an independent federal agency, found Craven insolvent and revoked its charter. Craven was ordered into involuntary liquidation, and National, as liquidating agent, began to collect outstanding obligations. In 1988, the Aqualands loan went into default, and National filed the instant action against Rosalind and Wilson. Aqualands was not named.\nA single answer was filed on behalf of both defendants by lawyer Mark Gray, Rosalind’s brother. By way of defense, the answer states that the debt was incurred by the corporation, not the individuals; that Wilson had neither signed the loan documents nor authorized anyone to sign on his behalf; and that the decision to foreclose was an election of remedies under state law that precluded the collection action.\nIn August, 1988, National served interrogatories and requests for admissions. Only Rosalind filed a response. In it, she reiterated her contention that the loan was to the corporation only, but she refused to answer any questions about Wilson’s role. In response to an interrogatory, however, she did state that Wilson’s name on the note was signed by a person named Greta. Rosalind added that she did not know where Greta was.\nOn February 5, 1990, Mark filed a motion to strike the answer of Wilson on the ground that “defendant Herman Wilson is not represented by me in this action” and that Wilson had not authorized the filing of an answer on his behalf. The motion was denied by order entered February 28,1990, in which the magistrate judge instructed Mark that the proper route would be to seek leave to withdraw as counsel for Wilson. In the same order, the court ruled that Wilson would be deemed to have admitted all the items in National’s requests for admissions.. This latter ruling became the linchpin of the eventual judgment against Wilson and, later, his estate.\nOn April 9, 1990, National moved for partial summary judgment against Wilson on the basis of his “admissions”. Mark filed a response on behalf of both defendants. Attached to this response was an affidavit in which Rosalind averred that Wilson never authorized his signature on the loan documents, that he was not present at the closing, that he never received a copy of the complaint or the loan documents, and that he never authorized Mark to represent him in the lawsuit. Unbeknownst to the court, Wilson had died two months earlier, on February 14, 1990.\nThe magistrate judge recommended that the partial summary judgment be granted. He discounted Rosalind’s affidavit because it was not based on personal knowledge. The district court adopted the magistrate judge’s report and entered judgment against Wilson for $54,356.21. The appeal of this judgment was dismissed as interlocutory because Rosalind was still in the case. National Credit Union Administration Board v. Wilson, No. 90-2134 (Aug. 24, 1990) .(order).\nIn January, 1991, the court granted National’s motion to substitute Rosalind, in her capacity as administratrix of Wilson’s estate, as a party in place of the late Mr. Wilson. On February 5,1991, a stipulation of dismissal without prejudice was filed that had the effect of dismissing Rosalind (in her individual capacity) without a court order. Fed. R.Civ.P. 41(a)(l)(ii).\nIn the context of ruling on National’s motion for attorneys’ fees, the district court tied up loose ends. In a final, comprehensive order entered on February 14, 1991, the district court readopted the magistrate judge’s recommendation that formed the basis of the partial summary judgment against Wilson. This order also makes it clear that (1) Rosalind, as administratrix, was the defendant instead of Wilson; (2) Rosalind, in her individual capacity, was out of the case entirely; and (3) the judgment was only against the administratrix of Wilson’s estate.\nOn February 25, 1991, Mark filed a Rule 60(b) motion to set aside the February 14th judgment. Attached to the motion was an affidavit by Greta J. Griffin. Griffin stated that she had never met Wilson and that he had never authorized her to put his signature on the loan documents. A second motion was filed on May 28, 1991. The memorandum of law accompanying the latter motion raised a number of defenses and expressly requested relief on the ground that the filing of an answer on Wilson’s behalf was “presumptuous” on Mark’s part.\nThe district court adopted the magistrate judge’s report and denied the motions. The administratrix appeals.\nII\nThe case before us is the appeal of the district court’s December 20, 1991, order denying the administratrix’s Rule 60(b) motions to set aside the February 14, 1991, judgment against the estate. The consideration of Rule 60(b) motions proceeds in two stages. First there is the question of whether the movant has met each of three threshold conditions. “[I]n order to obtain relief from a judgment under Rule 60(b), a moving party must show that his motion is timely, that he has a meritorious defense to the action, and that the opposing party would not be unfairly prejudiced by having the judgment set aside.” Park Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir.1987). (A fourth threshold showing, “exceptional circumstances,” is sometimes noted, see, e.g., Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.1984)). The district court, in adopting the magistrate judge’s recommendation in full, ruled that (1) the administratrix had not shown a meritorious defense, and (2) National would be unfairly prejudiced by having the judgment set aside.\nWe review denials of Rule 60(b) motions for abuse of discretion. Werner v. Carbo, 731 F.2d 204, 206 (4th Cir.1984). “However, where default judgments are at issue, over the years this court has taken an increasingly liberal view of Rule 60(b) ...” Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 810 (4th Cir.1988). Although this case is not technically a default judgment, it resembles one closely enough for the usually strict standard of review to be tempered somewhat.\nA\nThe magistrate judge examined each of the defenses raised in the motions and found each lacking in merit. These defenses were, according to the headings in the magistrate judge’s Memorandum and Recommendation, (1) question of Wilson’s signature, (2) service of process, (3) authority of Wilson’s counsel, (4) corporate or individual loan, and (5) release, accord and satisfaction. The court discounted the strongest substantive defense—that Wilson neither signed nor authorized his name to be signed on the loan documents—by pointing out that Greta Griffin’s affidavit (which was attached to the first Rule. 60(b) motion) failed to aver that she actually signed Wilson’s name. This finding relies on an exceedingly fine reading of the affidavit and, moreover, ignores the thrust of the argument that lawyer Gray has been advancing for some time in various, albeit roundabout, ways. However inartfully composed, the affidavit’s meaning is clear—Ms. Griffin signed Wilson’s signature, and she did so without authority. If proven, this allegation would provide a good defense to the claim. Thus, the meritorious defense threshold has been met.\nB\nThe prejudice factor is of lesser importance. See Compton v. Alton Steamship Co., 608 F.2d 96, 102 (4th Cir.1979) (“[T]he court should in every case give some, though not controlling, consideration to the question whether the party in whose favor judgment has been entered will be unfairly prejudiced by the vacation of his judgment.”). The magistrate judge found that National would suffer prejudice because it had prosecuted its claim on the basis of the “deemed admissions” and because Wilson’s death (after the date on which the initial discovery responses were due) deprived it of an important source of discovery. We can discern no appreciable prejudice on either basis.\n“Additional legal costs ... are the inevitable result whenever a judgment is vacated.” Randall v. Merrill Lynch, 820 F.2d 1317, 1321 (D.C.Cir.1987) (citing Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.1984)), cert. denied, 484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988). To the extent that National is complaining that it has lost its chance to question Wilson directly, this lost opportunity is partly of its own making. A close examination of the discovery documents reveals that National failed to attempt to establish the necessary foundation for the judgment against Wilson prior to his death-.\nIn the requests for admissions, National failed to ask whether Wilson had either signed the note or had authorized someone to do so on his behalf. In fact, National seems to have assumed that Wilson did not sign the documents himself—the discovery request asks Rosalind to admit that she signed Wilson’s name and, if she denied doing so, to state who did. Notwithstanding the omission of any questions directed to Wilson about his signature or authorization, the magistrate judge made a finding that “[t]he defendant Wilson, by his failure to answer requests for admission, admits execution of the Promissory Note, Security Agreement and Deed of Trust.”\nIt appears that the first notice that the court had that Mr. Wilson had died was National’s motion to substitute Rosalind, as administratrix of Wilson’s estate, as defendant in Wilson’s stead. Although this motion was filed almost a full year after Mr. Wilson’s death, National was evidently aware of Wilson’s death no later than nine days before partial summary judgment was taken July 3, 1990. The movant below met the no-prejudice threshold.\nIll\nOnce the movant has met the threshold showings, he must satisfy one of the six enumerated grounds for relief under Rule 60(b). Having decided that two of the threshold conditions for Rule 60(b) relief had not been met, the district court ended its analysis. We believe this case falls within subsection (b)(6), a “catchall provision which allows a court to grant relief for any reason ...” Dowell v. State Farm Fire and Cas. Auto Ins. Co., 993 F.2d 46, 48 (4th Cir.1993).\nA\nRule 60(b)’s catch-all phrase — any other reason justifying relief — has been described as a “grand reservoir of equitable power to do justice in a particular case.” 7 Moore’s Federal Practice ¶ 60.27[1] at 60-266 (1993). Although “[t]he remedy provided by the Rule ... is only to be invoked upon a showing of exceptional circumstances ...Compton v. Alton Steamship Co., 608 F.2d at 102, we believe this case cries out for the exercise of that “equitable power to do justice.”\nB\nThe problem began, of course, with the filing of an answer on Wilson’s behalf by his friend’s brother. Within no more than three months, however, Mark Gray evidently decided that it was time to discontinue his representation of a client who had never retained him. Thus, the responses to the plaintiffs requests for admissions were expressly limited to Rosalind. Four months later, Mark’s decision to extricate himself manifested itself in his motion to strike the answer of Wilson. In opposing the motion, National suggested that the proper route for lawyer Gray would be to move to withdraw as Mr. Wilson’s counsel, but by this time Gray’s “client” was dead. As lawyer Gray frankly admitted during oral argument before this court, he is still in the case because he doesn’t know how to get out.\nIt appears indisputable that Wilson never authorized lawyer Gray to represent him in this action, and it is possible that Wilson was never even apprised of the suit itself. National’s counsel as much as conceded the first point during oral argument. We are left with the firm impression that Mark’s representation of his sister’s friend was undertaken with the best of intentions. However, his vacillation between trying to represent Wilson and trying to get out of representing him have confused matters no end. Nevertheless, because we are left with substantial doubts about so many essential matters — was Wilson ever properly served with the complaint? did he ever retain Gray to represent him? did he sign the loan documents or authorize someone to sign on his behalf? — we are convinced that this is the type of extraordinary case for which Rule 60(b)(6) was designed.\nIV\nThe ease is remanded with instructions to vacate the judgments entered on July 3,1990 (partial summary judgment against Wilson) and February 14, 1991. On remand, the district court is instructed to permit the remaining defendant, the administratrix, to raise any defenses to this action (including any defense regarding service of process upon Wilson) without regard to the failure of defendant Wilson to respond to the plaintiffs first set of interrogatories and requests for admissions.\nREMANDED WITH INSTRUCTIONS.\n. See 12 U.S.C. § 1751 et seq.\n. In response to any question that could be construed as seeking an independent response from Wilson, Rosalind stated that \"Herman Wilson does not respond to these pleadings.”\n. The first motion (including the Griffin affidavit) was filed 11 days after entry of the judgment. The second motion was filed three months later and prior to any hearing on the first motion. The district court made no ruling on the timeliness of the motions.\n. To our untrained eyes, the handwriting on both the Wilson signature on the note and the Griffin signature on the affidavit seem very similar.\n. In light of our finding that the signature defense is meritorious, it is not necessary to discuss the other defenses raised in the motions.\n. The docket sheet contains references to scheduled depositions of Rosalind that were filed on November 28 and December 29, 1989, yet no notice of depositions of Wilson were filed.\n. By letter dated July 12, 1990, National filed a claim against Wilson’s estate in the probate court for the District of Columbia.\n. National's response to the motion to strike the answer was served by mail on February 12, 1990. Mr. Wilson passed away on February 14, 1990. According to lawyer Gray, Mr. Wilson died as a result of injuries he received in an accident and which had \"rendered him comatose and incapacitated for an extended period of time prior to his death.” Appellant’s brief at 3. It may be that Mr. Wilson’s incapacity extended as far back as May 15, 1989, the date of service of the complaint.\n. The appointment of a personal representative with an apparent conflict of interest with the estate is troubling, but this would appear to be a matter best addressed in the first instance by Wilson’s heirs.", "type": "majority", "author": "K.K. HALL, Circuit Judge:"}], "attorneys": ["Mark Van Lanier Gray, Greensboro, NC, argued for defendant-appellant.", "Gary Hamilton Clemmons, Stubbs, Perdue, Chesnutt, Wheeler & Clemmons, P.A., New Bern, NC, argued for plaintiff-appellee."], "corrections": "", "head_matter": "NATIONAL CREDIT UNION ADMINISTRATION BOARD, Plaintiff-Appellee, v. Rosalind D. GRAY, Administratrix of the Estate of Herman Wilson, Defendant-Appellant.\nNo. 92-1226.\nUnited States Court of Appeals, Fourth Circuit.\nArgued May 6, 1993.\nDecided Aug. 13, 1993.\nMark Van Lanier Gray, Greensboro, NC, argued for defendant-appellant.\nGary Hamilton Clemmons, Stubbs, Perdue, Chesnutt, Wheeler & Clemmons, P.A., New Bern, NC, argued for plaintiff-appellee.\nBefore HALL and WILKINS, Circuit Judges, and KISER, United States District Judge for the Western District of Virginia, sitting by designation."}	HALL	WILKINS	KISER	1	1	1	0	0	0	1 F.3d 262	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: NATIONAL CREDIT UNION ADMINISTRATION BOARD, Plaintiff-Appellee, v. Rosalind D. GRAY, Administratrix of the Estate of Herman Wilson, Defendant-Appellant\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-08-13\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nK.K. HALL, Circuit Judge:\nThis appeal was taken from the denial of two Rule 60(b) motions to set aside the judgment against the estate of Herman Wilson. We remand with instructions to vacate the judgments against the now-deceased Wilson and against the administratrix of his estate.\nI\nIn 1986, Craven County Federal Credit Union (Craven) loaned $38,000 to Aqualands Community Housing Development (Aqua-lands). The loan was secured by a deed of trust on property on which Aqualands intended to develop low-income housing. The loan documents contain the signatures of Aqualands’ president, Rosalind Gray, and its secretary, Herman Wilson. Wilson’s signatures are followed by the notation “(GJG)”, and his purported signature on the deed of trust is not notarized (Rosalind’s is).\nIn 1987, the National Credit Union Administration Board (National), an independent federal agency, found Craven insolvent and revoked its charter. Craven was ordered into involuntary liquidation, and National, as liquidating agent, began to collect outstanding obligations. In 1988, the Aqualands loan went into default, and National filed the instant action against Rosalind and Wilson. Aqualands was not named.\nA single answer was filed on behalf of both defendants by lawyer Mark Gray, Rosalind’s brother. By way of defense, the answer states that the debt was incurred by the corporation, not the individuals; that Wilson had neither signed the loan documents nor authorized anyone to sign on his behalf; and that the decision to foreclose was an election of remedies under state law that precluded the collection action.\nIn August, 1988, National served interrogatories and requests for admissions. Only Rosalind filed a response. In it, she reiterated her contention that the loan was to the corporation only, but she refused to answer any questions about Wilson’s role. In response to an interrogatory, however, she did state that Wilson’s name on the note was signed by a person named Greta. Rosalind added that she did not know where Greta was.\nOn February 5, 1990, Mark filed a motion to strike the answer of Wilson on the ground that “defendant Herman Wilson is not represented by me in this action” and that Wilson had not authorized the filing of an answer on his behalf. The motion was denied by order entered February 28,1990, in which the magistrate judge instructed Mark that the proper route would be to seek leave to withdraw as counsel for Wilson. In the same order, the court ruled that Wilson would be deemed to have admitted all the items in National’s requests for admissions.. This latter ruling became the linchpin of the eventual judgment against Wilson and, later, his estate.\nOn April 9, 1990, National moved for partial summary judgment against Wilson on the basis of his “admissions”. Mark filed a response on behalf of both defendants. Attached to this response was an affidavit in which Rosalind averred that Wilson never authorized his signature on the loan documents, that he was not present at the closing, that he never received a copy of the complaint or the loan documents, and that he never authorized Mark to represent him in the lawsuit. Unbeknownst to the court, Wilson had died two months earlier, on February 14, 1990.\nThe magistrate judge recommended that the partial summary judgment be granted. He discounted Rosalind’s affidavit because it was not based on personal knowledge. The district court adopted the magistrate judge’s report and entered judgment against Wilson for $54,356.21. The appeal of this judgment was dismissed as interlocutory because Rosalind was still in the case. National Credit Union Administration Board v. Wilson, No. 90-2134 (Aug. 24, 1990) .(order).\nIn January, 1991, the court granted National’s motion to substitute Rosalind, in her capacity as administratrix of Wilson’s estate, as a party in place of the late Mr. Wilson. On February 5,1991, a stipulation of dismissal without prejudice was filed that had the effect of dismissing Rosalind (in her individual capacity) without a court order. Fed. R.Civ.P. 41(a)(l)(ii).\nIn the context of ruling on National’s motion for attorneys’ fees, the district court tied up loose ends. In a final, comprehensive order entered on February 14, 1991, the district court readopted the magistrate judge’s recommendation that formed the basis of the partial summary judgment against Wilson. This order also makes it clear that (1) Rosalind, as administratrix, was the defendant instead of Wilson; (2) Rosalind, in her individual capacity, was out of the case entirely; and (3) the judgment was only against the administratrix of Wilson’s estate.\nOn February 25, 1991, Mark filed a Rule 60(b) motion to set aside the February 14th judgment. Attached to the motion was an affidavit by Greta J. Griffin. Griffin stated that she had never met Wilson and that he had never authorized her to put his signature on the loan documents. A second motion was filed on May 28, 1991. The memorandum of law accompanying the latter motion raised a number of defenses and expressly requested relief on the ground that the filing of an answer on Wilson’s behalf was “presumptuous” on Mark’s part.\nThe district court adopted the magistrate judge’s report and denied the motions. The administratrix appeals.\nII\nThe case before us is the appeal of the district court’s December 20, 1991, order denying the administratrix’s Rule 60(b) motions to set aside the February 14, 1991, judgment against the estate. The consideration of Rule 60(b) motions proceeds in two stages. First there is the question of whether the movant has met each of three threshold conditions. “[I]n order to obtain relief from a judgment under Rule 60(b), a moving party must show that his motion is timely, that he has a meritorious defense to the action, and that the opposing party would not be unfairly prejudiced by having the judgment set aside.” Park Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir.1987). (A fourth threshold showing, “exceptional circumstances,” is sometimes noted, see, e.g., Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.1984)). The district court, in adopting the magistrate judge’s recommendation in full, ruled that (1) the administratrix had not shown a meritorious defense, and (2) National would be unfairly prejudiced by having the judgment set aside.\nWe review denials of Rule 60(b) motions for abuse of discretion. Werner v. Carbo, 731 F.2d 204, 206 (4th Cir.1984). “However, where default judgments are at issue, over the years this court has taken an increasingly liberal view of Rule 60(b) ...” Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 810 (4th Cir.1988). Although this case is not technically a default judgment, it resembles one closely enough for the usually strict standard of review to be tempered somewhat.\nA\nThe magistrate judge examined each of the defenses raised in the motions and found each lacking in merit. These defenses were, according to the headings in the magistrate judge’s Memorandum and Recommendation, (1) question of Wilson’s signature, (2) service of process, (3) authority of Wilson’s counsel, (4) corporate or individual loan, and (5) release, accord and satisfaction. The court discounted the strongest substantive defense—that Wilson neither signed nor authorized his name to be signed on the loan documents—by pointing out that Greta Griffin’s affidavit (which was attached to the first Rule. 60(b) motion) failed to aver that she actually signed Wilson’s name. This finding relies on an exceedingly fine reading of the affidavit and, moreover, ignores the thrust of the argument that lawyer Gray has been advancing for some time in various, albeit roundabout, ways. However inartfully composed, the affidavit’s meaning is clear—Ms. Griffin signed Wilson’s signature, and she did so without authority. If proven, this allegation would provide a good defense to the claim. Thus, the meritorious defense threshold has been met.\nB\nThe prejudice factor is of lesser importance. See Compton v. Alton Steamship Co., 608 F.2d 96, 102 (4th Cir.1979) (“[T]he court should in every case give some, though not controlling, consideration to the question whether the party in whose favor judgment has been entered will be unfairly prejudiced by the vacation of his judgment.”). The magistrate judge found that National would suffer prejudice because it had prosecuted its claim on the basis of the “deemed admissions” and because Wilson’s death (after the date on which the initial discovery responses were due) deprived it of an important source of discovery. We can discern no appreciable prejudice on either basis.\n“Additional legal costs ... are the inevitable result whenever a judgment is vacated.” Randall v. Merrill Lynch, 820 F.2d 1317, 1321 (D.C.Cir.1987) (citing Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.1984)), cert. denied, 484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988). To the extent that National is complaining that it has lost its chance to question Wilson directly, this lost opportunity is partly of its own making. A close examination of the discovery documents reveals that National failed to attempt to establish the necessary foundation for the judgment against Wilson prior to his death-.\nIn the requests for admissions, National failed to ask whether Wilson had either signed the note or had authorized someone to do so on his behalf. In fact, National seems to have assumed that Wilson did not sign the documents himself—the discovery request asks Rosalind to admit that she signed Wilson’s name and, if she denied doing so, to state who did. Notwithstanding the omission of any questions directed to Wilson about his signature or authorization, the magistrate judge made a finding that “[t]he defendant Wilson, by his failure to answer requests for admission, admits execution of the Promissory Note, Security Agreement and Deed of Trust.”\nIt appears that the first notice that the court had that Mr. Wilson had died was National’s motion to substitute Rosalind, as administratrix of Wilson’s estate, as defendant in Wilson’s stead. Although this motion was filed almost a full year after Mr. Wilson’s death, National was evidently aware of Wilson’s death no later than nine days before partial summary judgment was taken July 3, 1990. The movant below met the no-prejudice threshold.\nIll\nOnce the movant has met the threshold showings, he must satisfy one of the six enumerated grounds for relief under Rule 60(b). Having decided that two of the threshold conditions for Rule 60(b) relief had not been met, the district court ended its analysis. We believe this case falls within subsection (b)(6), a “catchall provision which allows a court to grant relief for any reason ...” Dowell v. State Farm Fire and Cas. Auto Ins. Co., 993 F.2d 46, 48 (4th Cir.1993).\nA\nRule 60(b)’s catch-all phrase — any other reason justifying relief — has been described as a “grand reservoir of equitable power to do justice in a particular case.” 7 Moore’s Federal Practice ¶ 60.27[1] at 60-266 (1993). Although “[t]he remedy provided by the Rule ... is only to be invoked upon a showing of exceptional circumstances ...Compton v. Alton Steamship Co., 608 F.2d at 102, we believe this case cries out for the exercise of that “equitable power to do justice.”\nB\nThe problem began, of course, with the filing of an answer on Wilson’s behalf by his friend’s brother. Within no more than three months, however, Mark Gray evidently decided that it was time to discontinue his representation of a client who had never retained him. Thus, the responses to the plaintiffs requests for admissions were expressly limited to Rosalind. Four months later, Mark’s decision to extricate himself manifested itself in his motion to strike the answer of Wilson. In opposing the motion, National suggested that the proper route for lawyer Gray would be to move to withdraw as Mr. Wilson’s counsel, but by this time Gray’s “client” was dead. As lawyer Gray frankly admitted during oral argument before this court, he is still in the case because he doesn’t know how to get out.\nIt appears indisputable that Wilson never authorized lawyer Gray to represent him in this action, and it is possible that Wilson was never even apprised of the suit itself. National’s counsel as much as conceded the first point during oral argument. We are left with the firm impression that Mark’s representation of his sister’s friend was undertaken with the best of intentions. However, his vacillation between trying to represent Wilson and trying to get out of representing him have confused matters no end. Nevertheless, because we are left with substantial doubts about so many essential matters — was Wilson ever properly served with the complaint? did he ever retain Gray to represent him? did he sign the loan documents or authorize someone to sign on his behalf? — we are convinced that this is the type of extraordinary case for which Rule 60(b)(6) was designed.\nIV\nThe ease is remanded with instructions to vacate the judgments entered on July 3,1990 (partial summary judgment against Wilson) and February 14, 1991. On remand, the district court is instructed to permit the remaining defendant, the administratrix, to raise any defenses to this action (including any defense regarding service of process upon Wilson) without regard to the failure of defendant Wilson to respond to the plaintiffs first set of interrogatories and requests for admissions.\nREMANDED WITH INSTRUCTIONS.\n. See 12 U.S.C. § 1751 et seq.\n. In response to any question that could be construed as seeking an independent response from Wilson, Rosalind stated that \"Herman Wilson does not respond to these pleadings.”\n. The first motion (including the Griffin affidavit) was filed 11 days after entry of the judgment. The second motion was filed three months later and prior to any hearing on the first motion. The district court made no ruling on the timeliness of the motions.\n. To our untrained eyes, the handwriting on both the Wilson signature on the note and the Griffin signature on the affidavit seem very similar.\n. In light of our finding that the signature defense is meritorious, it is not necessary to discuss the other defenses raised in the motions.\n. The docket sheet contains references to scheduled depositions of Rosalind that were filed on November 28 and December 29, 1989, yet no notice of depositions of Wilson were filed.\n. By letter dated July 12, 1990, National filed a claim against Wilson’s estate in the probate court for the District of Columbia.\n. National's response to the motion to strike the answer was served by mail on February 12, 1990. Mr. Wilson passed away on February 14, 1990. According to lawyer Gray, Mr. Wilson died as a result of injuries he received in an accident and which had \"rendered him comatose and incapacitated for an extended period of time prior to his death.” Appellant’s brief at 3. It may be that Mr. Wilson’s incapacity extended as far back as May 15, 1989, the date of service of the complaint.\n. The appointment of a personal representative with an apparent conflict of interest with the estate is troubling, but this would appear to be a matter best addressed in the first instance by Wilson’s heirs.\n[END_CASE]", "role": "user" } ]
10,509,992	Jess WHITE, Plaintiff-Appellant, v. Ronald O. GREGORY; Michael House, Defendants-Appellees	White v. Gregory	1993-08-23	No. 91-7641	United States Court of Appeals for the Fourth Circuit	{"judges": ["Before WIDENER, MURNAGHAN, and WILLIAMS, Circuit Judges."], "parties": ["Jess WHITE, Plaintiff-Appellant, v. Ronald O. GREGORY; Michael House, Defendants-Appellees."], "opinions": [{"text": "OPINION\nWILLIAMS, Circuit Judge:\nJess White, a prisoner at Pruntytown Correctional Center, West Virginia, brought this pro se action under 42 U.S.C. § 1983 (1988) alleging that prison officials were denying him three meals a day in violation of his civil rights under the Eighth Amendment to the United States Constitution. He sought both injunctive relief and damages. The district court dismissed the complaint under 28 U.S.C. § 1915(d) (1988), and White appealed. We affirm.\nI\nWhite states in his complaint that the defendants, Ronald 0. Gregory and Michael House, allowed him only two meals a day on weekends and holidays, thereby forcing him to forego food for periods of up to eighteen hours. House is the Superintendent at the Pruntytown Correctional Center, and Gregory is the Commissioner of the West Virginia Department of Corrections. White explicitly stated that he was suing both defendants “as individuals.”\nWhite’s complaint was referred to a magistrate judge, who concluded that White’s allegations were sufficient to state a claim under Bolding v. Holshouser, 575 F.2d 461, 465 (4th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed.2d 133 (1978) (holding that an allegation that prisoners were “not provided with three wholesome and nutritious meals a day” stated a claim). Accordingly, the magistrate judge recommended that White be granted leave to proceed in forma pauperis. The district court adopted the recommendation and ordered that White’s complaint be filed and that Defendants be served.\nDefendants did not file an answer within twenty days of service of the complaint as required by Federal Rule of Civil Procedure 12(a). White moved for a default judgment, which the district court denied. Instead, finding excusable neglect, the court granted Defendants’ motion for additional time in which to file a responsive pleading. Defendants then moved for dismissal under Federal Rule of Civil Procedure 12(b)(6).\nIn support of the motion to dismiss, House submitted an affidavit in which he stated that White lived in a basement apartment in the Superintendent’s (i.e., House’s) residence. House stated that White had full access both to House’s refrigerator and to a separate refrigerator that White was allowed to keep fully stocked with food. Defendants also submitted the affidavit of Geraldine Lambert, who worked with food services at Pruntytown. Lambert stated that White was allowed to select three to four days worth of food from the prison food supplies for his own refrigerator.\nWhite responded by submitting an affidavit in which he claimed that he only had access “to the kitchen at the Superintendent’s house ... when [he] cleaned it or while cooking House’s meals.” (J.A. 68A.) In addition, White filed a “Motion Not to Dismiss” in which he stated that “while House was Superintendent, he was not allowed food at the Superintendent’s house. And [he] was not allowed to cook at the Superintendent’s house for himself.” (J.A. at 63A.) White “agreefd] that House had food sent to the Superintendentes] house[,] but it was state food that House ate[,] not Plaintiff.” (J.A. at 63A.) White reiterated this point in his affidavit, claiming that he was unable to get food from the Pruntytown Correctional Center’s kitchen because he was restricted to the Superintendent’s residence. Finally, in his verified complaint, White claimed that he told House that he was entitled to three meals a day, and that House responded by laughing and saying that “he didn’t care what the courts said on feeding three meals a day to inmates.” (J.A. at 16A.)\nThe matter was referred to a magistrate judge who recommended dismissal under § 1915(d) on two grounds. First, the magistrate judge determined that Defendants were acting in their official capacities, and held that they were therefore immune from suit under § 1983. Second, the magistrate judge determined that White’s allegation that “he was denied three meals a day is refuted by affidavits attached to defendants’ motion to dismiss.” (J.A. at 58A.) The magistrate judge also determined that White’s claim for injunctive relief was moot because he was no longer incarcerated at Pruntytown. See Magee v. Waters, 810 F.2d 451, 452 (4th Cir.1987). The district court accepted the recommendation of the magistrate judge and dismissed the complaint.\nII\nA\nSection 1915(d) grants district courts the power to dismiss informa pauperis complaints that are either frivolous or malicious. The Supreme Court has determined that a complaint is frivolous under § 1915(d) “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint lacks an arguable basis in law where it is based on an “indisputably meritless legal theory.” Id. at 327, 109 S.Ct. at 1833. A complaint lacks an arguable basis in fact where “the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, - U.S. -, -, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).\nDismissals under § 1915(d) are reviewed for abuse of discretion. Id. at -, 112 S.Ct. at 1734. District courts typically will grant a plaintiff leave to proceed in forma pauperis only after making a preliminary finding that the complaint is not frivolous. Since leave to proceed in forma pau-peris is necessary for service under § 1915(b), most dismissals under § 1915(d) occur before any of the defendants are served. However, even if a complaint has been filed and served, district courts have discretion under § 1915(d) to dismiss the complaint where in the course of litigation it becomes evident that the plaintiffs allegations are clearly baseless in law or fact. See id. at ---, 112 S.Ct. at 1731-34 (holding that dismissal under § 1915(d) is appropriate where affidavits supporting amended complaint indicated that the initial complaint was factually frivolous). Section 1915(d) does not, however, empower district courts to resolve genuine issues of material fact. Id. at -, 112 S.Ct. at 1734.\nAlthough the district court dismissed the complaint here because White’s claims appeared factually frivolous in light of the affidavits submitted by Defendants, we do not address whether dismissal on this ground was justified. Instead, we affirm the dismissal under § 1915(d) because White’s theory of an Eighth Amendment violation is indisputably meritless under Strickler v. Waters, 989 F.2d 1375 (4th Cir.1993).\nIn Strickler, we held that a prisoner must suffer “serious or significant physical or mental injury” in order to be “subjected to cruel and unusual punishment within the meaning of the” Eighth Amendment. Id. at 1381. Here, White admits that he received three meals a day except for weekends and holidays, when he received two meals. He makes no suggestion of any deleterious physical or mental effects from this meal schedule. Dieticians may quibble over whether two meals a day provide a nutritionally balanced diet, but the deprivation alleged here simply does not rise to the level of a “serious or significant physical or mental injury.”\nWe conclude that the facts stated in White’s complaint plainly indicate that his claims are indisputably meritless, and hence that the district court did not err in dismissing the complaint under 28 U.S.C. § 1915(d).\nB\nWhite raises two other matters that we need address only briefly. First, he challenges the district court’s holding that Defendants were acting in their official capacities and were therefore immune from suit under § 1983. The district court relied upon language in Will v. Michigan Department of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311-12, 105 L.Ed.2d 45 (1989), which suggested that state officials are immune from suit under § 1983 if they act in their official capacities. The Supreme Court recently rejected that interpretation of Will, holding that “state officials, sued in their individual capacities, are ‘persons’ within the meaning of § 1983” and are not “absolutely immune from personal liability under § 1983 solely by virtue of the ‘official’ nature of their acts.” Hafer v. Melo, — U.S. -, -, 112 S.Ct. 358, 365, 116 L.Ed.2d 301 (1991); see also Goodmon v. Rockefeller, 947 F.2d 1186, 1187 (4th Cir.1991). Because White sued Defendants “as individuals,” dismissal under Will was inappropriate.\nSecond, White urges that the district court erred in denying his motion for default judgment against Gregory. We find that the district court did not abuse its discretion in granting Gregory additional time to file his answer, and hence that the court did not err in denying White’s motion for default judgment.\nFor the foregoing reasons, we affirm the judgment of the district court.\nAFFIRMED\n. The district court did not address whether the complaint should have been dismissed under Rule 12(b)(6). Consideration of these affidavits on a Rule 12(b)(6) motion would have been inappropriate and required conversion of the motion into one for summary judgment under Rule 56. Fed.R.Civ.P. 12(b).\n. Although it appears from the record that White moved for default judgment against both Defendants, White has not appeáled the denial of default judgment against House.", "type": "majority", "author": "WILLIAMS, Circuit Judge:"}, {"text": "WIDENER, Circuit Judge,\nconcurring:\nI concur in the majority opinion. Nevertheless, I would add a word, for, in my opinion, the district court was correct in the action it took in dismissing the plaintiffs case.\nOf great importance is the fact that the plaintiff, while he nominally may have been in prison, lived in an apartment in the basement of the home of the prison superintendent. Not only did he have access to the superintendent’s kitchen and refrigerator, but he had his own refrigerator in his own apartment which was stocked with food. The following questions and answers from oral argument are quoted here:\nThe Court: It is not disputed, however, that the man had access to the superintendent’s refrigerator during all of this time, is it?\nA: Correct.\n######\nThe Court: Well, it is not denied also that he had his own refrigerator and his basement apartment stocked with a variety of food items, is it?\nA: No, it is not, Your Honor.\nThe Court: Well, how on earth is he claiming that he is under-nourished when he had a refrigerator full of food that he admits?\nA: Well, he claims he was not provided three wholesome meals a day....\nAnd I add that, in answer to the first question, stated above, the prisoner’s attorney elaborated as follows:\nHe stated that the food delivered to ... defendant House’s residence was for defendant House. He was not allowed to touch it and he states in his affidavit that his only access to the kitchen was to clean it or to cook defendant House’s breakfast. He was not allowed to eat there.\nThis colloquy makes the very best case for the prisoner that he can make.\nAs an initial matter, I would find that even an inference that this prisoner was not properly nourished, with admitted unrestricted access to his own refrigerator and restricted access to the superintendent’s refrigerator, is simply not well taken. Any affidavit which claims that this prisoner did not have adequate nourishment I would find to be inherently incredible.\nThe inherent incredibility aside, the admission by this prisoner that he has access to his own refrigerator, stocked with a variety of foods, is a substantive admission of fact from which a court is bound to infer that he is not undernourished.\nSo, in my opinion, the ease is frivolous as a matter of fact as well as a matter of law, and the dismissal of the same by the district court should be affirmed on that account also.\nEven though not pleaded.", "type": "concurrence", "author": "WIDENER, Circuit Judge,"}], "attorneys": ["Larry Michael Bonham, Larry L. Rowe, Charleston, WV, argued, for plaintiff-appellant.", "Rita A. Stuart, Sp. Asst. Atty. Gen., Charleston, WV, argued, for defendants-ap-pellees."], "corrections": "", "head_matter": "Jess WHITE, Plaintiff-Appellant, v. Ronald O. GREGORY; Michael House, Defendants-Appellees.\nNo. 91-7641.\nUnited States Court of Appeals, Fourth Circuit.\nArgued Oct. 2, 1992.\nDecided Aug. 23, 1993.\nLarry Michael Bonham, Larry L. Rowe, Charleston, WV, argued, for plaintiff-appellant.\nRita A. Stuart, Sp. Asst. Atty. Gen., Charleston, WV, argued, for defendants-ap-pellees.\nBefore WIDENER, MURNAGHAN, and WILLIAMS, Circuit Judges."}	WIDENER	MURNAGHAN	WILLIAMS	1	2	1	0	1	0	1 F.3d 267	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jess WHITE, Plaintiff-Appellant, v. Ronald O. GREGORY; Michael House, Defendants-Appellees\nCourt: United States Court of Appeals for the Fourth Circuit\nDate decided: 1993-08-23\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOPINION\nWILLIAMS, Circuit Judge:\nJess White, a prisoner at Pruntytown Correctional Center, West Virginia, brought this pro se action under 42 U.S.C. § 1983 (1988) alleging that prison officials were denying him three meals a day in violation of his civil rights under the Eighth Amendment to the United States Constitution. He sought both injunctive relief and damages. The district court dismissed the complaint under 28 U.S.C. § 1915(d) (1988), and White appealed. We affirm.\nI\nWhite states in his complaint that the defendants, Ronald 0. Gregory and Michael House, allowed him only two meals a day on weekends and holidays, thereby forcing him to forego food for periods of up to eighteen hours. House is the Superintendent at the Pruntytown Correctional Center, and Gregory is the Commissioner of the West Virginia Department of Corrections. White explicitly stated that he was suing both defendants “as individuals.”\nWhite’s complaint was referred to a magistrate judge, who concluded that White’s allegations were sufficient to state a claim under Bolding v. Holshouser, 575 F.2d 461, 465 (4th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed.2d 133 (1978) (holding that an allegation that prisoners were “not provided with three wholesome and nutritious meals a day” stated a claim). Accordingly, the magistrate judge recommended that White be granted leave to proceed in forma pauperis. The district court adopted the recommendation and ordered that White’s complaint be filed and that Defendants be served.\nDefendants did not file an answer within twenty days of service of the complaint as required by Federal Rule of Civil Procedure 12(a). White moved for a default judgment, which the district court denied. Instead, finding excusable neglect, the court granted Defendants’ motion for additional time in which to file a responsive pleading. Defendants then moved for dismissal under Federal Rule of Civil Procedure 12(b)(6).\nIn support of the motion to dismiss, House submitted an affidavit in which he stated that White lived in a basement apartment in the Superintendent’s (i.e., House’s) residence. House stated that White had full access both to House’s refrigerator and to a separate refrigerator that White was allowed to keep fully stocked with food. Defendants also submitted the affidavit of Geraldine Lambert, who worked with food services at Pruntytown. Lambert stated that White was allowed to select three to four days worth of food from the prison food supplies for his own refrigerator.\nWhite responded by submitting an affidavit in which he claimed that he only had access “to the kitchen at the Superintendent’s house ... when [he] cleaned it or while cooking House’s meals.” (J.A. 68A.) In addition, White filed a “Motion Not to Dismiss” in which he stated that “while House was Superintendent, he was not allowed food at the Superintendent’s house. And [he] was not allowed to cook at the Superintendent’s house for himself.” (J.A. at 63A.) White “agreefd] that House had food sent to the Superintendentes] house[,] but it was state food that House ate[,] not Plaintiff.” (J.A. at 63A.) White reiterated this point in his affidavit, claiming that he was unable to get food from the Pruntytown Correctional Center’s kitchen because he was restricted to the Superintendent’s residence. Finally, in his verified complaint, White claimed that he told House that he was entitled to three meals a day, and that House responded by laughing and saying that “he didn’t care what the courts said on feeding three meals a day to inmates.” (J.A. at 16A.)\nThe matter was referred to a magistrate judge who recommended dismissal under § 1915(d) on two grounds. First, the magistrate judge determined that Defendants were acting in their official capacities, and held that they were therefore immune from suit under § 1983. Second, the magistrate judge determined that White’s allegation that “he was denied three meals a day is refuted by affidavits attached to defendants’ motion to dismiss.” (J.A. at 58A.) The magistrate judge also determined that White’s claim for injunctive relief was moot because he was no longer incarcerated at Pruntytown. See Magee v. Waters, 810 F.2d 451, 452 (4th Cir.1987). The district court accepted the recommendation of the magistrate judge and dismissed the complaint.\nII\nA\nSection 1915(d) grants district courts the power to dismiss informa pauperis complaints that are either frivolous or malicious. The Supreme Court has determined that a complaint is frivolous under § 1915(d) “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint lacks an arguable basis in law where it is based on an “indisputably meritless legal theory.” Id. at 327, 109 S.Ct. at 1833. A complaint lacks an arguable basis in fact where “the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, - U.S. -, -, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).\nDismissals under § 1915(d) are reviewed for abuse of discretion. Id. at -, 112 S.Ct. at 1734. District courts typically will grant a plaintiff leave to proceed in forma pauperis only after making a preliminary finding that the complaint is not frivolous. Since leave to proceed in forma pau-peris is necessary for service under § 1915(b), most dismissals under § 1915(d) occur before any of the defendants are served. However, even if a complaint has been filed and served, district courts have discretion under § 1915(d) to dismiss the complaint where in the course of litigation it becomes evident that the plaintiffs allegations are clearly baseless in law or fact. See id. at ---, 112 S.Ct. at 1731-34 (holding that dismissal under § 1915(d) is appropriate where affidavits supporting amended complaint indicated that the initial complaint was factually frivolous). Section 1915(d) does not, however, empower district courts to resolve genuine issues of material fact. Id. at -, 112 S.Ct. at 1734.\nAlthough the district court dismissed the complaint here because White’s claims appeared factually frivolous in light of the affidavits submitted by Defendants, we do not address whether dismissal on this ground was justified. Instead, we affirm the dismissal under § 1915(d) because White’s theory of an Eighth Amendment violation is indisputably meritless under Strickler v. Waters, 989 F.2d 1375 (4th Cir.1993).\nIn Strickler, we held that a prisoner must suffer “serious or significant physical or mental injury” in order to be “subjected to cruel and unusual punishment within the meaning of the” Eighth Amendment. Id. at 1381. Here, White admits that he received three meals a day except for weekends and holidays, when he received two meals. He makes no suggestion of any deleterious physical or mental effects from this meal schedule. Dieticians may quibble over whether two meals a day provide a nutritionally balanced diet, but the deprivation alleged here simply does not rise to the level of a “serious or significant physical or mental injury.”\nWe conclude that the facts stated in White’s complaint plainly indicate that his claims are indisputably meritless, and hence that the district court did not err in dismissing the complaint under 28 U.S.C. § 1915(d).\nB\nWhite raises two other matters that we need address only briefly. First, he challenges the district court’s holding that Defendants were acting in their official capacities and were therefore immune from suit under § 1983. The district court relied upon language in Will v. Michigan Department of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311-12, 105 L.Ed.2d 45 (1989), which suggested that state officials are immune from suit under § 1983 if they act in their official capacities. The Supreme Court recently rejected that interpretation of Will, holding that “state officials, sued in their individual capacities, are ‘persons’ within the meaning of § 1983” and are not “absolutely immune from personal liability under § 1983 solely by virtue of the ‘official’ nature of their acts.” Hafer v. Melo, — U.S. -, -, 112 S.Ct. 358, 365, 116 L.Ed.2d 301 (1991); see also Goodmon v. Rockefeller, 947 F.2d 1186, 1187 (4th Cir.1991). Because White sued Defendants “as individuals,” dismissal under Will was inappropriate.\nSecond, White urges that the district court erred in denying his motion for default judgment against Gregory. We find that the district court did not abuse its discretion in granting Gregory additional time to file his answer, and hence that the court did not err in denying White’s motion for default judgment.\nFor the foregoing reasons, we affirm the judgment of the district court.\nAFFIRMED\n. The district court did not address whether the complaint should have been dismissed under Rule 12(b)(6). Consideration of these affidavits on a Rule 12(b)(6) motion would have been inappropriate and required conversion of the motion into one for summary judgment under Rule 56. Fed.R.Civ.P. 12(b).\n. Although it appears from the record that White moved for default judgment against both Defendants, White has not appeáled the denial of default judgment against House.\n[END_CASE]", "role": "user" } ]
10,510,071	Raymond Louis BENDER, Plaintiff-Appellant, v. James A. BRUMLEY, et al., Defendants-Appellees	Bender v. Brumley	1993-08-24	No. 91-4884	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before REYNALDO G. GARZA, JERRE S. WILLIAMS, and JONES, Circuit Judges."], "parties": ["Raymond Louis BENDER, Plaintiff-Appellant, v. James A. BRUMLEY, et al., Defendants-Appellees."], "opinions": [{"text": "ON SUGGESTION FOR REHEARING EN BANC\nJERRE S. WILLIAMS, Circuit Judge:\nOn petition for rehearing filed by defendants-appellees, we withdraw our previous opinion dated July 12, 1993, and substitute the following opinion in its place:\nThis 42 U.S.C. § 1983 case asserts the police used excessive force in dealing with a pre-trial detainee. The critical, narrow issue before us is whether it was reversible error for the district court to instruct the jury that it must find that Raymond Bender suffered “significant injury” before it could return a verdict in his favor. We conclude that the jury was inescapably misguided by the instruction, which ran afoul of the Supreme Court’s recent decision in Hudson v. McMillian, — U.S. -, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), as explicated by this Circuit in Valencia v. Wiggins, 981 F.2d 1440, 1443-47 (5th Cir.), cert. denied, - U.S. -, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). Accordingly, we remand Bender’s federal excessive force claim to the district court for a new trial. We affirm the judgments entered against all his other claims.\nI. FACTS AND PRIOR PROCEEDINGS\nOn February 20, 1989, Raymond Louis Bender surrendered himself as a suspect in the killing of Deputy Jimmy Kinney of the Sabine Parish Sheriffs Department. Deputy Kinney had been killed by a single shotgun blast to the chest as he sat in his patrol car a few hours earlier.\nLater that day, Bender was taken from his cell at the Sabine Parish jail and escorted by Deputy Jack Staton to the interrogation room where they were met by Staton’s fellow defendants, Deputies James McComic and Joe Byles, and Officer David Remedies of the Zwolle Police Department. What transpired inside the interrogation room is vigorously disputed. The officers maintain that Bender grew erratic at various times during the questioning and began flailing his arms; a brief scuffle ensued, and the officers used minimal force to restrain him. The Defendants acknowledge that everyone in the room was upset, but they emphatically deny that unreasonable force was used or that a beating took place. The officers urge that Bender’s claims of physical abuse are belied by his failure to seek medical attention until May 1990, more than fifteen months following the alleged mistreatment, and then for an ailment wholly unrelated to the alleged beating.\nBender asserts, on the other hand, that upon his invocation of his Fifth Amendment right to remain silent, Deputy McComic threw hot coffee in his face to compel him to speak and hit him on the head, knocking him to the floor. While on the floor, Bender claims that Deputy Staton managed several blows and kicks before dragging him out of the room by his hair. Outside the room, Bender contends the beating continued — Sta-ton smacked him between the eyes, knocking him again to the floor, and Officer Remedies hit and kicked Bender’s head and rear. At this point, says Bender, McComic admonished Staton and Officer Remedies to stop striking Bender with closed fists because that might cause severe injuries. Staton then stomped on Bender’s back before he was taken back into the interrogation room where Deputy Byles saw Bender’s bloody nose and asked what had happened. Bender claims that McComic responded that Bender had fallen off the stairs, whereupon Byles called Bender a nigger and threatened to shoot him if he tried to run away.\nBender also maintains that Remedies made a statement that he saw Staton hit Bender, and emphasizes that a Louisiana state court judge testified at trial that when she, as an assistant district attorney for Sabine Parish, questioned Remedies about the incident, he told her that Staton struck Bender “once or twice.” Moreover, Bender insists, witnesses can verify that he “looked kind of roughed up” after his trip to the interrogation room. He claims that his nose bled profusely and felt as if it were broken, that he lost complete feeling in his legs, and that two officers had to hold him up as he returned to his cell. Additionally, he asserts that he and/or his family repeatedly requested medical attention, which was at all times refused. For their part, however, the Defendants presented witnesses who refuted Bender’s claims of threats and physical abuse.\nExactly one year from the date of Bender’s arrest for Deputy Kinney’s murder and the alleged beating, Bender filed suit against the four officers and Sheriff James Brumley asserting various causes of action arising under the U.S. Constitution, 42 U.S.C. §§ 1983 and 1985(3), and Louisiana state law. At trial’s end, the jury was asked a series of questions. Regarding Bender’s federal claims, the jury was asked whether McComic, Staton, and Remedies used excessive force and whether Sheriff Brumley withheld medical care. Regarding Bender’s pendent state law claims, the jury was asked whether any of the five defendants used excessive force as defined under Louisiana law or intentionally inflicted emotional distress. The jury rejected Bender’s plea for compensatory and punitive damages and returned a verdict completely exonerating the officers. Judgment was entered, and Bender timely appeals the dismissal. He claims three principal grounds. He argues that the district court erred in (1) denying his motions for summary judgment and directed verdict, (2) admitting potentially prejudicial testimony concerning Deputy Kinney’s murder, and (3) instructing the jury that proof of significant injury was necessary to support a valid § 1983 claim. We address these contentions in turn.\nII. DISCUSSION\nA. The Denial of Bender’s Motions\nPrior to trial, Bender filed a motion for summary judgment on his federal claims of excessive force and deprivation of medical attention. Noting that “[tjhe testimony of both camps is diametrically opposed,” the district court denied the motion, but partially granted Defendants’ Motion for Dismissal or Alternatively for Summary Judgment by dismissing all claims for verbal threats and harassment. At the close of the officers’ evidence at trial, Bender sought a directed verdict as to his pendent state law claims of excessive force and intentional infliction of emotional distress. This motion, too, was denied.\nOn appeal, Bender persists that the savage beating he endured was supported by “concrete proof’ and that the trial court’s refusal to grant his motions was error in the face of “the objective physical evidence.” Bender argues strenuously that a review of the entire record shows that,\nany reasonable jury could have found that Appellees in an act of vengeance maliciously and sadistically used excessive force against him in the guise of coercing a confession; Appellant suffered physical pain, emotional distress, and mental anguish; Appellant was denied medical treatment for a period of fifteen (15) months following the assault; and the actions of the Appellees violated both state and federal laws, (emphasis added)\nBender concedes, however, that conflicting evidence was presented from which contradictory inferences could have been drawn. The district court properly denied both motions.\nAs to the motion for summary judgment, the governing standard is well settled. Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also, e.g., Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the district court’s denial was proper, we review the court’s decision de novo and consider all of the record evidence and the inferences drawn therefrom in the light most favorable to the non-movant officers. Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988).\nIn its memorandum ruling denying the summary judgment, the district court carefully assessed Bender’s evidence and recognized that testimony in the record squarely contradicted his claims. Specifically, the court noted that Bender’s motion itself included as exhibits from the prior criminal prosecution the officers’ sworn denials that a beating or other mistreatment took place. The district court properly concluded that “[t]his testimony is more than sufficient to create a genuine issue of material fact which must be resolved by the jury.” This case obviously cannot be viewed as “so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).\nAs to the motion for a directed verdict, Bender fails to discuss in his appellate brief the court’s denial of his directed verdict motion. It is well settled that the failure to argue an issue posed for consideration is deemed an abandonment of that issue. E.g., Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir.1980) (per curiam); Fed.R.App.P. 28(a)(4). Accordingly, we do not review the district court’s directed verdict decision.\nWe also consider Bender’s related argument, listed separately in his brief, that the jury’s verdict “is against the law and the clear weight of the evidence.” This is essentially an argument contesting the sufficiency of the evidence, which we assess in the light most favorable to the jury’s verdict. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1139 (5th Cir.1991). At the conclusion of defendant’s case, Bender moved for a directed verdict on his state law claims only. A cursory review of the evidence rebutting Bender’s state law claims supports the district court’s decision to reject this motion. As to Bender’s federal claims, absent a motion for directed verdict in the district court our inquiry is restricted to “whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a ‘manifest miscarriage of justice.’ ” Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978) (emphasis in original). Measured against this arduous standard, the evidence submitted regarding Bender’s federal claims falls far short of requiring that the verdict be set aside on insufficiency of the evidence.\nB. The Admission of Evidence About the Murder\nBender next complains that the district court erred in allowing the jury to hear highly inflammatory and prejudicial testimony concerning the murder of Deputy Kinney. Specifically, the judge allowed witnesses to discuss in graphic detail the circumstances surrounding Kinney’s murder, for which Bender had been convicted about six months earlier. Although he concedes that Federal Rule of Evidence 609(a)(1) allows a witness to be impeached with evidence of prior convictions, Bender contends that the probative value of the evidence was slight and easily outweighed by the danger of unfair prejudice. Accordingly, he argues, it should have been excluded under Federal Rule of Evidence 403, which cautions against the admission of otherwise-relevant evidence likely to induce a purely emotional decision.\nThis argument also is without merit. Following its latest amendment in 1990, Federal Rule of Evidence 609(a)(1), previously a source of considerable judicial and academic dissatisfaction, now provides:\n(a) General rule. For the purpose of attacking the credibility of a witness,\n(1) evidence that the witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused[.]\nThis rule, as now amended, was applicable in this case. Nothing in the record indicates that the district court engaged in prejudice/probativity weighing under Rule 403. That omission is irrelevant in this case. Bender himself gave the first testimony about the underlying facts of his murder conviction. On direct examination, Bender discussed in great detail the facts surrounding the shooting of Deputy Kinney. He also discussed his grand jury testimony underlying the criminal proceedings. Bender’s later objections to questions concerning the murder were properly overruled. The danger of unfair prejudice was introduced not by the defendants, but by Bender himself. The district judge noted as much when Bender’s counsel broached the subject once more near the end of the trial:\nYou took your clients through their whole murder scene on direct examination and you have made it very difficult now to draw any line. You are now going back into this. You keep objecting when they talk about it but you bring it out when you want to.... [Bender] got up there and told the jury I did not murder the deputy and he went through the whole scene. Now, they’re obviously entitled to impeach him by showing that’s a lie.\nGiven that Bender opened the door to evidence regarding his underlying murder conviction, his “substantial rights” were not jeopardized. See Fed.R.Civ.P. 61 (defining harmless error as “any error or defect in the proceeding which does not affect the substantial rights of the parties”).\nC. The “Significant Injury” Requirement\nThe trial judge erroneously instructed the jury that Bender could prevail on his federal excessive force claim only if he proved a significant injury. We find that the mistaken instruction warrants reversal.\nWe afford trial judges wide latitude in fashioning jury instructions and ignore technical imperfections, see, e.g., Pierce v. Ramsey Winch Co., 753 F.2d 416, 425 (5th Cir.1985). But the trial court must “instruct the jurors, fully and correctly, on the applicable law of the case, and ... guide, direct, and assist them toward an intelligent understanding of the legal and factual issues involved in their search for truth.” 9 Wright & Miller, Federal PRACTICE and Procedure § 2556 (1971). Reversal is therefore appropriate whenever the charge “as a whole leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.” Kyzar v. Vale Do Ri Doce Navegacai, S.A., 464 F.2d 285, 290 (5th Cir.1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1367, 35 L.Ed.2d 591 (1973); see also, e.g., McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). Assessing whether the jury was properly guided, however, is only one-half of the inquiry. Even though error may have occurred, “[w]e will not reverse ‘if we find, based upon the record, that the challenged instruction could not have affected the outcome of the case.’” Middleton v. Harris Press and Shear, Inc., 796 F.2d 747, 749 (5th Cir.1986) (quoting Bass v. United States Dept. of Agriculture, 737 F.2d 1408, 1414 (5th Cir.1984)).\nWe first address a threshold, procedural matter. Defendants argue strenuously that Bender failed to preserve this issue for appeal because he did not lodge oral on-the-record objections to the jury charge when invited to do so by the trial court. Fed.R.Civ.P. 51. This is immaterial, however, since Bender had earlier filed written objections to the proffered jury instructions. We recognize that error is preserved for appeal so long as the complaining party states his assertion to the trial court prior to the time when the court invites on-the-record objections to the charge. E.g., Pierce, 753 F.2d at 424; Lang v. Texas & P. Ry., 624 F.2d 1275, 1279 (5th Cir.1980) (“the failure to object may be disregarded if the party’s position has previously been made clear to the court and it is plain that a further objection would have been unavailing”). The lack of another in-court objection echoing Bender’s earlier written protest, although useful as are all on-the-record occurrences, does not defeat his ability to challenge the instructions on appeal.\nThe officers voice an alternative argument, that even if we recognize Bender’s earlier written objections as timely, they are nonetheless defective because they fail to satisfy Rule 51’s demand for specificity. We conclude that Bender’s written objections were sufficiently explicit. The instructions proffered by the trial court, as set out below, were gleaned almost verbatim from the factors set forth in Huguet v. Barnett, 900 F.2d 838, 841 (5th Cir.1990). Huguet is an Eighth Amendment excessive force case importing the significant injury requirement from Johnson v. Morel, 876 F.2d 477, 480 (5th Cir.1989) (en banc) (per curiam), a Fourth Amendment excessive force case holding that trivial harms do not rise to constitutional import.\nBender’s written objections clearly challenge the use of Johnson’s Fourth Amendment standard:\nPlaintiff object[s] to Jury Charge No. 3 for the reason that Johnson [v]. Morel ... was not the clearly established law in the Fifth Circuit on February 20, 1989, hence the test enunciated in Johnson is not applicable to the facts in this case.\n❖ * X 'Jr- * %\nPlaintiff objeet[s] to Jury Charge No. 5 for the reason that Johnson [v]. Morel ... is not the law of the case. Plaintiffs civil rights were violated after his arrest and [after he was] locked in a jail cell. None of the officers involved in the arrest of Plaintiff participated in the beating in the interrogation room. Plaintiffs Fourteenth Amendment due process rights to be free from punishment were violated by Staton, McComic, Byles and Remedies.\nWe now turn to the critical issue. Was it correct to instruct the jury that proof of significant injury was necessary to support Bender’s federal claim? If not, was the error harmless? Two recent cases control our decision.. The first is the Supreme Court’s decision in Hudson v. McMillian, — U.S. -, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In Hudson, the Supreme Court abandoned its prior insistence on an objectively serious deprivation to hold that a prisoner need not demonstrate significant injury where the force used was malicious and wanton. It reversed a decision of this Court that had applied our established precedent emphasizing the requirement of significant injury in excessive force cases. The Supreme Court held that “the core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at —, 112 S.Ct. at 999 (citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 1084-85, 89 L.Ed.2d 251 (1986)).\nSubsequently, in Valencia v. Wiggins, 981 F.2d at 1440, 1446 (5th Cir.1993), cert. denied, — U.S. -, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993), we held that it was obviously proper to extend the analysis announced in Hudson and Whitley to pre-trial detainees under the due process clause of the Fourteenth Amendment. See also Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir.1993) (per curiam). In short, when determining what standard applies to excessive force claims brought by pre-trial detainees, the proper due process inquiry does not probe the extent of the injury sustained, although that is one factor that can evince wantonness. Rather, it probes the subjective intent of the detaining officers.\nThe timing of this case adds an unusual facet; it was tried while Hudson was pending before the Supreme Court. Anticipating that the Supreme Court might abrogate our Circuit’s significant injury requirement, the trial court attempted to word the jury interrogatories in such a manner as to avoid the effect of a reversal. Focusing on the federal claims, the court first asked, “Do you find that the following defendants used excessive force against Raymond Bender which was objectively unreasonable?” Then, the court asked separately whether Bender “has proven a significant injury resulting directly from excessive force[J” The jury answered “no” to both inquiries. The jury was plainly required to find significant injury before answering “yes” to the second question. Whether the same can be said of the first question turns on how the jury was instructed.\nIt is clear that the jury was specifically instructed to deny Bender’s federal claim unless he proved that he sustained a significant injury. In instructing the jury about these claims, the trial judge quoted almost verbatim from Johnson, now arguably overruled, and stated repeatedly that significant injury was a vital, necessary component of Bender’s case:\nIn order to prove that the defendants used excessive force, Mr. Bender must prove by a preponderance of the evidence:\n1. a significant injury, which\n2. resulted directly and only from the use of force that was clearly excessive to the need; the excessiveness of which was\n3. objectively unreasonable.\nIf Bender fails to prove any of these elements, you must find for the defendants. These three elements are objective focusing on the injury, the amount of force used, and the amount of force necessary.\nTo determine whether a “significant injury” has been inflicted, you must consider only the injuries resulting directly from the constitutional wrong. There can be a constitutional violation only if a significant injury resulted from the officer’s use of excessive force.\nDefendants counter on multiple fronts. First, they argue that even if we determine that the court issued erroneous instructions, “such instruction was harmless error as the jury specifically found that none of the defendants used excessive force which was objectively unreasonable.” The defendants thus maintain that the precise language of the special verdict form “cured” any defect in the instructions and provides a basis to sustain the verdict even though Hudson abolished the significant injury requirement. This argument must fail. As illustrated above, before even reaching the question of whether the officers! actions were objectively unreasonable, the jury was first required to agree that Bender had suffered a significant injury: “There can be a constitutional violation only if a significant injury resulted from the officer’s use of excessive force.”\nSecond, the officers point out that when the trial judge advised the jury concerning Bender’s excessive force claim arising under state law, he specifically stated that significant injury was not a necessary element under Louisiana law. Thus, since the jury rejected Bender’s state claim as well, the officers insist it would be futile to try the entire case again, particularly the state law component. We partly agree. Bender does not contest the accuracy of the instructions regarding his excessive force claim arising under state law. Recognizing “the almost invariable assumption of the law that jurors follow their instructions,” Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987), we hold that the jury’s decision exonerating the officers under state law should be affirmed. Affirming the state component, however, is an unsound basis upon which to deny automatically Bender’s federal claim, where the error occurred. Although the relevant objective factors are similar under both schemes, compare, e.g., Kyle v. New Orleans, 353 So.2d 969, 973 (La.1977), with Hudson, 962 F.2d at 523, they are not so identical for us to conclude that a decision absolving the officers under Louisiana law mandates a parallel finding of “no excessive force” under § 1983. Simply put, the differences — though admittedly slight — extend beyond whether “significant injury” is used as a predicate to liability. Although Judge Jones’s cordial dissent is persuasive, we cannot adopt her view that the erroneous instruction was harmless error.\nThe Supreme Court has advised that “if one cannot say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that [Bender’s] substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). Our review of the record evidence, particularly in light of the subtle— yet conceivably important — differences between the two excessive force standards, does not convince us that the jury’s decision was unaffected by the challenged instruction. Bass, 737 F.2d at 1414. Because we are left in “grave doubt” whether the trial court’s erroneous instruction exerted “substantial influence” over the outcome of the case, the jury’s decision on Bender’s § 1983 claims cannot stand. Id.\nThe case must be retried to submit properly the question: “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, — U.S. at -, 112 S.Ct. at 999; see Wiggins, 981 F.2d at 1446-47, 1449.\nIII. CONCLUSION\nThe judgments entered on Bender’s federal excessive force claims are REVERSED, and those causes of action are REMANDED to the district court for a new trial. Our decision today does not affect the denial of Bender’s federal claim of deprivation of medical treatment or his various state claims. Upon careful examination of the record evidence, the judgments entered on those issues are AFFIRMED.\nNo member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.\nAFFIRMED IN PART. REVERSED AND REMANDED IN PART.\n. Bender was subsequently convicted of first degree murder and sentenced to life imprisonment without the possibility of probation, parole, or pardon.\n. Later the same day, Officer Remedies telephoned the then-assistant district attorney to modify his earlier statement. Remedies stated that a scuffle occurred, but he was not certain that Staton had struck Bender.\n. The issue of qualified immunity, which the district court elected to carry with the case to trial, is not before us on appeal.\n.Mere allegations of verbal abuse do not present actionable claims under § 1983. \"[A]s a rule, ‘mere threatening language and gestures of a custodial officer do not, even if true, amount to a constitutional violation.' \" McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983) (quoting Coyle v. Hughs, 436 F.Supp. 591, 593 (W.D.Okla.1977)).\n. But even were we sufficiently persuaded by the similarities between the \"genuine issue\" summary judgment standard and the “reasonable jury\" directed verdict standard nonetheless to review the court's denial of Bender’s directed verdict motion, we would affirm the trial court’s decision. The well-established Boeing standard instructs us to \"consider all of the evidence ... in the light and with all reasonable inferences most favorable to the party opposed to the motion.\" Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc) (“If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting the motion[] is proper.”). Applying the substantive law of Louisiana, since Bender’s directed verdict motion applied only to his pendent state law claims, we are unable to say that a reasonable and fair-minded jury could not have made credibility determinations and drawn inferences favoring the officers, and returned a verdict clearing them of misconduct. See Kyle v. New Orleans, 353 So.2d 969, 972-73 (La. 1977) (articulating the elements of excessive force under Louisiana law); Marshall v. Circle K Corp., 715 F.Supp. 1341, 1343 (M.D.La.1989) (discussing Louisiana’s requirements for claims of intentional infliction of emotional distress) (citations omitted), aff'd mem., 896 F.2d 550 (5th Cir.1990).\n. Admittedly, such intent is often undiscernible, and the trier of fact must base its determination on relevant objective factors suggestive of intent. Our recent decision on remand in Hudson summarized some of the pertinent factors:\n1. the extent of the injury suffered;\n2. the need for the application of force;\n3. the relationship between the need and the amount of force used;\n4. the threat reasonably perceived by the responsible officials; and\n5. any efforts made to temper the severity of the forceful response.\nHudson v. McMillian, 962 F.2d 522, 523 (5th Cir.1992).\n. Whether Johnson has in fact been overturned remains unresolved. At first look, the abrogation of significant injury appears settled no matter what standard under § 1983 is being applied. See Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.1992) (stating in dictum that \"we can no longer require persons to prove 'significant injury,’ ... under section 1983”). But other recent Fifth Circuit cases, while recognizing the tension between Johnson and Hudson, have expressly refused to decide whether Johnson’s vitality has been impaired by Hudson in the Fourth Amendment context. See Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 and n. 7 (5th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993); King v. Chide, 974 F.2d 653, 657 n. 2 (5th Cir.1992). Thus, it remains an open question in this Circuit whether Johnson's significant injury requirement survives in situations involving arresting, as opposed to custodial, officers.", "type": "majority", "author": "JERRE S. WILLIAMS, Circuit Judge:"}, {"text": "EDITH H. JONES, Circuit Judge,\nconcurring in part and dissenting in part:\nJudge Williams’s opinion is persuasive and I readily concur in all but one aspect of its reasoning, with which I must cordially disagree. I dissent only from that portion of his opinion which remands Bender’s case for a new trial on whether the police officers used excessive force under federal constitutional standards. Although the district court heroically attempted to apply then-extant law on the constitutional standard, for excessive force against pretrial detainees, I agree that in light of Hudson and Valencia, supra, his instructions were wrong. Unlike my colleagues, I would hold this a harmless error. The court carefully instructed the jury that Louisiana law does not require a finding of significant injury as a predicate to state tort law liability of the officers, and the jury found against Bender. I do not agree that simply because the same instruction will now be given as to federal standards of recovery, a new jury could or should reach a different factual conclusion. The officers, I would contend, have been effectively exonerated by the jury’s refusal to find that — even without a significant injury requirement — Bender was the victim of excessive force. I therefore dissent from this portion of the panel opinion.", "type": "concurring-in-part-and-dissenting-in-part", "author": "EDITH H. JONES, Circuit Judge,"}], "attorneys": ["John E. Sherman, Houston, TX, for Raymond L. Bender.", "Ronald E. Corkern, Jr., Watson, Murchison, Crews, Arthur & Corkern, Natchitoches, LA, for James Brumley James McComic, Arnold “Jack” Staton & Joe R. Byles.", "A.M. Stroud, III, Blanchard, Walker, O’Quin & Roberts, Shreveport, LA, for David Remedies, Former Off. with City of Zwolle."], "corrections": "", "head_matter": "Raymond Louis BENDER, Plaintiff-Appellant, v. James A. BRUMLEY, et al., Defendants-Appellees.\nNo. 91-4884.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 24, 1993.\nJohn E. Sherman, Houston, TX, for Raymond L. Bender.\nRonald E. Corkern, Jr., Watson, Murchison, Crews, Arthur & Corkern, Natchitoches, LA, for James Brumley James McComic, Arnold “Jack” Staton & Joe R. Byles.\nA.M. Stroud, III, Blanchard, Walker, O’Quin & Roberts, Shreveport, LA, for David Remedies, Former Off. with City of Zwolle.\nBefore REYNALDO G. GARZA, JERRE S. WILLIAMS, and JONES, Circuit Judges."}	REYNALDO G. GARZA	JERRE S. WILLIAMS	JONES	1	2	1	1	0	0	1 F.3d 271	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Raymond Louis BENDER, Plaintiff-Appellant, v. James A. BRUMLEY, et al., Defendants-Appellees\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-24\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nON SUGGESTION FOR REHEARING EN BANC\nJERRE S. WILLIAMS, Circuit Judge:\nOn petition for rehearing filed by defendants-appellees, we withdraw our previous opinion dated July 12, 1993, and substitute the following opinion in its place:\nThis 42 U.S.C. § 1983 case asserts the police used excessive force in dealing with a pre-trial detainee. The critical, narrow issue before us is whether it was reversible error for the district court to instruct the jury that it must find that Raymond Bender suffered “significant injury” before it could return a verdict in his favor. We conclude that the jury was inescapably misguided by the instruction, which ran afoul of the Supreme Court’s recent decision in Hudson v. McMillian, — U.S. -, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), as explicated by this Circuit in Valencia v. Wiggins, 981 F.2d 1440, 1443-47 (5th Cir.), cert. denied, - U.S. -, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). Accordingly, we remand Bender’s federal excessive force claim to the district court for a new trial. We affirm the judgments entered against all his other claims.\nI. FACTS AND PRIOR PROCEEDINGS\nOn February 20, 1989, Raymond Louis Bender surrendered himself as a suspect in the killing of Deputy Jimmy Kinney of the Sabine Parish Sheriffs Department. Deputy Kinney had been killed by a single shotgun blast to the chest as he sat in his patrol car a few hours earlier.\nLater that day, Bender was taken from his cell at the Sabine Parish jail and escorted by Deputy Jack Staton to the interrogation room where they were met by Staton’s fellow defendants, Deputies James McComic and Joe Byles, and Officer David Remedies of the Zwolle Police Department. What transpired inside the interrogation room is vigorously disputed. The officers maintain that Bender grew erratic at various times during the questioning and began flailing his arms; a brief scuffle ensued, and the officers used minimal force to restrain him. The Defendants acknowledge that everyone in the room was upset, but they emphatically deny that unreasonable force was used or that a beating took place. The officers urge that Bender’s claims of physical abuse are belied by his failure to seek medical attention until May 1990, more than fifteen months following the alleged mistreatment, and then for an ailment wholly unrelated to the alleged beating.\nBender asserts, on the other hand, that upon his invocation of his Fifth Amendment right to remain silent, Deputy McComic threw hot coffee in his face to compel him to speak and hit him on the head, knocking him to the floor. While on the floor, Bender claims that Deputy Staton managed several blows and kicks before dragging him out of the room by his hair. Outside the room, Bender contends the beating continued — Sta-ton smacked him between the eyes, knocking him again to the floor, and Officer Remedies hit and kicked Bender’s head and rear. At this point, says Bender, McComic admonished Staton and Officer Remedies to stop striking Bender with closed fists because that might cause severe injuries. Staton then stomped on Bender’s back before he was taken back into the interrogation room where Deputy Byles saw Bender’s bloody nose and asked what had happened. Bender claims that McComic responded that Bender had fallen off the stairs, whereupon Byles called Bender a nigger and threatened to shoot him if he tried to run away.\nBender also maintains that Remedies made a statement that he saw Staton hit Bender, and emphasizes that a Louisiana state court judge testified at trial that when she, as an assistant district attorney for Sabine Parish, questioned Remedies about the incident, he told her that Staton struck Bender “once or twice.” Moreover, Bender insists, witnesses can verify that he “looked kind of roughed up” after his trip to the interrogation room. He claims that his nose bled profusely and felt as if it were broken, that he lost complete feeling in his legs, and that two officers had to hold him up as he returned to his cell. Additionally, he asserts that he and/or his family repeatedly requested medical attention, which was at all times refused. For their part, however, the Defendants presented witnesses who refuted Bender’s claims of threats and physical abuse.\nExactly one year from the date of Bender’s arrest for Deputy Kinney’s murder and the alleged beating, Bender filed suit against the four officers and Sheriff James Brumley asserting various causes of action arising under the U.S. Constitution, 42 U.S.C. §§ 1983 and 1985(3), and Louisiana state law. At trial’s end, the jury was asked a series of questions. Regarding Bender’s federal claims, the jury was asked whether McComic, Staton, and Remedies used excessive force and whether Sheriff Brumley withheld medical care. Regarding Bender’s pendent state law claims, the jury was asked whether any of the five defendants used excessive force as defined under Louisiana law or intentionally inflicted emotional distress. The jury rejected Bender’s plea for compensatory and punitive damages and returned a verdict completely exonerating the officers. Judgment was entered, and Bender timely appeals the dismissal. He claims three principal grounds. He argues that the district court erred in (1) denying his motions for summary judgment and directed verdict, (2) admitting potentially prejudicial testimony concerning Deputy Kinney’s murder, and (3) instructing the jury that proof of significant injury was necessary to support a valid § 1983 claim. We address these contentions in turn.\nII. DISCUSSION\nA. The Denial of Bender’s Motions\nPrior to trial, Bender filed a motion for summary judgment on his federal claims of excessive force and deprivation of medical attention. Noting that “[tjhe testimony of both camps is diametrically opposed,” the district court denied the motion, but partially granted Defendants’ Motion for Dismissal or Alternatively for Summary Judgment by dismissing all claims for verbal threats and harassment. At the close of the officers’ evidence at trial, Bender sought a directed verdict as to his pendent state law claims of excessive force and intentional infliction of emotional distress. This motion, too, was denied.\nOn appeal, Bender persists that the savage beating he endured was supported by “concrete proof’ and that the trial court’s refusal to grant his motions was error in the face of “the objective physical evidence.” Bender argues strenuously that a review of the entire record shows that,\nany reasonable jury could have found that Appellees in an act of vengeance maliciously and sadistically used excessive force against him in the guise of coercing a confession; Appellant suffered physical pain, emotional distress, and mental anguish; Appellant was denied medical treatment for a period of fifteen (15) months following the assault; and the actions of the Appellees violated both state and federal laws, (emphasis added)\nBender concedes, however, that conflicting evidence was presented from which contradictory inferences could have been drawn. The district court properly denied both motions.\nAs to the motion for summary judgment, the governing standard is well settled. Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also, e.g., Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the district court’s denial was proper, we review the court’s decision de novo and consider all of the record evidence and the inferences drawn therefrom in the light most favorable to the non-movant officers. Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988).\nIn its memorandum ruling denying the summary judgment, the district court carefully assessed Bender’s evidence and recognized that testimony in the record squarely contradicted his claims. Specifically, the court noted that Bender’s motion itself included as exhibits from the prior criminal prosecution the officers’ sworn denials that a beating or other mistreatment took place. The district court properly concluded that “[t]his testimony is more than sufficient to create a genuine issue of material fact which must be resolved by the jury.” This case obviously cannot be viewed as “so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).\nAs to the motion for a directed verdict, Bender fails to discuss in his appellate brief the court’s denial of his directed verdict motion. It is well settled that the failure to argue an issue posed for consideration is deemed an abandonment of that issue. E.g., Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir.1980) (per curiam); Fed.R.App.P. 28(a)(4). Accordingly, we do not review the district court’s directed verdict decision.\nWe also consider Bender’s related argument, listed separately in his brief, that the jury’s verdict “is against the law and the clear weight of the evidence.” This is essentially an argument contesting the sufficiency of the evidence, which we assess in the light most favorable to the jury’s verdict. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1139 (5th Cir.1991). At the conclusion of defendant’s case, Bender moved for a directed verdict on his state law claims only. A cursory review of the evidence rebutting Bender’s state law claims supports the district court’s decision to reject this motion. As to Bender’s federal claims, absent a motion for directed verdict in the district court our inquiry is restricted to “whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a ‘manifest miscarriage of justice.’ ” Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978) (emphasis in original). Measured against this arduous standard, the evidence submitted regarding Bender’s federal claims falls far short of requiring that the verdict be set aside on insufficiency of the evidence.\nB. The Admission of Evidence About the Murder\nBender next complains that the district court erred in allowing the jury to hear highly inflammatory and prejudicial testimony concerning the murder of Deputy Kinney. Specifically, the judge allowed witnesses to discuss in graphic detail the circumstances surrounding Kinney’s murder, for which Bender had been convicted about six months earlier. Although he concedes that Federal Rule of Evidence 609(a)(1) allows a witness to be impeached with evidence of prior convictions, Bender contends that the probative value of the evidence was slight and easily outweighed by the danger of unfair prejudice. Accordingly, he argues, it should have been excluded under Federal Rule of Evidence 403, which cautions against the admission of otherwise-relevant evidence likely to induce a purely emotional decision.\nThis argument also is without merit. Following its latest amendment in 1990, Federal Rule of Evidence 609(a)(1), previously a source of considerable judicial and academic dissatisfaction, now provides:\n(a) General rule. For the purpose of attacking the credibility of a witness,\n(1) evidence that the witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused[.]\nThis rule, as now amended, was applicable in this case. Nothing in the record indicates that the district court engaged in prejudice/probativity weighing under Rule 403. That omission is irrelevant in this case. Bender himself gave the first testimony about the underlying facts of his murder conviction. On direct examination, Bender discussed in great detail the facts surrounding the shooting of Deputy Kinney. He also discussed his grand jury testimony underlying the criminal proceedings. Bender’s later objections to questions concerning the murder were properly overruled. The danger of unfair prejudice was introduced not by the defendants, but by Bender himself. The district judge noted as much when Bender’s counsel broached the subject once more near the end of the trial:\nYou took your clients through their whole murder scene on direct examination and you have made it very difficult now to draw any line. You are now going back into this. You keep objecting when they talk about it but you bring it out when you want to.... [Bender] got up there and told the jury I did not murder the deputy and he went through the whole scene. Now, they’re obviously entitled to impeach him by showing that’s a lie.\nGiven that Bender opened the door to evidence regarding his underlying murder conviction, his “substantial rights” were not jeopardized. See Fed.R.Civ.P. 61 (defining harmless error as “any error or defect in the proceeding which does not affect the substantial rights of the parties”).\nC. The “Significant Injury” Requirement\nThe trial judge erroneously instructed the jury that Bender could prevail on his federal excessive force claim only if he proved a significant injury. We find that the mistaken instruction warrants reversal.\nWe afford trial judges wide latitude in fashioning jury instructions and ignore technical imperfections, see, e.g., Pierce v. Ramsey Winch Co., 753 F.2d 416, 425 (5th Cir.1985). But the trial court must “instruct the jurors, fully and correctly, on the applicable law of the case, and ... guide, direct, and assist them toward an intelligent understanding of the legal and factual issues involved in their search for truth.” 9 Wright & Miller, Federal PRACTICE and Procedure § 2556 (1971). Reversal is therefore appropriate whenever the charge “as a whole leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.” Kyzar v. Vale Do Ri Doce Navegacai, S.A., 464 F.2d 285, 290 (5th Cir.1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1367, 35 L.Ed.2d 591 (1973); see also, e.g., McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). Assessing whether the jury was properly guided, however, is only one-half of the inquiry. Even though error may have occurred, “[w]e will not reverse ‘if we find, based upon the record, that the challenged instruction could not have affected the outcome of the case.’” Middleton v. Harris Press and Shear, Inc., 796 F.2d 747, 749 (5th Cir.1986) (quoting Bass v. United States Dept. of Agriculture, 737 F.2d 1408, 1414 (5th Cir.1984)).\nWe first address a threshold, procedural matter. Defendants argue strenuously that Bender failed to preserve this issue for appeal because he did not lodge oral on-the-record objections to the jury charge when invited to do so by the trial court. Fed.R.Civ.P. 51. This is immaterial, however, since Bender had earlier filed written objections to the proffered jury instructions. We recognize that error is preserved for appeal so long as the complaining party states his assertion to the trial court prior to the time when the court invites on-the-record objections to the charge. E.g., Pierce, 753 F.2d at 424; Lang v. Texas & P. Ry., 624 F.2d 1275, 1279 (5th Cir.1980) (“the failure to object may be disregarded if the party’s position has previously been made clear to the court and it is plain that a further objection would have been unavailing”). The lack of another in-court objection echoing Bender’s earlier written protest, although useful as are all on-the-record occurrences, does not defeat his ability to challenge the instructions on appeal.\nThe officers voice an alternative argument, that even if we recognize Bender’s earlier written objections as timely, they are nonetheless defective because they fail to satisfy Rule 51’s demand for specificity. We conclude that Bender’s written objections were sufficiently explicit. The instructions proffered by the trial court, as set out below, were gleaned almost verbatim from the factors set forth in Huguet v. Barnett, 900 F.2d 838, 841 (5th Cir.1990). Huguet is an Eighth Amendment excessive force case importing the significant injury requirement from Johnson v. Morel, 876 F.2d 477, 480 (5th Cir.1989) (en banc) (per curiam), a Fourth Amendment excessive force case holding that trivial harms do not rise to constitutional import.\nBender’s written objections clearly challenge the use of Johnson’s Fourth Amendment standard:\nPlaintiff object[s] to Jury Charge No. 3 for the reason that Johnson [v]. Morel ... was not the clearly established law in the Fifth Circuit on February 20, 1989, hence the test enunciated in Johnson is not applicable to the facts in this case.\n❖ * X 'Jr- * %\nPlaintiff objeet[s] to Jury Charge No. 5 for the reason that Johnson [v]. Morel ... is not the law of the case. Plaintiffs civil rights were violated after his arrest and [after he was] locked in a jail cell. None of the officers involved in the arrest of Plaintiff participated in the beating in the interrogation room. Plaintiffs Fourteenth Amendment due process rights to be free from punishment were violated by Staton, McComic, Byles and Remedies.\nWe now turn to the critical issue. Was it correct to instruct the jury that proof of significant injury was necessary to support Bender’s federal claim? If not, was the error harmless? Two recent cases control our decision.. The first is the Supreme Court’s decision in Hudson v. McMillian, — U.S. -, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In Hudson, the Supreme Court abandoned its prior insistence on an objectively serious deprivation to hold that a prisoner need not demonstrate significant injury where the force used was malicious and wanton. It reversed a decision of this Court that had applied our established precedent emphasizing the requirement of significant injury in excessive force cases. The Supreme Court held that “the core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at —, 112 S.Ct. at 999 (citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 1084-85, 89 L.Ed.2d 251 (1986)).\nSubsequently, in Valencia v. Wiggins, 981 F.2d at 1440, 1446 (5th Cir.1993), cert. denied, — U.S. -, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993), we held that it was obviously proper to extend the analysis announced in Hudson and Whitley to pre-trial detainees under the due process clause of the Fourteenth Amendment. See also Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir.1993) (per curiam). In short, when determining what standard applies to excessive force claims brought by pre-trial detainees, the proper due process inquiry does not probe the extent of the injury sustained, although that is one factor that can evince wantonness. Rather, it probes the subjective intent of the detaining officers.\nThe timing of this case adds an unusual facet; it was tried while Hudson was pending before the Supreme Court. Anticipating that the Supreme Court might abrogate our Circuit’s significant injury requirement, the trial court attempted to word the jury interrogatories in such a manner as to avoid the effect of a reversal. Focusing on the federal claims, the court first asked, “Do you find that the following defendants used excessive force against Raymond Bender which was objectively unreasonable?” Then, the court asked separately whether Bender “has proven a significant injury resulting directly from excessive force[J” The jury answered “no” to both inquiries. The jury was plainly required to find significant injury before answering “yes” to the second question. Whether the same can be said of the first question turns on how the jury was instructed.\nIt is clear that the jury was specifically instructed to deny Bender’s federal claim unless he proved that he sustained a significant injury. In instructing the jury about these claims, the trial judge quoted almost verbatim from Johnson, now arguably overruled, and stated repeatedly that significant injury was a vital, necessary component of Bender’s case:\nIn order to prove that the defendants used excessive force, Mr. Bender must prove by a preponderance of the evidence:\n1. a significant injury, which\n2. resulted directly and only from the use of force that was clearly excessive to the need; the excessiveness of which was\n3. objectively unreasonable.\nIf Bender fails to prove any of these elements, you must find for the defendants. These three elements are objective focusing on the injury, the amount of force used, and the amount of force necessary.\nTo determine whether a “significant injury” has been inflicted, you must consider only the injuries resulting directly from the constitutional wrong. There can be a constitutional violation only if a significant injury resulted from the officer’s use of excessive force.\nDefendants counter on multiple fronts. First, they argue that even if we determine that the court issued erroneous instructions, “such instruction was harmless error as the jury specifically found that none of the defendants used excessive force which was objectively unreasonable.” The defendants thus maintain that the precise language of the special verdict form “cured” any defect in the instructions and provides a basis to sustain the verdict even though Hudson abolished the significant injury requirement. This argument must fail. As illustrated above, before even reaching the question of whether the officers! actions were objectively unreasonable, the jury was first required to agree that Bender had suffered a significant injury: “There can be a constitutional violation only if a significant injury resulted from the officer’s use of excessive force.”\nSecond, the officers point out that when the trial judge advised the jury concerning Bender’s excessive force claim arising under state law, he specifically stated that significant injury was not a necessary element under Louisiana law. Thus, since the jury rejected Bender’s state claim as well, the officers insist it would be futile to try the entire case again, particularly the state law component. We partly agree. Bender does not contest the accuracy of the instructions regarding his excessive force claim arising under state law. Recognizing “the almost invariable assumption of the law that jurors follow their instructions,” Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987), we hold that the jury’s decision exonerating the officers under state law should be affirmed. Affirming the state component, however, is an unsound basis upon which to deny automatically Bender’s federal claim, where the error occurred. Although the relevant objective factors are similar under both schemes, compare, e.g., Kyle v. New Orleans, 353 So.2d 969, 973 (La.1977), with Hudson, 962 F.2d at 523, they are not so identical for us to conclude that a decision absolving the officers under Louisiana law mandates a parallel finding of “no excessive force” under § 1983. Simply put, the differences — though admittedly slight — extend beyond whether “significant injury” is used as a predicate to liability. Although Judge Jones’s cordial dissent is persuasive, we cannot adopt her view that the erroneous instruction was harmless error.\nThe Supreme Court has advised that “if one cannot say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that [Bender’s] substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). Our review of the record evidence, particularly in light of the subtle— yet conceivably important — differences between the two excessive force standards, does not convince us that the jury’s decision was unaffected by the challenged instruction. Bass, 737 F.2d at 1414. Because we are left in “grave doubt” whether the trial court’s erroneous instruction exerted “substantial influence” over the outcome of the case, the jury’s decision on Bender’s § 1983 claims cannot stand. Id.\nThe case must be retried to submit properly the question: “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, — U.S. at -, 112 S.Ct. at 999; see Wiggins, 981 F.2d at 1446-47, 1449.\nIII. CONCLUSION\nThe judgments entered on Bender’s federal excessive force claims are REVERSED, and those causes of action are REMANDED to the district court for a new trial. Our decision today does not affect the denial of Bender’s federal claim of deprivation of medical treatment or his various state claims. Upon careful examination of the record evidence, the judgments entered on those issues are AFFIRMED.\nNo member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.\nAFFIRMED IN PART. REVERSED AND REMANDED IN PART.\n. Bender was subsequently convicted of first degree murder and sentenced to life imprisonment without the possibility of probation, parole, or pardon.\n. Later the same day, Officer Remedies telephoned the then-assistant district attorney to modify his earlier statement. Remedies stated that a scuffle occurred, but he was not certain that Staton had struck Bender.\n. The issue of qualified immunity, which the district court elected to carry with the case to trial, is not before us on appeal.\n.Mere allegations of verbal abuse do not present actionable claims under § 1983. \"[A]s a rule, ‘mere threatening language and gestures of a custodial officer do not, even if true, amount to a constitutional violation.' \" McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983) (quoting Coyle v. Hughs, 436 F.Supp. 591, 593 (W.D.Okla.1977)).\n. But even were we sufficiently persuaded by the similarities between the \"genuine issue\" summary judgment standard and the “reasonable jury\" directed verdict standard nonetheless to review the court's denial of Bender’s directed verdict motion, we would affirm the trial court’s decision. The well-established Boeing standard instructs us to \"consider all of the evidence ... in the light and with all reasonable inferences most favorable to the party opposed to the motion.\" Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc) (“If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting the motion[] is proper.”). Applying the substantive law of Louisiana, since Bender’s directed verdict motion applied only to his pendent state law claims, we are unable to say that a reasonable and fair-minded jury could not have made credibility determinations and drawn inferences favoring the officers, and returned a verdict clearing them of misconduct. See Kyle v. New Orleans, 353 So.2d 969, 972-73 (La. 1977) (articulating the elements of excessive force under Louisiana law); Marshall v. Circle K Corp., 715 F.Supp. 1341, 1343 (M.D.La.1989) (discussing Louisiana’s requirements for claims of intentional infliction of emotional distress) (citations omitted), aff'd mem., 896 F.2d 550 (5th Cir.1990).\n. Admittedly, such intent is often undiscernible, and the trier of fact must base its determination on relevant objective factors suggestive of intent. Our recent decision on remand in Hudson summarized some of the pertinent factors:\n1. the extent of the injury suffered;\n2. the need for the application of force;\n3. the relationship between the need and the amount of force used;\n4. the threat reasonably perceived by the responsible officials; and\n5. any efforts made to temper the severity of the forceful response.\nHudson v. McMillian, 962 F.2d 522, 523 (5th Cir.1992).\n. Whether Johnson has in fact been overturned remains unresolved. At first look, the abrogation of significant injury appears settled no matter what standard under § 1983 is being applied. See Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.1992) (stating in dictum that \"we can no longer require persons to prove 'significant injury,’ ... under section 1983”). But other recent Fifth Circuit cases, while recognizing the tension between Johnson and Hudson, have expressly refused to decide whether Johnson’s vitality has been impaired by Hudson in the Fourth Amendment context. See Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 and n. 7 (5th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993); King v. Chide, 974 F.2d 653, 657 n. 2 (5th Cir.1992). Thus, it remains an open question in this Circuit whether Johnson's significant injury requirement survives in situations involving arresting, as opposed to custodial, officers.\n[END_CASE]", "role": "user" } ]
10,510,141	Mack Arthur KING, Petitioner-Appellant, v. S.W. PUCKETT, Superintendent, Mississippi State Penitentiary, and Mike Moore, Attorney General, State of Mississippi, Respondents-Appellees	King v. Puckett	1993-08-25	No. 91-1940	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before JONES, DUHÉ, and WIENER, Circuit Judges."], "parties": ["Mack Arthur KING, Petitioner-Appellant, v. S.W. PUCKETT, Superintendent, Mississippi State Penitentiary, and Mike Moore, Attorney General, State of Mississippi, Respondents-Appellees."], "opinions": [{"text": "WIENER, Circuit Judge.\nIn this petition for a writ of habeas corpus, Petitioner-Appellant Mack Arthur King appeals the district court’s denial of his petition, challenging, inter alia, the constitutionality of the jury instruction, which informed the jury — without limiting instruction — that the “especially heinous, atrocious or cruel” nature of the murder was an aggravating factor for consideration in determining whether the death penalty should be imposed. Based on subsequent jurisprudential developments which clearly state that such an unlimited instruction is unconstitutional and may be challenged notwithstanding a defendant’s failure to object at trial or on direct appeal, we remand to the district court with directions to issue the writ of habeas corpus within a reasonable time unless the state initiates appropriate proceedings.\nI\nFACTS AND PROCEEDINGS\nIn the morning of August 3rd, 1980, Mrs. Lelia Patterson, an 84 year old widow, was discovered dead in her bathtub. An autopsy revealed that Mrs. Patterson had been struck on the head, strangled, and drowned. The pathologist could not determine the precise sequence of these events, and he testified that death could be attributed either to the blow, the strangulation, or the drowning. Finger and palm prints found on file folders located in the house led the police to suspect King.\nA search of King’s residence uncovered articles belonging to Mrs. Patterson. In a subsequent search, the police discovered blood-spattered pants, which, according to King’s girlfriend, King was wearing on August 2nd and 3rd and which he washed himself, refusing to let his girlfriend wash them as was customary. Testing disclosed that the blood on the pants was human, although the blood type was indeterminable.\nIn his first statement to the police, King denied that he had been at the house on the day of the murder. After police confronted him with the stolen items, he admitted that he had burglarized the home on August 2nd. He denied, however, any involvement in the murder. Rather, he stated that he was accompanied by Willie Porter, his uncle, who remained outside while King burglarized the home. King claimed that, as he was leaving, he saw Porter, who had been drinking, enter Mrs. Patterson’s home.\nKing was charged with capital murder, and Joe 0. Sams, Jr., who had represented King in an earlier burglary charge, was appointed to represent him. Sams was assisted by a recent law school graduate Thomas L. Kesler and a legal intern, Tammy Lynn Woolbright. Kesler interviewed King on two occasions prior to trial. He determined that King was “slow” and “dull-witted.” Based on this determination, as well as Sams’ prior experience with King, Sams filed a motion with the trial court seeking a mental examination for King. The court granted the motion, committing King for a mental examination to determine: (1) his level of intelligence; (2) his ability to comprehend the gravity of the charges; (3) his ability to assist in his defense; (4) the standard of conduct that King would likely exhibit during trial; and (5) his competency to stand trial.\nThe state hospital examined Kang and the staff announced in a one-paragraph report “that the patient was without psychosis, competent to stand trial and responsible for his actions at the time of the alleged crime.” No finding on the other points was made, and none was requested either by King’s attorneys or the court.\nDespite King’s protestations of innocence, he was convicted of capital murder. During the trial, his attorneys did not present any witnesses, relying solely on the cross-examination of the state’s witnesses. King did not testify. On appeal, his attorneys emphasize that King, “then a 21-year old black man, was tried for the murder of a white woman before an all-white jury, a white judge, and a white prosecutor.”\nAfter King’s conviction, the court instructed the jury to weigh the aggravating factors against the mitigating factors presented in determining whether the death penalty should be imposed. The jury considered two aggravating factors: that the murder was committed in the course of a felony and that the murder was committed in an “especially heinous, atrocious or cruel manner.” No mitigating factors were presented. Within a short period, the jury returned a sentence of death.\nKing’s conviction and sentence were affirmed by the Mississippi Supreme Court. Likewise, his motion for post-conviction relief, then known as a petition for writ of error coram nobis, was denied without prejudice. The supreme court ruled that certain of his claims were procedurally barred because they had not been raised on direct appeal. Included among these claims was a constitutional challenge to the “especially heinous, atrocious or cruel” aggravating factor.\nKing was allowed, however, to refile his request regarding his claim of ineffective assistance of counsel. Acting on this second petition, the supreme court ordered an evi-dentiary hearing for the ineffective assistance of counsel claim. Attorney Sams explained that his decisions not to present character witnesses and not to follow up on evidence of King’s diminished mental capacity were tactical. The state circuit court conducted the hearing and concluded that “counsel’s representation during the sentencing phase of the trial was competent.”\nKing next sought relief in federal district court on a petition for a writ of habeas corpus. The district court reviewed the ineffective assistance of counsel claim, concluding that the alleged deficiencies were tactical decisions. Important for this appeal, however, the district court determined, as did the Mississippi Supreme Court, that most of King’s claims were procedurally barred because he had not raised them at trial or on appeal.\nII\nANALYSIS\nA. Constitutional Challenge\nOur review of King’s constitutional challenge is guided by this court’s recent decisions in Wiley v. Puckett and Smith v. Black, In Wiley, we recognized the unconstitutionality of the “especially heinous, atrocious or cruel” aggravating circumstances when given without a limiting instruction, and addressed the issue whether the state court had cured the constitutional infirmity. Again based on Supreme Court precedent, we set forth the manner in which “an appellate court could salvage a death sentence.” The appellate court could (1) “reweigh” the mitigating and aggravating factors or (2) conduct a harmless error analysis by asking whether, beyond a reasonable doubt, the death sentence would have been imposed had the aggravating factor been properly defined in the jury instruction. In Wiley, however, we concluded that the state supreme court, by applying a narrowing construction to the “especially heinous” circumstance, had failed to do either.\nSubsequently, in Smith, we addressed the question whether Mississippi could raise a procedural bar to a constitutional challenge to the “especially heinous” instruction based on the petitioner’s failure to object at trial and to preserve the issue on appeal. We ruled that Mississippi could not rely on either the contemporaneous objection bar or the direct appeal bar as neither had been applied to cases consistently. Consequently, we relied on the venerable maxim that “[a] state procedural rule will not function as an adequate and independent state ground supporting the judgment if it is not ‘strictly or regularly followed.’ ”\nThe application of Wiley and .Smith to the instant case dictates a remand to the district court with directions to issue the writ of habeas corpus unless the State of Mississippi initiates appropriate proceedings in a state court within a reasonable time after the issuance of our mandate. The “especially heinous” aggravating circumstance instruction is unconstitutionally broad when given without a limiting instruction, as was the case here. Moreover, the state court cannot bar King’s claim by virtue of his failure to object at trial or raise the issue on appeal. As the supreme court applied such a bar, it is clear that it neither reweighed the aggravating and mitigating factors nor conducted a harmless error analysis. Consequently, it has not cured the constitutional infirmity of the “especially heinous” instruction.\nGiven the state’s options, it is conceivable that King will not receive a new sentencing procedure; therefore, the errors he alleges in that proceeding would continue to affect his sentence. Consequently, we review the remaining issues raised by King, some of which the district court considered despite the procedural bar. A review of the briefs and records convinces us that we can add little to the thorough and well-reasoned opinion of the district court. Accordingly, we deal only briefly with each issue.\nB. Ineffective Assistance of Counsel\nKing raises two related ineffective assistance issues: (1) he received ineffective assistance of counsel because his trial counsel failed to investigate and present readily available mitigating evidence of character and low intelligence at the sentencing phase; and (2) whether the federal district court should have conducted an evidentiary hearing when considering King’s ineffective assistance claim based on the state court’s failure to make specific factual and credibility determinations. We address each in turn.\n1. Mitigating Evidence\nAs the district court notes, failure to proffer mitigating evidence at the sentencing phase is not per se ineffective assistance of counsel, and we have “often upheld decisions not to put on mitigating evidence wh[en] the decision resulted from a strategic choice.” Under Strickland v. Washington, the important inquiry is whether the decision not to offer the evidence was reasonable in all the circumstances, and, if an error was committed, that it affected the outcome of the trial.\nWe agree with the district court that the superficial investigation and decision not to offer witnesses was reasonable under the circumstances. Sams, who had represented King in a prior burglary charge, knew from previous investigation that King’s reputation in the community was exceedingly poor. Moreover, Sams knew that Porter, the man King accused of the crime, was also his uncle. He assumed, reasonably, that this would cause tension within the family. Even if family members had been presented to testify that King had never been violent before and that Porter was a bad influence, this testimony would have opened the door to rebuttal testimony regarding King’s poor reputation.\nWe are more troubled, however, by Sams’ failure to follow up on his own motion seeking an evaluation of King’s mental capacity. Indeed, Sams himself doubted King’s intellectual capacity, yet when the state hospital failed to provide the information, expressly directed by the court’s order, Sams did nothing. According to King, the evidence of. his diminished mental capacity caused him to have difficulty in controlling his instinctive responses, to misperceive events, and to react in relatively unpredictable ways. This, he insists, is mitigating evidence.\nAt the coram nobis hearing, Sams justified his failure to seek additional information regarding King’s intellectual capacity on two grounds: (1) he did not think that King was significantly impaired; and (2) historically jurors in the county did not excuse a person because of diminished mental capacity. But, Sams’ own request for the evaluation belies these statements. If, as Sams testified, King’s lack of intelligence would have no effect on his trial, why did Sams request the evaluation?\nNotwithstanding the apparent contradiction between Sams’ request for a mental evaluation and his failure to follow up on it, we need not decide whether this omission was professionally unreasonable under Strickland, for in any event counsel’s ineffective assistance must also affect the outcome of the trial or sentencing. In the instant case, we cannot conclude that the failure to offer mitigating evidence in the form of King’s diminished mental capacity affected the outcome of his sentencing. Even with such mitigating factors, the jury had two aggravating factors weighing in favor of the death penalty. Although we now know that, absent a limiting instruction, the “especially heinous” aggravating circumstance instruction is unconstitutionally overbroad, the question under Strickland’s prejudice prong is whether the ineffective actions of counsel affected the outcome of the trial. The answer here is no.\nYet, if we were to eliminate the “especially heinous” circumstance and reweigh the factors, as the Mississippi Supreme Court may choose to do — -and as would (or could) be done in a new sentencing trial — then King would have a more compelling argument that his counsel’s failure to present mitigating evidence at the sentencing phase affected the outcome of his sentence. Although Mississippi is not constitutionally required to conduct a new sentencing hearing, we suggest that the option of holding such a hearing be given serious consideration on remand in the instant case.\n2. Evidentiary Hearing\nKing also claims that the district court erred in failing to hold an evidentiary hearing on his claim of ineffective assistance, as the state court failed in its coram nobis proceeding to make any relevant factual determinations. This claim is without merit. It is well established that no hearing is required when the habeas petitioner fails to allege the type of prejudice necessary to satisfy that prong of Strickland, Moreover, we will not remand a case for an evidentiary hearing when the district court, as it did here, has made a full review and search of the complete record and no additional evidentiary development is necessary on an issue.\nC. Jury Instruction\nIn addition to his successful claim regarding the unconstitutionality of the “especially heinous” instruction, King argues that the court erred in refusing to instruct the jury that, even if the aggravating factors outweighed the mitigating factors, the jury could impose a life sentence. Although King concedes, as he must, that such an instruction is not required and failure to give the instruction is not reversible error, he nonetheless challenges the instruction on equal protection grounds. His argument on this point is vague, stating simply that “[o]ther capital defendants convicted in Mississippi have been afforded the benefit of the ‘life option’ instruction or its equivalent.... King was not.”\nKing, however, misapprehends the decisions of the Mississippi Supreme Court, which has consistently stated that no such instruction is required. Thus, refusal to grant such an instruction is not reversible error. Moreover, the court views the granting of a “life option” instruction as harmless error because it favors the defendant. Consequently, King is not entitled to such an instruction (which he did not request), and the court’s failure to inform the jury of the “life option” was neither reversible error nor an equal protection violation.\nD.Prosecutorial Misconduct\nKing insists that the prosecutor’s closing argument during the sentencing phase was replete with improper and inflammatory remarks. He cites the following four statements:\n1. And I deal with criminal cases every week, ladies and gentlemen, and I might submit to you that I don’t ask for the death penalty in every case because they may not warrant it, but this case I’m asking for the death penalty because it was senseless.\n2. Can you imagine what Mrs. Patterson was thinking when that man had her around the neck and she was screaming, “help,” and I’m talking for Mrs. Patterson now, and I am asking you to help Mrs. Patterson, and I will ask you ladies and gentlemen to write down as the second aggravating circumstances ... “the crime was committed in an especially heinous, cruel and atrocious manner.”\n3. The second reason [for imposing the death sentence], I don’t know if it is not more important than the first. It’s a deterrent to others to commit the same kind of crime. It will tell you, ladies and gentlemen, and you’re going to speak out to all the potential murderers and other citizens and other criminals in this country. [T]he death penalty is a deterrent to other people, and it will tell those people that if you commit the crime that you could be subjected to the death penalty.... So we got two things here, ... and I want this country to know that we’re not going to tolerate.\n4. [T]he black minister, you remember I asked him, “you’re a minister, do you have any religious beliefs against the death penalty?” And he said, “can I explain it?” He says, “I looked in the book and it says, ‘he who kills shall be killed.’ ”\nKing argues, that taken together, these improper comments were “calculated to incite an unreasonable and retaliatory sentencing decision, rather than a decision based on a reasoned moral response to the evidence” and denied King a fundamentally fair sentencing proceeding.\nWe again agree with the district court’s conclusion that these statements, viewed as a whole, did not render the sentencing fundamentally unfair. Rather, the statements were not persistent nor pronounced and do not reach the level of error required for reversal. Moreover, the jury had been informed that it was the sole judge of the facts and that arguments, statements, and remarks of counsel having no basis in the evidence should be disregarded.\nE. Inadequate Appellate Review\nKing argues that the Mississippi Supreme Court was unable to review his appeal meaningfully due to the absence of a complete transcript and a complete report from the trial court, as required by law. We adopt the district court’s discussion on this point and conclude that no error of constitutional magnitude occurred.\nF. Racial Discrimination\nFinally, King raises a claim that the Mississippi death penalty is applied in a racially discriminatory manner. In an effort to support his claim, King presents statistical evidence discussing the increased likelihood that a black male accused of killing a white victim will receive the death penalty. He also emphasizes the prosecutor’s remarks about the “black minister” during closing arguments (which King claims is a thinly-veiled racial remark) and the prosecutors’ use of peremptory challenges to remove black jurors from the venire.\nThe district court held that this evidence was insufficient to establish racial discrimination in sentencing. First, the court noted that in McCleskey v. Kemp the Supreme Court had held statistical evidence like King’s insufficient. Second, the court ruled that King’s other evidence was “an opportunity to repeat other grounds raised in the petition.” King argues that the evidence concerning prosecutorial conduct during his sentencing proceeding is sufficient under McCleskey to prove that the decisionmakers in his case acted with discriminatory purpose. We disagree.\nFirst, we cannot agree that the prosecutor’s reference to the “black minister” on venire is a racial remark. If anything, it is an attempted religious endorsement of the death penalty. Second, King’s allegations concerning the jury makeup are vague and inconclusive. Based on the record before it, the district court found that there was no practice of excluding black jurors under the standard of Swain v. Alabama, the case applicable at the time of King’s sentencing. The district court found, and we agree, that King’s allegations fall far short of demonstrating racial discrimination in the Mississippi sentencing scheme.\nIll\nCONCLUSION\nIn his petition for habeas corpus, King alleges several errors in his sentencing proceeding. Although we conclude that most of his allegations are without merit, we hold that the “especially heinous” aggravating factor, given without limiting instructions, was unconstitutional. Consequently, we remand to the district court to issue the habeas writ unless the state initiates the appropriate proceedings. While acknowledging that we are without authority to order a new sentencing hearing, we recommend that the holding of such a proceeding be given serious consideration in this case, given the failure of King’s counsel to pursue potentially mitigating evidence. All other claims raised by King, however, are without merit.\nREVERSED and REMANDED.\n. King v. State, 421 So.2d 1009 (Miss.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983).\n. King v. Thigpen, 441 So.2d 1365 (Miss.1983).\n. 969 F.2d 86 (5th Cir.1992).\n. 970 F.2d 1383 (5th Cir.1992).\n. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).\n. See Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).\n. Wiley, 969 F.2d at 91.\n. Smith, 970 F.2d at 1386 (Quoting Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982) (citation omitted)).\n. Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir.1988).\n. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).\n. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).\n. Wiley, 969 F.2d at 94.\n. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).\n. Williams v. Blackburn, 649 F.2d 1019 (5th Cir.1981).\n. Wiley v. State, 484 So.2d 339 (Miss.), cert. denied, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986).\n. Hansen v. State, 592 So.2d 114, 150 (Miss. 1991).\n. Lesko v. Lehman, 925 F.2d 1527 (3d Cir.) cert. denied, -U.S. -, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991).\n. 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).\n. 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).", "type": "majority", "author": "WIENER, Circuit Judge."}], "attorneys": ["James E. Rocap, III, David S. Cohen, David R. Fontaine, Scott L. Nelson, Wilbur O. Colom, Colom, Mitchell, Colom, Columbus, MS, Miller, Cassidy, Larroca & Lewin, Washington, DC, for petitioner-appellant.", "Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, AG, Jackson, MS, for respondents-appellees."], "corrections": "", "head_matter": "Mack Arthur KING, Petitioner-Appellant, v. S.W. PUCKETT, Superintendent, Mississippi State Penitentiary, and Mike Moore, Attorney General, State of Mississippi, Respondents-Appellees.\nNo. 91-1940.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 25, 1993.\nJames E. Rocap, III, David S. Cohen, David R. Fontaine, Scott L. Nelson, Wilbur O. Colom, Colom, Mitchell, Colom, Columbus, MS, Miller, Cassidy, Larroca & Lewin, Washington, DC, for petitioner-appellant.\nMarvin L. White, Jr., Asst. Atty. Gen., Mike Moore, AG, Jackson, MS, for respondents-appellees.\nBefore JONES, DUHÉ, and WIENER, Circuit Judges."}	JONES	DUHÉ	WIENER	1	1	1	0	0	0	1 F.3d 280	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Mack Arthur KING, Petitioner-Appellant, v. S.W. PUCKETT, Superintendent, Mississippi State Penitentiary, and Mike Moore, Attorney General, State of Mississippi, Respondents-Appellees\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-25\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nWIENER, Circuit Judge.\nIn this petition for a writ of habeas corpus, Petitioner-Appellant Mack Arthur King appeals the district court’s denial of his petition, challenging, inter alia, the constitutionality of the jury instruction, which informed the jury — without limiting instruction — that the “especially heinous, atrocious or cruel” nature of the murder was an aggravating factor for consideration in determining whether the death penalty should be imposed. Based on subsequent jurisprudential developments which clearly state that such an unlimited instruction is unconstitutional and may be challenged notwithstanding a defendant’s failure to object at trial or on direct appeal, we remand to the district court with directions to issue the writ of habeas corpus within a reasonable time unless the state initiates appropriate proceedings.\nI\nFACTS AND PROCEEDINGS\nIn the morning of August 3rd, 1980, Mrs. Lelia Patterson, an 84 year old widow, was discovered dead in her bathtub. An autopsy revealed that Mrs. Patterson had been struck on the head, strangled, and drowned. The pathologist could not determine the precise sequence of these events, and he testified that death could be attributed either to the blow, the strangulation, or the drowning. Finger and palm prints found on file folders located in the house led the police to suspect King.\nA search of King’s residence uncovered articles belonging to Mrs. Patterson. In a subsequent search, the police discovered blood-spattered pants, which, according to King’s girlfriend, King was wearing on August 2nd and 3rd and which he washed himself, refusing to let his girlfriend wash them as was customary. Testing disclosed that the blood on the pants was human, although the blood type was indeterminable.\nIn his first statement to the police, King denied that he had been at the house on the day of the murder. After police confronted him with the stolen items, he admitted that he had burglarized the home on August 2nd. He denied, however, any involvement in the murder. Rather, he stated that he was accompanied by Willie Porter, his uncle, who remained outside while King burglarized the home. King claimed that, as he was leaving, he saw Porter, who had been drinking, enter Mrs. Patterson’s home.\nKing was charged with capital murder, and Joe 0. Sams, Jr., who had represented King in an earlier burglary charge, was appointed to represent him. Sams was assisted by a recent law school graduate Thomas L. Kesler and a legal intern, Tammy Lynn Woolbright. Kesler interviewed King on two occasions prior to trial. He determined that King was “slow” and “dull-witted.” Based on this determination, as well as Sams’ prior experience with King, Sams filed a motion with the trial court seeking a mental examination for King. The court granted the motion, committing King for a mental examination to determine: (1) his level of intelligence; (2) his ability to comprehend the gravity of the charges; (3) his ability to assist in his defense; (4) the standard of conduct that King would likely exhibit during trial; and (5) his competency to stand trial.\nThe state hospital examined Kang and the staff announced in a one-paragraph report “that the patient was without psychosis, competent to stand trial and responsible for his actions at the time of the alleged crime.” No finding on the other points was made, and none was requested either by King’s attorneys or the court.\nDespite King’s protestations of innocence, he was convicted of capital murder. During the trial, his attorneys did not present any witnesses, relying solely on the cross-examination of the state’s witnesses. King did not testify. On appeal, his attorneys emphasize that King, “then a 21-year old black man, was tried for the murder of a white woman before an all-white jury, a white judge, and a white prosecutor.”\nAfter King’s conviction, the court instructed the jury to weigh the aggravating factors against the mitigating factors presented in determining whether the death penalty should be imposed. The jury considered two aggravating factors: that the murder was committed in the course of a felony and that the murder was committed in an “especially heinous, atrocious or cruel manner.” No mitigating factors were presented. Within a short period, the jury returned a sentence of death.\nKing’s conviction and sentence were affirmed by the Mississippi Supreme Court. Likewise, his motion for post-conviction relief, then known as a petition for writ of error coram nobis, was denied without prejudice. The supreme court ruled that certain of his claims were procedurally barred because they had not been raised on direct appeal. Included among these claims was a constitutional challenge to the “especially heinous, atrocious or cruel” aggravating factor.\nKing was allowed, however, to refile his request regarding his claim of ineffective assistance of counsel. Acting on this second petition, the supreme court ordered an evi-dentiary hearing for the ineffective assistance of counsel claim. Attorney Sams explained that his decisions not to present character witnesses and not to follow up on evidence of King’s diminished mental capacity were tactical. The state circuit court conducted the hearing and concluded that “counsel’s representation during the sentencing phase of the trial was competent.”\nKing next sought relief in federal district court on a petition for a writ of habeas corpus. The district court reviewed the ineffective assistance of counsel claim, concluding that the alleged deficiencies were tactical decisions. Important for this appeal, however, the district court determined, as did the Mississippi Supreme Court, that most of King’s claims were procedurally barred because he had not raised them at trial or on appeal.\nII\nANALYSIS\nA. Constitutional Challenge\nOur review of King’s constitutional challenge is guided by this court’s recent decisions in Wiley v. Puckett and Smith v. Black, In Wiley, we recognized the unconstitutionality of the “especially heinous, atrocious or cruel” aggravating circumstances when given without a limiting instruction, and addressed the issue whether the state court had cured the constitutional infirmity. Again based on Supreme Court precedent, we set forth the manner in which “an appellate court could salvage a death sentence.” The appellate court could (1) “reweigh” the mitigating and aggravating factors or (2) conduct a harmless error analysis by asking whether, beyond a reasonable doubt, the death sentence would have been imposed had the aggravating factor been properly defined in the jury instruction. In Wiley, however, we concluded that the state supreme court, by applying a narrowing construction to the “especially heinous” circumstance, had failed to do either.\nSubsequently, in Smith, we addressed the question whether Mississippi could raise a procedural bar to a constitutional challenge to the “especially heinous” instruction based on the petitioner’s failure to object at trial and to preserve the issue on appeal. We ruled that Mississippi could not rely on either the contemporaneous objection bar or the direct appeal bar as neither had been applied to cases consistently. Consequently, we relied on the venerable maxim that “[a] state procedural rule will not function as an adequate and independent state ground supporting the judgment if it is not ‘strictly or regularly followed.’ ”\nThe application of Wiley and .Smith to the instant case dictates a remand to the district court with directions to issue the writ of habeas corpus unless the State of Mississippi initiates appropriate proceedings in a state court within a reasonable time after the issuance of our mandate. The “especially heinous” aggravating circumstance instruction is unconstitutionally broad when given without a limiting instruction, as was the case here. Moreover, the state court cannot bar King’s claim by virtue of his failure to object at trial or raise the issue on appeal. As the supreme court applied such a bar, it is clear that it neither reweighed the aggravating and mitigating factors nor conducted a harmless error analysis. Consequently, it has not cured the constitutional infirmity of the “especially heinous” instruction.\nGiven the state’s options, it is conceivable that King will not receive a new sentencing procedure; therefore, the errors he alleges in that proceeding would continue to affect his sentence. Consequently, we review the remaining issues raised by King, some of which the district court considered despite the procedural bar. A review of the briefs and records convinces us that we can add little to the thorough and well-reasoned opinion of the district court. Accordingly, we deal only briefly with each issue.\nB. Ineffective Assistance of Counsel\nKing raises two related ineffective assistance issues: (1) he received ineffective assistance of counsel because his trial counsel failed to investigate and present readily available mitigating evidence of character and low intelligence at the sentencing phase; and (2) whether the federal district court should have conducted an evidentiary hearing when considering King’s ineffective assistance claim based on the state court’s failure to make specific factual and credibility determinations. We address each in turn.\n1. Mitigating Evidence\nAs the district court notes, failure to proffer mitigating evidence at the sentencing phase is not per se ineffective assistance of counsel, and we have “often upheld decisions not to put on mitigating evidence wh[en] the decision resulted from a strategic choice.” Under Strickland v. Washington, the important inquiry is whether the decision not to offer the evidence was reasonable in all the circumstances, and, if an error was committed, that it affected the outcome of the trial.\nWe agree with the district court that the superficial investigation and decision not to offer witnesses was reasonable under the circumstances. Sams, who had represented King in a prior burglary charge, knew from previous investigation that King’s reputation in the community was exceedingly poor. Moreover, Sams knew that Porter, the man King accused of the crime, was also his uncle. He assumed, reasonably, that this would cause tension within the family. Even if family members had been presented to testify that King had never been violent before and that Porter was a bad influence, this testimony would have opened the door to rebuttal testimony regarding King’s poor reputation.\nWe are more troubled, however, by Sams’ failure to follow up on his own motion seeking an evaluation of King’s mental capacity. Indeed, Sams himself doubted King’s intellectual capacity, yet when the state hospital failed to provide the information, expressly directed by the court’s order, Sams did nothing. According to King, the evidence of. his diminished mental capacity caused him to have difficulty in controlling his instinctive responses, to misperceive events, and to react in relatively unpredictable ways. This, he insists, is mitigating evidence.\nAt the coram nobis hearing, Sams justified his failure to seek additional information regarding King’s intellectual capacity on two grounds: (1) he did not think that King was significantly impaired; and (2) historically jurors in the county did not excuse a person because of diminished mental capacity. But, Sams’ own request for the evaluation belies these statements. If, as Sams testified, King’s lack of intelligence would have no effect on his trial, why did Sams request the evaluation?\nNotwithstanding the apparent contradiction between Sams’ request for a mental evaluation and his failure to follow up on it, we need not decide whether this omission was professionally unreasonable under Strickland, for in any event counsel’s ineffective assistance must also affect the outcome of the trial or sentencing. In the instant case, we cannot conclude that the failure to offer mitigating evidence in the form of King’s diminished mental capacity affected the outcome of his sentencing. Even with such mitigating factors, the jury had two aggravating factors weighing in favor of the death penalty. Although we now know that, absent a limiting instruction, the “especially heinous” aggravating circumstance instruction is unconstitutionally overbroad, the question under Strickland’s prejudice prong is whether the ineffective actions of counsel affected the outcome of the trial. The answer here is no.\nYet, if we were to eliminate the “especially heinous” circumstance and reweigh the factors, as the Mississippi Supreme Court may choose to do — -and as would (or could) be done in a new sentencing trial — then King would have a more compelling argument that his counsel’s failure to present mitigating evidence at the sentencing phase affected the outcome of his sentence. Although Mississippi is not constitutionally required to conduct a new sentencing hearing, we suggest that the option of holding such a hearing be given serious consideration on remand in the instant case.\n2. Evidentiary Hearing\nKing also claims that the district court erred in failing to hold an evidentiary hearing on his claim of ineffective assistance, as the state court failed in its coram nobis proceeding to make any relevant factual determinations. This claim is without merit. It is well established that no hearing is required when the habeas petitioner fails to allege the type of prejudice necessary to satisfy that prong of Strickland, Moreover, we will not remand a case for an evidentiary hearing when the district court, as it did here, has made a full review and search of the complete record and no additional evidentiary development is necessary on an issue.\nC. Jury Instruction\nIn addition to his successful claim regarding the unconstitutionality of the “especially heinous” instruction, King argues that the court erred in refusing to instruct the jury that, even if the aggravating factors outweighed the mitigating factors, the jury could impose a life sentence. Although King concedes, as he must, that such an instruction is not required and failure to give the instruction is not reversible error, he nonetheless challenges the instruction on equal protection grounds. His argument on this point is vague, stating simply that “[o]ther capital defendants convicted in Mississippi have been afforded the benefit of the ‘life option’ instruction or its equivalent.... King was not.”\nKing, however, misapprehends the decisions of the Mississippi Supreme Court, which has consistently stated that no such instruction is required. Thus, refusal to grant such an instruction is not reversible error. Moreover, the court views the granting of a “life option” instruction as harmless error because it favors the defendant. Consequently, King is not entitled to such an instruction (which he did not request), and the court’s failure to inform the jury of the “life option” was neither reversible error nor an equal protection violation.\nD.Prosecutorial Misconduct\nKing insists that the prosecutor’s closing argument during the sentencing phase was replete with improper and inflammatory remarks. He cites the following four statements:\n1. And I deal with criminal cases every week, ladies and gentlemen, and I might submit to you that I don’t ask for the death penalty in every case because they may not warrant it, but this case I’m asking for the death penalty because it was senseless.\n2. Can you imagine what Mrs. Patterson was thinking when that man had her around the neck and she was screaming, “help,” and I’m talking for Mrs. Patterson now, and I am asking you to help Mrs. Patterson, and I will ask you ladies and gentlemen to write down as the second aggravating circumstances ... “the crime was committed in an especially heinous, cruel and atrocious manner.”\n3. The second reason [for imposing the death sentence], I don’t know if it is not more important than the first. It’s a deterrent to others to commit the same kind of crime. It will tell you, ladies and gentlemen, and you’re going to speak out to all the potential murderers and other citizens and other criminals in this country. [T]he death penalty is a deterrent to other people, and it will tell those people that if you commit the crime that you could be subjected to the death penalty.... So we got two things here, ... and I want this country to know that we’re not going to tolerate.\n4. [T]he black minister, you remember I asked him, “you’re a minister, do you have any religious beliefs against the death penalty?” And he said, “can I explain it?” He says, “I looked in the book and it says, ‘he who kills shall be killed.’ ”\nKing argues, that taken together, these improper comments were “calculated to incite an unreasonable and retaliatory sentencing decision, rather than a decision based on a reasoned moral response to the evidence” and denied King a fundamentally fair sentencing proceeding.\nWe again agree with the district court’s conclusion that these statements, viewed as a whole, did not render the sentencing fundamentally unfair. Rather, the statements were not persistent nor pronounced and do not reach the level of error required for reversal. Moreover, the jury had been informed that it was the sole judge of the facts and that arguments, statements, and remarks of counsel having no basis in the evidence should be disregarded.\nE. Inadequate Appellate Review\nKing argues that the Mississippi Supreme Court was unable to review his appeal meaningfully due to the absence of a complete transcript and a complete report from the trial court, as required by law. We adopt the district court’s discussion on this point and conclude that no error of constitutional magnitude occurred.\nF. Racial Discrimination\nFinally, King raises a claim that the Mississippi death penalty is applied in a racially discriminatory manner. In an effort to support his claim, King presents statistical evidence discussing the increased likelihood that a black male accused of killing a white victim will receive the death penalty. He also emphasizes the prosecutor’s remarks about the “black minister” during closing arguments (which King claims is a thinly-veiled racial remark) and the prosecutors’ use of peremptory challenges to remove black jurors from the venire.\nThe district court held that this evidence was insufficient to establish racial discrimination in sentencing. First, the court noted that in McCleskey v. Kemp the Supreme Court had held statistical evidence like King’s insufficient. Second, the court ruled that King’s other evidence was “an opportunity to repeat other grounds raised in the petition.” King argues that the evidence concerning prosecutorial conduct during his sentencing proceeding is sufficient under McCleskey to prove that the decisionmakers in his case acted with discriminatory purpose. We disagree.\nFirst, we cannot agree that the prosecutor’s reference to the “black minister” on venire is a racial remark. If anything, it is an attempted religious endorsement of the death penalty. Second, King’s allegations concerning the jury makeup are vague and inconclusive. Based on the record before it, the district court found that there was no practice of excluding black jurors under the standard of Swain v. Alabama, the case applicable at the time of King’s sentencing. The district court found, and we agree, that King’s allegations fall far short of demonstrating racial discrimination in the Mississippi sentencing scheme.\nIll\nCONCLUSION\nIn his petition for habeas corpus, King alleges several errors in his sentencing proceeding. Although we conclude that most of his allegations are without merit, we hold that the “especially heinous” aggravating factor, given without limiting instructions, was unconstitutional. Consequently, we remand to the district court to issue the habeas writ unless the state initiates the appropriate proceedings. While acknowledging that we are without authority to order a new sentencing hearing, we recommend that the holding of such a proceeding be given serious consideration in this case, given the failure of King’s counsel to pursue potentially mitigating evidence. All other claims raised by King, however, are without merit.\nREVERSED and REMANDED.\n. King v. State, 421 So.2d 1009 (Miss.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983).\n. King v. Thigpen, 441 So.2d 1365 (Miss.1983).\n. 969 F.2d 86 (5th Cir.1992).\n. 970 F.2d 1383 (5th Cir.1992).\n. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).\n. See Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).\n. Wiley, 969 F.2d at 91.\n. Smith, 970 F.2d at 1386 (Quoting Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982) (citation omitted)).\n. Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir.1988).\n. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).\n. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).\n. Wiley, 969 F.2d at 94.\n. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).\n. Williams v. Blackburn, 649 F.2d 1019 (5th Cir.1981).\n. Wiley v. State, 484 So.2d 339 (Miss.), cert. denied, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986).\n. Hansen v. State, 592 So.2d 114, 150 (Miss. 1991).\n. Lesko v. Lehman, 925 F.2d 1527 (3d Cir.) cert. denied, -U.S. -, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991).\n. 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).\n. 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).\n[END_CASE]", "role": "user" } ]
10,510,172	KEYSTONE CONSOLIDATED INDUSTRIES, INC., Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant	Keystone Consolidated Industries, Inc. v. Commissioner	1993-08-25	No. 91-4208	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges."], "parties": ["KEYSTONE CONSOLIDATED INDUSTRIES, INC., Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant."], "opinions": [{"text": "ORDER:\nOn January 17, 1992, we affirmed the tax court’s grant of summary judgment in favor of Keystone Consolidated Industries, Inc., see Keystone Consolidated Industries, Inc. v. Commissioner, 951 F.2d 76 (5th Cir.1992). On May 24, 1993, the Supreme Court reversed in an opinion at — U.S. -, 113 S.Ct. 2006, 124 L.Ed.2d 71 (1993), and remanded to us for further disposition. In accordance therewith, we now remand the case to the Tax Court for its further proceedings, not inconsistent with the Supreme Court’s decision.\nSO ORDERED.", "type": "majority", "author": null}], "attorneys": ["Shirley D. Peterson, Asst. Atty. Gen., U.S. Dept, of Justice, Tax Div., Steven W. Parks, Kenneth L. Greene, Gary R. Allen, Chief, Appellate See. Tax Div., Dept, of Justice, Abraham N.M. Shashy, Jr., Chief Counsel, Washington, DC, for respondent-appellant.", "Raymond P. Wexler, Todd F. Maynes, Timothy M. Mlsna, Kirkland & Ellis, Chicago, IL, Ralph P. End, Dallas, TX, for Keystone Consolidated Industries, Inc."], "corrections": "", "head_matter": "KEYSTONE CONSOLIDATED INDUSTRIES, INC., Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.\nNo. 91-4208.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 25, 1993.\nShirley D. Peterson, Asst. Atty. Gen., U.S. Dept, of Justice, Tax Div., Steven W. Parks, Kenneth L. Greene, Gary R. Allen, Chief, Appellate See. Tax Div., Dept, of Justice, Abraham N.M. Shashy, Jr., Chief Counsel, Washington, DC, for respondent-appellant.\nRaymond P. Wexler, Todd F. Maynes, Timothy M. Mlsna, Kirkland & Ellis, Chicago, IL, Ralph P. End, Dallas, TX, for Keystone Consolidated Industries, Inc.\nBefore JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges."}	JOLLY	JONES	EMILIO M. GARZA	1	1	1	0	0	0	1 F.3d 287	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: KEYSTONE CONSOLIDATED INDUSTRIES, INC., Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-25\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nORDER:\nOn January 17, 1992, we affirmed the tax court’s grant of summary judgment in favor of Keystone Consolidated Industries, Inc., see Keystone Consolidated Industries, Inc. v. Commissioner, 951 F.2d 76 (5th Cir.1992). On May 24, 1993, the Supreme Court reversed in an opinion at — U.S. -, 113 S.Ct. 2006, 124 L.Ed.2d 71 (1993), and remanded to us for further disposition. In accordance therewith, we now remand the case to the Tax Court for its further proceedings, not inconsistent with the Supreme Court’s decision.\nSO ORDERED.\n[END_CASE]", "role": "user" } ]
10,510,247	GULF STATES UTILITIES CO., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent	Gulf States Utilities Co. v. Federal Energy Regulatory Commission	1993-08-25	No. 92-4599	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before REYNALDO G. GARZA, SMITH, and BARKSDALE, Circuit Judges."], "parties": ["GULF STATES UTILITIES CO., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent."], "opinions": [{"text": "BARKSDALE, Circuit Judge:\nGulf States Utilities Company (GSU) challenges the Federal Energy Regulatory Commission’s denial of both its request to correct, retroactively and prospectively, claimed billing errors, and its application for a waiver of related filing requirements, arising from its contract with Cajun Electric Power Cooperative, involving GSU’s high-voltage electricity transmission system, owned in part by Cajun. We REVERSE and REMAND.\nI.\nGSU is a utility company servicing customers in Louisiana and Texas; and, under a Power Interconnection Agreement executed in 1978, it provides electricity transmission services to Cajun, a government-funded rural electric cooperative in Louisiana. Because Cajun’s cost of capital is less than GSU’s, due to Cajun’s government-funded status, GSU and Cajun executed Service Schedule CTOC in 1980 (the CTOC agreement), which provided that the two companies would establish a co-owned Integrated Transmission System (ITS) comprised of qualified high-voltage transmission facilities (QTFs). In exchange for its investment in the ITS, Cajun would not be billed for its use of the ITS to the extent of that investment. In essence, the plan allowed Cajun to invest in the ITS in lieu of paying a portion of the bill that would otherwise be payable to GSU.\nThe CTOC agreement established a rather complex billing mechanism with regard to the ITS. In order to credit Cajun for its investment, GSU was to deduct GSU’s revenue requirements associated with the ITS from Cajun’s monthly general transmission charges, in the form of “CTOC credits”. The CTOC credits were to be “determined on the basis of the methodology, procedures and data used as the basis for GSU’s transmission service rates most recently approved or accepted for filing by FERC ... ”.\nAdditionally, in the event that Cajun’s investment in the ITS was not proportionate to its relative use, an equalization charge would be imposed. The equalization charge was to be calculated by multiplying the amount of Cajun’s investment deficiency by a percentage referred to as “Factor APM”. Factor APM is computed by dividing GSU’s annual revenue requirement associated with the ITS by its total investment in the ITS. For example, if GSU invested a total of $100 million in the ITS, and its annual revenue requirements for the ITS were $20 million, Factor APM would be 20% for that year. Accordingly, Cajun’s yearly equalization charge would be 20% of the amount of its investment deficiency. Because the monthly equalization charges were to be based on estimates, the CTOC agreement also provided for annual “true-ups” once the actual figures became available.\nIn early 1981, GSU submitted the CTOC agreement for FERC approval. In response to FERC’s request for additional information, GSU specified, inter alia, the Factor APM to be used initially. FERC accepted the agreement for filing that August, but advised GSU that “any changes in the applicable Equalizing Charge resulting from the use of a Factor APM different from that specified in your instant filing, must be timely filed ... as a change in rate schedule in accordance with [regulations]”. FERC did not similarly direct GSU to file changes to the CTOC credits, and the CTOC agreement did not specify how such changes were to be initiated or implemented. Accordingly, until GSU’s filing in the present proceeding, CTOC credits (as a component of the stated rate) were never filed with FERC.\nThe CTOC agreement billing provisions took effect January 1, 1982, when Cajun acquired two high-voltage transmission lines— QTFs — from GSU. At that time, GSU computed Cajun’s CTOC credits from the data filed with FERC in GSU’s most recent general transmission rate filing, submitted in 1980. It used the specified Factor APM (24.4047%), which was also based on that data.\nIn July 1982, GSU submitted new general transmission rates for filing. FERC approved a settlement in that case in June 1983, with the new rates made effective July 1982. See Gulf States Utils. Co., 25 F.E.R.C. ¶ 61,131 (1983).\nGSU again submitted new general transmission rates in July 1985. In January 1987, FERC approved a settlement of that case, which provided for two new rates — one effective July 1985, and a superseding rate effective July 1986. See Gulf States Utils. Co., 38 F.E.R.C. ¶ 61,048 (1987). Cajun intervened in the second (1985) rate case to protest GSU’s designation of the QTFs under the CTOC agreement (QTF dispute), but the 1987 settlement agreement expressly excluded any resolution of that dispute.\nAs noted, in neither its 1982 nor its 1985 filing did GSU separately designate revised CTOC credits or Factors APM. However, upon each filing, it recalculated both, based on the new data submitted, and billed Cajun accordingly. FERC accepted GSU’s refund compliance filings for each case in May 1984 and September 1987, respectively.\nIn July 1987, Cajun renewed its claims with FERC regarding the QTF dispute, among others. GSU answered, and filed its own action with FERC, proposing to cancel the CTOC agreement. FERC denied GSU’s request to cancel, see Cajun Elec. Power Corp., Inc. v. Gulf States Utils. Co., 41 F.E.R.C. ¶ 61,136 (1987), and affirmed the denial on rehearing, see Gulf States Utils. Co., 42 F.E.R.C. ¶ 61,163 (1988).\nMeanwhile, GSU allegedly discovered that it had erred all along in calculating the CTOC credits. In November 1987, after the denial of its request to cancel the CTOC agreement, GSU began billing Cajun using revised (lowered) CTOC credits, resulting in an annual increase in the billings to Cajun of approximately $4 million. Cajun has paid those increased charges. Additionally, as noted, GSU had never filed, as directed, the changes to Factor APM from the figure initially filed in 1981. Accordingly, on June 20, 1988, GSU submitted for filing retroactive and prospective revisions to the CTOC credits and Factors APM, requesting a waiver of the Factor APM filing requirement for good cause.\nIn August 1988 (Initial Order), FERC rejected GSU’s proposed retroactive changes to the CTOC credits, holding that those credits had been at issue in, and resolved by, the settlements of the 1982 and 1985 rate cases in 1983 and 1987, respectively. See Cajun Elec. Power Corp., Inc. v. Gulf States Utils. Co., 44 F.E.R.C. ¶ 61,259, 61,972 (1988) [hereinafter 44 F.E.R.C. at -]. In addition, it denied GSU’s request for a waiver of the Factor APM filing requirement. Id. at 61,970-71. For prospective application only, FERC accepted GSU’s proposed Factor APM, based on the 1986 rate, and set that matter for hearing. Id. Finally, for purposes of hearing and decision, FERC consolidated GSU’s proceeding with Cajun’s involving the QTFs. Id. at 61,972. With respect to the CTOC credits, both GSU and Cajun requested clarification or, in the alternative, rehearing.\nPending that rehearing, an ALJ held a hearing on the consolidated matters, and issued a decision in May 1989. See Cajun Elec. Power Corp., Inc. v. Gulf States Utils. Co., 47 F.E.R.C. ¶ 63,024 (1989). The ALJ interpreted FERC’s Initial Order to address only pre-July 26, 1985, CTOC credits (the effective date of the settled 1985 rate case). Id. at 65,057. Accordingly, he proceeded to address the post-July 26, 1985, CTOC credit dispute, and held in GSU’s favor on the alleged errors. Id. at 65,057-58. He stated: “[Wjith the understanding that [GSU’s] calculations have been somewhat erroneous in the past, I conclude that the methodology and figures computed by [GSU’s witness] now accurately project the CTOC credits Id.\nIn April 1992, nearly four years after its Initial Order, FERC again rejected the proposed retroactive CTOC credits and Factors APM, and denied the requested waiver of the Factor APM filing requirement (Rehearing Order). See Cajun Elec. Power Corp., Inc. v. Gulf States Utils. Co., 59 F.E.R.C. ¶ 61,041, 61,137-41, 61,143 (1992) [hereinafter 59 F.E.R.C. at -]. It upheld the ALJ’s determination regarding the Factor APM, based on the 1986 rates, to be applied prospectively (from August 1988), id. at 61,143, but reversed his finding with regard to post-July 1985 CTOC credits, holding that that dispute was not properly before the ALJ in light of FERC’s Initial Order, id. at 61,138.\nReiterating that the CTOC credits for July 1985 forward had been settled with the 1985 rate case, FERC ordered GSU to refund amounts relating to revised CTOC credits which had been billed since November 1987 using the allegedly correct method (as noted, approximately $4 million annually). Id. at 61,141. Finally, “[t]o reduce future confusion and uncertainty”, FERC directed GSU in each subsequent general transmission rate filing to delineate specifically the CTOC credits. Id. at 61,137. GSU timely filed its petition for review of the rulings on the CTOC credits and Factors APM; the QTF dispute is not before us.\nII.\nGSU contends that FERC erred in (1) denying GSU a waiver of the Factor APM filing requirement; (2) rejecting retroactive (pre-August 21, 1988) changes to the CTOC credits; and (3) rejecting CTOC credits for prospective effect (post-August 21, 1988).\nWe will reverse a FERC order “only if [its] decision is arbitrary, capricious, or otherwise not in accordance with law”. Monsanto Co. v. FERC, 963 F.2d 827, 830 (5th Cir.1992) (internal quotation omitted). This includes a determination of “whether each of the order’s essential elements is supported by substantial evidence”, and whether FERC “abused or exceeded its authority”. In re Permian Basin Area Rate Cases, 390 U.S. 747, 790, 792, 88 S.Ct. 1344, 1372, 1373, 20 L.Ed.2d 312 (1968); see also 5 U.S.C. § 706(2) (governing scope of judicial review of agency decisions). “The ‘ultimate issue in judicial review of [FERC’s] determinations’ is the requirement of ‘reasoned consideration’ ”. See Borden, Inc. v. FERC, 855 F.2d 254, 258-59 (5th Cir.1988). Furthermore, “[n]o objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do”. 16 U.S.C. § 825l(b); see United Gas Pipe Line Co. v. FERC, 824 F.2d 417, 433-34 (5th Cir.1987).\nA.\nFor use with the rates that became effective in 1982, 1985, and 1986, GSU requested approval of Factors APM different from that approved in 1981. Prior to 1988, as a result of using Factors APM different from that approved in 1981, GSU collected approximately $3.8 million more than it would have using the approved factor. It has been ordered to refund that amount to Cajun. GSU contends that “[without any explanation, [FERC] ignored [GSU’s] showing of good cause” for the waiver of the requirement that Factor APM changes be filed as rate changes. Section 205(d) of the Federal Power Act (FPA), 16 U.S.C. § 824d(d) provides:\nUnless the Commission otherwise orders, no change shall be made by any public utility in any [rates subject to FERC’s jurisdiction] except after sixty days’ notice to the Commission.... The Commission, for good cause shown, may allow changes to take effect without requiring the sixty days’ notice....\nBecause the waiver provisions are committed to FERC’s discretion, GSU must show an abuse of that discretion. Hall v. FERC, 691 F.2d 1184, 1191 (5th Cir.1982), cert. denied, Arkla, Inc. v. Hall, 464 U.S. 822, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983).\nIn the Initial Order denying the waiver, FERC explained that (1) GSU’s failure to comply with the filing requirements was not excused by the ongoing billing dispute with Cajun, because that dispute involved the QTFs, not Factor APM; (2) contractual provisions that fairly implied “some waiver of the notice requirements” by Cajun did not contemplate GSU’s lengthy delay in filing the changes; and (3) GSU had been directed to file any changes to Factor APM. See 44 F.E.R.C. at 61,970-71. In its Rehearing Order, FERC noted GSU’s contentions that denial of a waiver would produce a windfall to Cajun, contrary to the contractually established rates, and that Cajun, in the CTOC agreement, impliedly waived any notice requirements. See 59 F.E.R.C. at 61,142. FERC summarily concluded, however, that it did “not find good cause to grant [GSU’s] request for waiver”, explaining only that GSU “failed to abide by the notice requirement” of which it had been expressly advised. Id. at 61,143.\nGSU disputes FERC’s determination, and contends that FERC wholly failed to address its good cause arguments; particularly, that Cajun had notice of increases and, without protest, paid the bills containing those increases. Additionally, GSU emphasizes that the CTOC agreement provided for the increases and for some waiver of the notice requirements (which, as noted, was acknowledged by FERC), and that FERC already had approved the general transmission rates upon which the Factor APM changes were directly based.\nFERC is vested with discretion in deciding whether to grant the requested waiver; to find an abuse of that discretion requires most substantial justification. We find it here. GSU has shown good cause for the waiver, and FERC’s summary discussion of the reasons for its denial does not “set out clearly the ground that forms the basis for the denial of discretionary relief’, Columbia Gas Dev. Corp. v. FERC, 651 F.2d 1146, 1160 n. 18 (5th Cir.1981), such that we can determine whether it gave reasoned consideration to GSU’s assertions of good cause.\nA principal purpose of the filing provisions of the FPA is “to give advance notice of proposed rate changes” to the customer. Union Texas Prods. Corp. v. FERC, 899 F.2d 432, 433 (5th Cir.1990) (reversing the denial of a waiver where, inter alia, the needed information appeared elsewhere in the general transmission rate filings). It does not appear that FERC gave consideration to whether that purpose was satisfied here. Not only did Cajun have actual notice of increases in Factor APM, but there appears to be no dispute that the proposed changes are provided for by the CTOC agreement. Therefore, the emphasis by FERC on GSU’s delay of several years in filing for a different factor is greatly ameliorated. In short, the filing could not have come as a surprise to Cajun.\nIn the final analysis, FERC’s principal reason for denying the waiver appears to be the fact that GSU failed to make the required filings. But, needless to say, if this were the criteria for denying a filing waiver, waiver would never be granted. Additionally, GSU’s failure to follow FERC’s express instructions to file Factor APM changes does not justify the $3.8 million penalty which FERC, in effect, seeks to impose for the error. In Union Texas, our court stated that “the Commission’s punctilious insistence that the failure to follow its directions in the minor respect here involved should result in such a disproportionately heavy penalty [$1.8 million] works a manifest injustice and constitutes an abuse of discretion”. 899 F.2d at 437. Although, arguably, the error involved in Union Texas was more minor than GSU’s, the forfeiture still is not justified.\nAccordingly, we reverse the denial of the waiver. Because FERC has not passed on the correct Factor APM to be used in relation to the 1982 and 1985 rates, we remand for such further proceedings as it deems appropriate in this regard.\nB.\nGSU claims that it discovered that past bills had overstated the CTOC credits. As noted, in November 1987, GSU began billing Cajun using revised (lower) CTOC credits, resulting in Cajun being charged annually approximately $4 million more; and Cajun has paid those increased billings to date. In June 1988, GSU filed the corrected credits in this proceeding. At issue are both the pre-August 21, 1988, billings (retroactive) and those billings subsequent to then (prospective).\n1.\nWith respect to GSU’s proposed retroactive changes to the CTOC credits, we also reverse. The dispute appears to involve highly technical questions regarding • the method of calculating CTOC credits; the parties do not explain the details in their briefs. In its Rehearing Order, FERC characterized the dispute as reflecting “substantive questions with respect to the operation of Service Schedule CTOC”, rather than simple “billing errors”. 59 F.E.R.C. at 61,137. With the exception of the ALJ’s hearing in late 1988, GSU has not been heard on the merits of these questions.\nAs noted, FERC’s rejection of the proposed changes rests solely on its determination that the CTOC credits were settled with the respective general transmission rate cases. Initially, FERC determined that the express exclusion of the “existing billing dispute” in the 1987 settlement did not refer to the present dispute. Id. at 61,138. It then reasoned (1) that Cajun may have reasonably expected the methodology for calculating CTOC credits to remain the same in the 1985 filing as in the 1982 filing; (2) that Cajun may have reasonably anticipated the approximate revenue impact of the settlements, including the CTOC credits; (3) that the magnitude of the proposed revisions would “completely undo[] the balancing of interests” that underlay FERC’s approval of the settlements as fair and reasonable and in the public’s interest; and (4) that particular CTOC credits were included in the general transmission rate filings as components of the “CTOC Adjustment” in the cost of service used to determine GSU’s basic rates to all of its transmission customers. Id. at 61,-140-41 & n. 74.\nGSU contends that the express exclusion in the 1987 settlement, see supra note 3, did reference the present dispute. It further contends that the record is devoid of evidence that the settlements included any mention of particular CTOC credits or that they were based on any assumptions about the CTOC credits. Finally, GSU asserts that the filed rate doctrine mandates correction of the alleged errors.\nAs an initial matter, we find substantial evidence to support FERC’s conclusion that the present dispute was not expressly excluded by the 1987 settlement. In making its determination, FERC closely examined the relevant evidence, including Cajun’s protest to GSU’s refund compliance report in the 1985 rate case, FERC’s letter order rejecting the initial refund compliance report, Cajun’s complaint in the QTF dispute, and GSU’s answer in that dispute. We need not restate FERC’s reasoning with respect to each; it thoroughly considered and discussed the evidence, and we find its conclusions reasonable. Perhaps most persuasive is the fact that GSU’s claimed errors were assert-edly not even discovered until after execution of the settlement in 1986, approved by FERC in January 1987. (As noted, GSU did not begin billing with the revised CTOC credits until November 1987.)\nThat the present dispute was not expressly excluded by the 1987 settlement, however, does not resolve whether the CTOC credits were settled (fixed) by either the 1983 or 1987 settlements. In its Rehearing Order, FERC acknowledged that “[GSU] has never been required by the terms of Service Schedule CTOC or by the Commission to explicitly file the CTOC credits”, 59 F.E.R.C. at 61,-136, and that “until the filing in this proceeding CTOC credits have never been explicitly filed with the Commission as a numerical component of the stated rate”, id. at 61,135. It would seem unlikely, therefore, that either settlement would include reference, either express or implied, to the CTOC credits in issue.\nFERC’s first three reasons for holding that the CTOC credits were included in the settlements constitute mere speculation. First, FERC’s conclusion that “it is not unreasonable to conclude” that the CTOC credits would be calculated under the 1985 rates using the same method that was used to caleulate them under the 1982 rates, 59 F.E.R.C. at 61,140, does not address whether Cajun actually made or relied upon any such conclusion during the settlement negotiations. . Moreover, this logic merely bootstraps onto an assumption that changes based on the 1982 rates should be rejected. Second, FERC’s determination that “it is reasonable to assume” that Cajun, in entering into the settlements, “anticipated the approximate revenue impact, after netting of the CTOC credits”, id., similarly constitutes speculation in the absence of evidence that any such anticipation occurred or was relied upon. Finally, the bare statement that the magnitude of the proposed changes renders them inconsistent with FERC’s acceptance of the settlements, id. at 61,141, is unsupported by any evidence that assumptions regarding the amount of the CTOC credits somehow underlay the settlements, and is most questionable in light of FERC’s own explanation that CTOC credits can be determined only after the general transmission rates are fixed (settled). We find no evidence, and FERC points to none, that any of these assumptions were actually made or relied upon.\nThe only concrete basis for FERC’s determination that the CTOC credits were settled with the rate cases is its conclusion that they were included in the settled rates as components of the CTOC Adjustment, which comprises part of GSU’s general transmission rates. In its Initial Order, FERC noted that although GSU was not required to file the CTOC credits, the data it submitted in support of its proposed general transmission rates incorporated “a Cajun rate reflecting only low voltage facilities” (i.e., the general transmission rate less the CTOC credits). 44 F.E.R.C. at 61,972. In its Rehearing Order, FERC explained that “[pjarticular CTOC credits were incorporated within the cost of service associated with the proposed [general transmission] rates”, in that “the CTOC credits are a component of a ‘CTOC Adjustment’ in the cost of service used to determine [GSU’s] basic rates to all of its transmission customers”. 59 F.E.R.C. at 61,140 & n. 74 (emphasis added).\nGSU asserts that only the formula for determining the CTOC Adjustment is stated. FERC explained that the CTOC Adjustment is “the difference between Cajun’s CTOC credits and Cajun’s equalization payments”— in other words, the net credit given Cajun for its ITS investment. Id. at 61,140 n. 74. GSU asserts that application of this formula in turn necessarily requires calculation of actual CTOC credits (which, as noted, can be determined only after the general transmission rates are fixed) and actual equalization charges (which, as noted, are determined only after each year-end true-up). Thus, GSU argues, the CTOC Adjustment is by definition an estimate, in that both the CTOC credits and the equalization charges are determined through formula rates.\nFERC does not respond to this contention, nor does it cite any record support in its brief. The Rehearing Order cited only the testimony of GSU witness James E. Striedel, see 59 F.E.R.C. at 61,140 n. 74, which establishes only the formula described above. At the December 1988 hearing before the ALJ, Striedel was asked, “How are the CTOC credits reflected in ... the cost of service of GSU’s ... customers?” He explained the formula and replied, “That net credit or what is called the CTOC adjustment is allocated as a part of the cost of service to all customers\nIn his prepared testimony submitted to FERC, Striedel again was asked: “How does [GSU] reflect the CTOC credits and equalization charge payments in determining the rates to its other customers?” He replied: “The net credit received by Cajun is a transmission service cost and is included in [GSU’s] cost of service studies and allocated to all jurisdictions which utilize the integrated transmission system. This net credit given to Cajun is called the CTOC Adjustment in [GSU’s] cost of service.” He also explained that, in addition to removing GSU’s revenue requirements for the ITS, the CTOC credits “should further act to remove the CTOC Adjustment” from Cajun’s bills. As GSU points out, the testimony makes no reference to what was actually filed with FERC or included in the settlement agreements. Furthermore, no specific CTOC credits nor any methodology for determining them is mentioned.\nFERC failed to support with substantial evidence its determination that the CTOC credits in issue were included in any way in the respective settlements. Accordingly, we reverse. On remand, GSU must be accorded a determination on the merits of the “substantive questions with respect to Service Schedule CTOC” presented by its allegations that the CTOC credits were calculated erroneously prior to November 1987. The result of that determination should then be applied retroactively to January 1, 1982, when the CTOC agreement first took effect.\n2.\nOur reasons for reversal with respect to retroactive changes to the CTOC credits apply with equal force to prospective (post-August 21, 1988) changes, but additional factors weigh heavily in favor of GSU on this issue. Foremost is FERC’s nearly four-year delay in resolving this dispute, which would have cost GSU approximately $16 million. Although FERC’s instruction to GSU to file CTOC credit changes with its general transmission rate filings will avoid future disputes, that instruction was not in place in 1988. Moreover, the errors GSU seeks to correct allegedly are independent of the “methodology, procedures and data” used as the basis for the rates on file, such that a new general transmission rate filing would be unnecessary to correct them.\nPreviously, GSU had not been obligated to file CTOC credits either under the CTOC agreement or by FERC. Substantial disagreement was ongoing with respect to related aspects of the agreement; specifically, the QTF dispute. Finally, the ALJ had handed down a favorable ruling on the merits of the billing dispute in 1989. Under these circumstances, GSU had no reason to anticipate that a new filing of its general transmission rates would be required in order to resolve the present dispute. For these reasons, we reverse FERC’s refusal to consider the changes prospectively.\nIII.\nIn sum, we hold that FERC reversibly erred in denying GSU a waiver of the filing requirement with respect to the pre-1988 Factor APM changes, and in refusing to consider GSU’s requested changes, both retroactive and prospective, to the CTOC credits. The correctness of the proposed CTOC credit changes under the contract and of the proposed Factors APM in relation to the 1982 and 1985 filed rates are issues to be resolved on remand.\nFor the foregoing reasons, FERC’s orders are REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.\nREVERSED and REMANDED.\n. If GSU provides service to Cajun over its entire system, part is provided over the ITS (owned in part by Cajun), and the rest is provided over GSU’s low-voltage facilities.\n. In sum, Cajun contended the GSU was not including QTFs owned by Cajun, resulting in improper (excessive) equalization charges to Cajun, and denying it proper access to the ITS.\n. Because of the QTF dispute, Cajun had stopped paying the true-ups, and GSU had stopped billing Cajun under the CTOC rate procedures. The settlement agreement provided: \"This agreement is not intended to resolve an existing billing dispute between Cajun and [GSU] under the CTOC service schedule.... [T]his Agreement is made without prejudice to Cajun's and [GSU's] rights regarding such dispute and its ultimate resolution”.\n. Retroactive changes would apply to CTOC credits for the period from initiation of the CTOC agreement until August 21, 1988 — 60 days after GSU's filing of these proceedings, see FPA § 205(d), 16 U.S.C. § 824d(d), and imposition of a one day suspension, see 44 F.E.R.C. at 61,971.\n. FERC contends that because GSU failed to specify the filed rate doctrine as a basis for its position on rehearing, it is jurisdictionally barred from raising it here. We need not address this contention, because we do not rely on that doctrine as a basis for our holding.\n. In its Rehearing Order, FERC explained the CTOC credit calculation process as follows:\n[E]ach time a change in the basic transmission rate is accepted or approved, under Service Schedule CTOC an associated CTOC credit should be derived based upon the cost assumptions used to develop the basic transmission rate. If [GSU’s] proposed basic transmission rate is contested and subsequently modified (for example, pursuant to a settlement agreement), under Service Schedule CTOC the CTOC credit should likewise be modified. Although ... CTOC credits are a stated amount on each month’s transmission bill sent to Cajun, until the filing in this proceeding CTOC credits have never been explicitly filed with the Commission as a numerical component of the stated rate.\n59 F.E.R.C. at 61,135 (emphasis added). Thus, no CTOC credit can be determined until after the general transmission rates are fixed.\n. As noted, the amount in controversy with respect to the alleged billing errors for CTOC credits is approximately $4 million annually. As also noted, since November 1987, Cajun has paid the revised CTOC credits.", "type": "majority", "author": "BARKSDALE, Circuit Judge:"}], "attorneys": ["Thomas L. Rudebusch, James D. Pembroke, Charles A. Braun, Washington, DC, for Cajun Elec. Power Co-op., Inc.", "Katherine Waldbauer, Jerome M. Feit, Sol. FERC, Washington, DC, for F.E.R.C.", "Barry S. Spector, Carrie L. Bumgarner, Wright & Talisman, Washington, DC, for Gulf States Utilities Co."], "corrections": "", "head_matter": "GULF STATES UTILITIES CO., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.\nNo. 92-4599.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 25, 1993.\nRehearing Denied Oct. 29, 1993.\nThomas L. Rudebusch, James D. Pembroke, Charles A. Braun, Washington, DC, for Cajun Elec. Power Co-op., Inc.\nKatherine Waldbauer, Jerome M. Feit, Sol. FERC, Washington, DC, for F.E.R.C.\nBarry S. Spector, Carrie L. Bumgarner, Wright & Talisman, Washington, DC, for Gulf States Utilities Co.\nBefore REYNALDO G. GARZA, SMITH, and BARKSDALE, Circuit Judges."}	REYNALDO G. GARZA	SMITH	BARKSDALE	1	1	1	0	0	0	1 F.3d 288	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: GULF STATES UTILITIES CO., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-25\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nBARKSDALE, Circuit Judge:\nGulf States Utilities Company (GSU) challenges the Federal Energy Regulatory Commission’s denial of both its request to correct, retroactively and prospectively, claimed billing errors, and its application for a waiver of related filing requirements, arising from its contract with Cajun Electric Power Cooperative, involving GSU’s high-voltage electricity transmission system, owned in part by Cajun. We REVERSE and REMAND.\nI.\nGSU is a utility company servicing customers in Louisiana and Texas; and, under a Power Interconnection Agreement executed in 1978, it provides electricity transmission services to Cajun, a government-funded rural electric cooperative in Louisiana. Because Cajun’s cost of capital is less than GSU’s, due to Cajun’s government-funded status, GSU and Cajun executed Service Schedule CTOC in 1980 (the CTOC agreement), which provided that the two companies would establish a co-owned Integrated Transmission System (ITS) comprised of qualified high-voltage transmission facilities (QTFs). In exchange for its investment in the ITS, Cajun would not be billed for its use of the ITS to the extent of that investment. In essence, the plan allowed Cajun to invest in the ITS in lieu of paying a portion of the bill that would otherwise be payable to GSU.\nThe CTOC agreement established a rather complex billing mechanism with regard to the ITS. In order to credit Cajun for its investment, GSU was to deduct GSU’s revenue requirements associated with the ITS from Cajun’s monthly general transmission charges, in the form of “CTOC credits”. The CTOC credits were to be “determined on the basis of the methodology, procedures and data used as the basis for GSU’s transmission service rates most recently approved or accepted for filing by FERC ... ”.\nAdditionally, in the event that Cajun’s investment in the ITS was not proportionate to its relative use, an equalization charge would be imposed. The equalization charge was to be calculated by multiplying the amount of Cajun’s investment deficiency by a percentage referred to as “Factor APM”. Factor APM is computed by dividing GSU’s annual revenue requirement associated with the ITS by its total investment in the ITS. For example, if GSU invested a total of $100 million in the ITS, and its annual revenue requirements for the ITS were $20 million, Factor APM would be 20% for that year. Accordingly, Cajun’s yearly equalization charge would be 20% of the amount of its investment deficiency. Because the monthly equalization charges were to be based on estimates, the CTOC agreement also provided for annual “true-ups” once the actual figures became available.\nIn early 1981, GSU submitted the CTOC agreement for FERC approval. In response to FERC’s request for additional information, GSU specified, inter alia, the Factor APM to be used initially. FERC accepted the agreement for filing that August, but advised GSU that “any changes in the applicable Equalizing Charge resulting from the use of a Factor APM different from that specified in your instant filing, must be timely filed ... as a change in rate schedule in accordance with [regulations]”. FERC did not similarly direct GSU to file changes to the CTOC credits, and the CTOC agreement did not specify how such changes were to be initiated or implemented. Accordingly, until GSU’s filing in the present proceeding, CTOC credits (as a component of the stated rate) were never filed with FERC.\nThe CTOC agreement billing provisions took effect January 1, 1982, when Cajun acquired two high-voltage transmission lines— QTFs — from GSU. At that time, GSU computed Cajun’s CTOC credits from the data filed with FERC in GSU’s most recent general transmission rate filing, submitted in 1980. It used the specified Factor APM (24.4047%), which was also based on that data.\nIn July 1982, GSU submitted new general transmission rates for filing. FERC approved a settlement in that case in June 1983, with the new rates made effective July 1982. See Gulf States Utils. Co., 25 F.E.R.C. ¶ 61,131 (1983).\nGSU again submitted new general transmission rates in July 1985. In January 1987, FERC approved a settlement of that case, which provided for two new rates — one effective July 1985, and a superseding rate effective July 1986. See Gulf States Utils. Co., 38 F.E.R.C. ¶ 61,048 (1987). Cajun intervened in the second (1985) rate case to protest GSU’s designation of the QTFs under the CTOC agreement (QTF dispute), but the 1987 settlement agreement expressly excluded any resolution of that dispute.\nAs noted, in neither its 1982 nor its 1985 filing did GSU separately designate revised CTOC credits or Factors APM. However, upon each filing, it recalculated both, based on the new data submitted, and billed Cajun accordingly. FERC accepted GSU’s refund compliance filings for each case in May 1984 and September 1987, respectively.\nIn July 1987, Cajun renewed its claims with FERC regarding the QTF dispute, among others. GSU answered, and filed its own action with FERC, proposing to cancel the CTOC agreement. FERC denied GSU’s request to cancel, see Cajun Elec. Power Corp., Inc. v. Gulf States Utils. Co., 41 F.E.R.C. ¶ 61,136 (1987), and affirmed the denial on rehearing, see Gulf States Utils. Co., 42 F.E.R.C. ¶ 61,163 (1988).\nMeanwhile, GSU allegedly discovered that it had erred all along in calculating the CTOC credits. In November 1987, after the denial of its request to cancel the CTOC agreement, GSU began billing Cajun using revised (lowered) CTOC credits, resulting in an annual increase in the billings to Cajun of approximately $4 million. Cajun has paid those increased charges. Additionally, as noted, GSU had never filed, as directed, the changes to Factor APM from the figure initially filed in 1981. Accordingly, on June 20, 1988, GSU submitted for filing retroactive and prospective revisions to the CTOC credits and Factors APM, requesting a waiver of the Factor APM filing requirement for good cause.\nIn August 1988 (Initial Order), FERC rejected GSU’s proposed retroactive changes to the CTOC credits, holding that those credits had been at issue in, and resolved by, the settlements of the 1982 and 1985 rate cases in 1983 and 1987, respectively. See Cajun Elec. Power Corp., Inc. v. Gulf States Utils. Co., 44 F.E.R.C. ¶ 61,259, 61,972 (1988) [hereinafter 44 F.E.R.C. at -]. In addition, it denied GSU’s request for a waiver of the Factor APM filing requirement. Id. at 61,970-71. For prospective application only, FERC accepted GSU’s proposed Factor APM, based on the 1986 rate, and set that matter for hearing. Id. Finally, for purposes of hearing and decision, FERC consolidated GSU’s proceeding with Cajun’s involving the QTFs. Id. at 61,972. With respect to the CTOC credits, both GSU and Cajun requested clarification or, in the alternative, rehearing.\nPending that rehearing, an ALJ held a hearing on the consolidated matters, and issued a decision in May 1989. See Cajun Elec. Power Corp., Inc. v. Gulf States Utils. Co., 47 F.E.R.C. ¶ 63,024 (1989). The ALJ interpreted FERC’s Initial Order to address only pre-July 26, 1985, CTOC credits (the effective date of the settled 1985 rate case). Id. at 65,057. Accordingly, he proceeded to address the post-July 26, 1985, CTOC credit dispute, and held in GSU’s favor on the alleged errors. Id. at 65,057-58. He stated: “[Wjith the understanding that [GSU’s] calculations have been somewhat erroneous in the past, I conclude that the methodology and figures computed by [GSU’s witness] now accurately project the CTOC credits Id.\nIn April 1992, nearly four years after its Initial Order, FERC again rejected the proposed retroactive CTOC credits and Factors APM, and denied the requested waiver of the Factor APM filing requirement (Rehearing Order). See Cajun Elec. Power Corp., Inc. v. Gulf States Utils. Co., 59 F.E.R.C. ¶ 61,041, 61,137-41, 61,143 (1992) [hereinafter 59 F.E.R.C. at -]. It upheld the ALJ’s determination regarding the Factor APM, based on the 1986 rates, to be applied prospectively (from August 1988), id. at 61,143, but reversed his finding with regard to post-July 1985 CTOC credits, holding that that dispute was not properly before the ALJ in light of FERC’s Initial Order, id. at 61,138.\nReiterating that the CTOC credits for July 1985 forward had been settled with the 1985 rate case, FERC ordered GSU to refund amounts relating to revised CTOC credits which had been billed since November 1987 using the allegedly correct method (as noted, approximately $4 million annually). Id. at 61,141. Finally, “[t]o reduce future confusion and uncertainty”, FERC directed GSU in each subsequent general transmission rate filing to delineate specifically the CTOC credits. Id. at 61,137. GSU timely filed its petition for review of the rulings on the CTOC credits and Factors APM; the QTF dispute is not before us.\nII.\nGSU contends that FERC erred in (1) denying GSU a waiver of the Factor APM filing requirement; (2) rejecting retroactive (pre-August 21, 1988) changes to the CTOC credits; and (3) rejecting CTOC credits for prospective effect (post-August 21, 1988).\nWe will reverse a FERC order “only if [its] decision is arbitrary, capricious, or otherwise not in accordance with law”. Monsanto Co. v. FERC, 963 F.2d 827, 830 (5th Cir.1992) (internal quotation omitted). This includes a determination of “whether each of the order’s essential elements is supported by substantial evidence”, and whether FERC “abused or exceeded its authority”. In re Permian Basin Area Rate Cases, 390 U.S. 747, 790, 792, 88 S.Ct. 1344, 1372, 1373, 20 L.Ed.2d 312 (1968); see also 5 U.S.C. § 706(2) (governing scope of judicial review of agency decisions). “The ‘ultimate issue in judicial review of [FERC’s] determinations’ is the requirement of ‘reasoned consideration’ ”. See Borden, Inc. v. FERC, 855 F.2d 254, 258-59 (5th Cir.1988). Furthermore, “[n]o objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do”. 16 U.S.C. § 825l(b); see United Gas Pipe Line Co. v. FERC, 824 F.2d 417, 433-34 (5th Cir.1987).\nA.\nFor use with the rates that became effective in 1982, 1985, and 1986, GSU requested approval of Factors APM different from that approved in 1981. Prior to 1988, as a result of using Factors APM different from that approved in 1981, GSU collected approximately $3.8 million more than it would have using the approved factor. It has been ordered to refund that amount to Cajun. GSU contends that “[without any explanation, [FERC] ignored [GSU’s] showing of good cause” for the waiver of the requirement that Factor APM changes be filed as rate changes. Section 205(d) of the Federal Power Act (FPA), 16 U.S.C. § 824d(d) provides:\nUnless the Commission otherwise orders, no change shall be made by any public utility in any [rates subject to FERC’s jurisdiction] except after sixty days’ notice to the Commission.... The Commission, for good cause shown, may allow changes to take effect without requiring the sixty days’ notice....\nBecause the waiver provisions are committed to FERC’s discretion, GSU must show an abuse of that discretion. Hall v. FERC, 691 F.2d 1184, 1191 (5th Cir.1982), cert. denied, Arkla, Inc. v. Hall, 464 U.S. 822, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983).\nIn the Initial Order denying the waiver, FERC explained that (1) GSU’s failure to comply with the filing requirements was not excused by the ongoing billing dispute with Cajun, because that dispute involved the QTFs, not Factor APM; (2) contractual provisions that fairly implied “some waiver of the notice requirements” by Cajun did not contemplate GSU’s lengthy delay in filing the changes; and (3) GSU had been directed to file any changes to Factor APM. See 44 F.E.R.C. at 61,970-71. In its Rehearing Order, FERC noted GSU’s contentions that denial of a waiver would produce a windfall to Cajun, contrary to the contractually established rates, and that Cajun, in the CTOC agreement, impliedly waived any notice requirements. See 59 F.E.R.C. at 61,142. FERC summarily concluded, however, that it did “not find good cause to grant [GSU’s] request for waiver”, explaining only that GSU “failed to abide by the notice requirement” of which it had been expressly advised. Id. at 61,143.\nGSU disputes FERC’s determination, and contends that FERC wholly failed to address its good cause arguments; particularly, that Cajun had notice of increases and, without protest, paid the bills containing those increases. Additionally, GSU emphasizes that the CTOC agreement provided for the increases and for some waiver of the notice requirements (which, as noted, was acknowledged by FERC), and that FERC already had approved the general transmission rates upon which the Factor APM changes were directly based.\nFERC is vested with discretion in deciding whether to grant the requested waiver; to find an abuse of that discretion requires most substantial justification. We find it here. GSU has shown good cause for the waiver, and FERC’s summary discussion of the reasons for its denial does not “set out clearly the ground that forms the basis for the denial of discretionary relief’, Columbia Gas Dev. Corp. v. FERC, 651 F.2d 1146, 1160 n. 18 (5th Cir.1981), such that we can determine whether it gave reasoned consideration to GSU’s assertions of good cause.\nA principal purpose of the filing provisions of the FPA is “to give advance notice of proposed rate changes” to the customer. Union Texas Prods. Corp. v. FERC, 899 F.2d 432, 433 (5th Cir.1990) (reversing the denial of a waiver where, inter alia, the needed information appeared elsewhere in the general transmission rate filings). It does not appear that FERC gave consideration to whether that purpose was satisfied here. Not only did Cajun have actual notice of increases in Factor APM, but there appears to be no dispute that the proposed changes are provided for by the CTOC agreement. Therefore, the emphasis by FERC on GSU’s delay of several years in filing for a different factor is greatly ameliorated. In short, the filing could not have come as a surprise to Cajun.\nIn the final analysis, FERC’s principal reason for denying the waiver appears to be the fact that GSU failed to make the required filings. But, needless to say, if this were the criteria for denying a filing waiver, waiver would never be granted. Additionally, GSU’s failure to follow FERC’s express instructions to file Factor APM changes does not justify the $3.8 million penalty which FERC, in effect, seeks to impose for the error. In Union Texas, our court stated that “the Commission’s punctilious insistence that the failure to follow its directions in the minor respect here involved should result in such a disproportionately heavy penalty [$1.8 million] works a manifest injustice and constitutes an abuse of discretion”. 899 F.2d at 437. Although, arguably, the error involved in Union Texas was more minor than GSU’s, the forfeiture still is not justified.\nAccordingly, we reverse the denial of the waiver. Because FERC has not passed on the correct Factor APM to be used in relation to the 1982 and 1985 rates, we remand for such further proceedings as it deems appropriate in this regard.\nB.\nGSU claims that it discovered that past bills had overstated the CTOC credits. As noted, in November 1987, GSU began billing Cajun using revised (lower) CTOC credits, resulting in Cajun being charged annually approximately $4 million more; and Cajun has paid those increased billings to date. In June 1988, GSU filed the corrected credits in this proceeding. At issue are both the pre-August 21, 1988, billings (retroactive) and those billings subsequent to then (prospective).\n1.\nWith respect to GSU’s proposed retroactive changes to the CTOC credits, we also reverse. The dispute appears to involve highly technical questions regarding • the method of calculating CTOC credits; the parties do not explain the details in their briefs. In its Rehearing Order, FERC characterized the dispute as reflecting “substantive questions with respect to the operation of Service Schedule CTOC”, rather than simple “billing errors”. 59 F.E.R.C. at 61,137. With the exception of the ALJ’s hearing in late 1988, GSU has not been heard on the merits of these questions.\nAs noted, FERC’s rejection of the proposed changes rests solely on its determination that the CTOC credits were settled with the respective general transmission rate cases. Initially, FERC determined that the express exclusion of the “existing billing dispute” in the 1987 settlement did not refer to the present dispute. Id. at 61,138. It then reasoned (1) that Cajun may have reasonably expected the methodology for calculating CTOC credits to remain the same in the 1985 filing as in the 1982 filing; (2) that Cajun may have reasonably anticipated the approximate revenue impact of the settlements, including the CTOC credits; (3) that the magnitude of the proposed revisions would “completely undo[] the balancing of interests” that underlay FERC’s approval of the settlements as fair and reasonable and in the public’s interest; and (4) that particular CTOC credits were included in the general transmission rate filings as components of the “CTOC Adjustment” in the cost of service used to determine GSU’s basic rates to all of its transmission customers. Id. at 61,-140-41 & n. 74.\nGSU contends that the express exclusion in the 1987 settlement, see supra note 3, did reference the present dispute. It further contends that the record is devoid of evidence that the settlements included any mention of particular CTOC credits or that they were based on any assumptions about the CTOC credits. Finally, GSU asserts that the filed rate doctrine mandates correction of the alleged errors.\nAs an initial matter, we find substantial evidence to support FERC’s conclusion that the present dispute was not expressly excluded by the 1987 settlement. In making its determination, FERC closely examined the relevant evidence, including Cajun’s protest to GSU’s refund compliance report in the 1985 rate case, FERC’s letter order rejecting the initial refund compliance report, Cajun’s complaint in the QTF dispute, and GSU’s answer in that dispute. We need not restate FERC’s reasoning with respect to each; it thoroughly considered and discussed the evidence, and we find its conclusions reasonable. Perhaps most persuasive is the fact that GSU’s claimed errors were assert-edly not even discovered until after execution of the settlement in 1986, approved by FERC in January 1987. (As noted, GSU did not begin billing with the revised CTOC credits until November 1987.)\nThat the present dispute was not expressly excluded by the 1987 settlement, however, does not resolve whether the CTOC credits were settled (fixed) by either the 1983 or 1987 settlements. In its Rehearing Order, FERC acknowledged that “[GSU] has never been required by the terms of Service Schedule CTOC or by the Commission to explicitly file the CTOC credits”, 59 F.E.R.C. at 61,-136, and that “until the filing in this proceeding CTOC credits have never been explicitly filed with the Commission as a numerical component of the stated rate”, id. at 61,135. It would seem unlikely, therefore, that either settlement would include reference, either express or implied, to the CTOC credits in issue.\nFERC’s first three reasons for holding that the CTOC credits were included in the settlements constitute mere speculation. First, FERC’s conclusion that “it is not unreasonable to conclude” that the CTOC credits would be calculated under the 1985 rates using the same method that was used to caleulate them under the 1982 rates, 59 F.E.R.C. at 61,140, does not address whether Cajun actually made or relied upon any such conclusion during the settlement negotiations. . Moreover, this logic merely bootstraps onto an assumption that changes based on the 1982 rates should be rejected. Second, FERC’s determination that “it is reasonable to assume” that Cajun, in entering into the settlements, “anticipated the approximate revenue impact, after netting of the CTOC credits”, id., similarly constitutes speculation in the absence of evidence that any such anticipation occurred or was relied upon. Finally, the bare statement that the magnitude of the proposed changes renders them inconsistent with FERC’s acceptance of the settlements, id. at 61,141, is unsupported by any evidence that assumptions regarding the amount of the CTOC credits somehow underlay the settlements, and is most questionable in light of FERC’s own explanation that CTOC credits can be determined only after the general transmission rates are fixed (settled). We find no evidence, and FERC points to none, that any of these assumptions were actually made or relied upon.\nThe only concrete basis for FERC’s determination that the CTOC credits were settled with the rate cases is its conclusion that they were included in the settled rates as components of the CTOC Adjustment, which comprises part of GSU’s general transmission rates. In its Initial Order, FERC noted that although GSU was not required to file the CTOC credits, the data it submitted in support of its proposed general transmission rates incorporated “a Cajun rate reflecting only low voltage facilities” (i.e., the general transmission rate less the CTOC credits). 44 F.E.R.C. at 61,972. In its Rehearing Order, FERC explained that “[pjarticular CTOC credits were incorporated within the cost of service associated with the proposed [general transmission] rates”, in that “the CTOC credits are a component of a ‘CTOC Adjustment’ in the cost of service used to determine [GSU’s] basic rates to all of its transmission customers”. 59 F.E.R.C. at 61,140 & n. 74 (emphasis added).\nGSU asserts that only the formula for determining the CTOC Adjustment is stated. FERC explained that the CTOC Adjustment is “the difference between Cajun’s CTOC credits and Cajun’s equalization payments”— in other words, the net credit given Cajun for its ITS investment. Id. at 61,140 n. 74. GSU asserts that application of this formula in turn necessarily requires calculation of actual CTOC credits (which, as noted, can be determined only after the general transmission rates are fixed) and actual equalization charges (which, as noted, are determined only after each year-end true-up). Thus, GSU argues, the CTOC Adjustment is by definition an estimate, in that both the CTOC credits and the equalization charges are determined through formula rates.\nFERC does not respond to this contention, nor does it cite any record support in its brief. The Rehearing Order cited only the testimony of GSU witness James E. Striedel, see 59 F.E.R.C. at 61,140 n. 74, which establishes only the formula described above. At the December 1988 hearing before the ALJ, Striedel was asked, “How are the CTOC credits reflected in ... the cost of service of GSU’s ... customers?” He explained the formula and replied, “That net credit or what is called the CTOC adjustment is allocated as a part of the cost of service to all customers\nIn his prepared testimony submitted to FERC, Striedel again was asked: “How does [GSU] reflect the CTOC credits and equalization charge payments in determining the rates to its other customers?” He replied: “The net credit received by Cajun is a transmission service cost and is included in [GSU’s] cost of service studies and allocated to all jurisdictions which utilize the integrated transmission system. This net credit given to Cajun is called the CTOC Adjustment in [GSU’s] cost of service.” He also explained that, in addition to removing GSU’s revenue requirements for the ITS, the CTOC credits “should further act to remove the CTOC Adjustment” from Cajun’s bills. As GSU points out, the testimony makes no reference to what was actually filed with FERC or included in the settlement agreements. Furthermore, no specific CTOC credits nor any methodology for determining them is mentioned.\nFERC failed to support with substantial evidence its determination that the CTOC credits in issue were included in any way in the respective settlements. Accordingly, we reverse. On remand, GSU must be accorded a determination on the merits of the “substantive questions with respect to Service Schedule CTOC” presented by its allegations that the CTOC credits were calculated erroneously prior to November 1987. The result of that determination should then be applied retroactively to January 1, 1982, when the CTOC agreement first took effect.\n2.\nOur reasons for reversal with respect to retroactive changes to the CTOC credits apply with equal force to prospective (post-August 21, 1988) changes, but additional factors weigh heavily in favor of GSU on this issue. Foremost is FERC’s nearly four-year delay in resolving this dispute, which would have cost GSU approximately $16 million. Although FERC’s instruction to GSU to file CTOC credit changes with its general transmission rate filings will avoid future disputes, that instruction was not in place in 1988. Moreover, the errors GSU seeks to correct allegedly are independent of the “methodology, procedures and data” used as the basis for the rates on file, such that a new general transmission rate filing would be unnecessary to correct them.\nPreviously, GSU had not been obligated to file CTOC credits either under the CTOC agreement or by FERC. Substantial disagreement was ongoing with respect to related aspects of the agreement; specifically, the QTF dispute. Finally, the ALJ had handed down a favorable ruling on the merits of the billing dispute in 1989. Under these circumstances, GSU had no reason to anticipate that a new filing of its general transmission rates would be required in order to resolve the present dispute. For these reasons, we reverse FERC’s refusal to consider the changes prospectively.\nIII.\nIn sum, we hold that FERC reversibly erred in denying GSU a waiver of the filing requirement with respect to the pre-1988 Factor APM changes, and in refusing to consider GSU’s requested changes, both retroactive and prospective, to the CTOC credits. The correctness of the proposed CTOC credit changes under the contract and of the proposed Factors APM in relation to the 1982 and 1985 filed rates are issues to be resolved on remand.\nFor the foregoing reasons, FERC’s orders are REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.\nREVERSED and REMANDED.\n. If GSU provides service to Cajun over its entire system, part is provided over the ITS (owned in part by Cajun), and the rest is provided over GSU’s low-voltage facilities.\n. In sum, Cajun contended the GSU was not including QTFs owned by Cajun, resulting in improper (excessive) equalization charges to Cajun, and denying it proper access to the ITS.\n. Because of the QTF dispute, Cajun had stopped paying the true-ups, and GSU had stopped billing Cajun under the CTOC rate procedures. The settlement agreement provided: \"This agreement is not intended to resolve an existing billing dispute between Cajun and [GSU] under the CTOC service schedule.... [T]his Agreement is made without prejudice to Cajun's and [GSU's] rights regarding such dispute and its ultimate resolution”.\n. Retroactive changes would apply to CTOC credits for the period from initiation of the CTOC agreement until August 21, 1988 — 60 days after GSU's filing of these proceedings, see FPA § 205(d), 16 U.S.C. § 824d(d), and imposition of a one day suspension, see 44 F.E.R.C. at 61,971.\n. FERC contends that because GSU failed to specify the filed rate doctrine as a basis for its position on rehearing, it is jurisdictionally barred from raising it here. We need not address this contention, because we do not rely on that doctrine as a basis for our holding.\n. In its Rehearing Order, FERC explained the CTOC credit calculation process as follows:\n[E]ach time a change in the basic transmission rate is accepted or approved, under Service Schedule CTOC an associated CTOC credit should be derived based upon the cost assumptions used to develop the basic transmission rate. If [GSU’s] proposed basic transmission rate is contested and subsequently modified (for example, pursuant to a settlement agreement), under Service Schedule CTOC the CTOC credit should likewise be modified. Although ... CTOC credits are a stated amount on each month’s transmission bill sent to Cajun, until the filing in this proceeding CTOC credits have never been explicitly filed with the Commission as a numerical component of the stated rate.\n59 F.E.R.C. at 61,135 (emphasis added). Thus, no CTOC credit can be determined until after the general transmission rates are fixed.\n. As noted, the amount in controversy with respect to the alleged billing errors for CTOC credits is approximately $4 million annually. As also noted, since November 1987, Cajun has paid the revised CTOC credits.\n[END_CASE]", "role": "user" } ]
10,510,312	UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony JOHNSON, Defendant-Appellant	United States v. Johnson	1993-08-26	No. 92-8057	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and DEMOSS, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony JOHNSON, Defendant-Appellant."], "opinions": [{"text": "WIENER, Circuit Judge:\nWe have taken this case en banc for the “housekeeping” purpose of deciding whether to complete the process we began two years ago with our en banc opinion in United States v. Backynsky. There, we eliminated the panel’s per se reversal of the defendant’s conviction for failure of the district court to make reference to or explain supervised release during the plea colloquy. We instead tested the effect of that omission by conducting a “harmless error” examination as authorized by Federal Rule of Criminal Procedure ll’s section (h), which was added to that Rule with the 1983 amendments. In so doing, however, we failed to repudiate our pre-amendment, jurisprudentially mandated taxonomy exercise of determining whether the plea colloquy error complained of should be categorized as a failure by the court to comply with one or more of the three “core concerns” of Rule 11, and if so whether such failure was total or partial.\nToday we acknowledge that in Bachynsky we went only halfway when we approved application of section (h)’s harmless error test to an imperfection in the plea colloquy, all the while continuing to embrace the pre-section (h) rubric of total or partial failures and core or non-core concerns. We now go the remaining “half the distance to the goal” of fully embracing section (h) by relegating that pre-amendment double dichotomy “into the dustbin of [the jurisprudential] history” of this circuit, replacing it entirely with the pure harmless error examination that was intended by adoption of section (h). Henceforth, no failure in the plea colloquy — regardless of whether it might be one of omission or commission, total or partial, core or non-core — will mandate an automatic reversal of a conviction and vacatur of a sentence. Rather, reversal and vacatur will be required when — but only when — the challenged “variance from the procedures required by [Rule 11] ... affeet[s] substantial rights” of the defendant. In other words, when an appellant claims that a district court has failed to comply with Rule 11, we shall conduct a straightforward, two-question “harmless error” analysis: (1) Did the sentencing court in fact vary from the procedures required by Rule 11, and (2) if so, did such variance affect substantial rights of the defendant?\nWe shall conduct our review of each Rule 11 challenge solely on the basis of the record on appeal — principally the transcript of the plea colloquy hearing but also other portions of the record, such as any written plea agreement, the transcript of the sentencing hearing, and the sentence actually imposed. When we review post-plea colloquy sources, however, we shall consider only such information contained therein as is temporally relevant to the voluntary and uncoerced nature of the defendant’s guilty plea, and to his knowledge and understanding of the nature of the charges and the consequences of his plea.\nFinally, overarching the rule and the review procedure we announce today is our solemn admonition that nothing in this opinion should be construed as condoning even the slightest diminution in the degree of diligence that the district courts of this circuit are expected to devote to complying fully with both the letter and the spirit of Rule 11 in every instance.\nI\nFACTS\nDefendant-Appellant Michael Anthony Johnson pleaded guilty to one count of distribution of cocaine within 1,000 feet of a school playground, in violation of 21 U.S.C. §§ 841(a) and 860(a), and one count of unauthorized acquisition and possession of food stamps, in violation of 7 U.S.C. § 2024(b). During the Rule 11 plea colloquy, the district court informed Johnson of the maximum statutory penalty and supervised release term, but neglected to advise him that 21 U.S.C. § 860(a) carries a mandatory minimum penalty of one year imprisonment. Just before the district court accepted the plea, Johnson’s attorney intervened to place his own dialogue with Johnson on the record. After Johnson acknowledged that he had been informed by counsel that Johnson would be subject to a sentence enhancement under U.S.S.G. § 4B1.1 as a career offender, the following exchange took place:\n[Counsel]: Okay. And you understand that you’re looking in the neighborhood of 262 to 327 months, which is 21 years to 27 years, under the Federal Sentencing Guidelines. You understand that, do you not?\nDefendant Johnson: Yes, Sir.\n[Counsel]: And understanding that and my explaining to you two days ago or three days ago and then again — and then again today, do you still want to proceed with your plea?\nDefendant Johnson: Yes, Sir.\n[Counsel]: Okay. You understand what you’re looking at and you’re going into this with your eyes wide open?\nDefendant Johnson: Yes.\nThe district court accepted Johnson’s plea. After receipt of the Pre-Sentence Report (PSR), the court sentenced Johnson to 210 months imprisonment — over four years less than the shortest term that he had acknowledged (when he entered his plea) he was expecting to receive. Johnson nevertheless appealed his sentence, arguing that the district court’s failure to mention the mandatory minimum sentence of one year during the Rule 11 colloquy mandates vacatur, as such an omission could never be harmless error under our precedent. The panel of this court that heard Johnson’s appeal recognized that it was bound by United States v. Marti-rosian and dutifully vacated Johnson’s conviction and sentence, remanding the case to allow Johnson to plead anew.\nII\nANALYSIS\nA. Rule 11 and Our Interpretation\nRule 11 of the Federal Rules of Criminal Procedure provides:\n(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:\n(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect or any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; ...\n(h) Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.\nThis court has long analyzed Rule 11 as addressing three “core concerns”: (1) whether the guilty plea was coerced; (2) whether the defendant understands the nature of the charges; and (3) whether the defendant understands the consequences of his plea. Under our extant jurisprudence, a conviction on a plea of guilty is reversible ipso facto if, during the plea colloquy with the defendant, the trial court wholly or entirely “fail[s] to address one or more of the core requirements of Rule 11.” Thus, we have said that automatic reversal required two elements: (1) a total failure to address (2) a core concern. In contrast, when a trial court has addressed a core concern inadequately or in a “less than letter perfect manner,” or when a non-core concern was left totally unaddressed, we have reviewed the plea colloquy “under the harmless error standard of Rule 11(h) to determine whether the court’s imperfection affected substantial rights of the defendant.”\nUntil now, however, upon finding that a district court had made an error in a Rule 11 colloquy, our initial inquiry was: Are we faced with a total failure to address a core concern, which will mandate vacatur, or only with some lesser error or omission, which we review for harmless error under section (h) of Rule 11? In Bachynsky, for instance, the district court “informed [the defendant] of the nature of the charges against him; stated the elements of each of the crimes to which he was pleading guilty; stated the maximum statutory penalty for each crime to which he was pleading guilty; and then asked if he understood the elements and penalties associated with each count.” The trial court, however, neglected “personally [to] advise Dr. Bachynsky that his sentence could or would include a period of supervised release, or explain to Dr. Bachynsky the effect of supervised release.” That error was reviewed for harmlessness, as the imperfection involved “only one component [supervised release] of one element [the maximum penalty for which the defendant was liable] of one core concern [whether the defendant understands the consequences of his plea].”\nDespite the implication in Bachynsky that, except for a total failure to address one of the three nominate core concerns of Rule 11, we would test all Rule 11 errors for harmlessness, panels of this court have continued in the ensuing two years to take the per se approach even as to partial failures or errors not affecting entire core concerns. For example, in Martirosian the panel held that a failure to mention the mandatory minimum sentence “ ‘went to the heart of ” the third “core concern” — i.e., whether the defendant knew the consequences of his plea — and as such, constituted “a complete failure to address a Rule 11 concern, mandating that a plea be set aside.” In the instant ease, the district court, like the one in Martirosian, did not inform Johnson of the statutory minimum sentence that had to be imposed. The Johnson panel was therefore bound by stare decisis to follow Martirosian’s interpretation of Rule 11 vis-a-vis mandatory minimum sentences and set aside Johnson’s guilty plea without ever reaching the question of harmless error. But in so doing, the members of the Johnson panel implied, “loud and clear,” just how they felt in playing “Simon says” with a district court that neglected to mention a twelve month mandatory minimum to a defendant who acknowledged during the plea colloquy that he was facing a term of incar-eeration more than twenty times the mandatory minimum! That message was not lost on the other active judges of this court; we voted to consider Johnson en banc.\nB. Our “Core Concern” Analysis and the 1988 Amendment to Rule 11\nIn its en banc brief, the government argued that our current framework of “complete failure/partial failure” of a “core concern”—under which only errors deemed “partial failures” or errors that do not “go to the heart of a core concern” are reviewed for harmless error under Rule 11(h)—finds support in neither Rule ll(h)’s text nor the accompanying advisory committee notes. As we today review a district court error that has been held to “go to the heart of a core concern” (i.e., a total failure to address a core concern), we are positioned to conduct a retrospective examination of the phylogeny of our automatic reversal rule. When we thus reflect upon this bit of Fifth Circuit history, we cannot help but agree with the government and proceed to discard our automatic reversal analysis for the anachronism that it is—and that it has been for a decade.\nSection (h), which was added to Rule 11 by Congress in 1983, provides that “[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” Nevertheless, our continued reliance on the “core concern” analysis effectively preserved a privileged “teflon” class of variances—total failures to address core concerns—that remained exempt from any harmless error analysis. So, despite the advent of section (h), these sacred cows of the plea colloquy survived and continued to produce automatic vacatur. That approach arose in pre-1983 cases and, we recognize today, should have been supplanted by the 1983 addition of section (h) to Rule 11.\nThe advisory committee notes on section 11(h) make clear that “the harmless error rule of Rule 52(a) is applicable to Rule 11.” Unmodified, that statement means fully applicable. According to the committee notes, section (h) was added to Rule 11 in response to the continuation by several courts to follow McCarthy v. United States even after post-McCarthy amendments to Rule 11. Those courts had declined to apply harmless error analyses to most if not all Rule 11 errors. In McCarthy, which involved an appeal from a guilty plea that was accepted following a plea hearing which was flawed under Rule 11, the Supreme Court held\nthat prejudice inheres in a failure to comply with Rule 11, for noneompliance deprives the defendant of the Rule’s procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea. Our holding [is] that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew....\nConcerning McCarthy’s holding that any violation of Rule 11 created reversible error, the advisory notes accompanying the 1983 amendment asserted that “[t]hough the McCarthy per se rule may have been justified at the time and in the circumstances which obtained when the plea in that case was taken, this is no longer the case.” The committee cited the expansions and modifications to Rule 11 that had occurred since McCarthy, and expressed its belief that McCarthy, which involved a direct appeal, was actually directed at habeas cases in order to justify the amendment to Rule 11, under which all district court mistakes would be reviewed for harmless error.\nWith the benefit of hindsight, we now see that this circuit’s approach has had the effect of setting aside certain types of error—i.e., violations of “core concerns’—and retaining a “per se reversible error” rule as to those mistakes, while applying the new harmless error approach to others. Although we cast no aspersions on our own retention of the pre-1988 vestige of the rule, we inter it now in favor of the more straight-forward approach of universal application of Rule 11(h) harmless error analysis to review all complaints of Rule 11 violation in which we find that an error was made. Henceforth, if a mistake is made by the district court during the Rule 11 colloquy, it shall be reviewed for harmless error regardless of whether, under our prior system, the error or omission would have been classified as either total or partial, or would have been found to implicate either a core or non-core concern.\nC. Application of Harmless Error\nWe cannot over-emphasize that the application of the harmless error analysis to all errors made in Rule 11 colloquy cannot be viewed as in any way “nullifying important Rule 11 safeguards.” In fact, the advisory committee notes stress that the “kinds of Rule 11 violations which might be found to constitute harmless error upon direct appeal are fairly limited.” Even a casual review of the voluminous jurisprudence on point, produced by the several circuits during the decade since the adoption of Rule 11(h), demonstrates beyond peradventure that the admonition to scrutinize errors made during Rule 11 colloquies closely has indeed been taken to heart.\nTo determine whether a Rule 11 error is harmless (i.e., whether the error affects substantial rights), we focus on whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty. Stated another way, we “examine the facts and circumstances of the ... case to see if the district court’s flawed compliance with ... Rule 11 ... may reasonably be viewed as having been a material factor affecting [defendant’s decision to plead guilty.”\nIn making this determination, we must bear in mind that the issue “ ‘must be resolved solely on the basis of the Rule 11 transcript’ and the other portions (e.g., sentencing hearing) of the limited record made in such cases.” So, even though we are free to examine the entire record on appeal, including documentation that itself post-dates the plea hearing (such as the pre-sentence investigation report, objections thereto by the defendant, and the transcript of the sentencing hearing), we will consider only those temporally relevant matters that are revealed in the record. We shall not, for example, remand for further factual findings on the issue of harmlessness. If information known to or about the defendant, and his knowledge and understanding, is not revealed by the record on appeal, such information will not be factored in to our harmless error calculus.\nIn our review of the record to search for data that might counteract a deficiency in a plea colloquy sufficiently to negate harm, we shall not lose sight of the importance that Rule 11 places on the role of the district court. In designating the district judge as the one who must conduct the colloquy with the defendant and determine that the requirements for accepting a plea exist, Rule 11 recognizes the significance of the judge’s imprimatur on these proceedings. Therefore, before we accept other persons or proceedings in substitution for the judge as the source of information that must be known by or about the defendant, we shall endeavor to ascertain that such alternate sources are clothed with indicia of dignity, solemnity, and reliability sufficient to the purposes of the rule.\nWhen we apply these principles to the instant case, it is absolutely clear that Johnson understood that he was facing a sentencing range the low end of which was substantially greater than the one-year mandatory minimum. In his attorney’s words, Johnson was “going into this with [his] eyes wide open.” As recited above, the record demonstrates that Johnson understood that the least incarceration he was likely to receive under the guidelines was 21 years. Simply put, when a defendant is willing to accept a plea bargain and enter a guilty plea with the understanding that such plea is certain to produce a prison sentence of not less than 21 years, there is no reasonable probability that his possession of the additional knowledge that there happens to be a one-year mandatory minimum penalty associated with one of the crimes to which he is pleading could have affected his decision thus to plead guilty. This is the kind of common sense, logical analysis that hereafter we shall bring to bear in reviewing Rule 11 errors for harmlessness.\nToday we deal specifically with a mandatory minimum sentence; in Bachynsky, it was supervised release. But the nature of the particular error or the particular facet of the plea colloquy under consideration is immaterial — it could just as easily be fines, restitution, statutory máximums, sentence enhancement, promises and forbearances, rights waived, coercion, or any other matter about which a defendant is supposed to be informed and comprehend in order to plead guilty validly.\nIll\nCONCLUSION\nWe no longer recognize the existence of any category of error in the Rule 11 proceeding that will mandate automatic reversal. To the extent that any of our prior holdings are inconsistent with the rule we here espouse, they are overruled. Henceforth, all Rule 11 errors or omissions shall be tested under the provisions of section (h) in the manner discussed above. In so holding, we stress that “[section] (h) makes no change in the responsibilities of the judge at Rule 11 proceedings, but instead merely rejects the extreme sanction of automatic reversal.”\nIn the instant case, the district court’s variance from the procedures set forth in Rule 11, i.e., its failure to inform Johnson of a mandatory one-year period of incarceration, could not reasonably be deemed to have affected Johnson’s substantial interests when viewed in light of all that Johnson knew and understood about the probable length of his impending sentence. It is clear from the record that there is simply no way that his failure to hear, from the judge’s lips, that he (Johnson) was subject to a one-year mandatory minimum period of imprisonment could have possibly affected his decision to plead guilty. Johnson’s conviction is therefore\nAFFIRMED.\n. 934 F.2d 1349 (5th Cir.) (en banc), cert. denied. - U.S. -, 112 S.Ct. 402, 116 L.Ed.2d 351 (1991).\n. See United States v. Dayton, 604 F.2d 931, 939 (1979) (\"Where each of Rule 1 l's core inquiries [\"absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea”] has been reasonably implicated in the rule's required colloquy, we will examine its treatment to determine whether it has been sufficiently exposed to inquiry and determination.”).\n. Leon Trotsky (Lev Davidovich Bronstein), History of the Russian Revolution (1933), Vol. 3, Ch. 10; see also Augustin Burrill, Obiter Dicta (1884) “Carlyle\" (\"that great dust heap called 'history-’ ”)•\n. In so doing we join other circuits that have taken the same position. See e.g. United States v. Peden, 872 F.2d 1303, 1309 (7th Cir.1989); United States v. Vance, 868 F.2d 1167, 1172 (10th Cir.1989).\n. Fed.R.Crim.P. 11(h).\n. See Notes of Advisory Committee on Rules, 1983 Amendment, Rule 11(h). Unlike the position we take today, as taken previously by some other circuits (see n. 4 supra), there are circuits that appear to restrict harmless error review to the plea hearing transcript. See e.g. United States v. Hourihan, 936 F.2d 508, 511 (11th Cir.1991); United States v. Young, 927 F.2d 1060, 1062 (8th Cir.), cert. denied, - U.S. -, 112 S.Ct. 384, 116 L.Ed.2d 334 (1991); United States v. Goldberg, 862 F.2d 101, 105 (6th Cir.1988); United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369-70 (9th Cir.1988); United States v. Daniels, 821 F.2d 76, 80 (1st Cir.1987).\n. See Fed.R.Crim.P. 11.\n. United States v. Johnson, 983 F.2d 33, 34 (5th Cir. 1993). The court stated: \"The maximum possible punishment that can be assessed against a person convicted of that offense could be as many as 40 years of incarceration, followed by at least six years and up to 10 years of supervised release....\"\n. Johnson is illiterate, and his attorney sought to make a thorough record of what he had explained to Johnson.\n. 983 F.2d at 35.\n. 983 F.2d at 34. A term of 210 months was at the bottom of the guideline range that was calculated in the PSR. Johnson was also sentenced to six years supervised release, an aspect of his sentence not at issue here.\n. United States v. Martirosian, 967 F.2d 1036, 1039 (5th Cir.1992) (holding that “the failure to advise Martirosian of the minimum mandatory sentence was a complete failure to address a Rule 11 core concern, mandating that the plea be set aside”).\n. Id.\n. Bachynsky, 934 F.2d at 1354; United States v. Bernal, 861 F.2d 434, 436 (5th Cir.1988), cert. denied, 493 U.S. 872, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989); United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980).\n. United States v. Pierce, 893 F.2d 669, 679 (5th Cir.1990).\n. Bachynsky, 934 F.2d at 1354.\n. Id. at 1353.\n. Id. at 1355.\n. 967 F.2d at 1039 (quoting Pierce, 893 F.2d at 679, and discussing the 1974 amendments to Fed.R.Crim.P. 11).\n. Id.\n. See Bachynsky, 934 F.2d at 1358.\n. (Emphasis added).\n. See McCarthy v. United States, 394 U.S. 459, 471-72, 89 S.Ct. 1166, 1173-74, 22 L.Ed.2d 418 (1969); Dayton, 604 F.2d at 939-40.\n. 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).\n. Id. at 471-72, 89 S.Ct. at 1173-74.\n. It is difficult to imagine a situation in which the trial court would neglect entirely to mention one of what were formerly our \"core concerns” and, in so doing, not \"affect substantial rights.” Nevertheless, we give our prior analysis a ceremonious \"heave ho.” Cf. Harper v. Virginia Dep’t of Taxation, - U.S. -, -, 113 S.Ct. 2510, 2523-25, 125 L.Ed.2d 74 (1993) (Scalia, J., concurring).\n. Fed.R.CrimP. 11 (advisory committee notes to 1983 amendment).\n. Id.; see Twenty-Second Annual Review of Criminal Procedure, 81 GeoL.J. 853, 1205 & n. 1398 (1993).\n. Bachynsky, 934 F.2d at 1360 (citing United States v. Reyez-Ruiz, 868 F.2d 698, 703 (5th Cir.1989)).\n. Fed.R.Crim.P. 11 (advisory committee notes to 1983 amendment) (emphasis added) (quoting United States v. Coronado, 554 F.2d 166, 170 n. 5 (5th Cir.1977)).\n.We stress that the determination of harmless error in these cases is a fact sensitive inquiry, so our finding harmless error under today’s facts could well mean very little in the next case involving an erroneously omitted mandatory minimum sentence. For instance, in Martiro-sian, the trial court did not inform the defendant of a mandatory minimum of five years under 21 U.S.C. § 841(b)(1)(B). It is not clear from the opinion what guideline range Martirosian was looking at when he pleaded guilty, but he received a sentence of 114 months (9 ¡4 years), which included a \"two-level upward adjustment for obstruction of justice” for activity that occurred after the plea was taken. Martirosian, 967 F.2d at 1038. When, in a case such as Martirosian, a mandatory minimum sentence is almost as large as the sentencing guideline range, knowledge of that minimum may well be found necessary for the defendant to understand his situation fully. The failure to inform the defendant of such a mandatory minimum sentence is thus much more likely to “affect substantial rights.” See also Bachynsky, 934 F.2d at 1361 (finding the omission of a mandatory term of supervised release from a Rule 11 colloquy to be harmless error, we stated nevertheless that “under significantly less imposing facts and circumstances, we might well find that a district court's failure to explain supervised release does affect substantial interests of a defendant and thus is not harmless error”).\n. These include, without limitation, those per se plea vacatur opinions rendered since our en banc opinion in United States v. Bachynsky, 934 F.2d at 1349, e.g., United States v. Martirosian, 967 F.2d at 1036 (failure to mention mandatory minimum sentence); United States v. Pierce, 5 F.3d 791 (5th Cir. 1992) (unpublished) (failure to mention enhancement); and United States v. Whyte, 983 F.2d 231 (5th Cir.1992) (unpublished) (understatement of term of mandatory minimum sentence).\n. Fed.R.Crim.P. 11 (advisory committee notes to the 1983 amendment).", "type": "majority", "author": "WIENER, Circuit Judge:"}], "attorneys": ["Michael Anthony Johnson, pro se.", "John S. Broude, Gould, Broude & Nelson, Fort Worth, TX (Court-appointed), for defendant-appellant.", "Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony JOHNSON, Defendant-Appellant.\nNo. 92-8057.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 26, 1993.\nMichael Anthony Johnson, pro se.\nJohn S. Broude, Gould, Broude & Nelson, Fort Worth, TX (Court-appointed), for defendant-appellant.\nRichard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.\nBefore POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and DEMOSS, Circuit Judges."}	POLITZ	KING	GARWOOD	2	1	1	0	0	0	1 F.3d 296	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony JOHNSON, Defendant-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nWIENER, Circuit Judge:\nWe have taken this case en banc for the “housekeeping” purpose of deciding whether to complete the process we began two years ago with our en banc opinion in United States v. Backynsky. There, we eliminated the panel’s per se reversal of the defendant’s conviction for failure of the district court to make reference to or explain supervised release during the plea colloquy. We instead tested the effect of that omission by conducting a “harmless error” examination as authorized by Federal Rule of Criminal Procedure ll’s section (h), which was added to that Rule with the 1983 amendments. In so doing, however, we failed to repudiate our pre-amendment, jurisprudentially mandated taxonomy exercise of determining whether the plea colloquy error complained of should be categorized as a failure by the court to comply with one or more of the three “core concerns” of Rule 11, and if so whether such failure was total or partial.\nToday we acknowledge that in Bachynsky we went only halfway when we approved application of section (h)’s harmless error test to an imperfection in the plea colloquy, all the while continuing to embrace the pre-section (h) rubric of total or partial failures and core or non-core concerns. We now go the remaining “half the distance to the goal” of fully embracing section (h) by relegating that pre-amendment double dichotomy “into the dustbin of [the jurisprudential] history” of this circuit, replacing it entirely with the pure harmless error examination that was intended by adoption of section (h). Henceforth, no failure in the plea colloquy — regardless of whether it might be one of omission or commission, total or partial, core or non-core — will mandate an automatic reversal of a conviction and vacatur of a sentence. Rather, reversal and vacatur will be required when — but only when — the challenged “variance from the procedures required by [Rule 11] ... affeet[s] substantial rights” of the defendant. In other words, when an appellant claims that a district court has failed to comply with Rule 11, we shall conduct a straightforward, two-question “harmless error” analysis: (1) Did the sentencing court in fact vary from the procedures required by Rule 11, and (2) if so, did such variance affect substantial rights of the defendant?\nWe shall conduct our review of each Rule 11 challenge solely on the basis of the record on appeal — principally the transcript of the plea colloquy hearing but also other portions of the record, such as any written plea agreement, the transcript of the sentencing hearing, and the sentence actually imposed. When we review post-plea colloquy sources, however, we shall consider only such information contained therein as is temporally relevant to the voluntary and uncoerced nature of the defendant’s guilty plea, and to his knowledge and understanding of the nature of the charges and the consequences of his plea.\nFinally, overarching the rule and the review procedure we announce today is our solemn admonition that nothing in this opinion should be construed as condoning even the slightest diminution in the degree of diligence that the district courts of this circuit are expected to devote to complying fully with both the letter and the spirit of Rule 11 in every instance.\nI\nFACTS\nDefendant-Appellant Michael Anthony Johnson pleaded guilty to one count of distribution of cocaine within 1,000 feet of a school playground, in violation of 21 U.S.C. §§ 841(a) and 860(a), and one count of unauthorized acquisition and possession of food stamps, in violation of 7 U.S.C. § 2024(b). During the Rule 11 plea colloquy, the district court informed Johnson of the maximum statutory penalty and supervised release term, but neglected to advise him that 21 U.S.C. § 860(a) carries a mandatory minimum penalty of one year imprisonment. Just before the district court accepted the plea, Johnson’s attorney intervened to place his own dialogue with Johnson on the record. After Johnson acknowledged that he had been informed by counsel that Johnson would be subject to a sentence enhancement under U.S.S.G. § 4B1.1 as a career offender, the following exchange took place:\n[Counsel]: Okay. And you understand that you’re looking in the neighborhood of 262 to 327 months, which is 21 years to 27 years, under the Federal Sentencing Guidelines. You understand that, do you not?\nDefendant Johnson: Yes, Sir.\n[Counsel]: And understanding that and my explaining to you two days ago or three days ago and then again — and then again today, do you still want to proceed with your plea?\nDefendant Johnson: Yes, Sir.\n[Counsel]: Okay. You understand what you’re looking at and you’re going into this with your eyes wide open?\nDefendant Johnson: Yes.\nThe district court accepted Johnson’s plea. After receipt of the Pre-Sentence Report (PSR), the court sentenced Johnson to 210 months imprisonment — over four years less than the shortest term that he had acknowledged (when he entered his plea) he was expecting to receive. Johnson nevertheless appealed his sentence, arguing that the district court’s failure to mention the mandatory minimum sentence of one year during the Rule 11 colloquy mandates vacatur, as such an omission could never be harmless error under our precedent. The panel of this court that heard Johnson’s appeal recognized that it was bound by United States v. Marti-rosian and dutifully vacated Johnson’s conviction and sentence, remanding the case to allow Johnson to plead anew.\nII\nANALYSIS\nA. Rule 11 and Our Interpretation\nRule 11 of the Federal Rules of Criminal Procedure provides:\n(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:\n(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect or any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; ...\n(h) Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.\nThis court has long analyzed Rule 11 as addressing three “core concerns”: (1) whether the guilty plea was coerced; (2) whether the defendant understands the nature of the charges; and (3) whether the defendant understands the consequences of his plea. Under our extant jurisprudence, a conviction on a plea of guilty is reversible ipso facto if, during the plea colloquy with the defendant, the trial court wholly or entirely “fail[s] to address one or more of the core requirements of Rule 11.” Thus, we have said that automatic reversal required two elements: (1) a total failure to address (2) a core concern. In contrast, when a trial court has addressed a core concern inadequately or in a “less than letter perfect manner,” or when a non-core concern was left totally unaddressed, we have reviewed the plea colloquy “under the harmless error standard of Rule 11(h) to determine whether the court’s imperfection affected substantial rights of the defendant.”\nUntil now, however, upon finding that a district court had made an error in a Rule 11 colloquy, our initial inquiry was: Are we faced with a total failure to address a core concern, which will mandate vacatur, or only with some lesser error or omission, which we review for harmless error under section (h) of Rule 11? In Bachynsky, for instance, the district court “informed [the defendant] of the nature of the charges against him; stated the elements of each of the crimes to which he was pleading guilty; stated the maximum statutory penalty for each crime to which he was pleading guilty; and then asked if he understood the elements and penalties associated with each count.” The trial court, however, neglected “personally [to] advise Dr. Bachynsky that his sentence could or would include a period of supervised release, or explain to Dr. Bachynsky the effect of supervised release.” That error was reviewed for harmlessness, as the imperfection involved “only one component [supervised release] of one element [the maximum penalty for which the defendant was liable] of one core concern [whether the defendant understands the consequences of his plea].”\nDespite the implication in Bachynsky that, except for a total failure to address one of the three nominate core concerns of Rule 11, we would test all Rule 11 errors for harmlessness, panels of this court have continued in the ensuing two years to take the per se approach even as to partial failures or errors not affecting entire core concerns. For example, in Martirosian the panel held that a failure to mention the mandatory minimum sentence “ ‘went to the heart of ” the third “core concern” — i.e., whether the defendant knew the consequences of his plea — and as such, constituted “a complete failure to address a Rule 11 concern, mandating that a plea be set aside.” In the instant ease, the district court, like the one in Martirosian, did not inform Johnson of the statutory minimum sentence that had to be imposed. The Johnson panel was therefore bound by stare decisis to follow Martirosian’s interpretation of Rule 11 vis-a-vis mandatory minimum sentences and set aside Johnson’s guilty plea without ever reaching the question of harmless error. But in so doing, the members of the Johnson panel implied, “loud and clear,” just how they felt in playing “Simon says” with a district court that neglected to mention a twelve month mandatory minimum to a defendant who acknowledged during the plea colloquy that he was facing a term of incar-eeration more than twenty times the mandatory minimum! That message was not lost on the other active judges of this court; we voted to consider Johnson en banc.\nB. Our “Core Concern” Analysis and the 1988 Amendment to Rule 11\nIn its en banc brief, the government argued that our current framework of “complete failure/partial failure” of a “core concern”—under which only errors deemed “partial failures” or errors that do not “go to the heart of a core concern” are reviewed for harmless error under Rule 11(h)—finds support in neither Rule ll(h)’s text nor the accompanying advisory committee notes. As we today review a district court error that has been held to “go to the heart of a core concern” (i.e., a total failure to address a core concern), we are positioned to conduct a retrospective examination of the phylogeny of our automatic reversal rule. When we thus reflect upon this bit of Fifth Circuit history, we cannot help but agree with the government and proceed to discard our automatic reversal analysis for the anachronism that it is—and that it has been for a decade.\nSection (h), which was added to Rule 11 by Congress in 1983, provides that “[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” Nevertheless, our continued reliance on the “core concern” analysis effectively preserved a privileged “teflon” class of variances—total failures to address core concerns—that remained exempt from any harmless error analysis. So, despite the advent of section (h), these sacred cows of the plea colloquy survived and continued to produce automatic vacatur. That approach arose in pre-1983 cases and, we recognize today, should have been supplanted by the 1983 addition of section (h) to Rule 11.\nThe advisory committee notes on section 11(h) make clear that “the harmless error rule of Rule 52(a) is applicable to Rule 11.” Unmodified, that statement means fully applicable. According to the committee notes, section (h) was added to Rule 11 in response to the continuation by several courts to follow McCarthy v. United States even after post-McCarthy amendments to Rule 11. Those courts had declined to apply harmless error analyses to most if not all Rule 11 errors. In McCarthy, which involved an appeal from a guilty plea that was accepted following a plea hearing which was flawed under Rule 11, the Supreme Court held\nthat prejudice inheres in a failure to comply with Rule 11, for noneompliance deprives the defendant of the Rule’s procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea. Our holding [is] that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew....\nConcerning McCarthy’s holding that any violation of Rule 11 created reversible error, the advisory notes accompanying the 1983 amendment asserted that “[t]hough the McCarthy per se rule may have been justified at the time and in the circumstances which obtained when the plea in that case was taken, this is no longer the case.” The committee cited the expansions and modifications to Rule 11 that had occurred since McCarthy, and expressed its belief that McCarthy, which involved a direct appeal, was actually directed at habeas cases in order to justify the amendment to Rule 11, under which all district court mistakes would be reviewed for harmless error.\nWith the benefit of hindsight, we now see that this circuit’s approach has had the effect of setting aside certain types of error—i.e., violations of “core concerns’—and retaining a “per se reversible error” rule as to those mistakes, while applying the new harmless error approach to others. Although we cast no aspersions on our own retention of the pre-1988 vestige of the rule, we inter it now in favor of the more straight-forward approach of universal application of Rule 11(h) harmless error analysis to review all complaints of Rule 11 violation in which we find that an error was made. Henceforth, if a mistake is made by the district court during the Rule 11 colloquy, it shall be reviewed for harmless error regardless of whether, under our prior system, the error or omission would have been classified as either total or partial, or would have been found to implicate either a core or non-core concern.\nC. Application of Harmless Error\nWe cannot over-emphasize that the application of the harmless error analysis to all errors made in Rule 11 colloquy cannot be viewed as in any way “nullifying important Rule 11 safeguards.” In fact, the advisory committee notes stress that the “kinds of Rule 11 violations which might be found to constitute harmless error upon direct appeal are fairly limited.” Even a casual review of the voluminous jurisprudence on point, produced by the several circuits during the decade since the adoption of Rule 11(h), demonstrates beyond peradventure that the admonition to scrutinize errors made during Rule 11 colloquies closely has indeed been taken to heart.\nTo determine whether a Rule 11 error is harmless (i.e., whether the error affects substantial rights), we focus on whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty. Stated another way, we “examine the facts and circumstances of the ... case to see if the district court’s flawed compliance with ... Rule 11 ... may reasonably be viewed as having been a material factor affecting [defendant’s decision to plead guilty.”\nIn making this determination, we must bear in mind that the issue “ ‘must be resolved solely on the basis of the Rule 11 transcript’ and the other portions (e.g., sentencing hearing) of the limited record made in such cases.” So, even though we are free to examine the entire record on appeal, including documentation that itself post-dates the plea hearing (such as the pre-sentence investigation report, objections thereto by the defendant, and the transcript of the sentencing hearing), we will consider only those temporally relevant matters that are revealed in the record. We shall not, for example, remand for further factual findings on the issue of harmlessness. If information known to or about the defendant, and his knowledge and understanding, is not revealed by the record on appeal, such information will not be factored in to our harmless error calculus.\nIn our review of the record to search for data that might counteract a deficiency in a plea colloquy sufficiently to negate harm, we shall not lose sight of the importance that Rule 11 places on the role of the district court. In designating the district judge as the one who must conduct the colloquy with the defendant and determine that the requirements for accepting a plea exist, Rule 11 recognizes the significance of the judge’s imprimatur on these proceedings. Therefore, before we accept other persons or proceedings in substitution for the judge as the source of information that must be known by or about the defendant, we shall endeavor to ascertain that such alternate sources are clothed with indicia of dignity, solemnity, and reliability sufficient to the purposes of the rule.\nWhen we apply these principles to the instant case, it is absolutely clear that Johnson understood that he was facing a sentencing range the low end of which was substantially greater than the one-year mandatory minimum. In his attorney’s words, Johnson was “going into this with [his] eyes wide open.” As recited above, the record demonstrates that Johnson understood that the least incarceration he was likely to receive under the guidelines was 21 years. Simply put, when a defendant is willing to accept a plea bargain and enter a guilty plea with the understanding that such plea is certain to produce a prison sentence of not less than 21 years, there is no reasonable probability that his possession of the additional knowledge that there happens to be a one-year mandatory minimum penalty associated with one of the crimes to which he is pleading could have affected his decision thus to plead guilty. This is the kind of common sense, logical analysis that hereafter we shall bring to bear in reviewing Rule 11 errors for harmlessness.\nToday we deal specifically with a mandatory minimum sentence; in Bachynsky, it was supervised release. But the nature of the particular error or the particular facet of the plea colloquy under consideration is immaterial — it could just as easily be fines, restitution, statutory máximums, sentence enhancement, promises and forbearances, rights waived, coercion, or any other matter about which a defendant is supposed to be informed and comprehend in order to plead guilty validly.\nIll\nCONCLUSION\nWe no longer recognize the existence of any category of error in the Rule 11 proceeding that will mandate automatic reversal. To the extent that any of our prior holdings are inconsistent with the rule we here espouse, they are overruled. Henceforth, all Rule 11 errors or omissions shall be tested under the provisions of section (h) in the manner discussed above. In so holding, we stress that “[section] (h) makes no change in the responsibilities of the judge at Rule 11 proceedings, but instead merely rejects the extreme sanction of automatic reversal.”\nIn the instant case, the district court’s variance from the procedures set forth in Rule 11, i.e., its failure to inform Johnson of a mandatory one-year period of incarceration, could not reasonably be deemed to have affected Johnson’s substantial interests when viewed in light of all that Johnson knew and understood about the probable length of his impending sentence. It is clear from the record that there is simply no way that his failure to hear, from the judge’s lips, that he (Johnson) was subject to a one-year mandatory minimum period of imprisonment could have possibly affected his decision to plead guilty. Johnson’s conviction is therefore\nAFFIRMED.\n. 934 F.2d 1349 (5th Cir.) (en banc), cert. denied. - U.S. -, 112 S.Ct. 402, 116 L.Ed.2d 351 (1991).\n. See United States v. Dayton, 604 F.2d 931, 939 (1979) (\"Where each of Rule 1 l's core inquiries [\"absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea”] has been reasonably implicated in the rule's required colloquy, we will examine its treatment to determine whether it has been sufficiently exposed to inquiry and determination.”).\n. Leon Trotsky (Lev Davidovich Bronstein), History of the Russian Revolution (1933), Vol. 3, Ch. 10; see also Augustin Burrill, Obiter Dicta (1884) “Carlyle\" (\"that great dust heap called 'history-’ ”)•\n. In so doing we join other circuits that have taken the same position. See e.g. United States v. Peden, 872 F.2d 1303, 1309 (7th Cir.1989); United States v. Vance, 868 F.2d 1167, 1172 (10th Cir.1989).\n. Fed.R.Crim.P. 11(h).\n. See Notes of Advisory Committee on Rules, 1983 Amendment, Rule 11(h). Unlike the position we take today, as taken previously by some other circuits (see n. 4 supra), there are circuits that appear to restrict harmless error review to the plea hearing transcript. See e.g. United States v. Hourihan, 936 F.2d 508, 511 (11th Cir.1991); United States v. Young, 927 F.2d 1060, 1062 (8th Cir.), cert. denied, - U.S. -, 112 S.Ct. 384, 116 L.Ed.2d 334 (1991); United States v. Goldberg, 862 F.2d 101, 105 (6th Cir.1988); United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369-70 (9th Cir.1988); United States v. Daniels, 821 F.2d 76, 80 (1st Cir.1987).\n. See Fed.R.Crim.P. 11.\n. United States v. Johnson, 983 F.2d 33, 34 (5th Cir. 1993). The court stated: \"The maximum possible punishment that can be assessed against a person convicted of that offense could be as many as 40 years of incarceration, followed by at least six years and up to 10 years of supervised release....\"\n. Johnson is illiterate, and his attorney sought to make a thorough record of what he had explained to Johnson.\n. 983 F.2d at 35.\n. 983 F.2d at 34. A term of 210 months was at the bottom of the guideline range that was calculated in the PSR. Johnson was also sentenced to six years supervised release, an aspect of his sentence not at issue here.\n. United States v. Martirosian, 967 F.2d 1036, 1039 (5th Cir.1992) (holding that “the failure to advise Martirosian of the minimum mandatory sentence was a complete failure to address a Rule 11 core concern, mandating that the plea be set aside”).\n. Id.\n. Bachynsky, 934 F.2d at 1354; United States v. Bernal, 861 F.2d 434, 436 (5th Cir.1988), cert. denied, 493 U.S. 872, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989); United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980).\n. United States v. Pierce, 893 F.2d 669, 679 (5th Cir.1990).\n. Bachynsky, 934 F.2d at 1354.\n. Id. at 1353.\n. Id. at 1355.\n. 967 F.2d at 1039 (quoting Pierce, 893 F.2d at 679, and discussing the 1974 amendments to Fed.R.Crim.P. 11).\n. Id.\n. See Bachynsky, 934 F.2d at 1358.\n. (Emphasis added).\n. See McCarthy v. United States, 394 U.S. 459, 471-72, 89 S.Ct. 1166, 1173-74, 22 L.Ed.2d 418 (1969); Dayton, 604 F.2d at 939-40.\n. 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).\n. Id. at 471-72, 89 S.Ct. at 1173-74.\n. It is difficult to imagine a situation in which the trial court would neglect entirely to mention one of what were formerly our \"core concerns” and, in so doing, not \"affect substantial rights.” Nevertheless, we give our prior analysis a ceremonious \"heave ho.” Cf. Harper v. Virginia Dep’t of Taxation, - U.S. -, -, 113 S.Ct. 2510, 2523-25, 125 L.Ed.2d 74 (1993) (Scalia, J., concurring).\n. Fed.R.CrimP. 11 (advisory committee notes to 1983 amendment).\n. Id.; see Twenty-Second Annual Review of Criminal Procedure, 81 GeoL.J. 853, 1205 & n. 1398 (1993).\n. Bachynsky, 934 F.2d at 1360 (citing United States v. Reyez-Ruiz, 868 F.2d 698, 703 (5th Cir.1989)).\n. Fed.R.Crim.P. 11 (advisory committee notes to 1983 amendment) (emphasis added) (quoting United States v. Coronado, 554 F.2d 166, 170 n. 5 (5th Cir.1977)).\n.We stress that the determination of harmless error in these cases is a fact sensitive inquiry, so our finding harmless error under today’s facts could well mean very little in the next case involving an erroneously omitted mandatory minimum sentence. For instance, in Martiro-sian, the trial court did not inform the defendant of a mandatory minimum of five years under 21 U.S.C. § 841(b)(1)(B). It is not clear from the opinion what guideline range Martirosian was looking at when he pleaded guilty, but he received a sentence of 114 months (9 ¡4 years), which included a \"two-level upward adjustment for obstruction of justice” for activity that occurred after the plea was taken. Martirosian, 967 F.2d at 1038. When, in a case such as Martirosian, a mandatory minimum sentence is almost as large as the sentencing guideline range, knowledge of that minimum may well be found necessary for the defendant to understand his situation fully. The failure to inform the defendant of such a mandatory minimum sentence is thus much more likely to “affect substantial rights.” See also Bachynsky, 934 F.2d at 1361 (finding the omission of a mandatory term of supervised release from a Rule 11 colloquy to be harmless error, we stated nevertheless that “under significantly less imposing facts and circumstances, we might well find that a district court's failure to explain supervised release does affect substantial interests of a defendant and thus is not harmless error”).\n. These include, without limitation, those per se plea vacatur opinions rendered since our en banc opinion in United States v. Bachynsky, 934 F.2d at 1349, e.g., United States v. Martirosian, 967 F.2d at 1036 (failure to mention mandatory minimum sentence); United States v. Pierce, 5 F.3d 791 (5th Cir. 1992) (unpublished) (failure to mention enhancement); and United States v. Whyte, 983 F.2d 231 (5th Cir.1992) (unpublished) (understatement of term of mandatory minimum sentence).\n. Fed.R.Crim.P. 11 (advisory committee notes to the 1983 amendment).\n[END_CASE]", "role": "user" } ]
10,510,363	Thomas Martin MALINA and Mrs. Thomas Martin Malina, Plaintiffs-Appellees, v. Judge Douglas GONZALES, Defendant-Appellant	Malina v. Gonzales	1993-08-26	No. 91-3757	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY, District Judge:"], "parties": ["Thomas Martin MALINA and Mrs. Thomas Martin Malina, Plaintiffs-Appellees, v. Judge Douglas GONZALES, Defendant-Appellant."], "opinions": [{"text": "PER CURIAM:\nThe petition for rehearing is DENIED.\nIn their petition for rehearing, the plaintiffs point out that the court has erred in saying that Malina was told to appear in court the next day. The plaintiffs correctly show that the Second Amended Complaint alleges that Malina was told to appear in the judge’s office the next day. We hereby correct the opinion in this regard. This does not alter our analysis or the result, however. As our opinion states, one of the four factors from McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972), is whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers.", "type": "majority", "author": "PER CURIAM:"}, {"text": "EMILIO M. GARZA, Circuit Judge,\nconcurring in part and dissenting in part.\nI concur in almost every aspect of the majority opinion except one: I would hold that Judge Gonzales is not absolutely immune from prosecution for holding Malina in contempt of court. This case is not a case of “excess jurisdiction,” but rather a case of “clear absence of all jurisdiction.” Crucial are the following facts:\n[A] Baton Rouge city police officer appeared at Malina’s home and told Malina that Judge Gonzales wanted to see him in his [office] at [8:30 a.m. before court] the next day. [Malina asked if any charges had been filed against him. The officer replied “no,”] he was there unofficially [to deliver a message] as a favor to Judge Gonzales, but the Judge could issue a bench warrant for Malina’s arrest if Malina did not appear.\nMalina appeared at [the] court[room] the next morning, but found the courtroom closed to the public. [Malina proceeded to Judge Gonzales’s office.] When Judge Gonzales arrived, he instructed Malina to wait in the empty courtroom. A few minutes later, Judge Gonzales, a bailiff, and a deputy sheriff entered the courtroom.... [Judge Gonzales] read from a book and stated that judges are police officers with the authority to arrest individuals. The Judge handed a green slip of paper to the bailiff and told Malina to appear before the duty-judge on May 2, 1988, concerning traffic violations. Malina asked with what he had been charged, and Judge Gonzales responded with “fleeing to allude,” “resisting an officer,” “public endangerment,” “disobeying an officer,” “reckless driving,” and “leaving the scene.” The Judge added that the charges would convince Malina to obey an order and pull over the next time anyone with a flashing light pulled alongside him. Malina responded that he did not feel comfortable stopping for unmarked vehicles with flashing lights because anyone can buy such a light.\nAt this point, Judge Gonzales cited Malina with contempt and sentenced him to five hours in jail. Malina was handcuffed, fingerprinted, photographed, and imprisoned.\n994 F.2d at 1123.\nAlthough I agree that Judge Gonzales, as a Louisiana state judge, had the power to punish for contempt, see La.Code Civ.Proc.Ann. art. 222 (West 1960), and that the issuance of the contempt citation occurred within a courtroom, no case was pending before Judge Gonzales. He therefore lacked subject matter jurisdiction for the purpose of judicial immunity. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1871); Adams, 764 F.2d at 298; Brewer v. Blackwell, 692 F.2d 387 (5th Cir.1982). Moreover, Judge Gonzales’s exercise of his contempt power presupposed, rather than conferred subject-matter jurisdiction.\nThe only reason Malina was in the courtroom was because a Baton Rouge police officer — on an unofficial visit on behalf of Judge Gonzales — asked Malina to appear the next day. The jurisdiction prong for judicial immunity requires that judges possess the authority to perform actions relating to a matter before them. See, e.g., Mireles v. Waco, — U.S. -, -, 112 S.Ct. 286, 289, 116 L.Ed.2d 9 (1991) (“[Sjuch an action — taken in the very aid of the judge’s jurisdiction over a matter before him — cannot be said to have been taken in the absence of jurisdiction.” (emphasis added)); Stump v. Sparkman, 435 U.S. 349, 351-52, 98 S.Ct. 1099, 1102-03, 55 L.Ed.2d 331 (1978) (stating that sterilization petition was before state court judge); Adams, 764 F.2d at 298 (stating that the objectionable contempt order arose out of a criminal case involving the plaintiffs sons, over which the judge presided). Moreover, Judge Gonzales’s actions did not occur while he had subject matter jurisdiction over any other claim. See Adams, 764 F.2d at 297 n. 2 (citing as an example of a judicially immune action, the situation where a judge cites a person raising a disturbance immediately outside his courtroom window for contempt, assumedly while ongoing proceedings are before the judge). Therefore, at the time Judge Gonzales cited Malina for contempt, he was acting in “clear absence of all jurisdiction.”\nFurthermore, the factors that support immunity for judicial acts are not implicated by Judge Gonzales’s conduct. As Chief Justice Warren stated:\nIt is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation.\nSee Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967); see also Thomas v. Sams, 734 F.2d 185, 189 (5th Cir.1984) (quoting Pierson). There was no ease pending before Judge Gonzales when he held Malina in contempt. Thus, the policy behind judicial immunity — encouragement of “fearless decision-making” free from the intimidation of vexatious litigation — has no bearing on Judge Gonzales’s conduct. Conversely, the dangers implicit in his conduct— over-reaching from the joinder of executive and judicial powers — have been apparent since before the Constitution. See The Federalist No. 47, at 303 (James Madison) (Clinton Rossiter ed., 1961) (“Were the power of judging joined ... to the executive power, the judge might behave with all the violence of an oppressor.\" (quoting Montesquieu)).\nI would therefore hold that Judge Gonzales is not judicially immune for the issuance of the contempt citation and sentencing, because these “actions ... [were] taken in the complete absence of all jurisdiction.” Mireles, — U.S. at -, 112 S.Ct. at 288. Accordingly, I would affirm the district court’s denial of the motion to dismiss in its entirety.\n. I am acutely aware of the possible misuses of this dissent. As Judge Goldberg correctly pointed out:\n[T]he opening of any inroads weakening judicial immunity could have the gravest consequences to our system of justice. Every judicial act is done \"under color of law;” absent the doctrine, every judicial error affecting a citizen's rights could thus ultimately subject the judge to section 1983 liability. To be sure, we can conjure converse chambers of horrors, but we cannot allow that to erode the necessary features of the immunity. That judicial immunity is sometimes used as an offensive dagger rather than a defensive shield must not justify derogating its inviolability. Even though there may be an occasional diabolical or venal judicial act, the independence of the judiciary must not be sacrificed one microscopic portion of a millimeter, lest the fears of section 1983 intrusions cow the judge from his duty.\nMcAlester v. Brown, 469 F.2d 1280, 1283 (5th Cir.1972). And like Judge Hill, I would caution those who read this opinion to be wary that this dissent \"is exceedingly narrow and is tailored to this, the rarest of factual settings.” Harper v. Merckle, 638 F.2d 848, 859 (5th Cir.1981) (footnote omitted).\n. See Stump v. Sparkman, 435 U.S. 349, 356-357, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978) (\"A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.’ \" (citation and footnote omitted)).\n. My disagreement with the majority opinion does not stem from the standard of review. The majority correctly states that \"[a]bsolute judicial immunity extends to all judicial acts that are not performed in the clear absence of all jurisdiction[,]\" or, conversely, \"a judge has no immunity (1) for actions taken outside of his judicial capacity, or (2) for actions that are judicial in nature, but occur in complete absence of all jurisdiction.” 994 F.2d at 1124 (citations omitted).\nThe majority also properly focuses on the four factors first articulated by Judge Goldberg in McAlester to determine whether Judge Gonzales acted in his judicial capacity — (1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity. McAlester, 469 F.2d at 1282. I also agree that these four factors should be broadly construed and that immunity may be afforded although one or more factors is not met. See Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir.1985). The question presented is not whether Judge Gonzales’ action in holding Malina in contempt and sentencing him to five hours in jail was “judicial in nature,” but rather whether it occurred \"in complete absence of all jurisdiction.” But see infra n. 7.\n. The district court correctly held, in \"deciding this [Rule 12(b)(6)] motion to dismiss, the court must accept 'all allegations of the complaint ... as true, along with any reasonable inferences that may be drawn therefrom.’\" See Record Excerpts for Gonzales tab 4, at 6 (quoting Watts v. Graves, 720 F.2d 1416, 1419 (5th Cir.1983)). And so must we. See Tanglewood East Homeowners v. Charles Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir.1988).\n. Judge Gonzales' finding of contempt was a direct result of Malina's reaction to the charges and Judge Gonzales’ admonition \"that the charges would convince Malina to obey an order and pull over the next time anyone with a flashing light pulled alongside him.” See 994 F.2d at 1123. \"It is well settled that charging a defendant is a prosecutorial function, not a judicial function.” Id., (citing Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir.), cert. denied, 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980)). As a prosecutor, Judge Gonzales had no authority to hold Malina in contempt.\n. See La.Code Civ.Proc.Ann. art. 2 (West 1960) (\"Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.”).\n. See La.Code Civ.Proc.Ann. art. 221 (West 1960) (“A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for authority.”); see also La.Code Crim.Proc.Ann. art. 20 (West 1991) (same). See also Detoumion v. Dormenon, 1 Mart., O.S. (1810) (holding that an insult to a parish judge acting as an auctioneer, is not a contempt of him in his judicial capacity, and cannot be punished); Junius Hart Piano House v. Ingman, 119 La. 1017, 44 So. 850, 852 (1907) (citing with approval Detoumion).\n.I am also somewhat skeptical of the majority’s conclusion that the issuance of the contempt citation was a judicial act. An application of the four McAlester factors reveals that the issuance of the contempt citation did not arise from: (1) a case pending before Judge Gonzales; or (2) a visit to Judge Gonzales in his official capacity. Although Malina was told — by a Baton Rouge police officer on an unofficial visit — to report to Judge Gonzales’s office, Malina was never told why he was being “summoned,” or that he was going to be charged with a crime. In a case involving similarly egregious facts, we focused on these particular McAlester factors to support our holding that certain actions by a judge were not \"judicial acts.\" See Harper, 638 F.2d at 858-59 (emphasizing third and fourth McAlester factors because the determination of what constitutes a \"judicial act,” must include a consideration of the “expectations of the parties”). But see Adams, 764 F.2d at 298 n. 4 (noting that Harper's reliance on the personal motivation of the judge in arriving at its holding was inconsistent with Supreme Court and Fifth Circuit precedent).\n. For the reasons stated in this dissent, I would also affirm the district court’s holding denying Judge Gonzales qualified immunity on the issue of Malina's contempt and sentence. See Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 3042, 97 L.Ed.2d 523 (1987) (stating that an official is protected by qualified immunity if his actions were reasonable under the law).", "type": "concurring-in-part-and-dissenting-in-part", "author": "EMILIO M. GARZA, Circuit Judge,"}], "attorneys": ["Charles L. Patín, Jr., Roy A. Mongrue, Jr., Asst. Atty. Gen., LA Dept, of Justice, Charles S. McCowan, Jr., Baton Rouge, LA, for defendant-appellant.", "Theodor Allen Schirmer, Malibu, CA, for plaintiffs-appellees."], "corrections": "", "head_matter": "Thomas Martin MALINA and Mrs. Thomas Martin Malina, Plaintiffs-Appellees, v. Judge Douglas GONZALES, Defendant-Appellant.\nNo. 91-3757.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 26, 1993.\nCharles L. Patín, Jr., Roy A. Mongrue, Jr., Asst. Atty. Gen., LA Dept, of Justice, Charles S. McCowan, Jr., Baton Rouge, LA, for defendant-appellant.\nTheodor Allen Schirmer, Malibu, CA, for plaintiffs-appellees.\nBefore SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY, District Judge:\nDistrict Judge of the Southern District of Texas, sitting by designation."}	SMITH	EMILIO M. GARZA	RAINEY	1	2	1	1	0	0	1 F.3d 304	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Thomas Martin MALINA and Mrs. Thomas Martin Malina, Plaintiffs-Appellees, v. Judge Douglas GONZALES, Defendant-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPER CURIAM:\nThe petition for rehearing is DENIED.\nIn their petition for rehearing, the plaintiffs point out that the court has erred in saying that Malina was told to appear in court the next day. The plaintiffs correctly show that the Second Amended Complaint alleges that Malina was told to appear in the judge’s office the next day. We hereby correct the opinion in this regard. This does not alter our analysis or the result, however. As our opinion states, one of the four factors from McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972), is whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers.\n[END_CASE]", "role": "user" } ]
10,510,430	UNITED STATES of America, Plaintiff-Appellee, v. Steve Wayne HOLLOWAY and Edwin L. Hines, Defendants-Appellants	United States v. Holloway	1993-08-26	No. 92-1652	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before JOHNSON, JOLLY, and JONES, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Steve Wayne HOLLOWAY and Edwin L. Hines, Defendants-Appellants."], "opinions": [{"text": "E. GRADY JOLLY, Circuit Judge:\nSteve Wayne Holloway and Edwin L. Hines were convicted for committing a series of armed robberies. Hines appeals only his sentence. Holloway appeals both his conviction and his sentence. We conclude that the district court did not err in sentencing Hines and therefore affirm his sentence. We further conclude, however, that the district court committed reversible error in denying Holloway’s motion for severance of offenses — the robberies on the one hand and, on the other, the possession of a weapon two months after the robberies. We therefore reverse Holloway’s convictions and remand for a new trial on all counts.\nI\nBetween October 30, 1991 and December 9, 1991, five robberies were committed at food stores in the same area of Fort Worth, Texas. The first robbery involved three robbers. The last four involved only two robbers. During each robbery, the robbers ordered the store employees and others inside the store to lie down on the floor; they then took cash and cartons of cigarettes from the stores.\nAlmost two months after the last robbery occurred, officers arrested Holloway and Hines based on identifications made by victims of the robberies. When Holloway was arrested, officers found a firearm in his possession. The firearm was a .25 Raven, a small weapon that fits in one’s back pocket.\nOn February 26, 1992, Holloway and Hines were indicted on charges of (1) conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951; (2) aiding and abetting and interfering with commerce by robbery in violation of 18 U.S.C. § 1951; and (3) aiding and abetting and knowingly carrying and using a firearm during and in relation to the commission of a crime of violence in violation of 18 U.S.C. § 924(c) (“the robbery charges”). In addition, Holloway was indicted on an additional count as a felon who knowingly and unlawfully possessed a firearm in violation of 18 U.S.C. § 922(g)(1) (“the weapons charge”).\nHolloway moved for severance of the weapons charge, arguing that pursuant to Rule 14 of the Federal Rules of Criminal Procedure the joinder of this offense with his robbery offenses would prejudice him at trial. The district court, however, denied Holloway’s motion for severance and thus Holloway proceeded to trial on the robbery charges as well as the weapons charge. After the government had presented its witnesses regarding the robbery charges, Holloway stipulated that he was a convicted felon and pled guilty to the weapons charge, a tactical move to prevent the government from presenting evidence of his previous criminal record, which was relevant only for that charge. The remaining counts therefore involved only the robberies. Holloway then testified in his own defense that he had not committed any of the robberies. During cross-examination, the government offered evidence of the weapons conviction to which Holloway had just pled guilty. The district court permitted the government to explore the conviction, stating that it shed light upon Holloway’s “nature.” The district court later stated — without reasons — that the conviction had “some relevance” under Rule 404(b) of the Federal Rules of Evidence. The jury convicted Holloway on five counts, but acquitted him on two. Hines, however, was convicted on all counts.\nAlthough the government had not adduced evidence at trial connecting Holloway to the robbery charges for which he was acquitted, at the sentencing hearing the district court allowed the government to present evidence of Hines’s unsworn statements, given to police soon after his arrest, that Holloway had participated in that robbery. Under cross-examination, however, Hines testified that this assertion was not true; he had just told the police what they wanted to hear. Hines also testified that he had made the statement when he was suffering from heroin withdrawal and that he actually did not know whether Holloway had been involved in the robbery.\nNo other evidence connected Holloway to the robbery of which he was acquitted; the district court found, however, that Holloway had been involved in the robbery and considered it for sentencing purposes. Because of this factor, almost eleven years were added to Holloway’s sentence. Furthermore, in sentencing Holloway and Hines pursuant to their convictions for violating 18 U.S.C. § 924(c), the district court enhanced their sentences based on a second conviction obtained in the same trial. Both Hines and Holloway appeal.\nII\nOn appeal, Hines raises only one issue before this court, which is also one of the issues Holloway raises: Whether the district court erred in applying 18 U.S.C. § 924(c) in sentencing them. In United States v. Deal, 954 F.2d 262 (5th Cir.1992), we held that a “second or subsequent conviction” within the meaning of § 924(c) can result from the same indictment as the first conviction. Our opinion was recently affirmed in Deal v. United States, — U.S. -, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). The district court therefore did not err in enhancing Hines’s and Holloway’s sentences based on two convictions under § 924(c) obtáined pursuant to one indictment. Accordingly, Hines’s sentence is affirmed. We now turn to address-the issues raised by Holloway.\nIII\nA\nHolloway argues that the district court erred in failing to sever Count 12, the weapons charge, which charged Holloway, as a felon, with possession of the weapon found on him at the time of his arrest — some two months after the robberies had occurred. Rule 8(a) of the Federal Rules of Criminal Procedure provides the following:\nTwo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act dr transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.\nRule 14 provides that if it appears that a defendant is prejudiced by a joinder of offenses, the court may order a separate trial of the counts. We review the district court’s denial of a motion for severance for abuse of discretion. United States v. Stouffer, 986 F.2d 916, 924 (5th Cir.1993). Furthermore, the district court’s decision will not be reversed unless there is clear prejudice to the defendant. United States v. MacIntosh, 655 F.2d 80, 84 (5th Cir.1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1450, 71 L.Ed.2d 662 (1982). In reviewing the district court’s denial of a motion to sever, “the preliminary inquiry is whether, as a matter of law, initial joinder of the counts was proper” under Rule 8(a). United States v. Forrest, 623 F.2d 1107, 1114 (5th Cir.), cert. denied, 449 U.S. 924, 101 S.Ct. 327, 66 L.Ed.2d 153 (1980).\nB\nHolloway argues that the mere possession of a weapon when one is arrested, which is unrelated to the crime for which he is arrested, is not a charge that is of “the same or similar character” as the commission of the underlying offense. Furthermore, Holloway argues that the government’s allegation that he possessed a weapon nearly two months after the last alleged robbery occurred is not “based on the same act or transaction” as any of the robberies; nor can it be said to constitute part of “a common scheme or plan” connected to the earlier completed robberies.\nHolloway points out that on the face of the indictment there is no indication that a connection exists between his possession of the weapon and the alleged robbery conspiracy. Furthermore, there is no allegation that he had planned to use the weapon in a robbery, had used the weapon in a robbery, or that the weapon was in any way connected to the charged robberies or to any robbery. Indeed, Holloway asserts that it is an unchallenged fact that the weapons charge in Count 12 was not remotely related to any of the charged robberies.\nC\nThe government first attempts to counter Holloway’s argument by noting that Rule 8(a) is broadly construed in favor of initial joinder. It is the government’s position that all counts of the indictment were properly joined under Rule 8(a) and, furthermore, that there was no prejudice that would warrant a severance under Rule 14. The government also argues that Holloway has failed to preserve this alleged error for appeal purposes: First, Holloway’s pretrial motion for severance of counts, which was overruled by the district court, referred only to Rule 14 but did not allege misjoinder under Rule 8(a). Second, Holloway did not renew his motion for severance at the close of the government’s case and at the conclusion of all of the trial testimony, and consequently he has waived his right to appeal any alleged error.\nD\nAfter reviewing the arguments of Holloway and the government, we conclude that the district court abused its discretion by not severing the weapons charge. Plainly speaking, we can see no basis for the United States Attorney to have included this weapons charge in the indictment in the first place unless he was seeking to get before the jury evidence that likely ‘would be otherwise inadmissible, ie., that Holloway was a convicted felon and that he had a weapon on his person when arrested. Rule 8(a) specifically states that offenses may be charged in the same indictment when they (1) are of the same or similar character or (2) are based on the same act or transaction or (3) are connected together or constitute parts of a common scheme or plan. Even the government does not contend that the weapon found in Holloway’s possession when he was arrested was the weapon used in the robberies. Furthermore, Holloway’s arrest took place almost two months after the most recent robbery. Thus, we can see no basis for the conclusion that this count of Holloway’s indictment was the same as the robbery counts, or that it was based on the robberies, or that it was part of a common scheme or plan involving the charged robberies.\nApparently recognizing this clear failure of a connection between the charges, the government devotes its attention to arguing that Holloway was not prejudiced at trial by the misjoinder. We disagree.\nTo demonstrate that the district court abused its discretion, Holloway bears the burden of showing specific and compelling prejudice that resulted in an unfair trial. United States v. Chagra, 754 F.2d 1186, 1188 (5th Cir.), cert. denied, 474 U.S. 922, 106 S.Ct. 255, 88 L.Ed.2d 262 (1985).\nWe first note that evidence of a prior conviction has long been the object of careful scrutiny and use at trial because of the inherent danger that a jury may convict a defendant because he is a “bad person” instead of because the evidence of the crime with which he is charged proves him guilty. United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir.1981). After the district court denied Holloway’s severance motion, Holloway proceeded to trial under his original indictment, which included the charge that he was a convicted felon in possession of a weapon. From the outset of the trial — because of the inclusion of the weapons charge — the jury was repeatedly informed that Holloway was a convicted felon. During voir dire, the district court explained to the potential jurors the charges against Holloway; during the course of these explanations, the fact that Holloway was a convicted felon was twice mentioned to the jury by the district court. After the jury was selected, the indictment was read; Count 12 of the indictment again included the fact that Holloway was a convicted felon. During the government’s opening statements, the jury was once again informed that Holloway was a convicted felon who possessed a weapon when he was arrested for the robberies. Even during Holloway’s own opening statements, his attorney was forced to refer to the fact that Holloway was a convicted felon before arguing that the weapon found on Holloway when he was arrested had nothing to do with the robberies. Thus, before the jury ever received the first bit of evidence connecting Holloway to the crimes with which he was charged, it had heard no less than four times — from the judge, from the prosecutor, and even from Holloway’s own attorney — that he was a convicted felon, something that never would have occurred if the weapons charge had been severed.\nThe government counters by arguing that evidence of Holloway’s previous conviction would have been admitted pursuant to Federal Rule of Evidence 609 even if the weapons charge had been severed; therefore, Holloway could not have been prejudiced. The government’s argument is premised on the fact that Holloway testified at trial. If Holloway had been on trial only for the robbery charges, we cannot accept as a foregone conclusion that he would have chosen to testify; instead, Holloway could have elected to rely on weaknesses of witness identifications in the government’s case and on vigorous cross-examination of the government’s witnesses, as there was no physical evidence linking Holloway to the robberies. Since Rule 609(a) permits the use of a prior conviction for the impeachment of a defendant’s testimony, by opting not to testify Holloway could have precluded the government from introducing the evidence that he was a convicted felon who had a weapon on his person when arrested. Even assuming, however, that Holloway would have testified in either event, had the weapons count been severed, the fact that Holloway was a felon would not have been repeated and repeated to the jury, nor is it likely that his possession of the gun would have been admissible.\nWe thus conclude that this remote weapons charge should never have been joined with the other counts of Holloway’s indictment in the first place. Second, by failing to sever the weapons charge with the robbery charges, the jury emphatically was told that Holloway was a bad and dangerous person “by his very nature”, and that a felon who carried a gun was just the sort of character who was most likely to have committed the robberies charged in the indictment. In short, Holloway was unjustifiably tried, at least in part, on the basis of who he was, and not on the basis of the material evidence presented against him.\nFinally, we cannot say that the evidence against Holloway was so overwhelming that the jury was not unfairly influenced by the fact that they were judging a felon and by the fact that he was the type of person who would carry a weapon. We therefore conclude that the inclusion of this count did indeed prejudice Holloway and resulted in an unfair trial. In view of the prejudice to Holloway, the district court’s denial of Holloway’s motion for severance constitutes an abuse of discretion. Accordingly, we reverse Holloway’s convictions and remand for a new trial.\nTV\nIn conclusion, we AFFIRM the district court’s sentencing of Hines. Because we reverse Holloway’s conviction based on the misjoinder of the weapons offense, we need not reach his other arguments raised on appeal. We only hold that the district court should have granted Holloway’s motion for severance, and its failure to do so was an abuse of discretion. We therefore REVERSE Holloway’s convictions and REMAND for a new trial on all counts.\nAFFIRMED in part; REVERSED and REMANDED in part.\n. Under 18 U.S.C. § 924(c), in the case of a second or subsequent conviction under this section a defendant \"shall be sentenced to imprisonment for twenty years.”\n. We quickly dispose of the government’s arguments that Holloway has not preserved this issue for appeal. First, in reviewing a Rule 14 motion to sever, the district court must first determine whether the claims were improperly joined under Rule 8(a). United States v. Davis, 752 F.2d 963, 971 (5th Cir. 1985). The fact that Holloway's motion to sever did not specifically refer to Rule 8(a) is of no advantage to the government. Second, a defendant is not required to renew a severance objection at the close of the evidence to preserve the error. United States v. Stouffer, 986 F.2d 916, 924 n. 7 (5th Cir.1993).\n. Federal Rule of Evidence 609(a) provides that evidence that the accused has been convicted of a crime may be admitted for the purpose of attacking the credibility of the accused.\n. We note that if the weapons charge had been related to the robbery charges, initial joinder would have been proper and our conclusion in this case would have been different, as this court has previously held on several occasions that a district court may properly refuse severance even though proof of one of the counts requires proof of a prior felony conviction. See Breeland v. Blackburn, 786 F.2d 1239, 1241 (5th Cir.1986).", "type": "majority", "author": "E. GRADY JOLLY, Circuit Judge:"}], "attorneys": ["Peter Fleury, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Fort Worth, TX, for Holloway.", "J. Lyndell Kirkley, Kirkley, Schmidt & Cotten, Fort Worth, TX (Court-appointed), for Hines.", "Paul E. Gartner, Asst. U.S. Atty., Richard H. Stephens, Fort Worth, TX, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Steve Wayne HOLLOWAY and Edwin L. Hines, Defendants-Appellants.\nNo. 92-1652.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 26, 1993.\nPeter Fleury, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Fort Worth, TX, for Holloway.\nJ. Lyndell Kirkley, Kirkley, Schmidt & Cotten, Fort Worth, TX (Court-appointed), for Hines.\nPaul E. Gartner, Asst. U.S. Atty., Richard H. Stephens, Fort Worth, TX, for plaintiff-appellee.\nBefore JOHNSON, JOLLY, and JONES, Circuit Judges."}	JOHNSON	JOLLY	JONES	1	1	1	0	0	0	1 F.3d 307	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Steve Wayne HOLLOWAY and Edwin L. Hines, Defendants-Appellants\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nE. GRADY JOLLY, Circuit Judge:\nSteve Wayne Holloway and Edwin L. Hines were convicted for committing a series of armed robberies. Hines appeals only his sentence. Holloway appeals both his conviction and his sentence. We conclude that the district court did not err in sentencing Hines and therefore affirm his sentence. We further conclude, however, that the district court committed reversible error in denying Holloway’s motion for severance of offenses — the robberies on the one hand and, on the other, the possession of a weapon two months after the robberies. We therefore reverse Holloway’s convictions and remand for a new trial on all counts.\nI\nBetween October 30, 1991 and December 9, 1991, five robberies were committed at food stores in the same area of Fort Worth, Texas. The first robbery involved three robbers. The last four involved only two robbers. During each robbery, the robbers ordered the store employees and others inside the store to lie down on the floor; they then took cash and cartons of cigarettes from the stores.\nAlmost two months after the last robbery occurred, officers arrested Holloway and Hines based on identifications made by victims of the robberies. When Holloway was arrested, officers found a firearm in his possession. The firearm was a .25 Raven, a small weapon that fits in one’s back pocket.\nOn February 26, 1992, Holloway and Hines were indicted on charges of (1) conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951; (2) aiding and abetting and interfering with commerce by robbery in violation of 18 U.S.C. § 1951; and (3) aiding and abetting and knowingly carrying and using a firearm during and in relation to the commission of a crime of violence in violation of 18 U.S.C. § 924(c) (“the robbery charges”). In addition, Holloway was indicted on an additional count as a felon who knowingly and unlawfully possessed a firearm in violation of 18 U.S.C. § 922(g)(1) (“the weapons charge”).\nHolloway moved for severance of the weapons charge, arguing that pursuant to Rule 14 of the Federal Rules of Criminal Procedure the joinder of this offense with his robbery offenses would prejudice him at trial. The district court, however, denied Holloway’s motion for severance and thus Holloway proceeded to trial on the robbery charges as well as the weapons charge. After the government had presented its witnesses regarding the robbery charges, Holloway stipulated that he was a convicted felon and pled guilty to the weapons charge, a tactical move to prevent the government from presenting evidence of his previous criminal record, which was relevant only for that charge. The remaining counts therefore involved only the robberies. Holloway then testified in his own defense that he had not committed any of the robberies. During cross-examination, the government offered evidence of the weapons conviction to which Holloway had just pled guilty. The district court permitted the government to explore the conviction, stating that it shed light upon Holloway’s “nature.” The district court later stated — without reasons — that the conviction had “some relevance” under Rule 404(b) of the Federal Rules of Evidence. The jury convicted Holloway on five counts, but acquitted him on two. Hines, however, was convicted on all counts.\nAlthough the government had not adduced evidence at trial connecting Holloway to the robbery charges for which he was acquitted, at the sentencing hearing the district court allowed the government to present evidence of Hines’s unsworn statements, given to police soon after his arrest, that Holloway had participated in that robbery. Under cross-examination, however, Hines testified that this assertion was not true; he had just told the police what they wanted to hear. Hines also testified that he had made the statement when he was suffering from heroin withdrawal and that he actually did not know whether Holloway had been involved in the robbery.\nNo other evidence connected Holloway to the robbery of which he was acquitted; the district court found, however, that Holloway had been involved in the robbery and considered it for sentencing purposes. Because of this factor, almost eleven years were added to Holloway’s sentence. Furthermore, in sentencing Holloway and Hines pursuant to their convictions for violating 18 U.S.C. § 924(c), the district court enhanced their sentences based on a second conviction obtained in the same trial. Both Hines and Holloway appeal.\nII\nOn appeal, Hines raises only one issue before this court, which is also one of the issues Holloway raises: Whether the district court erred in applying 18 U.S.C. § 924(c) in sentencing them. In United States v. Deal, 954 F.2d 262 (5th Cir.1992), we held that a “second or subsequent conviction” within the meaning of § 924(c) can result from the same indictment as the first conviction. Our opinion was recently affirmed in Deal v. United States, — U.S. -, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). The district court therefore did not err in enhancing Hines’s and Holloway’s sentences based on two convictions under § 924(c) obtáined pursuant to one indictment. Accordingly, Hines’s sentence is affirmed. We now turn to address-the issues raised by Holloway.\nIII\nA\nHolloway argues that the district court erred in failing to sever Count 12, the weapons charge, which charged Holloway, as a felon, with possession of the weapon found on him at the time of his arrest — some two months after the robberies had occurred. Rule 8(a) of the Federal Rules of Criminal Procedure provides the following:\nTwo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act dr transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.\nRule 14 provides that if it appears that a defendant is prejudiced by a joinder of offenses, the court may order a separate trial of the counts. We review the district court’s denial of a motion for severance for abuse of discretion. United States v. Stouffer, 986 F.2d 916, 924 (5th Cir.1993). Furthermore, the district court’s decision will not be reversed unless there is clear prejudice to the defendant. United States v. MacIntosh, 655 F.2d 80, 84 (5th Cir.1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1450, 71 L.Ed.2d 662 (1982). In reviewing the district court’s denial of a motion to sever, “the preliminary inquiry is whether, as a matter of law, initial joinder of the counts was proper” under Rule 8(a). United States v. Forrest, 623 F.2d 1107, 1114 (5th Cir.), cert. denied, 449 U.S. 924, 101 S.Ct. 327, 66 L.Ed.2d 153 (1980).\nB\nHolloway argues that the mere possession of a weapon when one is arrested, which is unrelated to the crime for which he is arrested, is not a charge that is of “the same or similar character” as the commission of the underlying offense. Furthermore, Holloway argues that the government’s allegation that he possessed a weapon nearly two months after the last alleged robbery occurred is not “based on the same act or transaction” as any of the robberies; nor can it be said to constitute part of “a common scheme or plan” connected to the earlier completed robberies.\nHolloway points out that on the face of the indictment there is no indication that a connection exists between his possession of the weapon and the alleged robbery conspiracy. Furthermore, there is no allegation that he had planned to use the weapon in a robbery, had used the weapon in a robbery, or that the weapon was in any way connected to the charged robberies or to any robbery. Indeed, Holloway asserts that it is an unchallenged fact that the weapons charge in Count 12 was not remotely related to any of the charged robberies.\nC\nThe government first attempts to counter Holloway’s argument by noting that Rule 8(a) is broadly construed in favor of initial joinder. It is the government’s position that all counts of the indictment were properly joined under Rule 8(a) and, furthermore, that there was no prejudice that would warrant a severance under Rule 14. The government also argues that Holloway has failed to preserve this alleged error for appeal purposes: First, Holloway’s pretrial motion for severance of counts, which was overruled by the district court, referred only to Rule 14 but did not allege misjoinder under Rule 8(a). Second, Holloway did not renew his motion for severance at the close of the government’s case and at the conclusion of all of the trial testimony, and consequently he has waived his right to appeal any alleged error.\nD\nAfter reviewing the arguments of Holloway and the government, we conclude that the district court abused its discretion by not severing the weapons charge. Plainly speaking, we can see no basis for the United States Attorney to have included this weapons charge in the indictment in the first place unless he was seeking to get before the jury evidence that likely ‘would be otherwise inadmissible, ie., that Holloway was a convicted felon and that he had a weapon on his person when arrested. Rule 8(a) specifically states that offenses may be charged in the same indictment when they (1) are of the same or similar character or (2) are based on the same act or transaction or (3) are connected together or constitute parts of a common scheme or plan. Even the government does not contend that the weapon found in Holloway’s possession when he was arrested was the weapon used in the robberies. Furthermore, Holloway’s arrest took place almost two months after the most recent robbery. Thus, we can see no basis for the conclusion that this count of Holloway’s indictment was the same as the robbery counts, or that it was based on the robberies, or that it was part of a common scheme or plan involving the charged robberies.\nApparently recognizing this clear failure of a connection between the charges, the government devotes its attention to arguing that Holloway was not prejudiced at trial by the misjoinder. We disagree.\nTo demonstrate that the district court abused its discretion, Holloway bears the burden of showing specific and compelling prejudice that resulted in an unfair trial. United States v. Chagra, 754 F.2d 1186, 1188 (5th Cir.), cert. denied, 474 U.S. 922, 106 S.Ct. 255, 88 L.Ed.2d 262 (1985).\nWe first note that evidence of a prior conviction has long been the object of careful scrutiny and use at trial because of the inherent danger that a jury may convict a defendant because he is a “bad person” instead of because the evidence of the crime with which he is charged proves him guilty. United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir.1981). After the district court denied Holloway’s severance motion, Holloway proceeded to trial under his original indictment, which included the charge that he was a convicted felon in possession of a weapon. From the outset of the trial — because of the inclusion of the weapons charge — the jury was repeatedly informed that Holloway was a convicted felon. During voir dire, the district court explained to the potential jurors the charges against Holloway; during the course of these explanations, the fact that Holloway was a convicted felon was twice mentioned to the jury by the district court. After the jury was selected, the indictment was read; Count 12 of the indictment again included the fact that Holloway was a convicted felon. During the government’s opening statements, the jury was once again informed that Holloway was a convicted felon who possessed a weapon when he was arrested for the robberies. Even during Holloway’s own opening statements, his attorney was forced to refer to the fact that Holloway was a convicted felon before arguing that the weapon found on Holloway when he was arrested had nothing to do with the robberies. Thus, before the jury ever received the first bit of evidence connecting Holloway to the crimes with which he was charged, it had heard no less than four times — from the judge, from the prosecutor, and even from Holloway’s own attorney — that he was a convicted felon, something that never would have occurred if the weapons charge had been severed.\nThe government counters by arguing that evidence of Holloway’s previous conviction would have been admitted pursuant to Federal Rule of Evidence 609 even if the weapons charge had been severed; therefore, Holloway could not have been prejudiced. The government’s argument is premised on the fact that Holloway testified at trial. If Holloway had been on trial only for the robbery charges, we cannot accept as a foregone conclusion that he would have chosen to testify; instead, Holloway could have elected to rely on weaknesses of witness identifications in the government’s case and on vigorous cross-examination of the government’s witnesses, as there was no physical evidence linking Holloway to the robberies. Since Rule 609(a) permits the use of a prior conviction for the impeachment of a defendant’s testimony, by opting not to testify Holloway could have precluded the government from introducing the evidence that he was a convicted felon who had a weapon on his person when arrested. Even assuming, however, that Holloway would have testified in either event, had the weapons count been severed, the fact that Holloway was a felon would not have been repeated and repeated to the jury, nor is it likely that his possession of the gun would have been admissible.\nWe thus conclude that this remote weapons charge should never have been joined with the other counts of Holloway’s indictment in the first place. Second, by failing to sever the weapons charge with the robbery charges, the jury emphatically was told that Holloway was a bad and dangerous person “by his very nature”, and that a felon who carried a gun was just the sort of character who was most likely to have committed the robberies charged in the indictment. In short, Holloway was unjustifiably tried, at least in part, on the basis of who he was, and not on the basis of the material evidence presented against him.\nFinally, we cannot say that the evidence against Holloway was so overwhelming that the jury was not unfairly influenced by the fact that they were judging a felon and by the fact that he was the type of person who would carry a weapon. We therefore conclude that the inclusion of this count did indeed prejudice Holloway and resulted in an unfair trial. In view of the prejudice to Holloway, the district court’s denial of Holloway’s motion for severance constitutes an abuse of discretion. Accordingly, we reverse Holloway’s convictions and remand for a new trial.\nTV\nIn conclusion, we AFFIRM the district court’s sentencing of Hines. Because we reverse Holloway’s conviction based on the misjoinder of the weapons offense, we need not reach his other arguments raised on appeal. We only hold that the district court should have granted Holloway’s motion for severance, and its failure to do so was an abuse of discretion. We therefore REVERSE Holloway’s convictions and REMAND for a new trial on all counts.\nAFFIRMED in part; REVERSED and REMANDED in part.\n. Under 18 U.S.C. § 924(c), in the case of a second or subsequent conviction under this section a defendant \"shall be sentenced to imprisonment for twenty years.”\n. We quickly dispose of the government’s arguments that Holloway has not preserved this issue for appeal. First, in reviewing a Rule 14 motion to sever, the district court must first determine whether the claims were improperly joined under Rule 8(a). United States v. Davis, 752 F.2d 963, 971 (5th Cir. 1985). The fact that Holloway's motion to sever did not specifically refer to Rule 8(a) is of no advantage to the government. Second, a defendant is not required to renew a severance objection at the close of the evidence to preserve the error. United States v. Stouffer, 986 F.2d 916, 924 n. 7 (5th Cir.1993).\n. Federal Rule of Evidence 609(a) provides that evidence that the accused has been convicted of a crime may be admitted for the purpose of attacking the credibility of the accused.\n. We note that if the weapons charge had been related to the robbery charges, initial joinder would have been proper and our conclusion in this case would have been different, as this court has previously held on several occasions that a district court may properly refuse severance even though proof of one of the counts requires proof of a prior felony conviction. See Breeland v. Blackburn, 786 F.2d 1239, 1241 (5th Cir.1986).\n[END_CASE]", "role": "user" } ]
10,510,493	Juan Jaime MEDINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent	Medina v. Immigration & Naturalization Service	1993-08-26	No. 92-5305	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before KING, DAVIS, and WIENER, Circuit Judges."], "parties": ["Juan Jaime MEDINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent."], "opinions": [{"text": "BY THE COURT:\nIT IS ORDERED that the Petition for Rehearing filed on behalf of Respondent, the Immigration and Naturalization Service (INS), be and hereby is DENIED.\nIn its petition, the INS reurges with renewed vigor and additional citation its argument that it may collaterally attack an adjudication of citizenship. Despite the INS’s additional arguments, we adhere to our panel decision.\nWe need not repeat the facts of this case, but pause only to summarize. Under the immigration laws, Juan Jaime Medina, born of an American father, was himself an American citizen provided that he complied with a two year residency requirement. In 1985, an Immigration Judge (IJ) held in an adjudicatory proceeding that Medina had met the statutory requirement, although the IJ applied, the incorrect standard. The INS, sharing this error, conceded Medina’s citizenship and waived appeal. Two year's later, the INS initiated new proceedings against Medina, claiming that he was deportable under § 241(a)(1) of the. Immigration and Nationality Act (INA), which provides:\nAny alien in the United States (including an alien crewman) shall, upon order of the Attorney General, be deported who — (1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry.\nIn our panel opinion we held that the subsequent proceeding was precluded by res judi-cata.\nFew legal doctrines are more intrinsic or necessary in our system than res judicata. That doctrine, which provides that a valid and final judgment precludes a second suit between the same parties on the same claim or any part thereof, ensures that litigation will come to an end. Were we to accept the INS’s arguments, we would carve out a large exception to this venerable doctrine, one that would allow the agency to eschew direct appeals — either inadvertently, through error, or consciously as a strategic decision— then, years later, collaterally attack decisions of immigration judges. The INS presents no persuasive argument or authority to convince us to take such a drastic step.\nIn its rehearing petition, the INS argues that application of administrative res judicata or collateral estoppel is subject to the direction of Congress, citing University of Tennessee v. Elliott, and Astoria Federal Savings and Loan Association v. Solimino. But these cases dealt with state administrative findings under Title VII and the Age Discrimination in Employment Act. In each case, the Supreme Court held that unre-viewed adverse findings by a state administrative judge did not preclude the plaintiff from filing a claim in federal court. The Court also held that “when the interpretation of a statute is at hand.... the question is not whether administrative estoppel is wise but whether it is intended by the legislature.”\nWe do not quarrel with the correctness of these opinions; they are simply inapplicable to the instant case. In making its argument, the INS overlooks an important distinction between the state administrative proceedings required under Title VII and the ADEA on the one hand and the review of a determination of citizenship on the other. In Title VII and ADEA claims, the plaintiff is required to exhaust those state remedies before bringing a claim in federal court. In other words, the plaintiff brings suit in federal court. Obviously, under such a system, the determination in the state administrative proceeding cannot bind the federal court or there could never be a federal cause of action. The exhaustion of state remedies requirement has several purposes, but elimination of the claim is not one of them.\nIn contrast, when determining citizenship neither the petitioner nor the INS brings a new suit in federal court; rather, under the INA, they seek review of an IJ’s decision. Accordingly, the proper procedure to review an IJ’s holding is an appeal to the Board of Immigration Appeals (BIA); the decision of the BIA is appealed directly to the Court of Appeals. By enacting § 106(a)(5), “Congress carved out one class of eases ... where de novo review in district court claims of nationality would be available: cases in which the person subject to deportation claims to be a United States citizen.” Under that section, the Court of Appeals may transfer the claim for a de novo review by the district court if there is a genuine issue of material fact.\nThe INS now urges that Medina is entitled to that determination in district court. We note in passing that the language of the provision is phrased to protect the petitioner seeking recognition of his or her citizenship, not the INS. Section 106(a)(5) was prompted by Supreme Court cases recognizing “that the Constitution requires that there be some provision for de novo judicial determination of claims to American citizenship in deportation proceedings.... ‘To deport one who ... claims to be a citizen, obviously deprives him of liberty ... [and] may result also in loss of both property and life; or of all that makes life worth living.’ ” Moreover, the transfer to the district court is not automatic, but occurs only after determinations by the Court of Appeals. Thus, at most, the INS could have attempted to obtain from us a transfer to the district court for a de novo review of Medina’s claim.\nAt the heart of this case, however, is the INS’s failure to grasp or refusal to accept that the agency must seek such a determination on direct appeal or suffer res judicata preclusion. These review proceedings do not exist separately as do the federal claims under Title VII or the ADEA. Here, when the INS failed to take advantage of the appeals process, res judicata mandated that the agency be precluded from successive attempts to relitigate the question of Medina’s citizenship. Certainly, the Supreme Court’s recognition that claims to American citizenship in deportation proceedings implicate liberty and property rights supports our conclusion, reiterated today, that a final, uncontested grant of citizenship cannot be revisited at the INS’s pleasure.\n. 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).\n. — U.S. -, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991).\n. Astoria, — U.S. at -, 111 S.Ct. at 2169.\n. See INA § 106(a), 8 U.S.C. § 1105a(a) (exclusive procedure for judicial review of orders of deportation and exclusion governed by 28 U.S.C. § 2341 et seq., which vests exclusive jurisdiction in the Court of Appeals).\n. 8 U.S.C. § 1105a(a)(5). That section reads:\nClaim of Nationality; determination or transfer to district court for hearing de novo. Whenever any petitioner, who seeks review of an order under this section, claims to be a national of the United States and makes a showing that his claim is not frivolous, the court shall (A) pass upon the issues presented when it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (B) where a genuine issue of material fact as to the petitioner's nationality is presented, transfer the proceedings to a United States district court for the district where the petitioner has his residence for hearing de novo of the nationality claim and determination as if such proceedings were originally initiated in the district court under the provisions of section 2201 of title 28.\n. Agosto v. INS, 436 U.S. 748, 753, 98 S.Ct. 2081, 2085, 56 L.Ed.2d 677 (1978) (emphasis added).\n. Id. (quoting Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922)).", "type": "majority", "author": "BY THE COURT:"}], "attorneys": ["Pete Magaro, Simon M. Azar-Farr, Azar-Farr & Ret, P.C., San Antonio, TX, for petitioner.", "William Barr, Atty. Gen., Dept, of Justice, David V. Bernal, David J. Kline, Robert L. Bombough, Director, Office of Immigration Litigation, Civ. Div., Washington, DC, for respondent.", "Richard M. Casillas, INS Dist. Director, San Antonio, TX, John B.Z. Caplinger, INS Director, New Orleans, LA, for other interested parties."], "corrections": "", "head_matter": "Juan Jaime MEDINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.\nNo. 92-5305\n(Summary Calendar).\nUnited States Court of Appeals, Fifth Circuit.\nAug. 26, 1993.\nPete Magaro, Simon M. Azar-Farr, Azar-Farr & Ret, P.C., San Antonio, TX, for petitioner.\nWilliam Barr, Atty. Gen., Dept, of Justice, David V. Bernal, David J. Kline, Robert L. Bombough, Director, Office of Immigration Litigation, Civ. Div., Washington, DC, for respondent.\nRichard M. Casillas, INS Dist. Director, San Antonio, TX, John B.Z. Caplinger, INS Director, New Orleans, LA, for other interested parties.\nBefore KING, DAVIS, and WIENER, Circuit Judges."}	KING	DAVIS	WIENER	1	1	1	0	0	0	1 F.3d 312	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Juan Jaime MEDINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nBY THE COURT:\nIT IS ORDERED that the Petition for Rehearing filed on behalf of Respondent, the Immigration and Naturalization Service (INS), be and hereby is DENIED.\nIn its petition, the INS reurges with renewed vigor and additional citation its argument that it may collaterally attack an adjudication of citizenship. Despite the INS’s additional arguments, we adhere to our panel decision.\nWe need not repeat the facts of this case, but pause only to summarize. Under the immigration laws, Juan Jaime Medina, born of an American father, was himself an American citizen provided that he complied with a two year residency requirement. In 1985, an Immigration Judge (IJ) held in an adjudicatory proceeding that Medina had met the statutory requirement, although the IJ applied, the incorrect standard. The INS, sharing this error, conceded Medina’s citizenship and waived appeal. Two year's later, the INS initiated new proceedings against Medina, claiming that he was deportable under § 241(a)(1) of the. Immigration and Nationality Act (INA), which provides:\nAny alien in the United States (including an alien crewman) shall, upon order of the Attorney General, be deported who — (1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry.\nIn our panel opinion we held that the subsequent proceeding was precluded by res judi-cata.\nFew legal doctrines are more intrinsic or necessary in our system than res judicata. That doctrine, which provides that a valid and final judgment precludes a second suit between the same parties on the same claim or any part thereof, ensures that litigation will come to an end. Were we to accept the INS’s arguments, we would carve out a large exception to this venerable doctrine, one that would allow the agency to eschew direct appeals — either inadvertently, through error, or consciously as a strategic decision— then, years later, collaterally attack decisions of immigration judges. The INS presents no persuasive argument or authority to convince us to take such a drastic step.\nIn its rehearing petition, the INS argues that application of administrative res judicata or collateral estoppel is subject to the direction of Congress, citing University of Tennessee v. Elliott, and Astoria Federal Savings and Loan Association v. Solimino. But these cases dealt with state administrative findings under Title VII and the Age Discrimination in Employment Act. In each case, the Supreme Court held that unre-viewed adverse findings by a state administrative judge did not preclude the plaintiff from filing a claim in federal court. The Court also held that “when the interpretation of a statute is at hand.... the question is not whether administrative estoppel is wise but whether it is intended by the legislature.”\nWe do not quarrel with the correctness of these opinions; they are simply inapplicable to the instant case. In making its argument, the INS overlooks an important distinction between the state administrative proceedings required under Title VII and the ADEA on the one hand and the review of a determination of citizenship on the other. In Title VII and ADEA claims, the plaintiff is required to exhaust those state remedies before bringing a claim in federal court. In other words, the plaintiff brings suit in federal court. Obviously, under such a system, the determination in the state administrative proceeding cannot bind the federal court or there could never be a federal cause of action. The exhaustion of state remedies requirement has several purposes, but elimination of the claim is not one of them.\nIn contrast, when determining citizenship neither the petitioner nor the INS brings a new suit in federal court; rather, under the INA, they seek review of an IJ’s decision. Accordingly, the proper procedure to review an IJ’s holding is an appeal to the Board of Immigration Appeals (BIA); the decision of the BIA is appealed directly to the Court of Appeals. By enacting § 106(a)(5), “Congress carved out one class of eases ... where de novo review in district court claims of nationality would be available: cases in which the person subject to deportation claims to be a United States citizen.” Under that section, the Court of Appeals may transfer the claim for a de novo review by the district court if there is a genuine issue of material fact.\nThe INS now urges that Medina is entitled to that determination in district court. We note in passing that the language of the provision is phrased to protect the petitioner seeking recognition of his or her citizenship, not the INS. Section 106(a)(5) was prompted by Supreme Court cases recognizing “that the Constitution requires that there be some provision for de novo judicial determination of claims to American citizenship in deportation proceedings.... ‘To deport one who ... claims to be a citizen, obviously deprives him of liberty ... [and] may result also in loss of both property and life; or of all that makes life worth living.’ ” Moreover, the transfer to the district court is not automatic, but occurs only after determinations by the Court of Appeals. Thus, at most, the INS could have attempted to obtain from us a transfer to the district court for a de novo review of Medina’s claim.\nAt the heart of this case, however, is the INS’s failure to grasp or refusal to accept that the agency must seek such a determination on direct appeal or suffer res judicata preclusion. These review proceedings do not exist separately as do the federal claims under Title VII or the ADEA. Here, when the INS failed to take advantage of the appeals process, res judicata mandated that the agency be precluded from successive attempts to relitigate the question of Medina’s citizenship. Certainly, the Supreme Court’s recognition that claims to American citizenship in deportation proceedings implicate liberty and property rights supports our conclusion, reiterated today, that a final, uncontested grant of citizenship cannot be revisited at the INS’s pleasure.\n. 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).\n. — U.S. -, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991).\n. Astoria, — U.S. at -, 111 S.Ct. at 2169.\n. See INA § 106(a), 8 U.S.C. § 1105a(a) (exclusive procedure for judicial review of orders of deportation and exclusion governed by 28 U.S.C. § 2341 et seq., which vests exclusive jurisdiction in the Court of Appeals).\n. 8 U.S.C. § 1105a(a)(5). That section reads:\nClaim of Nationality; determination or transfer to district court for hearing de novo. Whenever any petitioner, who seeks review of an order under this section, claims to be a national of the United States and makes a showing that his claim is not frivolous, the court shall (A) pass upon the issues presented when it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (B) where a genuine issue of material fact as to the petitioner's nationality is presented, transfer the proceedings to a United States district court for the district where the petitioner has his residence for hearing de novo of the nationality claim and determination as if such proceedings were originally initiated in the district court under the provisions of section 2201 of title 28.\n. Agosto v. INS, 436 U.S. 748, 753, 98 S.Ct. 2081, 2085, 56 L.Ed.2d 677 (1978) (emphasis added).\n. Id. (quoting Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922)).\n[END_CASE]", "role": "user" } ]
10,510,551	Danny R. GRAVES, Plaintiff-Appellant, v. Judge Jack HAMPTON, et al., Defendants-Appellees; Ronald Harlan EDMONDS, Plaintiff-Appellant, v. Michael FITZPATRICK, Warden, FCI Big Spring, Texas, et al., Defendants-Appellees; Chris LOPEZ, Plaintiff-Appellant, v. Branch T. COE, M.D., Hale County Jail Physician, Defendant-Appellee	Graves v. Hampton	1993-08-26	Nos. 93-1292, 92-9114 and 93-1432	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before POLITZ, Chief Judge, WIENER and DeMOSS, Circuit Judges."], "parties": ["Danny R. GRAVES, Plaintiff-Appellant, v. Judge Jack HAMPTON, et al., Defendants-Appellees. Ronald Harlan EDMONDS, Plaintiff-Appellant, v. Michael FITZPATRICK, Warden, FCI Big Spring, Texas, et al., Defendants-Appellees. Chris LOPEZ, Plaintiff-Appellant, v. Branch T. COE, M.D., Hale County Jail Physician, Defendant-Appellee."], "opinions": [{"text": "POLITZ, Chief Judge:\nWe have consolidated the captioned cases for appeal and publish our disposition thereof for two purposes: (1) to inform the bench, bar, and public of the adoption of our Conference Calendar procedure in this circuit and to explain its operation; and (2) to clarify the basis for and effect of the dismissal of in forma pauperis filings under 28 U.S.C. § 1915(d).\nConference Calendar\nThe inexorable increase in appeals has mandated a constant review and refinement of appellate procedures in order to maintain an acceptable level of timely dispositions. One refinement has been the introduction of the Conference Calendar in which a panel of judges meets, typically for four days, and resolves an average of 30 cases per day. Prior to the collegial conference, the panel members read the briefs and a bench memorandum prepared by staff counsel in each of the cases to be decided at conference. Each panel member personally reviews the records of one-third of the day’s eases and takes the lead in the discussion of those cases following a presentation by staff counsel. Prior to the conference a draft of the proposed per cu-riam opinion is reviewed and revised, as needed, by the judge responsible for the record analysis. The panel thoroughly discusses the appellate issues and resolves same, making such changes as may be appropriate in the proposed opinion. With the aid of modern technology, all revisions are promptly completed and the opinions are approved, signed, and filed with the clerk of court.\nOur Conference Calendar practice is now in its second year of operation. We plan sessions on alternate months and anticipate average dockets of 120 cases per session. Every active judge on our court has served on at least one Confereneé Calendar panel and most have served on two or more. We are unanimous in our conclusion that cases decided on the Conference Calendar receive a fully adequate allocation of quality judicial time and attention.\nGraves — No. 93-1292\nDanny R. Graves appeals the dismissal pursuant to 28 U.S.C. § 1915(d) of his section 1983 civil rights claim. We modify and affirm.\nGraves, proceeding in forma pauperis, filed suit against Judge Jack Hampton, John Vance, the District Attorney for Dallas County, and Harris M. Samuel, a private citizen, alleging false imprisonment as a result of his prosecution and conviction for forgery. Finding all defendants immune from suit the district court invoked section 1915(d) and dismissed the complaint as frivolous.\nDismissal of an in forma pauperis petition under 28 U.S.C. § 1915(d) is appropriate if the district court is “satisfied that the action is frivolous or malicious.” An action is frivolous if it “lacks an arguable basis either in law or in fact.” We review a district court’s section 1915(d) dismissal utilizing the abuse of discretion standard.\nA claim is based upon an indisputably meritless legal theory if the defendants are immune from suit. Graves advances three such claims. Judicial officers are entitled to absolute immunity from damage claims arising out of acts performed in the exercise of their judicial functions. The claims against Judge Hampton are based upon his actions during Graves’ criminal trial — actions well within the ambit of the judge’s absolute immunity.\nA criminal prosecutor also enjoys absolute immunity from section 1983 damage claims for presenting the state’s case. This immunity applies to the prosecutor’s actions in initiating prosecution and in carrying the case through the judicial process. Graves’ claims against Vance are based on Vance’s prosecution of Graves for forgery, actions obviously within the scope of the prosecutorial immunity.\nFinally, the district court dismissed Graves’ claims against Samuel because Graves did not allege any facts which would make Samuel a state actor. Graves alleges only that Samuel made a false statement against him. A witness is entitled to absolute immunity from section 1983 damage claims, even if it is alleged that the witness committed perjury.\nBecause all three defendants are immune from suit, dismissal under section 1915(d) was proper; Graves’ claims against these defendants have no arguable basis in law. Graves, insists, however, that the court erred in not allowing him to amend his complaint to cure any defects.\nIn Denton, the Court noted that among the pertinent factors in determining whether a district court has abused its discretion in dismissing a complaint under section 1915(d), is the inquiry whether the dismissal is with or without prejudice. “[I]f it appears that frivolous factual allegations could be remedied through more specific pleading, a court of appeals reviewing a section 1915(d) disposition should consider whether the District Court abused its discretion by dismissing the complaint with prejudice or without leave to amend.”\nThe judgment dismissing Graves’ complaint contains no language advising whether the dismissal is with or without prejudice. Although the general rule is that a dismissal is with prejudice unless otherwise specified, the application of that general rubric to section 1915(d) dismissals is by no means certain.\nIn Denton, the Supreme Court noted:\nBecause a § 1915(d) dismissal is not a dismissal on the merits, but rather an exercise of the court’s discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. It could, however, have a res judicata effect on frivolousness determinations for future in forma pauperis petitions.\nThis suggests that section 1915(d) dismissals generally are to be without prejudice. Thus, when a section 1915(d) dismissal is silent, we will presume that the dismissal is without prejudice. This does not mean, however, that a section 1915(d) dismissal should never be with prejudice. Should the court determine to dismiss with prejudice, appropriate reasons must be assigned. For example, if it is clear from the face of the complaint that the claims asserted are subject to an obvious meritorious defense, such as a peremptory time bar, dismissal with prejudice would be appropriate, for no amendment or subsequently paid filing could overcome the fatal defect. Dismissal with prejudice also would be appropriate if the plaintiff has been given an opportunity to expound on the factual allegations by way of a Watson questionnaire or orally via a Spears hearing, but does not assert any facts which would support an arguable claim. Finally, claims which otherwise clearly have no arguable basis in law, thereby negating a rectification by amendment, usually should be dismissed with prejudice.\nGraves’ claims were dismissed without prejudice. Because his claims clearly lack an arguable basis in law, the trial court’s dismissal should have been with prejudice. As so modified, the judgment of the district court is AFFIRMED.\nEdmonds — No. 92-9114\nRonald Harlan Edmonds invokes 42 U.S.C. § 1983 and complains that his eighth amendment rights were violated by incompetent medical personnel in the federal prison. It is firmly established that negligent or mistaken medical treatment or judgment does not implicate the eighth amendment and does not provide the basis for a civil rights action. It is irrefutable that Edmond’s claim has no arguable basis in law and it is therefore subject to dismissal with prejudice. The trial court’s judgment is accordingly modified to so provide and, as modified, is AFFIRMED.\nLopez — No. 98-1432\nChris Lopez also complains of inadequate medical treatment. To state a cognizable claim under 42 U.S.C. § 1983 a prisoner must allege and be able to prove that the defendants exhibited “deliberate indifference to his serious medical needs.” Lopez complains only of negligence and malpractice. His claims manifestly have no arguable basis in law and must be dismissed. They should be dismissed with prejudice and, modified to reflect such, the judgment of the district court is AFFIRMED.\n. For a detailed discussion, including a statistical analysis, see the Foreword to the Texas Tech Law Review, Vol. 24 (1993), written by our colleague Judge Jerry E. Smith.\n. United States Courts of Appeals typically maintain records on a statistical year beginning on July 1 and continuing until the following June 30. Appeals filed in the Fifth Circuit as of June 30 of the indicated year were as follows: 1989-4,743; 1990-5,052; 1991-5,598; 1992-6,421; 1993-6,695. \"[Pjrisoner pro se cases have consistently comprised approximately one quarter of the docket of this court.\" Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir.1991). Although authorized 17 active judges, for the past three years we have had 14 or less active judges. For the past 20 months we have had 13 active judges.\n. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).\n. Denton v. Hernandez, — U.S. -, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).\n. Neitzke, 490 U.S. at 327, 109 S.Ct. at 1832.\n. Mitchell v. McBryde, 944 F.2d 229 (5th Cir.1991).\n. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).\n. Young v. Biggers, 938 F.2d 565 (5th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992).\n. Graves also alleges that Vance used tampered evidence. A prosecutor is immune, however, even if accused of knowingly using perjured testimony. McCoy v. Gordon, 709 F.2d 1060 (5th Cir. 1983); Henzel v. Gerstein, 608 F.2d 654 (5th Cir.1979).\n. Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Young.\n. Neitzke.\n. Graves confuses a section 1915(d) dismissal as frivolous with dismissals for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Although \"[u]nder Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon,” section 1915(d) provides no such procedural protections. Neitzke, 490 U.S. at 329-30, 109 S.Ct. at 1834.\n. \"In reviewing a § 1915(d) dismissal for abuse of discretion, it would be appropriate for the court of appeals to consider, among other things, whether the plaintiff was proceeding pro se, whether the court inappropriately resolved genuine issues of disputed fact, whether the court applied erroneous legal conclusions, whether the court has provided a statement explaining the dismissal that facilitates ‘intelligent appellate review,' and whether the dismissal was with or without prejudice.” — U.S. at -, 112 S.Ct. at 1734 (citations omitted).\n. Id.\n. See Fed.R.Civ.P. 41(b) which provides in pertinent part:\nUnless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits.\n. — U.S. at -, 112 S.Ct. at 1734.\n. If such were the case, Denton's direction that the appellate court reviewing a section 1915(d) dismissal should consider whether the dismissal was with or without prejudice would be meaningless.\n. Ali v. Higgs, 892 F.2d 438 (5th Cir.1990).\n. Watson v. Ault, 525 F.2d 886 (5th Cir.1976).\n. Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). For a discussion of the scope and purposes of a Spears hearing, see Wilson v. Barrientos, 926 F.2d 480 (5th Cir.1991). Other procedures may also be available for the district court to \"pierce the veil of the complaint's factual allegations.” Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. For example, we have cited with approval a procedure developed by the Tenth Circuit \"order[ing] that prison officials investigate the facts surrounding a civil rights suit by inmates to construct 'an administrative record ... to enable the trial court to ... make a determination [of frivolity].' \" Cay v. Estelle, 789 F.2d 318, 323 n. 4 (5th Cir.1986) (citing Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978)).\n. Whittington v. Lynaugh, 842 F.2d 818 (5th Cir.), cert. denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988) (following Spears hearing claim was dismissed per section 1915(d) because plaintiff did not \"advance the slightest factual support for his allegations”); see Parker v. Fort Worth Police Dept., 980 F.2d 1023 (5th Cir.1993) (abuse of discretion' found in section 1915(d) dismissal based on consideration of the petition only; court should have granted leave to amend); hut see Murphy v. Kellar, 950 F.2d 290 (5th Cir.1992) (following a Spears hearing, court allows pro se petitioner to conduct limited discovery to more adequately state his claim).\n. For example, claims of infringement of a legal interest which clearly does not exist would fall into this category. See Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833.\n. Because federal personnel arc the only defendants, the action is properly brought under the eighth amendment itself. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).\n. Varnado v. Lynaugh, 920 F.2d 320 (5th Cir.1991).\n. Id. at 321 (citation omitted).", "type": "majority", "author": "POLITZ, Chief Judge:"}], "attorneys": ["Danny R. Graves, pro se.", "Ronald H. Edmonds, pro se.", "Chris Lopez, pro se."], "corrections": "", "head_matter": "Danny R. GRAVES, Plaintiff-Appellant, v. Judge Jack HAMPTON, et al., Defendants-Appellees. Ronald Harlan EDMONDS, Plaintiff-Appellant, v. Michael FITZPATRICK, Warden, FCI Big Spring, Texas, et al., Defendants-Appellees. Chris LOPEZ, Plaintiff-Appellant, v. Branch T. COE, M.D., Hale County Jail Physician, Defendant-Appellee.\nNos. 93-1292, 92-9114 and 93-1432\nConference Calendar.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 26, 1993.\nDanny R. Graves, pro se.\nRonald H. Edmonds, pro se.\nChris Lopez, pro se.\nBefore POLITZ, Chief Judge, WIENER and DeMOSS, Circuit Judges."}	POLITZ	WIENER	DeMOSS	1	1	1	0	0	0	1 F.3d 315	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Danny R. GRAVES, Plaintiff-Appellant, v. Judge Jack HAMPTON, et al., Defendants-Appellees; Ronald Harlan EDMONDS, Plaintiff-Appellant, v. Michael FITZPATRICK, Warden, FCI Big Spring, Texas, et al., Defendants-Appellees; Chris LOPEZ, Plaintiff-Appellant, v. Branch T. COE, M.D., Hale County Jail Physician, Defendant-Appellee\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPOLITZ, Chief Judge:\nWe have consolidated the captioned cases for appeal and publish our disposition thereof for two purposes: (1) to inform the bench, bar, and public of the adoption of our Conference Calendar procedure in this circuit and to explain its operation; and (2) to clarify the basis for and effect of the dismissal of in forma pauperis filings under 28 U.S.C. § 1915(d).\nConference Calendar\nThe inexorable increase in appeals has mandated a constant review and refinement of appellate procedures in order to maintain an acceptable level of timely dispositions. One refinement has been the introduction of the Conference Calendar in which a panel of judges meets, typically for four days, and resolves an average of 30 cases per day. Prior to the collegial conference, the panel members read the briefs and a bench memorandum prepared by staff counsel in each of the cases to be decided at conference. Each panel member personally reviews the records of one-third of the day’s eases and takes the lead in the discussion of those cases following a presentation by staff counsel. Prior to the conference a draft of the proposed per cu-riam opinion is reviewed and revised, as needed, by the judge responsible for the record analysis. The panel thoroughly discusses the appellate issues and resolves same, making such changes as may be appropriate in the proposed opinion. With the aid of modern technology, all revisions are promptly completed and the opinions are approved, signed, and filed with the clerk of court.\nOur Conference Calendar practice is now in its second year of operation. We plan sessions on alternate months and anticipate average dockets of 120 cases per session. Every active judge on our court has served on at least one Confereneé Calendar panel and most have served on two or more. We are unanimous in our conclusion that cases decided on the Conference Calendar receive a fully adequate allocation of quality judicial time and attention.\nGraves — No. 93-1292\nDanny R. Graves appeals the dismissal pursuant to 28 U.S.C. § 1915(d) of his section 1983 civil rights claim. We modify and affirm.\nGraves, proceeding in forma pauperis, filed suit against Judge Jack Hampton, John Vance, the District Attorney for Dallas County, and Harris M. Samuel, a private citizen, alleging false imprisonment as a result of his prosecution and conviction for forgery. Finding all defendants immune from suit the district court invoked section 1915(d) and dismissed the complaint as frivolous.\nDismissal of an in forma pauperis petition under 28 U.S.C. § 1915(d) is appropriate if the district court is “satisfied that the action is frivolous or malicious.” An action is frivolous if it “lacks an arguable basis either in law or in fact.” We review a district court’s section 1915(d) dismissal utilizing the abuse of discretion standard.\nA claim is based upon an indisputably meritless legal theory if the defendants are immune from suit. Graves advances three such claims. Judicial officers are entitled to absolute immunity from damage claims arising out of acts performed in the exercise of their judicial functions. The claims against Judge Hampton are based upon his actions during Graves’ criminal trial — actions well within the ambit of the judge’s absolute immunity.\nA criminal prosecutor also enjoys absolute immunity from section 1983 damage claims for presenting the state’s case. This immunity applies to the prosecutor’s actions in initiating prosecution and in carrying the case through the judicial process. Graves’ claims against Vance are based on Vance’s prosecution of Graves for forgery, actions obviously within the scope of the prosecutorial immunity.\nFinally, the district court dismissed Graves’ claims against Samuel because Graves did not allege any facts which would make Samuel a state actor. Graves alleges only that Samuel made a false statement against him. A witness is entitled to absolute immunity from section 1983 damage claims, even if it is alleged that the witness committed perjury.\nBecause all three defendants are immune from suit, dismissal under section 1915(d) was proper; Graves’ claims against these defendants have no arguable basis in law. Graves, insists, however, that the court erred in not allowing him to amend his complaint to cure any defects.\nIn Denton, the Court noted that among the pertinent factors in determining whether a district court has abused its discretion in dismissing a complaint under section 1915(d), is the inquiry whether the dismissal is with or without prejudice. “[I]f it appears that frivolous factual allegations could be remedied through more specific pleading, a court of appeals reviewing a section 1915(d) disposition should consider whether the District Court abused its discretion by dismissing the complaint with prejudice or without leave to amend.”\nThe judgment dismissing Graves’ complaint contains no language advising whether the dismissal is with or without prejudice. Although the general rule is that a dismissal is with prejudice unless otherwise specified, the application of that general rubric to section 1915(d) dismissals is by no means certain.\nIn Denton, the Supreme Court noted:\nBecause a § 1915(d) dismissal is not a dismissal on the merits, but rather an exercise of the court’s discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. It could, however, have a res judicata effect on frivolousness determinations for future in forma pauperis petitions.\nThis suggests that section 1915(d) dismissals generally are to be without prejudice. Thus, when a section 1915(d) dismissal is silent, we will presume that the dismissal is without prejudice. This does not mean, however, that a section 1915(d) dismissal should never be with prejudice. Should the court determine to dismiss with prejudice, appropriate reasons must be assigned. For example, if it is clear from the face of the complaint that the claims asserted are subject to an obvious meritorious defense, such as a peremptory time bar, dismissal with prejudice would be appropriate, for no amendment or subsequently paid filing could overcome the fatal defect. Dismissal with prejudice also would be appropriate if the plaintiff has been given an opportunity to expound on the factual allegations by way of a Watson questionnaire or orally via a Spears hearing, but does not assert any facts which would support an arguable claim. Finally, claims which otherwise clearly have no arguable basis in law, thereby negating a rectification by amendment, usually should be dismissed with prejudice.\nGraves’ claims were dismissed without prejudice. Because his claims clearly lack an arguable basis in law, the trial court’s dismissal should have been with prejudice. As so modified, the judgment of the district court is AFFIRMED.\nEdmonds — No. 92-9114\nRonald Harlan Edmonds invokes 42 U.S.C. § 1983 and complains that his eighth amendment rights were violated by incompetent medical personnel in the federal prison. It is firmly established that negligent or mistaken medical treatment or judgment does not implicate the eighth amendment and does not provide the basis for a civil rights action. It is irrefutable that Edmond’s claim has no arguable basis in law and it is therefore subject to dismissal with prejudice. The trial court’s judgment is accordingly modified to so provide and, as modified, is AFFIRMED.\nLopez — No. 98-1432\nChris Lopez also complains of inadequate medical treatment. To state a cognizable claim under 42 U.S.C. § 1983 a prisoner must allege and be able to prove that the defendants exhibited “deliberate indifference to his serious medical needs.” Lopez complains only of negligence and malpractice. His claims manifestly have no arguable basis in law and must be dismissed. They should be dismissed with prejudice and, modified to reflect such, the judgment of the district court is AFFIRMED.\n. For a detailed discussion, including a statistical analysis, see the Foreword to the Texas Tech Law Review, Vol. 24 (1993), written by our colleague Judge Jerry E. Smith.\n. United States Courts of Appeals typically maintain records on a statistical year beginning on July 1 and continuing until the following June 30. Appeals filed in the Fifth Circuit as of June 30 of the indicated year were as follows: 1989-4,743; 1990-5,052; 1991-5,598; 1992-6,421; 1993-6,695. \"[Pjrisoner pro se cases have consistently comprised approximately one quarter of the docket of this court.\" Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir.1991). Although authorized 17 active judges, for the past three years we have had 14 or less active judges. For the past 20 months we have had 13 active judges.\n. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).\n. Denton v. Hernandez, — U.S. -, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).\n. Neitzke, 490 U.S. at 327, 109 S.Ct. at 1832.\n. Mitchell v. McBryde, 944 F.2d 229 (5th Cir.1991).\n. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).\n. Young v. Biggers, 938 F.2d 565 (5th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992).\n. Graves also alleges that Vance used tampered evidence. A prosecutor is immune, however, even if accused of knowingly using perjured testimony. McCoy v. Gordon, 709 F.2d 1060 (5th Cir. 1983); Henzel v. Gerstein, 608 F.2d 654 (5th Cir.1979).\n. Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Young.\n. Neitzke.\n. Graves confuses a section 1915(d) dismissal as frivolous with dismissals for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Although \"[u]nder Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon,” section 1915(d) provides no such procedural protections. Neitzke, 490 U.S. at 329-30, 109 S.Ct. at 1834.\n. \"In reviewing a § 1915(d) dismissal for abuse of discretion, it would be appropriate for the court of appeals to consider, among other things, whether the plaintiff was proceeding pro se, whether the court inappropriately resolved genuine issues of disputed fact, whether the court applied erroneous legal conclusions, whether the court has provided a statement explaining the dismissal that facilitates ‘intelligent appellate review,' and whether the dismissal was with or without prejudice.” — U.S. at -, 112 S.Ct. at 1734 (citations omitted).\n. Id.\n. See Fed.R.Civ.P. 41(b) which provides in pertinent part:\nUnless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits.\n. — U.S. at -, 112 S.Ct. at 1734.\n. If such were the case, Denton's direction that the appellate court reviewing a section 1915(d) dismissal should consider whether the dismissal was with or without prejudice would be meaningless.\n. Ali v. Higgs, 892 F.2d 438 (5th Cir.1990).\n. Watson v. Ault, 525 F.2d 886 (5th Cir.1976).\n. Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). For a discussion of the scope and purposes of a Spears hearing, see Wilson v. Barrientos, 926 F.2d 480 (5th Cir.1991). Other procedures may also be available for the district court to \"pierce the veil of the complaint's factual allegations.” Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. For example, we have cited with approval a procedure developed by the Tenth Circuit \"order[ing] that prison officials investigate the facts surrounding a civil rights suit by inmates to construct 'an administrative record ... to enable the trial court to ... make a determination [of frivolity].' \" Cay v. Estelle, 789 F.2d 318, 323 n. 4 (5th Cir.1986) (citing Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978)).\n. Whittington v. Lynaugh, 842 F.2d 818 (5th Cir.), cert. denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988) (following Spears hearing claim was dismissed per section 1915(d) because plaintiff did not \"advance the slightest factual support for his allegations”); see Parker v. Fort Worth Police Dept., 980 F.2d 1023 (5th Cir.1993) (abuse of discretion' found in section 1915(d) dismissal based on consideration of the petition only; court should have granted leave to amend); hut see Murphy v. Kellar, 950 F.2d 290 (5th Cir.1992) (following a Spears hearing, court allows pro se petitioner to conduct limited discovery to more adequately state his claim).\n. For example, claims of infringement of a legal interest which clearly does not exist would fall into this category. See Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833.\n. Because federal personnel arc the only defendants, the action is properly brought under the eighth amendment itself. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).\n. Varnado v. Lynaugh, 920 F.2d 320 (5th Cir.1991).\n. Id. at 321 (citation omitted).\n[END_CASE]", "role": "user" } ]
10,510,637	James C. THOMAS, Individually, and as Trustee of the SLT Trust # 1, Plaintiff-Appellant, v. N.A. CHASE MANHATTAN BANK, Defendant-Appellee	Thomas v. N.A. Chase Manhattan Bank	1993-08-27	No. 92-2613	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before POLITZ, Chief Judge, REAVLEY, and BARKSDALE, Circuit Judges."], "parties": ["James C. THOMAS, Individually, and as Trustee of the SLT Trust # 1, Plaintiff-Appellant, v. N.A. CHASE MANHATTAN BANK, Defendant-Appellee."], "opinions": [{"text": "BARKSDALE, Circuit Judge:\nIn issue is the summary judgment awarded N.A. Chase Manhattan Bank in this action by James C. Thomas, individually and as trustee of the SLT Trust # 1 (SLT), arising out of Chase’s referral of an investment partner, E. Lawrence Price. Previously, we held that Thomas lacked standing on certain claims, and as a result, affirmed the judgment as to them; remanded for factual findings on a standing issue; and deferred ruling on the remaining claims pending remand. Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236 (5th Cir.1993). The district court having promptly entered the requested findings, we now turn to the remaining claims. Finding genuine issues of material fact regarding the claims by both Thomas and SLT for fraud, negligent misrepresentation, and breach of fiduciary duty, we REVERSE and REMAND; on the conspiracy to defraud claims, we AFFIRM.\nI.\nThe complex factual background to this case is set out at length in our prior opinion, 994 F.2d at 238-41; we need not repeat it here. Briefly, the claims arise from Chase’s referral of Price as an investment partner for Thomas in a Texas private banking franchise. Thomas and Price entered their respective family trusts, SLT and the Elaine Price Trust (EPT) (of which Price is trustee) into a partnership (the Price-Thomas partnership), which in turn purchased the franchise from another partnership in which Thomas and SLT had been involved with the Cha family (the Chas). Additionally, Thomas in his individual capacity executed a management contract with the newly formed Price-Thomas partnership to continue to manage the bank following the sale. Price subsequently breached both the partnership agreement and the management contract and used the bank to commit a massive government securities tax fraud, driving it into insolvency. After the relationship with Price proved ruinous, Thomas learned that Chase allegedly knew of Price’s history of bank fraud problems, including a serious incident involving Chase, yet Chase represented Price to Thomas as a valued Chase customer and misrepresented Price’s troublesome history.\nThomas, individually and on behalf of SLT, sued Chase for fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, and conspiracy to defraud, alleging basically that Chase had “foisted” Price onto him pursuant to a cover-up of Price’s fraudulent activities at Chase. The district court granted summary judgment for Chase on all claims. In our prior opinion, we upheld summary judgment for lack of standing on the breach of contract claim, and on the other claims to the extent that they related to the Stanhope indemnity agreements. Id. at 244. We remanded for the limited purpose of determining whether Thomas, as trustee, had the capacity to sue on behalf of SLT. Id.\nOn remand, Thomas submitted an affidavit and a copy of the SLT trust instrument. The district court found that the trust instrument “explicitly adopts the powers conferred by Missouri law allowing the trustee to bring suit”. Accordingly, we now address the remaining claims: SLT’s claims for damages resulting from its entering into partnership with EPT (fraud, conspiracy to defraud, negligent misrepresentation, and breach of fiduciary duty); and Thomas’s claims for damages resulting from his entering into the management contract with the Priee-Thomas partnership (same). Because the claims asserted by Thomas individually and on behalf of SLT arise from the same allegations, we address them together.\nII.\nAs stated in our prior opinion, we review a summary judgment de novo, applying the same criteria as would a district court. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). “Summary judgment is proper only if ‘there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law Harbor Ins. Co. v. Trammell Crow Co., 854 F.2d 94, 98 (5th Cir.1988), cert. denied, 489 U.S. 1054, 109 S.Ct. 1315, 103 L.Ed.2d 584 (1989) (quoting Fed.R.Civ.P. 56(c)). “We consider all of the facts contained in the pleadings, depositions, admissions, answers to interrogatories, affidavits, and the inferences to be drawn therefrom in the light most favorable to the non-moving party”. Harbor Ins. Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th Cir.1993). “Our review is not limited to the district court’s analysis”; we may affirm on any basis presented to the district court. Id.\nWe previously held that New York law governs the claims by Thomas and SLT. Thomas, 994 F.2d at 241-42. The summary judgment record is described in our prior opinion, 994 F.2d at 238 n. 1. Most revealing about the record is the scant evidence submitted by Chase.\nA.\nThe fraud claims relate to Chase’s alleged misrepresentations that Price was a long-time, highly valued Chase client, when in fact Chase had terminated Price’s accounts and was trying to rid itself of him; that, based on Chase’s long-term dealings with and extensive due diligence on Price, Chase knew him to be an appropriate investment partner for Thomas; and that Price’s banking problem in Chicago was mere “unpleasantness” — “simply a routine banking relationship that didn’t work out”, when in fact Price had perpetrated a massive government securities tax fraud there for which he later suffered a tax court judgment. Additionally, when Thomas inquired of Chase regarding information (“second-hand rumors”) he had learned from William Wu (his former partner’s (the Chas) agent who had investigated Price), Chase allegedly encouraged Thomas to rely on its superior knowledge regarding Price and urged him not to listen to rumors. The district court granted summary judgment on these claims, based on its determination that Thomas could not justifiably rely on the alleged misrepresentations.\n“New York requires proof of the traditional five elements of fraud: misrepresentation of a material fact, falsity of that representation, scienter, reliance and damages”. Mallis v. Bankers Trust Co. (Mallis I), 615 F.2d 68, 80 (2d Cir.1980) (emphasis omitted), cert. denied, 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 109 (1981). Justifiable reliance is the only element in issue; it is not disputed that material fact issues exist regarding the other four elements.\nTo satisfy the requirement of justifiable reliance, a plaintiff must establish that his reliance on the defendant’s misrepresentations was justifiable “both in the sense that [he] was justified in believing the representation, and that he was justified in acting upon it”. Compania Sud-Americana de Vapores, S.A. v. IBJ Schroder Bank & Trust Co., 785 F.Supp. 411, 419 (S.D.N.Y.1992). When the matters represented are “peculiarly within the [defendant’s] knowledge”, the plaintiff is not required to investigate them, “as he has no independent means of ascertaining the truth”. Mallis I, 615 F.2d at 80 (internal quotations omitted). When the plaintiff “has the means of knowing, by the exercise of ordinary intelligence, the truth”, however, he will be barred as a matter of law from asserting justifiable reliance. Id. at 80-81 (emphasis added); Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 184 N.Y.S.2d 599, 603, 157 N.E.2d 597, 600 (1959). Apart from this principle, the question of justifiable reliance is one of fact. See Country World, Inc. v. Imperial Frozen Foods Co., 186 A.D.2d 781, 589 N.Y.S.2d 81, 82 (1992); Freschi v. Gmnd Coal Venture, 583 F.Supp. 780, 785 (S.D.N.Y.1984). Accordingly, it bears repeating that it is a summary judgment we are reviewing; we determine whether there are material fact issues.\nChase’s representations regarding its dealings with Price were “peculiarly within its knowledge”. Thomas would have no means of ascertaining independently (certainly not “by the exercise of ordinary intelligence”, see infra) whether Price was a long-time, highly valued Chase customer, or whether Chase believed Price to be a worthy investment partner for Thomas. Therefore, at least with respect to those representations, Thomas is not barred as a matter of law from establishing justifiable reliance.\nWith respect to its alleged representations about Price’s bank fraud in Chicago, Chase contends that Thomas had independent access to that information and therefore cannot assert justifiable reliance on Chase. It emphasizes that Thomas was alerted to a problem by Wu, and should have pursued further investigation. Citing Most v. Monti, 91 A.D.2d 606, 456 N.Y.S.2d 427, 428 (1982); Marine Midland Bank v. Palm Beach Moorings, Inc., 61 A.D.2d 927, 403 N.Y.S.2d 15 (1978); and Grumman Allied Indus., Inc. v. Rohr Indus., Inc., 748 F.2d 729 (2d Cir.1984), Chase asserts that a sophisticated businessman like Thomas could not, as a matter of law, justifiably rely on Chase’s verbal assurances in entering into a business deal of the magnitude involved here.\nFor several reasons, we conclude that the cases cited do not support the summary judgment. First, each of them involved representations made by the opposing party to a transaction. Most involved the seller of a health club who allegedly misrepresented to the buyer that the property was fully assessed for tax purposes. See 456 N.Y.S.2d at 428. Marine Midland involved a bank that allegedly misrepresented the status of corporate loans to a potential guarantor in order to obtain the guaranty obligation. See 403 N.Y.S.2d at 16. Grumman involved the seller of a subsidiary who allegedly misrepresented to the buyer material facts relating to certain assets purchased. See 748 F.2d at 730-33.\nIn contrast, Chase was not directly opposite Thomas in the transactions; instead, it acted as a sort of intermediary. Thomas admittedly knew that Chase served as Price’s broker; but, Chase allegedly approached Thomas for its broker’s fee prior to the partnership formation, Thomas agreed to the fee, and the Price-Thomas partnership, not Price or EPT, actually paid it. Additionally, Chase and Thomas allegedly were involved together in other projects, including Columbia Investors and Acquisition Ventures. See 994 F.2d at 238-39. In these circumstances, Thomas had less reason to question Chase’s representations than did the plaintiffs in the cases cited by Chase.\nMoreover, each of the cases cited also turns on the fact that the parties claiming justifiable reliance had independent access to the information in issue. In Most, it was “readily available to plaintiffs upon their making reasonable inquiry”. 456 N.Y.S.2d at 428. Similarly, in Marine Midland, the guarantor had “unlimited access to the relevant financial records ... before he became a personal guarantor on the note”. 403 N.Y.S.2d at 17. Finally, in Grumman, there was “undisputed evidence demonstrating that [the buyer] enjoyed unfettered access to [the seller’s] plants, personnel and documents ...”. 748 F.2d at 737.\nHere, Chase failed to submit any evidence that Thomas could have independently obtained additional information about Price. Chase stated at oral argument in our court that a simple inquiry by Thomas would have revealed the entire matter, but no evidence was presented to that effect. To the contrary, Wu allegedly told Thomas that his sources were confidential, and refused to reveal them, indicating that perhaps the information was not publicly available.\nFinally, and of great importance, Thomas did seek further information about Price when he telephoned Chase vice president Mary Small to inquire about the Chicago incident. The evidence presented by Thomas, through his affidavit, was that Small not only assured him that Chase had thoroughly investigated all aspects of the Chicago incident, but affirmatively attempted to block any further investigation by urging Thomas to rely on Chase’s superior knowledge and not to pursue rumors. Chase did not present any evidence to rebut Thomas’s affidavit regarding this telephone call. In light of the unrebutted evidence of this active concealment, absent in the cases cited, we cannot hold, as a matter of law, that Thomas was not justified in relying on Chase’s assurances.\nCiting agency principles, Chase finally contends that Wu’s additional knowledge regarding Price’s fraud is imputed to Thomas, barring justifiable reliance. Evidence submitted by Chase does indicate that Wu may have known more about Price’s problems than he conveyed to Thomas; specifically, handwritten notes by Wu in 1983 mention yet another Chicago bank with which Price had problems. Relying on the rule of law that principals are imputed with the knowledge of their agents, Chase reasons that Wu’s knowledge is imputed to his principals, the Chas, and that their knowledge is in turn imputed to their partner, Thomas.\n“It is a basic tenet of the law of agency that the knowledge of an agent, or for that matter a partner or joint venturer is imputed to the principal”. Mallis v. Bankers Trust Co. (Mallis II), 717 F.2d 683, 689 n. 9 (2d Cir.1983). A corollary to that tenet, however, is that “[knowledge of an agent, even of a general agent, to be imputed to his principal, must be actual knowledge”. Hare & Chase, Inc. v. National Surety Co., 49 F.2d 447, 458 (S.D.N.Y.1931) (emphasis added), aff'd, 60 F.2d 909 (2d Cir.), cert. denied, 287 U.S. 662, 53 S.Ct. 222, 77 L.Ed. 572 (1932); e.g., Nolan v. Sam Fox Publishing Co., 499 F.2d 1394, 1398 (2d Cir.1974); Ferrara v. Schatf 466 F.Supp. 125, 131 (S.D.N.Y.1979). The principle of imputed knowledge “rests upon the duty of the agent to disclose to his principal all material facts coming to his knowledge with reference to the scope of the agency and upon the presumption that the agent has discharged his duty”. Otsego Mut. Fire Ins. Co. v. Darby, 79 Misc.2d 80, 358 N.Y.S.2d 314, 318 (Sup.Ct. 1974). It follows, therefore, that “[t]here can be no presumption that [an agent] communicated to the [principal] knowledge which it did not have”. Wheatland v. Pryor, 133 N.Y. 97, 30 N.E. 652 (1892) (rejecting contention that the imputed knowledge of a principal could be “reimputed” to its principal); see also In re Agent Orange Prod. Liab. Litig., 597 F.Supp. 740, 796 (E.D.N.Y.1984) (citing the Restatement of Agency § 277, that a principal is not affected by knowledge that agent should have, but did not, acquire), aff'd, 818 F.2d 145 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988).\nEven assuming, therefore, that Wu had sufficient information to bar justifiable reliance, Chase must prove that the information was actually communicated to his principal, the Chas, in order for it to even be arguably imputed to Thomas. Chase does not make this contention, and we see no evidence to support it. Accordingly, the summary judgment cannot be upheld on this basis.\nIn sum, Thomas is not barred as a matter of law from establishing that he justifiably relied on any of Chase’s alleged misrepresentations. Because the remaining questions regarding justifiable reliance, as well as the other elements of fraud, present material fact issues, we reverse the summary judgment as to fraud.\nB.\nThe claims for conspiracy to defraud rest on the same allegations as the fraud claims' — Chase’s alleged misrepresentations in attempting to rid itself of Price and thereby conceal its role in Price’s fraud. In the district court, Thomas asserted that civil conspiracy is an independent cause of action under Texas law. On appeal, however, Thomas does not brief this issue under either Texas or New York law.\n“Under New York State law, ‘it is well settled that a mere conspiracy to commit a [tort] is never itself a cause of action’ ”. Conrad v. Perales, 818 F.Supp. 559, 565 (W.D.N.Y.1993) (quoting Jan Sparka Travel, Inc. v. Hamza, 182 A.D.2d 1067, 587 N.Y.S.2d 958, 960 (1992)); see also Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968, 510 N.Y.S.2d 546, 547, 503 N.E.2d 102-103 (1986). “Allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort”. Fritzen, 510 N.Y.S.2d at 547, 503 N.E.2d at 103.\nThomas does not attempt to connect Chase with the actions of another defendant; indeed, there is no other defendant. Instead, Thomas’s allegations involve Chase’s fraudulent actions, as discussed above. In any event, issues not briefed are waived. Zeno v. Great Atlantic & Pacific Tea Co., 803 F.2d 178, 180-81 (5th Cir.1986); Fed.R.Civ.P. 28(a)(5). Accordingly, the summary judgment on the conspiracy to defraud claims is affirmed.\nC.\nThe negligent misrepresentation claims also rest on the allegations discussed in relation to fraud: The district court granted summary judgment for these claims on the same basis as for fraud — its conclusion that Thomas could not justifiably rely on the alleged misrepresentations.\nRegarding negligent misrepresentation, the New York Court of Appeals has stated:\nAs to duty imposed, generally a negligent statement may be the basis for recovery of damages, where there is carelessness in imparting words upon which others were expected to rely and upon which they did act or failed to act to their damage ..., but such information is not actionable unless expressed directly, with knowledge or notice that it will be acted upon, to one whom the author is bound by some relation of duty, arising out of contract or otherwise, to act with care if he acts at all....\nWhite v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 478, 372 N.E.2d 315, 319 (1977); Enzo Biochem, Inc. v. Johnson & Johnson, 1992 WL 309613 (S.D.N.Y.1992) (quoting White). Contrary to the distinct court’s assumption, justifiable reliance per se does not appear to be an element of the tort under New York law. Instead, as discussed below, New York courts appear to focus on the relationship between the parties in determining whether a cause of action will lie; where the relationship is sufficiently close, a party will be allowed to recover damages caused by the negligent misrepresentations of another. But, in any event, the above holding with respect to justifiable. reliance would apply to the negligent misrepresentation claims as well as to those for fraud.\nIn the keystone case of Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110, amended, 66 N.Y.2d 812, 498 N.Y.S.2d 362, 489 N.E.2d 249 (1985), the New York Court of Appeals focused on the relationship required to sustain a cause of action for negligent misrepresentation absent privity of contract. After reconsidering its holdings in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), and Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922), the court reaffirmed the principle that “a relationship ‘so close as to approach that of privity’ remains valid as the predicate for imposing liability” for negligent misrepresentation. Credit Alliance, 493 N.Y.S.2d at 440, 483 N.E.2d at 115. The court then expanded this principle into three prerequisites for recovery: (1) awareness that the information is to be used for a particular purpose; (2) reliance by a known party in furtherance of that purpose; and (3) some conduct by the defendant linking it to that party and evincing defendant’s understanding of that party’s reliance. Id., 493 N.Y.S.2d at 443, 483 N.E.2d at 118. “As a shorthand rule encapsulating those requirements, it has been noted that, for defendants to be liable, reliance by plaintiff upon the representation must be ‘the end aim of the transaction’, rather than an ‘indirect or collateral’ consequence of it”. Kidd v. Havens, 171 A.D.2d 336, 577 N.Y.S.2d 989, 991 (1991) (discussing Credit Alliance and quoting Glanzer).\nCredit Alliance addressed the liability of an accountant to a third party, but the principles articulated have been applied subsequently in other contexts. E.g., Ossining Union Free School Dist. v. Anderson La-Rocca Anderson, 73 N.Y.2d 417, 541 N.Y.S.2d 335, 539 N.E.2d 91 (1989) (school district sued consulting engineers hired by school district’s architect); Kidd, 577 N.Y.S.2d 989 (purchaser of property sued title company). Most relevant to the present case is Banque Indosuez v. Barclays Bank PLC, 181 A.D.2d 447, 580 N.Y.S.2d 765 (1992), in which the defendant bank induced the plaintiff to extend a loan to a bank client by negligently misrepresenting the status of an overdraft in a letter of reference requested by the plaintiff. Noting that the plaintiff had not “hired” the bank to provide it with the credit information, the court nonetheless affirmed the denial of summary judgment, holding that a sufficiently close relationship existed between the parties to sustain- the claim. Id. 580 N.Y.S.2d at 766-67.\nUnder this precedent, the negligent misrepresentation claims surely survive summary judgment. Thomas’s evidence provides the three predicates to recovery: (1) that Chase knew the information was to be used for a particular purpose (i.e., the formation of the Price-Thomas partnership and the execution of Thomas’s management contract with it); (2) that Thomas, a known party, relied on -the information in furtherance of that purpose; and (3) that Chase dealt extensively with Thomas, evincing its understanding of his reliance. These circumstances indicate the existence of a relationship “so close as to approach that of privity”; particularly significant is Thomas’s affidavit evidence that Chase approached him for the broker’s fee. Accordingly, the summary judgment on the negligent misrepresentation claims is also reversed.\nD.\nThe final claims are for breach of a fiduciary duty. The district court held that there was no fiduciary relationship between Thomas and Chase, because the Price-Thomas partnership, not Thomas or SLT, paid the broker’s fee. Thomas contends that there was a fiduciary relationship, asserting that Chase acted as his broker in structuring both the Price-Thomas partnership and his management contract with it. The only dispute for purposes of summary judgment is the existence of a fiduciary relationship.\nTo establish- a claim for breach of fiduciary duty, a plaintiff must prove “(1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that the plaintiff suffered damages as a result of the breach”. Whitney v. Citibank, N.A., 782 F.2d 1106, 1115 (2d Cir.1986) (applying New York law). “New York state courts, as well as others, have recognized that whether a fiduciary relationship exists is a question of fact.” Niagara Mohawk Power Corp. v. Stone & Webster Eng’g Corp., 1992 WL 121726, at 21 (N.D.N.Y.1992) (footnotes omitted) (emphasis added); see United States v. Reed, 601 F.Supp. 685, 705 (S.D.N.Y.), rev’d on other grounds, 773 F.2d 477 (2d Cir.1985). In Reed, the court explained:\nIn the final analysis, the assessment of the existence or absence of such a relationship invariably requires a series of factual findings and generally rests with the finder of fact, i.e., the jury, at trial. Judges, charged with making the determinations of law by which to structure and evaluate those findings, may undertake this assessment only in those cases in which it is possible and proper to conclude that, as a matter of law, such a relationship does or does not exist. The very nature of the subject matter, however, reveals that such occasions will be scarce....\n601 F.Supp. at 705.\nAlthough the exact limits of the term “fiduciary relationship” are impossible to define, Compañía Sud-Americana de Vapores v. IBJ Schroder, 785 F.Supp. 411, 425-26 (S.D.N.Y.1992), the following explanation has been offered:\nA fiduciary relationship is one founded on trust or confidence reposed by one person in the integrity and fidelity of another. The term is a very broad one. It is said that the relation exists, and that relief is granted in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. Out of such a relation, the laws raise the rule that neither party may exert influence or pressure upon the other, take selfish advantage of his trust or deal with the subject matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of utmost good faith.... A fiduciary relation exists when confidence is reposed on one side and there is resulting superiority and influence on the other.\nMobil Oil Corp. v. Rubenfeld, 72 Misc.2d 392, 339 N.Y.S.2d 623, 632 (N.Y.Civ.Ct.1972), aff'd, 77 Misc.2d 962, 357 N.Y.S.2d 589 (Sup. Ct.1974), rev’d on other grounds, 48 A.D.2d 428, 370 N.Y.S.2d 943 (1975), aff'd, 40 N.Y.2d 936, 390 N.Y.S.2d 57, 358 N.E.2d 882 (1976); Reed, 601 F.Supp. at 707 (quoting Mobil Oil).\nIn the business context, “[a] fiduciary relationship is not created by an arm’s length contract”, Deem v. Lockheed Corp., 1991 WL 196171, at 7 (S.D.N.Y.1991); see Beneficial Commercial Corp. v. Murray Glick Datsun, Inc., 601 F.Supp. 770, 772 (S.D.N.Y.1985); and “ ‘a conventional business relationship, without more, does not become a fiduciary relationship by mere allegation’ ”, Compania Sud-Americana, 785 F.Supp. at 426 (quoting Oursler v. Women’s Interart Center, Inc., 170 A.D.2d 407, 566 N.Y.S.2d 295 (1991)). A fiduciary relationship may arise, however, “where confidence is based upon prior business dealings”. Beneficial, 601 F.Supp. at 772. In order to recover for breach of fiduciary duty in a purely business transaction, a plaintiff must show that the defendant has superior and accurate knowledge, and the defendant “must have misled the plaintiff by false representations concerning the subject of his superior knowledge or expertise”. Citytrust v. Atlas Capital Corp., 173 A.D.2d 300, 570 N.Y.S.2d 275, 279 (1991) (internal quotations omitted). “Such claims are rarely sustained in New York.” Id.\nThomas’s evidence precludes summary judgment on these claims. Chase’s alleged misrepresentations relate to Price’s client relationship with Chase and banking history elsewhere — subjects about which Chase at least arguably had superior knowledge. According to Thomas, Chase encouraged him to rely on its superior knowledge regarding Price, which it obtained pursuant to an extensive investigation. This indicates the requisite confidence reposed by Thomas, with resulting superiority and influence by Chase.\nMoreover, the complexity of the relationships involved counsels against a determination that Chase, as a matter of law, did not owe a fiduciary duty to Thomas. See Crewnick Fund v. Castle, 1993 WL 88243, at *11 (S.D.N.Y.1993). In Crewnick, the defendant allegedly failed to disclose material adverse financial information when the plaintiff purchased stock in a now-defunct savings and loan. The defendant had previously served as an investment advisor to the plaintiff, and in the subsequent transaction, played multiple roles. Not only did the defendant structure the stock purchase transaction between the plaintiff and a co-defendant, but it was an insider in the thrift, and was involved in the transaction for which the co-defendant needed the funds. The court denied summary judgment, because the complexity of the relationships created a genuine issue of material fact about whether a fiduciary duty was owed. Id.\nSimilarly, as discussed in our earlier opinion, 994 F.2d at 238-39, Chase and Thomas had extensive prior' dealings involving Columbia Investors and Acquisition Ventures, in which they allegedly shared substantial financial interests. Additionally, Chase held accounts for the Church & Thomas Bank during the years preceding the events in issue. Finally, as noted, the summary judgment evidence is that Chase encouraged Thomas to rely on its recommendation of Price, and even sought a broker’s fee from Thomas. As in Crewnick, the complexities of the relationship between Thomas and Chase present a genuine issue of material fact as to whether a fiduciary relationship existed. Accordingly, the summary judgment on those claims is reversed.\nIII.\nFor the foregoing reasons, we REVERSE the summary judgment on the claims (both Thomas’s and SLT’s) for fraud, negligent misrepresentation, and breach of fiduciary duty; and AFFIRM on the claims for conspiracy to defraud. We emphasize again, as held in our prior opinion, that Thomas has standing, individually and on behalf of SLT, only to the extent that the claims relate to the formation of the Price-Thomas partnership and the execution of Thomas’s management contract with it.\nAFFIRMED in part, REVERSED in part, and REMANDED.\n. Our statement of the facts in that opinion, and here, is based on the summary judgment record viewed in the light most favorable to Thomas, the nonmovant. See Thomas, 994 F.2d at 238 n. 1; Harbor Ins. Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th Cir.1993).\n. Thomas stated in his affidavit that, pursuant to the partnership formation and subsequent franchise sale, Chase also structured the Stanhope indemnity agreements by Price and Newcomb, the consideration for which was Thomas’s agreement to enter into the management contract with the Price-Thomas partnership. This evidence supports the allegation- that Chase was involved in the execution of Thomas’s management contract. Even absent evidence of direct involvement, however, a genuine issue of material fact on whether the partnership formation and the management contract were intended to be interdependent casts doubt on the summary judgment. Cf. National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203-05 (2d Cir.1989) (\"there would appear to be no reason in principle why, if two contracts are part of the same exchange, a fraudulent inducement as to one of the contracts might not, in at least some situations, excuse performance by the defrauded party of the other contract”).\n. Chase also contends that because Wu served on the management committee of the Church & Thomas bank, he also acted as agent to the Cha-Thomas partnership in conducting his investigation. Thomas's affidavit, however, contradicts this assertion:\nAt no time did William Wu become the agent or partner to the Thomas family, the SLT Trust or me regarding the proposed Chase-sponsored Price-Thomas partnership. At no time did William Wu assume responsibility beyond the scope of his assignment by the Cha family concerning Newcomb’s financial capacity.\nThis disputed fact cannot support a summary judgment.\n. As noted in our prior opinion, the district court did not address the choice of law issue; it is unclear what law it applied.", "type": "majority", "author": "BARKSDALE, Circuit Judge:"}], "attorneys": ["Frederick L. Unger, Houston, TX, Bernard M. Jung, Kansas City, MO, for plaintiff-appellant.", "Karen A. Oshman, Franci N. Crane, Sus-man & Godfrey, Houston, TX, for defendant-appellee."], "corrections": "", "head_matter": "James C. THOMAS, Individually, and as Trustee of the SLT Trust # 1, Plaintiff-Appellant, v. N.A. CHASE MANHATTAN BANK, Defendant-Appellee.\nNo. 92-2613.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 27, 1993.\nFrederick L. Unger, Houston, TX, Bernard M. Jung, Kansas City, MO, for plaintiff-appellant.\nKaren A. Oshman, Franci N. Crane, Sus-man & Godfrey, Houston, TX, for defendant-appellee.\nBefore POLITZ, Chief Judge, REAVLEY, and BARKSDALE, Circuit Judges."}	POLITZ	REAVLEY	BARKSDALE	1	1	1	0	0	0	1 F.3d 320	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: James C. THOMAS, Individually, and as Trustee of the SLT Trust # 1, Plaintiff-Appellant, v. N.A. CHASE MANHATTAN BANK, Defendant-Appellee\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-27\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nBARKSDALE, Circuit Judge:\nIn issue is the summary judgment awarded N.A. Chase Manhattan Bank in this action by James C. Thomas, individually and as trustee of the SLT Trust # 1 (SLT), arising out of Chase’s referral of an investment partner, E. Lawrence Price. Previously, we held that Thomas lacked standing on certain claims, and as a result, affirmed the judgment as to them; remanded for factual findings on a standing issue; and deferred ruling on the remaining claims pending remand. Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236 (5th Cir.1993). The district court having promptly entered the requested findings, we now turn to the remaining claims. Finding genuine issues of material fact regarding the claims by both Thomas and SLT for fraud, negligent misrepresentation, and breach of fiduciary duty, we REVERSE and REMAND; on the conspiracy to defraud claims, we AFFIRM.\nI.\nThe complex factual background to this case is set out at length in our prior opinion, 994 F.2d at 238-41; we need not repeat it here. Briefly, the claims arise from Chase’s referral of Price as an investment partner for Thomas in a Texas private banking franchise. Thomas and Price entered their respective family trusts, SLT and the Elaine Price Trust (EPT) (of which Price is trustee) into a partnership (the Price-Thomas partnership), which in turn purchased the franchise from another partnership in which Thomas and SLT had been involved with the Cha family (the Chas). Additionally, Thomas in his individual capacity executed a management contract with the newly formed Price-Thomas partnership to continue to manage the bank following the sale. Price subsequently breached both the partnership agreement and the management contract and used the bank to commit a massive government securities tax fraud, driving it into insolvency. After the relationship with Price proved ruinous, Thomas learned that Chase allegedly knew of Price’s history of bank fraud problems, including a serious incident involving Chase, yet Chase represented Price to Thomas as a valued Chase customer and misrepresented Price’s troublesome history.\nThomas, individually and on behalf of SLT, sued Chase for fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, and conspiracy to defraud, alleging basically that Chase had “foisted” Price onto him pursuant to a cover-up of Price’s fraudulent activities at Chase. The district court granted summary judgment for Chase on all claims. In our prior opinion, we upheld summary judgment for lack of standing on the breach of contract claim, and on the other claims to the extent that they related to the Stanhope indemnity agreements. Id. at 244. We remanded for the limited purpose of determining whether Thomas, as trustee, had the capacity to sue on behalf of SLT. Id.\nOn remand, Thomas submitted an affidavit and a copy of the SLT trust instrument. The district court found that the trust instrument “explicitly adopts the powers conferred by Missouri law allowing the trustee to bring suit”. Accordingly, we now address the remaining claims: SLT’s claims for damages resulting from its entering into partnership with EPT (fraud, conspiracy to defraud, negligent misrepresentation, and breach of fiduciary duty); and Thomas’s claims for damages resulting from his entering into the management contract with the Priee-Thomas partnership (same). Because the claims asserted by Thomas individually and on behalf of SLT arise from the same allegations, we address them together.\nII.\nAs stated in our prior opinion, we review a summary judgment de novo, applying the same criteria as would a district court. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). “Summary judgment is proper only if ‘there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law Harbor Ins. Co. v. Trammell Crow Co., 854 F.2d 94, 98 (5th Cir.1988), cert. denied, 489 U.S. 1054, 109 S.Ct. 1315, 103 L.Ed.2d 584 (1989) (quoting Fed.R.Civ.P. 56(c)). “We consider all of the facts contained in the pleadings, depositions, admissions, answers to interrogatories, affidavits, and the inferences to be drawn therefrom in the light most favorable to the non-moving party”. Harbor Ins. Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th Cir.1993). “Our review is not limited to the district court’s analysis”; we may affirm on any basis presented to the district court. Id.\nWe previously held that New York law governs the claims by Thomas and SLT. Thomas, 994 F.2d at 241-42. The summary judgment record is described in our prior opinion, 994 F.2d at 238 n. 1. Most revealing about the record is the scant evidence submitted by Chase.\nA.\nThe fraud claims relate to Chase’s alleged misrepresentations that Price was a long-time, highly valued Chase client, when in fact Chase had terminated Price’s accounts and was trying to rid itself of him; that, based on Chase’s long-term dealings with and extensive due diligence on Price, Chase knew him to be an appropriate investment partner for Thomas; and that Price’s banking problem in Chicago was mere “unpleasantness” — “simply a routine banking relationship that didn’t work out”, when in fact Price had perpetrated a massive government securities tax fraud there for which he later suffered a tax court judgment. Additionally, when Thomas inquired of Chase regarding information (“second-hand rumors”) he had learned from William Wu (his former partner’s (the Chas) agent who had investigated Price), Chase allegedly encouraged Thomas to rely on its superior knowledge regarding Price and urged him not to listen to rumors. The district court granted summary judgment on these claims, based on its determination that Thomas could not justifiably rely on the alleged misrepresentations.\n“New York requires proof of the traditional five elements of fraud: misrepresentation of a material fact, falsity of that representation, scienter, reliance and damages”. Mallis v. Bankers Trust Co. (Mallis I), 615 F.2d 68, 80 (2d Cir.1980) (emphasis omitted), cert. denied, 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 109 (1981). Justifiable reliance is the only element in issue; it is not disputed that material fact issues exist regarding the other four elements.\nTo satisfy the requirement of justifiable reliance, a plaintiff must establish that his reliance on the defendant’s misrepresentations was justifiable “both in the sense that [he] was justified in believing the representation, and that he was justified in acting upon it”. Compania Sud-Americana de Vapores, S.A. v. IBJ Schroder Bank & Trust Co., 785 F.Supp. 411, 419 (S.D.N.Y.1992). When the matters represented are “peculiarly within the [defendant’s] knowledge”, the plaintiff is not required to investigate them, “as he has no independent means of ascertaining the truth”. Mallis I, 615 F.2d at 80 (internal quotations omitted). When the plaintiff “has the means of knowing, by the exercise of ordinary intelligence, the truth”, however, he will be barred as a matter of law from asserting justifiable reliance. Id. at 80-81 (emphasis added); Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 184 N.Y.S.2d 599, 603, 157 N.E.2d 597, 600 (1959). Apart from this principle, the question of justifiable reliance is one of fact. See Country World, Inc. v. Imperial Frozen Foods Co., 186 A.D.2d 781, 589 N.Y.S.2d 81, 82 (1992); Freschi v. Gmnd Coal Venture, 583 F.Supp. 780, 785 (S.D.N.Y.1984). Accordingly, it bears repeating that it is a summary judgment we are reviewing; we determine whether there are material fact issues.\nChase’s representations regarding its dealings with Price were “peculiarly within its knowledge”. Thomas would have no means of ascertaining independently (certainly not “by the exercise of ordinary intelligence”, see infra) whether Price was a long-time, highly valued Chase customer, or whether Chase believed Price to be a worthy investment partner for Thomas. Therefore, at least with respect to those representations, Thomas is not barred as a matter of law from establishing justifiable reliance.\nWith respect to its alleged representations about Price’s bank fraud in Chicago, Chase contends that Thomas had independent access to that information and therefore cannot assert justifiable reliance on Chase. It emphasizes that Thomas was alerted to a problem by Wu, and should have pursued further investigation. Citing Most v. Monti, 91 A.D.2d 606, 456 N.Y.S.2d 427, 428 (1982); Marine Midland Bank v. Palm Beach Moorings, Inc., 61 A.D.2d 927, 403 N.Y.S.2d 15 (1978); and Grumman Allied Indus., Inc. v. Rohr Indus., Inc., 748 F.2d 729 (2d Cir.1984), Chase asserts that a sophisticated businessman like Thomas could not, as a matter of law, justifiably rely on Chase’s verbal assurances in entering into a business deal of the magnitude involved here.\nFor several reasons, we conclude that the cases cited do not support the summary judgment. First, each of them involved representations made by the opposing party to a transaction. Most involved the seller of a health club who allegedly misrepresented to the buyer that the property was fully assessed for tax purposes. See 456 N.Y.S.2d at 428. Marine Midland involved a bank that allegedly misrepresented the status of corporate loans to a potential guarantor in order to obtain the guaranty obligation. See 403 N.Y.S.2d at 16. Grumman involved the seller of a subsidiary who allegedly misrepresented to the buyer material facts relating to certain assets purchased. See 748 F.2d at 730-33.\nIn contrast, Chase was not directly opposite Thomas in the transactions; instead, it acted as a sort of intermediary. Thomas admittedly knew that Chase served as Price’s broker; but, Chase allegedly approached Thomas for its broker’s fee prior to the partnership formation, Thomas agreed to the fee, and the Price-Thomas partnership, not Price or EPT, actually paid it. Additionally, Chase and Thomas allegedly were involved together in other projects, including Columbia Investors and Acquisition Ventures. See 994 F.2d at 238-39. In these circumstances, Thomas had less reason to question Chase’s representations than did the plaintiffs in the cases cited by Chase.\nMoreover, each of the cases cited also turns on the fact that the parties claiming justifiable reliance had independent access to the information in issue. In Most, it was “readily available to plaintiffs upon their making reasonable inquiry”. 456 N.Y.S.2d at 428. Similarly, in Marine Midland, the guarantor had “unlimited access to the relevant financial records ... before he became a personal guarantor on the note”. 403 N.Y.S.2d at 17. Finally, in Grumman, there was “undisputed evidence demonstrating that [the buyer] enjoyed unfettered access to [the seller’s] plants, personnel and documents ...”. 748 F.2d at 737.\nHere, Chase failed to submit any evidence that Thomas could have independently obtained additional information about Price. Chase stated at oral argument in our court that a simple inquiry by Thomas would have revealed the entire matter, but no evidence was presented to that effect. To the contrary, Wu allegedly told Thomas that his sources were confidential, and refused to reveal them, indicating that perhaps the information was not publicly available.\nFinally, and of great importance, Thomas did seek further information about Price when he telephoned Chase vice president Mary Small to inquire about the Chicago incident. The evidence presented by Thomas, through his affidavit, was that Small not only assured him that Chase had thoroughly investigated all aspects of the Chicago incident, but affirmatively attempted to block any further investigation by urging Thomas to rely on Chase’s superior knowledge and not to pursue rumors. Chase did not present any evidence to rebut Thomas’s affidavit regarding this telephone call. In light of the unrebutted evidence of this active concealment, absent in the cases cited, we cannot hold, as a matter of law, that Thomas was not justified in relying on Chase’s assurances.\nCiting agency principles, Chase finally contends that Wu’s additional knowledge regarding Price’s fraud is imputed to Thomas, barring justifiable reliance. Evidence submitted by Chase does indicate that Wu may have known more about Price’s problems than he conveyed to Thomas; specifically, handwritten notes by Wu in 1983 mention yet another Chicago bank with which Price had problems. Relying on the rule of law that principals are imputed with the knowledge of their agents, Chase reasons that Wu’s knowledge is imputed to his principals, the Chas, and that their knowledge is in turn imputed to their partner, Thomas.\n“It is a basic tenet of the law of agency that the knowledge of an agent, or for that matter a partner or joint venturer is imputed to the principal”. Mallis v. Bankers Trust Co. (Mallis II), 717 F.2d 683, 689 n. 9 (2d Cir.1983). A corollary to that tenet, however, is that “[knowledge of an agent, even of a general agent, to be imputed to his principal, must be actual knowledge”. Hare & Chase, Inc. v. National Surety Co., 49 F.2d 447, 458 (S.D.N.Y.1931) (emphasis added), aff'd, 60 F.2d 909 (2d Cir.), cert. denied, 287 U.S. 662, 53 S.Ct. 222, 77 L.Ed. 572 (1932); e.g., Nolan v. Sam Fox Publishing Co., 499 F.2d 1394, 1398 (2d Cir.1974); Ferrara v. Schatf 466 F.Supp. 125, 131 (S.D.N.Y.1979). The principle of imputed knowledge “rests upon the duty of the agent to disclose to his principal all material facts coming to his knowledge with reference to the scope of the agency and upon the presumption that the agent has discharged his duty”. Otsego Mut. Fire Ins. Co. v. Darby, 79 Misc.2d 80, 358 N.Y.S.2d 314, 318 (Sup.Ct. 1974). It follows, therefore, that “[t]here can be no presumption that [an agent] communicated to the [principal] knowledge which it did not have”. Wheatland v. Pryor, 133 N.Y. 97, 30 N.E. 652 (1892) (rejecting contention that the imputed knowledge of a principal could be “reimputed” to its principal); see also In re Agent Orange Prod. Liab. Litig., 597 F.Supp. 740, 796 (E.D.N.Y.1984) (citing the Restatement of Agency § 277, that a principal is not affected by knowledge that agent should have, but did not, acquire), aff'd, 818 F.2d 145 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988).\nEven assuming, therefore, that Wu had sufficient information to bar justifiable reliance, Chase must prove that the information was actually communicated to his principal, the Chas, in order for it to even be arguably imputed to Thomas. Chase does not make this contention, and we see no evidence to support it. Accordingly, the summary judgment cannot be upheld on this basis.\nIn sum, Thomas is not barred as a matter of law from establishing that he justifiably relied on any of Chase’s alleged misrepresentations. Because the remaining questions regarding justifiable reliance, as well as the other elements of fraud, present material fact issues, we reverse the summary judgment as to fraud.\nB.\nThe claims for conspiracy to defraud rest on the same allegations as the fraud claims' — Chase’s alleged misrepresentations in attempting to rid itself of Price and thereby conceal its role in Price’s fraud. In the district court, Thomas asserted that civil conspiracy is an independent cause of action under Texas law. On appeal, however, Thomas does not brief this issue under either Texas or New York law.\n“Under New York State law, ‘it is well settled that a mere conspiracy to commit a [tort] is never itself a cause of action’ ”. Conrad v. Perales, 818 F.Supp. 559, 565 (W.D.N.Y.1993) (quoting Jan Sparka Travel, Inc. v. Hamza, 182 A.D.2d 1067, 587 N.Y.S.2d 958, 960 (1992)); see also Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968, 510 N.Y.S.2d 546, 547, 503 N.E.2d 102-103 (1986). “Allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort”. Fritzen, 510 N.Y.S.2d at 547, 503 N.E.2d at 103.\nThomas does not attempt to connect Chase with the actions of another defendant; indeed, there is no other defendant. Instead, Thomas’s allegations involve Chase’s fraudulent actions, as discussed above. In any event, issues not briefed are waived. Zeno v. Great Atlantic & Pacific Tea Co., 803 F.2d 178, 180-81 (5th Cir.1986); Fed.R.Civ.P. 28(a)(5). Accordingly, the summary judgment on the conspiracy to defraud claims is affirmed.\nC.\nThe negligent misrepresentation claims also rest on the allegations discussed in relation to fraud: The district court granted summary judgment for these claims on the same basis as for fraud — its conclusion that Thomas could not justifiably rely on the alleged misrepresentations.\nRegarding negligent misrepresentation, the New York Court of Appeals has stated:\nAs to duty imposed, generally a negligent statement may be the basis for recovery of damages, where there is carelessness in imparting words upon which others were expected to rely and upon which they did act or failed to act to their damage ..., but such information is not actionable unless expressed directly, with knowledge or notice that it will be acted upon, to one whom the author is bound by some relation of duty, arising out of contract or otherwise, to act with care if he acts at all....\nWhite v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 478, 372 N.E.2d 315, 319 (1977); Enzo Biochem, Inc. v. Johnson & Johnson, 1992 WL 309613 (S.D.N.Y.1992) (quoting White). Contrary to the distinct court’s assumption, justifiable reliance per se does not appear to be an element of the tort under New York law. Instead, as discussed below, New York courts appear to focus on the relationship between the parties in determining whether a cause of action will lie; where the relationship is sufficiently close, a party will be allowed to recover damages caused by the negligent misrepresentations of another. But, in any event, the above holding with respect to justifiable. reliance would apply to the negligent misrepresentation claims as well as to those for fraud.\nIn the keystone case of Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110, amended, 66 N.Y.2d 812, 498 N.Y.S.2d 362, 489 N.E.2d 249 (1985), the New York Court of Appeals focused on the relationship required to sustain a cause of action for negligent misrepresentation absent privity of contract. After reconsidering its holdings in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), and Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922), the court reaffirmed the principle that “a relationship ‘so close as to approach that of privity’ remains valid as the predicate for imposing liability” for negligent misrepresentation. Credit Alliance, 493 N.Y.S.2d at 440, 483 N.E.2d at 115. The court then expanded this principle into three prerequisites for recovery: (1) awareness that the information is to be used for a particular purpose; (2) reliance by a known party in furtherance of that purpose; and (3) some conduct by the defendant linking it to that party and evincing defendant’s understanding of that party’s reliance. Id., 493 N.Y.S.2d at 443, 483 N.E.2d at 118. “As a shorthand rule encapsulating those requirements, it has been noted that, for defendants to be liable, reliance by plaintiff upon the representation must be ‘the end aim of the transaction’, rather than an ‘indirect or collateral’ consequence of it”. Kidd v. Havens, 171 A.D.2d 336, 577 N.Y.S.2d 989, 991 (1991) (discussing Credit Alliance and quoting Glanzer).\nCredit Alliance addressed the liability of an accountant to a third party, but the principles articulated have been applied subsequently in other contexts. E.g., Ossining Union Free School Dist. v. Anderson La-Rocca Anderson, 73 N.Y.2d 417, 541 N.Y.S.2d 335, 539 N.E.2d 91 (1989) (school district sued consulting engineers hired by school district’s architect); Kidd, 577 N.Y.S.2d 989 (purchaser of property sued title company). Most relevant to the present case is Banque Indosuez v. Barclays Bank PLC, 181 A.D.2d 447, 580 N.Y.S.2d 765 (1992), in which the defendant bank induced the plaintiff to extend a loan to a bank client by negligently misrepresenting the status of an overdraft in a letter of reference requested by the plaintiff. Noting that the plaintiff had not “hired” the bank to provide it with the credit information, the court nonetheless affirmed the denial of summary judgment, holding that a sufficiently close relationship existed between the parties to sustain- the claim. Id. 580 N.Y.S.2d at 766-67.\nUnder this precedent, the negligent misrepresentation claims surely survive summary judgment. Thomas’s evidence provides the three predicates to recovery: (1) that Chase knew the information was to be used for a particular purpose (i.e., the formation of the Price-Thomas partnership and the execution of Thomas’s management contract with it); (2) that Thomas, a known party, relied on -the information in furtherance of that purpose; and (3) that Chase dealt extensively with Thomas, evincing its understanding of his reliance. These circumstances indicate the existence of a relationship “so close as to approach that of privity”; particularly significant is Thomas’s affidavit evidence that Chase approached him for the broker’s fee. Accordingly, the summary judgment on the negligent misrepresentation claims is also reversed.\nD.\nThe final claims are for breach of a fiduciary duty. The district court held that there was no fiduciary relationship between Thomas and Chase, because the Price-Thomas partnership, not Thomas or SLT, paid the broker’s fee. Thomas contends that there was a fiduciary relationship, asserting that Chase acted as his broker in structuring both the Price-Thomas partnership and his management contract with it. The only dispute for purposes of summary judgment is the existence of a fiduciary relationship.\nTo establish- a claim for breach of fiduciary duty, a plaintiff must prove “(1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that the plaintiff suffered damages as a result of the breach”. Whitney v. Citibank, N.A., 782 F.2d 1106, 1115 (2d Cir.1986) (applying New York law). “New York state courts, as well as others, have recognized that whether a fiduciary relationship exists is a question of fact.” Niagara Mohawk Power Corp. v. Stone & Webster Eng’g Corp., 1992 WL 121726, at 21 (N.D.N.Y.1992) (footnotes omitted) (emphasis added); see United States v. Reed, 601 F.Supp. 685, 705 (S.D.N.Y.), rev’d on other grounds, 773 F.2d 477 (2d Cir.1985). In Reed, the court explained:\nIn the final analysis, the assessment of the existence or absence of such a relationship invariably requires a series of factual findings and generally rests with the finder of fact, i.e., the jury, at trial. Judges, charged with making the determinations of law by which to structure and evaluate those findings, may undertake this assessment only in those cases in which it is possible and proper to conclude that, as a matter of law, such a relationship does or does not exist. The very nature of the subject matter, however, reveals that such occasions will be scarce....\n601 F.Supp. at 705.\nAlthough the exact limits of the term “fiduciary relationship” are impossible to define, Compañía Sud-Americana de Vapores v. IBJ Schroder, 785 F.Supp. 411, 425-26 (S.D.N.Y.1992), the following explanation has been offered:\nA fiduciary relationship is one founded on trust or confidence reposed by one person in the integrity and fidelity of another. The term is a very broad one. It is said that the relation exists, and that relief is granted in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. Out of such a relation, the laws raise the rule that neither party may exert influence or pressure upon the other, take selfish advantage of his trust or deal with the subject matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of utmost good faith.... A fiduciary relation exists when confidence is reposed on one side and there is resulting superiority and influence on the other.\nMobil Oil Corp. v. Rubenfeld, 72 Misc.2d 392, 339 N.Y.S.2d 623, 632 (N.Y.Civ.Ct.1972), aff'd, 77 Misc.2d 962, 357 N.Y.S.2d 589 (Sup. Ct.1974), rev’d on other grounds, 48 A.D.2d 428, 370 N.Y.S.2d 943 (1975), aff'd, 40 N.Y.2d 936, 390 N.Y.S.2d 57, 358 N.E.2d 882 (1976); Reed, 601 F.Supp. at 707 (quoting Mobil Oil).\nIn the business context, “[a] fiduciary relationship is not created by an arm’s length contract”, Deem v. Lockheed Corp., 1991 WL 196171, at 7 (S.D.N.Y.1991); see Beneficial Commercial Corp. v. Murray Glick Datsun, Inc., 601 F.Supp. 770, 772 (S.D.N.Y.1985); and “ ‘a conventional business relationship, without more, does not become a fiduciary relationship by mere allegation’ ”, Compania Sud-Americana, 785 F.Supp. at 426 (quoting Oursler v. Women’s Interart Center, Inc., 170 A.D.2d 407, 566 N.Y.S.2d 295 (1991)). A fiduciary relationship may arise, however, “where confidence is based upon prior business dealings”. Beneficial, 601 F.Supp. at 772. In order to recover for breach of fiduciary duty in a purely business transaction, a plaintiff must show that the defendant has superior and accurate knowledge, and the defendant “must have misled the plaintiff by false representations concerning the subject of his superior knowledge or expertise”. Citytrust v. Atlas Capital Corp., 173 A.D.2d 300, 570 N.Y.S.2d 275, 279 (1991) (internal quotations omitted). “Such claims are rarely sustained in New York.” Id.\nThomas’s evidence precludes summary judgment on these claims. Chase’s alleged misrepresentations relate to Price’s client relationship with Chase and banking history elsewhere — subjects about which Chase at least arguably had superior knowledge. According to Thomas, Chase encouraged him to rely on its superior knowledge regarding Price, which it obtained pursuant to an extensive investigation. This indicates the requisite confidence reposed by Thomas, with resulting superiority and influence by Chase.\nMoreover, the complexity of the relationships involved counsels against a determination that Chase, as a matter of law, did not owe a fiduciary duty to Thomas. See Crewnick Fund v. Castle, 1993 WL 88243, at *11 (S.D.N.Y.1993). In Crewnick, the defendant allegedly failed to disclose material adverse financial information when the plaintiff purchased stock in a now-defunct savings and loan. The defendant had previously served as an investment advisor to the plaintiff, and in the subsequent transaction, played multiple roles. Not only did the defendant structure the stock purchase transaction between the plaintiff and a co-defendant, but it was an insider in the thrift, and was involved in the transaction for which the co-defendant needed the funds. The court denied summary judgment, because the complexity of the relationships created a genuine issue of material fact about whether a fiduciary duty was owed. Id.\nSimilarly, as discussed in our earlier opinion, 994 F.2d at 238-39, Chase and Thomas had extensive prior' dealings involving Columbia Investors and Acquisition Ventures, in which they allegedly shared substantial financial interests. Additionally, Chase held accounts for the Church & Thomas Bank during the years preceding the events in issue. Finally, as noted, the summary judgment evidence is that Chase encouraged Thomas to rely on its recommendation of Price, and even sought a broker’s fee from Thomas. As in Crewnick, the complexities of the relationship between Thomas and Chase present a genuine issue of material fact as to whether a fiduciary relationship existed. Accordingly, the summary judgment on those claims is reversed.\nIII.\nFor the foregoing reasons, we REVERSE the summary judgment on the claims (both Thomas’s and SLT’s) for fraud, negligent misrepresentation, and breach of fiduciary duty; and AFFIRM on the claims for conspiracy to defraud. We emphasize again, as held in our prior opinion, that Thomas has standing, individually and on behalf of SLT, only to the extent that the claims relate to the formation of the Price-Thomas partnership and the execution of Thomas’s management contract with it.\nAFFIRMED in part, REVERSED in part, and REMANDED.\n. Our statement of the facts in that opinion, and here, is based on the summary judgment record viewed in the light most favorable to Thomas, the nonmovant. See Thomas, 994 F.2d at 238 n. 1; Harbor Ins. Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th Cir.1993).\n. Thomas stated in his affidavit that, pursuant to the partnership formation and subsequent franchise sale, Chase also structured the Stanhope indemnity agreements by Price and Newcomb, the consideration for which was Thomas’s agreement to enter into the management contract with the Price-Thomas partnership. This evidence supports the allegation- that Chase was involved in the execution of Thomas’s management contract. Even absent evidence of direct involvement, however, a genuine issue of material fact on whether the partnership formation and the management contract were intended to be interdependent casts doubt on the summary judgment. Cf. National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203-05 (2d Cir.1989) (\"there would appear to be no reason in principle why, if two contracts are part of the same exchange, a fraudulent inducement as to one of the contracts might not, in at least some situations, excuse performance by the defrauded party of the other contract”).\n. Chase also contends that because Wu served on the management committee of the Church & Thomas bank, he also acted as agent to the Cha-Thomas partnership in conducting his investigation. Thomas's affidavit, however, contradicts this assertion:\nAt no time did William Wu become the agent or partner to the Thomas family, the SLT Trust or me regarding the proposed Chase-sponsored Price-Thomas partnership. At no time did William Wu assume responsibility beyond the scope of his assignment by the Cha family concerning Newcomb’s financial capacity.\nThis disputed fact cannot support a summary judgment.\n. As noted in our prior opinion, the district court did not address the choice of law issue; it is unclear what law it applied.\n[END_CASE]", "role": "user" } ]
10,510,671	UNITED STATES of America, Plaintiff-Appellee, v. Clifford SINCLAIR, Defendant-Appellant	United States v. Sinclair	1993-08-27	No. 92-1610	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE , District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Clifford SINCLAIR, Defendant-Appellant."], "opinions": [{"text": "PER CURIAM:\nClifford Sinclair, a federal prisoner, has appealed from the district court’s denial of his motion to reduce his sentence, which was filed pursuant to Rule 35 of the Federal Rules of Criminal Procedure. A district court’s ruling under Rule 35 will be reversed “only for illegality or gross abuse of discretion.” United States v. Lewis, 743 F.2d 1127, 1129 (5th Cir.1984) (quoting United States v. Sparrow, 673 F.2d 862, 864 (5th Cir.1982)). We have reviewed the record and considered the arguments presented, and we do not find that the district court grossly abused its discretion.\nAFFIRMED.\n. We note that the appellant argues that the standard of review is \"abuse of discretion” rather than \"gross abuse of discretion.” As authority for this standard, the appellant cites United States v. Kirkland, 853 F.2d 1243 (5th Cir.1988). The Kirkland case states that the court will \"examine only whether the sentence was illegal or whether the district court abused its discretion.” Id. at 1246. As authority for this standard, the Kirkland court cites United States v. Hanyard, 762 F.2d 1226, 1228 (5th Cir.1985). The Han-yard case provides that a district court's ruling on a motion under Rule 35 will be reversed \"only for illegality or gross abuse of discretion.” Id. (cites omitted). Therefore, the standard of review remains gross abuse of discretion.", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Bill Boyd, Boyd & Veigel, P.C., McKinney, TX, for defendant-appellant.", "Delonia A. Watson, Joe C. Lockhart, Asst. U.S. Attys., Fort Worth, TX, Marvin Collins, U.S. Atty., Dallas, TX, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Clifford SINCLAIR, Defendant-Appellant.\nNo. 92-1610.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 27, 1993.\nRehearing Denied Sept. 28, 1993.\nBill Boyd, Boyd & Veigel, P.C., McKinney, TX, for defendant-appellant.\nDelonia A. Watson, Joe C. Lockhart, Asst. U.S. Attys., Fort Worth, TX, Marvin Collins, U.S. Atty., Dallas, TX, for plaintiff-appellee.\nBefore WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE , District Judge.\nDistrict Judge of the Western District of Louisiana, sitting by designation."}	WIENER	EMILIO M. GARZA	LITTLE	1	1	1	0	0	0	1 F.3d 329	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Clifford SINCLAIR, Defendant-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-27\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPER CURIAM:\nClifford Sinclair, a federal prisoner, has appealed from the district court’s denial of his motion to reduce his sentence, which was filed pursuant to Rule 35 of the Federal Rules of Criminal Procedure. A district court’s ruling under Rule 35 will be reversed “only for illegality or gross abuse of discretion.” United States v. Lewis, 743 F.2d 1127, 1129 (5th Cir.1984) (quoting United States v. Sparrow, 673 F.2d 862, 864 (5th Cir.1982)). We have reviewed the record and considered the arguments presented, and we do not find that the district court grossly abused its discretion.\nAFFIRMED.\n. We note that the appellant argues that the standard of review is \"abuse of discretion” rather than \"gross abuse of discretion.” As authority for this standard, the appellant cites United States v. Kirkland, 853 F.2d 1243 (5th Cir.1988). The Kirkland case states that the court will \"examine only whether the sentence was illegal or whether the district court abused its discretion.” Id. at 1246. As authority for this standard, the Kirkland court cites United States v. Hanyard, 762 F.2d 1226, 1228 (5th Cir.1985). The Han-yard case provides that a district court's ruling on a motion under Rule 35 will be reversed \"only for illegality or gross abuse of discretion.” Id. (cites omitted). Therefore, the standard of review remains gross abuse of discretion.\n[END_CASE]", "role": "user" } ]
10,510,738	UNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael MASERATTI, Gabriel Ruiz, Miguel Rocha, Juan Manual Zamora, Johnny Davis, Jose Silva, David Pieratt, Bonifacio Filoteo, Deborah Ann Garza, Severo Garza, Jr., and Ramiro Gonzales Alvarado, Defendants-Appellants; UNITED STATES of America, Plaintiff-Appellee, v. Johnny DAVIS, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Roque Urdíales GARCIA, Defendant-Appellant	United States v. Maseratti	1993-08-27	Nos. 90-2783, 91-2088 and 91-2332	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before REAVLEY, DUHÉ, and BARKSDALE, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael MASERATTI, Gabriel Ruiz, Miguel Rocha, Juan Manual Zamora, Johnny Davis, Jose Silva, David Pieratt, Bonifacio Filoteo, Deborah Ann Garza, Severo Garza, Jr., and Ramiro Gonzales Alvarado, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Johnny DAVIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roque Urdíales GARCIA, Defendant-Appellant."], "opinions": [{"text": "DUHÉ, Circuit Judge:\nTwelve of 28 defendants challenge their drug conspiracy convictions arising out of a large marijuana and cocaine enterprise. We affirm. Eight also contest their sentences. We vacate six of their sentences and remand those six for resentencing.\nBackground\nThis case involves a very large and long lasting drug conspiracy. In a 40 count indictment, the Appellants, along with 16 others, were charged with conspiracy to possess cocaine with intent to distribute (Count 1), conspiracy to possess marijuana with intent to distribute (Count 2), conspiracy to import cocaine (Count 3), possession of cocaine with intent to distribute (Counts 4, 9, 26, 29), distribution of cocaine (Counts 5, 10, 27), possession of marijuana with intent to distribute (Counts 6, 12), distribution of marijuana (Counts 8, 16), importation of cocaine (Count 31), use of the telephone to facilitate drug trafficking (Counts 13-15, 17-25, 28-30, 32-38), continuing criminal enterprise (Count 40), and travel in interstate commerce to facilitate drug trafficking (Counts 7, 11), all in violation of 21 U.S.C. §§ 841(a)(1), 846, 963, 843(b), and 848, and 18 U.S.C. § 1952.\nAppellant Roque Garcia operated this extensive marijuana and cocaine trafficking enterprise in Houston. Appellants Zamora, Rocha, Silva, Pieratt, and Ruiz at various times assisted in the distribution of the drugs. For most of the conspiracy’s duration Garcia used an apartment in Houston as his headquarters, but the drugs were stored elsewhere, including the homes of Silva and Zamora. Appellants Alvarado and Filoteo supplied some drugs, and appellants Severo and Deborah Garza maintained a supply of marijuana for the enterprise at their home. Appellants Davis and Maseratti were regular customers of the enterprise.\nBy means of surveillance, a pen register, and a wire tap, the DEA closely observed the Garcia enterprise for approximately a year. At various times during the DEA’s investigation, arrests were made and drugs were confiscated. The DEA was careful, however, to stage the arrests so that they appeared not to be connected to the surveillance. By the time all was said and done, the DEA had indicted 28 persons connected with the Garcia enterprise. After a jury trial, all Appellants were convicted on all counts in which they were charged.\nThe Appellants raise numerous claims on appeal. They contend (1) the government’s exercise of peremptory challenges violated the Fifth Amendment, (2) the court’s refusal to give a buyer-seller jury instruction was error, (3) the court’s refusal to dismiss a juror who, during the trial, applied for a government job was error, (4) the importation conspiracy was improperly joined with the domestic conspiracies, (5) Appellant Davis’ car was unlawfully searched, (6) the wiretap order was unlawfully issued, (7) a fatal variance exists between the conspiracies charged and the conspiracies proven, (8) the evidence was insufficient to support the convictions, and (9) the sentences were unlawfully imposed. We consider each in turn.\nI. Batson Challenge. The Appellants argue that the government used three of its peremptory strikes to exclude prospective jurors; two black females, and one Hispanic female, solely because of their race and ethnicity in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and the Fifth Amendment. Appellants objected to the strikes and the prosecutor gave the following explanations:\nOne black woman was struck because “she appeared to be sleeping during part of the voir dire.” The second black woman was struck because she also was not paying attention during the voir dire, and because the prosecutor did not like the fact that she was a City of Houston employee. The Hispanic woman was struck because:\nIt was my impression from my experience in Hispanic culture that she might tend to be sympathetic toward Debbie Garza’s predicament in that she basically is doing what the male in the species is telling her to do, and might be too sympathetic _\nThe district court overruled Appellants’ Bat-son objection.\nThe Supreme Court held in Batson that a defendant can establish an equal protection violation based on the government’s use of peremptory challenges to remove black potential jurors in his case. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. If the defendant establishes a prima facie case that the prosecutor used peremptory challenges to remove potential jurors because of their race, the burden shifts to the prosecutor to provide race neutral explanations. The court must then determine, in light of all of the facts and circumstances, whether the defendant has earned his burden to establish purposeful discrimination. Id. at 94-98, 106 S.Ct. at 1721-24.\nWhen Appellants objected to the prosecutor’s exercise of peremptory challenges in this case, the court, without expressly determining whether a prima facie case was made out, asked the prosecutor to explain his challenges. In Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), the Supreme Court stated that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Id. — U.S. at -, 111 S.Ct. at 1866.\nIn evaluating the race-neutrality of an attorney’s explanation, we must determine whether the challenges violate the Fifth Amendment as a matter of law. Id. — U.S. at -, 111 S.Ct. at 1866. Proof of racially discriminatory intent or purpose is required to show a violation of the Fifth Amendment. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). “Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker selected a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Hernandez, — U.S. at -, 111 S.Ct. at 1866 (citations omitted).\nBefore addressing the merits of Appellants’ argument, however, we address the matter of timeliness. The trial court questioned the timeliness of Appellants’ Batson objection because they asserted their objection after the unselected venirepersons had been dismissed. One defense lawyer voiced his impression that a Batson claim was timely until the jury was sworn. The court’s subsequent general denial of relief does not indicate whether timeliness was the basis for its ruling. No one requested clarification.\nThe notion that a Batson claim is timely until the jury is sworn is incorrect. This Court has held “that to be timely, the Batson objection must be made before the venire is dismissed and before the trial commences.” United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989), cert. denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d 948 (1990). Therefore, this Batson claim can be dismissed as untimely. Even considering the merits of the claim, however, we conclude that the district court’s ruling is correct.\nWhile the prosecutor’s explanation with regard to the Hispanic woman appears on its face to offend Hernandez, the fact that he seated another Hispanic female and that the prosecutor himself is Hispanic shows that this challenge was particular to this female and not a “stereo typical assumption” or a “gross racial stereotype or anecdotal generalization” about Hispanics. See Hernandez, — U.S. at -, 111 S.Ct. at 1867; United States v. Greene, 36 M.J. 274 (C.M.A.1993).\nAs to the two black women excluded, the explanations given by the prosecutor were clearly race-neutral, and Appellants’ arguments are without merit.\nII. Buyer-Seller Instructions. Ten of the twelve Appellants argue that the trial judge erred when he refused to give a buyer-seller instruction to the jury in the course of his discussion of the law of conspiracy. We disagree.\nDuring the charge conference, the Appellants requested a charge based on United States v. Hughes, 817 F.2d 268, 273 (6th Cir.1987), cert denied, 484 U.S. 858, 108 S.Ct. 170, 98 L.Ed.2d 124 (1987), which included language to the effect that the existence of a mere buyer-seller relationship in and of itself is not sufficient to prove a conspiracy. They also requested that the multiple conspiracy charge submitted contain similar language. The court denied these requests.\nAppellants are entitled to an instruction on any recognized defense for which there exists evidence sufficient for a reasonable jury to find in their favor. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988) (citations omitted). As we stated in United States v. Schmick, “it is reversible error to refuse a charge on a defense theory for which there is an evidentiary foundation and which, if believed, would be legally sufficient to render the accused innocent.” However, a trial judge is “under no obligation to give a requested instruction that misstates the law, is argumentative, or has been covered adequately by other instructions.” United States v. L’Hoste, 609 F.2d 796, 805 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980) (citations omitted).\nWhile it is true that a buyer-seller relationship, without more, will not prove a conspiracy, evidence of such activity goes to whether the defendant intended to join in the conspiracy or whether his or her participation was more limited in nature. The questions of whether a defendant is a buyer/seller, and whether a defendant is a member of a conspiracy are mutually exclusive. When Congress enacted the current drug laws, it eliminated references to selling drugs as the basis for criminal activity, and substituted the broader concept of distribution as the prohibited conduct. United States v. Johnson, 481 F.2d 645, 647 (5th Cir.1973). As a result, the procuring agent defense was eliminated. Id. Conspiracies, and culpable parties thereto were expanded. One becomes a member of a drug conspiracy if he knowingly participates in a plan to distribute drugs, whether by buying, selling or otherwise. The drug conspiracy laws focus on whether the participants knowingly joined an agreement to distribute drugs in violation of the law. We conclude that if the evidence showed that a defendant is merely a buyer or seller, the elements necessary to prove a conspiracy would be lacking, and a not guilty verdict would result. In this case, the jury instruction given by the court accurately reflected the law on conspiracy. The buyer-seller relationship has been adequately covered by this other instruction. L’Hoste, 609 F.2d at 805.\nIII. Juror seeking job with GSA. The Appellants argue that the court erred in not excusing a juror who, during trial, sought employment as a security guard with the General Services Administration (GSA). About 4 weeks into trial, the Defendants advised the court that Juror Cardenas was repeatedly seen going into the GSA security office in the courthouse during breaks and lunch periods. ' They asked the court to question Cardenas and GSA regarding whether Cardenas was seeking employment with them. The court refused. Several days later, the Defendants renewed their request. Apparently, Mr. Cardenas had continued to visit the GSA office on a daily basis. The defense requested that Cardenas be replaced with an alternate juror.\nPrior to submitting the case to the jury, the court finally agreed to let defense counsel question Cardenas about his activities. Cardenas admitted that he was visiting with the GSA security officers and that he had applied for a position as a security guard. He testified that he had received a positive response to his application pending his passing several tests. Cardenas also testified that this would not affect his ability as a juror. Defense counsel requested that he be removed, but the court refused.\nWe review for abuse of discretion. United States v. O’Neill, 767 F.2d 780, 785 (11th Cir.1985). Appellants had the burden of proving by a preponderance of the evidence that Cardenas was actually biased. De La Rosa v. Texas, 743 F.2d 299, 306 (5th Cir. 1984), cert. denied, 470 U.S. 1065, 105 S.Ct. 1781, 84 L.Ed.2d 840 (1985); Smith v. Phillips, 455 U.S. 209, 215-18, 102 S.Ct. 940, 945-47, 71 L.Ed.2d 78 (1982). Appellants have failed to carry this burden. Even if Cardenas had held a job as a security guard with the GSA at the time of jury selection, he would not have been ineligible to serve as a juror. Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir.1990), cert. denied, 498 U.S. 1091, 111 S.Ct. 974, 112 L.Ed.2d 1059 (1991). The district court acted completely within its discretion.\nIV. Sufficiency of the Evidence. All Appellants except Garcia, Zamora, and Silva challenge the sufficiency of the evidence supporting some or all of the counts of which they were convicted.\nBefore addressing the individual claims, we set forth the principles governing our review of sufficiency issues. We examine the evidence, together with all credibility choices and reasonable inferences, in the light most favorable to the government. United States v. Rena, 981 F.2d 765, 771 (5th Cir.1993). The verdict must be upheld if the court concludes that any reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt. Id. at 770. The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. United States v. Lopez, 979 F.2d 1024, 1028 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2349, 124 L.Ed.2d 258 (1993). The government, however, must do more than pile inference upon inference. United States v. Cardenas Alvarado, 806 F.2d 566, 570 (5th Cir.1986). Finally, the standard is the same whether the evidence is direct or circumstantial. Rena, 981 F.2d at 771.\nIn a narcotics conspiracy prosecution, the government must prove beyond a reasonable doubt: (1) that an agreement to violate the narcotics laws existed between two or more persons, (2) that each alleged conspirator knew of the conspiracy and intended to join it, and (3) that each alleged conspirator did participate in the conspiracy. United States v. Medina, 887 F.2d 528, 530 (5th Cir.1989); United States v. Guerra-Marez, 928 F.2d 665 (5th Cir.), cert. denied, U.S. -, 112 S.Ct. 322, 116 L.Ed.2d 263 (1991). Proof of any element may be by circumstantial evidence, and “ ‘[circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, ... be sufficient to constitute conclusive proof.’ ” United States v. Roberts, 913 F.2d 211, 218 (5th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2264, 114 L.Ed.2d 716 (1991) (quoting United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989)).\nAfter a careful review of the record, we conclude that, viewed in the light most favorable to the verdict, the evidence is sufficient as to all defendants.\nAppellants Maseratti, Filoteo, Alvarado, and D.avis contend that they should not have been convicted of conspiracy to possess either marijuana or cocaine, or both, because the evidence proved only a buyer-seller relationship between them and the Garcia enterprise. Although a buyer-seller relationship, without more, will not prove a conspiracy, the evidence was sufficient for the jury to conclude that the activities of these Appellants went beyond that of a mere buyer-seller. See Hughes, 817 F.2d at 273; United States v. Thomas, 768 F.2d 611, 615 (5th Cir.1985).\nMaseratti was a repeat marijuana customer. As early as June 7, 1989, telephone conversations concerning drug distribution intercepted between Roque Garcia and another defendant, Ayala, made reference to Maseratti as the “white guy”. Garcia apparently knew the identity of the individual so referred to. The jury could easily infer that Maseratti’s involvement began before that phone call.\nOn July 1, 1989, Maseratti went to Apartment 603 (Garcia’s headquarters), and in the presence of Garcia and others, he rejected the cocaine offered to him because of its off-color, but agreed to take all of the marijuana. This evidence showed that Maseratti knew that the Garcia organization had other members and that Maseratti assisted in purchasing drugs for resale. The evidence is sufficient to show that Maseratti knowingly intended to join and did join in the conspiracy to distribute marijuana.\nDavis was also a repeat marijuana and cocaine customer. Davis knew Garcia and Zamora operated the business out of apartment 603, and Davis was seen there many times. Garcia furnished Davis with cocaine in up to half-kilogram quantities and more than 100 pounds of marijuana. This evidence supports the conclusion that Davis was a knowledgeable participant in the marijuana and cocaine conspiracies.\nFiloteo and Alvarado were suppliers to the Garcia enterprise. They admit to an “occasional deal” with Garcia, but contend that since they did not control the organization or share in its profits, their buy-sell conduct cannot be deemed part of the conspiracy charged. However, even a single act can be one from which knowledge and participation in a conspiracy can be inferred. United States v. Michelena-Orovio, 719 F.2d 738, 751 (5th Cir.1983) (en banc), cert. denied, 465 U.S. 1104, 104 S.Ct. 1605, 80 L.Ed.2d 135 (1984). Filoteo and Alvarado furnished the drugs which Garcia then sold to Maseratti. They were in the process of making another delivery of marijuana to Garcia when they were arrested. This is adequate evidence that Filoteo and Alvarado were willing participants in the Garcia conspiracy.\nRocha, Ruiz and Pieratt make “mere presence” arguments. The evidence, however, examined in its totality, shows that these defendants were knowing participants in the Garcia scheme. Rocha was convicted in both the conspiracy to import and to distribute cocaine. He was involved in the plan to import cocaine from its outset. A number of phone calls were intercepted which provided ample proof of his knowledgeable participation. In fact, Rocha expressed his belief to Zamora that Garcia had placed himself and Zamora in charge of this operation. Rocha was observed coming and going from the warehouse where the cocaine-laden truck was concealed. He also made a number of intercepted phone calls and hard wire transmissions from the Garcia apartment headquarters.\nRuiz was convicted of conspiracy to distribute marijuana and two uses of the telephone to facilitate marijuana distribution. On June 29, 1989, Ruiz called Garcia looking for “work”. DEA officers testified that “work” is a code word often used to mean marijuana. During the call, Ruiz provided Garcia with directions to his place of business. On July 5, Ruiz telephoned Zamora and advised Zamora that he would be coming to the apartment to deliver some “invoices” that he had already “cleaned.” Based on the officer’s testimony, the jury could conclude that Ruiz was thus planning to make a payment for drugs. Additionally, Ruiz, Zamora, and another associate met at a Whataburger restaurant from which Zamora’s car was driven to Ruiz’s place of business. This conduct is consistent with the delivery of drugs.\nPieratt was convicted of the marijuana conspiracy, possession of marijuana with intent to distribute, and distribution of marijuana. He was apparently Arnold Hatton’s link to the Garcia enterprise. He was observed at the Garcia apartment several weeks before Hatton’s car was loaded with marijuana. Pieratt was then involved in the ear switch which resulted in Hatton’s car being loaded with 201 pounds of marijuana. He drove the loaded car to the hotel where Hatton was staying. A surveillance officer testified that he observed Pieratt open the trunk and remove something before he delivered the ear to Hatton. Hatton was later stopped by officers with the car trunk full of marijuana. This is adequate evidence that Pieratt was involved in -the marijuana conspiracy.\nFinally, the Garzas also argue that they were mere occasional sellers of marijuana to the Garcia enterprise. Marijuana wrappers which had contained significant amounts of marijuana were discovered in the Garzas’ garbage. This discovery was made shortly after Roque Garcia and his brother left a meeting at the Garza home. Additionally, a ledger detailing a large quantity of marijuana sales was discovered in the Garza’s house. It showed sales to Roque Garcia. Although other persons may have also lived in the house, the government proved that the Garzas were.the lawful occupants. The jury was entitled to believe that the Garzas were the sellers of marijuana to the Garcia enterprise and that their involvement went beyond a single incident.\nIn conclusion, after a careful review of the record, we conclude that, viewed in the light most favorable to the verdict, the evidence was sufficient as to all Appellants.\nV. Sentencing. Eight of the Appellants raise sentencing issues. The issues fall into four categories: computation of accountable drugs, minor or minimal participant, acceptance of responsibility and use of a firearm.\nThe standard of review is statutorily defined. The sentence must be upheld unless the appellant demonstrates that it was imposed in violation of the law, was imposed as a result of an incorrect application of the guidelines, or was outside the range of the applicable guidelines and was unreasonable. 18 U.S.C. § 3742(e); United States v. Ebertowski, 896 F.2d 906, 907 (5th Cir.1990). This Court must give “due regard to the opportunity of the district court to judge the credibility of witnesses” by accepting its findings of fact unless they are clearly erroneous. 18 U.S.C. § 3742(d). Beyond even the clearly erroneous standard, this Court must give due deference to the district court’s application of the guidelines to the facts. Id.; see United States v. Woolford, 896 F.2d 99, 103-04 (5th Cir.1990).\n1. Computation of Accountable Drugs. Filoteo, Alvarado, Davis, Maseratti and the Garzas question the propriety of holding them accountable for more than the amount of drugs in the specific incidents in which they were personally involved. In Filoteo and Alvarado’s cases, at the sentencing hearing the court held them responsible for all 914 kilograms of marijuana proved to be handled by the Garcia enterprise, but they accepted responsibility only for the 35 kilograms seized at the time of their arrest and 50 kilograms discussed in a telephone conversation with Garcia. Davis admitted responsibility only for the cocaine directly attributable to him and Buford Lachney, and he strongly opposed being held accountable for the 144 kilograms of cocaine seized from a warehouse on July 18, 1989. The court held Davis responsible for all the cocaine and marijuana involved in the conspiracy. Likewise, Maseratti and the Garzas challenged the presentence report’s recommendation that they be held accountable for 914 kilograms of marijuana. The court rejected their arguments.\nThe amount of drugs for which an individual shall be held accountable at sentencing represents a factual finding, and will be upheld unless clearly erroneous. United States v. Ponce, 917 F.2d 841, 842 (5th Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1398, 113 L.Ed.2d 453 (1991). A factual finding is not clearly erroneous as long as it is plausible in light of the record of the case as a whole. United States v. Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 348, 121 L.Ed.2d 263 (1992).\nThe Sentencing Guidelines allow the sentencing court to hold a defendant accountable for all relevant conduct. United States v. Smallwood, 920 F.2d 1231, 1237 (5th Cir.1991). A co-conspirator is accountable for his own conduct and the foreseeable acts of his co-conspirators committed in furtherance of the conspiracy. U.S.S.G. § 1B1.3(a)(l)(B); United States v. Puma, 937 F.2d 151, 159 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1165, 117 L.Ed.2d 412 (1992).\nSince the Appellants committed the offenses and were sentenced, the Sentencing Commission has amended U.S.S.G. § 1B1.3 and its commentaries and application notes to clarify what is relevant conduct. Amendment 439 to the guidelines effective November 1, 1992, states “[t]his amendment clarifies and more fully illustrates the operation of this guideline.”\nThe revised guidelines are not applicable to the Appellants. However; if an amendment was intended only to clarify Section 1B1.3’s application and, therefore, implicitly was not intended to make any substantive changes to it or its commentary, we may consider the amended language of Application note 2 even though it was not in effect at the time of the commission of the offense. United States v. Evbuomwan, 992 F.2d 70, 74 n. 1 (5th Cir.1993); United States v. Nissen, 928 F.2d 690, 694-95 (5th Cir.1991).\nApplication note 2 makes clear that criminal liability and relevant conduct are two different concepts, regardless of whether the indictment includes a conspiracy allegation. A defendant is accountable for the conduct of others that was both: (1) in furtherance of the jointly undertaken criminal activity; and (2) reasonably foreseeable in connection with that criminal activity. The clarifying amendments provide a number of helpful illustrations. Illustration (c)(7) is particularly pertinent:\nDefendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. As long as Defendant S’s agreement and conduct is limited to the distribution of the 500 grams, Defendant S is accountable only for that 500 gram amount (under subsection (a)(1)(A)), rather than the much larger quantity imported by Defendant R.\nThe illustrations indicate that it was not necessarily the intent of the Sentencing Commission to hold persons who buy or sell drugs to a major distributor responsible for all the drugs bought or sold by that distributor. The district court did not have the benefit of these clarifications at the time of sentencing. We believe that those defendants who may be involved in less than the entire conspiracy should have their sentences reexamined in light of these guideline clarifications. Therefore, the sentences of Appellants Maseratti, Davis, Alvarado, Filoteo, Severo Garza, and Deborah Garza are vacated and their cases are remanded for resen-tencing in light of the clarification of Guideline IB 1.3.\n2. Minor or Minimal Participants. Davis, Maseratti, and Pieratt contend that they should have been given credit for either two or four level reductions as minor or minimal participants in the criminal activity. Guideline section 3B1.2 provides a two- to four-level reduction in the base offense level for those offenders found to be relatively less culpable than others involved in the same scheme or conspiracy. See United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). The guidelines define “minimal participant” as one who demonstrates a “lack of knowledge or understanding of the scope and structure of the enterprise.” U.S.S.G. § 3B1.2, comment, (n. 1). A “minor participant” is similarly defined as one who is “less culpable than most other participants, but whose role could not be described as minimal.” Id. (n. 3). Because most offenses are committed by participants of roughly equal culpability, our Court has noted that “it is intended that [the adjustment] will be used infrequently.” United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir.1989). We are unpersuaded by the Appellants’ suggestion that either classification applies to them.\nS. Acceptance of Responsibility. Davis and Pieratt challenge the court’s refusal to grant them a credit for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. The court found that Davis “has not exhibited an affirmative or timely acceptance of responsibility for his criminal conduct.” Davis claims that this ruling is clearly erroneous because he furnished a written statement of accountability. The probation officer in Pieratt’s ease recommended against the credit because Pieratt did not make a statement relative to his participation in the offense. Pieratt argues that this was unnecessary because those details were thoroughly discussed at trial.\nThe sentencing judge’s factual determinations on acceptance of responsibility are entitled to even greater deference than that accorded under a clearly erroneous standard. United States v. Kinder, 946 F.2d 362, 367 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1677, 118 L.Ed.2d 394 (1992). After a careful review of the record, we find Appellants’ arguments unconvincing.\nAs to the remaining issues raised by the Appellants, our detailed and painstaking review of the enormous record and briefs in this case convinces us that the district court committed no reversible error.\nFor the foregoing reasons, the judgments of conviction are AFFIRMED and the sentences of Maseratti, Davis, Alvarado, Filoteo, Severo Garza, Jr., and Deborah Garza are VACATED and their cases REMANDED for resentencing.\n. Although it is not crystal clear in the record that the veniremen had been dismissed, we see no reason for the trial judge to raise the issue otherwise. Additionally, once the venire was dismissed from the courtroom, the opportunity for them to be tainted was too great, and it was the responsibility of the Defendants, as the movers, to insure that the integrity of the jury security was preserved.\n. 904 F.2d 936, 943 (5th Cir.1990), cert. denied, 498 U.S. 1067, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991).\n. Hughes, 817 F.2d at 273.\n. The appellants contend that the facts in this case are so extreme that they fit the situation Justice O'Connor described in her concurring opinion in Smith, and that they only have to show implied bias. We disagree.\n. Distribution means \"to deliver ... a controlled substance.\" 21 U.S.C. § 802(11). The statute defines “deliver” as the \"transfer of a controlled substance, whether or not there exists an agency relationship.” 21 U.S.C. § 802(8).\n. Maseratti had previously placed his drug order over the phone to Garcia, thus sustaining his conviction for use of the telephone to facilitate drug trafficking.", "type": "majority", "author": "DUHÉ, Circuit Judge:"}], "attorneys": ["David Cunningham, Houston, TX (court appointed), for Maseratti.", "Lee Wilson, Houston, TX (court appointed), for Ruiz.", "John Garcia, Houston, TX (court appointed), for Rocha.", "Ralph R. Martinez, Houston, TX (court appointed), for Silva.", "Deborah Gottlieb, Houston, TX, for Pier-att.", "Thomas D. Moran, Houston, TX (court appointed), for Filoteo.", "Floyd J. Fernandez, Houston, TX (court appointed), for D. Garza and S. Garza.", "Sylvia Yarborough, Houston, TX (court appointed), for Alvarado.", "Robert Fickman, Schaffer, Lambright, Odom & Sparks, Houston, TX, for Ayala.", "Howard Waldrop, Texarkana, TX (court appointed), for Zamora.", "David R. Bires, Houston, TX and Ralph S. Whalen, Jr., New Orleans, LA, for Davis.", "Michael B. Charlton, Houston, TX (court appointed), for Garcia.", "Mervyn Hamburg, U.S. Dept, of Justice, Washington, DC, Paula C. Offenhauser, Asst. U.S. Atty. and Ronald G. Woods, U.S. Atty., Houston, TX, for the U.S."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael MASERATTI, Gabriel Ruiz, Miguel Rocha, Juan Manual Zamora, Johnny Davis, Jose Silva, David Pieratt, Bonifacio Filoteo, Deborah Ann Garza, Severo Garza, Jr., and Ramiro Gonzales Alvarado, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Johnny DAVIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roque Urdíales GARCIA, Defendant-Appellant.\nNos. 90-2783, 91-2088 and 91-2332.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 27, 1993.\nDavid Cunningham, Houston, TX (court appointed), for Maseratti.\nLee Wilson, Houston, TX (court appointed), for Ruiz.\nJohn Garcia, Houston, TX (court appointed), for Rocha.\nRalph R. Martinez, Houston, TX (court appointed), for Silva.\nDeborah Gottlieb, Houston, TX, for Pier-att.\nThomas D. Moran, Houston, TX (court appointed), for Filoteo.\nFloyd J. Fernandez, Houston, TX (court appointed), for D. Garza and S. Garza.\nSylvia Yarborough, Houston, TX (court appointed), for Alvarado.\nRobert Fickman, Schaffer, Lambright, Odom & Sparks, Houston, TX, for Ayala.\nHoward Waldrop, Texarkana, TX (court appointed), for Zamora.\nDavid R. Bires, Houston, TX and Ralph S. Whalen, Jr., New Orleans, LA, for Davis.\nMichael B. Charlton, Houston, TX (court appointed), for Garcia.\nMervyn Hamburg, U.S. Dept, of Justice, Washington, DC, Paula C. Offenhauser, Asst. U.S. Atty. and Ronald G. Woods, U.S. Atty., Houston, TX, for the U.S.\nBefore REAVLEY, DUHÉ, and BARKSDALE, Circuit Judges."}	REAVLEY	DUHÉ	BARKSDALE	1	1	1	0	0	0	1 F.3d 330	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael MASERATTI, Gabriel Ruiz, Miguel Rocha, Juan Manual Zamora, Johnny Davis, Jose Silva, David Pieratt, Bonifacio Filoteo, Deborah Ann Garza, Severo Garza, Jr., and Ramiro Gonzales Alvarado, Defendants-Appellants; UNITED STATES of America, Plaintiff-Appellee, v. Johnny DAVIS, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Roque Urdíales GARCIA, Defendant-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-27\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nDUHÉ, Circuit Judge:\nTwelve of 28 defendants challenge their drug conspiracy convictions arising out of a large marijuana and cocaine enterprise. We affirm. Eight also contest their sentences. We vacate six of their sentences and remand those six for resentencing.\nBackground\nThis case involves a very large and long lasting drug conspiracy. In a 40 count indictment, the Appellants, along with 16 others, were charged with conspiracy to possess cocaine with intent to distribute (Count 1), conspiracy to possess marijuana with intent to distribute (Count 2), conspiracy to import cocaine (Count 3), possession of cocaine with intent to distribute (Counts 4, 9, 26, 29), distribution of cocaine (Counts 5, 10, 27), possession of marijuana with intent to distribute (Counts 6, 12), distribution of marijuana (Counts 8, 16), importation of cocaine (Count 31), use of the telephone to facilitate drug trafficking (Counts 13-15, 17-25, 28-30, 32-38), continuing criminal enterprise (Count 40), and travel in interstate commerce to facilitate drug trafficking (Counts 7, 11), all in violation of 21 U.S.C. §§ 841(a)(1), 846, 963, 843(b), and 848, and 18 U.S.C. § 1952.\nAppellant Roque Garcia operated this extensive marijuana and cocaine trafficking enterprise in Houston. Appellants Zamora, Rocha, Silva, Pieratt, and Ruiz at various times assisted in the distribution of the drugs. For most of the conspiracy’s duration Garcia used an apartment in Houston as his headquarters, but the drugs were stored elsewhere, including the homes of Silva and Zamora. Appellants Alvarado and Filoteo supplied some drugs, and appellants Severo and Deborah Garza maintained a supply of marijuana for the enterprise at their home. Appellants Davis and Maseratti were regular customers of the enterprise.\nBy means of surveillance, a pen register, and a wire tap, the DEA closely observed the Garcia enterprise for approximately a year. At various times during the DEA’s investigation, arrests were made and drugs were confiscated. The DEA was careful, however, to stage the arrests so that they appeared not to be connected to the surveillance. By the time all was said and done, the DEA had indicted 28 persons connected with the Garcia enterprise. After a jury trial, all Appellants were convicted on all counts in which they were charged.\nThe Appellants raise numerous claims on appeal. They contend (1) the government’s exercise of peremptory challenges violated the Fifth Amendment, (2) the court’s refusal to give a buyer-seller jury instruction was error, (3) the court’s refusal to dismiss a juror who, during the trial, applied for a government job was error, (4) the importation conspiracy was improperly joined with the domestic conspiracies, (5) Appellant Davis’ car was unlawfully searched, (6) the wiretap order was unlawfully issued, (7) a fatal variance exists between the conspiracies charged and the conspiracies proven, (8) the evidence was insufficient to support the convictions, and (9) the sentences were unlawfully imposed. We consider each in turn.\nI. Batson Challenge. The Appellants argue that the government used three of its peremptory strikes to exclude prospective jurors; two black females, and one Hispanic female, solely because of their race and ethnicity in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and the Fifth Amendment. Appellants objected to the strikes and the prosecutor gave the following explanations:\nOne black woman was struck because “she appeared to be sleeping during part of the voir dire.” The second black woman was struck because she also was not paying attention during the voir dire, and because the prosecutor did not like the fact that she was a City of Houston employee. The Hispanic woman was struck because:\nIt was my impression from my experience in Hispanic culture that she might tend to be sympathetic toward Debbie Garza’s predicament in that she basically is doing what the male in the species is telling her to do, and might be too sympathetic _\nThe district court overruled Appellants’ Bat-son objection.\nThe Supreme Court held in Batson that a defendant can establish an equal protection violation based on the government’s use of peremptory challenges to remove black potential jurors in his case. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. If the defendant establishes a prima facie case that the prosecutor used peremptory challenges to remove potential jurors because of their race, the burden shifts to the prosecutor to provide race neutral explanations. The court must then determine, in light of all of the facts and circumstances, whether the defendant has earned his burden to establish purposeful discrimination. Id. at 94-98, 106 S.Ct. at 1721-24.\nWhen Appellants objected to the prosecutor’s exercise of peremptory challenges in this case, the court, without expressly determining whether a prima facie case was made out, asked the prosecutor to explain his challenges. In Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), the Supreme Court stated that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Id. — U.S. at -, 111 S.Ct. at 1866.\nIn evaluating the race-neutrality of an attorney’s explanation, we must determine whether the challenges violate the Fifth Amendment as a matter of law. Id. — U.S. at -, 111 S.Ct. at 1866. Proof of racially discriminatory intent or purpose is required to show a violation of the Fifth Amendment. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). “Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker selected a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Hernandez, — U.S. at -, 111 S.Ct. at 1866 (citations omitted).\nBefore addressing the merits of Appellants’ argument, however, we address the matter of timeliness. The trial court questioned the timeliness of Appellants’ Batson objection because they asserted their objection after the unselected venirepersons had been dismissed. One defense lawyer voiced his impression that a Batson claim was timely until the jury was sworn. The court’s subsequent general denial of relief does not indicate whether timeliness was the basis for its ruling. No one requested clarification.\nThe notion that a Batson claim is timely until the jury is sworn is incorrect. This Court has held “that to be timely, the Batson objection must be made before the venire is dismissed and before the trial commences.” United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989), cert. denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d 948 (1990). Therefore, this Batson claim can be dismissed as untimely. Even considering the merits of the claim, however, we conclude that the district court’s ruling is correct.\nWhile the prosecutor’s explanation with regard to the Hispanic woman appears on its face to offend Hernandez, the fact that he seated another Hispanic female and that the prosecutor himself is Hispanic shows that this challenge was particular to this female and not a “stereo typical assumption” or a “gross racial stereotype or anecdotal generalization” about Hispanics. See Hernandez, — U.S. at -, 111 S.Ct. at 1867; United States v. Greene, 36 M.J. 274 (C.M.A.1993).\nAs to the two black women excluded, the explanations given by the prosecutor were clearly race-neutral, and Appellants’ arguments are without merit.\nII. Buyer-Seller Instructions. Ten of the twelve Appellants argue that the trial judge erred when he refused to give a buyer-seller instruction to the jury in the course of his discussion of the law of conspiracy. We disagree.\nDuring the charge conference, the Appellants requested a charge based on United States v. Hughes, 817 F.2d 268, 273 (6th Cir.1987), cert denied, 484 U.S. 858, 108 S.Ct. 170, 98 L.Ed.2d 124 (1987), which included language to the effect that the existence of a mere buyer-seller relationship in and of itself is not sufficient to prove a conspiracy. They also requested that the multiple conspiracy charge submitted contain similar language. The court denied these requests.\nAppellants are entitled to an instruction on any recognized defense for which there exists evidence sufficient for a reasonable jury to find in their favor. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988) (citations omitted). As we stated in United States v. Schmick, “it is reversible error to refuse a charge on a defense theory for which there is an evidentiary foundation and which, if believed, would be legally sufficient to render the accused innocent.” However, a trial judge is “under no obligation to give a requested instruction that misstates the law, is argumentative, or has been covered adequately by other instructions.” United States v. L’Hoste, 609 F.2d 796, 805 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980) (citations omitted).\nWhile it is true that a buyer-seller relationship, without more, will not prove a conspiracy, evidence of such activity goes to whether the defendant intended to join in the conspiracy or whether his or her participation was more limited in nature. The questions of whether a defendant is a buyer/seller, and whether a defendant is a member of a conspiracy are mutually exclusive. When Congress enacted the current drug laws, it eliminated references to selling drugs as the basis for criminal activity, and substituted the broader concept of distribution as the prohibited conduct. United States v. Johnson, 481 F.2d 645, 647 (5th Cir.1973). As a result, the procuring agent defense was eliminated. Id. Conspiracies, and culpable parties thereto were expanded. One becomes a member of a drug conspiracy if he knowingly participates in a plan to distribute drugs, whether by buying, selling or otherwise. The drug conspiracy laws focus on whether the participants knowingly joined an agreement to distribute drugs in violation of the law. We conclude that if the evidence showed that a defendant is merely a buyer or seller, the elements necessary to prove a conspiracy would be lacking, and a not guilty verdict would result. In this case, the jury instruction given by the court accurately reflected the law on conspiracy. The buyer-seller relationship has been adequately covered by this other instruction. L’Hoste, 609 F.2d at 805.\nIII. Juror seeking job with GSA. The Appellants argue that the court erred in not excusing a juror who, during trial, sought employment as a security guard with the General Services Administration (GSA). About 4 weeks into trial, the Defendants advised the court that Juror Cardenas was repeatedly seen going into the GSA security office in the courthouse during breaks and lunch periods. ' They asked the court to question Cardenas and GSA regarding whether Cardenas was seeking employment with them. The court refused. Several days later, the Defendants renewed their request. Apparently, Mr. Cardenas had continued to visit the GSA office on a daily basis. The defense requested that Cardenas be replaced with an alternate juror.\nPrior to submitting the case to the jury, the court finally agreed to let defense counsel question Cardenas about his activities. Cardenas admitted that he was visiting with the GSA security officers and that he had applied for a position as a security guard. He testified that he had received a positive response to his application pending his passing several tests. Cardenas also testified that this would not affect his ability as a juror. Defense counsel requested that he be removed, but the court refused.\nWe review for abuse of discretion. United States v. O’Neill, 767 F.2d 780, 785 (11th Cir.1985). Appellants had the burden of proving by a preponderance of the evidence that Cardenas was actually biased. De La Rosa v. Texas, 743 F.2d 299, 306 (5th Cir. 1984), cert. denied, 470 U.S. 1065, 105 S.Ct. 1781, 84 L.Ed.2d 840 (1985); Smith v. Phillips, 455 U.S. 209, 215-18, 102 S.Ct. 940, 945-47, 71 L.Ed.2d 78 (1982). Appellants have failed to carry this burden. Even if Cardenas had held a job as a security guard with the GSA at the time of jury selection, he would not have been ineligible to serve as a juror. Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir.1990), cert. denied, 498 U.S. 1091, 111 S.Ct. 974, 112 L.Ed.2d 1059 (1991). The district court acted completely within its discretion.\nIV. Sufficiency of the Evidence. All Appellants except Garcia, Zamora, and Silva challenge the sufficiency of the evidence supporting some or all of the counts of which they were convicted.\nBefore addressing the individual claims, we set forth the principles governing our review of sufficiency issues. We examine the evidence, together with all credibility choices and reasonable inferences, in the light most favorable to the government. United States v. Rena, 981 F.2d 765, 771 (5th Cir.1993). The verdict must be upheld if the court concludes that any reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt. Id. at 770. The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. United States v. Lopez, 979 F.2d 1024, 1028 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2349, 124 L.Ed.2d 258 (1993). The government, however, must do more than pile inference upon inference. United States v. Cardenas Alvarado, 806 F.2d 566, 570 (5th Cir.1986). Finally, the standard is the same whether the evidence is direct or circumstantial. Rena, 981 F.2d at 771.\nIn a narcotics conspiracy prosecution, the government must prove beyond a reasonable doubt: (1) that an agreement to violate the narcotics laws existed between two or more persons, (2) that each alleged conspirator knew of the conspiracy and intended to join it, and (3) that each alleged conspirator did participate in the conspiracy. United States v. Medina, 887 F.2d 528, 530 (5th Cir.1989); United States v. Guerra-Marez, 928 F.2d 665 (5th Cir.), cert. denied, U.S. -, 112 S.Ct. 322, 116 L.Ed.2d 263 (1991). Proof of any element may be by circumstantial evidence, and “ ‘[circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, ... be sufficient to constitute conclusive proof.’ ” United States v. Roberts, 913 F.2d 211, 218 (5th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2264, 114 L.Ed.2d 716 (1991) (quoting United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989)).\nAfter a careful review of the record, we conclude that, viewed in the light most favorable to the verdict, the evidence is sufficient as to all defendants.\nAppellants Maseratti, Filoteo, Alvarado, and D.avis contend that they should not have been convicted of conspiracy to possess either marijuana or cocaine, or both, because the evidence proved only a buyer-seller relationship between them and the Garcia enterprise. Although a buyer-seller relationship, without more, will not prove a conspiracy, the evidence was sufficient for the jury to conclude that the activities of these Appellants went beyond that of a mere buyer-seller. See Hughes, 817 F.2d at 273; United States v. Thomas, 768 F.2d 611, 615 (5th Cir.1985).\nMaseratti was a repeat marijuana customer. As early as June 7, 1989, telephone conversations concerning drug distribution intercepted between Roque Garcia and another defendant, Ayala, made reference to Maseratti as the “white guy”. Garcia apparently knew the identity of the individual so referred to. The jury could easily infer that Maseratti’s involvement began before that phone call.\nOn July 1, 1989, Maseratti went to Apartment 603 (Garcia’s headquarters), and in the presence of Garcia and others, he rejected the cocaine offered to him because of its off-color, but agreed to take all of the marijuana. This evidence showed that Maseratti knew that the Garcia organization had other members and that Maseratti assisted in purchasing drugs for resale. The evidence is sufficient to show that Maseratti knowingly intended to join and did join in the conspiracy to distribute marijuana.\nDavis was also a repeat marijuana and cocaine customer. Davis knew Garcia and Zamora operated the business out of apartment 603, and Davis was seen there many times. Garcia furnished Davis with cocaine in up to half-kilogram quantities and more than 100 pounds of marijuana. This evidence supports the conclusion that Davis was a knowledgeable participant in the marijuana and cocaine conspiracies.\nFiloteo and Alvarado were suppliers to the Garcia enterprise. They admit to an “occasional deal” with Garcia, but contend that since they did not control the organization or share in its profits, their buy-sell conduct cannot be deemed part of the conspiracy charged. However, even a single act can be one from which knowledge and participation in a conspiracy can be inferred. United States v. Michelena-Orovio, 719 F.2d 738, 751 (5th Cir.1983) (en banc), cert. denied, 465 U.S. 1104, 104 S.Ct. 1605, 80 L.Ed.2d 135 (1984). Filoteo and Alvarado furnished the drugs which Garcia then sold to Maseratti. They were in the process of making another delivery of marijuana to Garcia when they were arrested. This is adequate evidence that Filoteo and Alvarado were willing participants in the Garcia conspiracy.\nRocha, Ruiz and Pieratt make “mere presence” arguments. The evidence, however, examined in its totality, shows that these defendants were knowing participants in the Garcia scheme. Rocha was convicted in both the conspiracy to import and to distribute cocaine. He was involved in the plan to import cocaine from its outset. A number of phone calls were intercepted which provided ample proof of his knowledgeable participation. In fact, Rocha expressed his belief to Zamora that Garcia had placed himself and Zamora in charge of this operation. Rocha was observed coming and going from the warehouse where the cocaine-laden truck was concealed. He also made a number of intercepted phone calls and hard wire transmissions from the Garcia apartment headquarters.\nRuiz was convicted of conspiracy to distribute marijuana and two uses of the telephone to facilitate marijuana distribution. On June 29, 1989, Ruiz called Garcia looking for “work”. DEA officers testified that “work” is a code word often used to mean marijuana. During the call, Ruiz provided Garcia with directions to his place of business. On July 5, Ruiz telephoned Zamora and advised Zamora that he would be coming to the apartment to deliver some “invoices” that he had already “cleaned.” Based on the officer’s testimony, the jury could conclude that Ruiz was thus planning to make a payment for drugs. Additionally, Ruiz, Zamora, and another associate met at a Whataburger restaurant from which Zamora’s car was driven to Ruiz’s place of business. This conduct is consistent with the delivery of drugs.\nPieratt was convicted of the marijuana conspiracy, possession of marijuana with intent to distribute, and distribution of marijuana. He was apparently Arnold Hatton’s link to the Garcia enterprise. He was observed at the Garcia apartment several weeks before Hatton’s car was loaded with marijuana. Pieratt was then involved in the ear switch which resulted in Hatton’s car being loaded with 201 pounds of marijuana. He drove the loaded car to the hotel where Hatton was staying. A surveillance officer testified that he observed Pieratt open the trunk and remove something before he delivered the ear to Hatton. Hatton was later stopped by officers with the car trunk full of marijuana. This is adequate evidence that Pieratt was involved in -the marijuana conspiracy.\nFinally, the Garzas also argue that they were mere occasional sellers of marijuana to the Garcia enterprise. Marijuana wrappers which had contained significant amounts of marijuana were discovered in the Garzas’ garbage. This discovery was made shortly after Roque Garcia and his brother left a meeting at the Garza home. Additionally, a ledger detailing a large quantity of marijuana sales was discovered in the Garza’s house. It showed sales to Roque Garcia. Although other persons may have also lived in the house, the government proved that the Garzas were.the lawful occupants. The jury was entitled to believe that the Garzas were the sellers of marijuana to the Garcia enterprise and that their involvement went beyond a single incident.\nIn conclusion, after a careful review of the record, we conclude that, viewed in the light most favorable to the verdict, the evidence was sufficient as to all Appellants.\nV. Sentencing. Eight of the Appellants raise sentencing issues. The issues fall into four categories: computation of accountable drugs, minor or minimal participant, acceptance of responsibility and use of a firearm.\nThe standard of review is statutorily defined. The sentence must be upheld unless the appellant demonstrates that it was imposed in violation of the law, was imposed as a result of an incorrect application of the guidelines, or was outside the range of the applicable guidelines and was unreasonable. 18 U.S.C. § 3742(e); United States v. Ebertowski, 896 F.2d 906, 907 (5th Cir.1990). This Court must give “due regard to the opportunity of the district court to judge the credibility of witnesses” by accepting its findings of fact unless they are clearly erroneous. 18 U.S.C. § 3742(d). Beyond even the clearly erroneous standard, this Court must give due deference to the district court’s application of the guidelines to the facts. Id.; see United States v. Woolford, 896 F.2d 99, 103-04 (5th Cir.1990).\n1. Computation of Accountable Drugs. Filoteo, Alvarado, Davis, Maseratti and the Garzas question the propriety of holding them accountable for more than the amount of drugs in the specific incidents in which they were personally involved. In Filoteo and Alvarado’s cases, at the sentencing hearing the court held them responsible for all 914 kilograms of marijuana proved to be handled by the Garcia enterprise, but they accepted responsibility only for the 35 kilograms seized at the time of their arrest and 50 kilograms discussed in a telephone conversation with Garcia. Davis admitted responsibility only for the cocaine directly attributable to him and Buford Lachney, and he strongly opposed being held accountable for the 144 kilograms of cocaine seized from a warehouse on July 18, 1989. The court held Davis responsible for all the cocaine and marijuana involved in the conspiracy. Likewise, Maseratti and the Garzas challenged the presentence report’s recommendation that they be held accountable for 914 kilograms of marijuana. The court rejected their arguments.\nThe amount of drugs for which an individual shall be held accountable at sentencing represents a factual finding, and will be upheld unless clearly erroneous. United States v. Ponce, 917 F.2d 841, 842 (5th Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1398, 113 L.Ed.2d 453 (1991). A factual finding is not clearly erroneous as long as it is plausible in light of the record of the case as a whole. United States v. Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 348, 121 L.Ed.2d 263 (1992).\nThe Sentencing Guidelines allow the sentencing court to hold a defendant accountable for all relevant conduct. United States v. Smallwood, 920 F.2d 1231, 1237 (5th Cir.1991). A co-conspirator is accountable for his own conduct and the foreseeable acts of his co-conspirators committed in furtherance of the conspiracy. U.S.S.G. § 1B1.3(a)(l)(B); United States v. Puma, 937 F.2d 151, 159 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1165, 117 L.Ed.2d 412 (1992).\nSince the Appellants committed the offenses and were sentenced, the Sentencing Commission has amended U.S.S.G. § 1B1.3 and its commentaries and application notes to clarify what is relevant conduct. Amendment 439 to the guidelines effective November 1, 1992, states “[t]his amendment clarifies and more fully illustrates the operation of this guideline.”\nThe revised guidelines are not applicable to the Appellants. However; if an amendment was intended only to clarify Section 1B1.3’s application and, therefore, implicitly was not intended to make any substantive changes to it or its commentary, we may consider the amended language of Application note 2 even though it was not in effect at the time of the commission of the offense. United States v. Evbuomwan, 992 F.2d 70, 74 n. 1 (5th Cir.1993); United States v. Nissen, 928 F.2d 690, 694-95 (5th Cir.1991).\nApplication note 2 makes clear that criminal liability and relevant conduct are two different concepts, regardless of whether the indictment includes a conspiracy allegation. A defendant is accountable for the conduct of others that was both: (1) in furtherance of the jointly undertaken criminal activity; and (2) reasonably foreseeable in connection with that criminal activity. The clarifying amendments provide a number of helpful illustrations. Illustration (c)(7) is particularly pertinent:\nDefendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. As long as Defendant S’s agreement and conduct is limited to the distribution of the 500 grams, Defendant S is accountable only for that 500 gram amount (under subsection (a)(1)(A)), rather than the much larger quantity imported by Defendant R.\nThe illustrations indicate that it was not necessarily the intent of the Sentencing Commission to hold persons who buy or sell drugs to a major distributor responsible for all the drugs bought or sold by that distributor. The district court did not have the benefit of these clarifications at the time of sentencing. We believe that those defendants who may be involved in less than the entire conspiracy should have their sentences reexamined in light of these guideline clarifications. Therefore, the sentences of Appellants Maseratti, Davis, Alvarado, Filoteo, Severo Garza, and Deborah Garza are vacated and their cases are remanded for resen-tencing in light of the clarification of Guideline IB 1.3.\n2. Minor or Minimal Participants. Davis, Maseratti, and Pieratt contend that they should have been given credit for either two or four level reductions as minor or minimal participants in the criminal activity. Guideline section 3B1.2 provides a two- to four-level reduction in the base offense level for those offenders found to be relatively less culpable than others involved in the same scheme or conspiracy. See United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). The guidelines define “minimal participant” as one who demonstrates a “lack of knowledge or understanding of the scope and structure of the enterprise.” U.S.S.G. § 3B1.2, comment, (n. 1). A “minor participant” is similarly defined as one who is “less culpable than most other participants, but whose role could not be described as minimal.” Id. (n. 3). Because most offenses are committed by participants of roughly equal culpability, our Court has noted that “it is intended that [the adjustment] will be used infrequently.” United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir.1989). We are unpersuaded by the Appellants’ suggestion that either classification applies to them.\nS. Acceptance of Responsibility. Davis and Pieratt challenge the court’s refusal to grant them a credit for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. The court found that Davis “has not exhibited an affirmative or timely acceptance of responsibility for his criminal conduct.” Davis claims that this ruling is clearly erroneous because he furnished a written statement of accountability. The probation officer in Pieratt’s ease recommended against the credit because Pieratt did not make a statement relative to his participation in the offense. Pieratt argues that this was unnecessary because those details were thoroughly discussed at trial.\nThe sentencing judge’s factual determinations on acceptance of responsibility are entitled to even greater deference than that accorded under a clearly erroneous standard. United States v. Kinder, 946 F.2d 362, 367 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1677, 118 L.Ed.2d 394 (1992). After a careful review of the record, we find Appellants’ arguments unconvincing.\nAs to the remaining issues raised by the Appellants, our detailed and painstaking review of the enormous record and briefs in this case convinces us that the district court committed no reversible error.\nFor the foregoing reasons, the judgments of conviction are AFFIRMED and the sentences of Maseratti, Davis, Alvarado, Filoteo, Severo Garza, Jr., and Deborah Garza are VACATED and their cases REMANDED for resentencing.\n. Although it is not crystal clear in the record that the veniremen had been dismissed, we see no reason for the trial judge to raise the issue otherwise. Additionally, once the venire was dismissed from the courtroom, the opportunity for them to be tainted was too great, and it was the responsibility of the Defendants, as the movers, to insure that the integrity of the jury security was preserved.\n. 904 F.2d 936, 943 (5th Cir.1990), cert. denied, 498 U.S. 1067, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991).\n. Hughes, 817 F.2d at 273.\n. The appellants contend that the facts in this case are so extreme that they fit the situation Justice O'Connor described in her concurring opinion in Smith, and that they only have to show implied bias. We disagree.\n. Distribution means \"to deliver ... a controlled substance.\" 21 U.S.C. § 802(11). The statute defines “deliver” as the \"transfer of a controlled substance, whether or not there exists an agency relationship.” 21 U.S.C. § 802(8).\n. Maseratti had previously placed his drug order over the phone to Garcia, thus sustaining his conviction for use of the telephone to facilitate drug trafficking.\n[END_CASE]", "role": "user" } ]
10,510,795	UNITED STATES of America, Plaintiff-Appellee, v. Lynn Kirstin Waller ROGERS, a/k/a Lynn Waller Rogers, Defendant-Appellant	United States v. Rogers	1993-08-30	No. 92-8478	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before KING and JOLLY, Circuit Judges, and PARKER, District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Lynn Kirstin Waller ROGERS, a/k/a Lynn Waller Rogers, Defendant-Appellant."], "opinions": [{"text": "PER CURIAM:\nDefendant-appellant Lynn Kirstin Waller Rogers (Rogers) pleaded guilty to possession with intent to distribute amphetamine/methamphetamine in violation 21 U.S.C. § 841(a)(1). On appeal she challenges her sentence only, alleging that the district court erred in finding that over 500 grams of amphetamine/methamphetamine were attributable to her. Based on our determination that the district court’s finding was not clearly erroneous, we affirm Rogers’ sentence.\nSTANDARD OF REVIEW\n“A district court’s findings about the quantity of drugs implicated by the crime are factual findings reviewed under the ‘clearly erroneous’ standard.” United States v. Rivera, 898 F.2d 442, 445 (5th Cir.1990). Under the ‘clearly erroneous’ standard, “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).\nFACTS\nThirteen people were indicted for alleged offenses related to the possession and distribution of amphetamine/methamphetamine as a result of an investigation by the Waco Police Department and the Drug Enforcement Administration from January 1988 through June 1991. Michael Royals was the head of the distribution scheme. He dealt with only four of the other indicted individuals directly, who in turn sold drugs to an ever widening and tangled system of drug dealers. Rogers was one of the four people in the tier below Royals, but dealt in less volume than others at that level. She was incarcerated on a state drug conviction from September 1987 to October 1989, and the government alleged that she began buying drugs from Royals in 1990.\nThe government used forty-four (44) different confidential informants (CIs) in the investigation, and over thirty search warrants were executed. The government relied on information received from seven of those CIs to establish the drug amount attributable to Rogers. Rogers alleges that the following information that came into evidence through the testimony of Waco Police Officer Darryl Moore is not reliable:\nDate Amount Rogers Possessed Source\n1988 or prior to Rogers’ incarceration lé pound of amphetamine Cl# 20\napprox. 1/11/89 pound of amphetamine Cl# 21\nFall 1990 ■¡á ounce daily for 3-4 Cl# 21 month — 45 ounces\n2/15/91 % ounce of amphetamine Cl# 12\n3/21/91 9.25 grams amphetamine Cl# 12\n5/22/91 1 ounce of amphetamine Cl# 17\nHowever, Rogers admitted possessing a maximum of one pound of amphetamine, which amount was corroborated by Royals who reported during his debriefing that he sold Rogers not more than a pound of amphetamine.\nDISTRICT COURT CONCLUSION\nAfter Rogers’ guilty plea, the U.S. Probation Office prepared her Presentence Report, in which the Probation Officer concluded that 2,196.82 grams of amphetamine were attributable to Rogers. The Probation Officer reached this conclusion by adding up the amounts reportedly witnessed by various confidential informants, 2.71 grams recovered pursuant to a search warrant, and approximately one pound (453.6 grams) alleged by co-defendant Michael Royals during his debriefing. Rogers objected to the computation of the drug amount on the grounds that much of the amphetamine had been double counted and that much of the information relied upon by the Government was unreliable. The district court subtracted the 453.6 grams reported by Royals, because the Government could not establish that the drugs that Royals claimed he sold to her were not the same drags that were reported by the CIs. The court found that 1700 grams were attributable to Rogers.\nCORROBORATION\nPursuant to § 1B1.1 of the Sentencing Guidelines, the first step in sentencing one convicted of violating 21 U.S.C. § 841(a)(1) is to determine the base offense level provided by § 2D1.1 of the Sentencing Guidelines. Several base offense levels are provided by U.S.S.G. § 2D1.1, depending on the amount of drugs attributable to the convicted person. The original base level offense calculated by the probation office was 28, based on the recommendation that 2.194 kilograms of drugs were attributable to Rogers. The district court’s finding that 1700 grams were attributable to Rogers reduced the base level offense to 26 (between 500 grams and two kilograms of amphetamine). Rogers’ contention is that the court should have found that no more than one pound (453.6 grams) of amphetamine was attributable to her, resulting in further reduction of the base level offense, and a corresponding decrease in the applicable guidelines.\nFor sentencing purposes, the district court may consider any relevant evidence “without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3. More specifically, out-of-court declarations by an unidentified informant may be considered where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means. U.S.S.G. § 6A1.3 (citing United States v. Fatico, 579 F.2d 707 (2d Cir.1978)). See also United States v. Young, 981 F.2d 180 (5th Cir.1993). Rogers does not challenge, and Moore’s testimony supports, the district court’s implicit finding that there was good cause for nondisclosure of the identities of the CIs in this ease.\nThe issue remaining for this court to determine is whether the information used to sentence Rogers was grounded in some indicia of reliability. The “some indicia of reliability” language has been interpreted by this Court to require that the facts used by the district court for sentencing purposes be reasonably reliable. United States v. Shacklett, 921 F.2d 580, 585 (5th Cir.1991).\nRogers established at the sentencing hearing that it was not possible for CIs # 20 and #21 to have seen her with drugs in her possession on the dates reported in 1988 and 1989 because she was incarcerated on those dates. In response, the government argues that, according to Moore’s testimony, Cl #20 specifically stated that he observed Rogers with the drugs before she went to prison and that the discrepancy in the dates of Cl #21’s report is not so large as to render the information unreliable, particularly when the informant, estimating the time frame years later, only approximated the date. Further, Rogers complains that the government offered no specific corroboration of the amounts reported by the CIs; all that was offered was Moore’s testimony regarding the general reliability of the CIs and other evidence of Rogers’ drug activity.\nIn United States v. Young, 981 F.2d 180 (5th Cir.1993) this court faced a similar situation where a defendant presented evidence that tended to rebut information provided by CIs whose identity was not disclosed. The government provided corroboration in the form of evidence obtained from their own investigation concerning the defendants’ involvement in drug dealing and the CIs’ past record of reliability, without specifically corroborating the drug amounts reported by the CIs. We noted in Young that the district court, although faced with a paucity of defendants’ rebuttal testimony, halved the amount of drugs reported by the CIs to “tak[e] into account uncertainty and the possibility of exaggeration.” Id. at 186.\nThis case presents a closer question than we faced in Young. The rebuttal testimony here clearly established that at least some portion of the Cl reports were wrong. However, the discrepancy established did not impact directly on the report of approximately forty-five (45) ounces that Cl #21 reported that Rogers sold to a codefendant in repeated small transactions in the Fall of 1990. In fact, Rogers’ own version of the facts corroborated that most of her involvement occurred during this period. Much like Young, the extensive government investigation in this case corroborated many of the other details of the drug distribution scheme, but did not establish the amount of drugs attributable to Rogers except through the challenged Cl reports. We find that on the record, viewed in its entirety, sufficient indi-cia of reliability accompanied the CIs’ reports that the district court was justified in relying on them to determine the quantity of drugs with which Rogers had been associated without corroboration of the specific amounts alleged. See also United States v. Windham, 991 F.2d 181 (Fifth Cir.1993).\nDUPLICATION OF DRUG AMOUNT\nRogers argues that the amount of drugs reported by the CIs duplicated the amount reported by Royals. The district court recognized that danger and subtracted the amount Royals reported from the total. Rogers suggests, without authority, since the government did not present evidence of any drug source other than Royals, the court should have believed Royals instead of the CIs because he is a known person who is subject to cross examination. Rogers also argues that the various CIs could have reported the possession of the same quantity of drugs more than once. These speculations do not support a holding that the lower court’s finding was clearly erroneous.\nRELEVANT CONDUCT\nFinally, Rogers argues thát the district court erred in considering the drug quantities reported by CIs # 20 and # 21 prior to 1988, because “in the unlikely event” they did see Rogers with drugs, such conduct would be outside the scope of relevant conduct for the offense of conviction. In effect, Rogers argues that the conduct had to occur, if it occurred at all, before 1988, and that pre-1988 drug sales were not part of the conspiracy alleged in the indictment. She also complains that the district court made no finding as to whether the conspiracy existed in 1987.\nWhen calculating quantities of drugs upon which to base a sentence, quantities not specified in the indictment, if part of the same scheme, course of conduct, or plan, may be used to determine the base offense level. Young, 981 F.2d at 185. The Presentence Report (PSR) concluded that the conduct in question constituted relevant conduct. While Rogers objected to the inclusion of the pre-1988 quantities, she offered no evidence that they were not part of the same course of conduct. The district court was therefore free to adopt the PSR without further inquiry. United States v. Rodriguez, 897 F.2d 1324, 1327-28 (5th Cir.1990) (Where defendant disputes facts stated in the PSR, but presents no rebuttal evidence, the district court has discretion to adopt the PSR’s facts without more specific inquiry or explanation, provided that those facts had an adequate evidentiary basis.)\nCONCLUSION\nWe cannot say that based on all of the evidence available for consideration that the district court’s determination that 1700 grams of amphetamine were attributable to Rogers was clearly erroneous.\nWe AFFIRM.", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Michael L. Scanes (Court-appointed), Ña-man, Howell, Smith & Lee, Waco, TX, for defendant-appellant.", "Joan Stearns, Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Lynn Kirstin Waller ROGERS, a/k/a Lynn Waller Rogers, Defendant-Appellant.\nNo. 92-8478.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 30, 1993.\nMichael L. Scanes (Court-appointed), Ña-man, Howell, Smith & Lee, Waco, TX, for defendant-appellant.\nJoan Stearns, Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.\nBefore KING and JOLLY, Circuit Judges, and PARKER, District Judge.\n. Chief Judge of the Eastern District of Texas, sitting by designation."}	KING	JOLLY	PARKER	1	1	1	0	0	0	1 F.3d 341	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Lynn Kirstin Waller ROGERS, a/k/a Lynn Waller Rogers, Defendant-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-30\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPER CURIAM:\nDefendant-appellant Lynn Kirstin Waller Rogers (Rogers) pleaded guilty to possession with intent to distribute amphetamine/methamphetamine in violation 21 U.S.C. § 841(a)(1). On appeal she challenges her sentence only, alleging that the district court erred in finding that over 500 grams of amphetamine/methamphetamine were attributable to her. Based on our determination that the district court’s finding was not clearly erroneous, we affirm Rogers’ sentence.\nSTANDARD OF REVIEW\n“A district court’s findings about the quantity of drugs implicated by the crime are factual findings reviewed under the ‘clearly erroneous’ standard.” United States v. Rivera, 898 F.2d 442, 445 (5th Cir.1990). Under the ‘clearly erroneous’ standard, “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).\nFACTS\nThirteen people were indicted for alleged offenses related to the possession and distribution of amphetamine/methamphetamine as a result of an investigation by the Waco Police Department and the Drug Enforcement Administration from January 1988 through June 1991. Michael Royals was the head of the distribution scheme. He dealt with only four of the other indicted individuals directly, who in turn sold drugs to an ever widening and tangled system of drug dealers. Rogers was one of the four people in the tier below Royals, but dealt in less volume than others at that level. She was incarcerated on a state drug conviction from September 1987 to October 1989, and the government alleged that she began buying drugs from Royals in 1990.\nThe government used forty-four (44) different confidential informants (CIs) in the investigation, and over thirty search warrants were executed. The government relied on information received from seven of those CIs to establish the drug amount attributable to Rogers. Rogers alleges that the following information that came into evidence through the testimony of Waco Police Officer Darryl Moore is not reliable:\nDate Amount Rogers Possessed Source\n1988 or prior to Rogers’ incarceration lé pound of amphetamine Cl# 20\napprox. 1/11/89 pound of amphetamine Cl# 21\nFall 1990 ■¡á ounce daily for 3-4 Cl# 21 month — 45 ounces\n2/15/91 % ounce of amphetamine Cl# 12\n3/21/91 9.25 grams amphetamine Cl# 12\n5/22/91 1 ounce of amphetamine Cl# 17\nHowever, Rogers admitted possessing a maximum of one pound of amphetamine, which amount was corroborated by Royals who reported during his debriefing that he sold Rogers not more than a pound of amphetamine.\nDISTRICT COURT CONCLUSION\nAfter Rogers’ guilty plea, the U.S. Probation Office prepared her Presentence Report, in which the Probation Officer concluded that 2,196.82 grams of amphetamine were attributable to Rogers. The Probation Officer reached this conclusion by adding up the amounts reportedly witnessed by various confidential informants, 2.71 grams recovered pursuant to a search warrant, and approximately one pound (453.6 grams) alleged by co-defendant Michael Royals during his debriefing. Rogers objected to the computation of the drug amount on the grounds that much of the amphetamine had been double counted and that much of the information relied upon by the Government was unreliable. The district court subtracted the 453.6 grams reported by Royals, because the Government could not establish that the drugs that Royals claimed he sold to her were not the same drags that were reported by the CIs. The court found that 1700 grams were attributable to Rogers.\nCORROBORATION\nPursuant to § 1B1.1 of the Sentencing Guidelines, the first step in sentencing one convicted of violating 21 U.S.C. § 841(a)(1) is to determine the base offense level provided by § 2D1.1 of the Sentencing Guidelines. Several base offense levels are provided by U.S.S.G. § 2D1.1, depending on the amount of drugs attributable to the convicted person. The original base level offense calculated by the probation office was 28, based on the recommendation that 2.194 kilograms of drugs were attributable to Rogers. The district court’s finding that 1700 grams were attributable to Rogers reduced the base level offense to 26 (between 500 grams and two kilograms of amphetamine). Rogers’ contention is that the court should have found that no more than one pound (453.6 grams) of amphetamine was attributable to her, resulting in further reduction of the base level offense, and a corresponding decrease in the applicable guidelines.\nFor sentencing purposes, the district court may consider any relevant evidence “without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3. More specifically, out-of-court declarations by an unidentified informant may be considered where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means. U.S.S.G. § 6A1.3 (citing United States v. Fatico, 579 F.2d 707 (2d Cir.1978)). See also United States v. Young, 981 F.2d 180 (5th Cir.1993). Rogers does not challenge, and Moore’s testimony supports, the district court’s implicit finding that there was good cause for nondisclosure of the identities of the CIs in this ease.\nThe issue remaining for this court to determine is whether the information used to sentence Rogers was grounded in some indicia of reliability. The “some indicia of reliability” language has been interpreted by this Court to require that the facts used by the district court for sentencing purposes be reasonably reliable. United States v. Shacklett, 921 F.2d 580, 585 (5th Cir.1991).\nRogers established at the sentencing hearing that it was not possible for CIs # 20 and #21 to have seen her with drugs in her possession on the dates reported in 1988 and 1989 because she was incarcerated on those dates. In response, the government argues that, according to Moore’s testimony, Cl #20 specifically stated that he observed Rogers with the drugs before she went to prison and that the discrepancy in the dates of Cl #21’s report is not so large as to render the information unreliable, particularly when the informant, estimating the time frame years later, only approximated the date. Further, Rogers complains that the government offered no specific corroboration of the amounts reported by the CIs; all that was offered was Moore’s testimony regarding the general reliability of the CIs and other evidence of Rogers’ drug activity.\nIn United States v. Young, 981 F.2d 180 (5th Cir.1993) this court faced a similar situation where a defendant presented evidence that tended to rebut information provided by CIs whose identity was not disclosed. The government provided corroboration in the form of evidence obtained from their own investigation concerning the defendants’ involvement in drug dealing and the CIs’ past record of reliability, without specifically corroborating the drug amounts reported by the CIs. We noted in Young that the district court, although faced with a paucity of defendants’ rebuttal testimony, halved the amount of drugs reported by the CIs to “tak[e] into account uncertainty and the possibility of exaggeration.” Id. at 186.\nThis case presents a closer question than we faced in Young. The rebuttal testimony here clearly established that at least some portion of the Cl reports were wrong. However, the discrepancy established did not impact directly on the report of approximately forty-five (45) ounces that Cl #21 reported that Rogers sold to a codefendant in repeated small transactions in the Fall of 1990. In fact, Rogers’ own version of the facts corroborated that most of her involvement occurred during this period. Much like Young, the extensive government investigation in this case corroborated many of the other details of the drug distribution scheme, but did not establish the amount of drugs attributable to Rogers except through the challenged Cl reports. We find that on the record, viewed in its entirety, sufficient indi-cia of reliability accompanied the CIs’ reports that the district court was justified in relying on them to determine the quantity of drugs with which Rogers had been associated without corroboration of the specific amounts alleged. See also United States v. Windham, 991 F.2d 181 (Fifth Cir.1993).\nDUPLICATION OF DRUG AMOUNT\nRogers argues that the amount of drugs reported by the CIs duplicated the amount reported by Royals. The district court recognized that danger and subtracted the amount Royals reported from the total. Rogers suggests, without authority, since the government did not present evidence of any drug source other than Royals, the court should have believed Royals instead of the CIs because he is a known person who is subject to cross examination. Rogers also argues that the various CIs could have reported the possession of the same quantity of drugs more than once. These speculations do not support a holding that the lower court’s finding was clearly erroneous.\nRELEVANT CONDUCT\nFinally, Rogers argues thát the district court erred in considering the drug quantities reported by CIs # 20 and # 21 prior to 1988, because “in the unlikely event” they did see Rogers with drugs, such conduct would be outside the scope of relevant conduct for the offense of conviction. In effect, Rogers argues that the conduct had to occur, if it occurred at all, before 1988, and that pre-1988 drug sales were not part of the conspiracy alleged in the indictment. She also complains that the district court made no finding as to whether the conspiracy existed in 1987.\nWhen calculating quantities of drugs upon which to base a sentence, quantities not specified in the indictment, if part of the same scheme, course of conduct, or plan, may be used to determine the base offense level. Young, 981 F.2d at 185. The Presentence Report (PSR) concluded that the conduct in question constituted relevant conduct. While Rogers objected to the inclusion of the pre-1988 quantities, she offered no evidence that they were not part of the same course of conduct. The district court was therefore free to adopt the PSR without further inquiry. United States v. Rodriguez, 897 F.2d 1324, 1327-28 (5th Cir.1990) (Where defendant disputes facts stated in the PSR, but presents no rebuttal evidence, the district court has discretion to adopt the PSR’s facts without more specific inquiry or explanation, provided that those facts had an adequate evidentiary basis.)\nCONCLUSION\nWe cannot say that based on all of the evidence available for consideration that the district court’s determination that 1700 grams of amphetamine were attributable to Rogers was clearly erroneous.\nWe AFFIRM.\n[END_CASE]", "role": "user" } ]
10,510,898	Clyde Ura CAIN, Sr., Plaintiff-Appellant, v. HEARST CORPORATION, d/b/a the Houston Chronicle Publishing Company, Defendant-Appellee	Cain v. Hearst Corp.	1993-08-30	No. 93-2459	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before GARWOOD, SMITH, and DeMOSS, Circuit Judges."], "parties": ["Clyde Ura CAIN, Sr., Plaintiff-Appellant, v. HEARST CORPORATION, d/b/a the Houston Chronicle Publishing Company, Defendant-Appellee."], "opinions": [{"text": "PER CURIAM:\nCERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT\nTO THE SUPREME COURT OF TEXAS, PURSUANT TO Tex. Const. ART. 5, § 3-c, and Tex.R.App.P. 114.\nTO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:\n1. Style of the Case.\nThe style of the case in which this certificate is made is Clyde Ura Cain, Sr., Plaintiff-Appellant v. Hearst Corporation, d/b/a the Houston Chronicle Publishing Company, Defendant-Appellee, No. 93-2459 in the United States Court of Appeals for the Fifth Circuit, on appeal from the United States District Court for the Southern District of Texas.\n2. Statement of the Case.\nThe plaintiff-appellant, Clyde Cain, is a prison inmate serving a life sentence for murder. He filed suit in Texas state court on January 6, 1993, against the defendant-appellee, Hearst Corporation, d/b/a the Houston Chronicle Publishing Company (“the Chronicle”), alleging that an article regarding his conviction, published in the Houston Chronicle on June 30,1991, invaded his privacy by placing him in a false light by stating that he had been associated with a crime organization known as the Dixie Mafia when in fact, according to Cain, he had no association with any such group. The Chronicle removed on the basis of diversity jurisdiction.\nThe Chronicle moved for dismissal under Fed.R.Civ.P. 12(b)(6), arguing that Cain’s alleged cause of action was identical to a libel complaint and thus barred by the one-year statute of limitations in Tex.Civ.Prac. & Rem. Code Ann. § 16.002 and that, moreover, Texas does not recognize the “false light” tort. Cain responded that he “seeks recovery under the recognized legal theory of false light invasion of privacy” subject to the two-year statute of limitations, presumably referring to Tex.Civ.PeaC. & Rem.Code Ann. § 16.003. The district court granted the motion, citing Hurlbut v. Gulf Life Ins. Co., 749 S.W.2d 762 (Tex.1987), and reasoning therefrom “that irrespective of what the plaintiff may call his suit, it is, nevertheless, a suit in libel.”\nThe district court entered final judgment on May 3,1993. Cain filed a notice of appeal on May 10, 1993.\nS. Questions Certified.\na. Does Texas recognize the tort of false light invasion of privacy?\nb. If Texas recognizes the tort of false light invasion of privacy, which statute of limitations governs actions brought pursuant thereto?\nWe disclaim any intention or desire that the Supreme Court of Texas confine its reply to the precise form or scope of the questions certified.\nJ. The Parties.\nThe parties are Clyde Ura Cain, Sr., plaintiff-appellant, and Hearst Corporation, d/b/a the Houston Chronicle Publishing Company, defendant-appellee.\n5. The Attorneys.\nCain appears pro se. His address is as follows:\n401418 Ellis I Unit\nTexas Department of Criminal Justice,\nInstitutional Division\nHuntsville, TX 77343\nThe Chronicle is represented by the following attorney:\nWilliam W. Ogden\nOgden, Gibson & White, L.L.P.\n1750 Pennzoil South Tower\n711 Louisiana\nHouston, TX 77002-3095\nQUESTIONS CERTIFIED.", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Clyde Ura Cain, Sr., pro se.", "William Wesley Ogden, Ogden, Gibson & White, Houston, TX, for defendant-appellee."], "corrections": "", "head_matter": "Clyde Ura CAIN, Sr., Plaintiff-Appellant, v. HEARST CORPORATION, d/b/a the Houston Chronicle Publishing Company, Defendant-Appellee.\nNo. 93-2459\nSummary Calendar.\nUnited States Court of Appeals, Fifth Circuit.\nAug. 30, 1993.\nClyde Ura Cain, Sr., pro se.\nWilliam Wesley Ogden, Ogden, Gibson & White, Houston, TX, for defendant-appellee.\nBefore GARWOOD, SMITH, and DeMOSS, Circuit Judges."}	GARWOOD	SMITH	DeMOSS	1	1	1	0	0	0	1 F.3d 345	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Clyde Ura CAIN, Sr., Plaintiff-Appellant, v. HEARST CORPORATION, d/b/a the Houston Chronicle Publishing Company, Defendant-Appellee\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-08-30\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPER CURIAM:\nCERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT\nTO THE SUPREME COURT OF TEXAS, PURSUANT TO Tex. Const. ART. 5, § 3-c, and Tex.R.App.P. 114.\nTO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:\n1. Style of the Case.\nThe style of the case in which this certificate is made is Clyde Ura Cain, Sr., Plaintiff-Appellant v. Hearst Corporation, d/b/a the Houston Chronicle Publishing Company, Defendant-Appellee, No. 93-2459 in the United States Court of Appeals for the Fifth Circuit, on appeal from the United States District Court for the Southern District of Texas.\n2. Statement of the Case.\nThe plaintiff-appellant, Clyde Cain, is a prison inmate serving a life sentence for murder. He filed suit in Texas state court on January 6, 1993, against the defendant-appellee, Hearst Corporation, d/b/a the Houston Chronicle Publishing Company (“the Chronicle”), alleging that an article regarding his conviction, published in the Houston Chronicle on June 30,1991, invaded his privacy by placing him in a false light by stating that he had been associated with a crime organization known as the Dixie Mafia when in fact, according to Cain, he had no association with any such group. The Chronicle removed on the basis of diversity jurisdiction.\nThe Chronicle moved for dismissal under Fed.R.Civ.P. 12(b)(6), arguing that Cain’s alleged cause of action was identical to a libel complaint and thus barred by the one-year statute of limitations in Tex.Civ.Prac. & Rem. Code Ann. § 16.002 and that, moreover, Texas does not recognize the “false light” tort. Cain responded that he “seeks recovery under the recognized legal theory of false light invasion of privacy” subject to the two-year statute of limitations, presumably referring to Tex.Civ.PeaC. & Rem.Code Ann. § 16.003. The district court granted the motion, citing Hurlbut v. Gulf Life Ins. Co., 749 S.W.2d 762 (Tex.1987), and reasoning therefrom “that irrespective of what the plaintiff may call his suit, it is, nevertheless, a suit in libel.”\nThe district court entered final judgment on May 3,1993. Cain filed a notice of appeal on May 10, 1993.\nS. Questions Certified.\na. Does Texas recognize the tort of false light invasion of privacy?\nb. If Texas recognizes the tort of false light invasion of privacy, which statute of limitations governs actions brought pursuant thereto?\nWe disclaim any intention or desire that the Supreme Court of Texas confine its reply to the precise form or scope of the questions certified.\nJ. The Parties.\nThe parties are Clyde Ura Cain, Sr., plaintiff-appellant, and Hearst Corporation, d/b/a the Houston Chronicle Publishing Company, defendant-appellee.\n5. The Attorneys.\nCain appears pro se. His address is as follows:\n401418 Ellis I Unit\nTexas Department of Criminal Justice,\nInstitutional Division\nHuntsville, TX 77343\nThe Chronicle is represented by the following attorney:\nWilliam W. Ogden\nOgden, Gibson & White, L.L.P.\n1750 Pennzoil South Tower\n711 Louisiana\nHouston, TX 77002-3095\nQUESTIONS CERTIFIED.\n[END_CASE]", "role": "user" } ]
10,510,938	Robert O. CUPIT and Donna Blair Cupit, Plaintiffs-Appellees, v. McCLANAHAN CONTRACTORS, INC., formerly, AWI, Inc., Defendants, AWI Drilling and Workover, Inc., Defendant-Appellant	Cupit v. McClanahan Contractors, Inc.	1993-09-10	No. 92-3563	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before JOHNSON, JOLLY and JONES, Circuit Judges."], "parties": ["Robert O. CUPIT and Donna Blair Cupit, Plaintiffs-Appellees, v. McCLANAHAN CONTRACTORS, INC., formerly, AWI, Inc., Defendants, AWI Drilling and Workover, Inc., Defendant-Appellant."], "opinions": [{"text": "EDITH H. JONES, Circuit Judge:\nMcClanahan Contractors, Inc. appeals a district court decision denying limitation of liability. The district court based its decision on its findings that Doyle Samples, the tool-pusher in charge of the rig, was a managing agent of the vessel and that, therefore, his knowledge was imputable to the corporation. We reverse.\nI.\nRobert Cupit was a derrickman aboard McClanahan (then AWI, Inc.) Rig No. 8, a movable drilling rig. On August 4, 1990, the drilling crew was conducting a “fishing expedition” to retrieve a pump-out disk from the hole. Cupit was assigned to bleed off the air pressure used to prevent mud from dropping into the hole. Cupit had performed this task many times previously by bleeding the pressure through the fill-up line, but this time the pressure was too high and the fill-up line blew, causing Cupit severe injuries.\nCupit sought and obtained a sizeable jury verdict to compensate his injuries, and McClanahan sought to limit its liability under 46 U.S.C. § 183(a). Mr. McClanahan, the company president, testified that the fill-up line should not have been used to bleed off pressure at 3000 psi. There was no evidence, however, that Mr. McClanahan knew or should have known that Cupit was using that particular method to bleed off pressure. Samples, on the other hand, testified that he was aware that the fill-up line had been used many times to bleed off pressure. Samples knew the safe and proper way to bleed off pressure and should have warned Cupit against using the fill-up line.\nII.\nOnce an injured seaman has established that his employer's negligence caused his injuries, a vessel owner seeking limitation of liability must prove that it lacked privity or knowledge of the negligence. See Brister v. AWI, Inc., 946 F.2d 350, 359 (5th Cir.1991); In re Ferrell Lines, Inc., 530 F.2d 7, 10 (5th Cir.1976).\n“Privity or knowledge,” sometimes described as “complicity in the fault,” Brister, 946 F.2d at 356, extends beyond actual knowledge to knowledge that the ship owner would have obtained by reasonable investigation. Id. at 358.\nFor the purposes of limitation, a corporation is charged with the privity or knowledge of its employees when they are sufficiently high on the corporate ladder. The Supreme Court in Coryell v. Phipps, 317 U.S. 406, 410, 63 S.Ct. 291, 293, 87 L.Ed. 363 (1943), stated that privity or knowledge is imputed to the corporation when the employee is “an executive officer, manager or superintendent whose scope of authority included supervision over the phase of the business out of which the loss or injury occurred.”\nIn Continental Oil Co. v. Bonanza, 706 F.2d 1365 (5th Cir.1983) (en banc), we rejected the assertion that the navigational negligence of a master who also occupies a managerial position in a corporation will automatically deprive the corporation of the right to limit its liability. 706 F.2d at 1376. The fact that a ship’s master has been given broad and unlimited agency powers over the operation and maintenance of the vessel is insufficient to impute the master’s mistake to the shipowner. Id. Rather, the dispositive question is whether the corporate employee is a “managing agent” with respect to the field of operations in which the negligence occurred. Id.\nThe district court found that Samples supervised all operations aboard Rig No. 8 and had the authority to control every operation thereon. We will overturn the district courts findings only if they are clearly erroneous. “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Transorient Navigators Co. v. M/S Southwind, 714 F.2d 1358, 1364 (5th Cir.1983). We are left with such a conviction in this case. While Samples, as toolpusher, had significant authority over the drilling job then in progress, his corporate position was insufficiently high and the scope of his authority was concomitantly inadequate to impute his knowledge to the corporation for the purpose of denying limitation of liability.\nIII.\nSamples admittedly had “authority over all phases of operations on Rig No. 8.” But the circumstances led the district court to overstate the scope of Samples’s authority. As long as the vessel was stationary and drilling, Samples, as toolpusher, had authority over the drilling job. But so did nine other tool-pushers on any shift if each of McClanahan’s nine other rigs was operating. Moreover, when that drilling job was over, Samples had no say about when and where the next drilling job would begin. For the duration of any particular drilling job, Samples’s role was to oversee the drilling on one rig on a shift basis. But his authority did not extend to the basic business decisions made by the drilling supervisors and the president of the company.\nBecause Samples’s role and the scope of his authority were relatively limited, the district court’s finding that Samples was a managing agent is clearly erroneous. See Continental Oil Co., supra. His negligence could not be attributed to the shipowner to deny limitation of liability. McClanahan was entitled to limit its liability under 46 U.S.C. § 183(a). Therefore, we REVERSE and RENDER judgment accordingly.", "type": "majority", "author": "EDITH H. JONES, Circuit Judge:"}], "attorneys": ["Wood Brown, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for defendant-appellant.", "Allen H. Danielson, Jr. and Randy Jay Ungar, Ungar & Wheelahan, New Orleans, LA, for plaintiffs-appellees."], "corrections": "", "head_matter": "Robert O. CUPIT and Donna Blair Cupit, Plaintiffs-Appellees, v. McCLANAHAN CONTRACTORS, INC., formerly, AWI, Inc., Defendants, AWI Drilling and Workover, Inc., Defendant-Appellant.\nNo. 92-3563.\nUnited States Court of Appeals, Fifth Circuit.\nSept. 10, 1993.\nRehearing Denied Oct. 5, 1993.\nWood Brown, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for defendant-appellant.\nAllen H. Danielson, Jr. and Randy Jay Ungar, Ungar & Wheelahan, New Orleans, LA, for plaintiffs-appellees.\nBefore JOHNSON, JOLLY and JONES, Circuit Judges."}	JOHNSON	JOLLY	JONES	1	1	1	0	0	0	1 F.3d 346	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Robert O. CUPIT and Donna Blair Cupit, Plaintiffs-Appellees, v. McCLANAHAN CONTRACTORS, INC., formerly, AWI, Inc., Defendants, AWI Drilling and Workover, Inc., Defendant-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-09-10\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nEDITH H. JONES, Circuit Judge:\nMcClanahan Contractors, Inc. appeals a district court decision denying limitation of liability. The district court based its decision on its findings that Doyle Samples, the tool-pusher in charge of the rig, was a managing agent of the vessel and that, therefore, his knowledge was imputable to the corporation. We reverse.\nI.\nRobert Cupit was a derrickman aboard McClanahan (then AWI, Inc.) Rig No. 8, a movable drilling rig. On August 4, 1990, the drilling crew was conducting a “fishing expedition” to retrieve a pump-out disk from the hole. Cupit was assigned to bleed off the air pressure used to prevent mud from dropping into the hole. Cupit had performed this task many times previously by bleeding the pressure through the fill-up line, but this time the pressure was too high and the fill-up line blew, causing Cupit severe injuries.\nCupit sought and obtained a sizeable jury verdict to compensate his injuries, and McClanahan sought to limit its liability under 46 U.S.C. § 183(a). Mr. McClanahan, the company president, testified that the fill-up line should not have been used to bleed off pressure at 3000 psi. There was no evidence, however, that Mr. McClanahan knew or should have known that Cupit was using that particular method to bleed off pressure. Samples, on the other hand, testified that he was aware that the fill-up line had been used many times to bleed off pressure. Samples knew the safe and proper way to bleed off pressure and should have warned Cupit against using the fill-up line.\nII.\nOnce an injured seaman has established that his employer's negligence caused his injuries, a vessel owner seeking limitation of liability must prove that it lacked privity or knowledge of the negligence. See Brister v. AWI, Inc., 946 F.2d 350, 359 (5th Cir.1991); In re Ferrell Lines, Inc., 530 F.2d 7, 10 (5th Cir.1976).\n“Privity or knowledge,” sometimes described as “complicity in the fault,” Brister, 946 F.2d at 356, extends beyond actual knowledge to knowledge that the ship owner would have obtained by reasonable investigation. Id. at 358.\nFor the purposes of limitation, a corporation is charged with the privity or knowledge of its employees when they are sufficiently high on the corporate ladder. The Supreme Court in Coryell v. Phipps, 317 U.S. 406, 410, 63 S.Ct. 291, 293, 87 L.Ed. 363 (1943), stated that privity or knowledge is imputed to the corporation when the employee is “an executive officer, manager or superintendent whose scope of authority included supervision over the phase of the business out of which the loss or injury occurred.”\nIn Continental Oil Co. v. Bonanza, 706 F.2d 1365 (5th Cir.1983) (en banc), we rejected the assertion that the navigational negligence of a master who also occupies a managerial position in a corporation will automatically deprive the corporation of the right to limit its liability. 706 F.2d at 1376. The fact that a ship’s master has been given broad and unlimited agency powers over the operation and maintenance of the vessel is insufficient to impute the master’s mistake to the shipowner. Id. Rather, the dispositive question is whether the corporate employee is a “managing agent” with respect to the field of operations in which the negligence occurred. Id.\nThe district court found that Samples supervised all operations aboard Rig No. 8 and had the authority to control every operation thereon. We will overturn the district courts findings only if they are clearly erroneous. “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Transorient Navigators Co. v. M/S Southwind, 714 F.2d 1358, 1364 (5th Cir.1983). We are left with such a conviction in this case. While Samples, as toolpusher, had significant authority over the drilling job then in progress, his corporate position was insufficiently high and the scope of his authority was concomitantly inadequate to impute his knowledge to the corporation for the purpose of denying limitation of liability.\nIII.\nSamples admittedly had “authority over all phases of operations on Rig No. 8.” But the circumstances led the district court to overstate the scope of Samples’s authority. As long as the vessel was stationary and drilling, Samples, as toolpusher, had authority over the drilling job. But so did nine other tool-pushers on any shift if each of McClanahan’s nine other rigs was operating. Moreover, when that drilling job was over, Samples had no say about when and where the next drilling job would begin. For the duration of any particular drilling job, Samples’s role was to oversee the drilling on one rig on a shift basis. But his authority did not extend to the basic business decisions made by the drilling supervisors and the president of the company.\nBecause Samples’s role and the scope of his authority were relatively limited, the district court’s finding that Samples was a managing agent is clearly erroneous. See Continental Oil Co., supra. His negligence could not be attributed to the shipowner to deny limitation of liability. McClanahan was entitled to limit its liability under 46 U.S.C. § 183(a). Therefore, we REVERSE and RENDER judgment accordingly.\n[END_CASE]", "role": "user" } ]
10,511,004	Laura Blueford SKIPPER, Individually and as Temporary Administratrix of the Estate of Royletta L. Blueford, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant	Skipper v. United States	1993-09-10	No. 92-8231	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before REAVLEY, KING, and GARWOOD, Circuit Judges."], "parties": ["Laura Blueford SKIPPER, Individually and as Temporary Administratrix of the Estate of Royletta L. Blueford, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant."], "opinions": [{"text": "KING, Circuit Judge:\nRoyletta Blueford was shot and killed at the Non-Commissioned Officers Club at Biggs Army Airfield, Fort Bliss, Texas on July 8, 1984, by Charles Haywood, a former boyfriend. Blueford’s mother, Laura Blue-ford Skipper, brought this action against the United States, alleging that the officer’s club negligently served alcoholic beverages to Haywood when he was intoxicated and that this negligence was a proximate cause of Blueford’s death. The district court entered a judgment in favor of Skipper, and the United States appeals from that judgment. Finding that Haywood’s actions were not foreseeable by the club, we reverse and render judgment in favor of the United States.\nI\nA\nBlueford was introduced to Haywood in December 1983. They dated for several months and established an intimate relationship; in fact, Haywood proposed marriage. Blueford rejected Haywood’s proposal of marriage, however, and sought to end their relationship. In June and July of 1984, Haywood began to harass Blueford. First, he telephoned Blueford and wrote her notes; he then followed her, monitoring her movements, and attempted to break into Blue-ford’s apartment; ultimately, Haywood threatened physical violence, which included a threat to kill Blueford if she did not sleep with him. This pattern of harassment escalated to physical violence when, on July 4, 1984, Haywood forced his way into Blueford’s apartment and raped her.\nAlthough she did not report the rape, Blueford filed a formal complaint with the El Paso Police Department on July 6, 1984, stating that she was willing to prosecute Haywood for threatening her. Blueford specifically reported that Haywood threatened to “blow her away” if she did not sleep with him. According to Patricia Aguilar, a close friend of Blueford, Blueford was terrified of Haywood during the first week of July. In fact, she considered moving away from El Paso, Texas but, instead, accepted an offer to stay at Aguilar’s home. Even when she was staying at Aguilar’s home, Haywood continued to harass Blueford. However, according to Aguilar, Aguilar’s large German shepherd dog “encouraged” Haywood to leave.\nAguilar is the wife of a retired, non-commissioned officer, a status which entitles her to access the Non-Commissioned Officers Club (NCO Club) at Biggs Army Airfield, Fort Bliss, Texas. The NCO Club is located near the Sergeant Majors Academy, “Sergeant Major” being the highest rank attainable by a non-commissioned officer in the military. On Sunday, July 8, 1984, Blueford and Aguilar decided to go to the NCO Club; because the club is not open to the general public and is situated on a federal enclave surrounded by soldiers, they felt that Haywood would not attempt an altercation there. Moreover, prior to Blueford’s murder, the NCO Club enjoyed a reputation as being a relatively quiet club. In fact, at trial, Sergeant Major Dillard testified that he had worked as the night manager at the NCO Club during the eighteen months prior to July 8, 1984 and that, during that time, he witnessed only one incident — a shoving match — involving any violence, and it did not involve a weapon. According to Dillard, that incident was broken up quickly and without the need for calling the military police.\nHaywood was a cab driver. On the evening of Sunday, July 8, at approximately 10 p.m., Haywood delivered a fare to the NCO Club and recognized Aguilar’s car in the parking area. Although the NCO Club is not open to the general public and Haywood was not the guest of any club member, Haywood entered the NCO Club; no one asked him for identification. Haywood carried a gun, purchased the day before, which he concealed beneath his shirt. Upon entering the NCO Club, Haywood went to the bar and had a few drinks. He then moved to a table. On several occasions, Haywood got up from his table, walked directly past — and within a foot of — Aguilar’s and Blueford’s table, left the NCO Club, re-entered, and then passed Aguilar and Blueford again. According to Aguilar, Haywood did this a least three or four times during a two-hour period. At least once during the evening, Haywood approached Blueford to speak with her, but she ignored him and Aguilar told him to leave their table. Aguilar then approached Haywood at his table and told him to forget about his relationship with Blueford and to leave the NCO Club. Haywood refused.\nHaywood consumed drinks while sitting at the bar and while sitting at his table, and he was served by at least three separate individuals — two bartenders and a waitress. He paid for his drinks in cash, thereby avoiding any tabulation of his overall alcohol consumption at the club. Haywood had been drinking alcohol prior to his arrival at the NCO Club and, while at the club, he consumed between seven and ten drinks containing alcohol. Aguilar testified that she watched Haywood closely during the course of the evening because she learned the night before that he had raped Blueford just a few days earlier. According to Aguilar, Haywood showed no effects of drinking alcohol; specifically, she stated that he did not slur his speech, raise his voice, swagger when walking, or demonstrate any other indication that he was intoxicated. In fact, during the course of the evening, Haywood walked around the club, exited and re-entered, and had several conversations with an acquaintance, Amanda Mitchell. Aguilar also testified that there was no indication that Haywood was carrying a revolver. Aguilar’s testimony was corroborated by that of Dillard, who accidentally bumped into Haywood in a crowded corridor just a few minutes before the shooting. According to Dillard, Haywood did not appear to be intoxicated and he seemed very civil. At no time did Aguilar or Blueford inform the NCO Club personnel that Haywood posed- a threat or that they desired that he leave the club. In fact, Aguilar testified that Haywood acted like a “perfect gentleman” throughout the evening. Haywood also testified that he had been a chronic but functional alcoholic since the age of nineteen; specifically, he testified that, despite the fact that he averaged a “fifth” of hard alcohol per day, he was able to function in the Army and as a taxi cab driver.\nBlueford danced with several patrons during the course of the evening and, shortly before midnight, she got up to dance with another. While she was dancing, Haywood approached her, pulled out his revolver, grabbed her, twisted her towards him, and fired two shots into her chest at point-blank range. Haywood testified that he also shot at but missed Blueford’s dancing partner. Haywood then picked Blueford up and, while doing this, pointed the gun at his own head and occasionally brandished the weapon; Haywood later testified that it was his intention to commit suicide or shoot.any person who tried to stop him. Aguilar attempted to convince Haywood to release Blueford, but she backed away when Haywood told her that she “was next.” After dragging Blue-ford out of the NCO Club, Haywood shot her two more times. He also shot himself once in the abdomen in an effort to commit suicide.\nBlueford was rushed to the hospital; where she died early on the morning of July 9. Haywood, whose blood alcohol level was determined to be .15, did not suffer permanent injury to any internal organs from his self-inflicted gunshot wound. Prior to his discharge from the hospital, Haywood attempted suicide on two more occasions;- one of these attempts involved an overdose of prescribed medications which left him in a coma for several days.\nHaywood was found guilty of killing Blue-ford in the first degree pursuant to 18 U.S.C. §■ lili, and was sentenced to a thirty-year term of imprisonment for the crime. And it was revealed during these criminal proceedings that Haywood has a lengthy record of violent behavior, which is documented through his arrest history.\nB\nSkipper, individually and in her representative capacity as temporary administratrix of her daughter’s estate, brought this action against the United States after her administrative claim against the United States Army was denied on March 1, 1988. The United States answered and filed a motion for summary judgment, which the district court granted in part and denied in part. Specifically, the court granted the United States summary judgment on Skipper’s claims that the United States was negligent in allowing Haywood to enter the NCO Club and in allowing him to enter the club with a firearm. The court denied the United States’s motion for summary judgment on Skipper’s two other theories of recovery: (1) that the employees of the NCO Club were negligent in serving alcohol to Haywood when he was intoxicated; and (2) that the NCO Club personnel were negligent in failing to promptly respond after Haywood first shot Blueford.\nFollowing a bench trial, the district court entered a judgment in favor of Skipper in March 1992, awarding her damages in her capacity as administratrix in the amount of $153,772.10. The court also awarded Skipper $110,000.00 in damages in her individual capacity. In its memorandum containing findings of fact and conclusions of law, the court held that the NCO Club personnel should have known that Haywood was intoxicated based upon the number of drinks he consumed during the time he was in the club. The court also found that Haywood probably would not have shot Blueford had he not been severely intoxicated. The United States now appeals from the district court’s judgment in favor of Skipper.\nII\nSkipper has brought this claim against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2674. Under the FTCA, the United States is liable in damages only if a private person would be liable for the same allegedly negligent act or omission under the laws of the state witbin which the act or omission occurred. 28 U.S.C. § 2674 (“The United States shall be liable ... in the same manner and to'the same extent as a private individual under like circumstances....”); see Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Accordingly, Skipper’s claim is governed by Texas’ law on negligence.\nUnder Texas law, negligence consists of four essential elements: (1) a legal duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) actual injury to the plaintiff; and (4) a showing that the breach was a proximate cause of the injury. See Urbach v. United States, 869 F.2d 829, 831 (5th Cir.1989) (applying Texas law). Causation is a question of fact and, in a bench trial, it is reviewed under the clearly erroneous standard. Id. “There are two elements of proximate cause under Texas law: foreseeability and cause in fact.” Id.; see also Bykowicz v. Pulte Home Corp., 950 F.2d 1046, 1053-54 (5th Cir.) (applying Texas law), cert. denied, — U.S. -, 113 S.Ct. 73, 121 L.Ed.2d 38 (1992). In applying Texas law, this court has held that “[foreseeability requires that the injury complained of be of such a general character as might reasonably have been anticipated from the defendant’s conduct.” Bykowicz, 950 F.2d at 1054 (emphasis added). Similarly, the Supreme Court of Texas has held that:\nAll that is required is that the injury be of such a general character as might reasonably have been anticipated and that the injured party be so situated with relation to the wrongful act that injury might reasonably have been foreseen.\nBrown v. Edwards Transfer Co., 764 S.W.2d 220, 224 (Tex.1989) (emphasis added). The Supreme Court of Texas has also stated that “[foreseeability does not require [that] the actor anticipate the particular accident, but only that he reasonably anticipate the general character of the injury.” El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987) (emphasis added). Although a tortfeasor’s negligence is not superseded when criminal conduct is a foreseeable result of that negligence, “[generally, a person’s criminal conduct is a superseding cause extinguishing liability of a negligent actor.” Id. at 313-14; Gutierrez v. Scripps-Howard, 823 S.W.2d 696, 700 (Tex.App.—El Paso 1992, no writ).\nIn the case before us, the district court relied heavily upon the Texas Supreme Court’s opinion in El Chico, 732 S.W.2d at 313. As explained in Riojas v. Phillips Properties, Inc., 828 S.W.2d 18, 23 (Tex.App.—Corpus Christi 1991, no writ), before El Chico, Texas followed the common-law rule that a purveyor of alcoholic beverages was not liable for damages sustained by third persons resulting from a patron’s intoxication. The El Chico court abolished this rule of non-liability, noting that a civil cause of action exists in forty-one of fifty American jurisdictions — including the District of Columbia and excluding Texas — with a substantial majority basing the cause of action upon the common-law principles of negligence, negligence per se, or both. Riojas, 828 S.W.2d at 23. Moreover, the El Chico court addressed the “dramshop” statute enacted by the Texas legislature the week before, Tex. Alco.Bev.Code Ann. § 2.02, which created a civil cause of action against an alcoholic beverage licensee when “at the time ... [of service] ... it was apparent to the provider that the individual being ... served ... was obviously intoxicated to the extent he presented a clear danger to himself and others.” The court stated that “[t]he legislature appears to have created a much more onerous burden of proof for an injured plaintiff than we have in this opinion. This act, however, does not by its terms govern a cause of action arising or accruing before its effective date.” 732 S.W.2d at 314.\nThe El Chico court concluded that an alcoholic beverage licensee could be liable to a person injured by an intoxicated driver for selling alcohol to that intoxicated driver. The rationale underlying the decision is that, “[e]learly, a patron’s criminal act is a foreseeable consequence in light of our universal use of automobiles and accidents involving drunk drivers.” 732 S.W.2d at 314. Applying El Chico to the case at issue, the district court determined that “Lt]he number of drinks served to Haywood, and the speed with which he consumed them, put the Defendant’s bartenders on notice that he was intoxicated.” The court then speculated that, “[h]ad Haywood not become severely intoxicated, and had his judgment not been greatly impaired, it is highly improbable that he would have shot Ms. Blueford simply because he saw her dancing with a stranger.” And the court concluded that “[t]he defendant’s agents in the instant case could reasonably have foreseen that an injury or harm of this general nature was likely to occur, although it might have been vehicular homicide rather than a death by shooting.”\nIn challenging the district court’s findings, the government first questions the district court’s retroactive application of El Chico. Although Haywood killed Blueford several years before El Chico was decided, El Chico has been applied retroactively under similar circumstances. See Riojas, 828 S.W.2d at 22-23. We find that the retroactive application of El Chico to the case before us is in accordance with “[t]he general rule ... that a decision of the supreme court is retrospective in operation.” Id. at 22, citing Burns v. Thomas, 786 S.W.2d 266, 267 n. 1 (Tex.1990); Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex.1983).\nWe do not agree, however, with the district court’s determination that El Chico supports a finding that Haywood’s first-degree murder of Blueford was foreseeable. Even if we assume arguendo that the alcohol the NCO Club served to Haywood was a cause-in-fact of Blueford’s murder, we conclude that the premeditated murder of Blue-ford by Haywood at the NCO Club does not constitute an injury (such as the involuntary manslaughter at issue in El Chico) “of such a general character as might reasonably have been anticipated [by the NCO Club] from [Haywood’s] conduct.” Bykowicz, 950 F.2d at 1054. Rather, we conclude that Haywood’s criminal conduct constitutes an unforseeable, superseding cause which extinguished any liability on the part of the NCO Club for Blueford’s death. See Gutierrez, 823 S.W.2d at 700 (“Generally, a person’s criminal conduct is a superseding cause ex-languishing liability of a negligent actor.”); El Chico, 732 S.W.2d at 313. We conclude, therefore, that the district court was clearly erroneous in finding that the NCO Club’s personnel could have foreseen that Haywood would murder Blueford as a result of the alcohol he consumed at the club. Accordingly, we reverse the district court’s judgment in favor of Skipper and render judgment in favor of the United States.\nIll\nFor the foregoing reasons, we REVERSE the district court’s judgment in favor of Skipper and RENDER judgment in favor of the United States.\n. Haywood later admitted that he threatened to kill Blueford.\n. The parties dispute the number of drinks consumed by Haywood at the NCO Club, Skipper asserting that several of Haywood's drinks were doubles. According to the record, these \"doubles” were, in accordance with the NCO Club's policy, two separate drinks served at once rather than a single, double-strength drink.\n. Haywood testified that he would have left the NCO Club if he had been asked by the club’s personnel to do so. -\n.Section 1111 provides that\n[m]urder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing ..., or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.\n. As explained in El Chico,\nIntoxication refers to a condition when, due to the consumption of alcoholic beverages, a person suffers impaired mental or physical facilities and a resulting diminution of the ability to think and act with ordinary care. Thus the duty to discontinue saving alcohol arises once, through the observation of a patron's demeanor, conduct or appearance, a licensee knows or should know the patron is intoxicated.\n732 S.W.2d at 313 (emphasis added).\n. Section 448 of the Restatement provides:\nThe act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.\nRestatement (Second) of Torts (1965 & Supp. 1992-93). Section 442 of the Restatement identifies the following considerations as being of importance in determining whether an intervening force constitutes a superseding cause of harm:\n(a)the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;\n(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;\n(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;\n(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;\n(c) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; [and]\n(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.\nId. at § 442.", "type": "majority", "author": "KING, Circuit Judge:"}], "attorneys": ["John F. Paniszczyn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for defendant-appellant.", "John B. Luscombe, Jr., El Paso, TX, for plaintiff-appellee."], "corrections": "", "head_matter": "Laura Blueford SKIPPER, Individually and as Temporary Administratrix of the Estate of Royletta L. Blueford, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.\nNo. 92-8231.\nUnited States Court of Appeals, Fifth Circuit.\nSept. 10, 1993.\nRehearing Denied Oct. 18, 1993.\nJohn F. Paniszczyn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for defendant-appellant.\nJohn B. Luscombe, Jr., El Paso, TX, for plaintiff-appellee.\nBefore REAVLEY, KING, and GARWOOD, Circuit Judges."}	REAVLEY	KING	GARWOOD	1	1	1	0	0	0	1 F.3d 349	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Laura Blueford SKIPPER, Individually and as Temporary Administratrix of the Estate of Royletta L. Blueford, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-09-10\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nKING, Circuit Judge:\nRoyletta Blueford was shot and killed at the Non-Commissioned Officers Club at Biggs Army Airfield, Fort Bliss, Texas on July 8, 1984, by Charles Haywood, a former boyfriend. Blueford’s mother, Laura Blue-ford Skipper, brought this action against the United States, alleging that the officer’s club negligently served alcoholic beverages to Haywood when he was intoxicated and that this negligence was a proximate cause of Blueford’s death. The district court entered a judgment in favor of Skipper, and the United States appeals from that judgment. Finding that Haywood’s actions were not foreseeable by the club, we reverse and render judgment in favor of the United States.\nI\nA\nBlueford was introduced to Haywood in December 1983. They dated for several months and established an intimate relationship; in fact, Haywood proposed marriage. Blueford rejected Haywood’s proposal of marriage, however, and sought to end their relationship. In June and July of 1984, Haywood began to harass Blueford. First, he telephoned Blueford and wrote her notes; he then followed her, monitoring her movements, and attempted to break into Blue-ford’s apartment; ultimately, Haywood threatened physical violence, which included a threat to kill Blueford if she did not sleep with him. This pattern of harassment escalated to physical violence when, on July 4, 1984, Haywood forced his way into Blueford’s apartment and raped her.\nAlthough she did not report the rape, Blueford filed a formal complaint with the El Paso Police Department on July 6, 1984, stating that she was willing to prosecute Haywood for threatening her. Blueford specifically reported that Haywood threatened to “blow her away” if she did not sleep with him. According to Patricia Aguilar, a close friend of Blueford, Blueford was terrified of Haywood during the first week of July. In fact, she considered moving away from El Paso, Texas but, instead, accepted an offer to stay at Aguilar’s home. Even when she was staying at Aguilar’s home, Haywood continued to harass Blueford. However, according to Aguilar, Aguilar’s large German shepherd dog “encouraged” Haywood to leave.\nAguilar is the wife of a retired, non-commissioned officer, a status which entitles her to access the Non-Commissioned Officers Club (NCO Club) at Biggs Army Airfield, Fort Bliss, Texas. The NCO Club is located near the Sergeant Majors Academy, “Sergeant Major” being the highest rank attainable by a non-commissioned officer in the military. On Sunday, July 8, 1984, Blueford and Aguilar decided to go to the NCO Club; because the club is not open to the general public and is situated on a federal enclave surrounded by soldiers, they felt that Haywood would not attempt an altercation there. Moreover, prior to Blueford’s murder, the NCO Club enjoyed a reputation as being a relatively quiet club. In fact, at trial, Sergeant Major Dillard testified that he had worked as the night manager at the NCO Club during the eighteen months prior to July 8, 1984 and that, during that time, he witnessed only one incident — a shoving match — involving any violence, and it did not involve a weapon. According to Dillard, that incident was broken up quickly and without the need for calling the military police.\nHaywood was a cab driver. On the evening of Sunday, July 8, at approximately 10 p.m., Haywood delivered a fare to the NCO Club and recognized Aguilar’s car in the parking area. Although the NCO Club is not open to the general public and Haywood was not the guest of any club member, Haywood entered the NCO Club; no one asked him for identification. Haywood carried a gun, purchased the day before, which he concealed beneath his shirt. Upon entering the NCO Club, Haywood went to the bar and had a few drinks. He then moved to a table. On several occasions, Haywood got up from his table, walked directly past — and within a foot of — Aguilar’s and Blueford’s table, left the NCO Club, re-entered, and then passed Aguilar and Blueford again. According to Aguilar, Haywood did this a least three or four times during a two-hour period. At least once during the evening, Haywood approached Blueford to speak with her, but she ignored him and Aguilar told him to leave their table. Aguilar then approached Haywood at his table and told him to forget about his relationship with Blueford and to leave the NCO Club. Haywood refused.\nHaywood consumed drinks while sitting at the bar and while sitting at his table, and he was served by at least three separate individuals — two bartenders and a waitress. He paid for his drinks in cash, thereby avoiding any tabulation of his overall alcohol consumption at the club. Haywood had been drinking alcohol prior to his arrival at the NCO Club and, while at the club, he consumed between seven and ten drinks containing alcohol. Aguilar testified that she watched Haywood closely during the course of the evening because she learned the night before that he had raped Blueford just a few days earlier. According to Aguilar, Haywood showed no effects of drinking alcohol; specifically, she stated that he did not slur his speech, raise his voice, swagger when walking, or demonstrate any other indication that he was intoxicated. In fact, during the course of the evening, Haywood walked around the club, exited and re-entered, and had several conversations with an acquaintance, Amanda Mitchell. Aguilar also testified that there was no indication that Haywood was carrying a revolver. Aguilar’s testimony was corroborated by that of Dillard, who accidentally bumped into Haywood in a crowded corridor just a few minutes before the shooting. According to Dillard, Haywood did not appear to be intoxicated and he seemed very civil. At no time did Aguilar or Blueford inform the NCO Club personnel that Haywood posed- a threat or that they desired that he leave the club. In fact, Aguilar testified that Haywood acted like a “perfect gentleman” throughout the evening. Haywood also testified that he had been a chronic but functional alcoholic since the age of nineteen; specifically, he testified that, despite the fact that he averaged a “fifth” of hard alcohol per day, he was able to function in the Army and as a taxi cab driver.\nBlueford danced with several patrons during the course of the evening and, shortly before midnight, she got up to dance with another. While she was dancing, Haywood approached her, pulled out his revolver, grabbed her, twisted her towards him, and fired two shots into her chest at point-blank range. Haywood testified that he also shot at but missed Blueford’s dancing partner. Haywood then picked Blueford up and, while doing this, pointed the gun at his own head and occasionally brandished the weapon; Haywood later testified that it was his intention to commit suicide or shoot.any person who tried to stop him. Aguilar attempted to convince Haywood to release Blueford, but she backed away when Haywood told her that she “was next.” After dragging Blue-ford out of the NCO Club, Haywood shot her two more times. He also shot himself once in the abdomen in an effort to commit suicide.\nBlueford was rushed to the hospital; where she died early on the morning of July 9. Haywood, whose blood alcohol level was determined to be .15, did not suffer permanent injury to any internal organs from his self-inflicted gunshot wound. Prior to his discharge from the hospital, Haywood attempted suicide on two more occasions;- one of these attempts involved an overdose of prescribed medications which left him in a coma for several days.\nHaywood was found guilty of killing Blue-ford in the first degree pursuant to 18 U.S.C. §■ lili, and was sentenced to a thirty-year term of imprisonment for the crime. And it was revealed during these criminal proceedings that Haywood has a lengthy record of violent behavior, which is documented through his arrest history.\nB\nSkipper, individually and in her representative capacity as temporary administratrix of her daughter’s estate, brought this action against the United States after her administrative claim against the United States Army was denied on March 1, 1988. The United States answered and filed a motion for summary judgment, which the district court granted in part and denied in part. Specifically, the court granted the United States summary judgment on Skipper’s claims that the United States was negligent in allowing Haywood to enter the NCO Club and in allowing him to enter the club with a firearm. The court denied the United States’s motion for summary judgment on Skipper’s two other theories of recovery: (1) that the employees of the NCO Club were negligent in serving alcohol to Haywood when he was intoxicated; and (2) that the NCO Club personnel were negligent in failing to promptly respond after Haywood first shot Blueford.\nFollowing a bench trial, the district court entered a judgment in favor of Skipper in March 1992, awarding her damages in her capacity as administratrix in the amount of $153,772.10. The court also awarded Skipper $110,000.00 in damages in her individual capacity. In its memorandum containing findings of fact and conclusions of law, the court held that the NCO Club personnel should have known that Haywood was intoxicated based upon the number of drinks he consumed during the time he was in the club. The court also found that Haywood probably would not have shot Blueford had he not been severely intoxicated. The United States now appeals from the district court’s judgment in favor of Skipper.\nII\nSkipper has brought this claim against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2674. Under the FTCA, the United States is liable in damages only if a private person would be liable for the same allegedly negligent act or omission under the laws of the state witbin which the act or omission occurred. 28 U.S.C. § 2674 (“The United States shall be liable ... in the same manner and to'the same extent as a private individual under like circumstances....”); see Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Accordingly, Skipper’s claim is governed by Texas’ law on negligence.\nUnder Texas law, negligence consists of four essential elements: (1) a legal duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) actual injury to the plaintiff; and (4) a showing that the breach was a proximate cause of the injury. See Urbach v. United States, 869 F.2d 829, 831 (5th Cir.1989) (applying Texas law). Causation is a question of fact and, in a bench trial, it is reviewed under the clearly erroneous standard. Id. “There are two elements of proximate cause under Texas law: foreseeability and cause in fact.” Id.; see also Bykowicz v. Pulte Home Corp., 950 F.2d 1046, 1053-54 (5th Cir.) (applying Texas law), cert. denied, — U.S. -, 113 S.Ct. 73, 121 L.Ed.2d 38 (1992). In applying Texas law, this court has held that “[foreseeability requires that the injury complained of be of such a general character as might reasonably have been anticipated from the defendant’s conduct.” Bykowicz, 950 F.2d at 1054 (emphasis added). Similarly, the Supreme Court of Texas has held that:\nAll that is required is that the injury be of such a general character as might reasonably have been anticipated and that the injured party be so situated with relation to the wrongful act that injury might reasonably have been foreseen.\nBrown v. Edwards Transfer Co., 764 S.W.2d 220, 224 (Tex.1989) (emphasis added). The Supreme Court of Texas has also stated that “[foreseeability does not require [that] the actor anticipate the particular accident, but only that he reasonably anticipate the general character of the injury.” El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987) (emphasis added). Although a tortfeasor’s negligence is not superseded when criminal conduct is a foreseeable result of that negligence, “[generally, a person’s criminal conduct is a superseding cause extinguishing liability of a negligent actor.” Id. at 313-14; Gutierrez v. Scripps-Howard, 823 S.W.2d 696, 700 (Tex.App.—El Paso 1992, no writ).\nIn the case before us, the district court relied heavily upon the Texas Supreme Court’s opinion in El Chico, 732 S.W.2d at 313. As explained in Riojas v. Phillips Properties, Inc., 828 S.W.2d 18, 23 (Tex.App.—Corpus Christi 1991, no writ), before El Chico, Texas followed the common-law rule that a purveyor of alcoholic beverages was not liable for damages sustained by third persons resulting from a patron’s intoxication. The El Chico court abolished this rule of non-liability, noting that a civil cause of action exists in forty-one of fifty American jurisdictions — including the District of Columbia and excluding Texas — with a substantial majority basing the cause of action upon the common-law principles of negligence, negligence per se, or both. Riojas, 828 S.W.2d at 23. Moreover, the El Chico court addressed the “dramshop” statute enacted by the Texas legislature the week before, Tex. Alco.Bev.Code Ann. § 2.02, which created a civil cause of action against an alcoholic beverage licensee when “at the time ... [of service] ... it was apparent to the provider that the individual being ... served ... was obviously intoxicated to the extent he presented a clear danger to himself and others.” The court stated that “[t]he legislature appears to have created a much more onerous burden of proof for an injured plaintiff than we have in this opinion. This act, however, does not by its terms govern a cause of action arising or accruing before its effective date.” 732 S.W.2d at 314.\nThe El Chico court concluded that an alcoholic beverage licensee could be liable to a person injured by an intoxicated driver for selling alcohol to that intoxicated driver. The rationale underlying the decision is that, “[e]learly, a patron’s criminal act is a foreseeable consequence in light of our universal use of automobiles and accidents involving drunk drivers.” 732 S.W.2d at 314. Applying El Chico to the case at issue, the district court determined that “Lt]he number of drinks served to Haywood, and the speed with which he consumed them, put the Defendant’s bartenders on notice that he was intoxicated.” The court then speculated that, “[h]ad Haywood not become severely intoxicated, and had his judgment not been greatly impaired, it is highly improbable that he would have shot Ms. Blueford simply because he saw her dancing with a stranger.” And the court concluded that “[t]he defendant’s agents in the instant case could reasonably have foreseen that an injury or harm of this general nature was likely to occur, although it might have been vehicular homicide rather than a death by shooting.”\nIn challenging the district court’s findings, the government first questions the district court’s retroactive application of El Chico. Although Haywood killed Blueford several years before El Chico was decided, El Chico has been applied retroactively under similar circumstances. See Riojas, 828 S.W.2d at 22-23. We find that the retroactive application of El Chico to the case before us is in accordance with “[t]he general rule ... that a decision of the supreme court is retrospective in operation.” Id. at 22, citing Burns v. Thomas, 786 S.W.2d 266, 267 n. 1 (Tex.1990); Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex.1983).\nWe do not agree, however, with the district court’s determination that El Chico supports a finding that Haywood’s first-degree murder of Blueford was foreseeable. Even if we assume arguendo that the alcohol the NCO Club served to Haywood was a cause-in-fact of Blueford’s murder, we conclude that the premeditated murder of Blue-ford by Haywood at the NCO Club does not constitute an injury (such as the involuntary manslaughter at issue in El Chico) “of such a general character as might reasonably have been anticipated [by the NCO Club] from [Haywood’s] conduct.” Bykowicz, 950 F.2d at 1054. Rather, we conclude that Haywood’s criminal conduct constitutes an unforseeable, superseding cause which extinguished any liability on the part of the NCO Club for Blueford’s death. See Gutierrez, 823 S.W.2d at 700 (“Generally, a person’s criminal conduct is a superseding cause ex-languishing liability of a negligent actor.”); El Chico, 732 S.W.2d at 313. We conclude, therefore, that the district court was clearly erroneous in finding that the NCO Club’s personnel could have foreseen that Haywood would murder Blueford as a result of the alcohol he consumed at the club. Accordingly, we reverse the district court’s judgment in favor of Skipper and render judgment in favor of the United States.\nIll\nFor the foregoing reasons, we REVERSE the district court’s judgment in favor of Skipper and RENDER judgment in favor of the United States.\n. Haywood later admitted that he threatened to kill Blueford.\n. The parties dispute the number of drinks consumed by Haywood at the NCO Club, Skipper asserting that several of Haywood's drinks were doubles. According to the record, these \"doubles” were, in accordance with the NCO Club's policy, two separate drinks served at once rather than a single, double-strength drink.\n. Haywood testified that he would have left the NCO Club if he had been asked by the club’s personnel to do so. -\n.Section 1111 provides that\n[m]urder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing ..., or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.\n. As explained in El Chico,\nIntoxication refers to a condition when, due to the consumption of alcoholic beverages, a person suffers impaired mental or physical facilities and a resulting diminution of the ability to think and act with ordinary care. Thus the duty to discontinue saving alcohol arises once, through the observation of a patron's demeanor, conduct or appearance, a licensee knows or should know the patron is intoxicated.\n732 S.W.2d at 313 (emphasis added).\n. Section 448 of the Restatement provides:\nThe act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.\nRestatement (Second) of Torts (1965 & Supp. 1992-93). Section 442 of the Restatement identifies the following considerations as being of importance in determining whether an intervening force constitutes a superseding cause of harm:\n(a)the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;\n(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;\n(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;\n(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;\n(c) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; [and]\n(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.\nId. at § 442.\n[END_CASE]", "role": "user" } ]
10,511,038	UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio BANDA, Defendant-Appellant	United States v. Banda	1993-09-10	No. 92-7618	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before JOHNSON, JOLLY, and JONES, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio BANDA, Defendant-Appellant."], "opinions": [{"text": "EDITH H. JONES, Circuit Judge:\nMarco Antonio Banda, an alien, pleaded guilty to possession with intent to distribute 497 bottles of dimentáne containing 99 grams of codeine in violation of 21 U.S.C. §§ 841(a) and 841(b)(3). Banda did not appeal his conviction and sentence. Subsequently, the Immigration and Naturalization Service brought deportation proceedings against Banda based on the conviction. To forestall his deportation, Banda sought relief under 28 U.S.C. § 2255 and a writ of audita querela pursuant to the All Writs Act, 28 U.S.C. § 1651(a). The thrust of Banda’s complaint is that he was denied the effective assistance of counsel because his attorney in the criminal proceeding did not tell Banda that he might be subject to deportation if he pleaded guilty to the charge. He asserts that his plea was involuntary for this reason. The district court denied relief. We hold that an attorney’s failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel.\nThe facts of this case are simple and undisputed. Banda’s attorney in the underlying criminal proceedings did not inform Banda that he might be deported if he pleaded guilty to the charge. Banda claims now that if he had known of the possibility of deportation he would not have pleaded guilty. Ban-da has a wife and ijhildren in the United States, all of whom are American citizens, and all of whom will likely choose to remain behind if he is deported.\nIn United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985), we nailed the door shut on any due process claim based on counsel’s failure to warn the criminal defendant of possible deportation. This court noted that defendants have no due process right to be informed of the collateral consequences of criminal proceedings. That principle applies even to harsh collateral consequences, such as loss of the right to vote, to travel abroad, or to drive a car. See id. at 228 (citing cases).\nGavilan left open the question whether counsel’s failure to inform a client of the possibility of deportation might offend the Sixth Amendment’s guarantee of effective assistance of counsel. It was not necessary to reach that issue because Gavilan himself was unable to show that his counsel’s conduct prejudiced him in any way. 761 F.2d at 228-29. This court noted, however, that it did not “condone” trial counsel’s “error” in failing to tell his client about the possibility of deportation. Id. at 229.\nTo establish ineffective assistance of counsel violating the Sixth Amendment, the defendant must show that his counsel’s performance was seriously deficient and that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Only this dual showing would entitle Banda to relief under § 2255.\nThe courts that have addressed the question of counsel’s failure to warn of possible deportation have uniformly held that deportation is a collateral consequence of the criminal process and hence the failure to advise does not amount to ineffective assistance of counsel. See, for example, Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir.1992) (citing cases from the 2nd, 4th, 7th, and 11th circuits), and United States v. Del Rosario, 902 F.2d 55, 58-59 (D.C.Cir.1990). We are not aware of any court that has held to the contrary. Indeed, this conclusion squares with the Supreme Court’s observation that the accused must be “fully aware of the direct consequences” of a guilty plea. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (emphasis added). We find this position persuasive and adopt it as our own.\nDeportation is concededly a harsh collateral consequence. However, loss of the rights to vote, to travel, and to do a myriad other things a common citizen may do are also harsh consequences. Failure by counsel to advise a client of these or any other collateral eventualities would not constitute a Sixth Amendment violation just as failure by the court to inform of such collateral consequences does not violate Fed.R.Crim.Proe. 11. Defense counsel has done all he must under the Constitution when he advises his client of the direct consequences of a guilty plea. This is not to say that he should not advise the client on possible deportation — he should. But our implicit disapproval of counsel’s failure to advise of deportation consequences in Gavilan, 761 F.2d at 229, was hortatory, not a holding on the scope of the Sixth Amendment. Banda has failed to satisfy the deficient performance standard under Strickland, and he therefore cannot obtain relief for ineffective assistance of counsel.\nFailing a successful challenge to his guilty plea under § 2255, Banda also asks for a writ of audita querela under the All Writs Act. This is a slender reed upon which to lean. The writ of audita querela permits a defendant to obtain relief against a judgment because of some legal defense arising after the judgment. It is an open question whether the obsolescent writ survives as a post-conviction remedy. In any case, the defense against the judgment must be based in law, not in equity. United States v. Reyes, 945 F.2d 862 (5th Cir.1991). There is no defect in the judgment below based in law. Moreover, the writ is not available where, as here, the defendant may seek redress under § 2255. United States v. Ayala, 894 F.2d 425, 427 (D.C.Cir.1990).\nThe decision of the district court is AFFIRMED.", "type": "majority", "author": "EDITH H. JONES, Circuit Judge:"}], "attorneys": ["Lisa Brodyaga, Thelma 0. Garcia, Harlin-gen, TX, for defendant-appellant.", "James L. Turner and Paula Offenhauser, Asst. U.S. Attys., Gaynelle G. Jones, U.S. Atty., Houston, TX, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio BANDA, Defendant-Appellant.\nNo. 92-7618.\nUnited States Court of Appeals, Fifth Circuit.\nSept. 10, 1993.\nLisa Brodyaga, Thelma 0. Garcia, Harlin-gen, TX, for defendant-appellant.\nJames L. Turner and Paula Offenhauser, Asst. U.S. Attys., Gaynelle G. Jones, U.S. Atty., Houston, TX, for plaintiff-appellee.\nBefore JOHNSON, JOLLY, and JONES, Circuit Judges."}	JOHNSON	JOLLY	JONES	1	1	1	0	0	0	1 F.3d 354	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio BANDA, Defendant-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-09-10\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nEDITH H. JONES, Circuit Judge:\nMarco Antonio Banda, an alien, pleaded guilty to possession with intent to distribute 497 bottles of dimentáne containing 99 grams of codeine in violation of 21 U.S.C. §§ 841(a) and 841(b)(3). Banda did not appeal his conviction and sentence. Subsequently, the Immigration and Naturalization Service brought deportation proceedings against Banda based on the conviction. To forestall his deportation, Banda sought relief under 28 U.S.C. § 2255 and a writ of audita querela pursuant to the All Writs Act, 28 U.S.C. § 1651(a). The thrust of Banda’s complaint is that he was denied the effective assistance of counsel because his attorney in the criminal proceeding did not tell Banda that he might be subject to deportation if he pleaded guilty to the charge. He asserts that his plea was involuntary for this reason. The district court denied relief. We hold that an attorney’s failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel.\nThe facts of this case are simple and undisputed. Banda’s attorney in the underlying criminal proceedings did not inform Banda that he might be deported if he pleaded guilty to the charge. Banda claims now that if he had known of the possibility of deportation he would not have pleaded guilty. Ban-da has a wife and ijhildren in the United States, all of whom are American citizens, and all of whom will likely choose to remain behind if he is deported.\nIn United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985), we nailed the door shut on any due process claim based on counsel’s failure to warn the criminal defendant of possible deportation. This court noted that defendants have no due process right to be informed of the collateral consequences of criminal proceedings. That principle applies even to harsh collateral consequences, such as loss of the right to vote, to travel abroad, or to drive a car. See id. at 228 (citing cases).\nGavilan left open the question whether counsel’s failure to inform a client of the possibility of deportation might offend the Sixth Amendment’s guarantee of effective assistance of counsel. It was not necessary to reach that issue because Gavilan himself was unable to show that his counsel’s conduct prejudiced him in any way. 761 F.2d at 228-29. This court noted, however, that it did not “condone” trial counsel’s “error” in failing to tell his client about the possibility of deportation. Id. at 229.\nTo establish ineffective assistance of counsel violating the Sixth Amendment, the defendant must show that his counsel’s performance was seriously deficient and that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Only this dual showing would entitle Banda to relief under § 2255.\nThe courts that have addressed the question of counsel’s failure to warn of possible deportation have uniformly held that deportation is a collateral consequence of the criminal process and hence the failure to advise does not amount to ineffective assistance of counsel. See, for example, Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir.1992) (citing cases from the 2nd, 4th, 7th, and 11th circuits), and United States v. Del Rosario, 902 F.2d 55, 58-59 (D.C.Cir.1990). We are not aware of any court that has held to the contrary. Indeed, this conclusion squares with the Supreme Court’s observation that the accused must be “fully aware of the direct consequences” of a guilty plea. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (emphasis added). We find this position persuasive and adopt it as our own.\nDeportation is concededly a harsh collateral consequence. However, loss of the rights to vote, to travel, and to do a myriad other things a common citizen may do are also harsh consequences. Failure by counsel to advise a client of these or any other collateral eventualities would not constitute a Sixth Amendment violation just as failure by the court to inform of such collateral consequences does not violate Fed.R.Crim.Proe. 11. Defense counsel has done all he must under the Constitution when he advises his client of the direct consequences of a guilty plea. This is not to say that he should not advise the client on possible deportation — he should. But our implicit disapproval of counsel’s failure to advise of deportation consequences in Gavilan, 761 F.2d at 229, was hortatory, not a holding on the scope of the Sixth Amendment. Banda has failed to satisfy the deficient performance standard under Strickland, and he therefore cannot obtain relief for ineffective assistance of counsel.\nFailing a successful challenge to his guilty plea under § 2255, Banda also asks for a writ of audita querela under the All Writs Act. This is a slender reed upon which to lean. The writ of audita querela permits a defendant to obtain relief against a judgment because of some legal defense arising after the judgment. It is an open question whether the obsolescent writ survives as a post-conviction remedy. In any case, the defense against the judgment must be based in law, not in equity. United States v. Reyes, 945 F.2d 862 (5th Cir.1991). There is no defect in the judgment below based in law. Moreover, the writ is not available where, as here, the defendant may seek redress under § 2255. United States v. Ayala, 894 F.2d 425, 427 (D.C.Cir.1990).\nThe decision of the district court is AFFIRMED.\n[END_CASE]", "role": "user" } ]
10,511,096	Neva SPELLMAN, Plaintiff-Appellant, v. Donna E. SHALALA, M.D., Secretary of Health and Human Services, Defendant-Appellee	Spellman v. Shalala	1993-09-13	No. 91-7390	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges."], "parties": ["Neva SPELLMAN, Plaintiff-Appellant, v. Donna E. SHALALA, M.D., Secretary of Health and Human Services, Defendant-Appellee."], "opinions": [{"text": "EMILIO M. GARZA, Circuit Judge:\nNeva Spellman appeals the district court’s order granting summary judgment for the Secretary of Health and Human Services (“Secretary”). Spellman argues that the Secretary erred in determining the onset date of her disability and failed to give proper weight to her treating physician’s opinion that she was incapable of performing sedentary work. Because the Secretary failed to determine properly the onset date of Spell-man’s disability, we affirm the district court’s judgment in part and reverse and remand in part.\nI\nSpellman is a sixty-nine year old woman with a high school education. She worked as an assistant manager at a credit union for twenty six years, where she supervised thirteen employees, occasionally travelled, and was on the telephone six hours a day. Between 1982 and 1985, Spellman suffered from chronic pulmonary disease, gastroesophageal reflux, and several other physical ailments.\nThe medical evidence also shows that Spellman complained to her doctors — who were treating her physical maladies — that she did not sleep well, suffered from chronic fatigue, and was depressed, anxious, and nervous. While Spellman was hospitalized for acute tracheal bronchitis in September 1982, her physician reported that she was depressed, and he treated her with Elavil, an antidepressant drug, during her hospital stay. When Spellman was hospitalized for bronchitis in April 1983, her treating physician, Dr. Milton V. Davis, had Dr. Murray Pizette examine her to determine the cause of some of her physical ailments. Spellman told Dr. Pizette that she had become more depressed and anxious. Concluding that Spellman suffered from mixed anxiety depression, Dr. Pizette prescribed Sinequan, an antidepressant and antianxiety drug. A couple-of months later, the dosage of Sinequan was increased from 25 mg twice a day to 75 mg twice a day. The record also indicates that Spellman was taking Adapin, an antianx-iety and antidepressant drug, in December 1983. In addition, there is evidence that Spellman was taking Xanax and Ativan, which were drugs for treating anxiety, including anxiety related to depression. In April 1984, Dr. Davis submitted a report to Spellman’s disability insurer, stating that she was “incapable of minimal (sedentary) work” due to her respiratory problems.\nIn 1986, three mental health experts examined Spellman; each concluded that Spell-man suffered from a histrionic personality disorder with resulting functional restrictions, particularly an inability to cope with work-related stress and to behave in an emotionally stable manner. Dr. Mattar also reported that Spellman was able to function quite well with her personality disorder for decades, but that her pulmonary problems caused her to be depressed over time. In 1988, Spellman was again examined by three mental health experts, who found that she suffered from histrionic personality disorder accompanied by depressive symptoms. Dr. Goodwin also stated that Spellman had been unable to function in a work setting for the past five to six years, and he opined that her mental condition was deteriorating.\nOn October 24, 1983, Spellman first filed for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (1988), alleging disability from September 8, 1982 — the date she stopped working, due to lung probléms. After her application was denied initially and on reconsideration, Spellman requested a hearing. A preliminary hearing was held before an Administrative Law Judge (“ALJ”), who found that Spellman was not disabled because her physical impairments were not severe. After the Appeals Council denied Spellman’s request for review, she filed an action seeking judicial review in federal district court. The district court remanded the action for further proceedings consistent with certain new mental impairment regulations promulgated by the Secretary. After obtaining the mental status reports from Drs. Scott, Vassallo, and Mat-tar, and holding a supplemental hearing, the ALJ determined that Spellman was not disabled due to her physical and mental impairments.\nAfter the Appeals Council adopted the ALJ’s recommended decision, the district court reopened Spellman’s action and found that the determination that Spellman’s mental disorder did not prevent her from performing her past relevant work was not supported by substantial evidence. The district court therefore remanded the case to the Secretary, who ordered another supplemental hearing. Dr. Price testified at the hearing as a medical advisor. Dr. Price stated that Spellman’s depression appeared to decrease from 1986 through 1988, while she became more hysterical and histrionic during that same time period. Dr. Price recommended that Spellman avoid job situations requiring stressful social interaction, including her former occupation as assistant manager of a credit union. A vocational expert also testified that Spellman’s past work was very stressful and that a person who had difficulty handling-stress would be unable to perform Spellman’s past work.\nSubsequently, the ALJ found that Spell-man was not disabled due to her mental impairment, but the Appeals Council refused to adopt the ALJ’s findings and conclusions with regard to Spellman’s alleged disability. The Appeals Council found that Spellman had chronic obstructive pulmonary disease, gastroesophageal reflux, and leg cramps.. The Appeals Council also found that Spell-man had a mental impairment characterized by mood hysteria, a negative affect, depression, and an inability to cope with work-related stress. The Appeals Council determined that Spellman’s physical impairments were severe as of September 8, 1982, but that she did not have a severe mental impairment until October 1, 1985. The Appeals Council found that prior to October 1, 1985, Spellman’s impairments limited her to sedentary work which did not expose her to environmental or industrial pollutants. The Appeals Council concluded that Spellman was able to perform her past relevant work prior to October 1, 1985, because it was sedentary, and was performed in a clean environment. The Appeals Council found that the mental demands of Spellman’s job exceeded her residual functional capacity as of October 1, 1985, because her mental impairment became severe after that date. Thus, the Appeals Council concluded that Spellman was disabled beginning October 1, 1985. The district court reopened Spellman’s action, and a magistrate judge found that the Appeals Council’s decision was based on substantial evidence. Adopting the magistrate judge’s findings, the district court granted summary judgment for the Secretary. Spellman appeals.\nII\nOn review, this Court determines whether substantial evidence exists in the record as a whole to support the ALJ’s factual findings and whether the proper legal standards were applied. Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir.1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). If substantial evidence supports the Secretary’s findings, they are conclusive and must be affirmed. 42 U.S.C. § 405(g) (1988); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.1990). Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427; Selders, 914 F.2d at 617. It is more than a mere scintilla, and less than a preponderance. Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.1990). “This Court may not reweigh the evidence or try the issues de novo. Conflicts in evidence are for the Secretary and not the courts to resolve.” Selders, 914 F.2d at 617 (citation omitted).\nWe review the district court’s grant of a summary judgment motion de novo. Davis v. Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir.1991). Summary judgment is appropriate if the record discloses “that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 106 S.Ct. at 2553-54. While we must “review the facts drawing all inferences most favorable to the party opposing the motion,” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986), that party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).\nA\nSpellman argues that the Appeals Council failed to comply with Social Security Ruling 83-20 (“SSR 83 — 20”), because its determination of the onset date of her disability was arbitrary, and therefore not based on an informed judgment. Spellman also claims that the Appeals Council failed to comply with SSR 83-20 by failing to consult a medical advisor in determining the onset day of her disability.\nSpellman alleges a disability onset date of September 8, 1982, which was the date she stopped working. The Appeals Council, however, determined that the onset date was October 1, 1985. In determining the onset date of Spellman’s disability, the Appeals Council found that the first evidence of a significant mental impairment was in April 1986, when Spellman had her first consultar tive mental status evaluation. The Appeals Council also found that no medical evidence indicated that Spellman’s mental impairment was severe before April 1986. The Appeals Council apparently so found because none of the medical reports before April 1986 stated that Spellman’s ability to function was restricted by her mental impairment. Nevertheless, the Appeals Council concluded that it was “reasonable to assume that [Spellman’s] mental impairment was severe as of October 1, 1985, approximately six months prior to the April 29, 1986, psychological examination,” and that consequently, Spellman was disabled as of October 1, 1985, because “the mental demands of the work exceeded [her] residual functional capacity.” Record Excerpts for Spellman tab 5, at 11-12.\nSSR 83-20 prescribes the policy and procedure by which the Secretary should determine the onset date of a disability. See SSR 83-20 (1983). SSR 83-20 stresses that “[i]n many claims, the onset date of [a disability] is critical; it may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits.” Id. As a result, “it is essential that the onset date be correctly established and supported by the evidence.” Id. “Factors relevant to the determination of disability onset include the individual’s allegation, the work history, and the medical evidence.” Id.; see also Ivy v. Sullivan, 898 F.2d 1045, 1048 (5th Cir. 1990). These three factors are often evaluated together. SSR 83-20. The starting point of determining the onset date is the claimant’s allegation as to when the disability began, id.; Ivy, 898 F.2d at 1048, and the date the disability caused the claimant to stop work is often very significant. SSR 83-20. Nevertheless, the medical evidence is the primary element in the determination of onset of disability. Id. “The claimant’s stated onset date is used as the established onset date when it is consistent with available evidence.” Ivy, 898 F.2d at 1048. SSR 83-20 recognizes that with slowly progressive impairments, including mental impairments, “it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling.” SSR 83-20. Accordingly,\n[i]n such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. Particularly in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided, on medical grounds alone) before onset can be established.\nPrecise Evidence Not Available — Need for Inferences\nIn some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information indicating that additional medical evidence is available, such evidence should be secured before inferences are made.\nIf reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional medical evidence is not available, it may be necessary to explore other sources of documentation.\nId. (emphasis added).\nWhile there are no cases in this Circuit that discuss or apply the above-quoted provision of SSR 83-20, both the Ninth and Sixth Circuits have applied that provision. In Blankenship v. Bowen, 874 F.2d 1116 (6th Cir.1989), the claimant filed for disability insurance benefits, alleging disability due to physical and mental impairments since 1979. Id. at 1117. Three psychiatrists found that the claimant suffered from a mental impairment before 1985, and in November 1985 another psychiatrist, Dr. Lury, found that the claimant suffered from a psychiatric disorder that left him 100% disabled. Id. at 1118-20. Dr. Lury also opined that the claimant’s mental deterioration was of a progressive nature. Id. at 1120. The ALJ concluded that the claimant suffered from both a physical impairment and a progressive mental disorder since 1979, but was not disabled until November 1985. Id. The ALJ found that prior to November 1985, the claimant’s mental disability was not functionally limiting and that the claimant’s physical impairment limited the claimant to low stress work. Id. The ALJ determined that the claimant’s mental disability was of such severity in November 1985 that it restricted the claimant’s functional capacity. Id. The ALJ therefore found that the claimant was disabled beginning in November 1985. Id. After the district court affirmed the ALJ’s decision, the Sixth Circuit found that the claimant’s mental impairments were of a slowly progressive nature, and that as a result, the onset date of the disability was not clear from the medical evidence. See id. at 1122. Consequently, the court reversed the district court’s judgment and remanded the case to the Secretary for a redetermination of the onset date, instructing the Secretary to obtain additional medical evidence regarding the progression of the claimant’s mental impairment and to consult a medical advisor pursuant to SSR 83-20. See id. at 1124; see also id. (Nelson, J., concurring) (“SSR 83-20, as I read it, makes it clear that in a case such as this the ALJ is not to determine the onset date without having called on the services of a medical advisor.”).\nIn Morgan v. Sullivan, 945 F.2d 1079 (9th Cir.1991), the claimant filed for disability insurance benefits, alleging disability since 1977 due to physical and mental impairments. Id. at 1081. The ALJ found that the claimant had no medically determinable mental impairment before 1979, and that he was not disabled because he could perform his past relevant work. Id. On appeal, the Ninth Circuit stated that while the first unambiguous evidence of a mental impairment was in 1980, there was evidence that the claimant may have suffered from a disabling mental impairment prior to 1979, because there were medical reports stating that the claimant suffered from a great deal of stress. See id. at 1081-82. In addition, one report in early 1980 stated that the claimant’s condition had become progressively worse in the past year. Id. at 1082. Citing Blankenship, the Ninth Circuit stated that SSR 83-20 “suggests that when the evidence regarding date of onset of mental impairment is ambiguous, as it is here, the ALJ should determine the date based on an informed inference.” Id. at 1082. The Ninth Circuit found that such an inference was not possible without the assistance of a medical advisor, and that because the ALJ failed to consult a medical advisor, the ALJ’s onset date determination was not based on an informed inference. See id. at 1083. The Ninth Circuit reversed the district court’s judgment and remanded, instructing the ALJ to redetermine the onset date of the mental impairment with the assistance of a medical advisor, pursuant to SSR 83-20. See id.\nBecause a correct determination of the onset date of a disability is critical, see SSR 83-20, we agree with the Sixth and Ninth Circuits’ interpretation of SSR 83-20. We therefore hold that in cases involving slowly progressive impairments, when the medical evidence regarding the onset date of a disability is ambiguous and the Secretary must infer the onset date, SSR 83-20 requires that that inference be based on an informed judgment. The Secretary cannot make such an inference without the assistance of a medical advisor. See DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir.1991) (“In the event that the medical evidence is not definite concerning the onset date [of a disability] and medical inferences need to be made, SSR 83-20 requires the [ALJ] to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination”).\nThe medical evidence with regard to the onset date of Spellman’s disability is ambiguous, because it is unclear when Spellman’s mental impairment first restricted her functional capacity. Although Spellman was diagnosed as depressed and prescribed medication for anxiety and depression before October 1, 1985, both parties agree that Spell-man never had a consultative mental status examination by a mental health professional prior to Dr. Scott’s examination in April 1986. See Brief for Spellman at 31; Brief for Secretary at 13. In addition, the Appeals Council failed to explain why October 1,1985 was the proper onset date, and nothing in the record suggests that October 1, 1985 was significant with regard to Spellman’s disability. That the Appeals Council arbitrarily selected an onset date six months prior to the first mental evaluation suggests that the medical evidence was ambiguous with regard to the onset date. The evidence in the record indicates that Spellman may have suffered from a disabling mental impairment before October 1, 1985. Spellman quit work on September 8, 1982. There is evidence that Spellman had been treated by physicians for depression and anxiety before April 1986. Furthermore, there is evidence that Spellman suffered from chronic fatigue during the relevant period, which may have indicated a mental impairment. Dr. Goodwin also stated in 1988 that Spellman’s mental impairment was of a slowly progressive nature, and that Spellman had been unable to work for the past five or six years.\nThe Appeals Council’s finding that Spellman’s mental impairment was not severe before October 1, 1985 apparently was based on the absence of reports prior. to April 1986 stating that Spellman’s ability to function was restricted by her depression. However, lack of evidence alone is not sufficient to support a finding that an impairment did not exist at a disabling level of severity. See Lichter v. Bowen, 814 F.2d 430, 431 (7th Cir.1987) (holding that ALJ improperly rejected claimant’s disability onset date on the ground that claimant failed to produce medical evidence supporting alleged onset date, court stated that lack of evidence not determinative so long as alleged onset date was consistent with medical evidence and that ALJ should have applied SSR 83-20); see also Swanson v. Secretary of Health & Human Services, 763 F.2d 1061, 1065 (9th Cir.1985) (“[T]he critical date is the date of onset of disability, not the date of diagnosis.”). We conclude that the Appeals Council’s determination of the onset date was not based on a “legitimate medical basis,” and, therefore, was not “an informed judgment of the facts.” We also conclude that because Spellman’s mental impairment was of a slowly progressive nature, and the medical evidence was ambiguous with regard to the disability onset date, the Appeals Council could not have inferred an onset date based on an informed judgment of the facts without consulting a medical advisor. Therefore, we remand this case to the Secretary, see Nolen v. Sullivan, 939 F.2d 516, 520 (7th Cir.1991) (where Secretary gave no reason for its determination of onset date of disability, case remanded for redetermination of onset date pursuant to SSR 83-20), and instruct the Secretary to consult a medical advisor in redetermining the onset date of Spellman’s disability.\nB\nSpellman next argues that the Secretary was required to give controlling weight to her treating physician’s opinion that she was physically incapable of engaging in sedentary work. The Appeals Council determined that Spellman suffered from chronic obstructive bronchopulmonary disease, gastroeso-phageal reflux, and leg cramps. The Appeals Council found that while these were severe physical impairments, Spellman still was able to perform sedentary work, which did not involve environmental or industrial pollutants. The Appeals Council concluded that Spellman was able to perform her past relevant work because it required sedentary exertion and was performed in a clean environment. Dr. Davis, Spellman’s treating physician, however, indicated on an insurance form dated April 1983 that Spellman suffered from “severe limitation of functional capacity; incapable of minimal (sedentary) activity.” Record on Appeal vol. 2, at 128.\n“If ... a treating source’s opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record, ... it [will be given] controlling weight.” 20 C.F.R. 404.-1527(d)(2) (1992). The ultimate determination of disability lies with the Secretary:\n[The Secretary] is responsible for making the determination or decision about whether [a claimant] meets the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that [a claimant] is disabled. A statement by a medical source that [a claimant is] “disabled” or “unable to work” does not mean that [the Secretary] will determine that [a claimant] is disabled.\n20 C.F.R. 404.1527(e)(1).\nDr. Davis indicated that Spellman was totally disabled due to chronic obstructive bronchopulmonary disease, aspiration bronchitis, gastroesophageal reflux, which were accompanied by dyspnea, fatigue, and cough. There is some evidence in the record, however, that those physical impairments did not affect Spellman’s ability to perform her past job as an assistant manager of a bank. Spellman’s bronchial condition responded well to treatment, and her coughing improved over time. Spellman’s lungs were normal, although there was occasional rhonchi and wheezes, and she had good air entry. In addition, there is evidence that Spellman jumped rope for short periods, did small household tasks, read, gardened, fished in warm weather while sitting down, went shopping occasionally, and engaged in an exercise regimen in order to improve her exercise tolerance. Spellman also continued to smoke cigarettes every day, despite her doctor’s request that she quit. The Appeals Council acted within its discretion in rejecting the treating physician’s opinion that Spellman could not perform sedentary work, because Dr. Davis’s opinion was inconsistent with the other substantial evidence in the record.\nIll\nFor the foregoing reasons, we AFFIRM the district court’s judgment in part, and REVERSE and REMAND in part. The Secretary is instructed on remand to redetermine the onset date of Spellman’s disability with the assistance of a medical advisor, pursuant to SSR 83-20.\n.There is also evidence that Spellman suffered from chronic fatigue and depression before September 1982. When Spellman was hospitalized for chest pain in 1979, she told her doctor that she suffered from chronic fatigue. The record also indicates that during her hospital stay she was given Elavil. In addition, a prescription for Elavil was refilled in May 1982.\n. Dr. Davis began treating Spellman in January 1983 for gastrointestinal and respiratory difficulties. Dr. Davis was a board-certified surgeon.\n. Dr. Pizette was a board-certified specialist in internal medicine.\n. The three mental health experts were Dr. Madison V. Scott, Ph.D., a psychologist and consultative examiner for the Social Security Administration, Dr. Enrique Vasallo, M.D., a board-certified psychiatrist, and Dr. Chip Mattar, Ph.D., a psychologist.\n. The three doctors were Dr. Scott, Dr. J. Randall Price, a psychologist, and Dr. Ben Goodwin, a psychiatrist.\n. Social Security Rulings are \"binding on all components of the Administration. These rulings represent precedent final opinions and orders and statements of policy and interpretations that have been adopted by the Administration.\" 20 C.F.R. § 422.406(b)(1) (1991); see also Hall v. Schweiker, 660 F.2d 116, 119 n. 4 (5th Cir. Unit A Sept. 1981).\n. The Seventh Circuit has held that, where there is a complete medical chronology of a claimant’s impairment, the ALJ may choose an appropriate onset date of disability, without the aid of a medical advisor. See Pugh v. Bowen, 870 F.2d 1271, 1278 & n. 9 (7th Cir.1989); contra id. at 1279 (Fairchild, J., dissenting) (stating that the ALJ had to infer the onset date of disability because the exact onset date was unclear, and that therefore the ALJ should have consulted a medical advisor in inferring the onset date, pursuant to SSR 83-20). The holding in Pugh is inapposite here because the medical chronology of Spellman’s mental impairment is incomplete.\n. Although a medical advisor, Dr. Price, who testified at the second supplemental hearing, was questioned regarding whether or not the mental evaluations performed after 1985 established disability. Neither the ALJ nor Spellman's counsel questioned Dr. Price about whether Spellman’s mental impairment affected her ability to work prior to her first psychiatric examination by Dr. Scott in April 1986. The Secretary argues that because Spellman failed to question the medical advisor about the onset date of her disability, the Secretary did not have to consult a medical ad-visor in determining the disability's onset date. We disagree. SSR 83-20 places the burden of consulting a medical advisor on the Secretary, not the claimant.\n. Spellman' argues that the record strongly supports a disability onset date of September 8, 1982, and that, therefore, a remand is unnecessary. Because Spellman's disability action has been pending since 1982, it is understandable that Spellman prefers that we make the final determination. However, a remand is necessary because the Secretary must redetermine the onset date after consulting a medical advisor.\n. The Appeals Council based its determination that the onset date of Spellman’s disability was October 1, 1985, on its finding that Spellman's mental impairment was not severe prior to that date. Spellman argues that the Appeals Council failed to apply the proper legal standard in determining the severity of her mental impairment under step two of the five-step sequential procedure for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520(c) (1992).\n'An impairment can be considered as not severe only if it is a slight abnormality which has such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.’\nEstran v. Heckler, 745 F.2d 340, 341 (5th Cir.1984) (quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984)). In Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985), we stated that “unless the correct standard is used [in determining the severity of an impairment], the claim must be remanded to the Secretary for reconsideration.\" Id. at 1106. We agree with Spellman that the Secretary failed to indicate that it evaluated the severity of her mental disability in accordance with Estran and Stone. On remand, the Secretary should reconsider the facts in light of the proper standard set forth in those cases. See Stone, 752 F.2d at 1106 (We will \"assume that the ALJ and Appeals Council have applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to this opinion or another of the same effect, or by an express statement that the construction we give to 20 C.F.R. § 404.1520(c) (1984) is used.”).\n. The Secretary argues that Spellman waived this issue, because she failed to argue below that she was physically incapable of performing her past relevant work. Therefore, the Secretary claims that the only issue before this Court is Spellman’s mental ability to perform her past relevant work. We disagree with the Secretary, because the record indicates that Spellman adequately argued below that she was physically incapable of performing her past relevant work.", "type": "majority", "author": "EMILIO M. GARZA, Circuit Judge:"}], "attorneys": ["Morgan & Weisbrod, Carl Weisbrod, Dallas, TX, for plaintiff-appellant.", "Joseph B. Liken, DHHS, Office of Gen. Counsel, Dallas, TX, for defendant-appellee."], "corrections": "", "head_matter": "Neva SPELLMAN, Plaintiff-Appellant, v. Donna E. SHALALA, M.D., Secretary of Health and Human Services, Defendant-Appellee.\nNo. 91-7390.\nUnited States Court of Appeals, Fifth Circuit.\nSept. 13, 1993.\nMorgan & Weisbrod, Carl Weisbrod, Dallas, TX, for plaintiff-appellant.\nJoseph B. Liken, DHHS, Office of Gen. Counsel, Dallas, TX, for defendant-appellee.\nBefore GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.\n. Donna E. Shalala, M.D., is substituted for her predecessor Louis W. Sullivan, M.D., Secretary of Health and Human Services, pursuant to Fed. R.App.P. 43(c)(1)."}	GOLDBERG	SMITH	EMILIO M. GARZA	1	1	1	0	0	0	1 F.3d 357	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Neva SPELLMAN, Plaintiff-Appellant, v. Donna E. SHALALA, M.D., Secretary of Health and Human Services, Defendant-Appellee\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-09-13\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nEMILIO M. GARZA, Circuit Judge:\nNeva Spellman appeals the district court’s order granting summary judgment for the Secretary of Health and Human Services (“Secretary”). Spellman argues that the Secretary erred in determining the onset date of her disability and failed to give proper weight to her treating physician’s opinion that she was incapable of performing sedentary work. Because the Secretary failed to determine properly the onset date of Spell-man’s disability, we affirm the district court’s judgment in part and reverse and remand in part.\nI\nSpellman is a sixty-nine year old woman with a high school education. She worked as an assistant manager at a credit union for twenty six years, where she supervised thirteen employees, occasionally travelled, and was on the telephone six hours a day. Between 1982 and 1985, Spellman suffered from chronic pulmonary disease, gastroesophageal reflux, and several other physical ailments.\nThe medical evidence also shows that Spellman complained to her doctors — who were treating her physical maladies — that she did not sleep well, suffered from chronic fatigue, and was depressed, anxious, and nervous. While Spellman was hospitalized for acute tracheal bronchitis in September 1982, her physician reported that she was depressed, and he treated her with Elavil, an antidepressant drug, during her hospital stay. When Spellman was hospitalized for bronchitis in April 1983, her treating physician, Dr. Milton V. Davis, had Dr. Murray Pizette examine her to determine the cause of some of her physical ailments. Spellman told Dr. Pizette that she had become more depressed and anxious. Concluding that Spellman suffered from mixed anxiety depression, Dr. Pizette prescribed Sinequan, an antidepressant and antianxiety drug. A couple-of months later, the dosage of Sinequan was increased from 25 mg twice a day to 75 mg twice a day. The record also indicates that Spellman was taking Adapin, an antianx-iety and antidepressant drug, in December 1983. In addition, there is evidence that Spellman was taking Xanax and Ativan, which were drugs for treating anxiety, including anxiety related to depression. In April 1984, Dr. Davis submitted a report to Spellman’s disability insurer, stating that she was “incapable of minimal (sedentary) work” due to her respiratory problems.\nIn 1986, three mental health experts examined Spellman; each concluded that Spell-man suffered from a histrionic personality disorder with resulting functional restrictions, particularly an inability to cope with work-related stress and to behave in an emotionally stable manner. Dr. Mattar also reported that Spellman was able to function quite well with her personality disorder for decades, but that her pulmonary problems caused her to be depressed over time. In 1988, Spellman was again examined by three mental health experts, who found that she suffered from histrionic personality disorder accompanied by depressive symptoms. Dr. Goodwin also stated that Spellman had been unable to function in a work setting for the past five to six years, and he opined that her mental condition was deteriorating.\nOn October 24, 1983, Spellman first filed for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (1988), alleging disability from September 8, 1982 — the date she stopped working, due to lung probléms. After her application was denied initially and on reconsideration, Spellman requested a hearing. A preliminary hearing was held before an Administrative Law Judge (“ALJ”), who found that Spellman was not disabled because her physical impairments were not severe. After the Appeals Council denied Spellman’s request for review, she filed an action seeking judicial review in federal district court. The district court remanded the action for further proceedings consistent with certain new mental impairment regulations promulgated by the Secretary. After obtaining the mental status reports from Drs. Scott, Vassallo, and Mat-tar, and holding a supplemental hearing, the ALJ determined that Spellman was not disabled due to her physical and mental impairments.\nAfter the Appeals Council adopted the ALJ’s recommended decision, the district court reopened Spellman’s action and found that the determination that Spellman’s mental disorder did not prevent her from performing her past relevant work was not supported by substantial evidence. The district court therefore remanded the case to the Secretary, who ordered another supplemental hearing. Dr. Price testified at the hearing as a medical advisor. Dr. Price stated that Spellman’s depression appeared to decrease from 1986 through 1988, while she became more hysterical and histrionic during that same time period. Dr. Price recommended that Spellman avoid job situations requiring stressful social interaction, including her former occupation as assistant manager of a credit union. A vocational expert also testified that Spellman’s past work was very stressful and that a person who had difficulty handling-stress would be unable to perform Spellman’s past work.\nSubsequently, the ALJ found that Spell-man was not disabled due to her mental impairment, but the Appeals Council refused to adopt the ALJ’s findings and conclusions with regard to Spellman’s alleged disability. The Appeals Council found that Spellman had chronic obstructive pulmonary disease, gastroesophageal reflux, and leg cramps.. The Appeals Council also found that Spell-man had a mental impairment characterized by mood hysteria, a negative affect, depression, and an inability to cope with work-related stress. The Appeals Council determined that Spellman’s physical impairments were severe as of September 8, 1982, but that she did not have a severe mental impairment until October 1, 1985. The Appeals Council found that prior to October 1, 1985, Spellman’s impairments limited her to sedentary work which did not expose her to environmental or industrial pollutants. The Appeals Council concluded that Spellman was able to perform her past relevant work prior to October 1, 1985, because it was sedentary, and was performed in a clean environment. The Appeals Council found that the mental demands of Spellman’s job exceeded her residual functional capacity as of October 1, 1985, because her mental impairment became severe after that date. Thus, the Appeals Council concluded that Spellman was disabled beginning October 1, 1985. The district court reopened Spellman’s action, and a magistrate judge found that the Appeals Council’s decision was based on substantial evidence. Adopting the magistrate judge’s findings, the district court granted summary judgment for the Secretary. Spellman appeals.\nII\nOn review, this Court determines whether substantial evidence exists in the record as a whole to support the ALJ’s factual findings and whether the proper legal standards were applied. Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir.1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). If substantial evidence supports the Secretary’s findings, they are conclusive and must be affirmed. 42 U.S.C. § 405(g) (1988); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.1990). Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427; Selders, 914 F.2d at 617. It is more than a mere scintilla, and less than a preponderance. Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.1990). “This Court may not reweigh the evidence or try the issues de novo. Conflicts in evidence are for the Secretary and not the courts to resolve.” Selders, 914 F.2d at 617 (citation omitted).\nWe review the district court’s grant of a summary judgment motion de novo. Davis v. Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir.1991). Summary judgment is appropriate if the record discloses “that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 106 S.Ct. at 2553-54. While we must “review the facts drawing all inferences most favorable to the party opposing the motion,” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986), that party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).\nA\nSpellman argues that the Appeals Council failed to comply with Social Security Ruling 83-20 (“SSR 83 — 20”), because its determination of the onset date of her disability was arbitrary, and therefore not based on an informed judgment. Spellman also claims that the Appeals Council failed to comply with SSR 83-20 by failing to consult a medical advisor in determining the onset day of her disability.\nSpellman alleges a disability onset date of September 8, 1982, which was the date she stopped working. The Appeals Council, however, determined that the onset date was October 1, 1985. In determining the onset date of Spellman’s disability, the Appeals Council found that the first evidence of a significant mental impairment was in April 1986, when Spellman had her first consultar tive mental status evaluation. The Appeals Council also found that no medical evidence indicated that Spellman’s mental impairment was severe before April 1986. The Appeals Council apparently so found because none of the medical reports before April 1986 stated that Spellman’s ability to function was restricted by her mental impairment. Nevertheless, the Appeals Council concluded that it was “reasonable to assume that [Spellman’s] mental impairment was severe as of October 1, 1985, approximately six months prior to the April 29, 1986, psychological examination,” and that consequently, Spellman was disabled as of October 1, 1985, because “the mental demands of the work exceeded [her] residual functional capacity.” Record Excerpts for Spellman tab 5, at 11-12.\nSSR 83-20 prescribes the policy and procedure by which the Secretary should determine the onset date of a disability. See SSR 83-20 (1983). SSR 83-20 stresses that “[i]n many claims, the onset date of [a disability] is critical; it may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits.” Id. As a result, “it is essential that the onset date be correctly established and supported by the evidence.” Id. “Factors relevant to the determination of disability onset include the individual’s allegation, the work history, and the medical evidence.” Id.; see also Ivy v. Sullivan, 898 F.2d 1045, 1048 (5th Cir. 1990). These three factors are often evaluated together. SSR 83-20. The starting point of determining the onset date is the claimant’s allegation as to when the disability began, id.; Ivy, 898 F.2d at 1048, and the date the disability caused the claimant to stop work is often very significant. SSR 83-20. Nevertheless, the medical evidence is the primary element in the determination of onset of disability. Id. “The claimant’s stated onset date is used as the established onset date when it is consistent with available evidence.” Ivy, 898 F.2d at 1048. SSR 83-20 recognizes that with slowly progressive impairments, including mental impairments, “it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling.” SSR 83-20. Accordingly,\n[i]n such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. Particularly in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided, on medical grounds alone) before onset can be established.\nPrecise Evidence Not Available — Need for Inferences\nIn some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information indicating that additional medical evidence is available, such evidence should be secured before inferences are made.\nIf reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional medical evidence is not available, it may be necessary to explore other sources of documentation.\nId. (emphasis added).\nWhile there are no cases in this Circuit that discuss or apply the above-quoted provision of SSR 83-20, both the Ninth and Sixth Circuits have applied that provision. In Blankenship v. Bowen, 874 F.2d 1116 (6th Cir.1989), the claimant filed for disability insurance benefits, alleging disability due to physical and mental impairments since 1979. Id. at 1117. Three psychiatrists found that the claimant suffered from a mental impairment before 1985, and in November 1985 another psychiatrist, Dr. Lury, found that the claimant suffered from a psychiatric disorder that left him 100% disabled. Id. at 1118-20. Dr. Lury also opined that the claimant’s mental deterioration was of a progressive nature. Id. at 1120. The ALJ concluded that the claimant suffered from both a physical impairment and a progressive mental disorder since 1979, but was not disabled until November 1985. Id. The ALJ found that prior to November 1985, the claimant’s mental disability was not functionally limiting and that the claimant’s physical impairment limited the claimant to low stress work. Id. The ALJ determined that the claimant’s mental disability was of such severity in November 1985 that it restricted the claimant’s functional capacity. Id. The ALJ therefore found that the claimant was disabled beginning in November 1985. Id. After the district court affirmed the ALJ’s decision, the Sixth Circuit found that the claimant’s mental impairments were of a slowly progressive nature, and that as a result, the onset date of the disability was not clear from the medical evidence. See id. at 1122. Consequently, the court reversed the district court’s judgment and remanded the case to the Secretary for a redetermination of the onset date, instructing the Secretary to obtain additional medical evidence regarding the progression of the claimant’s mental impairment and to consult a medical advisor pursuant to SSR 83-20. See id. at 1124; see also id. (Nelson, J., concurring) (“SSR 83-20, as I read it, makes it clear that in a case such as this the ALJ is not to determine the onset date without having called on the services of a medical advisor.”).\nIn Morgan v. Sullivan, 945 F.2d 1079 (9th Cir.1991), the claimant filed for disability insurance benefits, alleging disability since 1977 due to physical and mental impairments. Id. at 1081. The ALJ found that the claimant had no medically determinable mental impairment before 1979, and that he was not disabled because he could perform his past relevant work. Id. On appeal, the Ninth Circuit stated that while the first unambiguous evidence of a mental impairment was in 1980, there was evidence that the claimant may have suffered from a disabling mental impairment prior to 1979, because there were medical reports stating that the claimant suffered from a great deal of stress. See id. at 1081-82. In addition, one report in early 1980 stated that the claimant’s condition had become progressively worse in the past year. Id. at 1082. Citing Blankenship, the Ninth Circuit stated that SSR 83-20 “suggests that when the evidence regarding date of onset of mental impairment is ambiguous, as it is here, the ALJ should determine the date based on an informed inference.” Id. at 1082. The Ninth Circuit found that such an inference was not possible without the assistance of a medical advisor, and that because the ALJ failed to consult a medical advisor, the ALJ’s onset date determination was not based on an informed inference. See id. at 1083. The Ninth Circuit reversed the district court’s judgment and remanded, instructing the ALJ to redetermine the onset date of the mental impairment with the assistance of a medical advisor, pursuant to SSR 83-20. See id.\nBecause a correct determination of the onset date of a disability is critical, see SSR 83-20, we agree with the Sixth and Ninth Circuits’ interpretation of SSR 83-20. We therefore hold that in cases involving slowly progressive impairments, when the medical evidence regarding the onset date of a disability is ambiguous and the Secretary must infer the onset date, SSR 83-20 requires that that inference be based on an informed judgment. The Secretary cannot make such an inference without the assistance of a medical advisor. See DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir.1991) (“In the event that the medical evidence is not definite concerning the onset date [of a disability] and medical inferences need to be made, SSR 83-20 requires the [ALJ] to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination”).\nThe medical evidence with regard to the onset date of Spellman’s disability is ambiguous, because it is unclear when Spellman’s mental impairment first restricted her functional capacity. Although Spellman was diagnosed as depressed and prescribed medication for anxiety and depression before October 1, 1985, both parties agree that Spell-man never had a consultative mental status examination by a mental health professional prior to Dr. Scott’s examination in April 1986. See Brief for Spellman at 31; Brief for Secretary at 13. In addition, the Appeals Council failed to explain why October 1,1985 was the proper onset date, and nothing in the record suggests that October 1, 1985 was significant with regard to Spellman’s disability. That the Appeals Council arbitrarily selected an onset date six months prior to the first mental evaluation suggests that the medical evidence was ambiguous with regard to the onset date. The evidence in the record indicates that Spellman may have suffered from a disabling mental impairment before October 1, 1985. Spellman quit work on September 8, 1982. There is evidence that Spellman had been treated by physicians for depression and anxiety before April 1986. Furthermore, there is evidence that Spellman suffered from chronic fatigue during the relevant period, which may have indicated a mental impairment. Dr. Goodwin also stated in 1988 that Spellman’s mental impairment was of a slowly progressive nature, and that Spellman had been unable to work for the past five or six years.\nThe Appeals Council’s finding that Spellman’s mental impairment was not severe before October 1, 1985 apparently was based on the absence of reports prior. to April 1986 stating that Spellman’s ability to function was restricted by her depression. However, lack of evidence alone is not sufficient to support a finding that an impairment did not exist at a disabling level of severity. See Lichter v. Bowen, 814 F.2d 430, 431 (7th Cir.1987) (holding that ALJ improperly rejected claimant’s disability onset date on the ground that claimant failed to produce medical evidence supporting alleged onset date, court stated that lack of evidence not determinative so long as alleged onset date was consistent with medical evidence and that ALJ should have applied SSR 83-20); see also Swanson v. Secretary of Health & Human Services, 763 F.2d 1061, 1065 (9th Cir.1985) (“[T]he critical date is the date of onset of disability, not the date of diagnosis.”). We conclude that the Appeals Council’s determination of the onset date was not based on a “legitimate medical basis,” and, therefore, was not “an informed judgment of the facts.” We also conclude that because Spellman’s mental impairment was of a slowly progressive nature, and the medical evidence was ambiguous with regard to the disability onset date, the Appeals Council could not have inferred an onset date based on an informed judgment of the facts without consulting a medical advisor. Therefore, we remand this case to the Secretary, see Nolen v. Sullivan, 939 F.2d 516, 520 (7th Cir.1991) (where Secretary gave no reason for its determination of onset date of disability, case remanded for redetermination of onset date pursuant to SSR 83-20), and instruct the Secretary to consult a medical advisor in redetermining the onset date of Spellman’s disability.\nB\nSpellman next argues that the Secretary was required to give controlling weight to her treating physician’s opinion that she was physically incapable of engaging in sedentary work. The Appeals Council determined that Spellman suffered from chronic obstructive bronchopulmonary disease, gastroeso-phageal reflux, and leg cramps. The Appeals Council found that while these were severe physical impairments, Spellman still was able to perform sedentary work, which did not involve environmental or industrial pollutants. The Appeals Council concluded that Spellman was able to perform her past relevant work because it required sedentary exertion and was performed in a clean environment. Dr. Davis, Spellman’s treating physician, however, indicated on an insurance form dated April 1983 that Spellman suffered from “severe limitation of functional capacity; incapable of minimal (sedentary) activity.” Record on Appeal vol. 2, at 128.\n“If ... a treating source’s opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record, ... it [will be given] controlling weight.” 20 C.F.R. 404.-1527(d)(2) (1992). The ultimate determination of disability lies with the Secretary:\n[The Secretary] is responsible for making the determination or decision about whether [a claimant] meets the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that [a claimant] is disabled. A statement by a medical source that [a claimant is] “disabled” or “unable to work” does not mean that [the Secretary] will determine that [a claimant] is disabled.\n20 C.F.R. 404.1527(e)(1).\nDr. Davis indicated that Spellman was totally disabled due to chronic obstructive bronchopulmonary disease, aspiration bronchitis, gastroesophageal reflux, which were accompanied by dyspnea, fatigue, and cough. There is some evidence in the record, however, that those physical impairments did not affect Spellman’s ability to perform her past job as an assistant manager of a bank. Spellman’s bronchial condition responded well to treatment, and her coughing improved over time. Spellman’s lungs were normal, although there was occasional rhonchi and wheezes, and she had good air entry. In addition, there is evidence that Spellman jumped rope for short periods, did small household tasks, read, gardened, fished in warm weather while sitting down, went shopping occasionally, and engaged in an exercise regimen in order to improve her exercise tolerance. Spellman also continued to smoke cigarettes every day, despite her doctor’s request that she quit. The Appeals Council acted within its discretion in rejecting the treating physician’s opinion that Spellman could not perform sedentary work, because Dr. Davis’s opinion was inconsistent with the other substantial evidence in the record.\nIll\nFor the foregoing reasons, we AFFIRM the district court’s judgment in part, and REVERSE and REMAND in part. The Secretary is instructed on remand to redetermine the onset date of Spellman’s disability with the assistance of a medical advisor, pursuant to SSR 83-20.\n.There is also evidence that Spellman suffered from chronic fatigue and depression before September 1982. When Spellman was hospitalized for chest pain in 1979, she told her doctor that she suffered from chronic fatigue. The record also indicates that during her hospital stay she was given Elavil. In addition, a prescription for Elavil was refilled in May 1982.\n. Dr. Davis began treating Spellman in January 1983 for gastrointestinal and respiratory difficulties. Dr. Davis was a board-certified surgeon.\n. Dr. Pizette was a board-certified specialist in internal medicine.\n. The three mental health experts were Dr. Madison V. Scott, Ph.D., a psychologist and consultative examiner for the Social Security Administration, Dr. Enrique Vasallo, M.D., a board-certified psychiatrist, and Dr. Chip Mattar, Ph.D., a psychologist.\n. The three doctors were Dr. Scott, Dr. J. Randall Price, a psychologist, and Dr. Ben Goodwin, a psychiatrist.\n. Social Security Rulings are \"binding on all components of the Administration. These rulings represent precedent final opinions and orders and statements of policy and interpretations that have been adopted by the Administration.\" 20 C.F.R. § 422.406(b)(1) (1991); see also Hall v. Schweiker, 660 F.2d 116, 119 n. 4 (5th Cir. Unit A Sept. 1981).\n. The Seventh Circuit has held that, where there is a complete medical chronology of a claimant’s impairment, the ALJ may choose an appropriate onset date of disability, without the aid of a medical advisor. See Pugh v. Bowen, 870 F.2d 1271, 1278 & n. 9 (7th Cir.1989); contra id. at 1279 (Fairchild, J., dissenting) (stating that the ALJ had to infer the onset date of disability because the exact onset date was unclear, and that therefore the ALJ should have consulted a medical advisor in inferring the onset date, pursuant to SSR 83-20). The holding in Pugh is inapposite here because the medical chronology of Spellman’s mental impairment is incomplete.\n. Although a medical advisor, Dr. Price, who testified at the second supplemental hearing, was questioned regarding whether or not the mental evaluations performed after 1985 established disability. Neither the ALJ nor Spellman's counsel questioned Dr. Price about whether Spellman’s mental impairment affected her ability to work prior to her first psychiatric examination by Dr. Scott in April 1986. The Secretary argues that because Spellman failed to question the medical advisor about the onset date of her disability, the Secretary did not have to consult a medical ad-visor in determining the disability's onset date. We disagree. SSR 83-20 places the burden of consulting a medical advisor on the Secretary, not the claimant.\n. Spellman' argues that the record strongly supports a disability onset date of September 8, 1982, and that, therefore, a remand is unnecessary. Because Spellman's disability action has been pending since 1982, it is understandable that Spellman prefers that we make the final determination. However, a remand is necessary because the Secretary must redetermine the onset date after consulting a medical advisor.\n. The Appeals Council based its determination that the onset date of Spellman’s disability was October 1, 1985, on its finding that Spellman's mental impairment was not severe prior to that date. Spellman argues that the Appeals Council failed to apply the proper legal standard in determining the severity of her mental impairment under step two of the five-step sequential procedure for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520(c) (1992).\n'An impairment can be considered as not severe only if it is a slight abnormality which has such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.’\nEstran v. Heckler, 745 F.2d 340, 341 (5th Cir.1984) (quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984)). In Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985), we stated that “unless the correct standard is used [in determining the severity of an impairment], the claim must be remanded to the Secretary for reconsideration.\" Id. at 1106. We agree with Spellman that the Secretary failed to indicate that it evaluated the severity of her mental disability in accordance with Estran and Stone. On remand, the Secretary should reconsider the facts in light of the proper standard set forth in those cases. See Stone, 752 F.2d at 1106 (We will \"assume that the ALJ and Appeals Council have applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to this opinion or another of the same effect, or by an express statement that the construction we give to 20 C.F.R. § 404.1520(c) (1984) is used.”).\n. The Secretary argues that Spellman waived this issue, because she failed to argue below that she was physically incapable of performing her past relevant work. Therefore, the Secretary claims that the only issue before this Court is Spellman’s mental ability to perform her past relevant work. We disagree with the Secretary, because the record indicates that Spellman adequately argued below that she was physically incapable of performing her past relevant work.\n[END_CASE]", "role": "user" } ]
10,511,166	GULF CHEMICAL & METALLURGICAL CORPORATION and Cheminter Corporation, Plaintiffs-Appellants Cross-Appellees, v. ASSOCIATED METALS & MINERALS CORPORATION, et al., Defendants, Associated Metals & Minerals Corporation, General Star Indemnity, Insurance Company of North America, a/k/a Cigna Property and Casualty Companies, and International Surplus Lines Insurance Company, Defendants-Appellees, and Birmingham Fire Insurance Company of Pennsylvania, Defendant-Appellee Cross-Appellant	Gulf Chemical & Metallurgical Corp. v. Associated Metals & Minerals Corp.	1993-09-13	No. 92-7499	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges."], "parties": ["GULF CHEMICAL & METALLURGICAL CORPORATION and Cheminter Corporation, Plaintiffs-Appellants Cross-Appellees, v. ASSOCIATED METALS & MINERALS CORPORATION, et al., Defendants, Associated Metals & Minerals Corporation, General Star Indemnity, Insurance Company of North America, a/k/a Cigna Property and Casualty Companies, and International Surplus Lines Insurance Company, Defendants-Appellees, and Birmingham Fire Insurance Company of Pennsylvania, Defendant-Appellee Cross-Appellant."], "opinions": [{"text": "REAVLEY, Circuit Judge:\nGulf Chemical & Metallurgical Corporation (Gulf) sued its insurers and its former parent corporation for breach of contract and declaratory judgment, alleging that these defendants ignored their contractual obligations to defend Gulf in an ongoing toxic-tort case that features some 2000 plaintiffs. On summary judgment, the district court apportioned Gulfs defense costs among Gulf and two of Gulfs insurers. We vacate the judgment and instruct changed apportionment.\nI. BACKGROUND\nFrom 1973 to 1984, Associated Metals & Minerals Corporation (ASOMA) operated a chemical plant in Freeport, Texas through an unincorporated division (ASOMA’s Chemical Division). ASOMA’s Chemical Division shipped molybdenum trioxide (molyoxide) to Lone Star Steel Corporation (Lone Star) between June 18, 1981 and May 4, 1982.\nASOMA formed Gulf in December 1984 under Texas law, and transferred the assets of ASOMA’s Chemical Division to Gulf on January 17, 1985 in exchange for all of Gulfs outstanding shares. ASOMA then sold Gulfs stock to Cheminter Corporation, under which Gulf has operated the Freeport plant. Gulf shipped molyoxide to Lone Star between January 20, 1986 and January 12, 1988.\nApproximately 5000 former employees of Lone Star have sued approximately 2000 manufacturers and suppliers of chemicals that Lone Star used in its steel mill, claiming that the chemicals caused them various latent bodily injuries from 1946 to 1990. This consolidated litigation is pending in a Morris County, Texas court, styled Fowler et al. v. Union Carbide Corp. et al. (76th Dist.Ct., No. 15477). The Fowler plaintiffs joined Gulf as a defendant on October 16, 1987. Their August 1990 consolidated complaint (the Fowler complaint) alleges that Gulf is strictly liable for their injuries as a consequence of its sale of molyoxide to Lone Star.\nGulf filed this diversity suit in federal court to enforce the contractual obligations of various parties to pay for Gulfs defense in the Fowler litigation. These parties include ASOMA and four of Gulfs general comprehensive liability (GCL) insurers: International Surplus Lines Insurance Company (ISL-IC), General Star Indemnity Company (GenStar), Birmingham Fire and Insurance Company of Pennsylvania (Birmingham), and Insurance Company of North America (INA).\nIn the January 18, 1985 Stock Purchase Agreement, ASOMA agreed\nto indemnify [Cheminter] and Gulf and hold each of them harmless from and against any and all liabilities and obligations arising from the conduct by Gulf [or ASOMA’s Chemical Division] or [ASO-MA] prior to [January 18, 1985], or arising from the ownership, possession or use pri- or to [January 18, 1985] of the assets employed in [the business of Gulf or ASO-MA’s Chemical Division.]\nThe indemnity agreement entitles Gulf to “reasonable legal and other costs incurred in defending against or investigating any claim of liability.”\nISLIC provided Gulf GCL coverage from January 17,1985 to January 17,1986. GenS-tar provided Gulf GCL coverage from January 17, 1986 to July 1, 1986. Birmingham provided Gulf GCL coverage from June 1, 1987 to June 1, 1988. INA provided Gulf GCL coverage from June 1, 1988 to June 1, 1989. The policies of ISLIC, GenStar, and Birmingham all provide:\nthe [insurer] shall have the right and duty to defend any suit against the insured seeking damages on account of ... bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent....\nINA’s policy provides:\n[INA] will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. [INA] will have the right and duty to defend any “suit” seeking those damages.\nGulfs GCL insurer from July 1, 1986 to July 1, 1987 did not agree to defend or indemnify Gulf for claims made subsequent to the term of the policy, and Gulf has not sued that insurer.\nThe district court disposed of Gulfs entire contract suit for monetary and declaratory relief by summary judgment, and explained its judgment in a series of orders. The court dismissed Gulfs claims against ASOMA after finding it “highly unlikely” that the Fowler plaintiffs are suing Gulf for the molyoxide shipments made by ASOMA’s Chemical Division.\nAs for Gulfs insurers, the court held that “the [Fowler plaintiffs’] allegations of bodily injury resulting from continuous exposure to chemicals triggers a duty of defense by the terms of each policy.” However, the court held that an “expected or intended” injury exclusion in INA’s policy excuses INA from defending Gulf. See Gulf Chem. & Metallurgical Corp. v. Associated Metals and Minerals Corp., 765 F.Supp. 375, 376 (S.D.Tex.1991). The court also held that ISLIC owes Gulf no duty of defense because ISLIC’s policy expired on January 17, 1986, three days before Gulf first shipped molyoxide to Lone Star.\nThe district court then read our precedent to require coverage-time-based proration of the defense costs among GenStar, Birmingham, and Gulf itself, because Gulf was essentially self-insured between July 1, 1986 and June 1, 1987. The court held that “the relevant exposure period with respect to [Gulf] and its insurers is January 20, 1986 to January 12, 1988,” the dates of Gulfs first and last molyoxide shipments to Lone Star.\nGulf appeals, claiming that the district court erred by: 1) dismissing INA, ISLIC, and ASOMA; 2) requiring Gulf to contribute to the costs of its defense; and 3) dismissing Gulfs claims for attorney fees and breach of the duty of good-faith dealing. Birmingham cross-appeals, claiming that the district court’s apportionment formula is erroneous.\nII. ANALYSIS\nWe review the district court’s summary judgment de novo, reviewing the record evidence in the light most favorable to the party against whom the motion is made. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). New York law governs our interpretation of the Stock Purchase Agreement, and no party argues that the district court erred by interpreting the various insurance policies according to Texas law.\nA. The District Court’s Dismissal of ASO-MA, ISLIC, and INA\nGulf argues that the record does not support the district court’s summary judgment in favor of ASOMA, INA, or ISLIC. We agree, and find Gulf entitled, for different reasons, to recovery against ASOMA, INA, and ISLIC.\n1. New York Law and ASOMA\nIn the Stock Purchase Agreement, ASOMA agreed to pay all “reasonable legal and other costs incurred in defending against or investigating any claim of liability” made against Gulf arising from the conduct of Gulf or ASOMA prior to January 18, 1985. The Fowler plaintiffs have sued Gulf for damages from their exposure to toxic chemicals between 1946 and 1990.\nGoing beyond the allegations in the Fowler complaints, the district court requested evidence which it later used to determine that Gulf should not have been sued for conduct prior to the acquisition by Cheminter. But whether Gulf should have been sued is not the issue. Gulf was sued, and the fact that Gulf may ultimately prevail in the underlying actions insofar as they allege exposure to Gulfs products prior to 1985 does not abrogate ASOMA’s duty to defend. See Starobin v. Randolph Computer Corp., 689 F.Supp. 323, 327 (S.D.N.Y.1988) (“It is not necessary that an indemnitee have sustained actual damages in the main action in order to be entitled to enforce an agreement as to indemnification for attorneys’ fees.”).\nBy effectively limiting ASOMA’s defense-cost indemnity obligation to colorable claims, the district court narrowed the coverage of the indemnity provision in contravention of governing New York law. See Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 571 N.Y.S.2d 672, 674, 575 N.E.2d 90, 92 (1991) (“the duty to defend is broader than the duty to indemnify” and “an insurer may be contractually bound to defend even though it may not ultimately be bound to pay”). By the terms of the Stock Purchase Agreement, ASOMA must indemnify Gulf for the cost of litigating ultimate liability, like that described in Starobin and Fitzpatrick.\n2. Texas Law and INA and ISLIC\nUnder Texas Law, insurance policies are construed as are contracts generally, and must be interpreted to effectuate the intent of the parties at the time the contracts were formed. Glover v. National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex.1977). When the words of a policy are unambiguous, they are to be given their plain, ordinary, and generally accepted meaning, unless the policy clearly indicates that the contractual terms have been used in a different or technical sense. Puckett v. United States Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984). However, when the language of a policy is susceptible to more than one construction, the “polic[y] should be construed strictly against the insurer and liberally in favor of the insured.” Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex.1987). And where the question of interpretation “involves an exception or limitation on [the insurer’s] liability under the policy, an even more stringent construction is required.” Id.\nUnder Texas law, an insurer’s duty to defend “is determined by the allegations of the petition when considered in light of the policy provisions without reference to the truth or falsity of such allegations.” Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973) (emphasis added). “The duty arises when a third party sues the insured on allegations that, if taken as true, potentially state a cause of action within the terms of the policy.” Continental Sav. Ass’n v. United States Fidelity & Guar. Co., 762 F.2d 1239, 1243 (5th Cir.) (emphasis in original), opinion amended on other grounds, 768 F.2d 89 (5th Cir.1985).\nThe duty to defend is broader than the duty to indemnify. Colony Ins. Co. v. H.R.K., Inc., 728 S.W.2d 848, 850 (Tex.App.—Dallas 1987, no writ); see generally BarRY R. Ostrager & Thomas R. Newman, HANDBOOK ON INSURANCE COVERAGE DISPUTES § 5.02 (5th ed. 1991). As one court teaches:\nIn Texas, the duty to defend and duty to indemnify are distinct and separate duties creating distinct and separate causes of action. Texas courts follow the “Eight Corners” or “Complaint Allegation” rule when determining the duty to defend action. This rule requires the trier of fact to examine only the allegations in the [underlying] complaint and the insurance policy in determining whether a duty to defend exists. The duty to defend is not affected by facts ascertained before suit, developed in the process of the litigation, or by the ultimate outcome of the suit.\nAmerican Alliance Ins. Co. v. Frito-Lay, Inc., 788 S.W.2d 152,153-54 (Tex.App.—Dallas 1990, writ dism’d) (emphasis added and citations omitted).\na. INA\nThe district court summarily excused INA from its contractual duty to defend after finding that Gulf knew, prior to the effective date of the INA policy, that it had been named as a defendant in Fowler and reasonably expected that more claims would be asserted against it in that suit. The court held that Gulfs knowledge invoked the INA policy exclusion for “ ‘bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” See 765 F.Supp. at 376.\nINA contends that the court correctly read its policy, because one cannot insure against liability known at the policy’s inception. INA stresses that both Texas law and public policy require some degree of “fortuity” of loss and “contingency” of risk in insurance. But INA and the district court erroneously conflate expected claims and expected bodily injury. Gulfs liability remains unknown or “contingent” even though it knows that parties will file claims.\nGulf is correct that the relevant question in applying the “expected or intended” exclusion is whether the bodily injury which forms the basis for a claim against Gulfs GCL policy is expected or intended by Gulf, not whether the claim itself was expected or intended. See Hartford Casualty Co. v. Cruse, 938 F.2d 601, 604-05 (5th Cir.1991) (construing a GCL policy similar to INA’s under Texas law and holding that the loss was covered under the policy because “an occurrence takes place where the resulting injury or damage was unexpected and unintended”); see also Alert Centre, Inc. v. Alarm Protection Serv., Inc., 967 F.2d 161, 164 (5th Cir.1992) (reversing summary judgment in favor of insurer after holding that “expected or intended” injury exclusion only excludes an injury “which the insured intended, not one which the insured caused, however intentional the injury-producing act”) (quoting Breland v. Schilling, 550 So.2d 609, 611 (La.1989)).\nIn City of Johnstown, N.Y. v. Bankers Standard Ins. Co., 877 F.2d 1146 (2d Cir.1989), the Second Circuit considered a similar case, and held an “expected or intended” injury exclusion inapplicable, even when the insured had reason to expect a claim to be brought against it, id. at 1151, as long as the insured had neither expected nor intended the underlying injury:\n[Wjhat makes injuries or damages expected or intended ... are the knowledge and intent of the insured. It is not enough that an insured was warned that damages might ensue from its actions, or that, once warned, an insured decided to take a calculated risk and proceed as before. Recovery will be barred only if the insured intended the damages, or if it can be said that the damages were, in a broader sense, “intended” by the insured because the insured knew that the damages would flow directly and immediately from its intentional act.\nId. at 1150 (citations omitted). No difference between insurance law in New York and Texas renders this reasoning inapplicable here. Moreover, according to the Texas Supreme Court,\nwe must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not itself unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties[] intent.\nBarnett, 723 S.W.2d at 666 (quoting Glover, 545 S.W.2d at 761) (emphasis added). Gulfs urged construction — that the “expected or intended” injury clause should only exclude expected or intended injuries, and not expected or intended claims — is “not itself unreasonable,” particularly in light of the fact that INA could have easily learned of the Fowler litigation and crafted a specific exclusion for future claims arising from that litigation.\nb. ISLIC\nThe district court held that ISLIC need not contribute to Gulfs defense because ISLIC’s policy expired before Gulf first shipped molyoxide to Lone Star. This holding contravenes American Alliance, which forbids consideration of facts other than those in a complaint to determine whether a duty to defend exists. See 788 S.W.2d at 153-54. The Fowler plaintiffs base their claims on exposure to Gulfs chemicals from 1946 to 1990. The later-discovered fact that Gulf did not ship molyoxide to Lone Star until January 20, 1986 is irrelevant under American Alliance. The district court’s judgment presupposes that Gulf cannot be held liable, as a matter of law, for what happened to the Fowler plaintiffs before January 20, 1986, but this question was not before the district court.\nISLIC counters that State Farm Fire & Casualty Co. v. Wade, 827 S.W.2d 448 (Tex.App.—Corpus Christi 1992, writ denied) represents an exception to the rule announced in American Alliance. See also Gonzales v. American States Ins. Co., 628 S.W.2d 184, 187 (Tex.App.—Corpus Christi 1982); Cook v. Ohio Casualty Ins. Co., 418 S.W.2d 712, 714-15 (Tex.Civ.App.—Texarkana 1967, no writ). But the exception represented by these cases does not help ISLIC; the cases only teach that a court may look outside a complaint to determine coverage. Here, the district court looked outside the Fowler plaintiffs’ claims to determine Gulfs liability, and even the authorities cited by ISLIC proscribe this. Wade, 827 S.W.2d at 451; Gonzales, 628 S.W.2d at 187; Cook, 418 S.W.2d at 714-15. It may well be determined in the Fowler litigation that no injury (exposure) can be attributed to Gulf prior to January 20, 1986. That determination would end the participation of ISLIC, as well as of ASOMA, in the defense costs. But it is not presently a determination available to this proceeding.\nB. The DISTRICT CouRt’s Apportionment Formula\nWe come to the dispute over apportionment of costs, among seriatim insurers, to defend against tort claims for injuries developed during long-term exposure to toxic products.\nGulf contends that apportionment of defense costs is inappropriate under Texas law, and that each of its insurers are jointly and severally liable for all of its defense costs, and ASOMA is liable for all of its defense costs attributable to conduct before January 18, 1985. Birmingham disagrees with Gulf, but argues that the district court erred by apportioning defense costs without full knowledge of the relevant facts.\n1. The Existence of Apportionment Under Texas Law\nIn its seminal decision on defense-cost apportionment, the Sixth Circuit teaches:\nAn insurer must bear the entire cost of defense when “there is no \"reasonable means of prorating the costs of defense between the covered and the not-covered items.” National Steel Constr. Co. v. National Union Fire Ins. Co., 14 Wash.App. 573, 543 P.2d 642, 644 (1975). Thus, in the typical situation, suit will be brought as the result of a single accident, but only some of the damages sought will be covered under the insurance policy. In such cases, apportioning defense costs between the insured claim and the uninsured claim is very difficult. As a result, courts impose the full cost of defense on the. insurer.\nThese considerations do not apply where defense costs can be readily apportioned. The duty to defend arises solely under contract. An insurer contracts to pay the entire cost of defending a claim which has arisen within the policy period. The insurer has not contracted to pay defense costs for occurrences which took place outside the policy period. Where the distinction can be readily made, the insured must pay its fair share for the defense of non-covered risk.\nInsurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1224-25 (6th Cir.1980) (footnotes omitted), clarified, 657 F.2d 814, 816 (6th Cir.) (“Where costs can be readily apportioned, as here, it is reasonable to have [the insured] pay its fair share of defense costs_”), cert. denied, 454 U.S. 1109, 102 S.Ct. 686-87, 70 L.Ed.2d 650 (1981). Based on this reasoning, the court held that the costs of defending a series of asbestos suits must be borne proportionally among insurers according to the period of time that they insured against the risk while people were exposed to the asbestos, with apportionment to the insured party itself according to the time that it was without insurance while people were exposed to its asbestos. Id.\nThis court adopted the reasoning of Forty-Eight Insulations in Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). The Porter court held that, under Louisiana law, liability and the cost of defense must be apportioned between the insured’s two insurers whose policies were in effect during the period in which the underlying plaintiff was exposed to asbestos. Id. More recently, this court considered defense-cost apportionment under Mississippi law in EEOC v. Southern, Publishing Co., 894 F.2d 785 (5th Cir.1990), and reaffirmed its approval of Forty-Eight Insulations. Id. at 791.\nGulf argues that Forty-Eight Insulations and its progeny are inconsistent with Texas law, which interprets contracts like those at issue here to require each insurer whose policy covers any claim in a suit to pay all defense costs in the suit. But in support of this broad statement of Texas law, Gulf only cites Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965), Enserch Corp. v. Shand Moraban & Co., 952 F.2d 1485, 1492 & n. 7 (5th Cir.1992), and Rhodes v. Chicago Ins. Co., 719 F.2d 116, 119 (5th Cir.1983). None of these opinions address latent-injury toxic-exposure claims like those at issue here and in Forty-Eight Insulations. They all concern multiple claims arising from a single incident. The Forty-Eight Insulations court based its decision on this distinction. See 633 F.2d at 1224-25 (citing National Steel Constr. Co.).\nTo our knowledge, no Texas court has ruled on whether defense costs are apportionable when a ready basis for apportionment is apparent. In Porter, this court followed Forty-Eight Insulations to hold that Louisiana courts would apportion defense costs according to exposure time in latent-injury toxic-exposure cases. 641 F.2d at 1145. Notably, both before and after Porter, Louisiana courts have held that an insurer must defend all claims that arise from a single incident when the policy covers at least one claim. See Ellis v. Transcontinental Ins. Co., 619 So.2d 1130, 1134 (La.App.1993); American Auto Ass’n v. Globe Indem. Co., 362 So .2d 1206, 1209 (La.App.1978). Thus, Porter establishes that cases like Globe Indem. Co. do not bar adoption of the Sixth Circuit’s reasoning in Forty-Eight Insula-tions. Heyden and similar cases cited by Gulf are no more an impediment to our extension of Forty-Eight Insulations here than Globe Indem. Co. was to the Porter court. We recognize nothing in Texas law that prevents our interpreting the defense-cost indemnity provisions of the policies here at issue to require pro rata apportionment of defense costs according to the time that each insurer accepted the risk of exposure to Gulfs chemicals. We thus apply Porter’s pro rata apportionment holding to Texas.\nThough we approve the concept of apportioning the cost of an insured’s defense among those liable for exposure risk during the period for which claims are made against the insured, we do not limit the duty of defending the insured. This duty is owed by each and every insurer whose policy is potentially implicated, and is not diminished by the presence of other insurers or by the fact that the insured was without coverage during part of the relevant period. This duty remains absolute until the insurer proves that its policy covers no remaining claims. See, e.g., Abex Corp. v. Maryland Casualty Co., 790 F.2d 119, 129 (D.C.Cir.1986). By our holding, we simply recognize that, in latent-injury toxic-exposure cases like this one, insurers need not provide separate defenses, but may be compelled by the insured to share in the cost of providing a complete defense. It follows that the insured must bear its share of those costs determined by the fraction of the time of injurious exposure in which it lacked coverage.\n2. The Proper Apportionment Formula\nBirmingham argues on cross-appeal that the district court erred by looking beyond the Fowler complaint to determine the relevant exposure period for purposes of defense-cost apportionment. Instead of using the 44-year period alleged in the Fowler complaint, the district court considered affidavits and determined that Gulf only shipped molyoxide to Lone Star from January 20, 1986 to January 12, 1988. From these facts, the court reasoned that Gulf could only be liable to the Fowler plaintiffs between the first and final shipment dates, and apportioned Gulfs Fowler defense costs among Gulf, GenStar, and Birmingham according to the time that each of these parties was responsible for injuries caused by Gulf during this 24-month period. The district court’s judgment cannot withstand our holdings concerning the respective defense duties of ASOMA, INA, and ISLIC. Thus, we offer the following guidance for defense-cost apportionment in this case.\nEach party’s liability for Gulfs defense costs in Fowler is limited by each party’s contract with Gulf. See Porter, 641 F.2d at 1145. Accordingly, the district court must allocate defense-cost liability based upon: 1) who sues Gulf (as opposed to who recovers damages from Gulf); 2) the time period during which plaintiffs allege exposure to molyoxide for which Gulf is liable; and 3) the amount of effort required to defend Gulf against the claims.\nThe present record does not permit a final determination of these factors. We do not know how long Lone Star employees were exposed to molyoxide after each shipment. We do not know whether any molyoxide produced by ASOMA’s Chemical Division remained at Lone Star after Gulf incorporated, but before Gulf first shipped molyoxide to Lone Star on January 20, 1986. We do not know whether the Fowler plaintiffs claim that Gulf is liable as a successor entity for any harm done by products produced at the Freeport plant before Gulf began operating it.\nUntil these matters are finally determined, the costs of Gulfs defense from the inception of the Fowler litigation are to be borne equally by ASOMA, Birmingham, GenStar, INA, ISLIC, and Gulf itself. Upon motion by any party, that party assuming the burden of proof, the district court may order a final allocation of defense costs once those costs stop accumulating.\nC. Gulf’s Claims for Costs, Fees, and Breach of Good Faith Duty\nTexas permits an insured party to recover attorney fees and costs after successfully suing an insurer for breach of a policy. Aetna Fire Underwriters Ins. Co. v. Southwestern Eng’g Co., 626 S.W.2d 99, 102-03 (Tex.App.—Beaumont 1981, writ ref'd n.r.e.) (citing Tex.Civ.Prag. & Rem.Code Ann. § 38.-001 (formerly Y.T.C.SA. art. 2226)). Birmingham, GenStar, INA, and ISLIC all owed a contractual duty to defend Gulf in the underlying state action. They are therefore liable for Gulfs costs and attorney fees in this suit to the extent that Gulf had to sue each party to enforce each contract. We leave allocation of those costs and fees among Gulfs insurers to the district court, noting only that GenStar claims to have offered Gulf the defense-cost indemnity that we uphold in this case. Thus, to the extent that Gulf need not have sued GenStar to obtain a time-based pro rata share of its defense costs from GenStar, the district court is not to make GenStar pay Gulfs costs and fees.\nGulf also presses a tort claim for each of its insurers’ bad faith in refusing to contribute to its defense costs. See Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex.1990). To sustain a claim for breach of an insurer’s duty of good faith and fair dealing, the insured must establish: 1) the absence of a reasonable basis for denying or delaying payment of the claim; and 2) that the insurer knew, or should have known, that no reasonable basis for denying or delaying payment of the claim existed. Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 213 (Tex.1988). Gulfs claims against Birmingham, GenStar, INA, and ISLIC for breach of their respective duties of good faith and fair dealing are to be decided by the district court on remand.\nIII. CONCLUSION\nThe district court is to follow these instructions on remand:\n1. ASOMA, Birmingham, GenStar, INA, and ISLIC owe Gulf and Cheminter the duty to defend Gulf in the Fowler litigation. The parties do not dispute Gulfs choice of counsel, though the district court discussed this point in May 1991, and that choice is affirmed. ASOMA, Birmingham, GenStar, INA, and ISLIC shall each contribute one-sixth of the cost of Gulfs defense in the Fowler litigation, past, present, and future, on an interim basis. The district court may adjust these interim contributions based upon application of the rulings made in this opinion.\n2. When events permit a final allocation of defense costs, that allocation, superseding the interim apportionment fashioned above, shall be assessed as follows:\na. ASOMA shall be fully liable for that portion of defense costs attributable to Gulfs defense against claims for injuries arising from the conduct of Gulf, ASO-MA’s Chemical Division, or ASOMA pri- or to January 18, 1985;\nb. For defense against those claims for injuries arising out of Gulfs conduct between January 17, 1985 and June 1, 1989, Birmingham, GenStar, INA, and ISLIC shall each be responsible for a fraction of Gulfs defense cost calculated by dividing the period of policy coverage of each by the period of total exposure after January 17, 1985 for which Gulf is liable;\nc. The district court may adjust each insurer’s share to account for: 1) variations in the number of Fowler plaintiffs whose claims implicate a particular policy period; or 2) variations in the amount of effort required to defend Gulf against different claims for exposure at different times.\n3. If the state court where the Fowler litigation is being tried makes rulings pertinent to the decisions made or to be made in the present federal action, the district court shall attempt to make its orders consistent therewith.\n4. The district court will decide on remand how to apportion Gulfs court costs among ASOMA, Birmingham, GenStar, INA, and ISLIC, and how to apportion Gulfs reasonable attorney fees for prosecuting this action among Birmingham, GenStar, INA, and ISLIC.\n5. The district court will decide on remand the merits of Gulfs claims against Birmingham, GenStar, INA, and ISLIC for breach of their respective duties of good faith and fair dealing.\nVACATED and REMANDED.\n. As Gulfs parent and co-party, Cheminter joins Gulf in all of its arguments in this case.\n. The district court denied Gulf's claim for attorney fees against ASOMA because New York law, which governs the Stock Purchase Agreement, does not permit the recovery of attorney’s fees unless specifically provided for in the contract. Gulf does not contest this ruling.\n. For the same reasons, the \"expected or intended\" injury clause in Birmingham’s policy does not permit Birmingham to escape liability for Gulf's defense costs.\n. Several other federal appellate courts have approved similar pro rata apportionment of defense cos's. See Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034, 1050-52 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644-45, 71 L.Ed.2d 875 (1982); id. at 1058 (Wald, J., concurring); Budd Co. v. Travelers Indem. Co., 820 F.2d 787, 790-91 (6th Cir.1987); Okada v. MGIC Indem. Corp., 823 F.2d 276, 282 (9th Cir.1986); see also Enron Corp. v. Lawyers Title Ins. Corp., 940 F.2d 307, 311 & n. 6 (8th Cir.1991).\n. Gulf argues that the Sixth Circuit \"flatly rejected” the apportionment rule of Forty-Eight Insulations in Ray Indus., Inc. v. Liberty Mut. Ins. Co., 974 F.2d 754 (6th Cir.1992). We do not even read Ray to limit Forty-Eight Insulations, let alone reject it. Moreover, Porter, not Ray, represents this circuit's view of Forty-Eight Insulations.\n. Unlike the district courts in Forty-Eight Insula-tions and Porter, which were charged with allocating both liability and defense costs among the insured and its insurers, see 633 F.2d at 1225 and 641 F.2d at 1145, the district court here only has authority to decide the latter question. Though the parties here may achieve the most efficient resolution of their defense-cost dispute by consolidating it with the Fowler litigation, we cannot force them to do this. Still, we urge the district court to fashion its orders in this case to be consistent with any relevant orders from the Texas court in Fowler.", "type": "majority", "author": "REAVLEY, Circuit Judge:"}], "attorneys": ["David W. Alexander, James D. Thomas, Squire, Sanders & Dempsey, Columbus, OH, for plaintiffs-appellants cross-appellees.", "Michael E. Warrick, Sheryl Mulliken Fike, Hudgins, Hudgins & Warrick, Houston, TX, for Birmingham Fire Ins.", "Margaret F. Catalano, Howard L. Close, Orgain, Bell & Tucker, Beaumont, TX, Kevin Coughlin, McElroy,, Deutsch & Mulvaney, Morristown, NJ, for International Surplus Lines Ins. Co.", "Joseph P. Witherspoon, III, Jacobus, Boltz & Melamed, Houston, TX, for Associated Metals & Minerals, et al.", "Scott Statham, David H. Brown, Vinson & Elkins, Houston, TX, for General Star In-dem.", "Richard M. Shusterman, Barbara S. Zell-ner, Regina B. Mapes, White & Williams, Philadelphia, PA, for Insurance Co. of North America."], "corrections": "", "head_matter": "GULF CHEMICAL & METALLURGICAL CORPORATION and Cheminter Corporation, Plaintiffs-Appellants Cross-Appellees, v. ASSOCIATED METALS & MINERALS CORPORATION, et al., Defendants, Associated Metals & Minerals Corporation, General Star Indemnity, Insurance Company of North America, a/k/a Cigna Property and Casualty Companies, and International Surplus Lines Insurance Company, Defendants-Appellees, and Birmingham Fire Insurance Company of Pennsylvania, Defendant-Appellee Cross-Appellant.\nNo. 92-7499.\nUnited States Court of Appeals, Fifth Circuit.\nSept. 13, 1993.\nDavid W. Alexander, James D. Thomas, Squire, Sanders & Dempsey, Columbus, OH, for plaintiffs-appellants cross-appellees.\nMichael E. Warrick, Sheryl Mulliken Fike, Hudgins, Hudgins & Warrick, Houston, TX, for Birmingham Fire Ins.\nMargaret F. Catalano, Howard L. Close, Orgain, Bell & Tucker, Beaumont, TX, Kevin Coughlin, McElroy,, Deutsch & Mulvaney, Morristown, NJ, for International Surplus Lines Ins. Co.\nJoseph P. Witherspoon, III, Jacobus, Boltz & Melamed, Houston, TX, for Associated Metals & Minerals, et al.\nScott Statham, David H. Brown, Vinson & Elkins, Houston, TX, for General Star In-dem.\nRichard M. Shusterman, Barbara S. Zell-ner, Regina B. Mapes, White & Williams, Philadelphia, PA, for Insurance Co. of North America.\nBefore POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges."}	POLITZ	REAVLEY	BARKSDALE	1	1	1	0	0	0	1 F.3d 365	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: GULF CHEMICAL & METALLURGICAL CORPORATION and Cheminter Corporation, Plaintiffs-Appellants Cross-Appellees, v. ASSOCIATED METALS & MINERALS CORPORATION, et al., Defendants, Associated Metals & Minerals Corporation, General Star Indemnity, Insurance Company of North America, a/k/a Cigna Property and Casualty Companies, and International Surplus Lines Insurance Company, Defendants-Appellees, and Birmingham Fire Insurance Company of Pennsylvania, Defendant-Appellee Cross-Appellant\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-09-13\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nREAVLEY, Circuit Judge:\nGulf Chemical & Metallurgical Corporation (Gulf) sued its insurers and its former parent corporation for breach of contract and declaratory judgment, alleging that these defendants ignored their contractual obligations to defend Gulf in an ongoing toxic-tort case that features some 2000 plaintiffs. On summary judgment, the district court apportioned Gulfs defense costs among Gulf and two of Gulfs insurers. We vacate the judgment and instruct changed apportionment.\nI. BACKGROUND\nFrom 1973 to 1984, Associated Metals & Minerals Corporation (ASOMA) operated a chemical plant in Freeport, Texas through an unincorporated division (ASOMA’s Chemical Division). ASOMA’s Chemical Division shipped molybdenum trioxide (molyoxide) to Lone Star Steel Corporation (Lone Star) between June 18, 1981 and May 4, 1982.\nASOMA formed Gulf in December 1984 under Texas law, and transferred the assets of ASOMA’s Chemical Division to Gulf on January 17, 1985 in exchange for all of Gulfs outstanding shares. ASOMA then sold Gulfs stock to Cheminter Corporation, under which Gulf has operated the Freeport plant. Gulf shipped molyoxide to Lone Star between January 20, 1986 and January 12, 1988.\nApproximately 5000 former employees of Lone Star have sued approximately 2000 manufacturers and suppliers of chemicals that Lone Star used in its steel mill, claiming that the chemicals caused them various latent bodily injuries from 1946 to 1990. This consolidated litigation is pending in a Morris County, Texas court, styled Fowler et al. v. Union Carbide Corp. et al. (76th Dist.Ct., No. 15477). The Fowler plaintiffs joined Gulf as a defendant on October 16, 1987. Their August 1990 consolidated complaint (the Fowler complaint) alleges that Gulf is strictly liable for their injuries as a consequence of its sale of molyoxide to Lone Star.\nGulf filed this diversity suit in federal court to enforce the contractual obligations of various parties to pay for Gulfs defense in the Fowler litigation. These parties include ASOMA and four of Gulfs general comprehensive liability (GCL) insurers: International Surplus Lines Insurance Company (ISL-IC), General Star Indemnity Company (GenStar), Birmingham Fire and Insurance Company of Pennsylvania (Birmingham), and Insurance Company of North America (INA).\nIn the January 18, 1985 Stock Purchase Agreement, ASOMA agreed\nto indemnify [Cheminter] and Gulf and hold each of them harmless from and against any and all liabilities and obligations arising from the conduct by Gulf [or ASOMA’s Chemical Division] or [ASO-MA] prior to [January 18, 1985], or arising from the ownership, possession or use pri- or to [January 18, 1985] of the assets employed in [the business of Gulf or ASO-MA’s Chemical Division.]\nThe indemnity agreement entitles Gulf to “reasonable legal and other costs incurred in defending against or investigating any claim of liability.”\nISLIC provided Gulf GCL coverage from January 17,1985 to January 17,1986. GenS-tar provided Gulf GCL coverage from January 17, 1986 to July 1, 1986. Birmingham provided Gulf GCL coverage from June 1, 1987 to June 1, 1988. INA provided Gulf GCL coverage from June 1, 1988 to June 1, 1989. The policies of ISLIC, GenStar, and Birmingham all provide:\nthe [insurer] shall have the right and duty to defend any suit against the insured seeking damages on account of ... bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent....\nINA’s policy provides:\n[INA] will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. [INA] will have the right and duty to defend any “suit” seeking those damages.\nGulfs GCL insurer from July 1, 1986 to July 1, 1987 did not agree to defend or indemnify Gulf for claims made subsequent to the term of the policy, and Gulf has not sued that insurer.\nThe district court disposed of Gulfs entire contract suit for monetary and declaratory relief by summary judgment, and explained its judgment in a series of orders. The court dismissed Gulfs claims against ASOMA after finding it “highly unlikely” that the Fowler plaintiffs are suing Gulf for the molyoxide shipments made by ASOMA’s Chemical Division.\nAs for Gulfs insurers, the court held that “the [Fowler plaintiffs’] allegations of bodily injury resulting from continuous exposure to chemicals triggers a duty of defense by the terms of each policy.” However, the court held that an “expected or intended” injury exclusion in INA’s policy excuses INA from defending Gulf. See Gulf Chem. & Metallurgical Corp. v. Associated Metals and Minerals Corp., 765 F.Supp. 375, 376 (S.D.Tex.1991). The court also held that ISLIC owes Gulf no duty of defense because ISLIC’s policy expired on January 17, 1986, three days before Gulf first shipped molyoxide to Lone Star.\nThe district court then read our precedent to require coverage-time-based proration of the defense costs among GenStar, Birmingham, and Gulf itself, because Gulf was essentially self-insured between July 1, 1986 and June 1, 1987. The court held that “the relevant exposure period with respect to [Gulf] and its insurers is January 20, 1986 to January 12, 1988,” the dates of Gulfs first and last molyoxide shipments to Lone Star.\nGulf appeals, claiming that the district court erred by: 1) dismissing INA, ISLIC, and ASOMA; 2) requiring Gulf to contribute to the costs of its defense; and 3) dismissing Gulfs claims for attorney fees and breach of the duty of good-faith dealing. Birmingham cross-appeals, claiming that the district court’s apportionment formula is erroneous.\nII. ANALYSIS\nWe review the district court’s summary judgment de novo, reviewing the record evidence in the light most favorable to the party against whom the motion is made. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). New York law governs our interpretation of the Stock Purchase Agreement, and no party argues that the district court erred by interpreting the various insurance policies according to Texas law.\nA. The District Court’s Dismissal of ASO-MA, ISLIC, and INA\nGulf argues that the record does not support the district court’s summary judgment in favor of ASOMA, INA, or ISLIC. We agree, and find Gulf entitled, for different reasons, to recovery against ASOMA, INA, and ISLIC.\n1. New York Law and ASOMA\nIn the Stock Purchase Agreement, ASOMA agreed to pay all “reasonable legal and other costs incurred in defending against or investigating any claim of liability” made against Gulf arising from the conduct of Gulf or ASOMA prior to January 18, 1985. The Fowler plaintiffs have sued Gulf for damages from their exposure to toxic chemicals between 1946 and 1990.\nGoing beyond the allegations in the Fowler complaints, the district court requested evidence which it later used to determine that Gulf should not have been sued for conduct prior to the acquisition by Cheminter. But whether Gulf should have been sued is not the issue. Gulf was sued, and the fact that Gulf may ultimately prevail in the underlying actions insofar as they allege exposure to Gulfs products prior to 1985 does not abrogate ASOMA’s duty to defend. See Starobin v. Randolph Computer Corp., 689 F.Supp. 323, 327 (S.D.N.Y.1988) (“It is not necessary that an indemnitee have sustained actual damages in the main action in order to be entitled to enforce an agreement as to indemnification for attorneys’ fees.”).\nBy effectively limiting ASOMA’s defense-cost indemnity obligation to colorable claims, the district court narrowed the coverage of the indemnity provision in contravention of governing New York law. See Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 571 N.Y.S.2d 672, 674, 575 N.E.2d 90, 92 (1991) (“the duty to defend is broader than the duty to indemnify” and “an insurer may be contractually bound to defend even though it may not ultimately be bound to pay”). By the terms of the Stock Purchase Agreement, ASOMA must indemnify Gulf for the cost of litigating ultimate liability, like that described in Starobin and Fitzpatrick.\n2. Texas Law and INA and ISLIC\nUnder Texas Law, insurance policies are construed as are contracts generally, and must be interpreted to effectuate the intent of the parties at the time the contracts were formed. Glover v. National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex.1977). When the words of a policy are unambiguous, they are to be given their plain, ordinary, and generally accepted meaning, unless the policy clearly indicates that the contractual terms have been used in a different or technical sense. Puckett v. United States Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984). However, when the language of a policy is susceptible to more than one construction, the “polic[y] should be construed strictly against the insurer and liberally in favor of the insured.” Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex.1987). And where the question of interpretation “involves an exception or limitation on [the insurer’s] liability under the policy, an even more stringent construction is required.” Id.\nUnder Texas law, an insurer’s duty to defend “is determined by the allegations of the petition when considered in light of the policy provisions without reference to the truth or falsity of such allegations.” Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973) (emphasis added). “The duty arises when a third party sues the insured on allegations that, if taken as true, potentially state a cause of action within the terms of the policy.” Continental Sav. Ass’n v. United States Fidelity & Guar. Co., 762 F.2d 1239, 1243 (5th Cir.) (emphasis in original), opinion amended on other grounds, 768 F.2d 89 (5th Cir.1985).\nThe duty to defend is broader than the duty to indemnify. Colony Ins. Co. v. H.R.K., Inc., 728 S.W.2d 848, 850 (Tex.App.—Dallas 1987, no writ); see generally BarRY R. Ostrager & Thomas R. Newman, HANDBOOK ON INSURANCE COVERAGE DISPUTES § 5.02 (5th ed. 1991). As one court teaches:\nIn Texas, the duty to defend and duty to indemnify are distinct and separate duties creating distinct and separate causes of action. Texas courts follow the “Eight Corners” or “Complaint Allegation” rule when determining the duty to defend action. This rule requires the trier of fact to examine only the allegations in the [underlying] complaint and the insurance policy in determining whether a duty to defend exists. The duty to defend is not affected by facts ascertained before suit, developed in the process of the litigation, or by the ultimate outcome of the suit.\nAmerican Alliance Ins. Co. v. Frito-Lay, Inc., 788 S.W.2d 152,153-54 (Tex.App.—Dallas 1990, writ dism’d) (emphasis added and citations omitted).\na. INA\nThe district court summarily excused INA from its contractual duty to defend after finding that Gulf knew, prior to the effective date of the INA policy, that it had been named as a defendant in Fowler and reasonably expected that more claims would be asserted against it in that suit. The court held that Gulfs knowledge invoked the INA policy exclusion for “ ‘bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” See 765 F.Supp. at 376.\nINA contends that the court correctly read its policy, because one cannot insure against liability known at the policy’s inception. INA stresses that both Texas law and public policy require some degree of “fortuity” of loss and “contingency” of risk in insurance. But INA and the district court erroneously conflate expected claims and expected bodily injury. Gulfs liability remains unknown or “contingent” even though it knows that parties will file claims.\nGulf is correct that the relevant question in applying the “expected or intended” exclusion is whether the bodily injury which forms the basis for a claim against Gulfs GCL policy is expected or intended by Gulf, not whether the claim itself was expected or intended. See Hartford Casualty Co. v. Cruse, 938 F.2d 601, 604-05 (5th Cir.1991) (construing a GCL policy similar to INA’s under Texas law and holding that the loss was covered under the policy because “an occurrence takes place where the resulting injury or damage was unexpected and unintended”); see also Alert Centre, Inc. v. Alarm Protection Serv., Inc., 967 F.2d 161, 164 (5th Cir.1992) (reversing summary judgment in favor of insurer after holding that “expected or intended” injury exclusion only excludes an injury “which the insured intended, not one which the insured caused, however intentional the injury-producing act”) (quoting Breland v. Schilling, 550 So.2d 609, 611 (La.1989)).\nIn City of Johnstown, N.Y. v. Bankers Standard Ins. Co., 877 F.2d 1146 (2d Cir.1989), the Second Circuit considered a similar case, and held an “expected or intended” injury exclusion inapplicable, even when the insured had reason to expect a claim to be brought against it, id. at 1151, as long as the insured had neither expected nor intended the underlying injury:\n[Wjhat makes injuries or damages expected or intended ... are the knowledge and intent of the insured. It is not enough that an insured was warned that damages might ensue from its actions, or that, once warned, an insured decided to take a calculated risk and proceed as before. Recovery will be barred only if the insured intended the damages, or if it can be said that the damages were, in a broader sense, “intended” by the insured because the insured knew that the damages would flow directly and immediately from its intentional act.\nId. at 1150 (citations omitted). No difference between insurance law in New York and Texas renders this reasoning inapplicable here. Moreover, according to the Texas Supreme Court,\nwe must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not itself unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties[] intent.\nBarnett, 723 S.W.2d at 666 (quoting Glover, 545 S.W.2d at 761) (emphasis added). Gulfs urged construction — that the “expected or intended” injury clause should only exclude expected or intended injuries, and not expected or intended claims — is “not itself unreasonable,” particularly in light of the fact that INA could have easily learned of the Fowler litigation and crafted a specific exclusion for future claims arising from that litigation.\nb. ISLIC\nThe district court held that ISLIC need not contribute to Gulfs defense because ISLIC’s policy expired before Gulf first shipped molyoxide to Lone Star. This holding contravenes American Alliance, which forbids consideration of facts other than those in a complaint to determine whether a duty to defend exists. See 788 S.W.2d at 153-54. The Fowler plaintiffs base their claims on exposure to Gulfs chemicals from 1946 to 1990. The later-discovered fact that Gulf did not ship molyoxide to Lone Star until January 20, 1986 is irrelevant under American Alliance. The district court’s judgment presupposes that Gulf cannot be held liable, as a matter of law, for what happened to the Fowler plaintiffs before January 20, 1986, but this question was not before the district court.\nISLIC counters that State Farm Fire & Casualty Co. v. Wade, 827 S.W.2d 448 (Tex.App.—Corpus Christi 1992, writ denied) represents an exception to the rule announced in American Alliance. See also Gonzales v. American States Ins. Co., 628 S.W.2d 184, 187 (Tex.App.—Corpus Christi 1982); Cook v. Ohio Casualty Ins. Co., 418 S.W.2d 712, 714-15 (Tex.Civ.App.—Texarkana 1967, no writ). But the exception represented by these cases does not help ISLIC; the cases only teach that a court may look outside a complaint to determine coverage. Here, the district court looked outside the Fowler plaintiffs’ claims to determine Gulfs liability, and even the authorities cited by ISLIC proscribe this. Wade, 827 S.W.2d at 451; Gonzales, 628 S.W.2d at 187; Cook, 418 S.W.2d at 714-15. It may well be determined in the Fowler litigation that no injury (exposure) can be attributed to Gulf prior to January 20, 1986. That determination would end the participation of ISLIC, as well as of ASOMA, in the defense costs. But it is not presently a determination available to this proceeding.\nB. The DISTRICT CouRt’s Apportionment Formula\nWe come to the dispute over apportionment of costs, among seriatim insurers, to defend against tort claims for injuries developed during long-term exposure to toxic products.\nGulf contends that apportionment of defense costs is inappropriate under Texas law, and that each of its insurers are jointly and severally liable for all of its defense costs, and ASOMA is liable for all of its defense costs attributable to conduct before January 18, 1985. Birmingham disagrees with Gulf, but argues that the district court erred by apportioning defense costs without full knowledge of the relevant facts.\n1. The Existence of Apportionment Under Texas Law\nIn its seminal decision on defense-cost apportionment, the Sixth Circuit teaches:\nAn insurer must bear the entire cost of defense when “there is no \"reasonable means of prorating the costs of defense between the covered and the not-covered items.” National Steel Constr. Co. v. National Union Fire Ins. Co., 14 Wash.App. 573, 543 P.2d 642, 644 (1975). Thus, in the typical situation, suit will be brought as the result of a single accident, but only some of the damages sought will be covered under the insurance policy. In such cases, apportioning defense costs between the insured claim and the uninsured claim is very difficult. As a result, courts impose the full cost of defense on the. insurer.\nThese considerations do not apply where defense costs can be readily apportioned. The duty to defend arises solely under contract. An insurer contracts to pay the entire cost of defending a claim which has arisen within the policy period. The insurer has not contracted to pay defense costs for occurrences which took place outside the policy period. Where the distinction can be readily made, the insured must pay its fair share for the defense of non-covered risk.\nInsurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1224-25 (6th Cir.1980) (footnotes omitted), clarified, 657 F.2d 814, 816 (6th Cir.) (“Where costs can be readily apportioned, as here, it is reasonable to have [the insured] pay its fair share of defense costs_”), cert. denied, 454 U.S. 1109, 102 S.Ct. 686-87, 70 L.Ed.2d 650 (1981). Based on this reasoning, the court held that the costs of defending a series of asbestos suits must be borne proportionally among insurers according to the period of time that they insured against the risk while people were exposed to the asbestos, with apportionment to the insured party itself according to the time that it was without insurance while people were exposed to its asbestos. Id.\nThis court adopted the reasoning of Forty-Eight Insulations in Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). The Porter court held that, under Louisiana law, liability and the cost of defense must be apportioned between the insured’s two insurers whose policies were in effect during the period in which the underlying plaintiff was exposed to asbestos. Id. More recently, this court considered defense-cost apportionment under Mississippi law in EEOC v. Southern, Publishing Co., 894 F.2d 785 (5th Cir.1990), and reaffirmed its approval of Forty-Eight Insulations. Id. at 791.\nGulf argues that Forty-Eight Insulations and its progeny are inconsistent with Texas law, which interprets contracts like those at issue here to require each insurer whose policy covers any claim in a suit to pay all defense costs in the suit. But in support of this broad statement of Texas law, Gulf only cites Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965), Enserch Corp. v. Shand Moraban & Co., 952 F.2d 1485, 1492 & n. 7 (5th Cir.1992), and Rhodes v. Chicago Ins. Co., 719 F.2d 116, 119 (5th Cir.1983). None of these opinions address latent-injury toxic-exposure claims like those at issue here and in Forty-Eight Insulations. They all concern multiple claims arising from a single incident. The Forty-Eight Insulations court based its decision on this distinction. See 633 F.2d at 1224-25 (citing National Steel Constr. Co.).\nTo our knowledge, no Texas court has ruled on whether defense costs are apportionable when a ready basis for apportionment is apparent. In Porter, this court followed Forty-Eight Insulations to hold that Louisiana courts would apportion defense costs according to exposure time in latent-injury toxic-exposure cases. 641 F.2d at 1145. Notably, both before and after Porter, Louisiana courts have held that an insurer must defend all claims that arise from a single incident when the policy covers at least one claim. See Ellis v. Transcontinental Ins. Co., 619 So.2d 1130, 1134 (La.App.1993); American Auto Ass’n v. Globe Indem. Co., 362 So .2d 1206, 1209 (La.App.1978). Thus, Porter establishes that cases like Globe Indem. Co. do not bar adoption of the Sixth Circuit’s reasoning in Forty-Eight Insula-tions. Heyden and similar cases cited by Gulf are no more an impediment to our extension of Forty-Eight Insulations here than Globe Indem. Co. was to the Porter court. We recognize nothing in Texas law that prevents our interpreting the defense-cost indemnity provisions of the policies here at issue to require pro rata apportionment of defense costs according to the time that each insurer accepted the risk of exposure to Gulfs chemicals. We thus apply Porter’s pro rata apportionment holding to Texas.\nThough we approve the concept of apportioning the cost of an insured’s defense among those liable for exposure risk during the period for which claims are made against the insured, we do not limit the duty of defending the insured. This duty is owed by each and every insurer whose policy is potentially implicated, and is not diminished by the presence of other insurers or by the fact that the insured was without coverage during part of the relevant period. This duty remains absolute until the insurer proves that its policy covers no remaining claims. See, e.g., Abex Corp. v. Maryland Casualty Co., 790 F.2d 119, 129 (D.C.Cir.1986). By our holding, we simply recognize that, in latent-injury toxic-exposure cases like this one, insurers need not provide separate defenses, but may be compelled by the insured to share in the cost of providing a complete defense. It follows that the insured must bear its share of those costs determined by the fraction of the time of injurious exposure in which it lacked coverage.\n2. The Proper Apportionment Formula\nBirmingham argues on cross-appeal that the district court erred by looking beyond the Fowler complaint to determine the relevant exposure period for purposes of defense-cost apportionment. Instead of using the 44-year period alleged in the Fowler complaint, the district court considered affidavits and determined that Gulf only shipped molyoxide to Lone Star from January 20, 1986 to January 12, 1988. From these facts, the court reasoned that Gulf could only be liable to the Fowler plaintiffs between the first and final shipment dates, and apportioned Gulfs Fowler defense costs among Gulf, GenStar, and Birmingham according to the time that each of these parties was responsible for injuries caused by Gulf during this 24-month period. The district court’s judgment cannot withstand our holdings concerning the respective defense duties of ASOMA, INA, and ISLIC. Thus, we offer the following guidance for defense-cost apportionment in this case.\nEach party’s liability for Gulfs defense costs in Fowler is limited by each party’s contract with Gulf. See Porter, 641 F.2d at 1145. Accordingly, the district court must allocate defense-cost liability based upon: 1) who sues Gulf (as opposed to who recovers damages from Gulf); 2) the time period during which plaintiffs allege exposure to molyoxide for which Gulf is liable; and 3) the amount of effort required to defend Gulf against the claims.\nThe present record does not permit a final determination of these factors. We do not know how long Lone Star employees were exposed to molyoxide after each shipment. We do not know whether any molyoxide produced by ASOMA’s Chemical Division remained at Lone Star after Gulf incorporated, but before Gulf first shipped molyoxide to Lone Star on January 20, 1986. We do not know whether the Fowler plaintiffs claim that Gulf is liable as a successor entity for any harm done by products produced at the Freeport plant before Gulf began operating it.\nUntil these matters are finally determined, the costs of Gulfs defense from the inception of the Fowler litigation are to be borne equally by ASOMA, Birmingham, GenStar, INA, ISLIC, and Gulf itself. Upon motion by any party, that party assuming the burden of proof, the district court may order a final allocation of defense costs once those costs stop accumulating.\nC. Gulf’s Claims for Costs, Fees, and Breach of Good Faith Duty\nTexas permits an insured party to recover attorney fees and costs after successfully suing an insurer for breach of a policy. Aetna Fire Underwriters Ins. Co. v. Southwestern Eng’g Co., 626 S.W.2d 99, 102-03 (Tex.App.—Beaumont 1981, writ ref'd n.r.e.) (citing Tex.Civ.Prag. & Rem.Code Ann. § 38.-001 (formerly Y.T.C.SA. art. 2226)). Birmingham, GenStar, INA, and ISLIC all owed a contractual duty to defend Gulf in the underlying state action. They are therefore liable for Gulfs costs and attorney fees in this suit to the extent that Gulf had to sue each party to enforce each contract. We leave allocation of those costs and fees among Gulfs insurers to the district court, noting only that GenStar claims to have offered Gulf the defense-cost indemnity that we uphold in this case. Thus, to the extent that Gulf need not have sued GenStar to obtain a time-based pro rata share of its defense costs from GenStar, the district court is not to make GenStar pay Gulfs costs and fees.\nGulf also presses a tort claim for each of its insurers’ bad faith in refusing to contribute to its defense costs. See Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex.1990). To sustain a claim for breach of an insurer’s duty of good faith and fair dealing, the insured must establish: 1) the absence of a reasonable basis for denying or delaying payment of the claim; and 2) that the insurer knew, or should have known, that no reasonable basis for denying or delaying payment of the claim existed. Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 213 (Tex.1988). Gulfs claims against Birmingham, GenStar, INA, and ISLIC for breach of their respective duties of good faith and fair dealing are to be decided by the district court on remand.\nIII. CONCLUSION\nThe district court is to follow these instructions on remand:\n1. ASOMA, Birmingham, GenStar, INA, and ISLIC owe Gulf and Cheminter the duty to defend Gulf in the Fowler litigation. The parties do not dispute Gulfs choice of counsel, though the district court discussed this point in May 1991, and that choice is affirmed. ASOMA, Birmingham, GenStar, INA, and ISLIC shall each contribute one-sixth of the cost of Gulfs defense in the Fowler litigation, past, present, and future, on an interim basis. The district court may adjust these interim contributions based upon application of the rulings made in this opinion.\n2. When events permit a final allocation of defense costs, that allocation, superseding the interim apportionment fashioned above, shall be assessed as follows:\na. ASOMA shall be fully liable for that portion of defense costs attributable to Gulfs defense against claims for injuries arising from the conduct of Gulf, ASO-MA’s Chemical Division, or ASOMA pri- or to January 18, 1985;\nb. For defense against those claims for injuries arising out of Gulfs conduct between January 17, 1985 and June 1, 1989, Birmingham, GenStar, INA, and ISLIC shall each be responsible for a fraction of Gulfs defense cost calculated by dividing the period of policy coverage of each by the period of total exposure after January 17, 1985 for which Gulf is liable;\nc. The district court may adjust each insurer’s share to account for: 1) variations in the number of Fowler plaintiffs whose claims implicate a particular policy period; or 2) variations in the amount of effort required to defend Gulf against different claims for exposure at different times.\n3. If the state court where the Fowler litigation is being tried makes rulings pertinent to the decisions made or to be made in the present federal action, the district court shall attempt to make its orders consistent therewith.\n4. The district court will decide on remand how to apportion Gulfs court costs among ASOMA, Birmingham, GenStar, INA, and ISLIC, and how to apportion Gulfs reasonable attorney fees for prosecuting this action among Birmingham, GenStar, INA, and ISLIC.\n5. The district court will decide on remand the merits of Gulfs claims against Birmingham, GenStar, INA, and ISLIC for breach of their respective duties of good faith and fair dealing.\nVACATED and REMANDED.\n. As Gulfs parent and co-party, Cheminter joins Gulf in all of its arguments in this case.\n. The district court denied Gulf's claim for attorney fees against ASOMA because New York law, which governs the Stock Purchase Agreement, does not permit the recovery of attorney’s fees unless specifically provided for in the contract. Gulf does not contest this ruling.\n. For the same reasons, the \"expected or intended\" injury clause in Birmingham’s policy does not permit Birmingham to escape liability for Gulf's defense costs.\n. Several other federal appellate courts have approved similar pro rata apportionment of defense cos's. See Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034, 1050-52 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644-45, 71 L.Ed.2d 875 (1982); id. at 1058 (Wald, J., concurring); Budd Co. v. Travelers Indem. Co., 820 F.2d 787, 790-91 (6th Cir.1987); Okada v. MGIC Indem. Corp., 823 F.2d 276, 282 (9th Cir.1986); see also Enron Corp. v. Lawyers Title Ins. Corp., 940 F.2d 307, 311 & n. 6 (8th Cir.1991).\n. Gulf argues that the Sixth Circuit \"flatly rejected” the apportionment rule of Forty-Eight Insulations in Ray Indus., Inc. v. Liberty Mut. Ins. Co., 974 F.2d 754 (6th Cir.1992). We do not even read Ray to limit Forty-Eight Insulations, let alone reject it. Moreover, Porter, not Ray, represents this circuit's view of Forty-Eight Insulations.\n. Unlike the district courts in Forty-Eight Insula-tions and Porter, which were charged with allocating both liability and defense costs among the insured and its insurers, see 633 F.2d at 1225 and 641 F.2d at 1145, the district court here only has authority to decide the latter question. Though the parties here may achieve the most efficient resolution of their defense-cost dispute by consolidating it with the Fowler litigation, we cannot force them to do this. Still, we urge the district court to fashion its orders in this case to be consistent with any relevant orders from the Texas court in Fowler.\n[END_CASE]", "role": "user" } ]
10,511,232	COLONIAL PENN INSURANCE COMPANY, Plaintiff-Appellee, v. MARKET PLANNERS INSURANCE AGENCY, INC. and Jimmy Whited, Defendants-Appellants	Colonial Penn Insurance v. Market Planners Insurance Agency, Inc.	1993-09-14	No. 92-1890	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges."], "parties": ["COLONIAL PENN INSURANCE COMPANY, Plaintiff-Appellee, v. MARKET PLANNERS INSURANCE AGENCY, INC. and Jimmy Whited, Defendants-Appellants."], "opinions": [{"text": "PER CURIAM:\nI. FACTS AND PROCEDURAL HISTORY\nIn 1985, the plaintiff, Colonial Penn Insurance Company (Colonial Penn), through its administering agent, American Owners and Operators (AOO), contracted with the defendants, Market Planners Insurance Agency and its corporate representative Jimmy Whited (hereinafter collectively referred to as Market Planners), for it to sell Colonial Penn’s insurance policies. The parties’ agreement provided that Market Planners would sell the insurance policies and collect the .premium payments and then remit the collected premiums to AOO, which in turn would remit them to Colonial Penn. Commencing in 1986, Colonial Penn and AOO’s relationship deteriorated, and ultimately 'so did the relationship between Colonial Penn and Market Planners.\nColonial Penn sued Market Planners in October 1991 alleging that Market Planners collected premium payments totalling approximately $150,000, but did not remit them. In response, Market Planners asserted that the affirmative defense of statute of limitations barred Colonial Penn’s claim in that Colonial Penn knew or should have known of the facts giving rise to its claim in 1986. Colonial Penn countered that it did not know of Market Planners’ alleged fraud until November 1989 or later, because Market Planners refused to account for the premium payments that it had collected.\nIn a bench trial, the district court concluded that there was an agency relationship between Market Planners and its principal, Colonial Penn; and that such relationship imposed a fiduciary duty on Market Planners to disclose to Colonial Penn facts material to the transactions between the parties, which Market Planners failed to do. The district court then held that the statute of limitations did not bar Colonial Penn from bringing its cause of action and awarded it $158,067.81 in damages and prejudgment interest.\nII. DISCUSSION\n1. Colonial Penn Met its Pleading Burden\nThe district court held that the statute of limitations did not bar Colonial Penn’s suit because Market Planners fraudulently concealed facts which were material to the cause of action, and that under Texas law a fiduciary’s failure to disclose facts material to the relationship tolls the statute of limitations. On appeal, Market Planners takes issue with this ruling because, it contends Colonial Penn pleaded neither the “discovery rule” nor fraudulent concealment in avoidance of the statute of limitations defense asserted by Market Planners. Next, Market Planners contends that the district court ignored evidence that Colonial Penn knew or should have known of its cause of action in 1986.\nWe hold that Colonial Penn met its pleading burden in countering Market Planners’ affirmative defense of statute of limitations. We begin by noting that, “[w]hile Texas law does supply the applicable statute of limitations in this diversity case, ‘federal law governs the pleading requirements of a case in federal court.’ ” Wellborn v. Sears, Roebuck & Co., 970 F.2d 1420, 1425 (5th Cir.1992) (quoting Simpson v. James, 903 F.2d 372, 375 (5th Cir.1990)). As to Colonial Penn’s failure to plead the discovery rule, the law is clear that, while the discovery rule must be specifically pleaded in Texas State Court to avoid the statute of limitations, it need not be specifically pleaded in federal court. Wellborn, 970 F.2d at 1425. Rather, “[u]nder Rule 8 of the Federal Rules of Civil Procedure, it is enough that the plaintiff plead sufficient facts to put the defense on notice of the theories on which the complaint is based.” Simpson, 903 F.2d at 375.\nIn the present case, the district court found that Colonial Penn alleged facts sufficient to give notice of its reliance on the discovery rule, namely, that it did not discover its cause of action sooner because Market Planners concealed information and refused to account for premiums payable to Colonial Penn. After reviewing the pleadings, we see no reason to disturb the district court’s conclusion that Colonial Penn’s pleadings notified Market Planners of its intended reliance on the discovery rule. For the same reason, we hold that Market Planners was notified of Colonial Penn’s intent to rely on fraudulent concealment.\n2. Findings of Fact and Conclusions of Law\nAs for its second theory, Market Planners argues that the trial court ignored evidence that Colonial Penn knew or should have known of its potential cause of action against Market Planners five years before it filed suit. Because the district court made inconsistent statements of the law, we are unable to determine whether the district court properly applied it, and therefore we remand on this issue.\nMarket Planners presented evidence at trial that Colonial Penn knew or should have known of the facts surrounding its cause of action in 1986, and therefore, under the “discovery rule” in Texas, the statute of limitations barred Colonial Penn’s suit, which was not filed until October 1991. In response to this argument, the district' court in its oral findings of facts and conclusions of law stated:\n[a]s I indicated at the beginning of my remarks, there is some plausibility to that position, and I think that a reasonable judge could accept that argument [that Colonial Penn knew or should have known of the facts establishing its cause of action in 1986], but from the cases that I have already cited as well as others that I have not, it seems to me that that is not the law in Texas when one is dealing with a fiduciary relationship....\nThe district court apparently concluded instead that, under Texas law, the statute of limitations on an action by a principal against a fiduciary is tolled until the fiduciary discloses to the principal the material facts establishing its cause of action, regardless of the principal’s knowledge.\nLater, the district court stated “we have an apparent failure on the part of the .agent to make the kinds of full and complete disclosure that are contemplated by a fiduciary relationship or confidential relationship and therefore limitations do[es] not begin to run until that disclosure is made or until the client or in this instance the principal otherwise actually knows that there is something to sue for.”\nThe district court cited the Texas Supreme Court case of Willis v. Maverick, 760 S.W.2d 642 (Tex.1988) as support for its conclusion that limitations had not run. Apparently, the district court understood Willis to hold that the limitations period does not begin to run until the fiduciary fully discloses the facts that it had a duty to disclose, and that would have alerted the principal to its cause of action, regardless of the principal’s knowledge. Accordingly, the trial court presumably believed it was not relevant whether Colonial Penn knew or should have known of facts alerting it to its potential cause of action against Market Planners in 1986.\nIf that was the district court’s understanding of Texas law based on Willis, we hold it misinterpreted the holding in Willis. In Willis, the Texas Supreme Court held that the statute of limitations does not begin to run in an attorney malpractice suit until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts forming his cause of action. Willis, 760 S.W.2d at 646. It also stated in dicta that fraudulent concealment tolls the statute of limitations until the tor-tious conduct is discovered, but that the plaintiff waived the issue by not alleging it in the trial court. In our view, all the court in Willis did is merely restate the long-established “discovery rule” for tolling limitations, and apply it in the attorney malpractice context based on the fiduciary nature of the attorney-client relationship.\nOther Texas cases make clear that fraudulent concealment does not trump the discovery rule, but is merely a factor to consider in determining when a plaintiff in a fiduciary relationship knew or should have known of the facts giving rise to its cause of action. As succinctly stated by the Texas Supreme Court, “[t]he estoppel effect of fraudulent concealment ends when a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action. Knowledge of such facts is in law equivalent to knowledge of the cause of action. ” Borderlon v. Peck, 661 S.W.2d 907 (Tex.1983) (emphasis added); See also Seibert v. General Motors Corp., 853 S.W.2d 773 (Tex.App.—Houston [14th Dist] 1993) (“[E]ven where the [fraudulent concealment] doctrine is invoked, a defendant is estopped from relying on the limitations defense only until such time that the party either learns of the right of action, or should have learned of the right by exercising reasonable diligence.”); Allen v. American Petrofina, Inc., 837 S.W.2d 415, 419 (Tex.App.—Beaumont 1992, error granted (Tex.1993)) (Limitations “is tolled until the party ... learns of the right of action or should have learned of the right of action through the exercise of reasonable diligence — provided that fraudulent concealment is involved.”).\nIn the present case, the district court admitted that it was at least plausible that Colonial Penn knew of the facts giving rise to its claim against Market Planners in 1986. Our reading of Texas law regarding the “discovery rule” and the estoppel effect of fraudulent concealment by the fiduciary leads' us to the inescapable conclusion that Texas law does not allow a principal to ignore its knowledge of a possible cause of action against a fiduciary until the fiduciary itself provides information which would reveal the principal’s claim.\nIII. CONCLUSION\nThe touchstone of our analysis under Fed.R.Civ.P. 52(a) is “[w]hether we, as an appellate court, can obtain a ‘full understanding of the issues on appeal.’ ” Chandler v. City of Dallas, 958 F.2d 85, 90 (5th Cir.1992). To conduct a just and orderly review of those issues, “[w]e must understand not only the factual, but also the legal reasoning of the district court_” Mat 89. In the present case, the district court, in its findings of fact and conclusions of law, made inconsistent statements as to the applicable law; and, therefore, it is possible that it misinterpreted Texas law and ignored the significance of the contention that Colonial Penn had outside knowledge of its cause of action against Market Planners in 1986. Because Texas law holds that such knowledge is sufficient to begin the limitations period even in the case of fraudulent concealment, we VACATE the judgment of the district court and REMAND to the district court for a factual finding as to whether and when Colonial Penn learned “of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action.” Borderlon 661 S.W.2d at 907; and for a redetermination of the statute of limitations defense in light thereof.\n. Willis v. Maverick, 760 S.W.2d 642, (Tex.1988), cited by the district court as the basis of its conclusion of law as to the statute of limitations, notes that “breach of the duty to disclose is tantamount to concealment,” Id. at 645, (citing McClung v. Johnson, 620 S.W.2d 644 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r.e.)).\n. In paragraph 89 of its complaint, for example, Colonial Penn alleges that Market Planners breached its duty as an agent and a fiduciary, by \"failing to disclose all material information with respect to the sale of Colonial Penn Policies and the premium arising from those sales, and by failing to account for money received by Market Planners on behalf of plaintiff....”\n. We review a district court's findings of fact for clear error and its conclusions of law de novo. Chandler v. City of Dallas, 958 F.2d 85 (5th Cir.1992).", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Anthony Ieenogle, Deleon, Boggins & Richards, Austin, TX, for defendants-appellants.", "Jerry C. Carter, Jr., Drew, Eckl & Farn-ham, Atlanta, GA, for plaintiff-appellee."], "corrections": "", "head_matter": "COLONIAL PENN INSURANCE COMPANY, Plaintiff-Appellee, v. MARKET PLANNERS INSURANCE AGENCY, INC. and Jimmy Whited, Defendants-Appellants.\nNo. 92-1890\nSummary Calendar.\nUnited States Court of Appeals, Fifth Circuit.\nSept. 14, 1993.\nAnthony Ieenogle, Deleon, Boggins & Richards, Austin, TX, for defendants-appellants.\nJerry C. Carter, Jr., Drew, Eckl & Farn-ham, Atlanta, GA, for plaintiff-appellee.\nBefore HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges."}	HIGGINBOTHAM	SMITH	DeMOSS	1	1	1	0	0	0	1 F.3d 374	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: COLONIAL PENN INSURANCE COMPANY, Plaintiff-Appellee, v. MARKET PLANNERS INSURANCE AGENCY, INC. and Jimmy Whited, Defendants-Appellants\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-09-14\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPER CURIAM:\nI. FACTS AND PROCEDURAL HISTORY\nIn 1985, the plaintiff, Colonial Penn Insurance Company (Colonial Penn), through its administering agent, American Owners and Operators (AOO), contracted with the defendants, Market Planners Insurance Agency and its corporate representative Jimmy Whited (hereinafter collectively referred to as Market Planners), for it to sell Colonial Penn’s insurance policies. The parties’ agreement provided that Market Planners would sell the insurance policies and collect the .premium payments and then remit the collected premiums to AOO, which in turn would remit them to Colonial Penn. Commencing in 1986, Colonial Penn and AOO’s relationship deteriorated, and ultimately 'so did the relationship between Colonial Penn and Market Planners.\nColonial Penn sued Market Planners in October 1991 alleging that Market Planners collected premium payments totalling approximately $150,000, but did not remit them. In response, Market Planners asserted that the affirmative defense of statute of limitations barred Colonial Penn’s claim in that Colonial Penn knew or should have known of the facts giving rise to its claim in 1986. Colonial Penn countered that it did not know of Market Planners’ alleged fraud until November 1989 or later, because Market Planners refused to account for the premium payments that it had collected.\nIn a bench trial, the district court concluded that there was an agency relationship between Market Planners and its principal, Colonial Penn; and that such relationship imposed a fiduciary duty on Market Planners to disclose to Colonial Penn facts material to the transactions between the parties, which Market Planners failed to do. The district court then held that the statute of limitations did not bar Colonial Penn from bringing its cause of action and awarded it $158,067.81 in damages and prejudgment interest.\nII. DISCUSSION\n1. Colonial Penn Met its Pleading Burden\nThe district court held that the statute of limitations did not bar Colonial Penn’s suit because Market Planners fraudulently concealed facts which were material to the cause of action, and that under Texas law a fiduciary’s failure to disclose facts material to the relationship tolls the statute of limitations. On appeal, Market Planners takes issue with this ruling because, it contends Colonial Penn pleaded neither the “discovery rule” nor fraudulent concealment in avoidance of the statute of limitations defense asserted by Market Planners. Next, Market Planners contends that the district court ignored evidence that Colonial Penn knew or should have known of its cause of action in 1986.\nWe hold that Colonial Penn met its pleading burden in countering Market Planners’ affirmative defense of statute of limitations. We begin by noting that, “[w]hile Texas law does supply the applicable statute of limitations in this diversity case, ‘federal law governs the pleading requirements of a case in federal court.’ ” Wellborn v. Sears, Roebuck & Co., 970 F.2d 1420, 1425 (5th Cir.1992) (quoting Simpson v. James, 903 F.2d 372, 375 (5th Cir.1990)). As to Colonial Penn’s failure to plead the discovery rule, the law is clear that, while the discovery rule must be specifically pleaded in Texas State Court to avoid the statute of limitations, it need not be specifically pleaded in federal court. Wellborn, 970 F.2d at 1425. Rather, “[u]nder Rule 8 of the Federal Rules of Civil Procedure, it is enough that the plaintiff plead sufficient facts to put the defense on notice of the theories on which the complaint is based.” Simpson, 903 F.2d at 375.\nIn the present case, the district court found that Colonial Penn alleged facts sufficient to give notice of its reliance on the discovery rule, namely, that it did not discover its cause of action sooner because Market Planners concealed information and refused to account for premiums payable to Colonial Penn. After reviewing the pleadings, we see no reason to disturb the district court’s conclusion that Colonial Penn’s pleadings notified Market Planners of its intended reliance on the discovery rule. For the same reason, we hold that Market Planners was notified of Colonial Penn’s intent to rely on fraudulent concealment.\n2. Findings of Fact and Conclusions of Law\nAs for its second theory, Market Planners argues that the trial court ignored evidence that Colonial Penn knew or should have known of its potential cause of action against Market Planners five years before it filed suit. Because the district court made inconsistent statements of the law, we are unable to determine whether the district court properly applied it, and therefore we remand on this issue.\nMarket Planners presented evidence at trial that Colonial Penn knew or should have known of the facts surrounding its cause of action in 1986, and therefore, under the “discovery rule” in Texas, the statute of limitations barred Colonial Penn’s suit, which was not filed until October 1991. In response to this argument, the district' court in its oral findings of facts and conclusions of law stated:\n[a]s I indicated at the beginning of my remarks, there is some plausibility to that position, and I think that a reasonable judge could accept that argument [that Colonial Penn knew or should have known of the facts establishing its cause of action in 1986], but from the cases that I have already cited as well as others that I have not, it seems to me that that is not the law in Texas when one is dealing with a fiduciary relationship....\nThe district court apparently concluded instead that, under Texas law, the statute of limitations on an action by a principal against a fiduciary is tolled until the fiduciary discloses to the principal the material facts establishing its cause of action, regardless of the principal’s knowledge.\nLater, the district court stated “we have an apparent failure on the part of the .agent to make the kinds of full and complete disclosure that are contemplated by a fiduciary relationship or confidential relationship and therefore limitations do[es] not begin to run until that disclosure is made or until the client or in this instance the principal otherwise actually knows that there is something to sue for.”\nThe district court cited the Texas Supreme Court case of Willis v. Maverick, 760 S.W.2d 642 (Tex.1988) as support for its conclusion that limitations had not run. Apparently, the district court understood Willis to hold that the limitations period does not begin to run until the fiduciary fully discloses the facts that it had a duty to disclose, and that would have alerted the principal to its cause of action, regardless of the principal’s knowledge. Accordingly, the trial court presumably believed it was not relevant whether Colonial Penn knew or should have known of facts alerting it to its potential cause of action against Market Planners in 1986.\nIf that was the district court’s understanding of Texas law based on Willis, we hold it misinterpreted the holding in Willis. In Willis, the Texas Supreme Court held that the statute of limitations does not begin to run in an attorney malpractice suit until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts forming his cause of action. Willis, 760 S.W.2d at 646. It also stated in dicta that fraudulent concealment tolls the statute of limitations until the tor-tious conduct is discovered, but that the plaintiff waived the issue by not alleging it in the trial court. In our view, all the court in Willis did is merely restate the long-established “discovery rule” for tolling limitations, and apply it in the attorney malpractice context based on the fiduciary nature of the attorney-client relationship.\nOther Texas cases make clear that fraudulent concealment does not trump the discovery rule, but is merely a factor to consider in determining when a plaintiff in a fiduciary relationship knew or should have known of the facts giving rise to its cause of action. As succinctly stated by the Texas Supreme Court, “[t]he estoppel effect of fraudulent concealment ends when a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action. Knowledge of such facts is in law equivalent to knowledge of the cause of action. ” Borderlon v. Peck, 661 S.W.2d 907 (Tex.1983) (emphasis added); See also Seibert v. General Motors Corp., 853 S.W.2d 773 (Tex.App.—Houston [14th Dist] 1993) (“[E]ven where the [fraudulent concealment] doctrine is invoked, a defendant is estopped from relying on the limitations defense only until such time that the party either learns of the right of action, or should have learned of the right by exercising reasonable diligence.”); Allen v. American Petrofina, Inc., 837 S.W.2d 415, 419 (Tex.App.—Beaumont 1992, error granted (Tex.1993)) (Limitations “is tolled until the party ... learns of the right of action or should have learned of the right of action through the exercise of reasonable diligence — provided that fraudulent concealment is involved.”).\nIn the present case, the district court admitted that it was at least plausible that Colonial Penn knew of the facts giving rise to its claim against Market Planners in 1986. Our reading of Texas law regarding the “discovery rule” and the estoppel effect of fraudulent concealment by the fiduciary leads' us to the inescapable conclusion that Texas law does not allow a principal to ignore its knowledge of a possible cause of action against a fiduciary until the fiduciary itself provides information which would reveal the principal’s claim.\nIII. CONCLUSION\nThe touchstone of our analysis under Fed.R.Civ.P. 52(a) is “[w]hether we, as an appellate court, can obtain a ‘full understanding of the issues on appeal.’ ” Chandler v. City of Dallas, 958 F.2d 85, 90 (5th Cir.1992). To conduct a just and orderly review of those issues, “[w]e must understand not only the factual, but also the legal reasoning of the district court_” Mat 89. In the present case, the district court, in its findings of fact and conclusions of law, made inconsistent statements as to the applicable law; and, therefore, it is possible that it misinterpreted Texas law and ignored the significance of the contention that Colonial Penn had outside knowledge of its cause of action against Market Planners in 1986. Because Texas law holds that such knowledge is sufficient to begin the limitations period even in the case of fraudulent concealment, we VACATE the judgment of the district court and REMAND to the district court for a factual finding as to whether and when Colonial Penn learned “of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action.” Borderlon 661 S.W.2d at 907; and for a redetermination of the statute of limitations defense in light thereof.\n. Willis v. Maverick, 760 S.W.2d 642, (Tex.1988), cited by the district court as the basis of its conclusion of law as to the statute of limitations, notes that “breach of the duty to disclose is tantamount to concealment,” Id. at 645, (citing McClung v. Johnson, 620 S.W.2d 644 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r.e.)).\n. In paragraph 89 of its complaint, for example, Colonial Penn alleges that Market Planners breached its duty as an agent and a fiduciary, by \"failing to disclose all material information with respect to the sale of Colonial Penn Policies and the premium arising from those sales, and by failing to account for money received by Market Planners on behalf of plaintiff....”\n. We review a district court's findings of fact for clear error and its conclusions of law de novo. Chandler v. City of Dallas, 958 F.2d 85 (5th Cir.1992).\n[END_CASE]", "role": "user" } ]
10,511,290	Audrey Eldon BAGLEY, Petitioner-Appellant, v. James A. COLLINS, Director of Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee	Bagley v. Collins	1993-09-15	No. 92-4236	United States Court of Appeals for the Fifth Circuit	{"judges": ["Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges."], "parties": ["Audrey Eldon BAGLEY, Petitioner-Appellant, v. James A. COLLINS, Director of Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee."], "opinions": [{"text": "EMILIO M. GARZA, Circuit Judge:\nAudrey Eldon Bagley, proceeding pro se, appeals the district court’s denial of his petition for habeas corpus relief under 28 U.S.C. § 2254 (1988). For the reasons set forth below, we affirm.\nI\nOn September 21, 1982, Bagley committed aggravated rape. The victim had returned to her apartment after taking her daughter to school when Bagley — posing as an exterminator — appeared at her door. After entering the victim’s apartment, Bagley donned rubber gloves and began spraying several rooms. Bagley then grabbed the victim from behind, put a knife to her throat, and told her “not to scream or I’ll kill you.” Bagley initially asked for money. He then tied the victim’s hands with string, blindfolded her with several pairs of her child’s shorts, and tied her child’s jump rope around her mouth so that she could not talk. After raping her twice, Bagley tied the victim’s feet together and departed. She struggled free and ran to the window, where she observed the license plate number of Bagley’s vehicle.\nBagley pled guilty to aggravated rape. At the punishment phase of his trial, Bagley offered the testimony of a psychiatrist, Dr. Richard Coons, who testified that Bagley was a manic depressive with a neurotic condition toward women, a condition which required a substantial amount of psychotherapy. Dr. Coons further testified .that Bagley genuinely wanted such treatment.\nOn cross-examination, Dr. Coons was asked the following:\nQ. Now, the basic requirement of a person seeking psychiatric treatment is a willingness to admit there is a problem and a willingness to admit there is a problem and a willingness to work that problem out; is that correct?\nA. It depends on what kind of problem it is.\nQ. Well, Mr. Bagley’s problem. Is that important to have his cooperation?\nA. Yes.\nQ. Would it affect your opinion on whether or not Mr. Bagley has that willingness that’s necessary to get effective treatment if you were aware of whether or not he had been planning a jail break from the Jefferson County Jail?\nMR. CARVER [defense counsel]: Your Honor, we would object. That’s an extraneous matter. It’s not relevant or germane to any issue before the jury.\nTHE COURT: Overruled.\nQ. (BY MR. MILLER [prosecutor]) If Mr. Bagley had written in a letter, “I think we could pull a jail break here in Beaumont if we played our cards right,” and then went on to explain the security procedures at the jail and how they could be circumvented and this letter is dated January 14, 1985, would that show that he was unwilling to cooperate and correct his problems?\nA. I’m not sure what that means. I haven’t discussed it with him. I don’t know whether that’s more of the cry for help business that he’s done many times before.\nQ. If in the same letter he states, “If we didn’t waste anybody they wouldn’t look for us very long, but if we have to — • MR. CARVER: Your Honer, could we just have a running objection to the matters that he’s going into as far as extraneous matters?\nTHE COURT: Yes, sir.\nQ. If he expressed in a letter a willingness to kill the guards who were in charge of watching him to make his escape, would that show he’s unwilling to work with society and in effect cure himself?\nA. I don’t know that I would interpret it that way or certainly that’s not the only interpretation that can be placed on it.\nQ. Is it consistent with that interpretation, however? Could it be consistent with that interpretation?\nA. Yes.\nTrial Transcript vol. 2, at 114-16. No evi-dentiary basis for the referenced letter exists in the record.\nThe jury sentenced Bagley to fifty years imprisonment. His conviction was affirmed by the Texas Court of Appeals. See Bagley v. State, 708 S.W.2d 585 (Tex.App. — Beaumont 1986, rev’d en banc, 776 S.W.2d 582 (Tex.Crim.App.1989)). The Texas Court of Criminal Appeals reversed on the issue of whether the trial court improperly allowed cross-examination regarding extraneous acts, and remanded to the Court of Appeals to determine whether the error was harmless. See Bagley v. State, 776 S.W.2d 582 (Tex. Crim.App.1989). On remand, the Texas Court of Appeals affirmed Bagley’s sentence. After exhausting his state habeas remedies, Bagley filed a petition for habeas relief in the federal district court, pursuant to 28 U.S.C. § 2254 (1988). The district court denied the petition, and Bagley filed a timely notice of appeal.\nII\nBagley contends that the state trial court abused its discretion by allowing the prosecutor to refer to an alleged planned jail escape and Bagley’s willingness to kill guards to effect the escape, during cross-examination of Dr. Coons. See Brief for Bagley at 2-8. Bagley argues that the prosecutor’s remarks unfairly prejudiced his sentencing, thereby depriving him of Due Process under the Fourteenth Amendment. See id. at 9-17. The government contends that the references were proper, and alternatively, that any eiTor in not striking such references from the record would not be a proper ground for granting habeas relief. See Brief for Government at 11-16.\nWe need not decide whether the state trial court abused its discretion by allowing the remarks, as we think it clear that any error which may have occurred did not render Bagley’s trial fundamentally unfair. In the context of a prosecutor’s remarks at trial, we must determine whether such remarks were “so prejudicial that ... the state court trial was rendered fundamentally unfair within the meaning of the Due Process Clause of the Fourteenth Amendment.” Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir.1987) (applying “fundamental fairness” test to claim of improper prosecutorial comments); see also Thomas v. Lynaugh, 812 F.2d 225, 230-31 (5th Cir.) (applying “fundamental fairness” standard to the state trial court’s alleged abuse of discretion in allowing prosecutor to question witness on extraneous acts), cert. denied, 484 U.S. 842, 108 S.Ct. 132, 98 L.Ed.2d 89 (1987).\nWe are aware that a more specific, two-part test applies when determining whether the state’s introduction of extraneous offenses implicates the Due Process Clause. See Story v. Collins, 920 F.2d 1247, 1254 (5th Cir.1991) (holding that extraneous offenses may be admitted into evidence without violating the due process clause if the government: (1) makes a strong showing that the defendant committed the offense; and (2) demonstrates that the extraneous offense is rationally connected with the offense charged). However, we believe Story is distinguishable from our -facts. In our case, the prosecutor only made references to extraneous offenses during cross-examination; no testimony or other evidence tending to establish extraneous offenses was ever admitted by the trial court. Consequently, the trial error, if any, which occurred here is is more akin to the allowance of improper prosecutorial comments, rather than the admission of extraneous offense evidence.\nIn applying the “fundamental fairness” standard, we conclude that while the prosecutor’s references had the potential to unfairly prejudice the jury, they were not a crucial, critical, highly significant factor in the jury’s sentencing decision. At the time of the offense, the statutory penalty for a first-degree felony was five to ninety-nine years or life imprisonment, and a maximum fine of $10,000. See Tex. Penal Code Ann. § 12.32 (Vernon 1974 & Supp.1993). The jury levied no fine, and assessed a mid-range term of fifty years imprisonment. Moreover, the jury considered substantial evidence other than the prosecutor’s references to extraneous acts — e.g., the premeditated nature of the offense and the testimony of four witnesses regarding Bagley’s bad reputation— in determining Bagley’s sentence. Lastly, to the extent that the jury could have eonsid-ered the prosecutor’s remarks to be evidence of extraneous acts, the state trial court gave a limiting instruction, stating that the jury could not consider such “evidence” for “any purpose unless you believe beyond a reasonable doubt that the defendant committed such other offenses, .if any. Even then you may only consider the same in determining the identity of the defendant, or the issues of intent, motive, system, scheme, or design, in connection with this offense, and no other purpose.” Trial Transcript vol. 1, at 19; see Zafiro v. United States, — U.S.-, --, 113 S.Ct. 933, 939,' 122 L.Ed.2d 317 (1993) (stating that “ ‘juries are presumed to follow their instructions’ ” (quoting Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987)). We therefore hold that Bagley’s trial was not rendered fundamentally unfair by the prosecutor’s remarks.\nIll\nFor the assigned reasons, the district court’s judgment denying the petition for habeas corpus relief is AFFIRMED.\n. Bagley apparently believes that the prosecutor's references to extraneous acts during cross-examination was an attempt to offer fake \"other acts\" evidence to show that Bagley acted in conformity with such acts. See Tex.R.Crim.Evid. 404(b) (adopting Fed.R.Evid. 404(b)).\n. A petitioner for habeas corpus relief must \"establish that the trial error was not merely an abuse of discretion, but was so grave as to amount to a denial of his constitutional right to substantive due process: that is, that the error made the trial fundamentally unfair.” Kirkpatrick v. Blackburn, 777 F.2d 272, 279 (5th Cir.1985) (footnotes omitted)), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986).\n.Because Bagley must show the harmfulness of the trial court’s evidentiary ruling to establish a constitutional violation, we need not apply the harmless-error standard recently announced in Brecht v. Abrahamson, — U.S. -, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See id. at —, 113 S.Ct. at 1722 (holding \"that the Kotteakos [v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)] harmless-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type” (emphasis added)); see also Kirkpatrick, 777 F.2d at 280 (stating that where a petitioner for habeas relief \"must show the harmfulness of the error to establish the constitutional violation, subsequent application of a second harmless-error test would be superfluous”).\n. At the time of the offense, aggravated rape was defined as a first-degree felony. See Tex.Penal Code Ann. § 21.03 (Vernon 1974). Former § 21.03 has since been repealed. The offense of aggravated rape is now termed aggravated sexual assault, and remains a first-degree felony. See Tex.Penal Code Ann. § 22.021 (Vernon 1989).\n. During closing argument, the prosecutor emphasized the following:\nWhen you start off with the facts of the crime — and its important to keep sight of some of the particular details of the facts — one is the premeditation of the crime. This isn't a crime of passion or sudden impulse. The defendant went to [the victim’s] apartment. He found an apartment that was apparently occupied by just one person. He was prepared for what he’s going to do. He had a disguise. ' His face was partially bandaged up. He was wearing a cap. He was acting the role of the apartment exterminator and even went through the process of allegedly exterminating the apartment in such a manner and so convincing that [the victim] saw nothing wrong, totally accepted him and opened her door. And you saw how cautious she was initially — looking through the peep hole, checking through the window making sure he was who she thought he was before letting him in the apartment. That’s not a person who has got a problem that gets out of control at the spur of the moment. It’s a person who plans a crime and goes through great detail to plan the crime.\nTrial Transcript vol. 2, at 153-54.\nThe prosecutor’s closing argument encompassed over 700 lines of the record, see id. at 152-85; only ten lines were devoted to Bagley’s alleged escape plans and willingness to kill guards. See id. at 169.\n. See Trial Transcript vol. 2, at 53-58.\n. This instruction mirrors the language of Tex. R.Crim.Evid. 404(b), and is not contested on appeal.\n. In addition to the alleged planned jail break and his willingness to kill guards, Bagley contends that the prosecutor improperly referred to two other extraneous acts — robbery (as Bagley’s other motive) and an application for a false passport. See Brief for Bagley at 7. We hold that these references, even if improper, did not render Bagley’s trial fundamentally unfair for the reasons set forth above.", "type": "majority", "author": "EMILIO M. GARZA, Circuit Judge:"}], "attorneys": ["Audrey Eldon Bagley, pro se.", "Charles Albert Palmer, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellee."], "corrections": "", "head_matter": "Audrey Eldon BAGLEY, Petitioner-Appellant, v. James A. COLLINS, Director of Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.\nNo. 92-4236.\nUnited States Court of Appeals, Fifth Circuit.\nSept. 15, 1993.\nAudrey Eldon Bagley, pro se.\nCharles Albert Palmer, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellee.\nBefore GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges."}	GOLDBERG	HIGGINBOTHAM	EMILIO M. GARZA	1	1	1	0	0	0	1 F.3d 378	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Audrey Eldon BAGLEY, Petitioner-Appellant, v. James A. COLLINS, Director of Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee\nCourt: United States Court of Appeals for the Fifth Circuit\nDate decided: 1993-09-15\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nEMILIO M. GARZA, Circuit Judge:\nAudrey Eldon Bagley, proceeding pro se, appeals the district court’s denial of his petition for habeas corpus relief under 28 U.S.C. § 2254 (1988). For the reasons set forth below, we affirm.\nI\nOn September 21, 1982, Bagley committed aggravated rape. The victim had returned to her apartment after taking her daughter to school when Bagley — posing as an exterminator — appeared at her door. After entering the victim’s apartment, Bagley donned rubber gloves and began spraying several rooms. Bagley then grabbed the victim from behind, put a knife to her throat, and told her “not to scream or I’ll kill you.” Bagley initially asked for money. He then tied the victim’s hands with string, blindfolded her with several pairs of her child’s shorts, and tied her child’s jump rope around her mouth so that she could not talk. After raping her twice, Bagley tied the victim’s feet together and departed. She struggled free and ran to the window, where she observed the license plate number of Bagley’s vehicle.\nBagley pled guilty to aggravated rape. At the punishment phase of his trial, Bagley offered the testimony of a psychiatrist, Dr. Richard Coons, who testified that Bagley was a manic depressive with a neurotic condition toward women, a condition which required a substantial amount of psychotherapy. Dr. Coons further testified .that Bagley genuinely wanted such treatment.\nOn cross-examination, Dr. Coons was asked the following:\nQ. Now, the basic requirement of a person seeking psychiatric treatment is a willingness to admit there is a problem and a willingness to admit there is a problem and a willingness to work that problem out; is that correct?\nA. It depends on what kind of problem it is.\nQ. Well, Mr. Bagley’s problem. Is that important to have his cooperation?\nA. Yes.\nQ. Would it affect your opinion on whether or not Mr. Bagley has that willingness that’s necessary to get effective treatment if you were aware of whether or not he had been planning a jail break from the Jefferson County Jail?\nMR. CARVER [defense counsel]: Your Honor, we would object. That’s an extraneous matter. It’s not relevant or germane to any issue before the jury.\nTHE COURT: Overruled.\nQ. (BY MR. MILLER [prosecutor]) If Mr. Bagley had written in a letter, “I think we could pull a jail break here in Beaumont if we played our cards right,” and then went on to explain the security procedures at the jail and how they could be circumvented and this letter is dated January 14, 1985, would that show that he was unwilling to cooperate and correct his problems?\nA. I’m not sure what that means. I haven’t discussed it with him. I don’t know whether that’s more of the cry for help business that he’s done many times before.\nQ. If in the same letter he states, “If we didn’t waste anybody they wouldn’t look for us very long, but if we have to — • MR. CARVER: Your Honer, could we just have a running objection to the matters that he’s going into as far as extraneous matters?\nTHE COURT: Yes, sir.\nQ. If he expressed in a letter a willingness to kill the guards who were in charge of watching him to make his escape, would that show he’s unwilling to work with society and in effect cure himself?\nA. I don’t know that I would interpret it that way or certainly that’s not the only interpretation that can be placed on it.\nQ. Is it consistent with that interpretation, however? Could it be consistent with that interpretation?\nA. Yes.\nTrial Transcript vol. 2, at 114-16. No evi-dentiary basis for the referenced letter exists in the record.\nThe jury sentenced Bagley to fifty years imprisonment. His conviction was affirmed by the Texas Court of Appeals. See Bagley v. State, 708 S.W.2d 585 (Tex.App. — Beaumont 1986, rev’d en banc, 776 S.W.2d 582 (Tex.Crim.App.1989)). The Texas Court of Criminal Appeals reversed on the issue of whether the trial court improperly allowed cross-examination regarding extraneous acts, and remanded to the Court of Appeals to determine whether the error was harmless. See Bagley v. State, 776 S.W.2d 582 (Tex. Crim.App.1989). On remand, the Texas Court of Appeals affirmed Bagley’s sentence. After exhausting his state habeas remedies, Bagley filed a petition for habeas relief in the federal district court, pursuant to 28 U.S.C. § 2254 (1988). The district court denied the petition, and Bagley filed a timely notice of appeal.\nII\nBagley contends that the state trial court abused its discretion by allowing the prosecutor to refer to an alleged planned jail escape and Bagley’s willingness to kill guards to effect the escape, during cross-examination of Dr. Coons. See Brief for Bagley at 2-8. Bagley argues that the prosecutor’s remarks unfairly prejudiced his sentencing, thereby depriving him of Due Process under the Fourteenth Amendment. See id. at 9-17. The government contends that the references were proper, and alternatively, that any eiTor in not striking such references from the record would not be a proper ground for granting habeas relief. See Brief for Government at 11-16.\nWe need not decide whether the state trial court abused its discretion by allowing the remarks, as we think it clear that any error which may have occurred did not render Bagley’s trial fundamentally unfair. In the context of a prosecutor’s remarks at trial, we must determine whether such remarks were “so prejudicial that ... the state court trial was rendered fundamentally unfair within the meaning of the Due Process Clause of the Fourteenth Amendment.” Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir.1987) (applying “fundamental fairness” test to claim of improper prosecutorial comments); see also Thomas v. Lynaugh, 812 F.2d 225, 230-31 (5th Cir.) (applying “fundamental fairness” standard to the state trial court’s alleged abuse of discretion in allowing prosecutor to question witness on extraneous acts), cert. denied, 484 U.S. 842, 108 S.Ct. 132, 98 L.Ed.2d 89 (1987).\nWe are aware that a more specific, two-part test applies when determining whether the state’s introduction of extraneous offenses implicates the Due Process Clause. See Story v. Collins, 920 F.2d 1247, 1254 (5th Cir.1991) (holding that extraneous offenses may be admitted into evidence without violating the due process clause if the government: (1) makes a strong showing that the defendant committed the offense; and (2) demonstrates that the extraneous offense is rationally connected with the offense charged). However, we believe Story is distinguishable from our -facts. In our case, the prosecutor only made references to extraneous offenses during cross-examination; no testimony or other evidence tending to establish extraneous offenses was ever admitted by the trial court. Consequently, the trial error, if any, which occurred here is is more akin to the allowance of improper prosecutorial comments, rather than the admission of extraneous offense evidence.\nIn applying the “fundamental fairness” standard, we conclude that while the prosecutor’s references had the potential to unfairly prejudice the jury, they were not a crucial, critical, highly significant factor in the jury’s sentencing decision. At the time of the offense, the statutory penalty for a first-degree felony was five to ninety-nine years or life imprisonment, and a maximum fine of $10,000. See Tex. Penal Code Ann. § 12.32 (Vernon 1974 & Supp.1993). The jury levied no fine, and assessed a mid-range term of fifty years imprisonment. Moreover, the jury considered substantial evidence other than the prosecutor’s references to extraneous acts — e.g., the premeditated nature of the offense and the testimony of four witnesses regarding Bagley’s bad reputation— in determining Bagley’s sentence. Lastly, to the extent that the jury could have eonsid-ered the prosecutor’s remarks to be evidence of extraneous acts, the state trial court gave a limiting instruction, stating that the jury could not consider such “evidence” for “any purpose unless you believe beyond a reasonable doubt that the defendant committed such other offenses, .if any. Even then you may only consider the same in determining the identity of the defendant, or the issues of intent, motive, system, scheme, or design, in connection with this offense, and no other purpose.” Trial Transcript vol. 1, at 19; see Zafiro v. United States, — U.S.-, --, 113 S.Ct. 933, 939,' 122 L.Ed.2d 317 (1993) (stating that “ ‘juries are presumed to follow their instructions’ ” (quoting Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987)). We therefore hold that Bagley’s trial was not rendered fundamentally unfair by the prosecutor’s remarks.\nIll\nFor the assigned reasons, the district court’s judgment denying the petition for habeas corpus relief is AFFIRMED.\n. Bagley apparently believes that the prosecutor's references to extraneous acts during cross-examination was an attempt to offer fake \"other acts\" evidence to show that Bagley acted in conformity with such acts. See Tex.R.Crim.Evid. 404(b) (adopting Fed.R.Evid. 404(b)).\n. A petitioner for habeas corpus relief must \"establish that the trial error was not merely an abuse of discretion, but was so grave as to amount to a denial of his constitutional right to substantive due process: that is, that the error made the trial fundamentally unfair.” Kirkpatrick v. Blackburn, 777 F.2d 272, 279 (5th Cir.1985) (footnotes omitted)), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986).\n.Because Bagley must show the harmfulness of the trial court’s evidentiary ruling to establish a constitutional violation, we need not apply the harmless-error standard recently announced in Brecht v. Abrahamson, — U.S. -, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See id. at —, 113 S.Ct. at 1722 (holding \"that the Kotteakos [v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)] harmless-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type” (emphasis added)); see also Kirkpatrick, 777 F.2d at 280 (stating that where a petitioner for habeas relief \"must show the harmfulness of the error to establish the constitutional violation, subsequent application of a second harmless-error test would be superfluous”).\n. At the time of the offense, aggravated rape was defined as a first-degree felony. See Tex.Penal Code Ann. § 21.03 (Vernon 1974). Former § 21.03 has since been repealed. The offense of aggravated rape is now termed aggravated sexual assault, and remains a first-degree felony. See Tex.Penal Code Ann. § 22.021 (Vernon 1989).\n. During closing argument, the prosecutor emphasized the following:\nWhen you start off with the facts of the crime — and its important to keep sight of some of the particular details of the facts — one is the premeditation of the crime. This isn't a crime of passion or sudden impulse. The defendant went to [the victim’s] apartment. He found an apartment that was apparently occupied by just one person. He was prepared for what he’s going to do. He had a disguise. ' His face was partially bandaged up. He was wearing a cap. He was acting the role of the apartment exterminator and even went through the process of allegedly exterminating the apartment in such a manner and so convincing that [the victim] saw nothing wrong, totally accepted him and opened her door. And you saw how cautious she was initially — looking through the peep hole, checking through the window making sure he was who she thought he was before letting him in the apartment. That’s not a person who has got a problem that gets out of control at the spur of the moment. It’s a person who plans a crime and goes through great detail to plan the crime.\nTrial Transcript vol. 2, at 153-54.\nThe prosecutor’s closing argument encompassed over 700 lines of the record, see id. at 152-85; only ten lines were devoted to Bagley’s alleged escape plans and willingness to kill guards. See id. at 169.\n. See Trial Transcript vol. 2, at 53-58.\n. This instruction mirrors the language of Tex. R.Crim.Evid. 404(b), and is not contested on appeal.\n. In addition to the alleged planned jail break and his willingness to kill guards, Bagley contends that the prosecutor improperly referred to two other extraneous acts — robbery (as Bagley’s other motive) and an application for a false passport. See Brief for Bagley at 7. We hold that these references, even if improper, did not render Bagley’s trial fundamentally unfair for the reasons set forth above.\n[END_CASE]", "role": "user" } ]
10,511,349	UNITED STATES of America, Plaintiff-Appellee, v. David A. CROUSORE, Defendant-Appellant	United States v. Crousore	1993-07-08	Nos. 92-5449, 92-5450	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: KEITH and BATCHELDER, Circuit Judges; and TAYLOR, District-Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. David A. CROUSORE, Defendant-Appellant."], "opinions": [{"text": "BATCHELDER, Circuit Judge.\nIn this case we are' asked to review the sentence imposed by the district court on David Crousore after he pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and one count of possession of marijuana in violation of 21 U.S.C. § 844. The sentencing judge refused to grant Crousore a two-level credit for acceptance of responsibility (U.S.S.G. § 3E1.1) because of, Crousore’s post-arrest activities, and enhanced Crou-sore’s sentence for obstruction of justice (U.S.S.G. § 3C1.1) because of Crousore’s perjurious testimony. Finding no error, we affirm.\nI\nDefendant Crousore was arrested on April 2, 1991. Immediately following his arrest, Crousore gave a statement to FBI Agent David Potts in which he candidly admitted to Agent Potts that, among other things, he had purchased a Jennings .22-caliber handgun in Kentucky using an assumed name and transported the handgun to Michigan where he exchanged it for three pounds of marijuana. Crousore was taken into custody, and on April 8, 1991, a detention hearing was held. At the hearing, Agent Potts testified as to the statement Crousore made at the time of his arrest, including Crousore’s admission that he traded the Jennings handgun for marijuana. Crousore then testified and, although he admitted giving a statement to Agent Potts and again admitted that he had obtained a Jennings .22-caliber handgun and transported it to Michigan, he explained that he had not traded the gun for marijuana, but had given it to someone as a gift.\nA federal grand jury returned a nine-count indictment charging Crousore with one drug offense and various firearm offenses based on the alleged gun-fór-marijuana swap and other activities not relevant to this appeal. The government later filed a felony information charging Crousore with possession of marijuana. On November 1,1991, Crousore waived indictment on the possession of marijuana charged in the information and entered into a plea agreement in which he agreed to plead guilty to one count of possession of marijuana in violation of 21 U.S.C. § 844 and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In exchange, the government agreed to dismiss the remaining counts in the indictment. When the district court asked Crousore to explain what it was that made him guilty, Crousore said that he had purchased a firearm by providing false identification to a gun dealer. Crousore was not asked and he did not volunteer any information about the alleged exchange of the gun for marijuana.\nAt his sentencing hearing, Crousore said he accepted responsibility for the charges against him because he did in fact purchase the gun and possess the marijuana. On cross-examination, the government asked, “[W]hen you were giving [the FBI] the statement, didn’t you tell them that T had taken the gun to Detroit and traded the gun with several hundred dollars cash for marijuana’?” Crousore responded, “No, sir, they had told me that was what happened.” On redirect examination, Crousore confirmed that at his detention hearing he told the court that he had given the handgun as a gift and again denied having exchanged the gun for marijuana.\nCrousore was incarcerated in the Franklin County Regional Jail following the detention hearing. A couple weeks after his arrest and before his indictment, Crousore made a mistake in judgment. He arranged, from the jail, to meet with an acquaintance of his, who unbeknownst to Crousore, was acting as a government informant. Crousore asked for the _ informant’s assistance in getting rid of two pounds of marijuana. Crousore requested that the informant locate Kim Marshall, Crousore’s fiancee, confirm that she knew the location of the marijuana, and get back to him. In a taped phone conversation, Kim Marshall told the informant that she could not quote him a price for the marijuana until she had talked to Crousore. Kim Marshall apparently called Crousore and discussed the sale price with him. The sale was eventually made, and Crousore, Marshall, and another were indicted by a state grand jury for this drug transaction.\nThe presentence investigation report offered a preliminary calculation of Crousore’s sentence under the U.S. Sentencing Guidelines. The base offense level was determined (to which neither party objects), and the report recommended an enhancement for obstruction of justice and a rejection of Crou-sore’s requested acceptance-of-responsibility credit. At sentencing, the district court accepted these recommendations. Agreeing that Crousore’s jailhouse arrangements to dispose of the marijuana demonstrated a lack of “voluntary termination or withdrawal from criminal conduct or associations,” the court denied the acceptance-of-responsibility credit. On the obstruction-of-justice issue, the court resolved what it described as a “credibility question” in favor of the government and found by a preponderance of the evidence that Crousore had committed perjury by denying at his detention hearing and sentencing hearing that he told Agent Potts that he had traded the gun for marijuana. The court found that Crousore’s perjury required the enhancement for obstruction of justice.\nII\nA Obstruction of Justice\nCrousore first contends that the district court erred in adjusting his sentence upward for obstruction of justice pursuant to U.S.S.G. § 3C1.1. In this regard, he makes two arguments.\nFirst, Crousore argues that, assuming he did perjuriously deny that he. traded the handgun for marijuana, the perjury did not relate to the “instant offense” and therefore was improperly considered as a basis for the obstruction-of-justice enhancement. Crou-sore’s argument could be taken in two different ways: (1) because Crousore lied about his commission of another offense (i.e., using or carrying a firearm in relation to a drug offense) and not the offenses to which he pleaded guilty, his perjurious testimony is not a proper basis for the enhancement, or (2) his perjurious testimony bore no relation to the instant offense and thus was not material as § 3C1.1 requires. We consider both arguments, and neither leads us to the conclusion that the district court erred.\nThe obstruction-of-justice guideline reads in full, “If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.” U.S.S.G. § 3C1.1. A careful reading of this section reveals its applicability to Crousore’s conduct and disposes of his argument. This guideline applies to conduct during the investigation, prosecution, and sentencing of the instant offense, i.e., the offense for which the defendant is being sentenced under the Guidelines. Crousore’s perjurious testimony was during his detention hearing and during his sentencing hearing, thus satisfying the requirement of § 3C1.1 that the obstruction be during the investigation, prosecution, or sentencing of the instant offense. Whether Crousore’s lie was about his guilt on the specific charges to which he pleaded guilty is not an issue under § 3C1.1. For example, a defendant might take the stand at his trial for bank robbery, and upon cross-examination by the government as to certain prior bad acts, perjuriously deny that the acts in question occurred. At sentencing for conviction on the charge of bank robbery, the court may consider the defendant’s untruthful testimony about his prior bad acts because the testimony was during the prosecution of the instant offense, i.e., the bank robbery. Many other examples can be found in the case law. See, e.g., United States v. Jones, 950 F.2d 1309 (7th Cir.1991) (defendant’s perjurious testimony that one codefendant talked him into the bank robbery and another codefendant was not involved warranted obstruction enhancement), cert. denied, — U.S. -, 112 S.Ct. 1700, 118 L.Ed.2d 410 (1992); United States v. Matos, 907 F.2d 274 (2d Cir.1990) (defendant’s false testimony at suppression hearing that no rights warnings had been given to him warranted obstruction); United States v. Cusumano, 943 F.2d 305 (3d Cir.1991) (defendant’s false statement concerning his financial condition to probation officer preparing presentence investigation report warranted obstruction enhancement), cert. denied, — U.S. -, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992); United States v. Garcia, 902 F.2d 324 (5th Cir.1990) (material misrepresentation to probation officer regarding prior arrests justified enhancement). Therefore, the test is not whether the false statement was about the actual crime charged, but whether it was made during the investigation, prosecution, or sentencing of the “instant offense.”\nThis, of course, does not mean that trivial and immaterial lies warrant the obstruction enhancement, for § 3C1.1 does not apply to these. See § 3C1.1, Commentary (n. 4). We note, however, that Crousore’s perjurious testimony was material. Material information is information that, if believed, would tend to influence or affect the issue under determination. U.S.S.G. § 3C1.1, Commentary (n. 5). Information about the drug transaction was relevant information at both the detention hearing and sentencing. At the detention hearing, the court needed to know the true nature of the offense so that it could correctly assess Crousore’s flight risk or risk to society. At sentencing, the information was relevant to the district court’s efforts to mete out an appropriate sentence. Therefore, taken either way, Crousore’s argument does not prevail.\nCrousore next argues that the evidence was insufficient to find that he committed perjury in the first place. We concede at the outset that Crousore makes a plausible case for a factual finding that he never told Agent Potts that he had exchanged the gun for marijuana and therefore his repeated testimony to the contrary was not inconsistent and not perjurious. Before they arrested Crousore, the FBI Agents had been told by Crousore’s business partner, James Meadows, that Crousore and Meadows traveled to Michigan together where Crousore traded the gun for marijuana. When Crousore was arrested and voluntarily admitted that he did many of the acts alleged by Meadows {e.g., buying the gun, traveling to Michigan, delivering the gun, and returning to Kentucky with the marijuana), Agent Potts, in writing his report after the interview, might have incorrectly recalled that Crousore said he exchanged the gun for marijuana, because that was what Potts previously understood as the nature of the transaction. We also note that in Crousore’s testimony at the detention hearing and at sentencing he again fully admitted all the events of the Michigan trip except for the guri-for-marijuana transaction. For that reason, this case is distinguishable from a case in which the defendant later denies making the statement at all. We further acknowledge that in resolving the question of whether the defendant committed perjury, allegedly false statements should be evaluated in a light,most favorable to the defendant. See U.S.S.G. § 3C1.1, Commentary (n. 1); United States v. Head, 927 F.2d 1361 (6th Cir.), cert. denied, — U.S. —, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991).\nHowever, the district court correctly identified this conflict in the testimony as one which depended on credibility for its resolution. And credibility determinations are for the trial court, not for the court of appeals. Unless the district court’s finding of fact is clearly erroneous, we must accept it. See 18 U.S.C. § 3742(e); United States v. Moreno, 899 F.2d 465, 470 (6th Cir.1990). Because Agent Potts testified that Crousore admitted trading the gun for marijuana, Crousore’s later statements, even when any doubts about his meaning are resolved in his favor, are contrary to his earlier admission and thus constituted perjury. When a defendant perjures himself before the court as to a material matter, the district court is generally without discretion in imposing the obstruction-of-justice enhancement. See United States v. Alvarez, 927 F.2d 300, 303 (6th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2246, 114 L.Ed.2d 487 (1991).\nWe find no reversible error with regard to the obstruction-of-justice enhancement.\nB. Acceptance of Responsibility\nCrousore also argues that it was a clear abuse of discretion for the district court to refuse to grant him the two-level reduction for acceptance of responsibility. He notes that upon his arrest he confessed to several criminal acts. At his detention hearing, he again made statements against his own penological interests and admitted several offenses. His contrition is further exhibited by his pleading guilty. The acceptance of responsibility for his actions was again apparent at the time of sentencing when he owned up to his criminal behavior. In short, Crousore was the perfect candidate for the acceptance-of-responsibility reduction — except for one thing. He arranged, from jail, the sale of two pounds of marijuana.\nSection 3E1.1 of the Guidelines reads, “If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” In determining whether the defendant qualifies for the reduction, it is appropriate to consider “voluntary termination or withdrawal from criminal conduct or associations,” § 3E1.1 Commentary (n. 1(b)), and although truthfully admitting guilt is significant acceptance of responsibility, “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility,” § 3E1.1 Commentary (n. 3). It was Crousore’s burden to show by a preponderance of the evidence that he had accepted responsibility for his actions. Such acceptance is a question of fact and the district court’s findings of fact on this matter are accorded considerable deference and are not to be disturbed unless clearly erroneous. United States v. Williams, 940 F.2d 176, 181 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 666, 116 L.Ed.2d 757 (1991); United States v. Snyder, 913 F.2d 300, 305 (6th Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991).\nThe district court’s finding is not clearly erroneous. While we commend Crousore for his admissions of guilt and his acceptance of responsibility for those things which he admitted doing, we think the district court was completely justified in taking the arrangement of a drug deal from the jailhouse as compelling evidence that Crousore did not quite measure up in the acceptance-of-responsibility category.\nIll\nFor the reasons stated above, we find no reversible error in the district court’s sentencing of David Crousore, and the district court is therefore AFFIRMED.\n. As will become clear, Crousore's consistent testimony before the district court was that he did not tell Agent Potts that he had bartered the gun for marijuana.\n. The possession was charged as a felony because of Crousore’s prior controlled substance conviction.\n. We note that this does not require that the evidence in its entirety be taken in a light most favorable to the defendant. It is only the defendant’s statement that is to be taken in a light most favorable to him. So, if the meaning of the defendant's statement is ambiguous, the ambiguity should be resolved in his favor to prevent a finding of penury when the defendant's statement, taken another way, would not have been perjurious. Here, there is' no ambiguity in the meaning of Crousore’s statements to be resolved in his favor. He denied trading the gun for marijuana and that its exactly how the court took his statement. The problem in this case arises with the conflict- between the testimony of Agent Potts and the testimony of Crousore.", "type": "majority", "author": "BATCHELDER, Circuit Judge."}], "attorneys": ["David P. Grise, Asst. U.S. Atty. (argued' and briefed), Karen K. Caldwell, U.S. Atty., Lexington, KY, for plaintiff-appellee.", "Don Brad White (argued and briefed), Lexington, KY, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. David A. CROUSORE, Defendant-Appellant.\nNos. 92-5449, 92-5450.\nUnited States Court of Appeals, Sixth Circuit.\nArgued March 5, 1993.\nDecided July 8, 1993.\nDavid P. Grise, Asst. U.S. Atty. (argued' and briefed), Karen K. Caldwell, U.S. Atty., Lexington, KY, for plaintiff-appellee.\nDon Brad White (argued and briefed), Lexington, KY, for defendant-appellant.\nBefore: KEITH and BATCHELDER, Circuit Judges; and TAYLOR, District-Judge.\nThis decision was originally issued as an \"unpublished decision” filed on July 8, 1993. On July 28, 1993, the court designated the opinion as one recommended for full-text publication.\nThe Honorable Anna Diggs Taylor, United States District Judge for the Eastern District of Michigan, sitting by designation."}	KEITH	BATCHELDER	TAYLOR	1	1	1	0	0	0	1 F.3d 382	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. David A. CROUSORE, Defendant-Appellant\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-07-08\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nBATCHELDER, Circuit Judge.\nIn this case we are' asked to review the sentence imposed by the district court on David Crousore after he pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and one count of possession of marijuana in violation of 21 U.S.C. § 844. The sentencing judge refused to grant Crousore a two-level credit for acceptance of responsibility (U.S.S.G. § 3E1.1) because of, Crousore’s post-arrest activities, and enhanced Crou-sore’s sentence for obstruction of justice (U.S.S.G. § 3C1.1) because of Crousore’s perjurious testimony. Finding no error, we affirm.\nI\nDefendant Crousore was arrested on April 2, 1991. Immediately following his arrest, Crousore gave a statement to FBI Agent David Potts in which he candidly admitted to Agent Potts that, among other things, he had purchased a Jennings .22-caliber handgun in Kentucky using an assumed name and transported the handgun to Michigan where he exchanged it for three pounds of marijuana. Crousore was taken into custody, and on April 8, 1991, a detention hearing was held. At the hearing, Agent Potts testified as to the statement Crousore made at the time of his arrest, including Crousore’s admission that he traded the Jennings handgun for marijuana. Crousore then testified and, although he admitted giving a statement to Agent Potts and again admitted that he had obtained a Jennings .22-caliber handgun and transported it to Michigan, he explained that he had not traded the gun for marijuana, but had given it to someone as a gift.\nA federal grand jury returned a nine-count indictment charging Crousore with one drug offense and various firearm offenses based on the alleged gun-fór-marijuana swap and other activities not relevant to this appeal. The government later filed a felony information charging Crousore with possession of marijuana. On November 1,1991, Crousore waived indictment on the possession of marijuana charged in the information and entered into a plea agreement in which he agreed to plead guilty to one count of possession of marijuana in violation of 21 U.S.C. § 844 and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In exchange, the government agreed to dismiss the remaining counts in the indictment. When the district court asked Crousore to explain what it was that made him guilty, Crousore said that he had purchased a firearm by providing false identification to a gun dealer. Crousore was not asked and he did not volunteer any information about the alleged exchange of the gun for marijuana.\nAt his sentencing hearing, Crousore said he accepted responsibility for the charges against him because he did in fact purchase the gun and possess the marijuana. On cross-examination, the government asked, “[W]hen you were giving [the FBI] the statement, didn’t you tell them that T had taken the gun to Detroit and traded the gun with several hundred dollars cash for marijuana’?” Crousore responded, “No, sir, they had told me that was what happened.” On redirect examination, Crousore confirmed that at his detention hearing he told the court that he had given the handgun as a gift and again denied having exchanged the gun for marijuana.\nCrousore was incarcerated in the Franklin County Regional Jail following the detention hearing. A couple weeks after his arrest and before his indictment, Crousore made a mistake in judgment. He arranged, from the jail, to meet with an acquaintance of his, who unbeknownst to Crousore, was acting as a government informant. Crousore asked for the _ informant’s assistance in getting rid of two pounds of marijuana. Crousore requested that the informant locate Kim Marshall, Crousore’s fiancee, confirm that she knew the location of the marijuana, and get back to him. In a taped phone conversation, Kim Marshall told the informant that she could not quote him a price for the marijuana until she had talked to Crousore. Kim Marshall apparently called Crousore and discussed the sale price with him. The sale was eventually made, and Crousore, Marshall, and another were indicted by a state grand jury for this drug transaction.\nThe presentence investigation report offered a preliminary calculation of Crousore’s sentence under the U.S. Sentencing Guidelines. The base offense level was determined (to which neither party objects), and the report recommended an enhancement for obstruction of justice and a rejection of Crou-sore’s requested acceptance-of-responsibility credit. At sentencing, the district court accepted these recommendations. Agreeing that Crousore’s jailhouse arrangements to dispose of the marijuana demonstrated a lack of “voluntary termination or withdrawal from criminal conduct or associations,” the court denied the acceptance-of-responsibility credit. On the obstruction-of-justice issue, the court resolved what it described as a “credibility question” in favor of the government and found by a preponderance of the evidence that Crousore had committed perjury by denying at his detention hearing and sentencing hearing that he told Agent Potts that he had traded the gun for marijuana. The court found that Crousore’s perjury required the enhancement for obstruction of justice.\nII\nA Obstruction of Justice\nCrousore first contends that the district court erred in adjusting his sentence upward for obstruction of justice pursuant to U.S.S.G. § 3C1.1. In this regard, he makes two arguments.\nFirst, Crousore argues that, assuming he did perjuriously deny that he. traded the handgun for marijuana, the perjury did not relate to the “instant offense” and therefore was improperly considered as a basis for the obstruction-of-justice enhancement. Crou-sore’s argument could be taken in two different ways: (1) because Crousore lied about his commission of another offense (i.e., using or carrying a firearm in relation to a drug offense) and not the offenses to which he pleaded guilty, his perjurious testimony is not a proper basis for the enhancement, or (2) his perjurious testimony bore no relation to the instant offense and thus was not material as § 3C1.1 requires. We consider both arguments, and neither leads us to the conclusion that the district court erred.\nThe obstruction-of-justice guideline reads in full, “If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.” U.S.S.G. § 3C1.1. A careful reading of this section reveals its applicability to Crousore’s conduct and disposes of his argument. This guideline applies to conduct during the investigation, prosecution, and sentencing of the instant offense, i.e., the offense for which the defendant is being sentenced under the Guidelines. Crousore’s perjurious testimony was during his detention hearing and during his sentencing hearing, thus satisfying the requirement of § 3C1.1 that the obstruction be during the investigation, prosecution, or sentencing of the instant offense. Whether Crousore’s lie was about his guilt on the specific charges to which he pleaded guilty is not an issue under § 3C1.1. For example, a defendant might take the stand at his trial for bank robbery, and upon cross-examination by the government as to certain prior bad acts, perjuriously deny that the acts in question occurred. At sentencing for conviction on the charge of bank robbery, the court may consider the defendant’s untruthful testimony about his prior bad acts because the testimony was during the prosecution of the instant offense, i.e., the bank robbery. Many other examples can be found in the case law. See, e.g., United States v. Jones, 950 F.2d 1309 (7th Cir.1991) (defendant’s perjurious testimony that one codefendant talked him into the bank robbery and another codefendant was not involved warranted obstruction enhancement), cert. denied, — U.S. -, 112 S.Ct. 1700, 118 L.Ed.2d 410 (1992); United States v. Matos, 907 F.2d 274 (2d Cir.1990) (defendant’s false testimony at suppression hearing that no rights warnings had been given to him warranted obstruction); United States v. Cusumano, 943 F.2d 305 (3d Cir.1991) (defendant’s false statement concerning his financial condition to probation officer preparing presentence investigation report warranted obstruction enhancement), cert. denied, — U.S. -, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992); United States v. Garcia, 902 F.2d 324 (5th Cir.1990) (material misrepresentation to probation officer regarding prior arrests justified enhancement). Therefore, the test is not whether the false statement was about the actual crime charged, but whether it was made during the investigation, prosecution, or sentencing of the “instant offense.”\nThis, of course, does not mean that trivial and immaterial lies warrant the obstruction enhancement, for § 3C1.1 does not apply to these. See § 3C1.1, Commentary (n. 4). We note, however, that Crousore’s perjurious testimony was material. Material information is information that, if believed, would tend to influence or affect the issue under determination. U.S.S.G. § 3C1.1, Commentary (n. 5). Information about the drug transaction was relevant information at both the detention hearing and sentencing. At the detention hearing, the court needed to know the true nature of the offense so that it could correctly assess Crousore’s flight risk or risk to society. At sentencing, the information was relevant to the district court’s efforts to mete out an appropriate sentence. Therefore, taken either way, Crousore’s argument does not prevail.\nCrousore next argues that the evidence was insufficient to find that he committed perjury in the first place. We concede at the outset that Crousore makes a plausible case for a factual finding that he never told Agent Potts that he had exchanged the gun for marijuana and therefore his repeated testimony to the contrary was not inconsistent and not perjurious. Before they arrested Crousore, the FBI Agents had been told by Crousore’s business partner, James Meadows, that Crousore and Meadows traveled to Michigan together where Crousore traded the gun for marijuana. When Crousore was arrested and voluntarily admitted that he did many of the acts alleged by Meadows {e.g., buying the gun, traveling to Michigan, delivering the gun, and returning to Kentucky with the marijuana), Agent Potts, in writing his report after the interview, might have incorrectly recalled that Crousore said he exchanged the gun for marijuana, because that was what Potts previously understood as the nature of the transaction. We also note that in Crousore’s testimony at the detention hearing and at sentencing he again fully admitted all the events of the Michigan trip except for the guri-for-marijuana transaction. For that reason, this case is distinguishable from a case in which the defendant later denies making the statement at all. We further acknowledge that in resolving the question of whether the defendant committed perjury, allegedly false statements should be evaluated in a light,most favorable to the defendant. See U.S.S.G. § 3C1.1, Commentary (n. 1); United States v. Head, 927 F.2d 1361 (6th Cir.), cert. denied, — U.S. —, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991).\nHowever, the district court correctly identified this conflict in the testimony as one which depended on credibility for its resolution. And credibility determinations are for the trial court, not for the court of appeals. Unless the district court’s finding of fact is clearly erroneous, we must accept it. See 18 U.S.C. § 3742(e); United States v. Moreno, 899 F.2d 465, 470 (6th Cir.1990). Because Agent Potts testified that Crousore admitted trading the gun for marijuana, Crousore’s later statements, even when any doubts about his meaning are resolved in his favor, are contrary to his earlier admission and thus constituted perjury. When a defendant perjures himself before the court as to a material matter, the district court is generally without discretion in imposing the obstruction-of-justice enhancement. See United States v. Alvarez, 927 F.2d 300, 303 (6th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2246, 114 L.Ed.2d 487 (1991).\nWe find no reversible error with regard to the obstruction-of-justice enhancement.\nB. Acceptance of Responsibility\nCrousore also argues that it was a clear abuse of discretion for the district court to refuse to grant him the two-level reduction for acceptance of responsibility. He notes that upon his arrest he confessed to several criminal acts. At his detention hearing, he again made statements against his own penological interests and admitted several offenses. His contrition is further exhibited by his pleading guilty. The acceptance of responsibility for his actions was again apparent at the time of sentencing when he owned up to his criminal behavior. In short, Crousore was the perfect candidate for the acceptance-of-responsibility reduction — except for one thing. He arranged, from jail, the sale of two pounds of marijuana.\nSection 3E1.1 of the Guidelines reads, “If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” In determining whether the defendant qualifies for the reduction, it is appropriate to consider “voluntary termination or withdrawal from criminal conduct or associations,” § 3E1.1 Commentary (n. 1(b)), and although truthfully admitting guilt is significant acceptance of responsibility, “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility,” § 3E1.1 Commentary (n. 3). It was Crousore’s burden to show by a preponderance of the evidence that he had accepted responsibility for his actions. Such acceptance is a question of fact and the district court’s findings of fact on this matter are accorded considerable deference and are not to be disturbed unless clearly erroneous. United States v. Williams, 940 F.2d 176, 181 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 666, 116 L.Ed.2d 757 (1991); United States v. Snyder, 913 F.2d 300, 305 (6th Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991).\nThe district court’s finding is not clearly erroneous. While we commend Crousore for his admissions of guilt and his acceptance of responsibility for those things which he admitted doing, we think the district court was completely justified in taking the arrangement of a drug deal from the jailhouse as compelling evidence that Crousore did not quite measure up in the acceptance-of-responsibility category.\nIll\nFor the reasons stated above, we find no reversible error in the district court’s sentencing of David Crousore, and the district court is therefore AFFIRMED.\n. As will become clear, Crousore's consistent testimony before the district court was that he did not tell Agent Potts that he had bartered the gun for marijuana.\n. The possession was charged as a felony because of Crousore’s prior controlled substance conviction.\n. We note that this does not require that the evidence in its entirety be taken in a light most favorable to the defendant. It is only the defendant’s statement that is to be taken in a light most favorable to him. So, if the meaning of the defendant's statement is ambiguous, the ambiguity should be resolved in his favor to prevent a finding of penury when the defendant's statement, taken another way, would not have been perjurious. Here, there is' no ambiguity in the meaning of Crousore’s statements to be resolved in his favor. He denied trading the gun for marijuana and that its exactly how the court took his statement. The problem in this case arises with the conflict- between the testimony of Agent Potts and the testimony of Crousore.\n[END_CASE]", "role": "user" } ]
10,511,395	UNITED STATES of America, Plaintiff-Appellee, v. Jason Brian VELEZ, Defendant-Appellant	United States v. Velez	1993-07-23	No. 92-3652	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: BOGGS and SILER, Circuit Judges; and JOINER, Senior District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Jason Brian VELEZ, Defendant-Appellant."], "opinions": [{"text": "BOGGS, Circuit Judge.\nThis is an appeal from a guilty plea on charges of conspiracy to transport falsely made securities, possession of false identification, and use of a false social security number, in violation of 18 U.S.C. § 371. Appellant contends that the district court erred by considering material beyond that contained in the charging information, and that the sentence was improper. For the reasons stated, we affirm.\nI\nAppellant was part of a multi-state check writing conspiracy that cashed fraudulent payroll checks in Ohio, Kentucky, Tennessee, West Virginia, North Carolina, South Carolina, and Illinois. The members of the conspiracy would travel to a state, establish a bank account in the name of a fictitious construction company, and obtain fictitious identification using false social security numbers. Checks were then drawn with the payee being one of the names on the false identification cards. The checks were made to look like payroll checks issued by the fictitious company, and grocery stores in small towns were targeted for passing them. The checks were cashed in numerous counties in the hope that no single county jurisdiction would have sufficient losses to pursue prosecution. The scheme lasted for approximately two years.\nAppellant Velez and two other men, Thomas Cook and Dustin Murray, were members of the ring. However, they decided to strike out on their own. In November 1991, the three men travelled to Iowa City, where they obtained false identification and established a fraudulent company called Hayward Construction. The three men then planned to draw bogus checks on this account. However, following their return to Cincinnati, they were arrested. Federal officials estimated that the entire scheme netted between $149,-000 and $184,000. Velez participated in the entire operation, except for the activities that occurred in Kentucky and West Virginia. According to the government, Velez can therefore be tied to causing a loss of $139,-000.\nThe appellant agreed to plead guilty to a one-count information, which charged him with conspiracy to transport falsely made securities, possession of false identification, and use of a false social security number. 18 U.S.C. § 371. The information was based solely on the Iowa endeavor. Velez agreed to assist the government, and the prosecutor agreed to recommend a downward departure. The agreement states that the government’s recommendation is not binding on the district court.\nAlthough the government agreed to charge Velez only with the Iowa scheme, the presen-tence report was not limited to the Iowa activities. Rather, the report discussed the full range of activities, beginning with the check cashing schemes in Ohio, West Virginia, Kentucky, and Tennessee. As previously stated, the full loss from the activities that involved Velez was approximately $139,000. Because this figure exceeded $120,000, appellant received an increase of seven in his offense level. U.S.S.G. § 2Fl.l(b)(l)(H). The probation office concluded that the adjusted offense level was 15. The report then recommended a two-level decrease for acceptance of responsibility. U.S.S.G. § 3El.l(a). Accordingly, the final offense level was 13.\nAt the sentencing hearing, defendant objected to the presentence report. He claimed that it was improper to look to offenses other than the Iowa scheme. He also attacked many of the factual conclusions, such as the amount of money acquired through the conspiracy. The court agreed with the presentence report, and found that the proper offense level was 13, which results in a sentencing range of 12-18 months, for Velez’s criminal history category of 1. The court sentenced the defendant to 15 months, stating, “I should point out that the Guideline for this particular offense would have resulted in imprisonment for a period of 18 months. I will take the United States Attorney’s recommendation, and I will reduce his sentence as I have stated.”\nThe next case was called and the defendant left the courtroom. The court then stated:\nBefore we proceed ... I want to make a statement as to the previous case, and that is that the court has been advised by the defendant of alleged factual inaccuracies in the presentence investigation report. In accordance with rule 32(c)(2)(D), the court has examined the presentence investigation report and the alleged factual inaccuracies and determines that no finding as to the controverted matter is necessary since the matter controverted has not been taken into account in the sentencing.\nThe Judgment and Commitment Order prepared by the court stated that appellant’s offense level was 13, which established a guideline range of 12-18 months. The Order also states, “The sentence is within the guideline range, that range does not exceed months, and the court finds no reason to depart from the sentence called for by application of the guideline.” (emphasis added). The defendant then filed a motion for resen-tencing, státing that the government’s intention was to recommend a downward departure equivalent to a reduction of two levels, based upon appellant’s cooperation. The United States filed a document, joining in defendant’s motion. On June 19, 1992, the court denied the motion, stating that a downward departure from 18 to 15 months was granted and that the recommendation of the United States was not binding. The defendant then brought this timely appeal.\nII\nThe appellant argues that it was improper for the court to consider criminal acts occurring outside of Iowa because only the Iowa wrongdoing served as the basis for the information, and the plea agreement stipulated that the relevant conduct was limited to the defendant’s Iowa activities. We disagree. Under the Guidelines then in effect, the court may consider any activities related to the offense charged. U.S.S.G. § 1B1.3 provided that the base offense level “shall be determined on the basis of ...' all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction_” The activities occurring in other states were part of the same course of conduct.\nMoreover, this court previously has rejected this same argument. United States v. Silverman, 976 F.2d 1502 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993); United States v. Miller, 910 F.2d 1321 (6th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). In Miller, the defendant pled guilty to one count of distributing 1.25 ounces of cocaine. In sentencing the defendant, the trial court looked to drug dealing activities prior to the time of the underlying offense. We stated that under the relevant conduct provision, it was proper for the court to look to activities not charged. The present case is indistinguishable. The illicit activity that occurred in other states was part of the same course of conduct as the Iowa scheme. Additionally, a plea agreement entered into between the government and the defendant is. not binding on the court. United States v. Gaines, 888 F.2d 1122,1123 (6th Cir.1989). For these reasons, we reject the deféndant’s position.\nIII\nAppellant claims that the court erred regarding the proper sentence, based upon confusion demonstrated in the transcript. He argues that the court claimed to grant a downward departure, when in fact it did not. Appellant claims that this mistake requires k new sentencing.\nWe disagree. A sentence that is within the Guideline range is not appealable on the grounds that the court failed to depart downward. United States v. Draper, 888 F.2d 1100 (6th Cir.1989). Indeed, we are without jurisdiction to review any sentence within the guideline range unless the appellant raises a constitutional question. United States v. Reed, 914 F.2d 1288 (9th Cir.1990). The sentence in this ease is squarely within the guidelines range.\nMoreover, the trial court did impose a sentence of less than the upper guideline range of 18 months. Although this reduction is not properly called a “downward departure,” the trial court clearly accepted the recommendation of the United States to some degree. The court also was not bound by the government’s recommendation, and consequently, no reduction was necessary.\nIV\nThe defendant raised a factual dispute regarding the sentencing report. He claimed that the amount of stolen money that can be attributed to him was $104,000, not $139,000. After the court sentenced the defendant to . 15 months, and after the defendant had left the room, the court stated that, in accordance with Fed.K.Crim.P. 32(c)(2)(D), it “ha[d] examined the presentence investigation report and alleged factual inaccuracies and determines that- no finding as to the controverted matter is necessary since the matter controverted has not been taken into account-in the sentencing.” In the Judgment and Commitment Order, the court stated that it was adopting the findings of the pre-sentence report, which suggested a range of 12-18 months, with an offense level of 13. Appellant contends that by using an offense level of 13, the court did rely on disputed matters, because if he stole $104,000, the offense level would have been 12. Accordingly, appellant requests a resentencing.\nThe district court did not err. In the Judgment and Commitment Order, the court clearly stated that it “adopts the factual findings” of the presentence report. The defendant failed to offer at any time any evidence to rebut the findings of the probation report that he stole $139,000. The $104,000 figure constitutes mere conjecture, unsupported by any evidence. We accept the trial court’s finding (which is amply supported by the record) that the amount stolen was $139,000.\nAccordingly, the district court’s judgment and sentence is AFFIRMED.\n. § 2F1.1(b)(1)(H) provides:\nFraud and Deceit\n(a) ....\n(b) Specific Offense Characteristics\n(1) If the loss exceeded $2,000, increase the offense level as follows\n(H) More than $120,000 add 7\n. This reference pertains to 18 U.S.C. § 3553(c), which requires a \"statement of reasons for imposing a sentence” for which the range exceeds 24 months.\n. The $104,000 figure assumes that some activity other than the Iowa scheme is included.", "type": "majority", "author": "BOGGS, Circuit Judge."}], "attorneys": ["John M. DiPuccio (argued and briefed), Office of the U.S. Atty., Cincinnati, OH, for plaintiff-appellee.", "Robert A. Perez (argued and briefed), Cincinnati, OH, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Jason Brian VELEZ, Defendant-Appellant.\nNo. 92-3652.\nUnited States Court of Appeals, Sixth Circuit.\nArgued Jan. 25, 1993.\nDecided July 23, 1993.\nRehearing and Suggestion for Rehearing En Banc Denied Sept. 2, 1993.\nJohn M. DiPuccio (argued and briefed), Office of the U.S. Atty., Cincinnati, OH, for plaintiff-appellee.\nRobert A. Perez (argued and briefed), Cincinnati, OH, for defendant-appellant.\nBefore: BOGGS and SILER, Circuit Judges; and JOINER, Senior District Judge.\nThe Honorable Charles W. Joiner, Senior United States District Judge for the Eastern District of Michigan, sitting by designation."}	BOGGS	SILER	JOINER	1	1	1	0	0	0	1 F.3d 386	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Jason Brian VELEZ, Defendant-Appellant\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-07-23\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nBOGGS, Circuit Judge.\nThis is an appeal from a guilty plea on charges of conspiracy to transport falsely made securities, possession of false identification, and use of a false social security number, in violation of 18 U.S.C. § 371. Appellant contends that the district court erred by considering material beyond that contained in the charging information, and that the sentence was improper. For the reasons stated, we affirm.\nI\nAppellant was part of a multi-state check writing conspiracy that cashed fraudulent payroll checks in Ohio, Kentucky, Tennessee, West Virginia, North Carolina, South Carolina, and Illinois. The members of the conspiracy would travel to a state, establish a bank account in the name of a fictitious construction company, and obtain fictitious identification using false social security numbers. Checks were then drawn with the payee being one of the names on the false identification cards. The checks were made to look like payroll checks issued by the fictitious company, and grocery stores in small towns were targeted for passing them. The checks were cashed in numerous counties in the hope that no single county jurisdiction would have sufficient losses to pursue prosecution. The scheme lasted for approximately two years.\nAppellant Velez and two other men, Thomas Cook and Dustin Murray, were members of the ring. However, they decided to strike out on their own. In November 1991, the three men travelled to Iowa City, where they obtained false identification and established a fraudulent company called Hayward Construction. The three men then planned to draw bogus checks on this account. However, following their return to Cincinnati, they were arrested. Federal officials estimated that the entire scheme netted between $149,-000 and $184,000. Velez participated in the entire operation, except for the activities that occurred in Kentucky and West Virginia. According to the government, Velez can therefore be tied to causing a loss of $139,-000.\nThe appellant agreed to plead guilty to a one-count information, which charged him with conspiracy to transport falsely made securities, possession of false identification, and use of a false social security number. 18 U.S.C. § 371. The information was based solely on the Iowa endeavor. Velez agreed to assist the government, and the prosecutor agreed to recommend a downward departure. The agreement states that the government’s recommendation is not binding on the district court.\nAlthough the government agreed to charge Velez only with the Iowa scheme, the presen-tence report was not limited to the Iowa activities. Rather, the report discussed the full range of activities, beginning with the check cashing schemes in Ohio, West Virginia, Kentucky, and Tennessee. As previously stated, the full loss from the activities that involved Velez was approximately $139,000. Because this figure exceeded $120,000, appellant received an increase of seven in his offense level. U.S.S.G. § 2Fl.l(b)(l)(H). The probation office concluded that the adjusted offense level was 15. The report then recommended a two-level decrease for acceptance of responsibility. U.S.S.G. § 3El.l(a). Accordingly, the final offense level was 13.\nAt the sentencing hearing, defendant objected to the presentence report. He claimed that it was improper to look to offenses other than the Iowa scheme. He also attacked many of the factual conclusions, such as the amount of money acquired through the conspiracy. The court agreed with the presentence report, and found that the proper offense level was 13, which results in a sentencing range of 12-18 months, for Velez’s criminal history category of 1. The court sentenced the defendant to 15 months, stating, “I should point out that the Guideline for this particular offense would have resulted in imprisonment for a period of 18 months. I will take the United States Attorney’s recommendation, and I will reduce his sentence as I have stated.”\nThe next case was called and the defendant left the courtroom. The court then stated:\nBefore we proceed ... I want to make a statement as to the previous case, and that is that the court has been advised by the defendant of alleged factual inaccuracies in the presentence investigation report. In accordance with rule 32(c)(2)(D), the court has examined the presentence investigation report and the alleged factual inaccuracies and determines that no finding as to the controverted matter is necessary since the matter controverted has not been taken into account in the sentencing.\nThe Judgment and Commitment Order prepared by the court stated that appellant’s offense level was 13, which established a guideline range of 12-18 months. The Order also states, “The sentence is within the guideline range, that range does not exceed months, and the court finds no reason to depart from the sentence called for by application of the guideline.” (emphasis added). The defendant then filed a motion for resen-tencing, státing that the government’s intention was to recommend a downward departure equivalent to a reduction of two levels, based upon appellant’s cooperation. The United States filed a document, joining in defendant’s motion. On June 19, 1992, the court denied the motion, stating that a downward departure from 18 to 15 months was granted and that the recommendation of the United States was not binding. The defendant then brought this timely appeal.\nII\nThe appellant argues that it was improper for the court to consider criminal acts occurring outside of Iowa because only the Iowa wrongdoing served as the basis for the information, and the plea agreement stipulated that the relevant conduct was limited to the defendant’s Iowa activities. We disagree. Under the Guidelines then in effect, the court may consider any activities related to the offense charged. U.S.S.G. § 1B1.3 provided that the base offense level “shall be determined on the basis of ...' all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction_” The activities occurring in other states were part of the same course of conduct.\nMoreover, this court previously has rejected this same argument. United States v. Silverman, 976 F.2d 1502 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993); United States v. Miller, 910 F.2d 1321 (6th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). In Miller, the defendant pled guilty to one count of distributing 1.25 ounces of cocaine. In sentencing the defendant, the trial court looked to drug dealing activities prior to the time of the underlying offense. We stated that under the relevant conduct provision, it was proper for the court to look to activities not charged. The present case is indistinguishable. The illicit activity that occurred in other states was part of the same course of conduct as the Iowa scheme. Additionally, a plea agreement entered into between the government and the defendant is. not binding on the court. United States v. Gaines, 888 F.2d 1122,1123 (6th Cir.1989). For these reasons, we reject the deféndant’s position.\nIII\nAppellant claims that the court erred regarding the proper sentence, based upon confusion demonstrated in the transcript. He argues that the court claimed to grant a downward departure, when in fact it did not. Appellant claims that this mistake requires k new sentencing.\nWe disagree. A sentence that is within the Guideline range is not appealable on the grounds that the court failed to depart downward. United States v. Draper, 888 F.2d 1100 (6th Cir.1989). Indeed, we are without jurisdiction to review any sentence within the guideline range unless the appellant raises a constitutional question. United States v. Reed, 914 F.2d 1288 (9th Cir.1990). The sentence in this ease is squarely within the guidelines range.\nMoreover, the trial court did impose a sentence of less than the upper guideline range of 18 months. Although this reduction is not properly called a “downward departure,” the trial court clearly accepted the recommendation of the United States to some degree. The court also was not bound by the government’s recommendation, and consequently, no reduction was necessary.\nIV\nThe defendant raised a factual dispute regarding the sentencing report. He claimed that the amount of stolen money that can be attributed to him was $104,000, not $139,000. After the court sentenced the defendant to . 15 months, and after the defendant had left the room, the court stated that, in accordance with Fed.K.Crim.P. 32(c)(2)(D), it “ha[d] examined the presentence investigation report and alleged factual inaccuracies and determines that- no finding as to the controverted matter is necessary since the matter controverted has not been taken into account-in the sentencing.” In the Judgment and Commitment Order, the court stated that it was adopting the findings of the pre-sentence report, which suggested a range of 12-18 months, with an offense level of 13. Appellant contends that by using an offense level of 13, the court did rely on disputed matters, because if he stole $104,000, the offense level would have been 12. Accordingly, appellant requests a resentencing.\nThe district court did not err. In the Judgment and Commitment Order, the court clearly stated that it “adopts the factual findings” of the presentence report. The defendant failed to offer at any time any evidence to rebut the findings of the probation report that he stole $139,000. The $104,000 figure constitutes mere conjecture, unsupported by any evidence. We accept the trial court’s finding (which is amply supported by the record) that the amount stolen was $139,000.\nAccordingly, the district court’s judgment and sentence is AFFIRMED.\n. § 2F1.1(b)(1)(H) provides:\nFraud and Deceit\n(a) ....\n(b) Specific Offense Characteristics\n(1) If the loss exceeded $2,000, increase the offense level as follows\n(H) More than $120,000 add 7\n. This reference pertains to 18 U.S.C. § 3553(c), which requires a \"statement of reasons for imposing a sentence” for which the range exceeds 24 months.\n. The $104,000 figure assumes that some activity other than the Iowa scheme is included.\n[END_CASE]", "role": "user" } ]
10,511,491	Ann BRUNET and Denise Sachs, on behalf of themselves and the class they represent, Plaintiffs-Appellants, Guy E. Tucker; James T. Meyer; Stuart J. Tudor; and Joseph S. Hilleary, on behalf of themselves and the class they represent, Plaintiffs-Intervenors-Appellees, v. CITY OF COLUMBUS; Ohio Columbus Civil Service Commission; Dana Rinehart; Alphonso Montgomery, Defendants-Appellees	Brunet v. City of Columbus	1993-07-28	Nos. 92-3340, 92-3893 and 92-4102	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: KENNEDY and MILBURN, Circuit Judges, and WELLFORD, Senior Circuit Judge."], "parties": ["Ann BRUNET and Denise Sachs, on behalf of themselves and the class they represent, Plaintiffs-Appellants, Guy E. Tucker; James T. Meyer; Stuart J. Tudor; and Joseph S. Hilleary, on behalf of themselves and the class they represent, Plaintiffs-Intervenors-Appellees, v. CITY OF COLUMBUS; Ohio Columbus Civil Service Commission; Dana Rinehart; Alphonso Montgomery, Defendants-Appellees."], "opinions": [{"text": "KENNEDY, Circuit Judge.\nPlaintiffs-appellants Ann Brunet and Denise Sachs, female firefighters of the Columbus Division of Fire (the “CDF”), and the class they represent (the “Brunet plaintiffs”), appeal three separate orders of the District Court involving the CDF’s hiring of entry level firefighters. First, they appeal the District Court’s order of March 18, 1992, setting aside a February 27, 1989 consent decree between the Brunet plaintiffs and defendant-appellee City of Columbus (the “City”) and enjoining the City from selecting firefighters in the manner provided by the consent decree. Second, they appeal the District Court’s order of July 24, 1992, holding that strict rank-order hiring on the basis of an applicant’s total score on the firefighter examination is valid and may be used to select firefighters. Third, the Brunet plaintiffs appeal the District Court’s final judgment entered September 24,1992, which incorporates its order of September 23,1992, reducing the seniority of two female firefighters. These appeals result from a cla'ss action by Stuart Tudor, James Meyer, Joseph Hilleary and Guy Tucker' (the “Tucker plaintiffs”), male CDF firefighters or candidates, against the City alleging that the City’s hiring - of firefighters in accordance with the consent decree of February 27,1989, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by discriminating against male applicants in the selection of entry level firefighters. The District Court consolidated the two class actions.\nOn appeal, the issues are (1) whether the District Court erred in determining that the Tucker plaintiffs had standing to pursue their action; (2) whether the District Court erred in holding in May, 1986 that the Brunet plaintiffs failed to. prove intentional discrimination in their claim brought under 42 U.S.C. § 1983; (3) whether the District Court erred in holding that the method of hiring entry level firefighters provided for by the consent decree violated the Tucker plaintiffs’ Equal Protection guarantees not to be discriminated against on the basis -of their gender; (4) whether the District Court erred in finding that the City discriminated against the Tucker plaintiffs by agreeing to the February 27,1989 consent decree bn the grounds that no such allegations were made by the Tucker plaintiffs in their complaint and that that claim is outside the applicable statute of limitations; (5) whether the District Court erred in determining that strict rank-order hiring on the basis of a candidate’s total score on the 1986 et seq. firefighter examination is a valid, job-related method of choosing qualified candidates for the position of firefighter; (6) whether the District Court erred in determining that the Brunet plaintiffs had failed to show the existence of an alternative selection device that has a less adverse impact on women; and (7) whether the District Court erred in holding that an appropriate remedy for the Tucker class of plaintiffs was to alter the seniority dates of two female firefighters. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings.\nI.\nA.\nBrunet Litigation\nThe background of this case is lengthy. Plaintiffs Ann Brunet and Denise Sachs are currently CDF firefighters. In 1980 and 1984, Brunet took the City’s firefighter examination and was not selected as a firefighter. In 1984, Brunet, together with three other plaintiffs, brought a class action against the City alleging that the City’s entry level firefighter examination discriminated against women. The District Court in that case certified a class of all past, present, and future female firefighter candidates.\nThe 1980 and 1984 firefighter examination consisted of a physical capability test (“PCT”) and a written examination called a cognitive ability test (“CAT”), which included a mechanical reasoning test. The CAT constituted 70 percent of the applicant’s total score. The PCT constituted 30 percent of the applicant’s total score. Each candidate was ranked on the basis of his or her total score on the examination. Candidates who' had taken the 1975 and 1978 examinations were ranked on the basis of their scores on the CAT alone. The PCT was administered on a pass/fail basis. The District Court in Brunet determined that this change in the ranking procedure occurred as a result of a Civil Service Commission study conducted by the City that found that “the work of firefighting was largely physical, and that better firefighters were distinguished by the ability to excel while performing physical tasks.” Brunet v. City of Columbus, 642 F.Supp. 1214, 1236 (S.D.Ohio 1986), appeal dismissed, 826 F.2d 1062 (6th Cir.1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 908 (1988). Pursuant to a court order in Dozier v. Chupka, 395 F.Supp. 836 (S.D.Ohio 1975), applicants who took the 1980 and 1984 examination were ranked in the order of their total score on separate eligibility lists for white and black applicants. The purpose of these separate lists was to increase the percentage of black firefighters in the CDF.\nIn their complaint, the Brunet plaintiffs challenged the 1980 and 1984 PCT and the mechanical reasoning portion of the CAT as having a disparate impact on female candidates and as not being job related in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs further contended in a 42 U.S.C. § 1983 claim, that the City in 1980 and 1984 acted \"with intentional discrimination against female firefighter candidates in violation of the Equal Protection Clause of the Fourteenth Amendment.\nThe District Court’s decision in Brunet consisted of an opinion and order entered on May 13, 1986, and a supplemental opinion and order entered on May 30, 1986. The District Court held that the 1980 PCT and the 1980 and 1984 mechanical reasoning tests did not violate Title VII because they had not had a disparate impact on the class of female candidates. Brunet, 642 F.Supp. at 1221. The District Court also held that the plaintiffs failed to prove intentional discrimination in connection with their Equal Protection claim brought under section 1983: Id. at 1223. However, the District Court held that the 1984 PCT did violate Title VII because the 1984 PCT had a disparate impact on female candidates, and the City had failed to demonstrate that the PCT, as it was then designed, was job related. Id. at 1247-50. The District Court also held that the City’s practice of rank-order hiring from a single list grouping together males and females was impermissible under Title VII because the City could not establish that higher scores on the test meant better job performance. Id. at 1248-49.\nThe Brunet Court enjoined the City from hiring any new firefighters until a new PCT could be validated for the 1986 examination. Id. at 1253. It also enjoined the use of rank-order selection from a single list comprised of female and male candidates until strict rank-order hiring could also be validated. Id. at 1252-53. Until validation, the City was required to establish a pass/fail scoring system for the PCT based upon the scores of incumbent firefighters and to hire men and women in proportion to the number of each sex passing the 1986 examination. , Id. at 1253. Finally,- the District Court held that upon adoption of a content valid examination, the City was required to offer the new test to the 1984 female applicants and hire the number of women who would have been hired in 1984 had the test been content valid. Id.\nHowever, on July 14, 1986, before the 1986 test was content validated, the District Court entered an order, also reported at 642 F.Supp. 1214, in which it modified its injunction to allow the City to hire men and women firefighters in proportion to the number of males and females who passed the 1986 test and to select from within either category, either by rank order or on a random basis. Id. at 1254-58. This action was necessary to satisfy the City’s urgent need for new firefighter recruits. Plaintiffs appealed and the City cross-appealed.\nWhile the appeals were pending, the City developed a new 1986 PCT and submitted a content-validity study. Stated simply, a content-valid test identifies those skills important to a particular job and tests those skills. On May 21,1987, the District Court held that the new 1986 PCT was not content valid because it included a task that had an adverse impact on women candidates that was not critical to the performance of a firefighter, namely, the “hose hoist event.” The District Court determined that absent this “noncritical task,” the 1986 PCT was content valid. It then approved 'the use of the PCT without this task in selecting future firefighter elasses. Id. It also directed the City to continue to hire male and female firefighters in proportion to their numbers in the pool of candidates that passed the firefighter examination.\nMoreover, the District Court established a minimum score or “cut” score that all persons taking the examination would have to achieve in order to pass the examination and be eligible for hiring. The cut score was designed to ensure that all persons on the lists of eligible candidates for firefighter were qualified for the position. The District Court found that under this cut score, 15 percent of the incumbent firefighters would fail the PCT. In an order issued on June 12, 1987, the District Court found that had a valid examination been given, a total of four women would have been hired from the 1984 examination, and, noting that the City had already hired three women from that class, it ordered the City to hire one more woman.\nSubsequently, this Court dismissed all pending appeals and cross-appeals on the May 13 and 30,1986 orders on the basis that the appeals were not from final judgments and were moot to the extent that the City had complied fully with the District Court’s injunctions. The parties then appealed and cross-appealed from the May 21, 1987 order. While that appeal was pending, the City filed with the District Court a detailed study called a concurrent criterion-related validity study prepared by an expert in industrial psychology, Dr. Frank J. Landy, which purported to validate strict rank-order hiring. No hearing regarding this study was held at this time.\nOn September 7, 1988, the Brunet plaintiffs filed a motion for contempt against the City alleging that the City had administered the hose hoist event as part of the PCT. While the appeals from the May 21, 1987 order and the contempt motion were pending, the City initiated settlement discussions with the Brunet plaintiffs that culminated in the consent decree of February 27, 1989.\nParagraph 12 of the consent decree provides:\nThe City and the Safety Director shall continue to appoint male and female applicants in proportion to the relative proportions of males and females achieving passing scores on the firefighter entry level test as a whole, for a period of at least 20 years from the date of this Order. The number to be hired if a fraction shall be rounded up to the next whole number.\nThe decree also provided that both the CAT and the PCT would be scored on a pass/fail basis and that the minimum “cut” score required by the District Court would be used to determine which candidates had passed the entire examination and were eligible for hiring. Consent decree, ¶¶ 2, 11. The City also agreed to withdraw its concurrent criterion-related validity study on rank-order hiring, although the District Court had neither examined nor ruled on the study. This consent decree was entered into by the parties and approved by the District Court without a public hearing.\nB.\nTucker Litigation\nThe Tucker plaintiffs sat for the Spring 1990 firefighter examination. On July 26, 1991, Tudor, Meyer and Tucker filed a complaint raising a section 1983 challenge to the hiring pursuant to the consent decree on equal protection grounds. The complaint also requested class certification on behalf of all similarly-situated males. The complaint was amended on August 27, 1991, to, inter alia, add Hilleary as a named plaintiff. On March 18, 1992, the District Court held that the consent decree discriminated against the Tucker plaintiffs on the basis of their gender in violation of the Equal Protection Clause. Consequently, the District Court set aside the consent decree and enjoined the City from selecting firefighters in the manner provided by the consent decree. A timely appeal followed. However, the District Court reserved for future consideration the validity of rank-order hiring, i.e., whether there is a linear relationship between test scores on the PCT and job performance.\nSubsequently, the District Court entertained further evidence in a hearing on May 21, 1992, on the issue of strict rank-order hiring. To support its argument that strict rank-order hiring based on the current firefighter examination is valid, the City resubmitted the concurrent criterion-related validity study prepared by Dr. Landy. Based on this study, the District Court determined in its memorandum opinion of July 24, 1992, that a higher score on the PCT is likely to result in better job performance, and that therefore the test results could be used to select new firefighters in order of their PCT scores. The court also concluded that there existed no comparable test that had a lesser disparate impact on female candidates. It also modified its May 21, 1987 preliminary order to allow the City to hire firefighters in strict rank order from a single list comprised of males and females. The court further directed that the ranking be based on the passing candidates’ combined scores on the PCT and the CAT, giving equal weight to each. The Brunet plaintiffs also timely appealed this order.\nThereafter, on September 23, 1992, the District Court ordered that all male applicants hired from the 1990 test receive seniority ahead of the two female firefighters, Fox and Sachs, who had been hired from the 1990 examination. The District Court based this decision on the fact that both of the two female firefighters’ test scores were lower than the scores of all the males hired from the 1990 examination. On September 24, 1992, the District Court entered a final judgment in favor of the Tucker plaintiffs. On October 19,1992, the Brunet plaintiffs filed a notice appealing from the District Court’s final judgment of September 24, 1992, and from the District Court’s orders of May 13, 1986, May 30,1986, and May 21,1987. All of the appeals were consolidated.\nII. STANDING\nA.\nThe Brunet plaintiffs challenge the Tucker plaintiffs’ standing to bring their action and to act as class representatives. If they lacked standing, then the District Court had no case or controversy over which it, or we, may exercise federal jurisdiction. “The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity ‘to adjudge the legal rights of litigants in actual controversies.’ ” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982) (quoting Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)). The doctrine of standing serves to identify those disputes that satisfy the case-or-controversy requirement of Article III. The party invoking federal jurisdiction bears the burden of establishing standing to sue. Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975).\n[3] First, the plaintiff must have suffered an “injury in fact.” The Supreme Court has made clear that the injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, — U.S. -, -, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). If the injury is not actual, but imminent, the plaintiff cannot simply allege possible injury at some indefinite, future time. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 1724, 109 L.Ed.2d 135 (1990). The Supreme Court acknowledges that “ ‘imminence’ is concededly a somewhat elastic concept,” but stresses that the purpose of the requirement “is to insure that the alleged injury is not too speculative for Article III purposes—that the injury is ‘certainly impending.’ ” Lujan, — U.S. at - n. 2, 112 S.Ct. at 2139 n. 2 (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. at 1724). Next, the litigant must show that the injury is “fairly ... trace[able] to the challenged action” and “is likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41, 38, 96 S.Ct. 1917, 1926, 1924, 48 L.Ed.2d 450 (1976).\nIn Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), a non-minority medical school applicant challenged the University’s affirmative action program. The Court found that Bakke did not have to show that in the absence of the program he would have been admitted to medical school. The Court found injury “in the University’s decision not to permit Bakke to compete for all 100 places in the class, simply because of his race.” Id. at 281 n. 14, 98 S.Ct. at 2743 n. 14. Thus, in the context of affirmative action programs, the challenger need only show that, but for the program, he would have been considered for the job, to satisfy standing requirements. The United States Supreme Court recently reaffirmed this principle in Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, — U.S. -, -, 113 S.Ct. 2297, 2303, 124 L.Ed.2d 586 (1993):\nWhen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection ease of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.\nThe Brunet plaintiffs argue that none of the named plaintiffs in the Tucker action have standing to challenge the consent decree because the decree caused no harm to any of the named Tucker plaintiffs and because any ease or controversy that existed was mooted before class certification. Further, they argue that any threatened future injury was not imminent, but rather was speculative at the time the court ruled on the certification issue.\nThe Columbus City Charter requires the City to hire entry level firefighters according to the “Rule of Three.” Under the Rule of Three, the Columbus Civil Service Commission presents the Director of Public Safety the three highest ranking candidates'for each position from a certified list; the Director may choose any one of the three. In addition to passing the firefighter examination, eligibility is also dependent upon the applicant successfully passing a background investigation, physical examination and polygraph test. An applicant who passes these additional requirements is then, ranked on a certified list. Not all applicants passing the civil service exam appear on the certified list.\nIn order to hire in proportion to the males and females who passed the test, the City maintained separate lists for males and females. The female and male candidates who passed the examination were then ranked on their respective lists according to their scores on the CAT and the PCT. However, for informative purposes, one overall list that grouped males and females together and ranked each candidate on the basis of his or her score was also maintained. On the overall list for the Spring 1990 examination, Tudor ranked 108, Meyer ranked 110, Hilleary ranked 120, and Tucker ranked 176. The first firefighter class hired from' the 1990 eligibility list was the March, 1991 class. By operation of the consent decree, this class consisted of 33 men chosen from the top 50 men appearing‘on the certified list and 3 women. Due to their placement on the overall eligibility list, none of the named plaintiffs were eligible for consideration or entry in this class.\nIn the Summer of 1991, the City prepared to hire another class of 36 firefighters from the 1990 examination list. Pursuant to the consent decree, this class was to consist of the top 34.ranked and qualified men and 2 women. The named plaintiffs were ranked as follows on the certified list for the August, 1991 class:\nTudor: 36\nMeyer: 38\nHilleary: 44\nTucker: Not included on this list.\nIn the absence of the consent decree, 36 men would have been hired for this class. On the overall list, with one exception, no female candidate ranked higher than any of the Tucker plaintiffs.- Hence, in the absence of the consent decree, and in light of the Rule of Three, both Tudor and Meyer would have been considered for a position, and Tudor would probably have been selected.\nAfter receiving notice of the Tucker plaintiffs’ intent to sue the City, the City Attorney made an offer to Tudor and Meyer to expand the August, 1991 class from 36 -to 38 firefighters in order to include them both. Tudor and Meyer rejected the offer and filed their complaint and a motion for a temporary restraining order challenging the constitutionality of the consent decree the next day. The District Court granted the Tucker plaintiffs’ motion to intervene in the Brunet proceedings and consolidated the two eases.\nOn July 30, 1991, the District Court granted a temporary restraining order enjoining the operation of the consent decree. The Brunet plaintiffs appealed the District Court’s grant of the temporary restraining order and sought an emergency stay from the District Court, which it denied on August 15, 1991. The Brunet plaintiffs then sought an emergency order from this Court, which stayed the District Court’s temporary restraining order on August 16, 1991. Additionally, we ordered that, pursuant to the City’s offer, the class that would begin training on Monday, August 19, 1991, would be expanded from 36 to-38 firefighters and include Tudor, Meyer, Vicki Fox, and Denise Sachs.\nOn August 17, 1991, the Tucker plaintiffs sought and received an ex parte order from the District Court temporarily restraining the City from proceeding with its training class on August 19, 1991, until August 20, 1991, in order that this Court might have an opportunity to reconsider the August 16, 1991 order. On August 19, 1991, this Court granted a second emergency stay pursuant to-the Brunet plaintiffs’ motion, and the class of firefighters scheduled to begin training on August 19, 1991, commenced on August 20, 1991, with Sachs, Fox, Meyer, and Tudor in attendance. Thereafter,. this Court dismissed the Brunet plaintiffs’ appeal from the temporary restraining order as moot in light of the commencement of the hiring class.\nThe Tucker plaintiffs filed their motion to certify a class on September 19, 1991. On November 25, 1991, the District Court certified the Tucker plaintiffs’ action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2). The class certified consisted of all males who desired to be in the August, 1991 training class and in future training classes for entry-level firefighters but who would be precluded from such positions or would lose seniority solely on the basis of gender as a result of the consent decree in the Brunet case. In the same order, the District Court addressed the issue of standing. While we agree with the District Court that the Tucker plaintiffs have standing to bring this action, our reasons are other than those given by the District Court.\nB. Hilleary and Tucker\nThe District Court determined that the controversy between Hilleary and Tucker and the City was “very much alive” because “[a]t this point, they have not been hired as firefighters, and they may well be affected in the future by the operation of the 1989 order.” To the extent that the court was referring to their being hired or not, this determination was in error. Tucker was not on the certified list for the August, 1991 class. Thus at this time, Tucker was not eligible for consideration. Moreover, Tucker’s low rank would have eliminated him from consideration for the August, 1991 class. The record is silent as to whether he would appear on the next certified list. Any future injury to him was merely speculative and does not satisfy the Supreme Court’s “imminence” requirement of the standing doctrine in cases of future injury. Lujan, — U.S. at -, 112 S.Ct. at 2136.\nSimilarly, the consent decree did not adversely affect Hilleary’s selection to the August, 1991 training class. The Tucker action challenged the operation of the consent decree from August 1991 forward. Assuming arguendo that the City would have still hired a class of 38 even in absence of the consent decree, the facts show that the last candidate hired was Meyer, number 38. Under the Rule of Three, the City still would have only reached candidate 40 in its consideration for the 38th position in the class; Hilleary ranked 44. Moreover, looking to the facts known to the court at the time it was ruling on the certification motion, unless Hilleary was eliminated for another reason, he would be hired in the next class regardless of the consent decree.\nC. Tudor and Meyer\nThe same was true of Tudor and Meyer, ie., their date of hire was not affected by the consent decree because they would have been hired in the August, 1991 class whether it was in effect or not. In class actions, standing must exist both at the time the complaint is filed and at the time the class was certified. Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). At the time the complaint was filed, July 26, 1991, it appeared the operation of the consent decree would prevent Tudor and Meyer from being considered for admission into the August, • 1991 class because of their gender. Thus, at the time of the complaint, Tudor and Meyer faced imminent injury and had standing to bring the lawsuit.\n“Settlement of á plaintiff s claims moots an action.” Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir.1992) (citing Lake Coal Co. v. Roberts & Schaefer Co., 474 U.S. 120, 106 S.Ct. 553, 88 L.Ed.2d 418 (1985); Hammond Clock Co. v. Schiff, 293 U.S. 529, 55 S.Ct. 146, 79 L.Ed. 639 (1934); 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3533.2, at 233 (1984)). When Tudor and Meyer entered the August, 1991 class, their claims that they should have been hired became moot. Admittedly, special mootness rules exist for class actions. Once a class is certified, the mooting of the named plaintiffs claim does not moot the action, the court continues to have jurisdiction to hear the merits of the action if a controversy between any class member and the defendant exists. Sosna, 419 U.S. at 399, 95 S.Ct. at 557. Where, on the other hand, the named plaintiffs claim becomes moot before certification, dismissal of the action is required. Board of School Comm’rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (per curiam); Lusardi, 975 F.2d at 974; Tucker v. Phyfer, 819 F.2d 1030, 1035 (11th Cir.1987); Sannon v. United States, 631 F.2d 1247, 1252 (5th Cir. 1980). Since Tudor and Meyer entered the class before even filing the certification motion, neither Tudor nor Meyer had standing to contest the hiring procedures at the time of certification.\nThe District Court relied on Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), and United States Parole Commission v. Geraghty, 445 U.S. - 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), to find that Tudor and Meyer have standing in this action. However, the holdings in these cases are limited to the question of a proposed class representative’s right to appeal the denial of class certification and are inapplicable to the present case.\nWe merely hold that when a District Court erroneously denies a procedural motion, which, if correctly decided, would have prevented the action from becoming moot, an appeal lies from the denial and the corrected ruling “relates back” to the date of the original denial.... The “relation back” principle, a traditional equitable doctrine applied to class certification claims in Gerstein v. Pugh, 420 U.S. 103 [95 S.Ct. 854, 43 L.Ed.2d 54] (1975), serves logically to distinguish this ease from the one brought a day after the [named plaintiffs claim on the merits expires].... If the named plaintiff has no personal stake in the outcome at the time class certification is denied, relation back of appellate reversal of that denial still would not prevent mootness of the action.\nGeraghty, 445 U.S. at 406-07 n. 11, 100 S.Ct. at 1214 n. 11. In both Roper and Geraghty, the class representatives had a personal stake in the controversy at the time the court certified the action. Subsequent to the certification, their claims became moot.\nIn contrast, Tudor and Meyer had no personal stake in the hiring procedures at the time the District Court certified the class. We do not read Roper and Geraghty as doing away with the requirement that the proposed class representative have standing at the time of class certification.\nThe District Court also relied on Roper for the proposition that the City cannot “buy off’ the named plaintiffs’ claims in order to' avoid certification. Again, however, Roper concerns the “voluntary cessation” issue in the limited context of the attempt to moot a class representative’s claims, after certification is denied, that operates to prevent appellate review of the denial of that certification. Additionally, unlike in Roper, Meyer and Tudor 'ultimately accepted the City’s settlement offer by entering the August, 1991 class. Thus, both before the motion to certify was even filed and at the time the court certified the class, neither Meyer nor Tudor had a personal stake in being hired. Moreover, the Roper Court emphasized the importance of the factual context in which the case arose. In Roper, the plaintiffs never accepted the defendant’s settlement offer as satisfaction of their substantive claims. The Court found that “[n]either the rejected tender nor the dismissal of the action over plaintiffs’ objection mooted the plaintiffs’ claim on the merits so long as they retained an economic interest in class cértification.” Roper, 445 U.S. at 333, 100 S.Ct. at 1171. In the present case, Tudor and Meyer’s claims were not mooted by the City’s settlement offer or by this Court’s order to expand the class. Their hiring claims were mooted, however, when Tudor and Meyer entered the August, 1991 class.\nSome courts have held that a case does not become moot where a defendant “picks off’ the claims of named plaintiffs with settlement offers in an attempt to avoid a class action. “If a tender made to the individual plaintiff while the motion for certification is pending could prevent the courts from ever reaching the class action issues, that opportunity is at the mercy of a defendant, even in cases where a class action would be most clearly appropriate.” Susman v. Lincoln Am. Corp., 587 F.2d 866, 870 (7th Cir.1978), cert. denied, 445 U.S. 942, 100 S.Ct. 1336, 63 L.Ed.2d 775 (1980). However, these cases are limited to the situation where “a motion for class certification has been pursued .with reasonable diligence and is then pending before the district court.” Id.; see also Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1051 (5th Cir.1981). In the present case, there was no motion for certification pending when the City made its settlement offer. Moreover, Tudor and Meyer accepted the offer before a motion was even filed. We conclude that it was error for the District Court to have based the standing of Tudor and Meyer on the Geraghty and Roper decisions.\nD. Loss of Seniority Rights\nPlaintiffs Tudor, Meyer, and Hilleary did, however, sustain an actual “concrete and particularized” injury in their loss of seniority rights to female firefighters hired pursuant to the consent decree.\nSeniority systems and the entitlements conferred by credits earned thereunder are of vast and increasing importance in the economic employment system of this Nation- Seniority principles are increasingly used to allocate entitlements to scarce benefits among competing employees (“competitive status” seniority) and to compute noncompetitive benefits earned under the contract of employment (“benefit” seniority).... We have already said about “competitive status” seniority that it “has become of overriding importance, and one of its major functions is to determine who gets or who keeps an available job.” Humphrey v. Moore, 375 U.S. 335, 346-347 [84 S.Ct. 363, 370, 11 L.Ed.2d 370] (1964). “More than any other provision of the collective[-bargaining] agreement ... seniority affects the economic security of the individual employee covered by its terms.” Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv.L.Rev. 1532, 1535 (1962).\nFranks v. Bowman Transp. Co., 424 U.S. 747, 766, 96 S.Ct. 1251, 1265, 47 L.Ed.2d 444 (1976).\nSeniority within the [Columbus] Division of Fire is determined by date of appointment. This is important in any firefighter’s career for a number of reasons including pay, pensions, vacation time, “Kelly Day” (or days-off work) selection, and promotions. Seniority points are awarded for years of service, which are then added to a firefighter’s competitive score on promotion examinations; in case of a tie or close finish the more senior person thus obtains the promotions.\n1991 Joint Stipulations, ¶ 10. It is true that Tudor, Meyer, and Hilleary were hired on the same date they would have been hired whether or not the consent decree was in effect. Therefore, their “benefit seniority” rights were not affected by the decree, and they are receiving the same pay, pension contributions and vacation time as they would have -if the women had not been hired.\nThe Tucker plaintiffs’ injury lies in their loss of “competitive status” seniority rights. The women hired in the August, 1991 class achieved a higher place on the CDF’s seniority hierarchy than they would have in absence of the consent decree. Fox and Sachs would be less senior than Tudor, Meyer and Hil-leary if not for the consent decree. Hiring Fox and Sachs, whose test scores were lower than those of any of the Tucker plaintiffs, diminished the employment status of Tudor, Meyer, 'and Hilleary. This is because Fox and Sachs enjoy the same “competitive status” seniority rights as Tudor and Meyer, and greater rights than Hilleary. Tudor and Meyer have lost the advantage of having more seniority points than the women in a future competition for a promotion. They are harmed by having to compete on equal footing with persons who do not belong in their class. Hilleary has not only lost that advantage, but has been put at a disadvam tage because he is less senior than Fox and Sachs. Moreover, when the City expanded the class from 36 to 38, Tudor and Meyer were put in the position of having to compete with two additional persons, and Hilleary, who was hired in the next class, was junior to two more people than he would have been in absence of the consent decree. We hold that the diminution in employment status suffered by the Tucker plaintiffs is a legally cognizable injury for purposes of standing to challenge the City’s hiring practices.\nIn Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989), AT & T adopted a facially non-discriminatory seniority system for an allegedly discriminatory purpose. The allegedly discriminatory effect of the new seniority system was not felt until a few years after its adoption, when female employees, who had lost seniority under the new system, were demoted. The Court faced the issue of “when the limitations period begins to run in a lawsuit arising out of a seniority system not alleged to be discriminatory on its face or as presently applied.” Id. at 903, 109 S.Ct. at 2264. The Supreme Court held that the women were time barred from bringing a Title VII action to challenge the adoption of the system. The Court further held that “when a seniority system is nondiscriminatory in form and application, it is the allegedly discriminatory adoption which triggers the limitations period.” Id. at 911, 109 S.Ct. at 2268-2269 (emphasis in original). In other words, the cause of action accrues upon the happening of the discriminatory act, even if the effects of the discriminatory act are not felt until a later time. See Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, — U.S. -, -, 113 S.Ct. 2297, 2303, 124 L.Ed.2d 586 (1993) (“The ‘injury in fact’ in an equal protection case of this variety [ (city contract set-aside program)] is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”); Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (“proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful”) (emphasis in original) (quoting Abramson v. University of Haw., 594 F.2d 202, 209 (9th Cir.1979)). Thus, under Lorance, the Tucker plaintiffs do not have to wait until they lose out on a promotion to a woman that they would have received if the woman’s date of hire had been later than theirs.\nThe Civil Rights Act of 1991, Pub.Law No. 102-166, 105 Stat. 1071 (1991) (the “Act”), provides additional support for this conclusion. November 21, 1991, was the effective date of the Act and thus, it was in effect on November 25, 1991, the date the class was certified. The Act provides in relevant part:\n[A]n unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchap-ter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.\n42 U.S.C.A. § 2000e-5(e)(2) (West Supp. 1992). In response to Lorance, Congress overruled the Court’s holding that the adoption of the challenged seniority system is the sole triggering event. Section 2000e-5(e)(2) provides for the accrual of a cause of action when the consequences of the discriminatory act are felt by the plaintiff; it did not alter that portion of the decision recognizing that a cause of action accrues at the time of the discriminatory act. Thus, we hold that when the discriminatory act occurred, ie., when the decision was made to hire two women in the August, 1991 class, pursuant to the consent decree, Tudor, Meyer and Hilleary were injured and, therefore, have standing to sue.\nIII.\nThe Brunet plaintiffs argue that the Tucker plaintiffs never made a claim in their original or amended complaints for relief based upon the City entering into the February 27, 1989 consent decree and that consequently, the District Court erred in determining that the City had intentionally discriminated against male applicants by entering into the consent decree. This argument is meritless. See Tucker plaintiffs amended complaint, ¶20. The consent decree forms the basis of the Tucker plaintiffs action, and the Brunet plaintiffs should have been aware of this during the proceedings below. Because this issue was not raised before the District Court, it is considered abandoned on appeal and is not reviewable,, See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991), cert. denied, — U.S. -, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992); First State Bank v. City & County Bank, 872 F.2d 707, 715 n. 5 (6th Cir.1989). The Brunet plaintiffs also argue that any claim regarding the consent decree is barred by the applicable two-year statute of limitations. This argument is an affirmative defense and must be pled. See Fed.R.Civ.P. 8(e). Having raised this argument for the first time in this appeal, the Brunet plaintiffs have waived this affirmative defense. See id.; Great Southwest Life Ins. Co. v. Frazier, 860 F.2d 896, 903 (9th Cir.1988). See also Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 744 (6th Cir.1992) (“Under normal rules of pleading, the statute of limitations is an affirmative defense and must be raised in the answer.” (quoting 5 Wright & Miller, Federal Practice & Procedure, § 1308, at 695 (1990)).\nIV.\nNext we consider whether the District Court erred in determining that the terms of the February 27, 1989 consent decree discriminate against the Tucker plaintiffs in violation of the Equal Protection Clause. In determining that the consent decree violated the Equal Protection Clause, the District Court stated in relevant part;\n[i]n Croson, 488 U.S. at 507 [109 S.Ct. at 729], the Supreme Court held that race based set aside programs undertaken by municipalities are subject to strict scrutiny and that to satisfy the Equal Protection Clause, they must be “narrowly tailored to remedy prior discrimination.” Gender based preferences are likewise subject to strict scrutiny under the Equal Protection Clause.\nThe District Court noted that the Brunet plaintiffs in their underlying claim had failed to prove intentional discrimination by the City against female applicants and further stated that “[t]he only finding of discrimination against women was the finding that the PCT portion of the 1984 entrance examination had an adverse impact against women and that the City had failed to show that it was job related.” The District Court further stated that:\n[although the Brunet plaintiffs argue that the consent decree is supported by past and present disparity of women in the position of firefighter, neither the City nor the Brunet plaintiffs attempted to prove past discrimination with evidence of disparity in the present [consolidated] proceedings. The. Court in the original Brunet case apparently did not accept .plaintiffs’ claims in that regard. In any event, mere statistical imbalance' alone would not suffice. Croson, 488 U.S. at 501 [109 S.Ct. at 725]; Hazelwood School District v. United States, 433 U,S. 299 [97 S.Ct. 2736, 53 L.Ed.2d 768] (1977). There was no evidence introduced here or in the original Brunet case which would justify a finding of a pattern or practice of discrimination against women. There was no evidence that the City itself had made any determination of past discrimination as the predicate for an affirmative action program for the hiring of female firefighters.\nThe District Court concluded that “[b]y agreeing to this order, the City has intentionally discriminated against male applicants” and that “[t]he consent decree violates the Equal Protection rights of male applicants .., because it is not narrowly tailored to remedy the prior discrimination found in Brunet.”\nA.\nFirst, the Brunet plaintiffs argue that the District Court erred in subjecting the consent decree to the strict scrutiny standard of review. In Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982), the Supreme Court applied an intermediate standard of review to the university’s decision not to admit a male applicant to the nursing school solely on the basis of his gender. The Court examined this gender preference to determine if it possessed an important governmental objective and means substantially related to the achievement of the objective. Id. However, in Conlin v. Blanchard, 890 F.2d 811, 816 (6th Cir.1989), we relied on Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), to apply the strict scrutiny standard to an affirmative action plan based on a gender classification. Under the precedent in this Circuit, gender based affirmative action plans are subject to strict scrutiny when challenged under the Equal Protection Clause. Both we and the District Court are bound by the prior decision of this Court in Conlin. But see Coral Constr. Co. v. King County, 941 F.2d 910, 931 (9th Cir.1991) (applying intermediate scrutiny to gender based affirmative action plan), cert. denied, — U.S. -, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992).\nThe Brunet plaintiffs also argue that the consent decree embodies a “gender conscious” plan, which should be subjected to the intermediate standard of review, rather than a “gender preference” plan, which is subjected to the strict scrutiny standard. They rely on Jacobson v. Cincinnati Board of Education, 961 F.2d 100, 102 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 94, 121 L.Ed.2d 55 (1992), in which we employed the intermediate level of scrutiny because the school board’s transfer policy was race neutral, had no disparate impact on any race, and was thus, “race conscious” as opposed to being a “racial preference.”\nUnder the consent decree, some females with lower scores are hired before males with higher scores. The District Court later held (a holding that we affirm below) that applicants scoring higher on the test are better qualified than those with lower scores. Most importantly, the City knew at the time it entered into the consent decree that this was the case. Thus, the consent decree contains a gender preference since it requires that some lesser qualified women be hired before better qualified men.\nB.\nThe Brunet plaintiffs next argue that the District Court erred by placing the burden of proof upon them and the City to prove the constitutionality of the consent decree by producing evidence of past discrimination against women by the CDF. Instead, the Brunet plaintiffs argue, the burden should have been on the Tucker plaintiffs to show an absence of prior discrimination on the part of the fire department against women.\nOur decision in United Black Firefighters Ass’n v. City of Akron, 976 F.2d 999 (6th Cir.1992), is instructive. In United Black Firefighters, we considered the Equal Protection challenge of the local firefighters’ union to the district court’s order approving a consent decree between the United Black Firefighters Association (“UBFA”) and the City of Akron. The consent decree was designed to increase the percentage of black firefighters promoted to the position of lieutenant in the Akron Fire Department. In considering this challenge, we first determined that the local union had successfully shown that the consent decree embodied a racial preference. See id. at 1007. Our focus then shifted to whether this racial preference survived equal protection analysis under the strict scrutiny standard as required by the Supreme Court in Wygant and Croson.\nBoth Wygant and Croson involved Equal Protection challenges to a public employer’s affirmative action plan. We held that under Wygant and Croson, a state actor’s affirmative action plan survives strict scrutiny when (1) a compelling governmental interest underlies its racial preference, and (2) the preference is narrowly tailored to achieve that interest. We further held that, “[u]nder the first prong of the Croson test, a state actor possesses a compelling state interest when its concern is with remedying past discrimination.” United Black Firefighters, 976 F.2d at 1009. We then considered whether the City and/or the UBFA had produced sufficient evidence of past discrimination within the City’s fire department to provide a compelling governmental interest to support the affirmative action plan. Id. at 1010-11. In effect, once the local union proved a racial preference existed, the burden shifted to the defendants to produce evidence of past discrimination sufficient to justify the racial preference. We then held that sufficient evidence of past discrimination exists to support a compelling governmental interest in a racial preference where a “strong basis in evidence” of prior discrimination is shown. Id. at 1009; see also hong v. City of Saginaw, 911 F.2d 1192, 1196 (6th Cir.1990).\nThe Brunet plaintiffs rely on Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), to support their position that the Tucker plaintiffs must prove the absence of prior discrimination. However, the crucial distinction between Johnson and the present case is that in Johnson, the attack on the affirmative action plan at issue was based on Title YII alone; there was no Equal Protection challenge to the plan. The obligations of a public employer under Title VII and under the Constitution in regard to an affirmative action plan are not identical. Id. at 627 n. 6,107 S.Ct. at 1449 n. 6. Johnson is simply not helpful in resolving this issue. Thus, the District Court did not err in placing a burden of production upon the City and the Brunet plaintiffs to show evidence of past discrimination by the CDF in hiring female firefighters once the Tucker plaintiffs showed that the consent decree embodied a gender preference. Of course, the Tucker plaintiffs retain the ultimate burden of persuasion in proving the uneonstitutionality of the consent decree. Wygant, 476 U.S. at 277-78, 106 S.Ct. at 1848-49.\nC.\nThe Brunet plaintiffs next argue that even if strict scrutiny is applied to the consent decree, they have successfully shown a strong basis in evidence of prior discrimination by the CDF sufficient to support a compelling governmental interest in the consent decree. As part of their efforts to make such a showing, the Brunet plaintiffs now seek to appeal the District Court’s May, 1986 orders in which the court held that the Brunet plaintiffs had failed to prevail on their intentional discrimination claim.\nThe Brunet plaintiffs had appealed the District Court’s findings within 30 days of the entry of the orders, but we dismissed that appeal on the ground that no final judgment on that issue had yet been entered. The Brunet plaintiffs concede that entry of the consent decree in this ease could be construed as the final judgment on their claims.\nWhen the Brunet plaintiffs entered into the February 27, 1989 consent decree with the City, they agreed to forego all appeals from previous decisions of the District Court. However, because the consent decree has been set aside and they no longer can enjoy the benefit of their bargain, equitable principles require that they be allowed to now raise on appeal issues mooted by the consent decree. In Jansen v. City of Cincinnati, 977 F.2d 238 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2344, 124 L.Ed.2d 254 (1993), we stated that “[a] consent decree, although in effect a final judgment, is a contract founded on the agreement of the parties.... It should be construed to preserve the position for which the parties bargained....” Id. at 241 (quoting Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992)). Since the Brunet plaintiffs no longer have the benefit of their bargain, they are entitled to the benefits of their litigation. Accordingly, we address the Brunet plaintiffs’ appeal from the District Court’s 1986 determination that they failed on their section 1983 claim alleging intentional discrimination.\nIn Brunet, the District Court held that in view of the substantial evidence suggesting the absence of discrimination, plaintiffs had failed to prove intentional discrimination. In reaching this conclusion, the court relied on the City’s extensive efforts at recruiting women and in preparing women for the examination, and that the women firefighters who were employed suffered no discriminatory treatment in their work. It acknowledged that prior to 1975, job announcements for firefighters were restricted to males and that only five of 832 firefighters were women. It noted that plaintiffs presented evidence about bias against women on the part of the Director of the Training Academy. But it also noted that this bias led to his removal. Finally, it recognized that defendants were aware, at various times, of less discriminatory testing methods than those that they were employing, but refused to adopt them.\nThe district judge did not discuss the change in testing that occurred in 1980 when determining the Brunet plaintiffs’ intentional discrimination claim. In 1975, the first year women were included in the firefighter applicant pool, and in 1978, the City administered the PCT on a pass/fail basis and ranked all candidates in the order of their scores on the CAT. In 1980, the City decided to score the PCT and ranked the candidates based on their combined PCT and CAT scores. The PCT was weighted 30 percent and the CAT 70 percent. Later in the same opinion, Judge Kinneary observed that this change was made “without any apparent consideration being given to possible greater adverse impact upon women.” Brunet, 642 F.Supp. at 1236. The court’s opinion does indicate that the purported reason for the change in approaches was a 1980 job analysis that concluded “that the work of firefighting was largely physical, and that better firefighters were distinguished by the ability to excel while performing physical tasks.” Id. The Civil Service Commission adopted the report’s recommendation that the PCT be made part of the ranking of job candidates. The court thus did not make an explicit finding that the City changed from a pass/fail to a scored PCT for legitimate non-discriminatory reasons. However, we believe that this was implicitly found by the court, as the court was aware of the change and of the purported non-discriminatory reasons for the change. We conclude that the District Court was not clearly erroneous in finding that the City did not intentionally discriminate against women in the hiring of firefighters.\nD.\nThe Brunet plaintiffs argue that they can still show a strong basis in evidence to support the need for the affirmative action program set forth in the consent decree. They contend that the District Court, in its March 18, 1992 order, erred in holding that in order to produce evidence sufficient to support the consent decree, there must be a formal judicial finding of past discrimination. The Tucker plaintiffs do not argue that the City could enter into the consent decree only if there was a judicial finding of past discrimination. Rather, there was a finding of no intentional discrimination, and the Tucker plaintiffs argue that the only finding of discrimination in the Brunet plaintiffs’ underlying action was that the 1984 PCT had a disparate impact on women and that the test was not validated in violation of Title VII. Because this “singular” incident of discrimination had already been remedied, there was not a sufficient basis to support the consent decree’s affirmative action plan.\nThe Brunet plaintiffs are correct that a strong basis in evidence to support a public employer’s affirmative action plan does not require a formal finding of past discrimination. See Wygant, 476 U.S. at 289-92, 106 S.Ct. at 1854-57 (O’Connor, J., concurring); see also United Black Firefighters, 976 F.2d at 1009; Donaghy v. City of Omaha, 933 F.2d 1448, 1459 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 938, 117 L.Ed.2d 109 (1992); Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). In fact, a prima facie case of intentional discrimination is sufficient to support a public employer’s affirmative action plan. See Croson, 488 U.S. at 497, 109 S.Ct. at 724; United Black Firefighters, 976 F.2d at 1010. Thus, less evidence is necessary to justify an affirmative action plan than is necessary to prevail on an individual or class action claim of intentional discrimination. Given the disparity in the required evidentiary standards for each type of relief, a failure to prevail in a previous intentional discrimination claim does not preclude the Brunet plaintiffs from now attempting to show a strong basis in evidence to support the City’s affirmative action plan.\nThe District Court noted in its March 18, 1992 order that there was no finding of intentional discrimination in the Brunet plaintiffs’ 1986 trial. However, the District Court also stated that “[t]here was no evidence introduced here ... which would justify a finding of a pattern or practice of discrimination against women.” This statement indicates that the District Court did not simply rely on the prior decision in the underlying Brunet plaintiffs’ action in reaching its conclusion that insufficient evidence exists to support the consent decree. In light of this holding, we next examine the evidence that the Brunet plaintiffs contend provides a strong basis in evidence of discrimination.\nAppropriate statistical evidence setting forth a prima facie case of discrimination is sufficient to provide a strong, basis in evidence to support a public employers’ affirmative action plan. See Croson, 488 U.S. at 501, 109 S.Ct. at 725; United Black Firefighters, 976 F.2d at 1010. The District Court stated that “[m]ere statistical imbalance alone would not suffice.” The District Court is correct. Rather, as we stated in United Black Firefighters:\n[t]he method generally used is to compare the minority percentage in the relevant statistical pool to the minority percentages in the group of persons selected for the position at issue. See Croson, 488 U.S. at 501-03, 109 S.Ct. at 725-26; Hazelwood School District v. United States, 433 U.S. 299, 308, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977); Long, 911 F.2d at 1199. The relevant statistical pool is comprised of all persons qualified for the position at issue. Roughly the same percentage of minorities observed in the relevant statistical pool should also be observed in the group of persons selected for the position at issue. Id. Where a gross disparity exists between the expected percentage of minorities selected and the actual percentage of minorities selected, then prima facie proof exists to demonstrate intentional discrimination in the selection of - minorities to those particular positions. See Croson, 488 U.S. at 501, 109 S.Ct. at 725; Hazelwood, 433 U.S. at 307-09, 311 n. 17, 97 S.Ct. at 2741-42, 2743 n. 17....\n976 F.2d at 1011.\nThe Brunet plaintiffs offer the following statistical evidence to support the consent decree. Two percent of all those who passed the 1988 firefighter examination were women. However, had it not been for the court ordered proportional hiring requirement, no women would have been hired from that examination list. Thirty-one females out of 519 or 6 percent passed the examination administered in 1990; however, had it not been for the consent decree, only one woman would have been hired. These statistics do indicate a significant disparity. Nevertheless, as we stated in United Black Firefighters, “a gross disparity is not conclusive as to a finding of discrimination, because othér factors unrelated to race may account for the disparity.” Id. Therefore, those opposing the affirmative action plan may present evidence to rebut the inference, thus defeating the validity of the affirmative action plan. See Stuart v. Roache, 951 F.2d 446, 453 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1948, 118 L.Ed.2d 553 (1992).\nThe Tucker plaintiffs have presented evidence to rebut this evidence. The reason 'why only one woman would have been hired from the 1988 and 1990 firefighter examinations absent the proportional hiring requirement is that the PCT is used to rank candidates for hiring purposes and women perform much more poorly than men as a whole on the PCT. The PCT developed in 1986 is valid and, as we determine below, and as the City knew in 1987, rank-order hiring did not discriminate since the PCT and the CAT are both job-related methods of selecting the most qualified individuals for the position of firefighter. Thus, a factor other than intentional discrimination against females accounted for the disparity.\nThe Brunet plaintiffs also note than in 1986, before the trial in their underlying claim, only 6 of 822 or .72 percent of the City’s firefighter force were women and that these women had been hired only as a result of the affirmative action plan arising from Dozier designed to correct past discrimination against black candidates. However, this statistical information is not particularly helpful in showing discrimination or ¡rebutting discrimination because there is'no evidence of how many women desired the position, were qualified and yet were not hired. Moreover, the same reason for the srtiall percentage of women on the fire force today explains why there were so few women on the force in 1986 — the PCT has an adverse impact on women.\nIn its 1986 opinion, the District Court found that the 1980 examination did not have an adverse impact upon women because men and women were hired at about the same rate in proportion to the numbers of males and females eligible for hire. The court declined to attach significance to the fact that all of the women hired were hired from the Dozier list. We think that this was error. We would find that the 1980 examination had an adverse impact upon women, because in absence of the Dozier one-for-one hiring requirement no women would have been hired. However, this discrimination had already been remedied as four women were in fact hired in 1980. We can safely assume that the women actually hired in 1980 were the most qualified women and would be hired first from a female list. Likewise, the discrimination that the court found to exist, in the administration of the 1984 examination had also been remedied.\nThe Brunet plaintiffs are not limited to statistical evidence to support the consent decree. United Black Firefighters, 976 F.2d at 1011. The Brunet plaintiffs refer to other evidence arising as early as 1975 to support the consent decree. The Tucker plaintiffs argue that the consent decree cannot be supported by evidence arising outside the statute of limitations for the Brunet plaintiffs’ underlying claim. The Tucker plaintiffs rely on Campbell v. Dayton, No. C-3-89-098, slip op. at 8 n. 7 (S.D.Ohio Dec. 9, 1991), in which the district court held that the plaintiffs’ claim under Title VII for disparate treatment could not concern acts occurring outside the applicable two-year statute of limitations. This case does not support the Tucker plaintiffs’ position because the Campbell plaintiffs were seeking relief under Title VII and 42 U.S.C. §§ 1981 and 1983.\nIn contrast, the Brunet plaintiffs have introduced evidence for the purpose of justifying a public employer’s affirmative action program, not for the purpose of prevailing on their Title VII and section 1983 claims. This distinction is important since an affirmative action program serves a very different.purpose than does a claim brought under Title VII or section 1983. As the Supreme Court stated in Local 28 of Sheet Metal Workers v. EEOC, 478 U.S. 421, 474, 106 S.Ct. 3019, 3049, 92 L.Ed.2d 344 (1986):\n[t]he purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of employment discrimination and to prevent discrimination in the future. Such relief is provided to the class as a whole rather than to individual members; no individual is entitled to relief, and beneficiaries need not show that they were themselves victims of discrimination.\nIn this connection, we as well as other courts have considered evidence of prior discrimination occurring years before the affirmative action plan at issue. In Vogel, 959 F.2d at 600, we considered evidence as far back as eight years before the underlying claim was filed and nine years before the affirmative action plan at issue was instituted, in upholding an affirmative action plan that provided racial preferences. See also Stuart, 951 F.2d at 452 (considering evidence of discrimination occurring eight years before the underlying claim was filed and ten years before the affirmative action plan at issue was instituted).\nThe Tucker plaintiffs also argue, relying on Quirin v. City of Pittsburgh, 801 F.Supp. 1486 (W.D.Pa.1992), that evidence occurring before 1972, when Title VII was made applicable to state and local governments, cannot be considered to justify an affirmative action plan. However, Quirin does not stand for this proposition. The district court in Quirin found that the only evidence of discrimination against women by the City of Pittsburgh occurred' prior to 1972 and that this evidence was too remote in time from the affirmative action plan implemented in 1987 to provide a sufficient evidentiary basis to support it. See id. at 1492; see also Howard, 871 F.2d at 1007 (considering evidence of discrimination occurring in 1971 to support, in part, the affirmative action plan at issue). Consequently, we may consider evidence occurring prior to 1972 and outside the statute of limitations applicable to the Brunet plaintiffs’ Title VII and section 1983 claims. The question remains, however, whether this evidence constitutes a “strong basis in evidence” to support the consent decree at issue.\nThe strongest evidence of discrimination against women at the CDF is the testimony of Dr. Kriska, the City’s expert who has been in charge of testing of firefighters since 1974, that prior to 1975 the City’s job announcements for the position of firefighter specified “males.” This designation would clearly indicate that the City preferred, if not required, males over females for this position and would have the effect of discouraging women from applying for the job. However, the District Court found in Brunet that there was “substantial evidence” that the City made efforts to encourage women to apply for the job of firefighter after 1975. 642 F.Supp. at 1223. While evidence of discrimination prior to 1975 may be considered, it is conduct that occurred at least 14 years before the February 27, 1989 consent decree was entered. In Hammon v. Barry, 826 F.2d 73, 76-77 (D.C.Cir.), order granting reh’g en banc, 833 F.2d 367 (D.C.Cir.1987), order granting reh’g en banc vacated, 841 F.2d 426 (D.C.Cir.), cert. denied, 486 U.S. 1036, 108 S.Ct. 2023, 100 L.Ed.2d 610 (1988), the Court held that discriminatory conduct occurring 18 years prior to the institution of the affirmative action plan at issue was insufficient by itself to justify the plan under Title VII standards. See also Fountain v. City of Waycross, 701 F.Supp. 1570, 1577 (S.D.Ga. 1988) (if the discrimination is sufficiently remote, it will not create compelling interest).\nIn this case, the discriminatory policy against women in the Columbus fire department prior to 1975 is too remote to support a compelling governmental interest to justify the affirmative action plan embodied in the consent decree. In sum, the affirmative action plan, which provides preferential hiring to females, is not supported by a strong basis in evidence of prior discrimination sufficient to pass constitutional muster — any discrimination against women caused by adverse impact has been remedied, and the intentional discrimination against women that occurred prior to 1975 is too remote. . Further, the Brunet plaintiffs have offered no direct evidence of any intentional discrimination against women on the part of the City after 1975. Since 1987, the City has known that the PCT is job related and that a better score on the PCT and the CAT indicates a more qualified candidate. Thus, since 1987, the PCT’s adverse impact on women has been justified by non-discriminatory job-related reasons. In the absence of a “compelling governmental interest,” i.e., any prior unremedied or current discrimination, the City had no constitutional basis on which to enter into the consent decree, which provided for the hiring of lesser-qualified women and denied men the opportunity to compete for all firefighter positions. By doing so, the City has intentionally discriminated against male applicants because of their gender. We affirm the District Court’s holding that the consent decree violates the Equal Protection rights of male applicants for the entry level position of firefighter. Because, the plan is unsupported by a compelling governmental interest, it is unnecessary for us to consider whether the plan is narrowly tailored as required under Croson.\nV. RANK-ORDER HIRING\nThe District Court determined that a linear relationship between test scores on the PCT and success on the job exists. In other words, the District Court determined that higher scores on the PCT are indicative of greater success as a firefighter. The District Court also determined that no comparable selection devices exist that are “substantially equally valid” as strict rank-order hiring and have less of a disparate impact on women. The Brunet plaintiffs challenge both of these determinations. The District Court based its conclusions primarily on the concurrent criterion-related validity study prepared -by Dr. Landy in 1987. A criterion-related validity study seeks to show the correlation between one’s score on a test and one’s subsequent success on the job. In a concurrent criterion-related analysis, an employment test is given to incumbents who have already obtained the necessary job experience and have an established record of performance. The incumbents’ test scores are compared to their success on the job to determine the degree to which the test successfully measures incumbents’ job performances.\nIn conducting the study, Dr. Landy identified a representative sample of incumbent firefighters who were given the PCT. He then gathered performance ratings from supervisors from these incumbents on eighteen different firefighting performance areas. Dr. Landy next calculated the correlation coefficients, or measures of association, between the incumbents’ test scores and their performance ratings. Both Dr. Landy and the City’s expert, Dr. Kriska, determined on the basis of this study that there was a sufficient correlation between test scores and job performance to support using the PCT for ranking purposes. The District Court agreed.\nThis conclusion is a factual finding reviewed only for clear error. See Police Officers for Equal Rights v. City of Columbus, 916 F.2d 1092, 1103 (6th Cir.1990). “Ranking is a valid, job-related selection technique only where the test scores vary directly with job performance.” Williams v. Vukovich, 720 F.2d 909, 924 (6th Cir.1983). Where a test that has a disparate impact upon a protected class of people is shown to be content valid and valid for purposes of ranking, the plaintiff may still prevail under a Title VII claim if he or she can show that other tests or selection devices would also serve the employer’s legitimate hiring interests and at the same time have a lesser adverse impact upon that protected class. Police Officers, 916 F.2d at 1096.\nIt is not disputed that the 1986 PCT is content valid. However, the Brunet plaintiffs argue that the PCT is not appropriate for ranking purposes. They point to what they believe are serious flaws in the concurrent criterion-related validity study that purport to show that the PCT is appropriate for ranking purposes.\nThe Brunet plaintiffs contend that the hose hoist event, a non-eritical task, was considered by Dr. Landy in calculating the correlation coefficients for the PCT. An examination of Appendix K of the study seems to indicate that this contention is correct. Appendix K provides the correlation coefficient between the PCT and overall job performance. The City’s expert, Dr. Kriska, stated at trial that Appendix K was the crux of the concurrent criterion-related validity study and that he relied on the correlation coefficients in Appendix K most heavily in determining that ranking on the basis of the PCT was valid. In addition, the District Court also relied heavily on Appendix K in reaching its conclusion that ranking on the basis of the PCT is valid. The correlation coefficient for the hose hoist event is .42, a value higher than that for all the other events on the PCT. The correlation coefficient for the overall PCT is .29. Other courts have found such correlation coefficients to be predictive of job performance, thus indicating the appropriateness of ranking where the correlation coefficient value is .30 or better. Clady v. County of Los Angeles, 770 F.2d 1421, 1431-32 (9th Cir.1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1516, 89 L.Ed.2d 915 (1986); Boston Chapter of NAACP v. Beecher, 504 F.2d 1017, 1024 n. 13 (1st Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); see also EEOC v. Atlas Paper Box Co., 868 F.2d 1487, 1502 n. 24 (6th Cir.) (Cook, J. concurring in part and dissenting in part), cert. denied, 493 U.S. 814, 110 S.Ct. 63, 107 L.Ed.2d 30 (1989). The correlation coefficient for the overall PCT is only .29 with the hose hoist event and would most likely be even less without the hose hoist event. Additionally, the Uniform Guidelines provide that a test that “has a low correlation coefficient will be subject to close review if it has a large adverse impact.” 29 C.F.R. § 1607.14B(6); see also Clady, 770 F.2d at 1432 (“[a]s a general principle, the greater the test’s adverse impact, the higher the correlation which will be required”); Atlas Paper Box, 868 F.2d at 1502 n. 24.\nIn rebuttal, the City and the Tucker plaintiffs argue that use of the PCT for ranking purposes can be justified on the basis of content validity alone and that because the PCT has been determined to be content valid, it is also valid for purposes of ranking. The Uniform Guidelines provide in relevant part:\n[w]here a selection procedure supported solely or primarily by content validity is used to rank job candidates, the selection procedure should measure those aspects of performance which differentiate among levels of job performance.\n29 C.F.R. § 1607.14C(9). However, the District Court in its May 27, 1987 opinion and order determined that despite the fact that the PCT was content valid, further studies such as a concurrent criterion-related validity study were required to determine the validity of the PCT for ranking purposes.\nNext, the Tucker plaintiffs point out that the hose hoist event was performed last during the concurrent criterion-related validity study in order to prevent affecting other events. While this may be the case, the fact remains that the correlation coefficient for the hose hoist event was still included in the correlation coefficient for the overall PCT. However, as the District Court noted, it was necessary to evaluate the conflicting testimony of two well-qualified experts in the field of industrial psychology and it found the testimony of the Tucker plaintiffs’ expert, Dr. Landy, more convincing than the testimony of the Brunet plaintiffs’ expert, Dr. Cranny. The court noted that while Dr. Cranny had never prepared an examination for firefighters and had little experience in the testing of public safety personnel, Dr. Landy has had extensive practical experience in the development, validation, and administration of public safety personnel selection in promotion examinations. The court noted that Dr. Landy has studied the firefighter job first hand, living in fire houses and accompanying firefighters inside burning structures. The use of statistical data to validate an examination for ranking purposes is a complicated matter requiring a high level of expertise. A district judge is entitled to rely on the opinion of one expert in examining questions requiring this type of expertise. See Police Officers, 916 F.2d at 1103.\nFurthermore, under the Uniform Guidelines, the values for the correlation coefficients in Appendix K are all statistically significant. Under the Guidelines, the correlation coefficient must have a value of at least .05, which means that it would be expected to occur no more than five times out of a hundred by chance. 29 C.F.R. § 1607.14(b)(5). Where the correlation coefficient is statistically significant, the scores from the selection procedure are considered to possess a direct relationship to one’s performance on the job. Id.\nWe hold that the District Court was not clearly eiToneous in its determination that rank-order hiring is valid.\nVI. ALTERNATIVE HIRING PROCEDURES\nWe next consider whether the District Court erred in determining that there were no alternative selection devices that have less of a disparate impact on females and are “substantially equally valid” methods of choosing qualified firefighters. Uniform Guidelines, 29 C.F.R. § 1607.3(B). It is undisputed that strict rank-order hiring has an adverse impact on female firefighter applicants. Under the auspices of Title VII, once the City has shown that the challenged test is job related, as the City has in this case, the burden shifts to the challengers to prove that the City was using the validated tests as a pretext for discrimination by demonstrating that other tests, without the adverse effects, would also serve the City’s legitimate hiring interests. Police Officers, 916 F.2d at 1096.\nThe Brunet plaintiffs offer two alternatives. First, they suggest that the use of the PCT should be dropped altogether because the correlation coefficient for the CAT as set forth in Appendix K indicates that it alone is more predictive of job performance than the combined PCT and CAT tests. The correlation coefficient for the CAT alone is .52 while the correlation coefficient for the combined test is .44. The District Court rejected this argument relying on Dr. Landy’s testimony showing how the statistical data for the PCT and the CAT could be manipulated to make the PCT alone appear more predictive of success as a firefighter. The court also determined, based on a multiple regression analysis conducted by Dr. Landy, that the PCT was necessary to test those physical skills required to be a firefighter. The court concluded that without the PCT, those physical skills simply would not be tested, and thus, the CAT alone is not as effective in choosing qualified firefighters as is the PCT and the CAT combined. Because we find nothing in the record that leads us to conclude that the District Court was clearly erroneous in this finding, we agree that the PCT cannot be completely eliminated from the firefighter examination.\nThe Brunet plaintiffs next suggest that the City should administer the PCT on a pass/fail basis and then rank candidates solely on the basis of their CAT scores, since the CAT does not have an adverse impact on women. The City utilized this procedure in its 1975 and 1978 firefighter examinations. Although the consent decree provided for the pass/fail administration of both the CAT and the PCT, men and women were ranked, albeit on separate lists, in the order of their combined CAT and PCT scores. The Brunet plaintiffs argue that there is no evidence indicating that the City was dissatisfied with any of the firefighters hired according to these procedures, implying that a pass/fail examination is a viable alternative to a scored examination. The District Court held that rank ordering is justified because there is a direct correlation between performance on the PCT and performance on the job. We believe that the following conclusion is implicit in this holding: For the purpose of hiring the most qualified candidates, a procedure that selects from a pool of applicants who achieve a passing score on the PCT and who are ranked on the basis of the CAT alone, is not “substantially equally valid” to a procedure that chooses its hires from a pool of applicants ranked according to their scores on both the CAT and PCT. We agree.\nThe posture of this case at present differs from the more typical Title VII challenge to hiring devices. The Brunet plaintiffs initially brought a Title VII action against the City in 1984, which culminated in the consent decree that instituted the proportional hiring requirement. After the Tucker plaintiffs’ successful challenge to the consent decree on constitutional grounds, the consent decree was set aside. The City then indicated that in absence of the consent decree it wished to rank order all candidates on one gender-neutral list. However, under the Uniform Guidelines, 29 C.F.R. § 1607.3B, before implementing a process of strict rank-order hiring from one list, a process that has an adverse impact upon women, the City is obligated to conduct its own investigation of viable alternatives with lesser or no impact on the female applicants. “[Bjefore utilizing a [selection] procedure that has an adverse impact on minorities, the City has an obligation pursuant to the Uniform Guidelines to explore alternative procedures and to implement them if they have less adverse impact and are substantially equally valid to rank ordering.” Officers for Justice v. Civil Service Commission, 979 F.2d 721, 728 (9th Cir.1992) (citing the Uniform Guidelines, 29 C.F.R. § 1607.3B). There is nothing in the record indicating the City explored alternatives to strict rank ordering or that the District Court looked to see that the City had done so. We believe that this was error. We reiterate that a selection procedure that ranks only on the basis of CAT scores is not acceptable. However, we have found nothing in the record that requires the CAT and the PCT to be weighted equally. In 1980 and 1984, the PCT constituted 30 percent of an applicant’s score; the CAT weighed in at 70 percent. The City should be required to demonstrate why the CAT, which arguably is more predictive than the PCT, should not be weighted more than the PCT. We suspect that this change would result in less of an adverse impact on women, although it will not eliminate it. But as Judge Kinneary stated seven years ago when the Brunet plaintiffs’ journey began:\nTitle VII does not require employers to equalize the probabilities of hiring of the average members of two groups. Rather, it requires that actual individuals enjoy opportunities for employment free from discriminatory barriers.\nIt is not the province of the Court to determine whether women should be firefighters, or how many women should be firefighters. Rather, it is the Court’s duty to evaluate a test in light of the standards set forth in Title VII. How many women should be firefighters can be decided only by the administration of a validated examination.\nBrunet, 642 F.Supp. at 1228, 1250.\nVII. REMEDY\nLastly, the Brunet plaintiffs assert that the District Court erred in granting the remedy it did in its September 23, 1992 order. The District Court found that “an order adjusting the seniority of male and female firefighters hired pursuant to the 1990 Firefighters Examination is necessary and appropriate to provide the Tucker class of plaintiffs with complete relief.... But for the consent decree of February 27, 1989, the members of the Tucker class would have been hired before Firefighters' Fox and Sachs and would have greater seniority than Firefighters Fox and Sachs.” As a result, the District Court ordered that Fox’s and Sachs’ seniority be adjusted so that it is less than that of all males hired from the 1990 examination.\n“A district court has ‘not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.’ ” United States v. Paradise, 480 U.S. 149, 183, 107 S.Ct. 1053, 1073, 94 L.Ed.2d 203 (1987) (quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965)). It is within the sound discretion of the district court to fashion such a remedy. Id. 480 U.S. at 183-84, 107 S.Ct. at 1072-73. However, the remedy must be narrowly tailored to address the discrimination at issue and take into consideration the interests of all parties affected by the remedy. Id. at 185, 107 S.Ct. at 1073.\nThe Tucker plaintiffs argue that the relief was appropriate because the practical effect of this adjustment was that Fox and Sachs were placed in the seniority order they would have been in had they not been given a preference under the consent decree. The remedy in this action should be to put the Tucker plaintiffs in the same position they would have been in absence of the consent decree. The Brunet plaintiffs argue that the focus of the District Court’s remedy is improperly placed on putting Fox and Sachs in the same or similar position that they would have been in the absence of the consent decree. Moreover, Fox and Sachs retain an important interest in their seniority. See Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757, 763 (6th Cir. 1983) (“the Supreme Court has recently reiterated the ‘overriding importance’ of seniority provisions.... ”). “[T]o protect the strong expectations in these pervasive and important seniority rights, the remedy must be ‘necessary,’ not merely, ‘reasonable’ to vindicate the constitutional rights” of the victims. Id. (citation omitted).\nIn this case, the fashioned relief does not go beyond remedying the effects of discrimination suffered by the Tucker plaintiffs. As discussed at length above, plaintiffs Tudor, Meyer and Hilleary and the class they represent-were harmed'by the fact that Fox and Sachs are either as senior or more senior than them. The only way to remedy their injury is to place Fox and Sachs lower in the seniority hierarchy than the Tucker class, as they would have been in absence of the consent decree. Accordingly, we affirm the District Court’s order of September 23, 1992, adjusting the seniority of firefighters Fox and Sachs.\nVIII.\nThe District Court’s order setting aside the consent decree is AFFIRMED. The District Court’s order adjusting the seniority of firefighters Fox and Sachs is AFFIRMED. The District Court’s order validating rank-order hiring is REVERSED. The case is REMANDED for proceedings consistent with this opinion.\n. The Tucker plaintiffs also named as defendants in their action: Larry H. James, Director of Public Safety; Harmon J. Dutko, Chief of the Division of Fire; the Civil Service Commission of Columbus; Civil Service Commissioners Daniel D. Connor, Julia F. Johnson, and Frederick L. Ransier.\n. The other defendants were the Columbus Civil Service Commission, Columbus Mayor Dana Rinehart, and Columbus Safety Director Alphonso Montgomery.\n. We note that while the consent decree provides for the pass/fail administration of the physical and cognitive portions of the examination, the City actually scored the results of both tests and used the scores to create two rank-ordered lists to comply with the proportional hiring requirement of the consent decree. The consent decree did not require this result. The City could have used another method of choosing candidates from the male and female pools of applicants other than maintaining dual rank ordered lists, e.g., a lottery system.\n. One woman, Darrylee Potter, who ranked 142, was ranked higher than Tucker. Ms. Potter had been hired in the March, 1991 class.,\n. Even if the first 35 ranked applicants were chosen for the first 35 positions, candidates 36, 37 and 38 would have been considered for the 36th position. Tudor and Meyer need not show that they would have been selected for the position, but for the consent decree, only that they would have been considered. See Bakke, 438 U.S. at 280-81 n. 14, 98 S.Ct. at 2742-43 n. 14.\n.Shortly after this series of orders and appeals, the Brunet plaintiffs filed a motion requesting that Judge Kinneary disqualify himself for bias. The court denied this motion. On the same day, August 22, 1991, Judge Kinneary did recuse himself sua sponte, and Judge Graham was assigned to the case.\n. In their complaint, the Tucker plaintiffs made the following assertions:\nThe plaintiff class consists of all males who desire to become Columbus firefighters in the August 19, 1991 class, or in subsequent entry-level firefighter classes, and who are affected by the discriminatory practices described herein....\nAlthough two firefighter positions are at issue for the firefighter class commencing August 19, 1991, the plaintiff class is much broader than simply two persons since it includes all persons who will be affected by the discriminatory practices over approximately the next eighteen years. The plaintiff class includes males who desire to become Columbus firefighters in future classes, and who are or would be affected by the discriminatory practices described herein either in respect of hiring or in respect of their seniority within the Division of Fire.\nTucker Complaint, ¶¶ 12, 13. The action did not reach back to the hiring that took place in March of 1991. The men who lost their position to the women hired in March, 1991 are not part of the Tucker class. Indeed, the women’s placement in the March, 1991 class pursuant to the consent decree is not challenged. Therefore, we do not include the March, 1991 hiring in our analysis of the effect of the consent decree on the Tucker plaintiffs in August, 1991.\n. At the time of class certification, Hilleary was certain to be hired in the next class absent unforeseen circumstances unrelated to his ranking. We note that Hilleary was in fact hired in the next class.\n. The City seeks to challenge the. District Court’s finding that it intentionally discriminated against the male plaintiffs by agreeing to the February 27, 1989 consent decree. The City admits it has not filed a notice of appeal from the District Court's March 18, 1992 order, and we therefore lack jurisdiction to consider the City’s challenge. See e.g., Torres v. Oakland Scavenger Co., 487 U.S. 312, 315, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988).\n. It may be that in the voluminous record this issue was addressed, but we are unable to find it.", "type": "majority", "author": "KENNEDY, Circuit Judge."}, {"text": "WELLFORD, Senior Circuit Judge,\nconcurring.\nI concur with' Judge Kennedy’s analysis of the standing issue (and the general background discussion) set out in part I and part IIA, and with respect to Guy Tucker’s standing set out in part IIB. I believe, however, that Joseph Hilleary may have suffered an actual injury to his interest in August of 1991. The consent decree affected hiring decisions from the same lists in. March of 1991, as well as in the ensuing August. The parties did not discuss the effect on this particular factual circumstance upon Hilleary in their briefs, but I believe the cumulative application of the quota mandate adversely impacted upon him.\nBecause the consent decree required three females to be hired in March and two in August, five females were' elevated above Hilleary. Hilleary was ranked forty-fourth on the August certification list, but he would have been ranked thirty-ninth had the females not been advanced. Pursuant to the Rule of Three, when the decision was to be made for the thirty-eighth spot, Hilleary would have at least been considered for employment in the August, 1991 class. Under Bakke, this denial under the consent decree likely brought about injury to Hilleary given the following two assumptions. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n. 14, 98 S.Ct. 2733, 2743, n. 14, 57 L.Ed.2d 750 (1978) (majority opinion).\nI assume first that the City of Columbus would have chosen thirty-eight firefighters in August of 1991 without the challenge to the consent decree. To suppose otherwise would permit the City to moot the claims of Tudor and Meyer by hiring them, and at the same time enjoy the benefits of the contrary assumption that the City would have hired fewer firefighters had it not taken this defensive action. The fact is that the City did hire thirty-eight firefighters in August.\nSecond, I assume that, absent the consent decree, Hilleary would have attained number thirty-nine on the hiring list in August of 1991. Without the consent decree, three men hired in front of Hilleary in August would presumably have been hired in March. Then in August, two more males (instead of two females) would have been hired. This effectively would have moved Hilleary from position forty-four to thirty-nine absent the consent decree. Thus, I disagree with the majority conclusion in part IIB that “the consent decree did not adversely affect Hil-leary’s selection to the August 1991 training class.”\nI also concur with the majority’s analysis in part IIC of the opinion. As to part IID, since I cannot be sure that all firefighters, regardless of rank number or rating, who are hired on the same day or in the same class, do not have the same seniority status, I cannot join in the majority’s part IID discussion. If, in fact, the firefighters hired at the same time from the same class are given different seniority rankings, then I could join the majority’s part IID, but that would be supposition on my part. I assume, in the absence of evidence to the contrary, that every member of the same class has the same date of appointment and the same seniority.\nRegardless of the consent decree, Tudor’s seniority rights, for example, would be inferi- or to thirty-six firefighters (the number of firefighters hired in March) and equal to thirty-eight (the number hired in August). Under the consent decree, three of the thirty-six are women rather than men, and two of the thirty-eight are women rather than men. Tudor does not suffer an injury because he must compete with women rather than with men. He does not suffer an injury merely because less qualified persons enjoy equal or similar seniority rights.\nI concur with the majority also in parts III, IV and V of the decision. Therefore, I agree with the majority that we must set aside the consent decree, and would affirm the district court order adjusting seniority. Finally, I concur with the majority decision to reverse the, order validating rank-order hiring, and to remand in that respect for the reasons stated.", "type": "concurrence", "author": "WELLFORD, Senior Circuit Judge,"}], "attorneys": ["Alexander M. Spater (argued and briefed), Kathaleen B. Schulte (briefed), Spater, Gittes, Schulte & Kolman, Columbus, OH, for Ann Brunet and Denise Sachs.", "Marion H. Little, Jr., Richard Frye (argued), Schwartz, Kelm, Warren & Ruben-stein, Columbus, OH, Jeffrey S. Bolyard (briefed), McNeer, Highland & McMunn, Clarksburg, WV, for Guy E. Tucker, James T. Meyer, Stuart J. Tudor and Joseph S. Hilleary in No. 92-3340 and 92-4102.", "Ronald J. O’Brien (argued and briefed), City Attorney’s Office for the City of Columbus, Columbus, OH, for City of Columbus, Ohio Civil Service Com’n, Dana Rinehart, Alphonso Montgomery.", "Richard Frye (argued and briefed), Marion H. Little, Jr. (briefed), Schwartz, Kelm, Warren & Rubenstein, Columbus, OH, Jeffrey S. Bolyard (briefed), McNeer, Highland . & McMunn, Clarksburg, WV, for Guy E. Tucker, James T. Meyer, Stuart J. Tudor, and Joseph S. Hilleary."], "corrections": "", "head_matter": "Ann BRUNET and Denise Sachs, on behalf of themselves and the class they represent, Plaintiffs-Appellants, Guy E. Tucker; James T. Meyer; Stuart J. Tudor; and Joseph S. Hilleary, on behalf of themselves and the class they represent, Plaintiffs-Intervenors-Appellees, v. CITY OF COLUMBUS; Ohio Columbus Civil Service Commission; Dana Rinehart; Alphonso Montgomery, Defendants-Appellees.\nNos. 92-3340, 92-3893 and 92-4102.\nUnited States Court of Appeals, Sixth Circuit.\nArgued March 18, 1993.\nDecided July 28, 1993.\nRehearing and Suggestion for Rehearing En Bane Denied Oct. 4, 1993-.\nAlexander M. Spater (argued and briefed), Kathaleen B. Schulte (briefed), Spater, Gittes, Schulte & Kolman, Columbus, OH, for Ann Brunet and Denise Sachs.\nMarion H. Little, Jr., Richard Frye (argued), Schwartz, Kelm, Warren & Ruben-stein, Columbus, OH, Jeffrey S. Bolyard (briefed), McNeer, Highland & McMunn, Clarksburg, WV, for Guy E. Tucker, James T. Meyer, Stuart J. Tudor and Joseph S. Hilleary in No. 92-3340 and 92-4102.\nRonald J. O’Brien (argued and briefed), City Attorney’s Office for the City of Columbus, Columbus, OH, for City of Columbus, Ohio Civil Service Com’n, Dana Rinehart, Alphonso Montgomery.\nRichard Frye (argued and briefed), Marion H. Little, Jr. (briefed), Schwartz, Kelm, Warren & Rubenstein, Columbus, OH, Jeffrey S. Bolyard (briefed), McNeer, Highland . & McMunn, Clarksburg, WV, for Guy E. Tucker, James T. Meyer, Stuart J. Tudor, and Joseph S. Hilleary.\nBefore: KENNEDY and MILBURN, Circuit Judges, and WELLFORD, Senior Circuit Judge."}	KENNEDY	MILBURN	WELLFORD	1	2	1	0	1	0	1 F.3d 390	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ann BRUNET and Denise Sachs, on behalf of themselves and the class they represent, Plaintiffs-Appellants, Guy E. Tucker; James T. Meyer; Stuart J. Tudor; and Joseph S. Hilleary, on behalf of themselves and the class they represent, Plaintiffs-Intervenors-Appellees, v. CITY OF COLUMBUS; Ohio Columbus Civil Service Commission; Dana Rinehart; Alphonso Montgomery, Defendants-Appellees\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-07-28\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nKENNEDY, Circuit Judge.\nPlaintiffs-appellants Ann Brunet and Denise Sachs, female firefighters of the Columbus Division of Fire (the “CDF”), and the class they represent (the “Brunet plaintiffs”), appeal three separate orders of the District Court involving the CDF’s hiring of entry level firefighters. First, they appeal the District Court’s order of March 18, 1992, setting aside a February 27, 1989 consent decree between the Brunet plaintiffs and defendant-appellee City of Columbus (the “City”) and enjoining the City from selecting firefighters in the manner provided by the consent decree. Second, they appeal the District Court’s order of July 24, 1992, holding that strict rank-order hiring on the basis of an applicant’s total score on the firefighter examination is valid and may be used to select firefighters. Third, the Brunet plaintiffs appeal the District Court’s final judgment entered September 24,1992, which incorporates its order of September 23,1992, reducing the seniority of two female firefighters. These appeals result from a cla'ss action by Stuart Tudor, James Meyer, Joseph Hilleary and Guy Tucker' (the “Tucker plaintiffs”), male CDF firefighters or candidates, against the City alleging that the City’s hiring - of firefighters in accordance with the consent decree of February 27,1989, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by discriminating against male applicants in the selection of entry level firefighters. The District Court consolidated the two class actions.\nOn appeal, the issues are (1) whether the District Court erred in determining that the Tucker plaintiffs had standing to pursue their action; (2) whether the District Court erred in holding in May, 1986 that the Brunet plaintiffs failed to. prove intentional discrimination in their claim brought under 42 U.S.C. § 1983; (3) whether the District Court erred in holding that the method of hiring entry level firefighters provided for by the consent decree violated the Tucker plaintiffs’ Equal Protection guarantees not to be discriminated against on the basis -of their gender; (4) whether the District Court erred in finding that the City discriminated against the Tucker plaintiffs by agreeing to the February 27,1989 consent decree bn the grounds that no such allegations were made by the Tucker plaintiffs in their complaint and that that claim is outside the applicable statute of limitations; (5) whether the District Court erred in determining that strict rank-order hiring on the basis of a candidate’s total score on the 1986 et seq. firefighter examination is a valid, job-related method of choosing qualified candidates for the position of firefighter; (6) whether the District Court erred in determining that the Brunet plaintiffs had failed to show the existence of an alternative selection device that has a less adverse impact on women; and (7) whether the District Court erred in holding that an appropriate remedy for the Tucker class of plaintiffs was to alter the seniority dates of two female firefighters. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings.\nI.\nA.\nBrunet Litigation\nThe background of this case is lengthy. Plaintiffs Ann Brunet and Denise Sachs are currently CDF firefighters. In 1980 and 1984, Brunet took the City’s firefighter examination and was not selected as a firefighter. In 1984, Brunet, together with three other plaintiffs, brought a class action against the City alleging that the City’s entry level firefighter examination discriminated against women. The District Court in that case certified a class of all past, present, and future female firefighter candidates.\nThe 1980 and 1984 firefighter examination consisted of a physical capability test (“PCT”) and a written examination called a cognitive ability test (“CAT”), which included a mechanical reasoning test. The CAT constituted 70 percent of the applicant’s total score. The PCT constituted 30 percent of the applicant’s total score. Each candidate was ranked on the basis of his or her total score on the examination. Candidates who' had taken the 1975 and 1978 examinations were ranked on the basis of their scores on the CAT alone. The PCT was administered on a pass/fail basis. The District Court in Brunet determined that this change in the ranking procedure occurred as a result of a Civil Service Commission study conducted by the City that found that “the work of firefighting was largely physical, and that better firefighters were distinguished by the ability to excel while performing physical tasks.” Brunet v. City of Columbus, 642 F.Supp. 1214, 1236 (S.D.Ohio 1986), appeal dismissed, 826 F.2d 1062 (6th Cir.1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 908 (1988). Pursuant to a court order in Dozier v. Chupka, 395 F.Supp. 836 (S.D.Ohio 1975), applicants who took the 1980 and 1984 examination were ranked in the order of their total score on separate eligibility lists for white and black applicants. The purpose of these separate lists was to increase the percentage of black firefighters in the CDF.\nIn their complaint, the Brunet plaintiffs challenged the 1980 and 1984 PCT and the mechanical reasoning portion of the CAT as having a disparate impact on female candidates and as not being job related in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs further contended in a 42 U.S.C. § 1983 claim, that the City in 1980 and 1984 acted \"with intentional discrimination against female firefighter candidates in violation of the Equal Protection Clause of the Fourteenth Amendment.\nThe District Court’s decision in Brunet consisted of an opinion and order entered on May 13, 1986, and a supplemental opinion and order entered on May 30, 1986. The District Court held that the 1980 PCT and the 1980 and 1984 mechanical reasoning tests did not violate Title VII because they had not had a disparate impact on the class of female candidates. Brunet, 642 F.Supp. at 1221. The District Court also held that the plaintiffs failed to prove intentional discrimination in connection with their Equal Protection claim brought under section 1983: Id. at 1223. However, the District Court held that the 1984 PCT did violate Title VII because the 1984 PCT had a disparate impact on female candidates, and the City had failed to demonstrate that the PCT, as it was then designed, was job related. Id. at 1247-50. The District Court also held that the City’s practice of rank-order hiring from a single list grouping together males and females was impermissible under Title VII because the City could not establish that higher scores on the test meant better job performance. Id. at 1248-49.\nThe Brunet Court enjoined the City from hiring any new firefighters until a new PCT could be validated for the 1986 examination. Id. at 1253. It also enjoined the use of rank-order selection from a single list comprised of female and male candidates until strict rank-order hiring could also be validated. Id. at 1252-53. Until validation, the City was required to establish a pass/fail scoring system for the PCT based upon the scores of incumbent firefighters and to hire men and women in proportion to the number of each sex passing the 1986 examination. , Id. at 1253. Finally,- the District Court held that upon adoption of a content valid examination, the City was required to offer the new test to the 1984 female applicants and hire the number of women who would have been hired in 1984 had the test been content valid. Id.\nHowever, on July 14, 1986, before the 1986 test was content validated, the District Court entered an order, also reported at 642 F.Supp. 1214, in which it modified its injunction to allow the City to hire men and women firefighters in proportion to the number of males and females who passed the 1986 test and to select from within either category, either by rank order or on a random basis. Id. at 1254-58. This action was necessary to satisfy the City’s urgent need for new firefighter recruits. Plaintiffs appealed and the City cross-appealed.\nWhile the appeals were pending, the City developed a new 1986 PCT and submitted a content-validity study. Stated simply, a content-valid test identifies those skills important to a particular job and tests those skills. On May 21,1987, the District Court held that the new 1986 PCT was not content valid because it included a task that had an adverse impact on women candidates that was not critical to the performance of a firefighter, namely, the “hose hoist event.” The District Court determined that absent this “noncritical task,” the 1986 PCT was content valid. It then approved 'the use of the PCT without this task in selecting future firefighter elasses. Id. It also directed the City to continue to hire male and female firefighters in proportion to their numbers in the pool of candidates that passed the firefighter examination.\nMoreover, the District Court established a minimum score or “cut” score that all persons taking the examination would have to achieve in order to pass the examination and be eligible for hiring. The cut score was designed to ensure that all persons on the lists of eligible candidates for firefighter were qualified for the position. The District Court found that under this cut score, 15 percent of the incumbent firefighters would fail the PCT. In an order issued on June 12, 1987, the District Court found that had a valid examination been given, a total of four women would have been hired from the 1984 examination, and, noting that the City had already hired three women from that class, it ordered the City to hire one more woman.\nSubsequently, this Court dismissed all pending appeals and cross-appeals on the May 13 and 30,1986 orders on the basis that the appeals were not from final judgments and were moot to the extent that the City had complied fully with the District Court’s injunctions. The parties then appealed and cross-appealed from the May 21, 1987 order. While that appeal was pending, the City filed with the District Court a detailed study called a concurrent criterion-related validity study prepared by an expert in industrial psychology, Dr. Frank J. Landy, which purported to validate strict rank-order hiring. No hearing regarding this study was held at this time.\nOn September 7, 1988, the Brunet plaintiffs filed a motion for contempt against the City alleging that the City had administered the hose hoist event as part of the PCT. While the appeals from the May 21, 1987 order and the contempt motion were pending, the City initiated settlement discussions with the Brunet plaintiffs that culminated in the consent decree of February 27, 1989.\nParagraph 12 of the consent decree provides:\nThe City and the Safety Director shall continue to appoint male and female applicants in proportion to the relative proportions of males and females achieving passing scores on the firefighter entry level test as a whole, for a period of at least 20 years from the date of this Order. The number to be hired if a fraction shall be rounded up to the next whole number.\nThe decree also provided that both the CAT and the PCT would be scored on a pass/fail basis and that the minimum “cut” score required by the District Court would be used to determine which candidates had passed the entire examination and were eligible for hiring. Consent decree, ¶¶ 2, 11. The City also agreed to withdraw its concurrent criterion-related validity study on rank-order hiring, although the District Court had neither examined nor ruled on the study. This consent decree was entered into by the parties and approved by the District Court without a public hearing.\nB.\nTucker Litigation\nThe Tucker plaintiffs sat for the Spring 1990 firefighter examination. On July 26, 1991, Tudor, Meyer and Tucker filed a complaint raising a section 1983 challenge to the hiring pursuant to the consent decree on equal protection grounds. The complaint also requested class certification on behalf of all similarly-situated males. The complaint was amended on August 27, 1991, to, inter alia, add Hilleary as a named plaintiff. On March 18, 1992, the District Court held that the consent decree discriminated against the Tucker plaintiffs on the basis of their gender in violation of the Equal Protection Clause. Consequently, the District Court set aside the consent decree and enjoined the City from selecting firefighters in the manner provided by the consent decree. A timely appeal followed. However, the District Court reserved for future consideration the validity of rank-order hiring, i.e., whether there is a linear relationship between test scores on the PCT and job performance.\nSubsequently, the District Court entertained further evidence in a hearing on May 21, 1992, on the issue of strict rank-order hiring. To support its argument that strict rank-order hiring based on the current firefighter examination is valid, the City resubmitted the concurrent criterion-related validity study prepared by Dr. Landy. Based on this study, the District Court determined in its memorandum opinion of July 24, 1992, that a higher score on the PCT is likely to result in better job performance, and that therefore the test results could be used to select new firefighters in order of their PCT scores. The court also concluded that there existed no comparable test that had a lesser disparate impact on female candidates. It also modified its May 21, 1987 preliminary order to allow the City to hire firefighters in strict rank order from a single list comprised of males and females. The court further directed that the ranking be based on the passing candidates’ combined scores on the PCT and the CAT, giving equal weight to each. The Brunet plaintiffs also timely appealed this order.\nThereafter, on September 23, 1992, the District Court ordered that all male applicants hired from the 1990 test receive seniority ahead of the two female firefighters, Fox and Sachs, who had been hired from the 1990 examination. The District Court based this decision on the fact that both of the two female firefighters’ test scores were lower than the scores of all the males hired from the 1990 examination. On September 24, 1992, the District Court entered a final judgment in favor of the Tucker plaintiffs. On October 19,1992, the Brunet plaintiffs filed a notice appealing from the District Court’s final judgment of September 24, 1992, and from the District Court’s orders of May 13, 1986, May 30,1986, and May 21,1987. All of the appeals were consolidated.\nII. STANDING\nA.\nThe Brunet plaintiffs challenge the Tucker plaintiffs’ standing to bring their action and to act as class representatives. If they lacked standing, then the District Court had no case or controversy over which it, or we, may exercise federal jurisdiction. “The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity ‘to adjudge the legal rights of litigants in actual controversies.’ ” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982) (quoting Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)). The doctrine of standing serves to identify those disputes that satisfy the case-or-controversy requirement of Article III. The party invoking federal jurisdiction bears the burden of establishing standing to sue. Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975).\n[3] First, the plaintiff must have suffered an “injury in fact.” The Supreme Court has made clear that the injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, — U.S. -, -, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). If the injury is not actual, but imminent, the plaintiff cannot simply allege possible injury at some indefinite, future time. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 1724, 109 L.Ed.2d 135 (1990). The Supreme Court acknowledges that “ ‘imminence’ is concededly a somewhat elastic concept,” but stresses that the purpose of the requirement “is to insure that the alleged injury is not too speculative for Article III purposes—that the injury is ‘certainly impending.’ ” Lujan, — U.S. at - n. 2, 112 S.Ct. at 2139 n. 2 (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. at 1724). Next, the litigant must show that the injury is “fairly ... trace[able] to the challenged action” and “is likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41, 38, 96 S.Ct. 1917, 1926, 1924, 48 L.Ed.2d 450 (1976).\nIn Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), a non-minority medical school applicant challenged the University’s affirmative action program. The Court found that Bakke did not have to show that in the absence of the program he would have been admitted to medical school. The Court found injury “in the University’s decision not to permit Bakke to compete for all 100 places in the class, simply because of his race.” Id. at 281 n. 14, 98 S.Ct. at 2743 n. 14. Thus, in the context of affirmative action programs, the challenger need only show that, but for the program, he would have been considered for the job, to satisfy standing requirements. The United States Supreme Court recently reaffirmed this principle in Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, — U.S. -, -, 113 S.Ct. 2297, 2303, 124 L.Ed.2d 586 (1993):\nWhen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection ease of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.\nThe Brunet plaintiffs argue that none of the named plaintiffs in the Tucker action have standing to challenge the consent decree because the decree caused no harm to any of the named Tucker plaintiffs and because any ease or controversy that existed was mooted before class certification. Further, they argue that any threatened future injury was not imminent, but rather was speculative at the time the court ruled on the certification issue.\nThe Columbus City Charter requires the City to hire entry level firefighters according to the “Rule of Three.” Under the Rule of Three, the Columbus Civil Service Commission presents the Director of Public Safety the three highest ranking candidates'for each position from a certified list; the Director may choose any one of the three. In addition to passing the firefighter examination, eligibility is also dependent upon the applicant successfully passing a background investigation, physical examination and polygraph test. An applicant who passes these additional requirements is then, ranked on a certified list. Not all applicants passing the civil service exam appear on the certified list.\nIn order to hire in proportion to the males and females who passed the test, the City maintained separate lists for males and females. The female and male candidates who passed the examination were then ranked on their respective lists according to their scores on the CAT and the PCT. However, for informative purposes, one overall list that grouped males and females together and ranked each candidate on the basis of his or her score was also maintained. On the overall list for the Spring 1990 examination, Tudor ranked 108, Meyer ranked 110, Hilleary ranked 120, and Tucker ranked 176. The first firefighter class hired from' the 1990 eligibility list was the March, 1991 class. By operation of the consent decree, this class consisted of 33 men chosen from the top 50 men appearing‘on the certified list and 3 women. Due to their placement on the overall eligibility list, none of the named plaintiffs were eligible for consideration or entry in this class.\nIn the Summer of 1991, the City prepared to hire another class of 36 firefighters from the 1990 examination list. Pursuant to the consent decree, this class was to consist of the top 34.ranked and qualified men and 2 women. The named plaintiffs were ranked as follows on the certified list for the August, 1991 class:\nTudor: 36\nMeyer: 38\nHilleary: 44\nTucker: Not included on this list.\nIn the absence of the consent decree, 36 men would have been hired for this class. On the overall list, with one exception, no female candidate ranked higher than any of the Tucker plaintiffs.- Hence, in the absence of the consent decree, and in light of the Rule of Three, both Tudor and Meyer would have been considered for a position, and Tudor would probably have been selected.\nAfter receiving notice of the Tucker plaintiffs’ intent to sue the City, the City Attorney made an offer to Tudor and Meyer to expand the August, 1991 class from 36 -to 38 firefighters in order to include them both. Tudor and Meyer rejected the offer and filed their complaint and a motion for a temporary restraining order challenging the constitutionality of the consent decree the next day. The District Court granted the Tucker plaintiffs’ motion to intervene in the Brunet proceedings and consolidated the two eases.\nOn July 30, 1991, the District Court granted a temporary restraining order enjoining the operation of the consent decree. The Brunet plaintiffs appealed the District Court’s grant of the temporary restraining order and sought an emergency stay from the District Court, which it denied on August 15, 1991. The Brunet plaintiffs then sought an emergency order from this Court, which stayed the District Court’s temporary restraining order on August 16, 1991. Additionally, we ordered that, pursuant to the City’s offer, the class that would begin training on Monday, August 19, 1991, would be expanded from 36 to-38 firefighters and include Tudor, Meyer, Vicki Fox, and Denise Sachs.\nOn August 17, 1991, the Tucker plaintiffs sought and received an ex parte order from the District Court temporarily restraining the City from proceeding with its training class on August 19, 1991, until August 20, 1991, in order that this Court might have an opportunity to reconsider the August 16, 1991 order. On August 19, 1991, this Court granted a second emergency stay pursuant to-the Brunet plaintiffs’ motion, and the class of firefighters scheduled to begin training on August 19, 1991, commenced on August 20, 1991, with Sachs, Fox, Meyer, and Tudor in attendance. Thereafter,. this Court dismissed the Brunet plaintiffs’ appeal from the temporary restraining order as moot in light of the commencement of the hiring class.\nThe Tucker plaintiffs filed their motion to certify a class on September 19, 1991. On November 25, 1991, the District Court certified the Tucker plaintiffs’ action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2). The class certified consisted of all males who desired to be in the August, 1991 training class and in future training classes for entry-level firefighters but who would be precluded from such positions or would lose seniority solely on the basis of gender as a result of the consent decree in the Brunet case. In the same order, the District Court addressed the issue of standing. While we agree with the District Court that the Tucker plaintiffs have standing to bring this action, our reasons are other than those given by the District Court.\nB. Hilleary and Tucker\nThe District Court determined that the controversy between Hilleary and Tucker and the City was “very much alive” because “[a]t this point, they have not been hired as firefighters, and they may well be affected in the future by the operation of the 1989 order.” To the extent that the court was referring to their being hired or not, this determination was in error. Tucker was not on the certified list for the August, 1991 class. Thus at this time, Tucker was not eligible for consideration. Moreover, Tucker’s low rank would have eliminated him from consideration for the August, 1991 class. The record is silent as to whether he would appear on the next certified list. Any future injury to him was merely speculative and does not satisfy the Supreme Court’s “imminence” requirement of the standing doctrine in cases of future injury. Lujan, — U.S. at -, 112 S.Ct. at 2136.\nSimilarly, the consent decree did not adversely affect Hilleary’s selection to the August, 1991 training class. The Tucker action challenged the operation of the consent decree from August 1991 forward. Assuming arguendo that the City would have still hired a class of 38 even in absence of the consent decree, the facts show that the last candidate hired was Meyer, number 38. Under the Rule of Three, the City still would have only reached candidate 40 in its consideration for the 38th position in the class; Hilleary ranked 44. Moreover, looking to the facts known to the court at the time it was ruling on the certification motion, unless Hilleary was eliminated for another reason, he would be hired in the next class regardless of the consent decree.\nC. Tudor and Meyer\nThe same was true of Tudor and Meyer, ie., their date of hire was not affected by the consent decree because they would have been hired in the August, 1991 class whether it was in effect or not. In class actions, standing must exist both at the time the complaint is filed and at the time the class was certified. Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). At the time the complaint was filed, July 26, 1991, it appeared the operation of the consent decree would prevent Tudor and Meyer from being considered for admission into the August, • 1991 class because of their gender. Thus, at the time of the complaint, Tudor and Meyer faced imminent injury and had standing to bring the lawsuit.\n“Settlement of á plaintiff s claims moots an action.” Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir.1992) (citing Lake Coal Co. v. Roberts & Schaefer Co., 474 U.S. 120, 106 S.Ct. 553, 88 L.Ed.2d 418 (1985); Hammond Clock Co. v. Schiff, 293 U.S. 529, 55 S.Ct. 146, 79 L.Ed. 639 (1934); 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3533.2, at 233 (1984)). When Tudor and Meyer entered the August, 1991 class, their claims that they should have been hired became moot. Admittedly, special mootness rules exist for class actions. Once a class is certified, the mooting of the named plaintiffs claim does not moot the action, the court continues to have jurisdiction to hear the merits of the action if a controversy between any class member and the defendant exists. Sosna, 419 U.S. at 399, 95 S.Ct. at 557. Where, on the other hand, the named plaintiffs claim becomes moot before certification, dismissal of the action is required. Board of School Comm’rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (per curiam); Lusardi, 975 F.2d at 974; Tucker v. Phyfer, 819 F.2d 1030, 1035 (11th Cir.1987); Sannon v. United States, 631 F.2d 1247, 1252 (5th Cir. 1980). Since Tudor and Meyer entered the class before even filing the certification motion, neither Tudor nor Meyer had standing to contest the hiring procedures at the time of certification.\nThe District Court relied on Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), and United States Parole Commission v. Geraghty, 445 U.S. - 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), to find that Tudor and Meyer have standing in this action. However, the holdings in these cases are limited to the question of a proposed class representative’s right to appeal the denial of class certification and are inapplicable to the present case.\nWe merely hold that when a District Court erroneously denies a procedural motion, which, if correctly decided, would have prevented the action from becoming moot, an appeal lies from the denial and the corrected ruling “relates back” to the date of the original denial.... The “relation back” principle, a traditional equitable doctrine applied to class certification claims in Gerstein v. Pugh, 420 U.S. 103 [95 S.Ct. 854, 43 L.Ed.2d 54] (1975), serves logically to distinguish this ease from the one brought a day after the [named plaintiffs claim on the merits expires].... If the named plaintiff has no personal stake in the outcome at the time class certification is denied, relation back of appellate reversal of that denial still would not prevent mootness of the action.\nGeraghty, 445 U.S. at 406-07 n. 11, 100 S.Ct. at 1214 n. 11. In both Roper and Geraghty, the class representatives had a personal stake in the controversy at the time the court certified the action. Subsequent to the certification, their claims became moot.\nIn contrast, Tudor and Meyer had no personal stake in the hiring procedures at the time the District Court certified the class. We do not read Roper and Geraghty as doing away with the requirement that the proposed class representative have standing at the time of class certification.\nThe District Court also relied on Roper for the proposition that the City cannot “buy off’ the named plaintiffs’ claims in order to' avoid certification. Again, however, Roper concerns the “voluntary cessation” issue in the limited context of the attempt to moot a class representative’s claims, after certification is denied, that operates to prevent appellate review of the denial of that certification. Additionally, unlike in Roper, Meyer and Tudor 'ultimately accepted the City’s settlement offer by entering the August, 1991 class. Thus, both before the motion to certify was even filed and at the time the court certified the class, neither Meyer nor Tudor had a personal stake in being hired. Moreover, the Roper Court emphasized the importance of the factual context in which the case arose. In Roper, the plaintiffs never accepted the defendant’s settlement offer as satisfaction of their substantive claims. The Court found that “[n]either the rejected tender nor the dismissal of the action over plaintiffs’ objection mooted the plaintiffs’ claim on the merits so long as they retained an economic interest in class cértification.” Roper, 445 U.S. at 333, 100 S.Ct. at 1171. In the present case, Tudor and Meyer’s claims were not mooted by the City’s settlement offer or by this Court’s order to expand the class. Their hiring claims were mooted, however, when Tudor and Meyer entered the August, 1991 class.\nSome courts have held that a case does not become moot where a defendant “picks off’ the claims of named plaintiffs with settlement offers in an attempt to avoid a class action. “If a tender made to the individual plaintiff while the motion for certification is pending could prevent the courts from ever reaching the class action issues, that opportunity is at the mercy of a defendant, even in cases where a class action would be most clearly appropriate.” Susman v. Lincoln Am. Corp., 587 F.2d 866, 870 (7th Cir.1978), cert. denied, 445 U.S. 942, 100 S.Ct. 1336, 63 L.Ed.2d 775 (1980). However, these cases are limited to the situation where “a motion for class certification has been pursued .with reasonable diligence and is then pending before the district court.” Id.; see also Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1051 (5th Cir.1981). In the present case, there was no motion for certification pending when the City made its settlement offer. Moreover, Tudor and Meyer accepted the offer before a motion was even filed. We conclude that it was error for the District Court to have based the standing of Tudor and Meyer on the Geraghty and Roper decisions.\nD. Loss of Seniority Rights\nPlaintiffs Tudor, Meyer, and Hilleary did, however, sustain an actual “concrete and particularized” injury in their loss of seniority rights to female firefighters hired pursuant to the consent decree.\nSeniority systems and the entitlements conferred by credits earned thereunder are of vast and increasing importance in the economic employment system of this Nation- Seniority principles are increasingly used to allocate entitlements to scarce benefits among competing employees (“competitive status” seniority) and to compute noncompetitive benefits earned under the contract of employment (“benefit” seniority).... We have already said about “competitive status” seniority that it “has become of overriding importance, and one of its major functions is to determine who gets or who keeps an available job.” Humphrey v. Moore, 375 U.S. 335, 346-347 [84 S.Ct. 363, 370, 11 L.Ed.2d 370] (1964). “More than any other provision of the collective[-bargaining] agreement ... seniority affects the economic security of the individual employee covered by its terms.” Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv.L.Rev. 1532, 1535 (1962).\nFranks v. Bowman Transp. Co., 424 U.S. 747, 766, 96 S.Ct. 1251, 1265, 47 L.Ed.2d 444 (1976).\nSeniority within the [Columbus] Division of Fire is determined by date of appointment. This is important in any firefighter’s career for a number of reasons including pay, pensions, vacation time, “Kelly Day” (or days-off work) selection, and promotions. Seniority points are awarded for years of service, which are then added to a firefighter’s competitive score on promotion examinations; in case of a tie or close finish the more senior person thus obtains the promotions.\n1991 Joint Stipulations, ¶ 10. It is true that Tudor, Meyer, and Hilleary were hired on the same date they would have been hired whether or not the consent decree was in effect. Therefore, their “benefit seniority” rights were not affected by the decree, and they are receiving the same pay, pension contributions and vacation time as they would have -if the women had not been hired.\nThe Tucker plaintiffs’ injury lies in their loss of “competitive status” seniority rights. The women hired in the August, 1991 class achieved a higher place on the CDF’s seniority hierarchy than they would have in absence of the consent decree. Fox and Sachs would be less senior than Tudor, Meyer and Hil-leary if not for the consent decree. Hiring Fox and Sachs, whose test scores were lower than those of any of the Tucker plaintiffs, diminished the employment status of Tudor, Meyer, 'and Hilleary. This is because Fox and Sachs enjoy the same “competitive status” seniority rights as Tudor and Meyer, and greater rights than Hilleary. Tudor and Meyer have lost the advantage of having more seniority points than the women in a future competition for a promotion. They are harmed by having to compete on equal footing with persons who do not belong in their class. Hilleary has not only lost that advantage, but has been put at a disadvam tage because he is less senior than Fox and Sachs. Moreover, when the City expanded the class from 36 to 38, Tudor and Meyer were put in the position of having to compete with two additional persons, and Hilleary, who was hired in the next class, was junior to two more people than he would have been in absence of the consent decree. We hold that the diminution in employment status suffered by the Tucker plaintiffs is a legally cognizable injury for purposes of standing to challenge the City’s hiring practices.\nIn Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989), AT & T adopted a facially non-discriminatory seniority system for an allegedly discriminatory purpose. The allegedly discriminatory effect of the new seniority system was not felt until a few years after its adoption, when female employees, who had lost seniority under the new system, were demoted. The Court faced the issue of “when the limitations period begins to run in a lawsuit arising out of a seniority system not alleged to be discriminatory on its face or as presently applied.” Id. at 903, 109 S.Ct. at 2264. The Supreme Court held that the women were time barred from bringing a Title VII action to challenge the adoption of the system. The Court further held that “when a seniority system is nondiscriminatory in form and application, it is the allegedly discriminatory adoption which triggers the limitations period.” Id. at 911, 109 S.Ct. at 2268-2269 (emphasis in original). In other words, the cause of action accrues upon the happening of the discriminatory act, even if the effects of the discriminatory act are not felt until a later time. See Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, — U.S. -, -, 113 S.Ct. 2297, 2303, 124 L.Ed.2d 586 (1993) (“The ‘injury in fact’ in an equal protection case of this variety [ (city contract set-aside program)] is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”); Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (“proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful”) (emphasis in original) (quoting Abramson v. University of Haw., 594 F.2d 202, 209 (9th Cir.1979)). Thus, under Lorance, the Tucker plaintiffs do not have to wait until they lose out on a promotion to a woman that they would have received if the woman’s date of hire had been later than theirs.\nThe Civil Rights Act of 1991, Pub.Law No. 102-166, 105 Stat. 1071 (1991) (the “Act”), provides additional support for this conclusion. November 21, 1991, was the effective date of the Act and thus, it was in effect on November 25, 1991, the date the class was certified. The Act provides in relevant part:\n[A]n unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchap-ter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.\n42 U.S.C.A. § 2000e-5(e)(2) (West Supp. 1992). In response to Lorance, Congress overruled the Court’s holding that the adoption of the challenged seniority system is the sole triggering event. Section 2000e-5(e)(2) provides for the accrual of a cause of action when the consequences of the discriminatory act are felt by the plaintiff; it did not alter that portion of the decision recognizing that a cause of action accrues at the time of the discriminatory act. Thus, we hold that when the discriminatory act occurred, ie., when the decision was made to hire two women in the August, 1991 class, pursuant to the consent decree, Tudor, Meyer and Hilleary were injured and, therefore, have standing to sue.\nIII.\nThe Brunet plaintiffs argue that the Tucker plaintiffs never made a claim in their original or amended complaints for relief based upon the City entering into the February 27, 1989 consent decree and that consequently, the District Court erred in determining that the City had intentionally discriminated against male applicants by entering into the consent decree. This argument is meritless. See Tucker plaintiffs amended complaint, ¶20. The consent decree forms the basis of the Tucker plaintiffs action, and the Brunet plaintiffs should have been aware of this during the proceedings below. Because this issue was not raised before the District Court, it is considered abandoned on appeal and is not reviewable,, See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991), cert. denied, — U.S. -, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992); First State Bank v. City & County Bank, 872 F.2d 707, 715 n. 5 (6th Cir.1989). The Brunet plaintiffs also argue that any claim regarding the consent decree is barred by the applicable two-year statute of limitations. This argument is an affirmative defense and must be pled. See Fed.R.Civ.P. 8(e). Having raised this argument for the first time in this appeal, the Brunet plaintiffs have waived this affirmative defense. See id.; Great Southwest Life Ins. Co. v. Frazier, 860 F.2d 896, 903 (9th Cir.1988). See also Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 744 (6th Cir.1992) (“Under normal rules of pleading, the statute of limitations is an affirmative defense and must be raised in the answer.” (quoting 5 Wright & Miller, Federal Practice & Procedure, § 1308, at 695 (1990)).\nIV.\nNext we consider whether the District Court erred in determining that the terms of the February 27, 1989 consent decree discriminate against the Tucker plaintiffs in violation of the Equal Protection Clause. In determining that the consent decree violated the Equal Protection Clause, the District Court stated in relevant part;\n[i]n Croson, 488 U.S. at 507 [109 S.Ct. at 729], the Supreme Court held that race based set aside programs undertaken by municipalities are subject to strict scrutiny and that to satisfy the Equal Protection Clause, they must be “narrowly tailored to remedy prior discrimination.” Gender based preferences are likewise subject to strict scrutiny under the Equal Protection Clause.\nThe District Court noted that the Brunet plaintiffs in their underlying claim had failed to prove intentional discrimination by the City against female applicants and further stated that “[t]he only finding of discrimination against women was the finding that the PCT portion of the 1984 entrance examination had an adverse impact against women and that the City had failed to show that it was job related.” The District Court further stated that:\n[although the Brunet plaintiffs argue that the consent decree is supported by past and present disparity of women in the position of firefighter, neither the City nor the Brunet plaintiffs attempted to prove past discrimination with evidence of disparity in the present [consolidated] proceedings. The. Court in the original Brunet case apparently did not accept .plaintiffs’ claims in that regard. In any event, mere statistical imbalance' alone would not suffice. Croson, 488 U.S. at 501 [109 S.Ct. at 725]; Hazelwood School District v. United States, 433 U,S. 299 [97 S.Ct. 2736, 53 L.Ed.2d 768] (1977). There was no evidence introduced here or in the original Brunet case which would justify a finding of a pattern or practice of discrimination against women. There was no evidence that the City itself had made any determination of past discrimination as the predicate for an affirmative action program for the hiring of female firefighters.\nThe District Court concluded that “[b]y agreeing to this order, the City has intentionally discriminated against male applicants” and that “[t]he consent decree violates the Equal Protection rights of male applicants .., because it is not narrowly tailored to remedy the prior discrimination found in Brunet.”\nA.\nFirst, the Brunet plaintiffs argue that the District Court erred in subjecting the consent decree to the strict scrutiny standard of review. In Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982), the Supreme Court applied an intermediate standard of review to the university’s decision not to admit a male applicant to the nursing school solely on the basis of his gender. The Court examined this gender preference to determine if it possessed an important governmental objective and means substantially related to the achievement of the objective. Id. However, in Conlin v. Blanchard, 890 F.2d 811, 816 (6th Cir.1989), we relied on Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), to apply the strict scrutiny standard to an affirmative action plan based on a gender classification. Under the precedent in this Circuit, gender based affirmative action plans are subject to strict scrutiny when challenged under the Equal Protection Clause. Both we and the District Court are bound by the prior decision of this Court in Conlin. But see Coral Constr. Co. v. King County, 941 F.2d 910, 931 (9th Cir.1991) (applying intermediate scrutiny to gender based affirmative action plan), cert. denied, — U.S. -, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992).\nThe Brunet plaintiffs also argue that the consent decree embodies a “gender conscious” plan, which should be subjected to the intermediate standard of review, rather than a “gender preference” plan, which is subjected to the strict scrutiny standard. They rely on Jacobson v. Cincinnati Board of Education, 961 F.2d 100, 102 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 94, 121 L.Ed.2d 55 (1992), in which we employed the intermediate level of scrutiny because the school board’s transfer policy was race neutral, had no disparate impact on any race, and was thus, “race conscious” as opposed to being a “racial preference.”\nUnder the consent decree, some females with lower scores are hired before males with higher scores. The District Court later held (a holding that we affirm below) that applicants scoring higher on the test are better qualified than those with lower scores. Most importantly, the City knew at the time it entered into the consent decree that this was the case. Thus, the consent decree contains a gender preference since it requires that some lesser qualified women be hired before better qualified men.\nB.\nThe Brunet plaintiffs next argue that the District Court erred by placing the burden of proof upon them and the City to prove the constitutionality of the consent decree by producing evidence of past discrimination against women by the CDF. Instead, the Brunet plaintiffs argue, the burden should have been on the Tucker plaintiffs to show an absence of prior discrimination on the part of the fire department against women.\nOur decision in United Black Firefighters Ass’n v. City of Akron, 976 F.2d 999 (6th Cir.1992), is instructive. In United Black Firefighters, we considered the Equal Protection challenge of the local firefighters’ union to the district court’s order approving a consent decree between the United Black Firefighters Association (“UBFA”) and the City of Akron. The consent decree was designed to increase the percentage of black firefighters promoted to the position of lieutenant in the Akron Fire Department. In considering this challenge, we first determined that the local union had successfully shown that the consent decree embodied a racial preference. See id. at 1007. Our focus then shifted to whether this racial preference survived equal protection analysis under the strict scrutiny standard as required by the Supreme Court in Wygant and Croson.\nBoth Wygant and Croson involved Equal Protection challenges to a public employer’s affirmative action plan. We held that under Wygant and Croson, a state actor’s affirmative action plan survives strict scrutiny when (1) a compelling governmental interest underlies its racial preference, and (2) the preference is narrowly tailored to achieve that interest. We further held that, “[u]nder the first prong of the Croson test, a state actor possesses a compelling state interest when its concern is with remedying past discrimination.” United Black Firefighters, 976 F.2d at 1009. We then considered whether the City and/or the UBFA had produced sufficient evidence of past discrimination within the City’s fire department to provide a compelling governmental interest to support the affirmative action plan. Id. at 1010-11. In effect, once the local union proved a racial preference existed, the burden shifted to the defendants to produce evidence of past discrimination sufficient to justify the racial preference. We then held that sufficient evidence of past discrimination exists to support a compelling governmental interest in a racial preference where a “strong basis in evidence” of prior discrimination is shown. Id. at 1009; see also hong v. City of Saginaw, 911 F.2d 1192, 1196 (6th Cir.1990).\nThe Brunet plaintiffs rely on Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), to support their position that the Tucker plaintiffs must prove the absence of prior discrimination. However, the crucial distinction between Johnson and the present case is that in Johnson, the attack on the affirmative action plan at issue was based on Title YII alone; there was no Equal Protection challenge to the plan. The obligations of a public employer under Title VII and under the Constitution in regard to an affirmative action plan are not identical. Id. at 627 n. 6,107 S.Ct. at 1449 n. 6. Johnson is simply not helpful in resolving this issue. Thus, the District Court did not err in placing a burden of production upon the City and the Brunet plaintiffs to show evidence of past discrimination by the CDF in hiring female firefighters once the Tucker plaintiffs showed that the consent decree embodied a gender preference. Of course, the Tucker plaintiffs retain the ultimate burden of persuasion in proving the uneonstitutionality of the consent decree. Wygant, 476 U.S. at 277-78, 106 S.Ct. at 1848-49.\nC.\nThe Brunet plaintiffs next argue that even if strict scrutiny is applied to the consent decree, they have successfully shown a strong basis in evidence of prior discrimination by the CDF sufficient to support a compelling governmental interest in the consent decree. As part of their efforts to make such a showing, the Brunet plaintiffs now seek to appeal the District Court’s May, 1986 orders in which the court held that the Brunet plaintiffs had failed to prevail on their intentional discrimination claim.\nThe Brunet plaintiffs had appealed the District Court’s findings within 30 days of the entry of the orders, but we dismissed that appeal on the ground that no final judgment on that issue had yet been entered. The Brunet plaintiffs concede that entry of the consent decree in this ease could be construed as the final judgment on their claims.\nWhen the Brunet plaintiffs entered into the February 27, 1989 consent decree with the City, they agreed to forego all appeals from previous decisions of the District Court. However, because the consent decree has been set aside and they no longer can enjoy the benefit of their bargain, equitable principles require that they be allowed to now raise on appeal issues mooted by the consent decree. In Jansen v. City of Cincinnati, 977 F.2d 238 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2344, 124 L.Ed.2d 254 (1993), we stated that “[a] consent decree, although in effect a final judgment, is a contract founded on the agreement of the parties.... It should be construed to preserve the position for which the parties bargained....” Id. at 241 (quoting Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992)). Since the Brunet plaintiffs no longer have the benefit of their bargain, they are entitled to the benefits of their litigation. Accordingly, we address the Brunet plaintiffs’ appeal from the District Court’s 1986 determination that they failed on their section 1983 claim alleging intentional discrimination.\nIn Brunet, the District Court held that in view of the substantial evidence suggesting the absence of discrimination, plaintiffs had failed to prove intentional discrimination. In reaching this conclusion, the court relied on the City’s extensive efforts at recruiting women and in preparing women for the examination, and that the women firefighters who were employed suffered no discriminatory treatment in their work. It acknowledged that prior to 1975, job announcements for firefighters were restricted to males and that only five of 832 firefighters were women. It noted that plaintiffs presented evidence about bias against women on the part of the Director of the Training Academy. But it also noted that this bias led to his removal. Finally, it recognized that defendants were aware, at various times, of less discriminatory testing methods than those that they were employing, but refused to adopt them.\nThe district judge did not discuss the change in testing that occurred in 1980 when determining the Brunet plaintiffs’ intentional discrimination claim. In 1975, the first year women were included in the firefighter applicant pool, and in 1978, the City administered the PCT on a pass/fail basis and ranked all candidates in the order of their scores on the CAT. In 1980, the City decided to score the PCT and ranked the candidates based on their combined PCT and CAT scores. The PCT was weighted 30 percent and the CAT 70 percent. Later in the same opinion, Judge Kinneary observed that this change was made “without any apparent consideration being given to possible greater adverse impact upon women.” Brunet, 642 F.Supp. at 1236. The court’s opinion does indicate that the purported reason for the change in approaches was a 1980 job analysis that concluded “that the work of firefighting was largely physical, and that better firefighters were distinguished by the ability to excel while performing physical tasks.” Id. The Civil Service Commission adopted the report’s recommendation that the PCT be made part of the ranking of job candidates. The court thus did not make an explicit finding that the City changed from a pass/fail to a scored PCT for legitimate non-discriminatory reasons. However, we believe that this was implicitly found by the court, as the court was aware of the change and of the purported non-discriminatory reasons for the change. We conclude that the District Court was not clearly erroneous in finding that the City did not intentionally discriminate against women in the hiring of firefighters.\nD.\nThe Brunet plaintiffs argue that they can still show a strong basis in evidence to support the need for the affirmative action program set forth in the consent decree. They contend that the District Court, in its March 18, 1992 order, erred in holding that in order to produce evidence sufficient to support the consent decree, there must be a formal judicial finding of past discrimination. The Tucker plaintiffs do not argue that the City could enter into the consent decree only if there was a judicial finding of past discrimination. Rather, there was a finding of no intentional discrimination, and the Tucker plaintiffs argue that the only finding of discrimination in the Brunet plaintiffs’ underlying action was that the 1984 PCT had a disparate impact on women and that the test was not validated in violation of Title VII. Because this “singular” incident of discrimination had already been remedied, there was not a sufficient basis to support the consent decree’s affirmative action plan.\nThe Brunet plaintiffs are correct that a strong basis in evidence to support a public employer’s affirmative action plan does not require a formal finding of past discrimination. See Wygant, 476 U.S. at 289-92, 106 S.Ct. at 1854-57 (O’Connor, J., concurring); see also United Black Firefighters, 976 F.2d at 1009; Donaghy v. City of Omaha, 933 F.2d 1448, 1459 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 938, 117 L.Ed.2d 109 (1992); Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). In fact, a prima facie case of intentional discrimination is sufficient to support a public employer’s affirmative action plan. See Croson, 488 U.S. at 497, 109 S.Ct. at 724; United Black Firefighters, 976 F.2d at 1010. Thus, less evidence is necessary to justify an affirmative action plan than is necessary to prevail on an individual or class action claim of intentional discrimination. Given the disparity in the required evidentiary standards for each type of relief, a failure to prevail in a previous intentional discrimination claim does not preclude the Brunet plaintiffs from now attempting to show a strong basis in evidence to support the City’s affirmative action plan.\nThe District Court noted in its March 18, 1992 order that there was no finding of intentional discrimination in the Brunet plaintiffs’ 1986 trial. However, the District Court also stated that “[t]here was no evidence introduced here ... which would justify a finding of a pattern or practice of discrimination against women.” This statement indicates that the District Court did not simply rely on the prior decision in the underlying Brunet plaintiffs’ action in reaching its conclusion that insufficient evidence exists to support the consent decree. In light of this holding, we next examine the evidence that the Brunet plaintiffs contend provides a strong basis in evidence of discrimination.\nAppropriate statistical evidence setting forth a prima facie case of discrimination is sufficient to provide a strong, basis in evidence to support a public employers’ affirmative action plan. See Croson, 488 U.S. at 501, 109 S.Ct. at 725; United Black Firefighters, 976 F.2d at 1010. The District Court stated that “[m]ere statistical imbalance alone would not suffice.” The District Court is correct. Rather, as we stated in United Black Firefighters:\n[t]he method generally used is to compare the minority percentage in the relevant statistical pool to the minority percentages in the group of persons selected for the position at issue. See Croson, 488 U.S. at 501-03, 109 S.Ct. at 725-26; Hazelwood School District v. United States, 433 U.S. 299, 308, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977); Long, 911 F.2d at 1199. The relevant statistical pool is comprised of all persons qualified for the position at issue. Roughly the same percentage of minorities observed in the relevant statistical pool should also be observed in the group of persons selected for the position at issue. Id. Where a gross disparity exists between the expected percentage of minorities selected and the actual percentage of minorities selected, then prima facie proof exists to demonstrate intentional discrimination in the selection of - minorities to those particular positions. See Croson, 488 U.S. at 501, 109 S.Ct. at 725; Hazelwood, 433 U.S. at 307-09, 311 n. 17, 97 S.Ct. at 2741-42, 2743 n. 17....\n976 F.2d at 1011.\nThe Brunet plaintiffs offer the following statistical evidence to support the consent decree. Two percent of all those who passed the 1988 firefighter examination were women. However, had it not been for the court ordered proportional hiring requirement, no women would have been hired from that examination list. Thirty-one females out of 519 or 6 percent passed the examination administered in 1990; however, had it not been for the consent decree, only one woman would have been hired. These statistics do indicate a significant disparity. Nevertheless, as we stated in United Black Firefighters, “a gross disparity is not conclusive as to a finding of discrimination, because othér factors unrelated to race may account for the disparity.” Id. Therefore, those opposing the affirmative action plan may present evidence to rebut the inference, thus defeating the validity of the affirmative action plan. See Stuart v. Roache, 951 F.2d 446, 453 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1948, 118 L.Ed.2d 553 (1992).\nThe Tucker plaintiffs have presented evidence to rebut this evidence. The reason 'why only one woman would have been hired from the 1988 and 1990 firefighter examinations absent the proportional hiring requirement is that the PCT is used to rank candidates for hiring purposes and women perform much more poorly than men as a whole on the PCT. The PCT developed in 1986 is valid and, as we determine below, and as the City knew in 1987, rank-order hiring did not discriminate since the PCT and the CAT are both job-related methods of selecting the most qualified individuals for the position of firefighter. Thus, a factor other than intentional discrimination against females accounted for the disparity.\nThe Brunet plaintiffs also note than in 1986, before the trial in their underlying claim, only 6 of 822 or .72 percent of the City’s firefighter force were women and that these women had been hired only as a result of the affirmative action plan arising from Dozier designed to correct past discrimination against black candidates. However, this statistical information is not particularly helpful in showing discrimination or ¡rebutting discrimination because there is'no evidence of how many women desired the position, were qualified and yet were not hired. Moreover, the same reason for the srtiall percentage of women on the fire force today explains why there were so few women on the force in 1986 — the PCT has an adverse impact on women.\nIn its 1986 opinion, the District Court found that the 1980 examination did not have an adverse impact upon women because men and women were hired at about the same rate in proportion to the numbers of males and females eligible for hire. The court declined to attach significance to the fact that all of the women hired were hired from the Dozier list. We think that this was error. We would find that the 1980 examination had an adverse impact upon women, because in absence of the Dozier one-for-one hiring requirement no women would have been hired. However, this discrimination had already been remedied as four women were in fact hired in 1980. We can safely assume that the women actually hired in 1980 were the most qualified women and would be hired first from a female list. Likewise, the discrimination that the court found to exist, in the administration of the 1984 examination had also been remedied.\nThe Brunet plaintiffs are not limited to statistical evidence to support the consent decree. United Black Firefighters, 976 F.2d at 1011. The Brunet plaintiffs refer to other evidence arising as early as 1975 to support the consent decree. The Tucker plaintiffs argue that the consent decree cannot be supported by evidence arising outside the statute of limitations for the Brunet plaintiffs’ underlying claim. The Tucker plaintiffs rely on Campbell v. Dayton, No. C-3-89-098, slip op. at 8 n. 7 (S.D.Ohio Dec. 9, 1991), in which the district court held that the plaintiffs’ claim under Title VII for disparate treatment could not concern acts occurring outside the applicable two-year statute of limitations. This case does not support the Tucker plaintiffs’ position because the Campbell plaintiffs were seeking relief under Title VII and 42 U.S.C. §§ 1981 and 1983.\nIn contrast, the Brunet plaintiffs have introduced evidence for the purpose of justifying a public employer’s affirmative action program, not for the purpose of prevailing on their Title VII and section 1983 claims. This distinction is important since an affirmative action program serves a very different.purpose than does a claim brought under Title VII or section 1983. As the Supreme Court stated in Local 28 of Sheet Metal Workers v. EEOC, 478 U.S. 421, 474, 106 S.Ct. 3019, 3049, 92 L.Ed.2d 344 (1986):\n[t]he purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of employment discrimination and to prevent discrimination in the future. Such relief is provided to the class as a whole rather than to individual members; no individual is entitled to relief, and beneficiaries need not show that they were themselves victims of discrimination.\nIn this connection, we as well as other courts have considered evidence of prior discrimination occurring years before the affirmative action plan at issue. In Vogel, 959 F.2d at 600, we considered evidence as far back as eight years before the underlying claim was filed and nine years before the affirmative action plan at issue was instituted, in upholding an affirmative action plan that provided racial preferences. See also Stuart, 951 F.2d at 452 (considering evidence of discrimination occurring eight years before the underlying claim was filed and ten years before the affirmative action plan at issue was instituted).\nThe Tucker plaintiffs also argue, relying on Quirin v. City of Pittsburgh, 801 F.Supp. 1486 (W.D.Pa.1992), that evidence occurring before 1972, when Title VII was made applicable to state and local governments, cannot be considered to justify an affirmative action plan. However, Quirin does not stand for this proposition. The district court in Quirin found that the only evidence of discrimination against women by the City of Pittsburgh occurred' prior to 1972 and that this evidence was too remote in time from the affirmative action plan implemented in 1987 to provide a sufficient evidentiary basis to support it. See id. at 1492; see also Howard, 871 F.2d at 1007 (considering evidence of discrimination occurring in 1971 to support, in part, the affirmative action plan at issue). Consequently, we may consider evidence occurring prior to 1972 and outside the statute of limitations applicable to the Brunet plaintiffs’ Title VII and section 1983 claims. The question remains, however, whether this evidence constitutes a “strong basis in evidence” to support the consent decree at issue.\nThe strongest evidence of discrimination against women at the CDF is the testimony of Dr. Kriska, the City’s expert who has been in charge of testing of firefighters since 1974, that prior to 1975 the City’s job announcements for the position of firefighter specified “males.” This designation would clearly indicate that the City preferred, if not required, males over females for this position and would have the effect of discouraging women from applying for the job. However, the District Court found in Brunet that there was “substantial evidence” that the City made efforts to encourage women to apply for the job of firefighter after 1975. 642 F.Supp. at 1223. While evidence of discrimination prior to 1975 may be considered, it is conduct that occurred at least 14 years before the February 27, 1989 consent decree was entered. In Hammon v. Barry, 826 F.2d 73, 76-77 (D.C.Cir.), order granting reh’g en banc, 833 F.2d 367 (D.C.Cir.1987), order granting reh’g en banc vacated, 841 F.2d 426 (D.C.Cir.), cert. denied, 486 U.S. 1036, 108 S.Ct. 2023, 100 L.Ed.2d 610 (1988), the Court held that discriminatory conduct occurring 18 years prior to the institution of the affirmative action plan at issue was insufficient by itself to justify the plan under Title VII standards. See also Fountain v. City of Waycross, 701 F.Supp. 1570, 1577 (S.D.Ga. 1988) (if the discrimination is sufficiently remote, it will not create compelling interest).\nIn this case, the discriminatory policy against women in the Columbus fire department prior to 1975 is too remote to support a compelling governmental interest to justify the affirmative action plan embodied in the consent decree. In sum, the affirmative action plan, which provides preferential hiring to females, is not supported by a strong basis in evidence of prior discrimination sufficient to pass constitutional muster — any discrimination against women caused by adverse impact has been remedied, and the intentional discrimination against women that occurred prior to 1975 is too remote. . Further, the Brunet plaintiffs have offered no direct evidence of any intentional discrimination against women on the part of the City after 1975. Since 1987, the City has known that the PCT is job related and that a better score on the PCT and the CAT indicates a more qualified candidate. Thus, since 1987, the PCT’s adverse impact on women has been justified by non-discriminatory job-related reasons. In the absence of a “compelling governmental interest,” i.e., any prior unremedied or current discrimination, the City had no constitutional basis on which to enter into the consent decree, which provided for the hiring of lesser-qualified women and denied men the opportunity to compete for all firefighter positions. By doing so, the City has intentionally discriminated against male applicants because of their gender. We affirm the District Court’s holding that the consent decree violates the Equal Protection rights of male applicants for the entry level position of firefighter. Because, the plan is unsupported by a compelling governmental interest, it is unnecessary for us to consider whether the plan is narrowly tailored as required under Croson.\nV. RANK-ORDER HIRING\nThe District Court determined that a linear relationship between test scores on the PCT and success on the job exists. In other words, the District Court determined that higher scores on the PCT are indicative of greater success as a firefighter. The District Court also determined that no comparable selection devices exist that are “substantially equally valid” as strict rank-order hiring and have less of a disparate impact on women. The Brunet plaintiffs challenge both of these determinations. The District Court based its conclusions primarily on the concurrent criterion-related validity study prepared -by Dr. Landy in 1987. A criterion-related validity study seeks to show the correlation between one’s score on a test and one’s subsequent success on the job. In a concurrent criterion-related analysis, an employment test is given to incumbents who have already obtained the necessary job experience and have an established record of performance. The incumbents’ test scores are compared to their success on the job to determine the degree to which the test successfully measures incumbents’ job performances.\nIn conducting the study, Dr. Landy identified a representative sample of incumbent firefighters who were given the PCT. He then gathered performance ratings from supervisors from these incumbents on eighteen different firefighting performance areas. Dr. Landy next calculated the correlation coefficients, or measures of association, between the incumbents’ test scores and their performance ratings. Both Dr. Landy and the City’s expert, Dr. Kriska, determined on the basis of this study that there was a sufficient correlation between test scores and job performance to support using the PCT for ranking purposes. The District Court agreed.\nThis conclusion is a factual finding reviewed only for clear error. See Police Officers for Equal Rights v. City of Columbus, 916 F.2d 1092, 1103 (6th Cir.1990). “Ranking is a valid, job-related selection technique only where the test scores vary directly with job performance.” Williams v. Vukovich, 720 F.2d 909, 924 (6th Cir.1983). Where a test that has a disparate impact upon a protected class of people is shown to be content valid and valid for purposes of ranking, the plaintiff may still prevail under a Title VII claim if he or she can show that other tests or selection devices would also serve the employer’s legitimate hiring interests and at the same time have a lesser adverse impact upon that protected class. Police Officers, 916 F.2d at 1096.\nIt is not disputed that the 1986 PCT is content valid. However, the Brunet plaintiffs argue that the PCT is not appropriate for ranking purposes. They point to what they believe are serious flaws in the concurrent criterion-related validity study that purport to show that the PCT is appropriate for ranking purposes.\nThe Brunet plaintiffs contend that the hose hoist event, a non-eritical task, was considered by Dr. Landy in calculating the correlation coefficients for the PCT. An examination of Appendix K of the study seems to indicate that this contention is correct. Appendix K provides the correlation coefficient between the PCT and overall job performance. The City’s expert, Dr. Kriska, stated at trial that Appendix K was the crux of the concurrent criterion-related validity study and that he relied on the correlation coefficients in Appendix K most heavily in determining that ranking on the basis of the PCT was valid. In addition, the District Court also relied heavily on Appendix K in reaching its conclusion that ranking on the basis of the PCT is valid. The correlation coefficient for the hose hoist event is .42, a value higher than that for all the other events on the PCT. The correlation coefficient for the overall PCT is .29. Other courts have found such correlation coefficients to be predictive of job performance, thus indicating the appropriateness of ranking where the correlation coefficient value is .30 or better. Clady v. County of Los Angeles, 770 F.2d 1421, 1431-32 (9th Cir.1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1516, 89 L.Ed.2d 915 (1986); Boston Chapter of NAACP v. Beecher, 504 F.2d 1017, 1024 n. 13 (1st Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); see also EEOC v. Atlas Paper Box Co., 868 F.2d 1487, 1502 n. 24 (6th Cir.) (Cook, J. concurring in part and dissenting in part), cert. denied, 493 U.S. 814, 110 S.Ct. 63, 107 L.Ed.2d 30 (1989). The correlation coefficient for the overall PCT is only .29 with the hose hoist event and would most likely be even less without the hose hoist event. Additionally, the Uniform Guidelines provide that a test that “has a low correlation coefficient will be subject to close review if it has a large adverse impact.” 29 C.F.R. § 1607.14B(6); see also Clady, 770 F.2d at 1432 (“[a]s a general principle, the greater the test’s adverse impact, the higher the correlation which will be required”); Atlas Paper Box, 868 F.2d at 1502 n. 24.\nIn rebuttal, the City and the Tucker plaintiffs argue that use of the PCT for ranking purposes can be justified on the basis of content validity alone and that because the PCT has been determined to be content valid, it is also valid for purposes of ranking. The Uniform Guidelines provide in relevant part:\n[w]here a selection procedure supported solely or primarily by content validity is used to rank job candidates, the selection procedure should measure those aspects of performance which differentiate among levels of job performance.\n29 C.F.R. § 1607.14C(9). However, the District Court in its May 27, 1987 opinion and order determined that despite the fact that the PCT was content valid, further studies such as a concurrent criterion-related validity study were required to determine the validity of the PCT for ranking purposes.\nNext, the Tucker plaintiffs point out that the hose hoist event was performed last during the concurrent criterion-related validity study in order to prevent affecting other events. While this may be the case, the fact remains that the correlation coefficient for the hose hoist event was still included in the correlation coefficient for the overall PCT. However, as the District Court noted, it was necessary to evaluate the conflicting testimony of two well-qualified experts in the field of industrial psychology and it found the testimony of the Tucker plaintiffs’ expert, Dr. Landy, more convincing than the testimony of the Brunet plaintiffs’ expert, Dr. Cranny. The court noted that while Dr. Cranny had never prepared an examination for firefighters and had little experience in the testing of public safety personnel, Dr. Landy has had extensive practical experience in the development, validation, and administration of public safety personnel selection in promotion examinations. The court noted that Dr. Landy has studied the firefighter job first hand, living in fire houses and accompanying firefighters inside burning structures. The use of statistical data to validate an examination for ranking purposes is a complicated matter requiring a high level of expertise. A district judge is entitled to rely on the opinion of one expert in examining questions requiring this type of expertise. See Police Officers, 916 F.2d at 1103.\nFurthermore, under the Uniform Guidelines, the values for the correlation coefficients in Appendix K are all statistically significant. Under the Guidelines, the correlation coefficient must have a value of at least .05, which means that it would be expected to occur no more than five times out of a hundred by chance. 29 C.F.R. § 1607.14(b)(5). Where the correlation coefficient is statistically significant, the scores from the selection procedure are considered to possess a direct relationship to one’s performance on the job. Id.\nWe hold that the District Court was not clearly eiToneous in its determination that rank-order hiring is valid.\nVI. ALTERNATIVE HIRING PROCEDURES\nWe next consider whether the District Court erred in determining that there were no alternative selection devices that have less of a disparate impact on females and are “substantially equally valid” methods of choosing qualified firefighters. Uniform Guidelines, 29 C.F.R. § 1607.3(B). It is undisputed that strict rank-order hiring has an adverse impact on female firefighter applicants. Under the auspices of Title VII, once the City has shown that the challenged test is job related, as the City has in this case, the burden shifts to the challengers to prove that the City was using the validated tests as a pretext for discrimination by demonstrating that other tests, without the adverse effects, would also serve the City’s legitimate hiring interests. Police Officers, 916 F.2d at 1096.\nThe Brunet plaintiffs offer two alternatives. First, they suggest that the use of the PCT should be dropped altogether because the correlation coefficient for the CAT as set forth in Appendix K indicates that it alone is more predictive of job performance than the combined PCT and CAT tests. The correlation coefficient for the CAT alone is .52 while the correlation coefficient for the combined test is .44. The District Court rejected this argument relying on Dr. Landy’s testimony showing how the statistical data for the PCT and the CAT could be manipulated to make the PCT alone appear more predictive of success as a firefighter. The court also determined, based on a multiple regression analysis conducted by Dr. Landy, that the PCT was necessary to test those physical skills required to be a firefighter. The court concluded that without the PCT, those physical skills simply would not be tested, and thus, the CAT alone is not as effective in choosing qualified firefighters as is the PCT and the CAT combined. Because we find nothing in the record that leads us to conclude that the District Court was clearly erroneous in this finding, we agree that the PCT cannot be completely eliminated from the firefighter examination.\nThe Brunet plaintiffs next suggest that the City should administer the PCT on a pass/fail basis and then rank candidates solely on the basis of their CAT scores, since the CAT does not have an adverse impact on women. The City utilized this procedure in its 1975 and 1978 firefighter examinations. Although the consent decree provided for the pass/fail administration of both the CAT and the PCT, men and women were ranked, albeit on separate lists, in the order of their combined CAT and PCT scores. The Brunet plaintiffs argue that there is no evidence indicating that the City was dissatisfied with any of the firefighters hired according to these procedures, implying that a pass/fail examination is a viable alternative to a scored examination. The District Court held that rank ordering is justified because there is a direct correlation between performance on the PCT and performance on the job. We believe that the following conclusion is implicit in this holding: For the purpose of hiring the most qualified candidates, a procedure that selects from a pool of applicants who achieve a passing score on the PCT and who are ranked on the basis of the CAT alone, is not “substantially equally valid” to a procedure that chooses its hires from a pool of applicants ranked according to their scores on both the CAT and PCT. We agree.\nThe posture of this case at present differs from the more typical Title VII challenge to hiring devices. The Brunet plaintiffs initially brought a Title VII action against the City in 1984, which culminated in the consent decree that instituted the proportional hiring requirement. After the Tucker plaintiffs’ successful challenge to the consent decree on constitutional grounds, the consent decree was set aside. The City then indicated that in absence of the consent decree it wished to rank order all candidates on one gender-neutral list. However, under the Uniform Guidelines, 29 C.F.R. § 1607.3B, before implementing a process of strict rank-order hiring from one list, a process that has an adverse impact upon women, the City is obligated to conduct its own investigation of viable alternatives with lesser or no impact on the female applicants. “[Bjefore utilizing a [selection] procedure that has an adverse impact on minorities, the City has an obligation pursuant to the Uniform Guidelines to explore alternative procedures and to implement them if they have less adverse impact and are substantially equally valid to rank ordering.” Officers for Justice v. Civil Service Commission, 979 F.2d 721, 728 (9th Cir.1992) (citing the Uniform Guidelines, 29 C.F.R. § 1607.3B). There is nothing in the record indicating the City explored alternatives to strict rank ordering or that the District Court looked to see that the City had done so. We believe that this was error. We reiterate that a selection procedure that ranks only on the basis of CAT scores is not acceptable. However, we have found nothing in the record that requires the CAT and the PCT to be weighted equally. In 1980 and 1984, the PCT constituted 30 percent of an applicant’s score; the CAT weighed in at 70 percent. The City should be required to demonstrate why the CAT, which arguably is more predictive than the PCT, should not be weighted more than the PCT. We suspect that this change would result in less of an adverse impact on women, although it will not eliminate it. But as Judge Kinneary stated seven years ago when the Brunet plaintiffs’ journey began:\nTitle VII does not require employers to equalize the probabilities of hiring of the average members of two groups. Rather, it requires that actual individuals enjoy opportunities for employment free from discriminatory barriers.\nIt is not the province of the Court to determine whether women should be firefighters, or how many women should be firefighters. Rather, it is the Court’s duty to evaluate a test in light of the standards set forth in Title VII. How many women should be firefighters can be decided only by the administration of a validated examination.\nBrunet, 642 F.Supp. at 1228, 1250.\nVII. REMEDY\nLastly, the Brunet plaintiffs assert that the District Court erred in granting the remedy it did in its September 23, 1992 order. The District Court found that “an order adjusting the seniority of male and female firefighters hired pursuant to the 1990 Firefighters Examination is necessary and appropriate to provide the Tucker class of plaintiffs with complete relief.... But for the consent decree of February 27, 1989, the members of the Tucker class would have been hired before Firefighters' Fox and Sachs and would have greater seniority than Firefighters Fox and Sachs.” As a result, the District Court ordered that Fox’s and Sachs’ seniority be adjusted so that it is less than that of all males hired from the 1990 examination.\n“A district court has ‘not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.’ ” United States v. Paradise, 480 U.S. 149, 183, 107 S.Ct. 1053, 1073, 94 L.Ed.2d 203 (1987) (quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965)). It is within the sound discretion of the district court to fashion such a remedy. Id. 480 U.S. at 183-84, 107 S.Ct. at 1072-73. However, the remedy must be narrowly tailored to address the discrimination at issue and take into consideration the interests of all parties affected by the remedy. Id. at 185, 107 S.Ct. at 1073.\nThe Tucker plaintiffs argue that the relief was appropriate because the practical effect of this adjustment was that Fox and Sachs were placed in the seniority order they would have been in had they not been given a preference under the consent decree. The remedy in this action should be to put the Tucker plaintiffs in the same position they would have been in absence of the consent decree. The Brunet plaintiffs argue that the focus of the District Court’s remedy is improperly placed on putting Fox and Sachs in the same or similar position that they would have been in the absence of the consent decree. Moreover, Fox and Sachs retain an important interest in their seniority. See Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757, 763 (6th Cir. 1983) (“the Supreme Court has recently reiterated the ‘overriding importance’ of seniority provisions.... ”). “[T]o protect the strong expectations in these pervasive and important seniority rights, the remedy must be ‘necessary,’ not merely, ‘reasonable’ to vindicate the constitutional rights” of the victims. Id. (citation omitted).\nIn this case, the fashioned relief does not go beyond remedying the effects of discrimination suffered by the Tucker plaintiffs. As discussed at length above, plaintiffs Tudor, Meyer and Hilleary and the class they represent-were harmed'by the fact that Fox and Sachs are either as senior or more senior than them. The only way to remedy their injury is to place Fox and Sachs lower in the seniority hierarchy than the Tucker class, as they would have been in absence of the consent decree. Accordingly, we affirm the District Court’s order of September 23, 1992, adjusting the seniority of firefighters Fox and Sachs.\nVIII.\nThe District Court’s order setting aside the consent decree is AFFIRMED. The District Court’s order adjusting the seniority of firefighters Fox and Sachs is AFFIRMED. The District Court’s order validating rank-order hiring is REVERSED. The case is REMANDED for proceedings consistent with this opinion.\n. The Tucker plaintiffs also named as defendants in their action: Larry H. James, Director of Public Safety; Harmon J. Dutko, Chief of the Division of Fire; the Civil Service Commission of Columbus; Civil Service Commissioners Daniel D. Connor, Julia F. Johnson, and Frederick L. Ransier.\n. The other defendants were the Columbus Civil Service Commission, Columbus Mayor Dana Rinehart, and Columbus Safety Director Alphonso Montgomery.\n. We note that while the consent decree provides for the pass/fail administration of the physical and cognitive portions of the examination, the City actually scored the results of both tests and used the scores to create two rank-ordered lists to comply with the proportional hiring requirement of the consent decree. The consent decree did not require this result. The City could have used another method of choosing candidates from the male and female pools of applicants other than maintaining dual rank ordered lists, e.g., a lottery system.\n. One woman, Darrylee Potter, who ranked 142, was ranked higher than Tucker. Ms. Potter had been hired in the March, 1991 class.,\n. Even if the first 35 ranked applicants were chosen for the first 35 positions, candidates 36, 37 and 38 would have been considered for the 36th position. Tudor and Meyer need not show that they would have been selected for the position, but for the consent decree, only that they would have been considered. See Bakke, 438 U.S. at 280-81 n. 14, 98 S.Ct. at 2742-43 n. 14.\n.Shortly after this series of orders and appeals, the Brunet plaintiffs filed a motion requesting that Judge Kinneary disqualify himself for bias. The court denied this motion. On the same day, August 22, 1991, Judge Kinneary did recuse himself sua sponte, and Judge Graham was assigned to the case.\n. In their complaint, the Tucker plaintiffs made the following assertions:\nThe plaintiff class consists of all males who desire to become Columbus firefighters in the August 19, 1991 class, or in subsequent entry-level firefighter classes, and who are affected by the discriminatory practices described herein....\nAlthough two firefighter positions are at issue for the firefighter class commencing August 19, 1991, the plaintiff class is much broader than simply two persons since it includes all persons who will be affected by the discriminatory practices over approximately the next eighteen years. The plaintiff class includes males who desire to become Columbus firefighters in future classes, and who are or would be affected by the discriminatory practices described herein either in respect of hiring or in respect of their seniority within the Division of Fire.\nTucker Complaint, ¶¶ 12, 13. The action did not reach back to the hiring that took place in March of 1991. The men who lost their position to the women hired in March, 1991 are not part of the Tucker class. Indeed, the women’s placement in the March, 1991 class pursuant to the consent decree is not challenged. Therefore, we do not include the March, 1991 hiring in our analysis of the effect of the consent decree on the Tucker plaintiffs in August, 1991.\n. At the time of class certification, Hilleary was certain to be hired in the next class absent unforeseen circumstances unrelated to his ranking. We note that Hilleary was in fact hired in the next class.\n. The City seeks to challenge the. District Court’s finding that it intentionally discriminated against the male plaintiffs by agreeing to the February 27, 1989 consent decree. The City admits it has not filed a notice of appeal from the District Court's March 18, 1992 order, and we therefore lack jurisdiction to consider the City’s challenge. See e.g., Torres v. Oakland Scavenger Co., 487 U.S. 312, 315, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988).\n. It may be that in the voluminous record this issue was addressed, but we are unable to find it.\n[END_CASE]", "role": "user" } ]
10,511,552	UNITED STATES of America, Plaintiff-Appellee, v. Ronnie S. MILLS (92-5324) and Velinda S. Naftzger (92-5505), Defendants-Appellants	United States v. Mills	1993-07-29	Nos. 92-5324, 92-5505	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: KENNEDY, NORRIS, and SUHRHEINRICH, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Ronnie S. MILLS (92-5324) and Velinda S. Naftzger (92-5505), Defendants-Appellants."], "opinions": [{"text": "ALAN E. NORRIS, Circuit Judge.\nDefendants, Ronnie Saunders Mills and Velinda Sue Naftzger, appeal their convictions and sentences for pharmacy burglary in violation of 18 U.S.C. § 2118.\nI.\nOn August 11,1991, defendants drove from Tennessee to Virginia looking for a drugstore to burglarize. Failing to find a desirable target in Virginia, the pair drove the next day to a mall in Harlan, Kentucky, where they observed an unattended pharmacy. Defendants broke into the store and stole drugs worth over $2,000, a silverware chest, and a diamond ring. Two witnesses to the incident alerted Kentucky police, who in turn notified Virginia authorities. A Virginia police officer pursued defendants as Mills drove his car at speeds of up to 100 miles per hour, weaving in and out of traffic, along a two-lane mountain road between Kentucky and Virginia. In an attempt to intercept defendants’ car, the Police Chief of Pennington Gap, Virginia, Curtis Minton, pulled his unmarked cruiser onto the road. Mills swerved to avoid the cruiser but lost control of his car and hit Minton’s vehicle. Minton sustained serious injuries.\nMills entered a guilty plea to one count of aiding and abetting the commission of pharmacy burglary, in violation of 18 U.S.C. §§ 2118(b) and (c)(1), and received a sentence of 120 months’ imprisonment. Following a jury trial, Naftzger was convicted on multiple counts, including aiding and abetting the commission of pharmacy burglary. She was sentenced to 108 months’ imprisonment, with a supervised release term of six years.\nII.\nA. Introduction of Incriminating Statements\nNaftzger asserts that the trial court’s admission of several incriminating statements she made after her arraignment violated her Sixth and Fifth Amendment rights. This court reviews the district court’s factual findings on suppression issues for clear error, while analyzing the district court’s legal conclusions under a de novo standard. United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.), cert. denied, — U.S. ———, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992).\nAfter Naftzger’s arrest, FBI agents advised her of her Miranda rights and she executed a waiver. She then denied active participation in the pharmacy burglary. Following that interview, two agents from the Bureau of Alcohol, Tobacco, and Firearms spoke with Naftzger about an unrelated arson investigation into the burning of code-fendant Mills’ store. Naftzger answered affirmatively when the agents asked if she had been advised of and understood her rights, and she acknowledged the waiver she had just signed. Naftzger then gave a sworn, taped statement about the arson. This interview was interrupted when she had to be escorted up one floor for her arraignment. The ATF agents attended the arraignment and observed the magistrate advise Naftzger of her constitutional rights and the charges against her, and appoint an attorney for her.\nAccording to the ATF agents, Naftzger approached them after the arraignment and asked to speak to them. The agents did not re-advise her of her Miranda rights. Although Naftzger began by discussing the arson again, she soon brought up the burglary and her concern that she had never seen the diamond ring she and Mills allegedly stole. Her appointed attorney was not present at this conference. Naftzger then admitted she and Mills had committed fifteen or sixteen burglaries together. She also admitted to an active role in the burglary of the pharmacy. The district court denied Naftz-ger’s motion to suppress these admissions.\nNaftzger asserts that introduction of testimony about the admissions is at odds with the Supreme Court’s decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The Jackson Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Jackson, 475 U.S. at 636, 106 S.Ct. at 1411. The Court relied upon Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which had previously held that once a person in custody has “expressed his desire to deal with the police only through counsel,” the police violate his or her Fifth Amendment rights if they initiate further questioning before counsel is made available, “unless the accused himself initiates further communication ... with the police.” Jackson, 475 U.S. at 626, 106 S.Ct. at 1405 (quoting Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884r-85). The Court in Jackson extended the Edwards rule to the Sixth Amendment context, concluding that a defendant’s invocation of his or her Sixth Amendment right to counsel at an arraignment likewise prevents further police-initiated interrogation about that offense. Id. 475 U.S. at 636, 106 S.Ct. at 1411.\nWe agree with Naftzger that her request for counsel at arraignment would normally suffice to invoke her Jackson right to have counsel present at police questioning about the pharmacy burglary. However, the record is clear that the agents’ discussion with Naftzger after her arraignment was prompted when she approached them. Jackson’s prophylactic rule, like the rule in Edwards v. Arizona, applies only to “police-initiated questioning.” See id. at 635, 636, 106 S.Ct. at 1410, 1411 (emphasis added); see also Murphy v. Holland, 845 F.2d 83, 85 (4th Cir.) (finding no Jackson violation because defendant initiated conversation), cert. denied, 488 U.S. 908, 109 S.Ct. 258, 102 L.Ed.2d 246 (1988); Smith v. Dugger, 840 F.2d 787, 794 (11th Cir.1988) (Jackson inapplicable because defendant clearly initiated discussion), cert. denied, 494 U.S. 1047, 110 S.Ct. 1511, 108 L.Ed.2d 647 (1990).\nAfter a suppression hearing, the district court found “credible and believable” the testimony of one of the ATF agents that Naftz-ger asked to speak to the agents as she left the courtroom. Naftzger offered no evidence to refute the agent’s testimony. Therefore, the district court’s finding that Naftzger initiated the conference is not clearly erroneous and the court was not required to exclude the incriminating statements she made in her post-arraignment discussion with ATF agents.\nNaftzger next contends that the introduction of her admissions also infringed her Fifth Amendment right against self-incrimination because she did not voluntarily, knowingly, and intelligently waive her Miranda rights to remain silent and to have counsel present. We disagree. Naftzger was advised of these rights at least twice, signed a written waiver, and later re-affirmed that waiver. Although she did not execute another waiver before the post-arraignment conference, she had been advised by a judge just minutes earlier of her constitutional rights. The record supports the district judge’s conclusion that Naftzger voluntarily and intelligently waived those rights prior to the second session with the ATF agents. The district court’s admission of Naftzger’s inculpatory statements was not error.\nB. Admission of 404(b) Evidence\nNaftzger next maintains that the district court erred in admitting evidence under Fed.R.Evid. 404(b) that she and Mills had previously committed a number of break-ins together. We review the trial court’s 404(b) decisions for abuse of discretion. United States v. Acosta-Cazares, 878 F.2d 945, 948 (6th Cir.), cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989).\nThe evidence was admitted for a proper purpose under Fed.R.Evid. 404(b). Naftzger testified on her own behalf at trial, insisting that she knew nothing of the planned burglary, did not participate in it, and even slept through much of the preparation. Her involvement in prior, similar burglaries proved her intent, knowledge, and ongoing plan with Mills to burglarize drugstores. Moreover, the probative value of the evidence outweighed its prejudicial effect. Fed.R.Evid. 403. The district court accordingly did not abuse its discretion in admitting the evidence.\nC. Sufficiency of the Evidence on the Burglary Counts\nNaftzger contends that the evidence was insufficient to sustain her conviction under 18 U.S.C. § 2118. Evidence is sufficient to support a conviction if,-after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).\nSection 2118 provides, in pertinent part:\n(b) Whoever, without authority, enters or attempts to enter, or remains in, the business premises or property of a person registered with the Drug Enforcement Administration ... with the intent to steal any material or compound containing any quantity of a controlled substance shall, except as provided in subsection (c), be fined not more than $25,000 or imprisoned not more than twenty years, or both, if (1) the replacement cost of the controlled substance to the registrant was not less than $500, (2) the person who engaged in such entry or attempted such entry or who remained in such premises or property traveled in interstate or foreign commerce or used any facility in interstate or foreign commerce to facilitate such entry or attempt or to facilitate remaining in such premises or property, or (3) another person was killed or suffered significant bodily injury as a result of such entry or attempt. (e)(1) Whoever in committing any offense under subsection (a) or (b) assaults any person, or puts in jeopardy the life of any person, by the use of a dangerous weapon or device shall be fined not more than $35,000 and imprisoned for not more than twenty-five years.\nThe indictment charged that on or about August 12, 1991, Mills and Naftzger,\naiding and abetting one another, knowingly and willfully did, without authority, enter, attempt to enter, and remain in the L.V. LEE DRUG COMPANY, INC., the business premises of Joe Wesley Myers, a person registered with the Drug Enforcement Administration ..., with the intent to steal controlled substances having a replacement cost to the registrant in excess of $500 and to facilitate said offense, the defendants did travel in interstate commerce from Kentucky to Virginia; further in committing said offense, [defendants] did assault and put in jeopardy the life of CURTIS MINTON, by the use of a dangerous device, that is an automobile; all in violation of- Title 18 United States Code, Sections 2118(b) and (c)l and Title 18, United States Code, Section 2.\nNaftzger asserts that the evidence was insufficient to support her conviction on this count for three reasons. All three focus on the enhancement the statute provides under subsection (c)(1) for assault with a dangerous weapon “in committing” the offense described in subsection (b).\nFirst, Naftzger suggests that the language of 18 U.S.C. § 2118(c)(1) was not meant to apply to assaults during flight to avoid apprehension after a burglary. That is, the “assault” on Minton did not occur “in committing any offense” as required by (c)(1). We have found no reported cases interpreting the reach of subsection (c)(1). However, because Congress indicated that the pharmacy burglary statute was modeled after the federal bank robbery statute, 18 U.S.C. § 2113, see H.R.Rep. No. 644, 98th Cong., 2d Sess. 4 (1984), reprinted in 1984 U.S.C.C.A.N. 521, 524, we look to interpretations of that statute for guidance.\nCourts applying the bank robbery statute have concluded that the reference in 18 U.S.C. § 2113(d) to assaults in committing the offense of bank robbery includes injuries caused during hot pursuit from a bank robbery. See United States v. Pietras, 501 F.2d 182, 187 (8th Cir.), cert. denied, 419 U.S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974); cf. United States v. Martin, 749 F.2d 1514, 1518 (11th Cir.1985) (finding that the offense in § 2113(a) extends for hot pursuit); United States v. Jarboe, 513 F.2d 33, 36-37 (8th Cir.), cert. denied, 423 U.S. 849, 96 S.Ct. 90, 46 L.Ed.2d 71 (1975) (discussing aiding and abetting liability and whether a robbery has ended, pursuant to § 2113(a), prior to hot pursuit). Moreover, in determining who the victim of a bank robbery is for Sentencing Guidelines purposes, this court has commented, “[a]s the crime of bank robbery cannot be completed without some form of flight or attempted flight, the crime is more naturally understood to include the act of fleeing and the immediate consequences of such flight.” United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1239, 117 L.Ed.2d 472 (1992). The similar language of 18 U.S.C. § 2118(c)(1) prohibiting assaults in committing the offense of pharmacy burglary should likewise extend to assault during immediate flight.\nIn addition, and most significantly, an element of the crime of pharmacy burglary as charged in the indictment was interstate travel, which included defendants’ flight from Kentucky into Virginia after the burglary. Because the assault on Minton took place during this travel, it occurred in the course of the pharmacy burglary. Accordingly, defendants did injure Police Chief Minton in committing the offense of pharmacy burglary as required by 18 U.S.C. § 2118(c)(1).\nNaftzger next argues that because the collision with Police Chief Minton’s .cruiser was an accident, there was insufficient evidence to convict her of aiding Mills to “assault or put in jeopardy the life of Curtis Minton by the use of a dangerous device.”\nThe district court defined the term “assault” as a “deliberate attempt to inflict bodily harm or injury upon the person of another.” While the government refers to Mills’ collision with Minton’s cruiser as “ramming,” the record contains little evidence of a deliberate attempt to collide with Minton. Even Police Chief Minton himself testified that Mills and Naftzger “lost control trying to pass me.”\nNevertheless, evidence of intent was not essential because the jury could have found that Mills and Naftzger “put in jeopardy the life of [Curtis Minton],” which is the alternative to assault listed in subsection (c)(1). The court defined “putting in jeopardy” as meaning “to knowingly do an act which exposes [a] person to a risk of death.” Viewing the evidence in the light most favorable to the government, the jury could easily have found that the car’s speed and Mills’ reckless driving knowingly exposed Minton to a risk of death, even if the wreck was not deliberate.\nFinally, Naftzger contends that, even if there was sufficient evidence that Mills knowingly exposed Minton to a risk of death, there was no proof that she aided and abetted in this recklessness. In Count 1, she was convicted of aiding and abetting the burglary and assault. As the court instructed the jury, the government had to prove that she intentionally helped or encouraged someone else to commit the crime of “burglary of a registered pharmacist using a dangerous device to assault or put in jeopardy the life of another.”\nNaftzger maintains that there was no evidence that she did anything to help or encourage the assault/putting in jeopardy of Police Chief Minton. We disagree. Mills testified that as he sped away from Harlan, Naftzger looked through their loot and watched behind to see if they had lost the pursuing police officers. Clearly, Naftzger actively assisted Mills in fleeing, and the pair’s reckless flight created a known risk of danger to Minton and others on the road. Hence, sufficient evidence supported the jury’s finding that Naftzger aided and abetted Mills in conduct that knowingly jeopardized Minton’s life.\nIn sum, there was sufficient evidence of all the elements required for conviction under 18 U.S.C. § 2118.\nD. . Sentencing Issues\nThis court reviews de novo a district court’s application of the Sentencing Guidelines when that application involves mixed questions of law and fact. Muhammad, 948 F.2d at 1455. The district court’s findings of fact in connection with sentencing are analyzed under a clear error standard. Id.\n1. Assault Guideline\nIn sentencing both Mills and Naftzger, the district court applied the base offense level for aggravated assault (U.S.S.G. § 2A2.2), rather than that for burglary of other structures (§ 2B2.2). The statutory index to the guidelines, which matches statutes with their appropriate guideline sections, lists one possibility for a conviction of 18 U.S.C. § 2118(b), the burglary of other structures guideline, § 2B2.2. The index offers three choices for a violation of 18 U.S.C. § 2118(c)(1) — the guideline for assault with intent to commit murder (§ 2A2.1), the section on aggravated assault (§ 2A2.2), and the section on robbery (§ 2B3.1).\nThe introduction to the index states: “If more than one guideline section is referenced for the particular statute, use the guideline most appropriate for the nature of the offense conduct charged in the count of which the defendant was convicted.” Section lB1.2(a) likewise requires that the guideline “most applicable to the offense of conviction” be used.\nThe parties agree that neither the section for assault with intent to commit murder, nor the guideline for robbery apply. Although Naftzger does urge application of the guideline for minor assault (§ 2A2.3), that is not an option listed for a violation of § 2118. Consequently, the district court was left with a choice between the burglary guideline (§ 2B2.2) and the aggravated assault guideline (§ 2A2.2). Because the indictment listed both § 2118(b) and § 2118(c)(1), the court opted for aggravated assault. We hold that this was error.\nSection 2118(b) provides three jurisdictional alternatives. Pharmacy burglary is a federal crime if: (1) the cost of the controlled substances stolen was at least $500, or (2) the perpetrator traveled or used any facility in interstate commerce to facilitate the burglary, or (3) a person was killed or seriously injured as a result of the burglary. 18 U.S.C. § 2118(b)(1) — (3). In charging a violation of § 2118(b), the indictment alleged both that defendants stole drugs valued at more than $500 and that they traveled in interstate commerce to facilitate the offense. Because the statute’s jurisdictional prerequisites are listed in the alternative, however, the government was required to plead and prove only one of these.\nSince the value of the controlled substances that defendants pilfered exceeded $500, the crime of pharmacy burglary was complete when Mills and Naftzger left the pharmacy. The only reason the government also charged interstate travel was to permit a sentencing enhancement under (c)(1) because the assault/putting in jeopardy of Police Chief Minton occurred during the flight across state lines. Although we have held that the assault on Minton, which occurred during defendants’ interstate flight from the burglary - of the pharmacy, permitted their convictions under §§ 2118(b) and (c)(1), it does not follow that assault was the most appropriate guideline.\nWhen, as here, the stolen narcotics exceed a value of $500, the assault need only be proved to enhance the sentence, not to obtain a conviction on the principal offense. In defendants’ ease, the gravamen of the offense was pharmacy burglary; the assault merely enhanced their sentences.\nIf an assault takes place in a drugstore, the use of the aggravated assault guideline would be more appropriate. The government could then rely upon the jurisdictional provision in § 2118(b)(3), as well as charging the sentence enhancement in § 2118(c)(1). As a result, assault would be the gist of the crime and an element the government must prove in order to obtain a conviction under subsection (b).\nThe fact that the government could not charge defendants’ assault on Minton under (b)(3) as well as under (c)(1) strengthens our belief that assault was not the gist of this offense. Under these circumstances, the assault/putting in jeopardy of Police Chief Min-ton is an aggravating circumstance that may qualify for enhancement under (c)(1), but it could not fairly be described as the “offense of conviction” within the meaning of the Sentencing Guidelines. Nor would the aggravated assault guideline appear to be the most appropriate base offense. Instead, the guideline listed for a conviction under § 2118(b), the section for burglary of other structures (§ 2B2.2), should apply, and we reverse and remand for resentencing using that section.\n2. Enhancements Under Aggravated Assault Guideline\nHaving applied the base offense level of § 2A2.2 for aggravated assault, the district court had available to it a number of upward adjustments (called specific offense characteristics) permitted by that section. The court imposed three enhancements under this section: (1) a two-level enhancement for more than minimal planning, (2) a four-level increase for assaults in which a dangerous weapon is not discharged but is otherwise used, and (3) another four-level adjustment for Police Chief Minton’s serious bodily injury. See U.S.S.G. §§ 2A2.2(b)(l), (b)(2)(B), (b)(3)(B). Because we hold that § 2A2.2 is not the most appropriate guideline, these three enhancements, which all appear as specific offense characteristics of the offense of aggravated assault, must be vacated.\nWe note, however, that § 2B2.2 on burglary of other structures includes a similar enhancement for more than minimal planning that the district judge on remand may find applicable. See U.S.S.G. § 2B2.2(b)(l). In contrast, § 2A2.2’s increase for serious bodily injury has no analogue in the burglary guideline and must be vacated. In its place, the court may choose to apply the upward adjustments that are available under § 2B2.2 and not § 2A2.2. See U.S.S.G. § 2B2.2(b)(2)-(3).\nThe addition of four levels for use of a dangerous weapon as charged under the aggravated assault statute presents a more difficult question. Section 2A2.2(b)(2)(B) permits a four-level increase when “a dangerous weapon (including a firearm) was otherwise used” in the assault. The government’s theory at trial was that defendants’ reckless, high-speed driving amounted to the use of a dangerous weapon (their automobile).\nMills argues that his collision with Police Chief Minton was accidental and did not rise to the level of culpability exhibited by the defendants in cases where this court has held or assumed that a speeding car can be a dangerous weapon. See United States v. Beckner, 983 F.2d 1380, 1383 n. 1 (6th Cir.1993) (car can be dangerous weapon under U.S.S.G. § 2A2.4(b)(l)); United States v. Gibson, 896 F.2d 206, 208, 210 n. 1 (6th Cir.1990) (charge of assault with dangerous weapon when defendant suddenly accelerated and drove straight at police officer in federal park); cf., United States v. Plummer, 789 F.2d 435 (6th Cir.1986) (charge of assaulting a federal officer on similar facts).\nBecause the district court applied the wrong base offense level, we need not decide whether it was proper for the court to add points under § 2A2.2(b)(2)(B), which applies to defendants who “otherwise use” a dangerous weapon. We point out, however, that the burglary guideline permits a two-point increase only if “a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2B2.2(b)(4) (emphasis added). On remand, the district court should reconsider its decision to add points to defendants’ sentences for a using dangerous weapon, in view of the difference in the language of the two sections.\n3. Increase for Official Victim\nOnly Naftzger challenges the three-step adjustment meted out because the victim of the assault was a law enforcement officer. Section 3A1.2(b) provides an offense-level increase when,\nduring the course of the offense or immediate flight therefrom, the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury.\nIn imposing this enhancement, the district court merely noted that Police Chief Minton is a law enforcement officer. Neither the court nor the probation department in its presentence report discussed whether Naftz-ger or Mills (for whose conduct Naftzger may have been accountable) knew or had reasonable cause to believe Minton was a law enforcement officer.\nMinton’s cruiser was unmarked, and Min-ton testified he was not sure whether he had activated the warning light. Nor was there any testimony regarding what type of light it was and whether it was visible without being lit. It may well be that Mills and Naftzger had reason to know Minton was a law enforcement agent, given that they were being pursued by at least one marked cruiser with lights and sirens activated. Absent a finding about defendants’ knowledge, however, we are unable to judge the propriety of the three-point increase. “For this court to perform its function properly, ... the record developed below must indicate with specificity what facts the district court considered in reaching its offense level calculation.” United States v. Range, 982 F.2d 196, 198 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 3042, 125 L.Ed.2d 728 (1993). We therefore remand for findings of fact as to defendants’ knowledge of Minton’s status as a law enforcement officer.\nA Reckless Endangerment\nThe district court raised Mills’ offense level by two points for reckless endangerment pursuant to U.S.S.G. § 3C1.2. The judge relied upon the presentence report’s finding that in driving recklessly at speeds of up to 100 miles per hour on mountain roads, Mills evinced a “wanton disregard for the safety of other motorists.” This finding was not clearly erroneous, and Mills’ upward adjustment under this section is affirmed.\n5. Personal Characteristics\nMills’ final contention, that the district court did not take into account his unique personal characteristics in sentencing him, is meritless, since he did not make a motion for a downward departure and since the district court subtracted twenty to fifty-five months from his sentencing range for substantial assistance.\nIII.\nFor these reasons, we affirm defendants’ convictions and reverse and remand the sentences of both for resentencing under § 2B2.2 of the Sentencing Guidelines. In addition, we remand for further fact finding on defendant Naftzger’s enhancement for official victim. We affirm, however, the increase to Mills’ sentence for reckless endangerment. Accordingly, this case is reversed and remanded to the district court for further proceedings consistent with this opinion.\n. Fed.R.Evid. 404(b) provides for the exclusion of evidence of other crimes or acts to prove a defendant’s character, but allows such evidence to show other purposes such as motive, opportunity, and intent.\n. The relevant portions of 18 U.S.C. § 2113 provide:\n(a) Whoever, by force and violence, or by intimidation, takes, ‘or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association.... [sjhall be fined not more than $5000 or imprisoned not more than twenty years, or both.\n(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.\n(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.\n18 U.S.C. § 2113. Subsection (c)(1) of § 2118 substantially tracks the language of subsection (d) of § 2113 quoted above.\n. Naftzger does not argue that the getaway car cannot be a “dangerous weapon or device” for purposes of 18 U.S.C. § 2118(c)(1).\n. Naftzger uses similar arguments to challenge her conviction for conspiracy to commit pharmacy burglary. However, she was charged with conspiracy to violate subsection (b) of § 2118 only. The government was therefore not required to prove a conspiracy to assault Police Chief Minton.\n. Mills alone challenges these three enhancements, but they must be vacated as to both defendants since they are only options when the aggravated assault guideline applies.", "type": "majority", "author": "ALAN E. NORRIS, Circuit Judge."}], "attorneys": ["James E. Arehart, Asst. U.S. Atty., James Zerhusen, Asst. U.S. Atty. (argued and briefed), Karen K. Caldwell, U.S. Atty., Lexington, KY, for U.S.", "Derek G. Gordon (argued and briefed), Anggelis, Philpot, Gordon, & Simpson, Lexington, KY, for Ronnie Saunders Mills.", "Ronnie Saunders Mills, pro se."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Ronnie S. MILLS (92-5324) and Velinda S. Naftzger (92-5505), Defendants-Appellants.\nNos. 92-5324, 92-5505.\nUnited States Court of Appeals, Sixth Cir'cuit.\nArgued March 15, 1993.\nDecided July 29, 1993.\nJames E. Arehart, Asst. U.S. Atty., James Zerhusen, Asst. U.S. Atty. (argued and briefed), Karen K. Caldwell, U.S. Atty., Lexington, KY, for U.S.\nDerek G. Gordon (argued and briefed), Anggelis, Philpot, Gordon, & Simpson, Lexington, KY, for Ronnie Saunders Mills.\nRonnie Saunders Mills, pro se.\nBefore: KENNEDY, NORRIS, and SUHRHEINRICH, Circuit Judges."}	KENNEDY	NORRIS	SUHRHEINRICH	1	1	1	0	0	0	1 F.3d 414	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Ronnie S. MILLS (92-5324) and Velinda S. Naftzger (92-5505), Defendants-Appellants\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-07-29\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nALAN E. NORRIS, Circuit Judge.\nDefendants, Ronnie Saunders Mills and Velinda Sue Naftzger, appeal their convictions and sentences for pharmacy burglary in violation of 18 U.S.C. § 2118.\nI.\nOn August 11,1991, defendants drove from Tennessee to Virginia looking for a drugstore to burglarize. Failing to find a desirable target in Virginia, the pair drove the next day to a mall in Harlan, Kentucky, where they observed an unattended pharmacy. Defendants broke into the store and stole drugs worth over $2,000, a silverware chest, and a diamond ring. Two witnesses to the incident alerted Kentucky police, who in turn notified Virginia authorities. A Virginia police officer pursued defendants as Mills drove his car at speeds of up to 100 miles per hour, weaving in and out of traffic, along a two-lane mountain road between Kentucky and Virginia. In an attempt to intercept defendants’ car, the Police Chief of Pennington Gap, Virginia, Curtis Minton, pulled his unmarked cruiser onto the road. Mills swerved to avoid the cruiser but lost control of his car and hit Minton’s vehicle. Minton sustained serious injuries.\nMills entered a guilty plea to one count of aiding and abetting the commission of pharmacy burglary, in violation of 18 U.S.C. §§ 2118(b) and (c)(1), and received a sentence of 120 months’ imprisonment. Following a jury trial, Naftzger was convicted on multiple counts, including aiding and abetting the commission of pharmacy burglary. She was sentenced to 108 months’ imprisonment, with a supervised release term of six years.\nII.\nA. Introduction of Incriminating Statements\nNaftzger asserts that the trial court’s admission of several incriminating statements she made after her arraignment violated her Sixth and Fifth Amendment rights. This court reviews the district court’s factual findings on suppression issues for clear error, while analyzing the district court’s legal conclusions under a de novo standard. United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.), cert. denied, — U.S. ———, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992).\nAfter Naftzger’s arrest, FBI agents advised her of her Miranda rights and she executed a waiver. She then denied active participation in the pharmacy burglary. Following that interview, two agents from the Bureau of Alcohol, Tobacco, and Firearms spoke with Naftzger about an unrelated arson investigation into the burning of code-fendant Mills’ store. Naftzger answered affirmatively when the agents asked if she had been advised of and understood her rights, and she acknowledged the waiver she had just signed. Naftzger then gave a sworn, taped statement about the arson. This interview was interrupted when she had to be escorted up one floor for her arraignment. The ATF agents attended the arraignment and observed the magistrate advise Naftzger of her constitutional rights and the charges against her, and appoint an attorney for her.\nAccording to the ATF agents, Naftzger approached them after the arraignment and asked to speak to them. The agents did not re-advise her of her Miranda rights. Although Naftzger began by discussing the arson again, she soon brought up the burglary and her concern that she had never seen the diamond ring she and Mills allegedly stole. Her appointed attorney was not present at this conference. Naftzger then admitted she and Mills had committed fifteen or sixteen burglaries together. She also admitted to an active role in the burglary of the pharmacy. The district court denied Naftz-ger’s motion to suppress these admissions.\nNaftzger asserts that introduction of testimony about the admissions is at odds with the Supreme Court’s decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The Jackson Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Jackson, 475 U.S. at 636, 106 S.Ct. at 1411. The Court relied upon Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which had previously held that once a person in custody has “expressed his desire to deal with the police only through counsel,” the police violate his or her Fifth Amendment rights if they initiate further questioning before counsel is made available, “unless the accused himself initiates further communication ... with the police.” Jackson, 475 U.S. at 626, 106 S.Ct. at 1405 (quoting Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884r-85). The Court in Jackson extended the Edwards rule to the Sixth Amendment context, concluding that a defendant’s invocation of his or her Sixth Amendment right to counsel at an arraignment likewise prevents further police-initiated interrogation about that offense. Id. 475 U.S. at 636, 106 S.Ct. at 1411.\nWe agree with Naftzger that her request for counsel at arraignment would normally suffice to invoke her Jackson right to have counsel present at police questioning about the pharmacy burglary. However, the record is clear that the agents’ discussion with Naftzger after her arraignment was prompted when she approached them. Jackson’s prophylactic rule, like the rule in Edwards v. Arizona, applies only to “police-initiated questioning.” See id. at 635, 636, 106 S.Ct. at 1410, 1411 (emphasis added); see also Murphy v. Holland, 845 F.2d 83, 85 (4th Cir.) (finding no Jackson violation because defendant initiated conversation), cert. denied, 488 U.S. 908, 109 S.Ct. 258, 102 L.Ed.2d 246 (1988); Smith v. Dugger, 840 F.2d 787, 794 (11th Cir.1988) (Jackson inapplicable because defendant clearly initiated discussion), cert. denied, 494 U.S. 1047, 110 S.Ct. 1511, 108 L.Ed.2d 647 (1990).\nAfter a suppression hearing, the district court found “credible and believable” the testimony of one of the ATF agents that Naftz-ger asked to speak to the agents as she left the courtroom. Naftzger offered no evidence to refute the agent’s testimony. Therefore, the district court’s finding that Naftzger initiated the conference is not clearly erroneous and the court was not required to exclude the incriminating statements she made in her post-arraignment discussion with ATF agents.\nNaftzger next contends that the introduction of her admissions also infringed her Fifth Amendment right against self-incrimination because she did not voluntarily, knowingly, and intelligently waive her Miranda rights to remain silent and to have counsel present. We disagree. Naftzger was advised of these rights at least twice, signed a written waiver, and later re-affirmed that waiver. Although she did not execute another waiver before the post-arraignment conference, she had been advised by a judge just minutes earlier of her constitutional rights. The record supports the district judge’s conclusion that Naftzger voluntarily and intelligently waived those rights prior to the second session with the ATF agents. The district court’s admission of Naftzger’s inculpatory statements was not error.\nB. Admission of 404(b) Evidence\nNaftzger next maintains that the district court erred in admitting evidence under Fed.R.Evid. 404(b) that she and Mills had previously committed a number of break-ins together. We review the trial court’s 404(b) decisions for abuse of discretion. United States v. Acosta-Cazares, 878 F.2d 945, 948 (6th Cir.), cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989).\nThe evidence was admitted for a proper purpose under Fed.R.Evid. 404(b). Naftzger testified on her own behalf at trial, insisting that she knew nothing of the planned burglary, did not participate in it, and even slept through much of the preparation. Her involvement in prior, similar burglaries proved her intent, knowledge, and ongoing plan with Mills to burglarize drugstores. Moreover, the probative value of the evidence outweighed its prejudicial effect. Fed.R.Evid. 403. The district court accordingly did not abuse its discretion in admitting the evidence.\nC. Sufficiency of the Evidence on the Burglary Counts\nNaftzger contends that the evidence was insufficient to sustain her conviction under 18 U.S.C. § 2118. Evidence is sufficient to support a conviction if,-after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).\nSection 2118 provides, in pertinent part:\n(b) Whoever, without authority, enters or attempts to enter, or remains in, the business premises or property of a person registered with the Drug Enforcement Administration ... with the intent to steal any material or compound containing any quantity of a controlled substance shall, except as provided in subsection (c), be fined not more than $25,000 or imprisoned not more than twenty years, or both, if (1) the replacement cost of the controlled substance to the registrant was not less than $500, (2) the person who engaged in such entry or attempted such entry or who remained in such premises or property traveled in interstate or foreign commerce or used any facility in interstate or foreign commerce to facilitate such entry or attempt or to facilitate remaining in such premises or property, or (3) another person was killed or suffered significant bodily injury as a result of such entry or attempt. (e)(1) Whoever in committing any offense under subsection (a) or (b) assaults any person, or puts in jeopardy the life of any person, by the use of a dangerous weapon or device shall be fined not more than $35,000 and imprisoned for not more than twenty-five years.\nThe indictment charged that on or about August 12, 1991, Mills and Naftzger,\naiding and abetting one another, knowingly and willfully did, without authority, enter, attempt to enter, and remain in the L.V. LEE DRUG COMPANY, INC., the business premises of Joe Wesley Myers, a person registered with the Drug Enforcement Administration ..., with the intent to steal controlled substances having a replacement cost to the registrant in excess of $500 and to facilitate said offense, the defendants did travel in interstate commerce from Kentucky to Virginia; further in committing said offense, [defendants] did assault and put in jeopardy the life of CURTIS MINTON, by the use of a dangerous device, that is an automobile; all in violation of- Title 18 United States Code, Sections 2118(b) and (c)l and Title 18, United States Code, Section 2.\nNaftzger asserts that the evidence was insufficient to support her conviction on this count for three reasons. All three focus on the enhancement the statute provides under subsection (c)(1) for assault with a dangerous weapon “in committing” the offense described in subsection (b).\nFirst, Naftzger suggests that the language of 18 U.S.C. § 2118(c)(1) was not meant to apply to assaults during flight to avoid apprehension after a burglary. That is, the “assault” on Minton did not occur “in committing any offense” as required by (c)(1). We have found no reported cases interpreting the reach of subsection (c)(1). However, because Congress indicated that the pharmacy burglary statute was modeled after the federal bank robbery statute, 18 U.S.C. § 2113, see H.R.Rep. No. 644, 98th Cong., 2d Sess. 4 (1984), reprinted in 1984 U.S.C.C.A.N. 521, 524, we look to interpretations of that statute for guidance.\nCourts applying the bank robbery statute have concluded that the reference in 18 U.S.C. § 2113(d) to assaults in committing the offense of bank robbery includes injuries caused during hot pursuit from a bank robbery. See United States v. Pietras, 501 F.2d 182, 187 (8th Cir.), cert. denied, 419 U.S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974); cf. United States v. Martin, 749 F.2d 1514, 1518 (11th Cir.1985) (finding that the offense in § 2113(a) extends for hot pursuit); United States v. Jarboe, 513 F.2d 33, 36-37 (8th Cir.), cert. denied, 423 U.S. 849, 96 S.Ct. 90, 46 L.Ed.2d 71 (1975) (discussing aiding and abetting liability and whether a robbery has ended, pursuant to § 2113(a), prior to hot pursuit). Moreover, in determining who the victim of a bank robbery is for Sentencing Guidelines purposes, this court has commented, “[a]s the crime of bank robbery cannot be completed without some form of flight or attempted flight, the crime is more naturally understood to include the act of fleeing and the immediate consequences of such flight.” United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1239, 117 L.Ed.2d 472 (1992). The similar language of 18 U.S.C. § 2118(c)(1) prohibiting assaults in committing the offense of pharmacy burglary should likewise extend to assault during immediate flight.\nIn addition, and most significantly, an element of the crime of pharmacy burglary as charged in the indictment was interstate travel, which included defendants’ flight from Kentucky into Virginia after the burglary. Because the assault on Minton took place during this travel, it occurred in the course of the pharmacy burglary. Accordingly, defendants did injure Police Chief Minton in committing the offense of pharmacy burglary as required by 18 U.S.C. § 2118(c)(1).\nNaftzger next argues that because the collision with Police Chief Minton’s .cruiser was an accident, there was insufficient evidence to convict her of aiding Mills to “assault or put in jeopardy the life of Curtis Minton by the use of a dangerous device.”\nThe district court defined the term “assault” as a “deliberate attempt to inflict bodily harm or injury upon the person of another.” While the government refers to Mills’ collision with Minton’s cruiser as “ramming,” the record contains little evidence of a deliberate attempt to collide with Minton. Even Police Chief Minton himself testified that Mills and Naftzger “lost control trying to pass me.”\nNevertheless, evidence of intent was not essential because the jury could have found that Mills and Naftzger “put in jeopardy the life of [Curtis Minton],” which is the alternative to assault listed in subsection (c)(1). The court defined “putting in jeopardy” as meaning “to knowingly do an act which exposes [a] person to a risk of death.” Viewing the evidence in the light most favorable to the government, the jury could easily have found that the car’s speed and Mills’ reckless driving knowingly exposed Minton to a risk of death, even if the wreck was not deliberate.\nFinally, Naftzger contends that, even if there was sufficient evidence that Mills knowingly exposed Minton to a risk of death, there was no proof that she aided and abetted in this recklessness. In Count 1, she was convicted of aiding and abetting the burglary and assault. As the court instructed the jury, the government had to prove that she intentionally helped or encouraged someone else to commit the crime of “burglary of a registered pharmacist using a dangerous device to assault or put in jeopardy the life of another.”\nNaftzger maintains that there was no evidence that she did anything to help or encourage the assault/putting in jeopardy of Police Chief Minton. We disagree. Mills testified that as he sped away from Harlan, Naftzger looked through their loot and watched behind to see if they had lost the pursuing police officers. Clearly, Naftzger actively assisted Mills in fleeing, and the pair’s reckless flight created a known risk of danger to Minton and others on the road. Hence, sufficient evidence supported the jury’s finding that Naftzger aided and abetted Mills in conduct that knowingly jeopardized Minton’s life.\nIn sum, there was sufficient evidence of all the elements required for conviction under 18 U.S.C. § 2118.\nD. . Sentencing Issues\nThis court reviews de novo a district court’s application of the Sentencing Guidelines when that application involves mixed questions of law and fact. Muhammad, 948 F.2d at 1455. The district court’s findings of fact in connection with sentencing are analyzed under a clear error standard. Id.\n1. Assault Guideline\nIn sentencing both Mills and Naftzger, the district court applied the base offense level for aggravated assault (U.S.S.G. § 2A2.2), rather than that for burglary of other structures (§ 2B2.2). The statutory index to the guidelines, which matches statutes with their appropriate guideline sections, lists one possibility for a conviction of 18 U.S.C. § 2118(b), the burglary of other structures guideline, § 2B2.2. The index offers three choices for a violation of 18 U.S.C. § 2118(c)(1) — the guideline for assault with intent to commit murder (§ 2A2.1), the section on aggravated assault (§ 2A2.2), and the section on robbery (§ 2B3.1).\nThe introduction to the index states: “If more than one guideline section is referenced for the particular statute, use the guideline most appropriate for the nature of the offense conduct charged in the count of which the defendant was convicted.” Section lB1.2(a) likewise requires that the guideline “most applicable to the offense of conviction” be used.\nThe parties agree that neither the section for assault with intent to commit murder, nor the guideline for robbery apply. Although Naftzger does urge application of the guideline for minor assault (§ 2A2.3), that is not an option listed for a violation of § 2118. Consequently, the district court was left with a choice between the burglary guideline (§ 2B2.2) and the aggravated assault guideline (§ 2A2.2). Because the indictment listed both § 2118(b) and § 2118(c)(1), the court opted for aggravated assault. We hold that this was error.\nSection 2118(b) provides three jurisdictional alternatives. Pharmacy burglary is a federal crime if: (1) the cost of the controlled substances stolen was at least $500, or (2) the perpetrator traveled or used any facility in interstate commerce to facilitate the burglary, or (3) a person was killed or seriously injured as a result of the burglary. 18 U.S.C. § 2118(b)(1) — (3). In charging a violation of § 2118(b), the indictment alleged both that defendants stole drugs valued at more than $500 and that they traveled in interstate commerce to facilitate the offense. Because the statute’s jurisdictional prerequisites are listed in the alternative, however, the government was required to plead and prove only one of these.\nSince the value of the controlled substances that defendants pilfered exceeded $500, the crime of pharmacy burglary was complete when Mills and Naftzger left the pharmacy. The only reason the government also charged interstate travel was to permit a sentencing enhancement under (c)(1) because the assault/putting in jeopardy of Police Chief Minton occurred during the flight across state lines. Although we have held that the assault on Minton, which occurred during defendants’ interstate flight from the burglary - of the pharmacy, permitted their convictions under §§ 2118(b) and (c)(1), it does not follow that assault was the most appropriate guideline.\nWhen, as here, the stolen narcotics exceed a value of $500, the assault need only be proved to enhance the sentence, not to obtain a conviction on the principal offense. In defendants’ ease, the gravamen of the offense was pharmacy burglary; the assault merely enhanced their sentences.\nIf an assault takes place in a drugstore, the use of the aggravated assault guideline would be more appropriate. The government could then rely upon the jurisdictional provision in § 2118(b)(3), as well as charging the sentence enhancement in § 2118(c)(1). As a result, assault would be the gist of the crime and an element the government must prove in order to obtain a conviction under subsection (b).\nThe fact that the government could not charge defendants’ assault on Minton under (b)(3) as well as under (c)(1) strengthens our belief that assault was not the gist of this offense. Under these circumstances, the assault/putting in jeopardy of Police Chief Min-ton is an aggravating circumstance that may qualify for enhancement under (c)(1), but it could not fairly be described as the “offense of conviction” within the meaning of the Sentencing Guidelines. Nor would the aggravated assault guideline appear to be the most appropriate base offense. Instead, the guideline listed for a conviction under § 2118(b), the section for burglary of other structures (§ 2B2.2), should apply, and we reverse and remand for resentencing using that section.\n2. Enhancements Under Aggravated Assault Guideline\nHaving applied the base offense level of § 2A2.2 for aggravated assault, the district court had available to it a number of upward adjustments (called specific offense characteristics) permitted by that section. The court imposed three enhancements under this section: (1) a two-level enhancement for more than minimal planning, (2) a four-level increase for assaults in which a dangerous weapon is not discharged but is otherwise used, and (3) another four-level adjustment for Police Chief Minton’s serious bodily injury. See U.S.S.G. §§ 2A2.2(b)(l), (b)(2)(B), (b)(3)(B). Because we hold that § 2A2.2 is not the most appropriate guideline, these three enhancements, which all appear as specific offense characteristics of the offense of aggravated assault, must be vacated.\nWe note, however, that § 2B2.2 on burglary of other structures includes a similar enhancement for more than minimal planning that the district judge on remand may find applicable. See U.S.S.G. § 2B2.2(b)(l). In contrast, § 2A2.2’s increase for serious bodily injury has no analogue in the burglary guideline and must be vacated. In its place, the court may choose to apply the upward adjustments that are available under § 2B2.2 and not § 2A2.2. See U.S.S.G. § 2B2.2(b)(2)-(3).\nThe addition of four levels for use of a dangerous weapon as charged under the aggravated assault statute presents a more difficult question. Section 2A2.2(b)(2)(B) permits a four-level increase when “a dangerous weapon (including a firearm) was otherwise used” in the assault. The government’s theory at trial was that defendants’ reckless, high-speed driving amounted to the use of a dangerous weapon (their automobile).\nMills argues that his collision with Police Chief Minton was accidental and did not rise to the level of culpability exhibited by the defendants in cases where this court has held or assumed that a speeding car can be a dangerous weapon. See United States v. Beckner, 983 F.2d 1380, 1383 n. 1 (6th Cir.1993) (car can be dangerous weapon under U.S.S.G. § 2A2.4(b)(l)); United States v. Gibson, 896 F.2d 206, 208, 210 n. 1 (6th Cir.1990) (charge of assault with dangerous weapon when defendant suddenly accelerated and drove straight at police officer in federal park); cf., United States v. Plummer, 789 F.2d 435 (6th Cir.1986) (charge of assaulting a federal officer on similar facts).\nBecause the district court applied the wrong base offense level, we need not decide whether it was proper for the court to add points under § 2A2.2(b)(2)(B), which applies to defendants who “otherwise use” a dangerous weapon. We point out, however, that the burglary guideline permits a two-point increase only if “a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2B2.2(b)(4) (emphasis added). On remand, the district court should reconsider its decision to add points to defendants’ sentences for a using dangerous weapon, in view of the difference in the language of the two sections.\n3. Increase for Official Victim\nOnly Naftzger challenges the three-step adjustment meted out because the victim of the assault was a law enforcement officer. Section 3A1.2(b) provides an offense-level increase when,\nduring the course of the offense or immediate flight therefrom, the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury.\nIn imposing this enhancement, the district court merely noted that Police Chief Minton is a law enforcement officer. Neither the court nor the probation department in its presentence report discussed whether Naftz-ger or Mills (for whose conduct Naftzger may have been accountable) knew or had reasonable cause to believe Minton was a law enforcement officer.\nMinton’s cruiser was unmarked, and Min-ton testified he was not sure whether he had activated the warning light. Nor was there any testimony regarding what type of light it was and whether it was visible without being lit. It may well be that Mills and Naftzger had reason to know Minton was a law enforcement agent, given that they were being pursued by at least one marked cruiser with lights and sirens activated. Absent a finding about defendants’ knowledge, however, we are unable to judge the propriety of the three-point increase. “For this court to perform its function properly, ... the record developed below must indicate with specificity what facts the district court considered in reaching its offense level calculation.” United States v. Range, 982 F.2d 196, 198 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 3042, 125 L.Ed.2d 728 (1993). We therefore remand for findings of fact as to defendants’ knowledge of Minton’s status as a law enforcement officer.\nA Reckless Endangerment\nThe district court raised Mills’ offense level by two points for reckless endangerment pursuant to U.S.S.G. § 3C1.2. The judge relied upon the presentence report’s finding that in driving recklessly at speeds of up to 100 miles per hour on mountain roads, Mills evinced a “wanton disregard for the safety of other motorists.” This finding was not clearly erroneous, and Mills’ upward adjustment under this section is affirmed.\n5. Personal Characteristics\nMills’ final contention, that the district court did not take into account his unique personal characteristics in sentencing him, is meritless, since he did not make a motion for a downward departure and since the district court subtracted twenty to fifty-five months from his sentencing range for substantial assistance.\nIII.\nFor these reasons, we affirm defendants’ convictions and reverse and remand the sentences of both for resentencing under § 2B2.2 of the Sentencing Guidelines. In addition, we remand for further fact finding on defendant Naftzger’s enhancement for official victim. We affirm, however, the increase to Mills’ sentence for reckless endangerment. Accordingly, this case is reversed and remanded to the district court for further proceedings consistent with this opinion.\n. Fed.R.Evid. 404(b) provides for the exclusion of evidence of other crimes or acts to prove a defendant’s character, but allows such evidence to show other purposes such as motive, opportunity, and intent.\n. The relevant portions of 18 U.S.C. § 2113 provide:\n(a) Whoever, by force and violence, or by intimidation, takes, ‘or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association.... [sjhall be fined not more than $5000 or imprisoned not more than twenty years, or both.\n(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.\n(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.\n18 U.S.C. § 2113. Subsection (c)(1) of § 2118 substantially tracks the language of subsection (d) of § 2113 quoted above.\n. Naftzger does not argue that the getaway car cannot be a “dangerous weapon or device” for purposes of 18 U.S.C. § 2118(c)(1).\n. Naftzger uses similar arguments to challenge her conviction for conspiracy to commit pharmacy burglary. However, she was charged with conspiracy to violate subsection (b) of § 2118 only. The government was therefore not required to prove a conspiracy to assault Police Chief Minton.\n. Mills alone challenges these three enhancements, but they must be vacated as to both defendants since they are only options when the aggravated assault guideline applies.\n[END_CASE]", "role": "user" } ]
10,511,628	UNITED STATES of America, Plaintiff-Appellee, v. Florencia Y. WALKER (92-3135) and Tanya M. Powell (92-3136), Defendants-Appellants	United States v. Walker	1993-07-29	Nos. 92-3135, 92-3136	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: KEITH and BATCHELDER, Circuit Judges; and CHURCHILL, Senior District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Florencia Y. WALKER (92-3135) and Tanya M. Powell (92-3136), Defendants-Appellants."], "opinions": [{"text": "CHURCHILL, Senior District Judge.\nOn December 5, 1989 a grand jury in the Southern District of Ohio, Eastern Division, returned a complex 46-page indictment charging the appellants, Tanya M. Powell and Florencia Y. Walker, along with four other named defendants, with a variety of offenses.\nPowell and Walker, and the other four defendants, were charged in Count 1 with conspiracy to import heroin in violation of 21 U.S.C. § 963.\nCount 24 charged Powell and Walker with importation of heroin in violation of 21 U.S.C. § 962(a), 21 U.S.C. §§ 960(a)(1) and (b)(1)(A) and 18 U.S.C. § 2.\nCounts 23 and 29 charged Walker with traveling in interstate commerce in furtherance of a racketeering enterprise in violation of 18 U.S.C. § 1952 and 2.\nIn Count 31, Walker was charged with attempted importation of heroin, in violation of 21 U.S.C. § 963.\nPowell was charged in Counts 8, 20, 25, 27 and 28 with traveling in interstate commerce in furtherance of a racketeering enterprise in violation of 18 U.S.C. §§ 1952 and 2.\nPowell and one other defendant were charged in Count 9 with possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(ii) and 18 U.S.C. § 2.\nPowell and defendants other than Walker were charged in Counts 19, 21 and 30 with importation of heroin in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 2.\nCount 34 charged Powell and defendants other than Walker with conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846.\nForfeiture Count J alleged that Powell acquired a 1987 Volvo in the name of Conchita Branch and that the automobile was obtained as a result of the commission of a felony in violation of 21 U.S.C. § 853(a)(1).\nThe Count 1 conspiracy was alleged to have occurred between October, 1984 and September, 1988. The other alleged offenses were alleged to have occurred on various dates during the period of the Count 1 conspiracy.\nWalker and Powell were arrested on March 8, 1990. At the arraignment on March 27, not guilty pleas were entered and trial was scheduled to commence on May 2. On April 4 they were released on bond.\nThree potential government witnesses— Brenda Givens, Joyce Crawford and Halima Isa — were named in Count 1 as unindicted co-conspirators. Givens, Crawford and Isa, prior to and during the trial, were imprisoned in Japan for violations of Japanese narcotics laws. The Japanese government refused to allow any of them to leave Japan. The government sought and obtained, over objections, leave of the court to take their depositions in Japan. Two trips to Japan were necessary to take the depositions because the witnesses refused to testify without grants of immunity. The government also sought and obtained trial continuances because of the time involved in taking depositions in Japan.\nMajor portions of the video tape depositions were objected to by one or more parties. Prior to the trial, the Court made rulings as to those portions of the tapes which would be inadmissible. The inadmissible portions were deleted from a copy of the tapes.\nFor convenience, a transcript of the video tape depositions had been prepared. Those portions of the testimony which were ruled to be inadmissible were highlighted with a yellow marker.\nBefore commencement of the trial, Walker moved for a separate trial because she was not charged with the offenses involving cocaine. Her motion was denied.\nJury trial of the charges against four of the defendants, Walker, Powell, Brown and Butler, commenced on April 29, 1991.\nJury selection was still in progress on May 6. Early in the day, Brown entered a guilty plea and agreed to testify for the government. The other three defendants moved to dismiss the venire. Later in the day, Butler also entered a guilty plea. The next morning the court denied the motions and instructed the jury that they should draw no inference from the fact that the trial was proceeding against only two defendants.\nBecause of the pleas, additional portions of the transcripts were highlighted and additional portions of the video tapes were deleted.\nThe government, over objection, was allowed to and did use the modified video tape copies to present the testimony of the three missing witnesses. Neither the tapes nor the tape copies were admitted as exhibits. The transcripts were not admitted into evidence.\nAt the close of proofs, Count 19 was dismissed.\nIn the late afternoon of May 28, the jury retired for the sole purpose of selecting a foreperson. Trial was recessed until 9:15 a.m. on May 29 at which time the trial exhibits were given to the jury. At approximately 2:00 p.m., the jury sent out written questions which included the following question:\nARE THE WRITTEN TRANSCRIPTS EXACTLY THE SAME AS WHAT WE HEARD FROM THE VIDEO TAPES OR HAVE PARTS BEEN EDITED OUT? SPECIFICALLY, BRENDA GIVENS’ DEPOSITION RE: THE COCAINE TRANSACTION THAT ALLEGEDLY TOOK PLACE IN TANYA’S HOUSE (PAGES 1-114 THRU 1-116).\nAn on-the-record inquiry of the foreperson of the jury established that the book of transcripts of the depositions, highlights and all, had been inadvertently sent into the jury room along with the admitted exhibits. Defendants then moved for a mistrial.\nFollowing the questioning of jurors individually, the defendants’ motions for mistrials were denied.\nOn May 30 the jury returned verdicts of guilty as to each defendant on all remaining counts. The defendants’ bonds were revoked.\nOn January 29,1992, Powell was sentenced to 264 months in prison with five years’ supervised release. On the same day, Walker was sentenced to 169 months in prison with five years’ supervised release. Timely notices of appeal were filed.\nIssues on Appeal\nBoth of the appellants raise as issues on appeal (1) denial of their Sixth Amendment rights of confrontation of the deposed witnesses, (2) error in denial of them motions for mistrial because the jury had access to and actually read substantial portions of the transcripts, and (3) error because the appellants were not present during the questioning of the individual jurors.\nAdditionally, appellant Walker raises the I following issues:\n(1) Denial of statutory right to a speedy trial in violation of 18 U.S.C. § 3161.\n(2) Error in denial of her motion for a separate trial.\n(3) Error in failure to discharge the venire when Brown and Butler pled guilty.\n(4) Error in denying a two-level reduction in her base offense level pursuant to U.S.S.G. § 3B1.2 because she played a minor role in the offense.\nThe Speedy Trial Act Claim\nAppellant Walker claims that the Court erred in denial of her motion to dismiss for failure to commence her trial within the statutory 70-day period, citing only 18 U.S.C. § 3161. The record reveals that the government overcame a series of logistical and legal problems, not of its own making, in taking depositions of important witnesses in Japan. The court found that continuing the trial from May 2, 1990 to October 22, 1990, and from October 22, 1990 to February 4, 1991, and finally from February 4, 1991 to April 29, 1991 was necessary because witnesses were absent or unavailable for trial and that the periods of delay were excludable in computing the time within which trial must be commenced pursuant to 18 U.S.C. § 3161(h)(3)(A). The court specifically found that the ends of justice served by such continuances outweighed the interests of the public and the defendants in a speedy trial, 18 U.S.C. § 3161(h)(8)(A). We find no error in these determinations.\nThe Guidelines Claim\nAppellant Walker’s argument assumes the facts alleged by the government. She argues that she was less culpable than other defendants and that she was entitled to a two-level reduction of her base offense level for minor role pursuant to U.S.S.G. § 3B1.2(b).\nThe government’s version of her role was that she readily agreed to be a courier for the purpose of making money. She made two trips from the United States to Japan for the purpose of bringing back large quantities of heroin. For the first trip she received approximately $14,000. On the second trip she was promised to be paid at least $15,000 for her services as a courier.\nIn a purely domestic distribution operation couriers, even of large quantities of a controlled substances, may frequently be minor participants. When the crime is importation, however, couriers play a role that is central to the offense. United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).\nHer role was not significantly less culpable than that of other couriers. The fact that she was less culpable than “organizers, leaders, managers or supervisors” does not establish that the defendant was a minor participant.\nThe Court did not err in refusing to reduce her offense level by two points.\nThe Separate Trial and Jury Venire Issues\nCiting no authority, Appellant Walker argues that the Court erred when it denied her motion to sever her trial from that of her sister, codefendant Powell. Walker also argues that the error was compounded when the Court denied the motion to dismiss the jury venire after codefendants Brown and Butler pled guilty during the jury selection process.\nThe morning after Brown and Butler pled guilty, the court gave the jury the following precautionary instruction:\nYou will see by looking at counsel table for the defendants that there are now two defendants rather than four, two lawyers representing their respective clients, there are therefore three less lawyers at the table representing two defendants. Let me advise you right now, I will advise those of you who are seated as jurors in the case, that you are not to draw any inference from that. It is a matter that does not concern you at all and you are not to draw any inference.\nWe find no error in the procedure used by the court.\nPowell was charged with offenses in 12 counts, some of which related to the conspiracy to import heroin, but others related to a conspiracy to possess with intent to distribute cocaine. Walker was not charged in the cocaine related counts.\nThe motion for severance, like the motion to strike the jury venire, was addressed to the court’s discretion.\nEvidence of one crime or a series of crimes must be related to the others. United States v. Hatcher, 680 F.2d 438 (6th Cir. 1982). There was a factual relationship between the cocaine and heroin related crimes.\nBrown testified concerning the cocaine conspiracy. Immediately following Brown’s direct testimony, the court gave the jury the following instruction:\nLadies and gentlemen of the jury, during the course of this testimony you may have heard testimony by Mr. Brown that related to allegations of the conspiracy to sell cocaine. You are instructed that Florencia Walker is not charged with involvement in this alleged conspiracy. You may not use evidence relating to an alleged conspiracy to sell cocaine in your deliberations of the charges against Florencia Walker.\nAppellant Walker was not denied a fair trial by the manner in which the court dealt with either motion.\nThe Confrontation Issue\nThe government took reasonable steps to enable the appellants to attend the taking of depositions in Japan without being arrested. The United States government requested from the Japanese government a formal guarantee that the defendants would not be prosecuted in Japan for past conduct. The Japanese government denied the request.\nFearing prosecution in Japan, Walker and Powell elected not to attend the taking of the depositions. Their reluctance to go to Japan was well founded. Walker had previously been arrested and detained for several weeks in Japan. The American witnesses in Japan may well have given Japanese authorities information which would provide a basis for prosecuting the appellants in Japan. For the purpose of ruling on their Sixth Amendment claims it may be assumed that they were effectively prohibited from going to Japan, but also that the United States government was not responsible for the prohibition.\nWalker’s attorney and Powell’s attorney were present when the depositions were taken and were given the opportunity to cross-examine the witnesses.\nIn United States v. Sines, 761 F.2d 1434 (9th Cir.1985), the Ninth Circuit was confronted with a similar situation. In Sines the deposed witness, Steneman, was serving a long prison sentence in Thailand. Sines chose not to attend the deposition because he was afraid he might be arrested there on narcotic trafficking charges. The court rejected the confrontation argument stating:\nSines’ confrontation cross claim is similarly without merit. The Supreme Court has identified the major purpose of the confrontation clause as: (1) ensuring that witnesses will testify under oath; (2) for enforcing witnesses to undergo cross-examination; (3) permitting the jury to observe the demeanor of witnesses. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970); accord, Mancusi v. Stubbs, 408 U.S. 204, 213 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972). All three of these purposes were fulfilled when Steneman’s deposition' was taken with Sines’ attorney present. See, United States v. King, [552 F.2d 833, 842 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977) ] (focusing upon ability of defense counsel to investigate case as opposed to defendants’ [sic] ).\n761 F.2d at 1441.\nWe follow the Ninth Circuit on -this issue. We are of the opinion that, under the circumstances of this case, the taking of the depositions in Japan and their use in the trial did not violate the appellants’ Sixth Amendment rights of confrontation.\nThe District Court order authorizing the taking of the depositions required that the oaths be given by a consular officer of the United States. Appellant Walker’s brief suggests that the record fails to disclose that the oath administered by the consular official, Ms. Smith, was administered within her consular district. The record on appeal does not disclose when and before whom this claim was first made nor is it otherwise documented. Under these circumstances, the argument does not merit consideration.\nDenial of Motion for Mistrial\nIn Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court prescribed that a certain procedure be followed when there is an unauthorized private communication or contact with the jury. Narrowly construed, this would not include a situation, as here, in which a document was inadvertently given to the jury by court personnel. However, in United States v. Cooper, 868 F.2d 1505 (6th Cir.), cert. denied, 490 U.S. 1094, 109 S.Ct. 2440, 104 L.Ed.2d 996 (1988), the United States Attorney’s notes on the defendant’s final argument found their way into the jury room. This was treated as a communication requiring the court to conduct a Remmer hearing.\nIt is the communication’s potential to impact upon a juror’s ability to perform his or her duties impartially, rather than the form or source of the communication, that dictates the necessity for conducting a Remmer hearing.\nAt first blush, the greatest risk to a fair trial from exposure to the transcripts to the jury was in the highlighted material which had been redacted from the copies of the video tapes which were shown to the jury at the trial. The court found that there was no prejudicial material therein and that, in any event, there was a “very, very strong probability” that none of the jurors had read the highlighted objections and testimony. It does not appear that the appellants quarrel with these conclusions.\nIt was and is the jury’s double or even greater exposure to selected portions of the testimony of Crawford and Givens that has been the center of the appellants’ concerns. This concern was emphasized by counsel for the defendants at the time of their initial motions for mistrial after receiving the foreman’s note and again in a hastily prepared brief submitted to the court.before the court questioned the jurors individually. In this brief, counsel for Ms. Walker said:\nIn this case, witness credibility is the entire defense case to the jury. As it relates to Ms. Walker, the entire argument to the jury was that the only testimony against Ms. Walker was that of Crawford and Givens, whom the defense argues are not worthy of belief. We now know that the jury has improperly read unredaeted testimony of both of those witnesses. In fact, the jury question shows that there is a conflict between the transcripts and at least one juror’s recollection of the testimony. We cannot know if any of the other jurors, while silently reading this unredacted transcript, resolved other conflicts between the transcript and the juror’s recollection of testimony by resorting to the transcript.\nThe potential for double exposure to selected testimony to improperly influence a jury has long been recognized.\nIn United States v. Padin, 787 F.2d 1071 (6th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 45 (1986), the Court held that a District Court’s decision to have testimony read back to a jury is governed by a discretion standard. In upholding discretion not to permit “read back” the Court, at page 1076 stated:\nReported cases recognize two inherent dangers in reading testimony to a jury during its deliberations. First, undue emphasis may be accorded such testimony. United States v. Varsalona, 710 F.2d 418, 421 (8th Cir.1983); United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). Second, the limited testimony that is reviewed may be taken out of context by the jury. See, e.g., Government of Canal Zone v. Scott, 502 F.2d 566, 570 (5th Cir.1974). In Henry v. United States, 204 F.2d 817 (6th Cir.1953), this circuit noted that these concerns are escalated after the jury had reported its inability to arrive at a verdict.\nThe fact that unauthorized and uncontrolled “read back” occurred in this case was clear from the brief testimony of the foreperson of the jury. It created a substantial potential for undue emphasis and a special hazard that limited testimony might be taken out of context.\nIt is the opinion of the Court that under the circumstances the court had a duty to conduct a Remmer hearing.\nIn Remmer, the court prescribed the procedures to be followed:\nThe trial court should ... determine the circumstances, the impact thereof upon the juror and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.\nRemmer, 347 U.S. at 229-30, 74 S.Ct. at 451 (emphasis added).\nAfter consulting with counsel, the court, in chambers with counsel present, questioned the jurors individually to ascertain how the transcript had been used by the jury.\nThe court did not inquire of the jurors whether their experience with the transcripts had influenced their ability to be fair jurors. One juror, when excused from questioning, volunteered, “Please don’t declare a mistrial, we have tried so hard.”\nBased upon juror responses the court found that some, but not all, jurors had read portions of the transcripts that reflected evidence which had been admitted in the form of video tapes.\nIn addition to finding that the jurors had not read the highlighted material, the court stated, “Further, the Court finds that there is no reasonable possibility that the improperly submitted transcripts would prejudice either defendant, therefore the motions for a new trial are overruled.”\nThe court informed counsel that it would give the jury a precautionary instruction. Before the jury was brought back, one of the defense attorneys suggested asking the jurors if their exposure to the transcripts would make them feel that they could no longer be fair and impartial. The attorney for the government opined that to do so would be opening Pandora’s box. The court discarded the suggestion.\nThe jury was then given the following instruction.\nTHE COURT: Inadvertently a written copy of the videotaped testimony was included with those items of evidence which were sent back with you in the jury room for your consideration. This was not the fault of anyone. The Court assumes control of all exhibits and takes full responsibility for the error.\nYou are not to give any greater weight to the testimony of those witnesses over any other testimony or evidence simply because you may have had an opportunity to view a portion of the written transcripts. As previously instructed, you are to rely upon your collective memories of the testimony and your own personal notes. You must not and should not consider in any way anything you may have read in the written transcripts. These transcripts are not part of the evidence and cannot be considered.\nI will now ask you to continue your deliberations.\nPrior to 1982, it seems to have been the consistently applied rule that, upon exposure to a jury to a potentially prejudicial communication, it was the government’s burden to prove that the jury had not been biased by the communication. Since Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), however, there has been a split among the federal circuits with respect to the burden of proof.\nIn United States v. Zelinka, 862 F.2d 92, 95-96 (6th Cir.1988), the issue was reviewed:\nThis court has consistently held that Smith v. Phillips reinterpreted Remmer to shift the burden of showing bias to the defendant rather than placing a heavy burden on the government to show that an unauthorized contact was harmless. In United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), this court interpreted Smith v. Phillips as holding that “Remmer does not govern the question of the burden of proof where potential jury partiality is alleged. Instead, Rem-mer only controls the question of how the district court should proceed where such allegations are made_ In light of Phillips, the burden of proof rests upon a defendant to demonstrate 'that unauthorized communications with jurors resulted in actual juror partiality. Prejudice is not to be presumed.” (Footnote omitted).\nThis court has reiterated its interpretation of Smith v. Phillips in later eases. E.g., United States v. Howard 752 F.2d 220, 223-24 (6th Cir.), cert. denied, sub norri. Shelton v. United States, 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985); United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 114, 88 L.Ed.2d 93 (1985). The First Circuit appears to agree with this interpretation. See Neron v. Tierney, 841 F.2d 1197, 1200 (1st Cir.1988); United States v. DeLutis, 722 F.2d 902, 909 (1st Cir.1983). On the other hand, at least two courts of appeals have expressly disagreed with Pennell. See United States v. Butler, 822 F.2d 1191, 1195 n. 2 (D.C.Cir.1987); United States v. Littlefield 752 F.2d 1429, 1431 (9th Cir.1985). Other courts continue to apply Remmer as if Smith v. Phillip's made no change in the burden of proof. Nevertheless, Pennell remains the controlling decision in this circuit.\nThe court in Pennell also noted the Supreme Court’s rejection in Smith v. Phillips of the idea that a juror’s testimony about her own impartiality is inherently suspect. 737 F.2d at 533. Four points emerge from our decision in Pennell: (1) when a defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be held; (2) no presumption of prejudice arises from such a contact; (3) the defendant bears the burden of proving actual juror bias; and (4) juror testimony at the “Remmer hearing” is not inherently suspect.\n862 F.2d at 95-96.\nBy denying the reasonable request to inquire into the jurors’ states of mind, the defendants were deprived of the opportunity to meet their burden of proving actual juror bias, and were thereby denied a fair trial.\nThe ease will be remanded for a new trial.\n. They had read enough to recognize it as forbidden fruit.\n. The appellants did not object during the proceedings to the fact that the jurors were interrogated in their absence. Although it would have been better for them to have been present, there was no prejudicial error. See United States v. Giacalone, 588 F.2d 1158 (6th Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979).", "type": "majority", "author": "CHURCHILL, Senior District Judge."}, {"text": "BATCHELDER, Circuit Judge,\nconcurring in part and dissenting in part, and from the judgment.\nI agree in large measure with the majority’s disposition of the issues here, and will not discuss that with which I agree. However, I have trouble with my colleagues’ analysis on a few points, most notably with regard to the propriety of the District Court’s handling of the transcripts which found their way into the jury room. Because I reach a different conclusion on that difficult issue, on which the majority’s decision to grant a new trial hinged, I respectfully dissent from the court’s judgment.\n1. Denial of motion for mistrial.\nWhile appellants do, I think, argue that the jurors were prejudiced by their having read or “at least [been] exposed to” the yellow-highlighted portions of the transcript, I agree with the majority that appellants’ main argument for mistrial is that the jurors were prejudiced by their “double exposure” to the deposition testimony. I believe, however, that the District Court properly questioned the jurors as to this exposure, that the defense lawyers did not object to. the voir dire or request the court to ask additional questions, and that the court adequately■ instructed the jury on the matter. Therefore, I see no abuse of discretion in the District Court’s finding that the jurors’ impartiality had not been tainted by exposure to the transcript.\nDefendants argue incorrectly that we should consider the transcripts as akin to “extraneous,” “extrinsic,” or “inadmissible” material, exposure to which creates a serious question of the jury’s impartiality due to our system of limiting carefully the information presented to the jury for its consideration. The Government does not dispute that six of the twelve jurors apparently read parts of the deposition transcripts of two key witnesses against defendants, Brenda Givens and Joyce Crawford. “In reading from the transcripts,” defendants argue, “these six jurors, and those six jurors who watched [them] read from the transcript, were able to perceive a greater credibility and reliability from those witnesses than they might have otherwise received..Thus, I believe the issue boils down to whether this extra exposure to deposition testimony which had been admitted in evidence resulted in “actual prejudice” on the part of the jurors.\nThe presence of deposition transcripts in a jury room does not necessarily infect jurors with bias; the court may permit the jury to have transcripts of taped testimony for then-reference during deliberations. United States v. Williford, 764 F.2d 1493, 1503 (11th Cir.1985). “Absent [defendant’s] showing that the transcripts were inaccurate or that specific prejudice occurred, there is no error in allowing transcripts to go to the jury room.” , Id. The decision to admit into evidence transcripts of taped testimony or conversations, or to send transcripts to the jury for their reference, falls within the sound discretion of the trial court. United States v. West, 948 F.2d 1042, 1044 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1209, 117 L.Ed.2d 447 (1992). Had the Government requested that properly redacted transcripts be placed in the jury room, we would review the District Court’s decision only for abuse of discretion; I cannot fathom why we would apply stricter scrutiny to the present circumstances.\nAdmittedly, the transcripts mistakenly placed in the jury room in this case were not in evidence. However, even where the jury is exposed to completely extraneous material or information, we do not presume juror prejudice to result. United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985) (following Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). In moving for a mistrial, the defendant bears the burden of proving that such exposure resulted in actual prejudice,bias or partiality. Id. We review the District Court’s decision regarding motions for mistrial only for abuse of discretion. United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 114, 88 L.Ed.2d 93 (1985).\nHere, to its credit, the District Court proceeded with an abundance of caution once it found out about the transcripts, holding a Remmer hearing to determine what had happened and whether the jury’s impartiality had possibly suffered as a result. However, the majority concludes that an unfair trial resulted when the District Court “denfied] a reasonable request to inquire into the jurors’ states of mind [and thus] deprived [defendants] of the opportunity to meet their burden of proving actual juror bias.” Op. at 431. I think the majority has both misstated and mischaracterized the facts of what happened during the Remmer hearing.\nOnce the problem had manifested itself, and counsel for both sides had submitted arguments (including Walker’s motion for mistrial), the judge met with counsel in a conference room and proposed to ask the jurors each four questions, out of the presence of the other jurors:\n1. Have you read anything?\n2. If so, what did you read?\n3. If any of the transcripts were read, did you read any of the highlighted in yellow?\n4. If so, what did you read?\nJury Deliberations Transcript (JD) 35. The judge specifically asked whether any of the lawyers had “any other suggestions on the type of voir dire or the specific questions.” Id. Defense counsel made no objection to the questions, nor did they request that any additional questions be asked. Mr. Cline, Walker’s lawyer, agreed that the four questions were “appropriate,” adding only his “concern ... whether the responses to those might lead to further questions.” He stated, “[W]e may have a situation where it would be appropriate to ask that particular ■ juror to step outside while we all discuss.” [sic] Id. at 39.\nThe jurors each were brought into the conference room, shown the transcript, and asked the four questions: Mr. Mellot, the first juror, said he had “looked at” Givens’s testimony; he said he did not read from the highlighted portions because “we figured for some reason we weren’t supposed to look at that.” JD-40. Juror Farmer said he (she?) had read from Givens’s testimony aloud, but had not read from the highlighted portions. JD^I6. Juror Wheeler also said he (she?) had read part of Givens’s testimony, but had not read any highlighted transcript. JD-49. Juror Chess said he had read parts of the transcript, but had not read highlighted text. JD-50. Juror Connolly said she had not read anything in the transcript, but noted that one juror had “made the point, you know, I don’t think we should read anything in yellow.” JD-52. Juror Sprague also stated that she had not read any of the transcript, and said that the other jurors thought they “were not to see” the highlighted portions. JD-53. Juror Patricia A. Holley answered similarly, JD-55, as did Juror Patricia Holley. Juror Potts, evidently a bit more agitated than the others, denied reading from the transcript, and said, upon being questioned as to the highlighting, “we did not read the yellow part, I can tell you. I can promise you we did not read the yellow part.” As he exited, he pleaded, “Please don’t declare a mistrial; we have tried- so hard.” JD-58. Juror Wood also denied reading the transcript; she also recalled the jurors’ discussion of the highlighted portions, and the comment of one juror that “it was probably excluded.” JD-59. Juror Hoskins said she did not read the transcript, but said that she “saw the yellow lines” but had not read the highlighted text. JD-60-61. Jury foreperson Andrews stated he read from the Givens testimony, but had not read any of the highlighted portion; he, too, recounted a discussion amongst the jurors about the significance of the highlighted text, but said that “we noted it and we assumed that it didn’t pertain to what we were deliberating about.” JD-62.\nSeveral times during the voir dire, between jurors, the court asked if counsel had questions or comments, and- specifically asked the lawyers whether any of them wanted additional questions posed to the jurors; neither defense lawyer objected,, commented, or asked for additional questions. After questioning the jurors, Judge Smith commented that “the only material that was considered was the testimony that had been already admitted and shown in the videotaped depositions,” and that there was “a very, very strong probability that the jurors did not in fact consider the information.” JD-63. The court then asked for comments from counsel. The Government agreed with Judge Smith’s comments, asserting that any testimony the jurors had read was cumulative and arguing against declaring a mistrial. JD-64. Mr. Thomas, Powell’s lawyer, cited two cases holding that “extraneous material in the jury room is reversible error.” Id. Mr. Cline pointed out that some of the transcript had been read aloud, and argued that\n[ejven if the Court’s ruling is correct, that they did not consider the yellow highlighted portions, nor read any of those portions, it is the position of the defense that the ability to review the testimony of individualized witnesses in general is very dangerous and it is reversible error. But particularly so in a case like this where the defense contends that the critical factor in determination of Florencia Walker’s innocence or guilt is a determination of credibility of Brenda Givens and Joyce Crawford.\nJD-65. Judge Smith then denied the motion for mistrial, finding only a “slight potential” that any of the jurors had read from the highlighted portions of transcript, and holding that no prejudice to the defendants resulted from either this possibility or from the jurors’ having read from the transcript of admitted videotaped testimony. JD-66. The court also indicated that it would issue an instruction to the jury on the matter. Id.\nMr. Cline then asked whether “the whole process of questioning the jurors and so forth, or their exposure to [the transcript], in any way makes any of them feel that they could no longer be a fair and impartial juror.” JD-70. One of the government lawyers commented that in light of the court’s intention to issue an instruction, asking further questions would “open[ ] Pandora’s box.” Id. Cline then stressed that he did not know whether asking further questions would be “necessary,” but stated, “I raise it so we can discuss it.” Id. The judge responded that “once we give them an explanation ... and give them a further instruction that they are not to consider it, I think that’s the best way to do it.” Id. Defense counsel made no further comments or objections, and the discussion ended. Immediately thereafter, Judge Smith reconvened the jury in the courtroom and issued the instruction to the jury which the majority has quoted above.\nTo make a proper objection considered preserved for purposes of appeal, Fed. R.Evid. 51 counsel must, “at the time the ruling or order of the court is made or sought, make[ ] known to the court the action which that party desires the court to take or that party’s objection to the action of the court and the grounds therefor.... ” See United States v. Huffman, 467 F.2d 189, 196 (6th Cir.1972). Counsel must “object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection.” United States v. Fendley, 522 F.2d 181, 186 (5th Cir.1975) (quoted in United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 137, 66 L.Ed.2d 60 (1980)). Even where defense counsel makes a request for a jury voir dire in order to make a showing of actual prejudice, he must object to preserve the issue on appeal if the court does not rule specifically on his request. United States v. Williams, 809 F.2d 75, 84 (1st Cir.1986), cert. denied, 481 U.S. 1030, 1072, 107 S.Ct. 1959, 2469, 95 L.Ed.2d 531, 877; 482 U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 377 (1987). The Rules of Evidence do not require “formal” objections per se; “[t]he general rule requiring counsel to make clear to the trial court what action they wish taken should not be applied in a ritualistic fashion.” Charles A. Wright, 3A Federal Practice and Procedure § 842 at 289 (1982). However, both counsel’s position and the trial court’s ruling must be “clear” from the record; the problem must be “brought to the attention of the court, and the court [must have] indicated in no uncertain terms what its views are” United States v. Pirovolos, 844 F.2d 415, 424 n. 8 (7th Cir.), cert. denied, 488 U.S. 857, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988) (quoting Wright, Federal Practice and Procedure § 842) (emphasis added). See also King v. Jones, 824 F.2d 324, 326 (4th Cir.1987) (under Fed.R.Civ.P. 46, the civil counterpart of Fed.R.Evid. 51, “[i]f there are particular voir dire questions which counsel deems essential, and that refusal to ask them may be reversible error, counsel must so advise the court, and state his reasons before the court’s voir dire ... is completed”).\nThe majority characterizes as a full-blown objection Mr. Cline’s brief discussion with the court as to whether the voir dire questions sufficiently drew out any feelings on the part of the jurors with regard to their continuing impartiality, and characterizes the court’s response that the jury instruction would be “the best way to do it” as a “den[ial]” of Cline’s “reasonable request to inquire into the jurors’ states of mind.” In my view, and, I think, under the law of this Circuit and others as I have described it, Cline’s comments cannot even be construed as a request to make inquiry, let alone an objection. At the time, Cline stressed that he did not know whether the law required that further questions be asked, but simply stated that he wished to “raise it so we can discuss it.” The judge did not directly respond to Cline’s thoughts, but reiterated his belief that the jury instruction would suffice to cure the problem. Cline did not pursue the issue, saying nothing once Judge Smith had made his comments. At that point, it was clear that the judge intended to walk right back to the courtroom, call in the jury and issue the instruction; no further voir dire would take place. Had Cline wished a different course, he had the right, and the opportunity, to make his objection clear. His lack of any response to the judge’s final comments indicates to me that he waived any objection.\nFor the purposes of argument, I shall retreat to the next trench and assume not only that Cline made a proper objection to the voir dire and specifically requested that the court make particular inquiry into the jurors’ assessment of their own impartiality, but also that the court denied Cline’s request. To make these assumptions, I believe, does not change the result. I stress that we may review this denial only for abuse of discretion. Traditionally, decisions regarding the conduct of voir dire fall within the sound discretion of the judge. For example, the court may decide, as it did in this case, to prohibit counsel from participating in the questioning. See Fed.R.Civ.P. 24(a): With regard to appellate review of the trial court’s handling of the jury, the Supreme Court has observed:\nDespite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. ■ In neither instance can an appellate court easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses.\nRosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). The Court noted the “ample discretion” accorded Federal judges “in determining how best to conduct the voir dire,\" and restated its longstanding rule that “ ‘the court [has] broad discretion as to the questions to be asked.’ ” Id. at 189, 101 S.Ct. at 1634 (quoting Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931)). This Circuit has cleaved to this principle of deference. See United States v. Fish, 928 F.2d 185, 186 (6th Cir.1991) C‘[j]udges need not use every question submitted by counsel”).\nWhile Rosales-Lopez and certain of the other cases I have cited arose from the context of jury selection voir dire, the “abuse of discretion” standard of review, and, I think, the principles underlying that standard, apply as well to voir dire conducted during the trial to determine the continuing impartiality of the jurors. In United States v. Sababu, 891 F.2d 1308 (7th Cir.1989), a transcript of a taped phone conversation, which the court had excluded since the tape was “largely inaudible,” found its way into the jury room, and certain of the jurors had reviewed it. 891 F.2d at 1333. The judge asked counsel to draft a curative instruction, and soon instructed the jury that the transcript was “not in evidence.... You must disregard this transcript entirely and continue your deliberations.” Id. Defense counsel nonetheless demanded a mistrial, and asked that the court “conduct a voir dire of the jury to probe the effect of the transcript on their deliberations.” Id. The prosecution objected, arguing that questioning the jurors specifically “might give undue significance to the transcript.” Id. The court refused to conduct the voir dire.\nThe Seventh Circuit affirmed the District Court’s decision. The court noted that jury exposure to material not in evidence is handled on a case-by-case basis; “[t]he district court has the primary responsibility for making this determination of prejudice, and an appellate court must review [it] ... under an ‘abuse of discretion’ standard.” Sababu, 891 F.2d at 1333. In explaining this deferential standard, the court observed:\n“The district court will always be in a better position than the appellate judges to assess the probable reactions of jurors in a case over which he has presided. As we cannot put ourselves in the district judge’s shoes in these matters we ought to accept his judgment unless we have a very strong conviction of error.”\nId. (quoting United States v. Bruscino, 687 F.2d 938, 941 (7th Cir.1982) (en banc), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983)). Since “other ample evidence” existed against defendant, since the contents of the transcript were not weighty, inflammatory on their face, nor had they been explained to the jury by counsel, and since the jury is presumed to follow the court’s curative instructions, the court concluded that “there was no ‘reasonable possibility’ that the transcript affected the verdict.” Id. at 1334. The District Court, therefore, having “ ‘broad discretion to remedy prejudicial influences,’ ” id. (quoting United States v. Williams, 737 F.2d 594, 613 (7th Cir.1984)), did not, in the view of the Seventh Circuit, “abuse its discretion in refusing defendant’s request that he question the jury,” id.\nIf the Sababu decision was correct, then a fortiori the majority here has erred, in my opinion. The jury there had read from a transcript of a tape the court had excluded from evidence, not from a transcript of a videotaped deposition which had been admitted and which the jury had seen, as here. In general, where the overwhelming bulk of admissible evidence supports a conviction, the introduction of improper but cumulative evidence is harmless error. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728-29, 23 L.Ed.2d 284 (1969). Where a document, erroneously present in the jury room during deliberations, is “merely cumulative of other, properly admitted evidence, the transmittal is harmless error.” United States v. Treadwell, 760 F.2d 327, 339 (D.C.Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986). More importantly, defense counsel in Sababu had specifically requested that the court conduct a voir dire, and the court had expressly denied defendant’s objection.\nAs I have discussed, I do not believe Judge Smith could reasonably have read into Mr. Cline’s comments a demand for further questioning of the jury. Judge Smith also acted properly in issuing a thoughtful curative instruction, which the law presumes the jurors understood and followed, in the-absence of evidence to the contrary. United States v. Zalman, 870 F.2d 1047, 1053 (6th Cir.), cert. denied, 492 U.S. 921, 109 S.Ct. 3248, 106 L.Ed.2d 594 (1989). And in any event, I see nothing in the record to support the majority’s apparent conclusions that the defendants sustained their burden of demonstrating actual prejudice and that Judge Smith’s positive assessment of the jurors’ continuing impartiality was erroneous. In light of that record, to give weight to Juror Potts’s comment that “we have tried so hard” or to accept defendants’ insinuation that the jurors “had read enough [of the highlighted portions of transcript] to recognize it as forbidden fruit” in the face of twelve jurors’ swearing before the court that they had not, strikes me both as trammeling the discretion of the trial court without warrant and minimizing beyond recognition the defendant’s burden on the issue of actual juror prejudice. I would affirm Judge Smith’s denial of defendants’ motion for mistrial.\n2. Objections to the foreign depositions.\nWhile I concur with the majority’s rejection of defendants’ objections with regard to the depositions taken in Japan, I wish to clarify three points. First, I note that the majority observes, in commencing its discussion of defendants’ confrontation clause challenge, that “[t]he [United States] government took reasonable steps to enable the appellants to attend the taking of depositions in Japan without being arrested.” Op. at 428. While this statement is true as a matter of fact, I am concerned that it suggests a legal duty on the part of the Government to ensure, or at least take “reasonable steps” to ensure, the safe passage of defendants' to foreign territories where defendants are wanted by authorities. Defendants argued that this duty exists, but the law does not support this argument. The United States has neither the duty, nor arguably the power, to guarantee “safe” passage, unhindered by the actions of foreign law enforcement agencies, to Americans who are in danger of arrest while travelling in a foreign jurisdiction for the purpose of defending a criminal action. In re Grand Jury Subpoena of Flanagan, 691 F.2d 116, 121 (2d Cir.1982); see also United States v. Sines, 761 F.2d 1434, 1440 (9th Cir.1985).\nThe majority also notes that for Sixth Amendment Confrontation Clause purposes, defendants “were effectively prohibited from going to Japan,” but seems to reject defendant’s argument in part because “the United States government was not responsible for the prohibition.” Op. at 428. Once again, there is no basis in law for suggesting the existence of an affirmative duty on the part of the Federal Government in this context. In the very case the majority cites in disposing of the issue, the Ninth Circuit addressed a nearly identical situation where defendant claimed to be faced with a “Hobson’s choice”: either not attend a deposition being taken in Thailand, where he was wanted by authorities, and forgo exercising, his right to confront his adversaries, or show up at the deposition and risk arrest. Sines, 761 F.2d at 1441. The court deemed the argument to be “without merit”:\nSines was given the opportunity to attend [the] deposition, and chose not to attend. His decision, whether reasonable or not in light of the possibility that he might be arrested in Thailand ... does not preclude the government from securing [deponent’s] testimony.\nId. Regardless of the risk of arrest appellants faced in going to Japan, the law regards their decision not to attend the depositions as a “choice,” not as a prohibition, and considers their right to confront adverse witnesses therefore to be waived.\nLastly, the majority neglects to address the admissibility of the foreign deposition, to which appellants have objected. As with other decisions regarding the admission of evidence, the District Court’s decision to admit a deposition taken.abroad is reviewed only for abuse of discretion. Sines, 761 F.2d at 1439. Where a witness is incarcerated abroad for a long, prison term, he is considered unavailable, and his deposition may be introduced at trial. Id. Courts are skeptical of foreign depositions only insofar as\n“the manner of examination required by the law of the host nation is so incompatible with our fundamental principles of fairness or so prone to inaccuracy or bias as to render the testimony inherently unreliable.”\nUnited States v. Sturman, 951 F.2d. 1466, 1480 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2964, 119 L.Ed.2d 586 (1992) (quoting United States v. Salim, 855 F.2d 944, 953 (2d Cir.1988)). In this ease, the Japanese Government agreed to allow the deposition to proceed using American law and procedure. Appellants certainly cannot prevail in arguing that the same deposition procedure which would be used in Ohio is somehow tarnished by its employment on foreign soil, particularly where we have recognized much less comparable foreign procedure as satisfying constitutional mínimums. Id.\nAs I have stated, I agree with those parts of the majority opinion I have not mentioned here, but with regard to the points with which I have noted my disagreement, and as to the majority’s decision to grant defendants’ motion for mistrial, I respectfully DISSENT.\n. In my view, the majority improperly accepts the appellants' factual contentions as to whether the jurors read highlighted portions of transcript. In conducting the Remmer hearing, the District Court found that of the six jurors who had read portions of the transcript, none had read from the highlighted sections, the .jurors apparently having recognized that the highlighting indicated testimony not admitted. The record supports this finding by the District Court. I discuss this issue at greater length below.\n. I confess surprise to see the majority reach its conclusion after quoting at length from United States v. Zelinka, 862 F.2d 92 (6th Cir.1988), which stresses the point I make here, that we have not strayed from Smith v. Phillips, as applied in Pennell, in placing the burden of proving prejudice squarely on defendants. However, as I already mentioned, and shall discuss further below, I do not see this case as one in which the jurors were exposed to \"extrinsic evidence” or \"unauthorized contact.\" Inasmuch as the cases are factually distinguishable on this point, the presumption described in Zelinka and Pennell supports my position all the more strongly. '\n. This is not a result of computer malfunction; this jury included two women with the same name. The record distinguishes between them by including the middle initial of Patricia A. Holley.\n. I also note that since counsel and the judge were alone in the conference room, there can be no suggestion that Cline may have been reluctant to press his \"objection\" because of the jury's presence. Some courts have seen such reluctance as excusable in that situation, and held the objection not to be waived. See Wright, Federal Practice and Procedure § 842 n. 12 and accompanying text.", "type": "concurring-in-part-and-dissenting-in-part", "author": "BATCHELDER, Circuit Judge,"}], "attorneys": ["Robyn Jones (briefed) and Salvador A. Dominguez (argued), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.", "Richard A. Cline (argued and briefed), Mitchell, Allen, Catalano & Boda, Columbus, OH, for' defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Florencia Y. WALKER (92-3135) and Tanya M. Powell (92-3136), Defendants-Appellants.\nNos. 92-3135, 92-3136.\nUnited States Court of Appeals, Sixth Circuit.\nArgued March 1, 1993.\nDecided July 29, 1993.\nRehearing Denied Sept. 23, 1993.\nRobyn Jones (briefed) and Salvador A. Dominguez (argued), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.\nRichard A. Cline (argued and briefed), Mitchell, Allen, Catalano & Boda, Columbus, OH, for' defendant-appellant.\nBefore: KEITH and BATCHELDER, Circuit Judges; and CHURCHILL, Senior District Judge.\nThe Honorable James P. Churchill, Senior United States District Judge for the Eastern District of Michigan, sitting by designation."}	KEITH	BATCHELDER	CHURCHILL	1	2	1	1	0	0	1 F.3d 423	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Florencia Y. WALKER (92-3135) and Tanya M. Powell (92-3136), Defendants-Appellants\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-07-29\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCHURCHILL, Senior District Judge.\nOn December 5, 1989 a grand jury in the Southern District of Ohio, Eastern Division, returned a complex 46-page indictment charging the appellants, Tanya M. Powell and Florencia Y. Walker, along with four other named defendants, with a variety of offenses.\nPowell and Walker, and the other four defendants, were charged in Count 1 with conspiracy to import heroin in violation of 21 U.S.C. § 963.\nCount 24 charged Powell and Walker with importation of heroin in violation of 21 U.S.C. § 962(a), 21 U.S.C. §§ 960(a)(1) and (b)(1)(A) and 18 U.S.C. § 2.\nCounts 23 and 29 charged Walker with traveling in interstate commerce in furtherance of a racketeering enterprise in violation of 18 U.S.C. § 1952 and 2.\nIn Count 31, Walker was charged with attempted importation of heroin, in violation of 21 U.S.C. § 963.\nPowell was charged in Counts 8, 20, 25, 27 and 28 with traveling in interstate commerce in furtherance of a racketeering enterprise in violation of 18 U.S.C. §§ 1952 and 2.\nPowell and one other defendant were charged in Count 9 with possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(ii) and 18 U.S.C. § 2.\nPowell and defendants other than Walker were charged in Counts 19, 21 and 30 with importation of heroin in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 2.\nCount 34 charged Powell and defendants other than Walker with conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846.\nForfeiture Count J alleged that Powell acquired a 1987 Volvo in the name of Conchita Branch and that the automobile was obtained as a result of the commission of a felony in violation of 21 U.S.C. § 853(a)(1).\nThe Count 1 conspiracy was alleged to have occurred between October, 1984 and September, 1988. The other alleged offenses were alleged to have occurred on various dates during the period of the Count 1 conspiracy.\nWalker and Powell were arrested on March 8, 1990. At the arraignment on March 27, not guilty pleas were entered and trial was scheduled to commence on May 2. On April 4 they were released on bond.\nThree potential government witnesses— Brenda Givens, Joyce Crawford and Halima Isa — were named in Count 1 as unindicted co-conspirators. Givens, Crawford and Isa, prior to and during the trial, were imprisoned in Japan for violations of Japanese narcotics laws. The Japanese government refused to allow any of them to leave Japan. The government sought and obtained, over objections, leave of the court to take their depositions in Japan. Two trips to Japan were necessary to take the depositions because the witnesses refused to testify without grants of immunity. The government also sought and obtained trial continuances because of the time involved in taking depositions in Japan.\nMajor portions of the video tape depositions were objected to by one or more parties. Prior to the trial, the Court made rulings as to those portions of the tapes which would be inadmissible. The inadmissible portions were deleted from a copy of the tapes.\nFor convenience, a transcript of the video tape depositions had been prepared. Those portions of the testimony which were ruled to be inadmissible were highlighted with a yellow marker.\nBefore commencement of the trial, Walker moved for a separate trial because she was not charged with the offenses involving cocaine. Her motion was denied.\nJury trial of the charges against four of the defendants, Walker, Powell, Brown and Butler, commenced on April 29, 1991.\nJury selection was still in progress on May 6. Early in the day, Brown entered a guilty plea and agreed to testify for the government. The other three defendants moved to dismiss the venire. Later in the day, Butler also entered a guilty plea. The next morning the court denied the motions and instructed the jury that they should draw no inference from the fact that the trial was proceeding against only two defendants.\nBecause of the pleas, additional portions of the transcripts were highlighted and additional portions of the video tapes were deleted.\nThe government, over objection, was allowed to and did use the modified video tape copies to present the testimony of the three missing witnesses. Neither the tapes nor the tape copies were admitted as exhibits. The transcripts were not admitted into evidence.\nAt the close of proofs, Count 19 was dismissed.\nIn the late afternoon of May 28, the jury retired for the sole purpose of selecting a foreperson. Trial was recessed until 9:15 a.m. on May 29 at which time the trial exhibits were given to the jury. At approximately 2:00 p.m., the jury sent out written questions which included the following question:\nARE THE WRITTEN TRANSCRIPTS EXACTLY THE SAME AS WHAT WE HEARD FROM THE VIDEO TAPES OR HAVE PARTS BEEN EDITED OUT? SPECIFICALLY, BRENDA GIVENS’ DEPOSITION RE: THE COCAINE TRANSACTION THAT ALLEGEDLY TOOK PLACE IN TANYA’S HOUSE (PAGES 1-114 THRU 1-116).\nAn on-the-record inquiry of the foreperson of the jury established that the book of transcripts of the depositions, highlights and all, had been inadvertently sent into the jury room along with the admitted exhibits. Defendants then moved for a mistrial.\nFollowing the questioning of jurors individually, the defendants’ motions for mistrials were denied.\nOn May 30 the jury returned verdicts of guilty as to each defendant on all remaining counts. The defendants’ bonds were revoked.\nOn January 29,1992, Powell was sentenced to 264 months in prison with five years’ supervised release. On the same day, Walker was sentenced to 169 months in prison with five years’ supervised release. Timely notices of appeal were filed.\nIssues on Appeal\nBoth of the appellants raise as issues on appeal (1) denial of their Sixth Amendment rights of confrontation of the deposed witnesses, (2) error in denial of them motions for mistrial because the jury had access to and actually read substantial portions of the transcripts, and (3) error because the appellants were not present during the questioning of the individual jurors.\nAdditionally, appellant Walker raises the I following issues:\n(1) Denial of statutory right to a speedy trial in violation of 18 U.S.C. § 3161.\n(2) Error in denial of her motion for a separate trial.\n(3) Error in failure to discharge the venire when Brown and Butler pled guilty.\n(4) Error in denying a two-level reduction in her base offense level pursuant to U.S.S.G. § 3B1.2 because she played a minor role in the offense.\nThe Speedy Trial Act Claim\nAppellant Walker claims that the Court erred in denial of her motion to dismiss for failure to commence her trial within the statutory 70-day period, citing only 18 U.S.C. § 3161. The record reveals that the government overcame a series of logistical and legal problems, not of its own making, in taking depositions of important witnesses in Japan. The court found that continuing the trial from May 2, 1990 to October 22, 1990, and from October 22, 1990 to February 4, 1991, and finally from February 4, 1991 to April 29, 1991 was necessary because witnesses were absent or unavailable for trial and that the periods of delay were excludable in computing the time within which trial must be commenced pursuant to 18 U.S.C. § 3161(h)(3)(A). The court specifically found that the ends of justice served by such continuances outweighed the interests of the public and the defendants in a speedy trial, 18 U.S.C. § 3161(h)(8)(A). We find no error in these determinations.\nThe Guidelines Claim\nAppellant Walker’s argument assumes the facts alleged by the government. She argues that she was less culpable than other defendants and that she was entitled to a two-level reduction of her base offense level for minor role pursuant to U.S.S.G. § 3B1.2(b).\nThe government’s version of her role was that she readily agreed to be a courier for the purpose of making money. She made two trips from the United States to Japan for the purpose of bringing back large quantities of heroin. For the first trip she received approximately $14,000. On the second trip she was promised to be paid at least $15,000 for her services as a courier.\nIn a purely domestic distribution operation couriers, even of large quantities of a controlled substances, may frequently be minor participants. When the crime is importation, however, couriers play a role that is central to the offense. United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).\nHer role was not significantly less culpable than that of other couriers. The fact that she was less culpable than “organizers, leaders, managers or supervisors” does not establish that the defendant was a minor participant.\nThe Court did not err in refusing to reduce her offense level by two points.\nThe Separate Trial and Jury Venire Issues\nCiting no authority, Appellant Walker argues that the Court erred when it denied her motion to sever her trial from that of her sister, codefendant Powell. Walker also argues that the error was compounded when the Court denied the motion to dismiss the jury venire after codefendants Brown and Butler pled guilty during the jury selection process.\nThe morning after Brown and Butler pled guilty, the court gave the jury the following precautionary instruction:\nYou will see by looking at counsel table for the defendants that there are now two defendants rather than four, two lawyers representing their respective clients, there are therefore three less lawyers at the table representing two defendants. Let me advise you right now, I will advise those of you who are seated as jurors in the case, that you are not to draw any inference from that. It is a matter that does not concern you at all and you are not to draw any inference.\nWe find no error in the procedure used by the court.\nPowell was charged with offenses in 12 counts, some of which related to the conspiracy to import heroin, but others related to a conspiracy to possess with intent to distribute cocaine. Walker was not charged in the cocaine related counts.\nThe motion for severance, like the motion to strike the jury venire, was addressed to the court’s discretion.\nEvidence of one crime or a series of crimes must be related to the others. United States v. Hatcher, 680 F.2d 438 (6th Cir. 1982). There was a factual relationship between the cocaine and heroin related crimes.\nBrown testified concerning the cocaine conspiracy. Immediately following Brown’s direct testimony, the court gave the jury the following instruction:\nLadies and gentlemen of the jury, during the course of this testimony you may have heard testimony by Mr. Brown that related to allegations of the conspiracy to sell cocaine. You are instructed that Florencia Walker is not charged with involvement in this alleged conspiracy. You may not use evidence relating to an alleged conspiracy to sell cocaine in your deliberations of the charges against Florencia Walker.\nAppellant Walker was not denied a fair trial by the manner in which the court dealt with either motion.\nThe Confrontation Issue\nThe government took reasonable steps to enable the appellants to attend the taking of depositions in Japan without being arrested. The United States government requested from the Japanese government a formal guarantee that the defendants would not be prosecuted in Japan for past conduct. The Japanese government denied the request.\nFearing prosecution in Japan, Walker and Powell elected not to attend the taking of the depositions. Their reluctance to go to Japan was well founded. Walker had previously been arrested and detained for several weeks in Japan. The American witnesses in Japan may well have given Japanese authorities information which would provide a basis for prosecuting the appellants in Japan. For the purpose of ruling on their Sixth Amendment claims it may be assumed that they were effectively prohibited from going to Japan, but also that the United States government was not responsible for the prohibition.\nWalker’s attorney and Powell’s attorney were present when the depositions were taken and were given the opportunity to cross-examine the witnesses.\nIn United States v. Sines, 761 F.2d 1434 (9th Cir.1985), the Ninth Circuit was confronted with a similar situation. In Sines the deposed witness, Steneman, was serving a long prison sentence in Thailand. Sines chose not to attend the deposition because he was afraid he might be arrested there on narcotic trafficking charges. The court rejected the confrontation argument stating:\nSines’ confrontation cross claim is similarly without merit. The Supreme Court has identified the major purpose of the confrontation clause as: (1) ensuring that witnesses will testify under oath; (2) for enforcing witnesses to undergo cross-examination; (3) permitting the jury to observe the demeanor of witnesses. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970); accord, Mancusi v. Stubbs, 408 U.S. 204, 213 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972). All three of these purposes were fulfilled when Steneman’s deposition' was taken with Sines’ attorney present. See, United States v. King, [552 F.2d 833, 842 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977) ] (focusing upon ability of defense counsel to investigate case as opposed to defendants’ [sic] ).\n761 F.2d at 1441.\nWe follow the Ninth Circuit on -this issue. We are of the opinion that, under the circumstances of this case, the taking of the depositions in Japan and their use in the trial did not violate the appellants’ Sixth Amendment rights of confrontation.\nThe District Court order authorizing the taking of the depositions required that the oaths be given by a consular officer of the United States. Appellant Walker’s brief suggests that the record fails to disclose that the oath administered by the consular official, Ms. Smith, was administered within her consular district. The record on appeal does not disclose when and before whom this claim was first made nor is it otherwise documented. Under these circumstances, the argument does not merit consideration.\nDenial of Motion for Mistrial\nIn Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court prescribed that a certain procedure be followed when there is an unauthorized private communication or contact with the jury. Narrowly construed, this would not include a situation, as here, in which a document was inadvertently given to the jury by court personnel. However, in United States v. Cooper, 868 F.2d 1505 (6th Cir.), cert. denied, 490 U.S. 1094, 109 S.Ct. 2440, 104 L.Ed.2d 996 (1988), the United States Attorney’s notes on the defendant’s final argument found their way into the jury room. This was treated as a communication requiring the court to conduct a Remmer hearing.\nIt is the communication’s potential to impact upon a juror’s ability to perform his or her duties impartially, rather than the form or source of the communication, that dictates the necessity for conducting a Remmer hearing.\nAt first blush, the greatest risk to a fair trial from exposure to the transcripts to the jury was in the highlighted material which had been redacted from the copies of the video tapes which were shown to the jury at the trial. The court found that there was no prejudicial material therein and that, in any event, there was a “very, very strong probability” that none of the jurors had read the highlighted objections and testimony. It does not appear that the appellants quarrel with these conclusions.\nIt was and is the jury’s double or even greater exposure to selected portions of the testimony of Crawford and Givens that has been the center of the appellants’ concerns. This concern was emphasized by counsel for the defendants at the time of their initial motions for mistrial after receiving the foreman’s note and again in a hastily prepared brief submitted to the court.before the court questioned the jurors individually. In this brief, counsel for Ms. Walker said:\nIn this case, witness credibility is the entire defense case to the jury. As it relates to Ms. Walker, the entire argument to the jury was that the only testimony against Ms. Walker was that of Crawford and Givens, whom the defense argues are not worthy of belief. We now know that the jury has improperly read unredaeted testimony of both of those witnesses. In fact, the jury question shows that there is a conflict between the transcripts and at least one juror’s recollection of the testimony. We cannot know if any of the other jurors, while silently reading this unredacted transcript, resolved other conflicts between the transcript and the juror’s recollection of testimony by resorting to the transcript.\nThe potential for double exposure to selected testimony to improperly influence a jury has long been recognized.\nIn United States v. Padin, 787 F.2d 1071 (6th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 45 (1986), the Court held that a District Court’s decision to have testimony read back to a jury is governed by a discretion standard. In upholding discretion not to permit “read back” the Court, at page 1076 stated:\nReported cases recognize two inherent dangers in reading testimony to a jury during its deliberations. First, undue emphasis may be accorded such testimony. United States v. Varsalona, 710 F.2d 418, 421 (8th Cir.1983); United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). Second, the limited testimony that is reviewed may be taken out of context by the jury. See, e.g., Government of Canal Zone v. Scott, 502 F.2d 566, 570 (5th Cir.1974). In Henry v. United States, 204 F.2d 817 (6th Cir.1953), this circuit noted that these concerns are escalated after the jury had reported its inability to arrive at a verdict.\nThe fact that unauthorized and uncontrolled “read back” occurred in this case was clear from the brief testimony of the foreperson of the jury. It created a substantial potential for undue emphasis and a special hazard that limited testimony might be taken out of context.\nIt is the opinion of the Court that under the circumstances the court had a duty to conduct a Remmer hearing.\nIn Remmer, the court prescribed the procedures to be followed:\nThe trial court should ... determine the circumstances, the impact thereof upon the juror and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.\nRemmer, 347 U.S. at 229-30, 74 S.Ct. at 451 (emphasis added).\nAfter consulting with counsel, the court, in chambers with counsel present, questioned the jurors individually to ascertain how the transcript had been used by the jury.\nThe court did not inquire of the jurors whether their experience with the transcripts had influenced their ability to be fair jurors. One juror, when excused from questioning, volunteered, “Please don’t declare a mistrial, we have tried so hard.”\nBased upon juror responses the court found that some, but not all, jurors had read portions of the transcripts that reflected evidence which had been admitted in the form of video tapes.\nIn addition to finding that the jurors had not read the highlighted material, the court stated, “Further, the Court finds that there is no reasonable possibility that the improperly submitted transcripts would prejudice either defendant, therefore the motions for a new trial are overruled.”\nThe court informed counsel that it would give the jury a precautionary instruction. Before the jury was brought back, one of the defense attorneys suggested asking the jurors if their exposure to the transcripts would make them feel that they could no longer be fair and impartial. The attorney for the government opined that to do so would be opening Pandora’s box. The court discarded the suggestion.\nThe jury was then given the following instruction.\nTHE COURT: Inadvertently a written copy of the videotaped testimony was included with those items of evidence which were sent back with you in the jury room for your consideration. This was not the fault of anyone. The Court assumes control of all exhibits and takes full responsibility for the error.\nYou are not to give any greater weight to the testimony of those witnesses over any other testimony or evidence simply because you may have had an opportunity to view a portion of the written transcripts. As previously instructed, you are to rely upon your collective memories of the testimony and your own personal notes. You must not and should not consider in any way anything you may have read in the written transcripts. These transcripts are not part of the evidence and cannot be considered.\nI will now ask you to continue your deliberations.\nPrior to 1982, it seems to have been the consistently applied rule that, upon exposure to a jury to a potentially prejudicial communication, it was the government’s burden to prove that the jury had not been biased by the communication. Since Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), however, there has been a split among the federal circuits with respect to the burden of proof.\nIn United States v. Zelinka, 862 F.2d 92, 95-96 (6th Cir.1988), the issue was reviewed:\nThis court has consistently held that Smith v. Phillips reinterpreted Remmer to shift the burden of showing bias to the defendant rather than placing a heavy burden on the government to show that an unauthorized contact was harmless. In United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), this court interpreted Smith v. Phillips as holding that “Remmer does not govern the question of the burden of proof where potential jury partiality is alleged. Instead, Rem-mer only controls the question of how the district court should proceed where such allegations are made_ In light of Phillips, the burden of proof rests upon a defendant to demonstrate 'that unauthorized communications with jurors resulted in actual juror partiality. Prejudice is not to be presumed.” (Footnote omitted).\nThis court has reiterated its interpretation of Smith v. Phillips in later eases. E.g., United States v. Howard 752 F.2d 220, 223-24 (6th Cir.), cert. denied, sub norri. Shelton v. United States, 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985); United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 114, 88 L.Ed.2d 93 (1985). The First Circuit appears to agree with this interpretation. See Neron v. Tierney, 841 F.2d 1197, 1200 (1st Cir.1988); United States v. DeLutis, 722 F.2d 902, 909 (1st Cir.1983). On the other hand, at least two courts of appeals have expressly disagreed with Pennell. See United States v. Butler, 822 F.2d 1191, 1195 n. 2 (D.C.Cir.1987); United States v. Littlefield 752 F.2d 1429, 1431 (9th Cir.1985). Other courts continue to apply Remmer as if Smith v. Phillip's made no change in the burden of proof. Nevertheless, Pennell remains the controlling decision in this circuit.\nThe court in Pennell also noted the Supreme Court’s rejection in Smith v. Phillips of the idea that a juror’s testimony about her own impartiality is inherently suspect. 737 F.2d at 533. Four points emerge from our decision in Pennell: (1) when a defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be held; (2) no presumption of prejudice arises from such a contact; (3) the defendant bears the burden of proving actual juror bias; and (4) juror testimony at the “Remmer hearing” is not inherently suspect.\n862 F.2d at 95-96.\nBy denying the reasonable request to inquire into the jurors’ states of mind, the defendants were deprived of the opportunity to meet their burden of proving actual juror bias, and were thereby denied a fair trial.\nThe ease will be remanded for a new trial.\n. They had read enough to recognize it as forbidden fruit.\n. The appellants did not object during the proceedings to the fact that the jurors were interrogated in their absence. Although it would have been better for them to have been present, there was no prejudicial error. See United States v. Giacalone, 588 F.2d 1158 (6th Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979).\n[END_CASE]", "role": "user" } ]
10,511,662	Everette CHANCELLOR, by his guardians Willie J. CHANCELLOR and Rosa V. Chancellor, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant/Third-Party Plaintiff-Appellee, Dennis L. Dunlap; Sue Ann Jones, Third-Party Defendants	Chancellor ex rel. Chancellor v. United States	1993-08-02	No. 92-6567	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: GUY and NELSON, Circuit Judges; and WELLFORD, Senior Circuit Judge."], "parties": ["Everette CHANCELLOR, by his guardians Willie J. CHANCELLOR and Rosa V. Chancellor, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant/Third-Party Plaintiff-Appellee, Dennis L. Dunlap; Sue Ann Jones, Third-Party Defendants."], "opinions": [{"text": "PER CURIAM.\nThis is an action brought under the Federal Tort Claims Act (FTCA) by a young boy, Everette Chancellor, who was bitten by a dog. The incident occurred inside the apartment of the dog’s owner, Sgt. Dennis Dunlap, who was a soldier living on the base at Ft. Knox, Kentucky.\nThe United States could be liable under the FTCA only if Dunlap, in keeping the dog, committed a negligent or wrongful act while “acting within the scope of his ... employment.” 28 U.S.C. § 1346(b). There have been other very similar dog bite cases brought under the FTCA. The circuits are not in agreement as to the proper result. We join with those circuits which conclude under these circumstances that there is no FTCA liability.\nWe affirm the bench trial judgment in favor of the United States on the basis of the written opinion filed by Judge Meredith. We write additionally only because this is a case of first impression in this circuit.\nI.\nThe findings of fact made by the district judge have not been challenged on appeal, and we set forth those necessary to provide the factual setting for this incident:\n3. On October 18,1987, while under the care of a babysitter by the name of Mrs. Sue Ann Jones, the plaintiff was bitten on the face by a dog while in the apartment of Sergeant and Mrs. Dennis Dunlap on the premises of Fort Knox, Kentucky....\n4. The dog w7as owned by Sergeant and Mrs. Dunlap, who were both present in the apartment at the time the plaintiff was bitten.\n5. At the time of the dog bite, the plaintiff was sitting on the living room sofa with the dog and two or three other children. Sergeant Dunlap was also sitting in the living room and told the plaintiff that the dog would not bite him.\n8. The Army Military Police and the Veterinary Clinic were aware of one biting incident involving the Dunlap[s’] dog, Boss, prior to the Chancellor incident.\nChancellor’s parents filed an administrative claim for damages against the United States as is required by the FTCA. The claim was denied and this suit was instituted. Although plaintiffs’ complaint is somewhat general, it appears that two primary theories of recovery were advanced against the United States: (1) derivative liability based upon a negligent or wrong act or omission on the part of Sgt. Dunlap while he was acting within the scope of his employment; and (2) strict liability imposed by Kentucky statute upon the owner of a dog that has injured someone.\nII.\nDerivative Liability\nPlaintiffs’ theory of derivative liability is lifted directly from Lutz v. United States, 685 F.2d 1178 (9th Cir.1982). In Lutz, a dog bite case similar to this one, the court held that because there was an Air Force regulation requiring airmen to control their pets on the base the airman was acting within the scope of his employment when he failed to properly control his dog. A similar Army regulation exists in this case.\nNo other circuit has adopted this analysis. In Nelson v. United States, 838 F.2d 1280 (D.C.Cir.1988), the court expressly declined to follow Lutz. The court stated:\nWe doubt the adequacy of the Lutz rationale. Under Lutz, all duties imposed by military regulation, no matter how trivial, could fall within the serviceman’s line of duty and thus within the employer-employee relationship. In the unique context of life on a military base, however, the government is much like an old-fashioned “company town.” Within this multi-facet-ed relationship, the military imposes many duties on military personnel, not all of which are plausibly viewed as imposed by the government in its role as employer.\n... Because such duties, although established by military regulations, do not run to the benefit of the employer and are linked only incidentally with the employment relationship, they cannot be said to be discharged within the scope of employment.\nNelson, 838 F.2d at 1283-84.\nThe Eighth Circuit, in a more recent case, also has declined to follow Lutz. In rejecting Lutz, the court concluded:\nWhile this case factually resembles the Lutz case, we decline to follow it. Instead, we adopt the reasoning of another similar case, Nelson v. United States, 838 F.2d 1280 (D.C.Cir.1988), where the court held that an owner’s failure to control his pet dog did not occur in the line of duty.\nAs a preliminary matter, we observe that the FTCA waives the Government’s immunity to suit only for personal injuries caused by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b). Military employees are within the scope of employment when they act in “the line of duty.” 28 U.S.C. § 2671. “Line of duty” takes its meaning from the applicable state law of respondeat superior. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). Under Arkansas law an employee acts within the scope of employment or in the line of duty when he acts for his employer’s benefit or furthers his employer’s interest. Orkin Exterminating Co. v. Wheeling Pipeline, Inc., 263 Ark. 711, 567 S.W.2d 117 (1978).\nPiper v. United States, 887 F.2d 861, 863 (8th Cir.1989).\nWe join the District of Columbia Circuit. and the Eighth Circuit in declining to follow Lutz.\nIII.\nStrict Liability\nUnder Kentucky law, the owner of a dog is strictly liable for dog bites. Kentucky Revised Statutes section 258.275(1) provides: “Any owner ... of a dog which has ... injured ... any person ... shall be liable to the ... person in a civil action for all damages and costs.... ”\nPlaintiffs attempt to implicate the United States under these statutes by reasoning:\nIn the present ease, it is beyond question that the United States is the owner of Fort Knox. Furthermore, pursuant to USAARMC Reg 40-12, any resident of Fort Knox is required to receive permission to keep a pet from the base commander. Therefore, the United States clearly falls within the definition of “owner” under state law, as does its employee Sergeant Dunlap.\n(Pis’ Brief at 10).\nWe are unpersuaded by plaintiffs’ argument that would make the United States the “owner” of the dog because it was the owner of the army base where the dog was kept.\nMore significantly, however, the Supreme Court has concluded that the United States is not liable under the FTCA for claims grounded in strict liability.\nThis Court’s resolution of the strict-liability issue in Dalehite [v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) ] did not turn on the question of whether the law of Texas or of some other State did or did not recognize strict liability for the conduct of ultrahazardous activities. It turned instead on the question of whether the language of the Federal Tort Claims Act permitted under any circumstances the imposition of liability upon the Government where there had been neither negligence nor wrongful act. The necessary consequence of the Court’s holding in Dalehite is that the statutory language “negligent or wrongful act or omission of any employee of the Government,” is a uniform federal limitation on the types of acts committed by its employees for which the United States has consented to be sued. Regardless of state law characterization, the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of “misfeasance or nonfeasance,” 346 U.S. at 45, 73 S.Ct. at 972, on the part of the Government.\nLaird v. Nelms, 406 U.S. 797, 798-99, 92 S.Ct. 1899, 1900-01, 32 L.Ed.2d 499 (1972).\nAFFIRMED.\n. USAARMC Regulations 40-12 4(5) and (7) (1983) provide in relevant part that an animal owner shall \"[b]e pecuniarily liable for damage or injury to ... persons ..and requires that pet owners ”[c]nsure that animals remain under their direct supervision and control at all times and that measures are employed to prevent them from attacking personnel....\"\nUSAARMC Regulation 40-12 6(2) (1983) provides that \"a third unprovoked bite will be grounds for removal of the pet from Government property.”\n. In Nelson, although the D.C. Circuit rejected plaintiffs theory of derivative liability, it did uphold a judgment for the injured plaintiff under a theory of negligence on the part of government security personnel who were well aware of the dog’s propensity to bite people. Although plaintiffs in this appeal make no similar direct argument, we state that the facts here show the government was aware of only one previous incident involving this dog, and the factual predicate for liability found in Nelson is absent here.", "type": "majority", "author": "PER CURIAM."}], "attorneys": ["Michael R. Greene (briefed),' Fischer, Thomas, Brophy & Shake, Louisville, KY, for plaintiff-appellant.", "James H. Barr, Asst.- U.S. Atty. (briefed), Office of the U.S. Atty., Louisville, KY, for defendant-appellee."], "corrections": "", "head_matter": "Everette CHANCELLOR, by his guardians Willie J. CHANCELLOR and Rosa V. Chancellor, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant/Third-Party Plaintiff-Appellee, Dennis L. Dunlap; Sue Ann Jones, Third-Party Defendants.\nNo. 92-6567.\nUnited States Court of Appeals, Sixth Circuit.\nSubmitted May 18, 1993.\nDecided Aug. 2, 1993.\nMichael R. Greene (briefed),' Fischer, Thomas, Brophy & Shake, Louisville, KY, for plaintiff-appellant.\nJames H. Barr, Asst.- U.S. Atty. (briefed), Office of the U.S. Atty., Louisville, KY, for defendant-appellee.\nBefore: GUY and NELSON, Circuit Judges; and WELLFORD, Senior Circuit Judge."}	GUY	NELSON	WELLFORD	1	1	1	0	0	0	1 F.3d 438	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Everette CHANCELLOR, by his guardians Willie J. CHANCELLOR and Rosa V. Chancellor, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant/Third-Party Plaintiff-Appellee, Dennis L. Dunlap; Sue Ann Jones, Third-Party Defendants\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-08-02\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPER CURIAM.\nThis is an action brought under the Federal Tort Claims Act (FTCA) by a young boy, Everette Chancellor, who was bitten by a dog. The incident occurred inside the apartment of the dog’s owner, Sgt. Dennis Dunlap, who was a soldier living on the base at Ft. Knox, Kentucky.\nThe United States could be liable under the FTCA only if Dunlap, in keeping the dog, committed a negligent or wrongful act while “acting within the scope of his ... employment.” 28 U.S.C. § 1346(b). There have been other very similar dog bite cases brought under the FTCA. The circuits are not in agreement as to the proper result. We join with those circuits which conclude under these circumstances that there is no FTCA liability.\nWe affirm the bench trial judgment in favor of the United States on the basis of the written opinion filed by Judge Meredith. We write additionally only because this is a case of first impression in this circuit.\nI.\nThe findings of fact made by the district judge have not been challenged on appeal, and we set forth those necessary to provide the factual setting for this incident:\n3. On October 18,1987, while under the care of a babysitter by the name of Mrs. Sue Ann Jones, the plaintiff was bitten on the face by a dog while in the apartment of Sergeant and Mrs. Dennis Dunlap on the premises of Fort Knox, Kentucky....\n4. The dog w7as owned by Sergeant and Mrs. Dunlap, who were both present in the apartment at the time the plaintiff was bitten.\n5. At the time of the dog bite, the plaintiff was sitting on the living room sofa with the dog and two or three other children. Sergeant Dunlap was also sitting in the living room and told the plaintiff that the dog would not bite him.\n8. The Army Military Police and the Veterinary Clinic were aware of one biting incident involving the Dunlap[s’] dog, Boss, prior to the Chancellor incident.\nChancellor’s parents filed an administrative claim for damages against the United States as is required by the FTCA. The claim was denied and this suit was instituted. Although plaintiffs’ complaint is somewhat general, it appears that two primary theories of recovery were advanced against the United States: (1) derivative liability based upon a negligent or wrong act or omission on the part of Sgt. Dunlap while he was acting within the scope of his employment; and (2) strict liability imposed by Kentucky statute upon the owner of a dog that has injured someone.\nII.\nDerivative Liability\nPlaintiffs’ theory of derivative liability is lifted directly from Lutz v. United States, 685 F.2d 1178 (9th Cir.1982). In Lutz, a dog bite case similar to this one, the court held that because there was an Air Force regulation requiring airmen to control their pets on the base the airman was acting within the scope of his employment when he failed to properly control his dog. A similar Army regulation exists in this case.\nNo other circuit has adopted this analysis. In Nelson v. United States, 838 F.2d 1280 (D.C.Cir.1988), the court expressly declined to follow Lutz. The court stated:\nWe doubt the adequacy of the Lutz rationale. Under Lutz, all duties imposed by military regulation, no matter how trivial, could fall within the serviceman’s line of duty and thus within the employer-employee relationship. In the unique context of life on a military base, however, the government is much like an old-fashioned “company town.” Within this multi-facet-ed relationship, the military imposes many duties on military personnel, not all of which are plausibly viewed as imposed by the government in its role as employer.\n... Because such duties, although established by military regulations, do not run to the benefit of the employer and are linked only incidentally with the employment relationship, they cannot be said to be discharged within the scope of employment.\nNelson, 838 F.2d at 1283-84.\nThe Eighth Circuit, in a more recent case, also has declined to follow Lutz. In rejecting Lutz, the court concluded:\nWhile this case factually resembles the Lutz case, we decline to follow it. Instead, we adopt the reasoning of another similar case, Nelson v. United States, 838 F.2d 1280 (D.C.Cir.1988), where the court held that an owner’s failure to control his pet dog did not occur in the line of duty.\nAs a preliminary matter, we observe that the FTCA waives the Government’s immunity to suit only for personal injuries caused by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b). Military employees are within the scope of employment when they act in “the line of duty.” 28 U.S.C. § 2671. “Line of duty” takes its meaning from the applicable state law of respondeat superior. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). Under Arkansas law an employee acts within the scope of employment or in the line of duty when he acts for his employer’s benefit or furthers his employer’s interest. Orkin Exterminating Co. v. Wheeling Pipeline, Inc., 263 Ark. 711, 567 S.W.2d 117 (1978).\nPiper v. United States, 887 F.2d 861, 863 (8th Cir.1989).\nWe join the District of Columbia Circuit. and the Eighth Circuit in declining to follow Lutz.\nIII.\nStrict Liability\nUnder Kentucky law, the owner of a dog is strictly liable for dog bites. Kentucky Revised Statutes section 258.275(1) provides: “Any owner ... of a dog which has ... injured ... any person ... shall be liable to the ... person in a civil action for all damages and costs.... ”\nPlaintiffs attempt to implicate the United States under these statutes by reasoning:\nIn the present ease, it is beyond question that the United States is the owner of Fort Knox. Furthermore, pursuant to USAARMC Reg 40-12, any resident of Fort Knox is required to receive permission to keep a pet from the base commander. Therefore, the United States clearly falls within the definition of “owner” under state law, as does its employee Sergeant Dunlap.\n(Pis’ Brief at 10).\nWe are unpersuaded by plaintiffs’ argument that would make the United States the “owner” of the dog because it was the owner of the army base where the dog was kept.\nMore significantly, however, the Supreme Court has concluded that the United States is not liable under the FTCA for claims grounded in strict liability.\nThis Court’s resolution of the strict-liability issue in Dalehite [v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) ] did not turn on the question of whether the law of Texas or of some other State did or did not recognize strict liability for the conduct of ultrahazardous activities. It turned instead on the question of whether the language of the Federal Tort Claims Act permitted under any circumstances the imposition of liability upon the Government where there had been neither negligence nor wrongful act. The necessary consequence of the Court’s holding in Dalehite is that the statutory language “negligent or wrongful act or omission of any employee of the Government,” is a uniform federal limitation on the types of acts committed by its employees for which the United States has consented to be sued. Regardless of state law characterization, the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of “misfeasance or nonfeasance,” 346 U.S. at 45, 73 S.Ct. at 972, on the part of the Government.\nLaird v. Nelms, 406 U.S. 797, 798-99, 92 S.Ct. 1899, 1900-01, 32 L.Ed.2d 499 (1972).\nAFFIRMED.\n. USAARMC Regulations 40-12 4(5) and (7) (1983) provide in relevant part that an animal owner shall \"[b]e pecuniarily liable for damage or injury to ... persons ..and requires that pet owners ”[c]nsure that animals remain under their direct supervision and control at all times and that measures are employed to prevent them from attacking personnel....\"\nUSAARMC Regulation 40-12 6(2) (1983) provides that \"a third unprovoked bite will be grounds for removal of the pet from Government property.”\n. In Nelson, although the D.C. Circuit rejected plaintiffs theory of derivative liability, it did uphold a judgment for the injured plaintiff under a theory of negligence on the part of government security personnel who were well aware of the dog’s propensity to bite people. Although plaintiffs in this appeal make no similar direct argument, we state that the facts here show the government was aware of only one previous incident involving this dog, and the factual predicate for liability found in Nelson is absent here.\n[END_CASE]", "role": "user" } ]
10,511,700	Joann AAMOT, et al., Plaintiffs-Appellants, v. Robert L. KASSEL, Defendant-Appellee	Aamot v. Kassel	1993-08-06	No. 91-6113	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: GUY and BATCHELDER, Circuit Judges; and MILES, Senior District Judge."], "parties": ["Joann AAMOT, et al., Plaintiffs-Appellants, v. Robert L. KASSEL, Defendant-Appellee."], "opinions": [{"text": "BATCHELDER, Circuit Judge.\nI.\nDefendant Robert Kassel was ostensibly the legal counsel to a company known as National Coal Exchange (NCE). From April 1980 until December 1981, the principals of NCE sold coal futures to investors across the country. The investment scheme, as it turns out, was a scam, and the Commodity Futures Trading Commission (CFTC) brought an action against the principals of NCE for violations of the Commodity Exchange Act in 1981. At the time, the CFTC thought that Kassel was merely NCE’s counsel, and not actively involved in the scheme, so he was not a target of the government action; in fact, he defended NCE at trial. The District Court found that NCE had violated the CEA.\nErich Merrill, counsel for the plaintiffs/appellants here, was originally appointed receiver for NCE in the CFTC litigation. Some five hundred aggrieved investors responded to a questionnaire Merrill sent out regarding NCE’s activities. Since NCE’s assets were by that time insufficient to pay back the investors, Merrill got permission from the District Court to file suit on their behalf. In November 1983, Merrill as receiver and two other named plaintiffs, individually and on behalf of all purchasers of futures contracts from NCE, brought an action against the officers of NCE, alleging fraud, and claiming that defendants had to indemnify Merrill, as receiver, against NCE liability resulting from the principals’ wrongful conduct. Merrill moved for class certification in October, 1984, but hearings on this motion were continued. In July, 1985, Kassel was joined as a defendant in Jarrett, and he moved for summary judgment.\nThe District Court eventually denied the motion for class certification in Jarrett, but ordered that any motions to intervene by potential plaintiffs in the action must be filed by December 12, 1988. A substantial number of such motions were timely filed, and on March 1, 1990 were granted. However a number of motions to intervene were not filed by the December 12, 1988 deadline, and those motions were denied.\nAfter the deadline for filing of motions to intervene but before the District Court ruled on those motions, Merrill filed the case now on appeal on behalf of all of those potential plaintiffs who sought to intervene in Jarrett. Kassel responded to the complaint with a motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6). Merrill then filed in this case a notice of dismissal pursuant to Fed.R.Civ.P. 41(a)(1) on behalf of all of those plaintiffs whose motions to intervene in Jarrett had been denied, and a few days later, after the District Court had granted Kassel’s motion for summary judgment in Jarrett on the basis of the statute of limitations, Merrill filed a notice of dismissal in this case on behalf of the remaining plaintiffs.\nKassel next filed a motion to strike the notices of dismissal filed in this case, maintaining that since his Rule 12(b)(6) motion had been supported by documentation and thus functioned as a motion for summary judgment, the plaintiffs were precluded from dismissing without prejudice as of right under Fed.R.Civ.P. 41(a)(1). The District Court agreed with Kassel; treating his Rule 12(b)(6) motion as one for summary judgment, the court granted his motion to strike, and, on the basis of its order dismissing Jarrett, granted Kassel summary judgment in an order filed August 1, 1991. The Aam-ot plaintiffs filed their notice of appeal on August 20; however, we ordered the appeal held in abeyance pending appeal of Jarrett. In August 1992, we decided Jarrett, affirming in part, but reversing the grant of summary judgment with regard to the fraud claims, holding, among other things, that the due diligence Merrill undertook as counsel on behalf of the original plaintiffs could properly be attributed to subsequently intervening plaintiffs for the purposes of tolling the statute of limitations due to Kassel’s fraudulent concealment of his wrongs. 972 F.2d at 1427. This appeal, was then briefed and scheduled for argument.\nII.\nAppellants first question the District Court’s granting of Kassel’s motion to strike their notices of voluntary dismissal. In concluding that they could not dismiss voluntarily as of right, plaintiffs contend, the District Court improperly considered defendant’s Fed.R.Civ.P. 12(b)(6) motion to dismiss as a summary judgment motion. Since the documents attached to it were “unauthenticáted,” they argue, the motion could not properly be considered by the court as one for summary judgment under Fed.R.Civ.P. 56.\nFed.R.Civ.P. 41(a)(1) limits the plaintiffs authority to dismiss his complaint without prejudice and without the permission of either the adverse party or the court to the period of time before the defendant files an answer or a motion for summary judgment. During that period, the court has no discretion to deny such a dismissal. However, once the defendant files an answer or a motion for summary judgment, plaintiff loses this right. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394-95, 110 S.Ct. 2447, 2455, 110 L.Ed.2d 359 (1990). Some disagreement persists, however, about how a court should treat a notice of dismissal which is filed after defendant files a motion to dismiss under Fed.R.Civ.P. 12(b)(6), which, because the defendant has appended to it “matters outside the pleading,” Fed.R.Civ.P. 12(b), the court may convert, at the court’s own behest, to a Rule 56(b) motion for summary judgment.\nHere, the District Court granted the defendant’s motion to strike plaintiffs’ notices of dismissal on the grounds that “a motion for summary judgment was pending at the time plaintiffs filed their notices of dismissal.” District Court Opinion at 5. Kassel had attached certain affidavits and exhibits to his motion to dismiss, all of which had been used in the Jarrett litigation. The court reasoned that the plaintiffs had not objected to the documents or moved to strike them; therefore Fed.R.Civ.P. 12(b) required that the court treat the motion as one for summary judgment, thus precluding plaintiff from dismissing as of right. Id. at 4.\nSome courts have viewed the situation similarly, labelling a Rule 12(b)(6) motion to dismiss as a “pending” motion for summary judgment solely because of the defendant’s having attached supporting affidavits or other documents “outside the pleadings” not excluded by the court. See Wilson-Cook Medical, Inc. v. Wilson, 942 F.2d 247, 252 (4th Cir.1991) (In determining propriety of motion for voluntary dismissal, “[h]ad the district court accepted and considered the affidavits relevant to the 12(b)(6) motion, the motion to dismiss for failure to state a claim would have been converted to a motion for summary judgment.”) (citations omitted); Manze v. State Farm Ins. Co., 817 F.2d 1062, 1066 (3rd Cir.1987) (disagreeing with Tele-views Neivs, cited below, but stating that where defendant “intend[s] a Rule 56 motion by its motion to dismiss,” or where court “treats it as such,” voluntary dismissal right barred); Kolman v. Milwaukee Area Technical College, 548 F.Supp. 684 (E.D.Wis.1982) (attachment of affidavits converts motion to dismiss to motion for summary judgment); Bangor Baptist Church v. State of Maine, etc., 92 F.R.D. 123, 124 (D.Maine 1981) (same); Tele-views News Co. v. S.R.B. TV Publishing Co., 28 F.R.D. 303, 308 (E.D.Pa. 1961) (“We see no logical reason for differentiating a motion for summary judgment, a motion to dismiss for failure to state a claim accompanied by extraneous matter, and a motion to dismiss for failure to state a claim not accompanied by extraneous matter—at least for the purposes of Rule 41(a).”).\nMany of these cases seem to view the interplay between Rule 41 and Rules 12 and 56 as barring voluntary dismissal where the parties, particularly the defendant, have spent considerable time and effort in litigation; presumably, it takes more lawyer-hours to prepare an answer or a motion for summary judgment than it does a motion to dismiss. See, for example, Marex Titanic v. Wrecked and Abandoned Vessel, RMS Titanic, 805 F.Supp. 375, 377-79 (E.D.Va.1992) (at time plaintiff filed notice of dismissal, court was “way beyond the early stages of the case”) (following Harvey Aluminum, Inc., v. American Cyanamid Co., 203 F.2d 105 (2d Cir.), cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953), but recognizing that denying notice of dismissal where “the defendant had expended much time and effort in the preparation of his case and the case was in the midst of hearings” had “very limited application” and “has been virtually confined to [.Harvey Aluminum’s] facts”); Tele-views News Co., 28 F.R.D. at 308 (“[B]oth the motion for summary judgment and the motion to dismiss for failure to state a claim involve considerable preparation by counsel and study by the Court.”) But see, contra, 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2363 n. 30 (commenting on the reasoning of Tele-views News Co.) (“This is a powerful argument— but it seems better addressed to the Advisory Committee on Civil Rules”).\nThis Circuit has never directly spoken to this issue. Rule 41, as presently constituted, states:\n[A]n action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs....\nFed.R.Civ.P. 41(a)(1). This being a rule of procedure on which parties navigating the shoals of litigation must rely without needless doubt or question, we are inclined to take the Rule at face value, and assume that it “means what it says.” Carter v. United States, 547 F.2d 258, 259 (5th Cir.1977). We agree with the straightforward analysis of the Fifth Circuit:\nRule 41 ... sanctions no such case-by-case analysis of the amount of effort expended by the defendants. Nor does the fact that defendants had “joined issue” on the merits affect plaintiffs ability to dismiss his suit. Unless a defendant has filed an answer or summary judgment motion, the governing provision is rule 41(a)(1). Defendants who desire to prevent plaintiffs from invoking their unfettered right to dismiss actions under rule 41(a)(1) may do so by taking the simple step of filing an answer.\nId. Similarly, we decline to agree with the District Court’s action and follow those cases which “treat” motions to dismiss filed pursuant to Rule 12(b)(6) as summary judgment motions for the purpose of barring voluntary dismissal. Rule 41(a)(1) explicitly leaves the option to dismiss in the plaintiffs hands; once plaintiff gives his notice, the lawsuit is no more.\nThe Rule permits plaintiff to take such action “at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs.” Again, this language unambiguously requires a defendant, in order to make plaintiff put his money where his mouth is, to serve plaintiff with a summary judgment motion or an answer. Permitting a defendant, merely by appending to his Rule 12(b)(6) motion materials “outside the pleadings,” regardless of their scope, content or form, to abridge a plaintiffs right to voluntarily dismiss his action without prejudice, not only circumvents the plain language of the rule, but flies in the face of the “time and effort in litigation” rationale. Furthermore, the clear language of Rule 12(b) which permits a 12(b)(6) motion accompanied by extraneous materials to be treated as a motion for summary judgment is directed, not at the parties, but at the court; conversion takes place at the discretion of the court, and at the time the court affirmatively decides not to exclude the extraneous matters.\nThe consequences to the plaintiff differ hugely; for this reason, once the court opts to convert a 12(b)(6) motion into a summary judgment motion, it must give “all parties ... reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(b)(6). Obviously, at least to us, Rule 41 deals with an entirely different phase of the ease, one in which the plaintiff is left free to change his mind about prosecuting his action, and the defendant has the simple option, as the Carter court noted, of filing an answer or motion for summary judgment, should he wish to avoid wasting time and money or preclude future prejudice to his interests.\nPlaintiffs here filed their notices of dismissal prior to defendant’s filing an answer or motion for summary judgment. Since a Rule 41(a)(1) notice of dismissal is self-effectuating, leaving no basis upon which a District Court can prevent such a dismissal, we therefore conclude that plaintiffs’ cases were necessarily dismissed without prejudice, effective immediately upon their filing of the notices. The District Court erred in granting defendant’s motion to strike these notices.\nIII.\nThe case at bar having been dismissed in its entirety as of October 24, 1990, the other issues in this appeal, including the dispute over the propriety of the District Court’s grant of summary judgment, are rendered moot.\nIV.\nFor the reasons stated, the judgment of the District Court is VACATED and the case DISMISSED without prejudice.\n. See Commodity Futures Trading Comm'n v. National Coal Exchange, Inc., et al., No. 81-2250 (W.D.Tenn., Apr. 2, 1982).\n. The judgment from this initial suit was eventually reviewed by this court in Jarrett v. Kassel, 972 F.2d 1415 (6th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1272, 122 L.Ed.2d 667 (1993); we shall refer to it for convenience's sake as Jarrett to distinguish it from the present, related litigation.\n.As the District Court noted in its order granting summary judgment, Kassel was the only defendant remaining in the Jarrett case, all other defendants having settled with plaintiffs.\n. These courts’ reasoning, particularly in considering the defendant’s having spent time and money responding to the suit, may derive from the advisory committee's note to Fed.R.Civ.P. 41(a), which explains the addition to the Rule in 1946 of motions for summary judgment, where previously only an answer filed by defendant could bar plaintiff’s voluntary dismissal. \"Since such a motion [for summary judgment] may require even more research and preparation than the answer itself, there is good reason why the service of the motion, like that of the answer, should prevent a voluntary dismissal by the adversary without court approval.” However, since the Committee was presumably well aware of the existence and effect of Rule 12(b)(6) motions to dismiss, as well as that Rule's provision for the court to convert such a motion to a motion for summary judgment, we must assume the drafters of the Rules chose not to include such motions in Rule 41(a).\n. We believe the Rules reflect the otherwise common sense notion that the parties, not the court, are in the best position to weigh their interests and risks, particularly in the early phases of litigation.", "type": "majority", "author": "BATCHELDER, Circuit Judge."}], "attorneys": ["Erich W.' Merrill (argued and briefed), Schaeffer & McCrary, Memphis, TN, for plaintiffs-appellants.", "Lewie R. Polk, III (argued and briefed) and Hal Gerber (briefed), Gerber Law Offices, Memphis, TN, for defendant-appellee."], "corrections": "", "head_matter": "Joann AAMOT, et al., Plaintiffs-Appellants, v. Robert L. KASSEL, Defendant-Appellee.\nNo. 91-6113.\nUnited States Court of Appeals, Sixth Circuit.\nArgued June 15, 1993.\nDecided Aug. 6, 1993.\nErich W.' Merrill (argued and briefed), Schaeffer & McCrary, Memphis, TN, for plaintiffs-appellants.\nLewie R. Polk, III (argued and briefed) and Hal Gerber (briefed), Gerber Law Offices, Memphis, TN, for defendant-appellee.\nBefore: GUY and BATCHELDER, Circuit Judges; and MILES, Senior District Judge.\nThe Honorable Wendell A. Miles, Senior United States District Judge for the Western District of Michigan, sitting by designation."}	GUY	BATCHELDER	MILES	1	1	1	0	0	0	1 F.3d 441	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Joann AAMOT, et al., Plaintiffs-Appellants, v. Robert L. KASSEL, Defendant-Appellee\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-08-06\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nBATCHELDER, Circuit Judge.\nI.\nDefendant Robert Kassel was ostensibly the legal counsel to a company known as National Coal Exchange (NCE). From April 1980 until December 1981, the principals of NCE sold coal futures to investors across the country. The investment scheme, as it turns out, was a scam, and the Commodity Futures Trading Commission (CFTC) brought an action against the principals of NCE for violations of the Commodity Exchange Act in 1981. At the time, the CFTC thought that Kassel was merely NCE’s counsel, and not actively involved in the scheme, so he was not a target of the government action; in fact, he defended NCE at trial. The District Court found that NCE had violated the CEA.\nErich Merrill, counsel for the plaintiffs/appellants here, was originally appointed receiver for NCE in the CFTC litigation. Some five hundred aggrieved investors responded to a questionnaire Merrill sent out regarding NCE’s activities. Since NCE’s assets were by that time insufficient to pay back the investors, Merrill got permission from the District Court to file suit on their behalf. In November 1983, Merrill as receiver and two other named plaintiffs, individually and on behalf of all purchasers of futures contracts from NCE, brought an action against the officers of NCE, alleging fraud, and claiming that defendants had to indemnify Merrill, as receiver, against NCE liability resulting from the principals’ wrongful conduct. Merrill moved for class certification in October, 1984, but hearings on this motion were continued. In July, 1985, Kassel was joined as a defendant in Jarrett, and he moved for summary judgment.\nThe District Court eventually denied the motion for class certification in Jarrett, but ordered that any motions to intervene by potential plaintiffs in the action must be filed by December 12, 1988. A substantial number of such motions were timely filed, and on March 1, 1990 were granted. However a number of motions to intervene were not filed by the December 12, 1988 deadline, and those motions were denied.\nAfter the deadline for filing of motions to intervene but before the District Court ruled on those motions, Merrill filed the case now on appeal on behalf of all of those potential plaintiffs who sought to intervene in Jarrett. Kassel responded to the complaint with a motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6). Merrill then filed in this case a notice of dismissal pursuant to Fed.R.Civ.P. 41(a)(1) on behalf of all of those plaintiffs whose motions to intervene in Jarrett had been denied, and a few days later, after the District Court had granted Kassel’s motion for summary judgment in Jarrett on the basis of the statute of limitations, Merrill filed a notice of dismissal in this case on behalf of the remaining plaintiffs.\nKassel next filed a motion to strike the notices of dismissal filed in this case, maintaining that since his Rule 12(b)(6) motion had been supported by documentation and thus functioned as a motion for summary judgment, the plaintiffs were precluded from dismissing without prejudice as of right under Fed.R.Civ.P. 41(a)(1). The District Court agreed with Kassel; treating his Rule 12(b)(6) motion as one for summary judgment, the court granted his motion to strike, and, on the basis of its order dismissing Jarrett, granted Kassel summary judgment in an order filed August 1, 1991. The Aam-ot plaintiffs filed their notice of appeal on August 20; however, we ordered the appeal held in abeyance pending appeal of Jarrett. In August 1992, we decided Jarrett, affirming in part, but reversing the grant of summary judgment with regard to the fraud claims, holding, among other things, that the due diligence Merrill undertook as counsel on behalf of the original plaintiffs could properly be attributed to subsequently intervening plaintiffs for the purposes of tolling the statute of limitations due to Kassel’s fraudulent concealment of his wrongs. 972 F.2d at 1427. This appeal, was then briefed and scheduled for argument.\nII.\nAppellants first question the District Court’s granting of Kassel’s motion to strike their notices of voluntary dismissal. In concluding that they could not dismiss voluntarily as of right, plaintiffs contend, the District Court improperly considered defendant’s Fed.R.Civ.P. 12(b)(6) motion to dismiss as a summary judgment motion. Since the documents attached to it were “unauthenticáted,” they argue, the motion could not properly be considered by the court as one for summary judgment under Fed.R.Civ.P. 56.\nFed.R.Civ.P. 41(a)(1) limits the plaintiffs authority to dismiss his complaint without prejudice and without the permission of either the adverse party or the court to the period of time before the defendant files an answer or a motion for summary judgment. During that period, the court has no discretion to deny such a dismissal. However, once the defendant files an answer or a motion for summary judgment, plaintiff loses this right. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394-95, 110 S.Ct. 2447, 2455, 110 L.Ed.2d 359 (1990). Some disagreement persists, however, about how a court should treat a notice of dismissal which is filed after defendant files a motion to dismiss under Fed.R.Civ.P. 12(b)(6), which, because the defendant has appended to it “matters outside the pleading,” Fed.R.Civ.P. 12(b), the court may convert, at the court’s own behest, to a Rule 56(b) motion for summary judgment.\nHere, the District Court granted the defendant’s motion to strike plaintiffs’ notices of dismissal on the grounds that “a motion for summary judgment was pending at the time plaintiffs filed their notices of dismissal.” District Court Opinion at 5. Kassel had attached certain affidavits and exhibits to his motion to dismiss, all of which had been used in the Jarrett litigation. The court reasoned that the plaintiffs had not objected to the documents or moved to strike them; therefore Fed.R.Civ.P. 12(b) required that the court treat the motion as one for summary judgment, thus precluding plaintiff from dismissing as of right. Id. at 4.\nSome courts have viewed the situation similarly, labelling a Rule 12(b)(6) motion to dismiss as a “pending” motion for summary judgment solely because of the defendant’s having attached supporting affidavits or other documents “outside the pleadings” not excluded by the court. See Wilson-Cook Medical, Inc. v. Wilson, 942 F.2d 247, 252 (4th Cir.1991) (In determining propriety of motion for voluntary dismissal, “[h]ad the district court accepted and considered the affidavits relevant to the 12(b)(6) motion, the motion to dismiss for failure to state a claim would have been converted to a motion for summary judgment.”) (citations omitted); Manze v. State Farm Ins. Co., 817 F.2d 1062, 1066 (3rd Cir.1987) (disagreeing with Tele-views Neivs, cited below, but stating that where defendant “intend[s] a Rule 56 motion by its motion to dismiss,” or where court “treats it as such,” voluntary dismissal right barred); Kolman v. Milwaukee Area Technical College, 548 F.Supp. 684 (E.D.Wis.1982) (attachment of affidavits converts motion to dismiss to motion for summary judgment); Bangor Baptist Church v. State of Maine, etc., 92 F.R.D. 123, 124 (D.Maine 1981) (same); Tele-views News Co. v. S.R.B. TV Publishing Co., 28 F.R.D. 303, 308 (E.D.Pa. 1961) (“We see no logical reason for differentiating a motion for summary judgment, a motion to dismiss for failure to state a claim accompanied by extraneous matter, and a motion to dismiss for failure to state a claim not accompanied by extraneous matter—at least for the purposes of Rule 41(a).”).\nMany of these cases seem to view the interplay between Rule 41 and Rules 12 and 56 as barring voluntary dismissal where the parties, particularly the defendant, have spent considerable time and effort in litigation; presumably, it takes more lawyer-hours to prepare an answer or a motion for summary judgment than it does a motion to dismiss. See, for example, Marex Titanic v. Wrecked and Abandoned Vessel, RMS Titanic, 805 F.Supp. 375, 377-79 (E.D.Va.1992) (at time plaintiff filed notice of dismissal, court was “way beyond the early stages of the case”) (following Harvey Aluminum, Inc., v. American Cyanamid Co., 203 F.2d 105 (2d Cir.), cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953), but recognizing that denying notice of dismissal where “the defendant had expended much time and effort in the preparation of his case and the case was in the midst of hearings” had “very limited application” and “has been virtually confined to [.Harvey Aluminum’s] facts”); Tele-views News Co., 28 F.R.D. at 308 (“[B]oth the motion for summary judgment and the motion to dismiss for failure to state a claim involve considerable preparation by counsel and study by the Court.”) But see, contra, 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2363 n. 30 (commenting on the reasoning of Tele-views News Co.) (“This is a powerful argument— but it seems better addressed to the Advisory Committee on Civil Rules”).\nThis Circuit has never directly spoken to this issue. Rule 41, as presently constituted, states:\n[A]n action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs....\nFed.R.Civ.P. 41(a)(1). This being a rule of procedure on which parties navigating the shoals of litigation must rely without needless doubt or question, we are inclined to take the Rule at face value, and assume that it “means what it says.” Carter v. United States, 547 F.2d 258, 259 (5th Cir.1977). We agree with the straightforward analysis of the Fifth Circuit:\nRule 41 ... sanctions no such case-by-case analysis of the amount of effort expended by the defendants. Nor does the fact that defendants had “joined issue” on the merits affect plaintiffs ability to dismiss his suit. Unless a defendant has filed an answer or summary judgment motion, the governing provision is rule 41(a)(1). Defendants who desire to prevent plaintiffs from invoking their unfettered right to dismiss actions under rule 41(a)(1) may do so by taking the simple step of filing an answer.\nId. Similarly, we decline to agree with the District Court’s action and follow those cases which “treat” motions to dismiss filed pursuant to Rule 12(b)(6) as summary judgment motions for the purpose of barring voluntary dismissal. Rule 41(a)(1) explicitly leaves the option to dismiss in the plaintiffs hands; once plaintiff gives his notice, the lawsuit is no more.\nThe Rule permits plaintiff to take such action “at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs.” Again, this language unambiguously requires a defendant, in order to make plaintiff put his money where his mouth is, to serve plaintiff with a summary judgment motion or an answer. Permitting a defendant, merely by appending to his Rule 12(b)(6) motion materials “outside the pleadings,” regardless of their scope, content or form, to abridge a plaintiffs right to voluntarily dismiss his action without prejudice, not only circumvents the plain language of the rule, but flies in the face of the “time and effort in litigation” rationale. Furthermore, the clear language of Rule 12(b) which permits a 12(b)(6) motion accompanied by extraneous materials to be treated as a motion for summary judgment is directed, not at the parties, but at the court; conversion takes place at the discretion of the court, and at the time the court affirmatively decides not to exclude the extraneous matters.\nThe consequences to the plaintiff differ hugely; for this reason, once the court opts to convert a 12(b)(6) motion into a summary judgment motion, it must give “all parties ... reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(b)(6). Obviously, at least to us, Rule 41 deals with an entirely different phase of the ease, one in which the plaintiff is left free to change his mind about prosecuting his action, and the defendant has the simple option, as the Carter court noted, of filing an answer or motion for summary judgment, should he wish to avoid wasting time and money or preclude future prejudice to his interests.\nPlaintiffs here filed their notices of dismissal prior to defendant’s filing an answer or motion for summary judgment. Since a Rule 41(a)(1) notice of dismissal is self-effectuating, leaving no basis upon which a District Court can prevent such a dismissal, we therefore conclude that plaintiffs’ cases were necessarily dismissed without prejudice, effective immediately upon their filing of the notices. The District Court erred in granting defendant’s motion to strike these notices.\nIII.\nThe case at bar having been dismissed in its entirety as of October 24, 1990, the other issues in this appeal, including the dispute over the propriety of the District Court’s grant of summary judgment, are rendered moot.\nIV.\nFor the reasons stated, the judgment of the District Court is VACATED and the case DISMISSED without prejudice.\n. See Commodity Futures Trading Comm'n v. National Coal Exchange, Inc., et al., No. 81-2250 (W.D.Tenn., Apr. 2, 1982).\n. The judgment from this initial suit was eventually reviewed by this court in Jarrett v. Kassel, 972 F.2d 1415 (6th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1272, 122 L.Ed.2d 667 (1993); we shall refer to it for convenience's sake as Jarrett to distinguish it from the present, related litigation.\n.As the District Court noted in its order granting summary judgment, Kassel was the only defendant remaining in the Jarrett case, all other defendants having settled with plaintiffs.\n. These courts’ reasoning, particularly in considering the defendant’s having spent time and money responding to the suit, may derive from the advisory committee's note to Fed.R.Civ.P. 41(a), which explains the addition to the Rule in 1946 of motions for summary judgment, where previously only an answer filed by defendant could bar plaintiff’s voluntary dismissal. \"Since such a motion [for summary judgment] may require even more research and preparation than the answer itself, there is good reason why the service of the motion, like that of the answer, should prevent a voluntary dismissal by the adversary without court approval.” However, since the Committee was presumably well aware of the existence and effect of Rule 12(b)(6) motions to dismiss, as well as that Rule's provision for the court to convert such a motion to a motion for summary judgment, we must assume the drafters of the Rules chose not to include such motions in Rule 41(a).\n. We believe the Rules reflect the otherwise common sense notion that the parties, not the court, are in the best position to weigh their interests and risks, particularly in the early phases of litigation.\n[END_CASE]", "role": "user" } ]
10,511,753	Lawrence VAN METER; Catherine yan Meter, Plaintiffs-Appellees, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant	Van Meter v. State Farm Fire & Casualty Co.	1993-08-09	No. 92-2056	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: KEITH and JONES, Circuit Judges; and PECK, Senior Circuit Judge."], "parties": ["Lawrence VAN METER; Catherine yan Meter, Plaintiffs-Appellees, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant."], "opinions": [{"text": "NATHANIEL R. JONES, Circuit Judge.\nDefendant-Appellant State Farm Fire and Casualty Company (“State Farm”) appeals from the district court’s Order of Remand. As a general rule, remand orders are not reviewable. Since, from the record, we are unable to determine if this case should be governed by the general rule, we shall remand for the limited purpose of having the district court clarify its Order of Remand along the lines outlined below.\nI\nOn January 23,1991, a fire occurred at the residence of Plaintiffs-Appellees Lawrence and Catherine Van Meter. In force at the time was a fire insurance policy the Van Meters had purchased from State Farm. The Van Meters gave notice of destruction caused by the fire to State Farm, and filed a Sworn Statement in Proof of Loss (“Proof of Loss”) pursuant to the terms of the insurance policy. In this statement, the Van Meters claimed that they were owed $70,472.56 for fire-related destruction ($46,843.00 [sic] relating to the dwelling itself; $23,628.78 [sic] relating to the contents of the dwelling) under the terms of the insurance policy. State Farm denied liability.\nOn January 17, 1992, the Van Meters filed a Complaint and Jury Demand (“Complaint”) against State Farm in a Michigan state court. In Count I of the Complaint, they noted filing the Proof of Loss and requested damages “in excess of Ten Thousand ($10,000.00) Dollars plus costs, interest and attorney fees” for State Farm’s refusal to honor its alleged contractual obligations. J.A. at 11. In Count II, they sought compensation for “great mental and emotional distress, anguish and other damages” due to State Farm’s “bad faith, malicious acts, and refusals” in an amount “in excess of Ten Thousand ($10,000.00) Dollars plus costs, interest and attorney fees.” Id. at 12. In Count III, they alleged that State Farm’s actions constituted a violation of the Michigan Consumer Protection Act, Michigan Compiled Laws Annotated §§ 445.901-^45.922 (West 1989). For that violation', the Van Meters sought, inter alia: “1. To recover damages for the fire, damages to the building, contents and living expenses; 2. [To o]btain[ ] a $250.00 statutory penalty; [and] 3. Reimbursement for attorney fees.... ” J.A. at 13.\nOn March 13, 1992, State Farm filed a Notice of Removal in the United States District Court for the Eastern District of Michigan. Removal was based on diversity of citizenship (which is not disputed in this appeal) and the allegation that “[t]he matter in controversy exceeds, exclusive of costs and disbursements, the value of Fifty Thousand Dollars ($50,000)” (which is disputed in this appeal). Id. at 5.\nAlso on March 13, 1992, State Farm filed its Answer, Affirmative Defense & Reliance on Jury Demand (“Answer”) in the federal district court. Of note concerning this appeal, the Answer included the following:\n8. Should a judgment be entered that plaintiffs are not entitled to recover under the insurance contract, plaintiffs are obligated to repay to the defendants those benefits paid during the pendency of the investigation of this loss, including but not necessarily limited to:\na. $34,197.85 paid to plaintiffs’ mortgagee;\nb. $1,417.50 paid to plaintiffs for living expenses for rent;\nc. $2,000.00 paid to plaintiffs as an advance on their claim for damages to contents;\nd. $777.45 paid on behalf of plaintiffs to protect the residence after the fire, i.e., to board up the property; and\ne. $6,034.91 paid on behalf of plaintiffs pursuant to MCL 500.2845.\n9. Should a judgment be entered that plaintiffs are entitled to recover under the insurance contract, defendant is entitled to a set-off and plaintiffs are obligated to repay to the defendants those benefits paid during the pendency of the investigation of .this loss, including but not necessarily limited to:\na. $34,197.85 paid to plaintiffs’ mortgagee; ■\nb. $1,417.50 paid to plaintiffs for living expenses for rent;\nc. $2,000.00 paid to plaintiffs as an advance on their claim for damages to contents;\nd. $777.45 paid on behalf of plaintiffs to protect the residence after the fire, i.e., to board up the property; and\ne. $6,034.91 paid on behalf of plaintiffs pursuant to MCL 500.2845.\nId. at 19-20.\nOn March 30, 1992, the Van Meters filed an Answer to Affirmative Defenses. With respect to Paragraph 8 and Paragraph 9 of State Farm’s Answer, .the Van Meters asserted that they “neither admit nor deny the allegation contained therein and leave Defen'dant to its proof.” Id. at 26.\nCount III was dismissed on April 7, 1992, upon stipulation of the parties, by Order of the district court.\nOn April 30, 1992, the Van Meters filed an Offer to Accept Judgment Less Than $50,-000.00. The filing specifically stated that the Van Meters “offer to limit the Judgment in the above styled cause to $40,000.00 including all claims, interest, costs and attorney fees.” Id. at 43.\nOn May 14,1992, the Van Meters moved to remand the case to the state court whence it came, arguing that the amount in controversy did not exceed $50,000, exclusive of interest and costs. Specifically, they argued that, in light of the payments that State Farm indicated in its Answer it had made:\nthe Plaintiffs cannot receive a judgment in excess of the claimed amounts under the policy of fire insurance. Therefore, the total paid of $44,427.71 deducted from the $70,472.56 total claim leaves a balance of $26,044.85 as an actual loss plus open items that remain at $250.00 per month since the date of loss which at the present time is equal to $4000.00.\nId. at 47 — 18.. They further noted that “the Plaintiffs ... filed an offer to accept a judgment limiting all of Plaintiffs claims including actual amounts owed under the fire insurance policy plus damages for emotional dis: tress for bad faith refusal and including all court costs, interest and attorney fees to $40,000.00.” Id. at 48. Along with this motion and apparently in accordance with Rule 81.1(b)(2) of the Local Rules of the United States District Court for the Eastern District of Michigan, the Van Meters itemized the damages they were claiming:\n1. Plaintiffs’ fire insurance claim Contents and Structure $26,044.85\n2. Open items Rent until new home is purchased $ 4,000.00\n3. Emotional Distress for bad faith refusal $10,000.00\n4. Interest, cost and attorney fees $ -0-\nJ.A. at 49.\nOn June 1, 1992, State Farm filed Defendant’s Statement and Brief in Opposition to Plaintiffs’ Motion to Remand. It maintained that:\nthe amount in controversy for jurisdictional purposes is that sum claimed by the plaintiff in the complaint-\nIn the present action, plaintiffs’ complaint alleges a claim for breach of a fire insurance contract and resulting damages in the amount of $70,472.56 (not including amounts for compensable additional living expenses), and a tort claim for a bad faith refusal to pay fire insurance proceeds for an unspecified amount of damages. Because the sum claimed by the plaintiffs in the complaint controls the determination of the amount in controversy, this Court has jurisdiction to hear the present action.\nId. at 56-57. Arguing that the determination of the amount in controversy for purposes of federal jurisdiction is made from the face of the complaint at the time the action is commenced, State Farm contended that its Answer to the Van Meters’ Complaint, which averred that payments were made on the Van Meters’ behalf (thus potentially reducing the amount at issue), should not properly be considered by the court in making its jurisdictional determination. As well, State Farm maintained that the Van Meters’ Offer to Accept Judgment Less Than $50,000.00 did not serve to diminish the amount in controversy for jurisdictional purposes because it likewise was made after the action was commenced.\nOn June 8, 1992, the district court made known to the parties its intention to analyze the amount-in-controversy issue in terms of whether the defendant has met its burden of proving, by a preponderance of the evidence, that the amount in controversy exceeded the jurisdictional amount. It set forth its intention in its Order for Additional Information in which it specifically “ORDERED that ... defendant!] may file a response statement on or before June 26, 1992 setting forth in detail the facts or other information on which the defendant relies in alleging the amount in controversy.” Id. at 69 (emphasis in original).\nState Farm responded on June 26,1992 by filing Defendant’s Brief in Response to Order for Additional Information. Therein, it set forth the facts that the Van Meters referred to the Proof of Loss in their Complaint and that this Proof of Loss listed fire damage amounting to $70,452.56 [sic]. It also set forth the fact that the fire insurance policy in force at the time of the fire contained coverage limits of $46,843 for the dwelling; $2,343 for debris removal (dwelling); $2,343 for trees, shrubs and plants; $32,790 for the contents of the dwelling; and $1,640 for debris removal (contents). Noting the additional fact that the Van Meters sought in their Complaint in excess of an additional $10,000 for mental anguish and emotional distress, State Farm concluded that the amount in controversy indeed exceeded the jurisdictional amount.\nOn July 24,1992, the district court filed its Order Granting Plaintiffs Motion for Remand. It generally held that State Farm did not meet its burden of proving, by a' preponderance of the evidence, that the amount-in-controversy requirement was met. It based its conclusion on the facts that “[i]n total, defendant has paid some $44,000 of plaintiffs [sic] $74,000 claimed loss,” id. at 107 (footnote omitted), and that, with regard to Count II of the Complaint, the Van Meters “have submitted ... a signed statement claiming damages of exactly $10,000,” id. (emphasis added). It maintained that, “[assuming all of defendant’s affirmative defenses fail,- and that plaintiffs succeed in full on their claims, plaintiffs will be entitled to damages in the neighborhood of $40,000, some $10,000 less than the jurisdictional minimum.” Id. at 108. Finally, it noted that, though the amount in controversy is to be determined as of the commencement of the action, State Farm put forth no facts to show that its payments for the benefit of the Van Meters were made after the commencement of the action. The district court thus ordered the action remanded to the state court in its Order of Remand, filed July 24, 1992.\nState Farm filed a direct appeal from the Order of Remand on August 19, 1992. It contended that we have jurisdiction pursuant to 28 U.S.C. § 1291 (1988) (“The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts....”) and Rule 3 of the Federal Rules of Appellate Procedure.\nAt oral argument on June 18, 1993, this court noted that, remand orders are reviewable only in limited circumstances. Not convinced at that time that this case presented such circumstances, we ordered the parties to brief the following issue not addressed or alluded to in their opening briefs:\nWhether this court has jurisdiction to hear this appeal in light of: 28 U.S.C. § 1447 (1988); Thermtron Products v. Hemansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 723, 97 S.Ct. 1439, 1440, 52 L.Ed.2d 1 (1977) (per curiam); Volvo of America Corp. v. Schwarzer, 429 U.S. 1331, 1331-33, 97 S.Ct. 284, 285, 50 L.Ed.2d 273 (1976) (opinion in chambers); Baldridge v. Kentucky-Ohio Transportation, Inc., 983 F.2d 1341, 1343-50 (6th Cir.1993); In re Shell Oil Co., 966 F.2d 1130, 1132-33 (7th Cir.1992); In re Amoco Petroleum Additives Co., 964 F.2d 706, 708-09 (7th Cir.1992). Particular attention should be paid to the import, if any, of the 1988 amendment to 28 U.S.C. § 1447(c) as it relates to the district court’s decision in this case.\nVan Meter v. State Farm Fire & Casualty Co., No. 92-2056 (6th Cir. June 22, 1993) (supplemental order). See Baldridge, 983 F.2d at 1343 (“Although plaintiffs do not contest defendants’ claim that this court has authority to consider this appeal, we are obligated to ensure that we have jurisdiction over this matter.”).\nII\nIf a district court remands a case based on the grounds listed in 28 U.S.C. § 1447(c) (1988), this court cannot review the remand order. 28 U.S.C. § 1447(d) (1988); Thermtron, 423 U.S. at 343, 96 S.Ct. at 589. We are without jurisdiction to review a remand order grounded in Section 1447(c) even if based on erroneous principles or analysis. Thermtron, 423 U.S. at 343, 96 S.Ct. at 589 (Section 1447(d) “prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ. This has been the established rule under § 1447(d) and its predecessors stretching back to 1887.”); Gravitt, 430 U.S. at 723, 97 S.Ct. at 1440 (though the Fifth Circuit had vacated a district court’s remand order because the district court “had employed erroneous principles in concluding that it was without jurisdiction,” the Supreme Court reversed, holding that the district court’s decision that the action had been “improperly removed” plainly falls under Section 1447(c) and thus is not reviewable — erroneous or not); see also Schwarzer, 429 U.S. at 1331— 33, 97 S.Ct. at 284-85 (review of district court’s order remanding a case pursuant to Section 1447(c) is barred by Section 1447(d), even though the district court “may have been wrong in its analysis”). The district court need not cite Section 1447(c) in its remand order for the Section 1447(d) bar to apply. “Several decisions show that the appeals courts will liberally construe the district court’s reasons for a remand in order to find that the court invoked § 1447(c) and thereby avoid reviewing the challenged order.” In re Romulus Community Schools, 729 F.2d 431, 435 (6th Cir.1984) (citing cases).\nSince remand orders grounded in Section 1447(c) are not reviewable, it is important to determine the nature and scope of that provision. Section 1447(e) calls for a remand when it appears that the district court “lacks subject matter jurisdiction.” Courts, including this one, have interpreted this provision as necessarily tied to a temporal reference point, namely, the time of removal. Thus, if a district court determines subject matter jurisdiction to have been lacking at the time of removal, and remands on that basis, the remand order is a Section 1447(c) remand order and is nonreviewable. However, if a district court determines subject matter jurisdiction to have existed at the time of removal, yet remands for alleged lack of subject matter jurisdiction based on some post-removal event(s), the remand order is not a Section 1447(c) remand order and is renewable on petition for a writ of mandamus. Baldridge, 983 F.2d at 1348-49 (after noting that the “timing question is disposi-tive,” we proceeded to determine whether the district court found subject matter jurisdiction to have existed at the time of removal, only to have been allegedly defeated by some post-removal event(s); in the end, we concluded that, “while it is tempting to ... find the remand reviewable as based on a belief (however erroneous) that a post-removal event had destroyed jurisdiction, the facts of this case are not amenable to such a resolution,” and found the remand order non-reviewable); see also Shell Oil, 966 F.2d at 1132 (“Whether we have the authority to issue the writ of mandamus Shell seeks depends on the unstated reason for the remand. If the district court believed that the case was properly removed, but that the stipulation [to limit damages to less than the federal jurisdictional requirement] justified a remand, then we may review the order. If, however, the district court believed ... that jurisdiction was missing at the outset, then 28 U.S.C. § 1447(d) would block any review, even though we might disagree with that decision.”); Amoco Petroleum Additives, 964 F.2d at 708 (“Was there subject-matter jurisdiction at the time of removal, vanishing because of the change in the identity of the plaintiffs? If so, we ... may review the remand order.... If the judge believed that subject-matter jurisdiction was missing at the outset, however, § 1447(d) puts the remand beyond our ken.”). Cf. Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132, 135 (3d Cir.) (“[i]t is settled that ‘[generally the right of removal is decided by the pleadings, viewed as of the time when the petition for removal is filed’”) (citation omitted), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976); Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1277 (6th Cir.1991), cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992); 14A Charles A. Wright et al., Federal Practice & Procedure § 3721, at 208-13 & n. 71 (2d ed. 1985 & West Supp.1993) (citing cases); Charles A. Wright, Law of Federal Courts § 38, at 152-53 (3d ed. 1976).\nGiven this, we are faced with the issue of whether the district court in the instant case found that the amount-in-controversy requirement was met as of the time of removal, only to have been allegedly defeated by some post-removal event(s). If the district court so found, we may review the remand order on petition for a writ of mandamus. Unfortunately, given the state of the record, we find ourselves unable to determine conclusively whether the district court found the amount-in-controversy requirement to have been met as of the time of removal.\nIt is clear that, as to Count I, the district court believed, whether based on erroneous presuppositions or not, that the amount in controversy for purposes of federal subject matter jurisdiction was approximately $30,-000 at the time of the commencement of the lawsuit, as well as, we may readily deduce, the time of removal. If the district court concluded from this alone that the amount-in-controversy requirement was not met, we would consider a related remand order to be based on Section 1447(c) grounds. As such, we could not review it.\nThere is more to consider, however. Specifically, with regard to Count II of the Complaint, the district court found that the Van Meters, post-removal, “submitted ... a signed statement claiming damages of exactly $10,000. Accordingly, plaintiffs seek from defendant a total of approximately $40,000.” J.A. at 107 (emphasis added). From this, we can determine that the district court indeed believed that the jurisdictional requirement was not met at some point after removal. Whether the court understood the amount of the Van Meters’ claim in Count II, when combined with approximately $30,000 the court found to have been in controversy in Count I plus any amount associated with Count III (which was apparently dismissed post-removal), to be less than the federal jurisdictional requirement at the time of removal is nebulous at best. See State Farm’s Supp.Br. at 9 (“[j]ust what the district judge was deciding, here, is not made very clear in his opinion”); id. at 12 (the district court’s “reason for [remand] is, at best, unclear”).\nThe Seventh Circuit, in Shell Oil, 966 F.2d 1130, was faced with a situation similar to ours. In that case, the plaintiff filed a stipulation subsequent to a removal limiting damages sought to less than the federal jurisdictional threshold. Shortly thereafter, the district court remanded the case without giving reasons why. The Seventh Circuit found itself unable to determine whether the district court considered the amount-in-eontro-versy requirement to have been met as of the time of removal. It found the temporal reference point critical in evaluating whether it could review the remand order: “[I]t matters whether the district court remanded the case because in its view jurisdiction was missing at the time of removal or because of later events. We need to know which.” Id. at 1133. ' Thus, it found it proper to direct the district court to expound upon its reasons for remand.\nIll\nBased on the foregoing, we find it proper to remand to the district court for the limited purpose of supplementing the record to indicate whether it understands that “the amount in controversy satisfies the statutory minimum,” J.A. at 109, as of the time of removal. Upon receipt of the district court’s response, we shall determine the reviewability of the Order of Remand and, if it is renewable, whether a writ of mandamus shall issue.\n. Section 1447(c) reads:\nA motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.\n. This has been true despite the 1988 amendment to Section 1447(c), Pub.L. No. 100-702, § 1016(c)(1), 102 Stat. 4642, 4670 (1988). The previous version of Section 1447(c) called for a remand when the district court realized \"that the case was removed improvidently and without jurisdiction.” The amended Section 1447(c), at issue in the instant case, provides that \"[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” As we commented in Baldridge:\nAlthough the new language suggests that removal is no longer the critical jurisdictional juncture, courts have not construed it in this revolutionary way.... The legislative histoiy of the Judicial Improvements Acts (Pub.L. 100-702), the 1988 law which changed this text, reveals no intent to direct district courts to look beyond the time of removal in deciding remand motions based on lack of jurisdiction.\n983 F.2d at 1348 n. 11; see also Shell Oil, 966 F.2d at 1133 (\"It is at least conceivable that an amendment to § 1447 makes the district judge’s reason [for remanding a case] irrelevant. St. Paul[ Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938)] held that diversity jurisdiction depends on circumstances at the time of removal. In 1988 Congress amended § 1447(c) to provide that ... ['i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.’ Does the reference to 'any time before final judgment’ mean that changes after removal can eliminate jurisdiction and require remand? We think not.... Neither the text of the revised § 1447(c) nor its legislative history implies that Congress altered the traditional view....\").\n. We note that, though we are considering what has been styled as a direct appeal, we may treat it as a petition for a writ of mandamus for purposes of reviewing the Order of Remand. See, e.g., J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 271 (7th Cir.1990) (\"We will follow the same course as we have in the past and treat the direct appeal from the remand order as a petition for a writ of mandamus.\"); see also Hammons v. Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Local 20, 754 F.2d 177, 179 (6th Cir.1985) (\"A court without direct appellate jurisdiction nevertheless is empowered to treat an appeal as though it were a petition for a writ of mandamus made pursuant to 28 U.S.C. § 1651.”).", "type": "majority", "author": "NATHANIEL R. JONES, Circuit Judge."}], "attorneys": ["Thomas Lazar (argued and briefed), Farm-ington Hills, MI, for plaintiffs-appellees.", "Jon D. Vander Ploeg (argued and briefed), Smith, Haughey, Rice & Roegge, Grand Rapids, MI, for defendant-appellant."], "corrections": "", "head_matter": "Lawrence VAN METER; Catherine yan Meter, Plaintiffs-Appellees, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant.\nNo. 92-2056.\nUnited States Court of Appeals, Sixth Circuit.\nArgued June 18, 1993.\nDecided Aug. 9, 1993.\nThomas Lazar (argued and briefed), Farm-ington Hills, MI, for plaintiffs-appellees.\nJon D. Vander Ploeg (argued and briefed), Smith, Haughey, Rice & Roegge, Grand Rapids, MI, for defendant-appellant.\nBefore: KEITH and JONES, Circuit Judges; and PECK, Senior Circuit Judge."}	KEITH	JONES	PECK	1	1	1	0	0	0	1 F.3d 445	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Lawrence VAN METER; Catherine yan Meter, Plaintiffs-Appellees, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-08-09\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nNATHANIEL R. JONES, Circuit Judge.\nDefendant-Appellant State Farm Fire and Casualty Company (“State Farm”) appeals from the district court’s Order of Remand. As a general rule, remand orders are not reviewable. Since, from the record, we are unable to determine if this case should be governed by the general rule, we shall remand for the limited purpose of having the district court clarify its Order of Remand along the lines outlined below.\nI\nOn January 23,1991, a fire occurred at the residence of Plaintiffs-Appellees Lawrence and Catherine Van Meter. In force at the time was a fire insurance policy the Van Meters had purchased from State Farm. The Van Meters gave notice of destruction caused by the fire to State Farm, and filed a Sworn Statement in Proof of Loss (“Proof of Loss”) pursuant to the terms of the insurance policy. In this statement, the Van Meters claimed that they were owed $70,472.56 for fire-related destruction ($46,843.00 [sic] relating to the dwelling itself; $23,628.78 [sic] relating to the contents of the dwelling) under the terms of the insurance policy. State Farm denied liability.\nOn January 17, 1992, the Van Meters filed a Complaint and Jury Demand (“Complaint”) against State Farm in a Michigan state court. In Count I of the Complaint, they noted filing the Proof of Loss and requested damages “in excess of Ten Thousand ($10,000.00) Dollars plus costs, interest and attorney fees” for State Farm’s refusal to honor its alleged contractual obligations. J.A. at 11. In Count II, they sought compensation for “great mental and emotional distress, anguish and other damages” due to State Farm’s “bad faith, malicious acts, and refusals” in an amount “in excess of Ten Thousand ($10,000.00) Dollars plus costs, interest and attorney fees.” Id. at 12. In Count III, they alleged that State Farm’s actions constituted a violation of the Michigan Consumer Protection Act, Michigan Compiled Laws Annotated §§ 445.901-^45.922 (West 1989). For that violation', the Van Meters sought, inter alia: “1. To recover damages for the fire, damages to the building, contents and living expenses; 2. [To o]btain[ ] a $250.00 statutory penalty; [and] 3. Reimbursement for attorney fees.... ” J.A. at 13.\nOn March 13, 1992, State Farm filed a Notice of Removal in the United States District Court for the Eastern District of Michigan. Removal was based on diversity of citizenship (which is not disputed in this appeal) and the allegation that “[t]he matter in controversy exceeds, exclusive of costs and disbursements, the value of Fifty Thousand Dollars ($50,000)” (which is disputed in this appeal). Id. at 5.\nAlso on March 13, 1992, State Farm filed its Answer, Affirmative Defense & Reliance on Jury Demand (“Answer”) in the federal district court. Of note concerning this appeal, the Answer included the following:\n8. Should a judgment be entered that plaintiffs are not entitled to recover under the insurance contract, plaintiffs are obligated to repay to the defendants those benefits paid during the pendency of the investigation of this loss, including but not necessarily limited to:\na. $34,197.85 paid to plaintiffs’ mortgagee;\nb. $1,417.50 paid to plaintiffs for living expenses for rent;\nc. $2,000.00 paid to plaintiffs as an advance on their claim for damages to contents;\nd. $777.45 paid on behalf of plaintiffs to protect the residence after the fire, i.e., to board up the property; and\ne. $6,034.91 paid on behalf of plaintiffs pursuant to MCL 500.2845.\n9. Should a judgment be entered that plaintiffs are entitled to recover under the insurance contract, defendant is entitled to a set-off and plaintiffs are obligated to repay to the defendants those benefits paid during the pendency of the investigation of .this loss, including but not necessarily limited to:\na. $34,197.85 paid to plaintiffs’ mortgagee; ■\nb. $1,417.50 paid to plaintiffs for living expenses for rent;\nc. $2,000.00 paid to plaintiffs as an advance on their claim for damages to contents;\nd. $777.45 paid on behalf of plaintiffs to protect the residence after the fire, i.e., to board up the property; and\ne. $6,034.91 paid on behalf of plaintiffs pursuant to MCL 500.2845.\nId. at 19-20.\nOn March 30, 1992, the Van Meters filed an Answer to Affirmative Defenses. With respect to Paragraph 8 and Paragraph 9 of State Farm’s Answer, .the Van Meters asserted that they “neither admit nor deny the allegation contained therein and leave Defen'dant to its proof.” Id. at 26.\nCount III was dismissed on April 7, 1992, upon stipulation of the parties, by Order of the district court.\nOn April 30, 1992, the Van Meters filed an Offer to Accept Judgment Less Than $50,-000.00. The filing specifically stated that the Van Meters “offer to limit the Judgment in the above styled cause to $40,000.00 including all claims, interest, costs and attorney fees.” Id. at 43.\nOn May 14,1992, the Van Meters moved to remand the case to the state court whence it came, arguing that the amount in controversy did not exceed $50,000, exclusive of interest and costs. Specifically, they argued that, in light of the payments that State Farm indicated in its Answer it had made:\nthe Plaintiffs cannot receive a judgment in excess of the claimed amounts under the policy of fire insurance. Therefore, the total paid of $44,427.71 deducted from the $70,472.56 total claim leaves a balance of $26,044.85 as an actual loss plus open items that remain at $250.00 per month since the date of loss which at the present time is equal to $4000.00.\nId. at 47 — 18.. They further noted that “the Plaintiffs ... filed an offer to accept a judgment limiting all of Plaintiffs claims including actual amounts owed under the fire insurance policy plus damages for emotional dis: tress for bad faith refusal and including all court costs, interest and attorney fees to $40,000.00.” Id. at 48. Along with this motion and apparently in accordance with Rule 81.1(b)(2) of the Local Rules of the United States District Court for the Eastern District of Michigan, the Van Meters itemized the damages they were claiming:\n1. Plaintiffs’ fire insurance claim Contents and Structure $26,044.85\n2. Open items Rent until new home is purchased $ 4,000.00\n3. Emotional Distress for bad faith refusal $10,000.00\n4. Interest, cost and attorney fees $ -0-\nJ.A. at 49.\nOn June 1, 1992, State Farm filed Defendant’s Statement and Brief in Opposition to Plaintiffs’ Motion to Remand. It maintained that:\nthe amount in controversy for jurisdictional purposes is that sum claimed by the plaintiff in the complaint-\nIn the present action, plaintiffs’ complaint alleges a claim for breach of a fire insurance contract and resulting damages in the amount of $70,472.56 (not including amounts for compensable additional living expenses), and a tort claim for a bad faith refusal to pay fire insurance proceeds for an unspecified amount of damages. Because the sum claimed by the plaintiffs in the complaint controls the determination of the amount in controversy, this Court has jurisdiction to hear the present action.\nId. at 56-57. Arguing that the determination of the amount in controversy for purposes of federal jurisdiction is made from the face of the complaint at the time the action is commenced, State Farm contended that its Answer to the Van Meters’ Complaint, which averred that payments were made on the Van Meters’ behalf (thus potentially reducing the amount at issue), should not properly be considered by the court in making its jurisdictional determination. As well, State Farm maintained that the Van Meters’ Offer to Accept Judgment Less Than $50,000.00 did not serve to diminish the amount in controversy for jurisdictional purposes because it likewise was made after the action was commenced.\nOn June 8, 1992, the district court made known to the parties its intention to analyze the amount-in-controversy issue in terms of whether the defendant has met its burden of proving, by a preponderance of the evidence, that the amount in controversy exceeded the jurisdictional amount. It set forth its intention in its Order for Additional Information in which it specifically “ORDERED that ... defendant!] may file a response statement on or before June 26, 1992 setting forth in detail the facts or other information on which the defendant relies in alleging the amount in controversy.” Id. at 69 (emphasis in original).\nState Farm responded on June 26,1992 by filing Defendant’s Brief in Response to Order for Additional Information. Therein, it set forth the facts that the Van Meters referred to the Proof of Loss in their Complaint and that this Proof of Loss listed fire damage amounting to $70,452.56 [sic]. It also set forth the fact that the fire insurance policy in force at the time of the fire contained coverage limits of $46,843 for the dwelling; $2,343 for debris removal (dwelling); $2,343 for trees, shrubs and plants; $32,790 for the contents of the dwelling; and $1,640 for debris removal (contents). Noting the additional fact that the Van Meters sought in their Complaint in excess of an additional $10,000 for mental anguish and emotional distress, State Farm concluded that the amount in controversy indeed exceeded the jurisdictional amount.\nOn July 24,1992, the district court filed its Order Granting Plaintiffs Motion for Remand. It generally held that State Farm did not meet its burden of proving, by a' preponderance of the evidence, that the amount-in-controversy requirement was met. It based its conclusion on the facts that “[i]n total, defendant has paid some $44,000 of plaintiffs [sic] $74,000 claimed loss,” id. at 107 (footnote omitted), and that, with regard to Count II of the Complaint, the Van Meters “have submitted ... a signed statement claiming damages of exactly $10,000,” id. (emphasis added). It maintained that, “[assuming all of defendant’s affirmative defenses fail,- and that plaintiffs succeed in full on their claims, plaintiffs will be entitled to damages in the neighborhood of $40,000, some $10,000 less than the jurisdictional minimum.” Id. at 108. Finally, it noted that, though the amount in controversy is to be determined as of the commencement of the action, State Farm put forth no facts to show that its payments for the benefit of the Van Meters were made after the commencement of the action. The district court thus ordered the action remanded to the state court in its Order of Remand, filed July 24, 1992.\nState Farm filed a direct appeal from the Order of Remand on August 19, 1992. It contended that we have jurisdiction pursuant to 28 U.S.C. § 1291 (1988) (“The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts....”) and Rule 3 of the Federal Rules of Appellate Procedure.\nAt oral argument on June 18, 1993, this court noted that, remand orders are reviewable only in limited circumstances. Not convinced at that time that this case presented such circumstances, we ordered the parties to brief the following issue not addressed or alluded to in their opening briefs:\nWhether this court has jurisdiction to hear this appeal in light of: 28 U.S.C. § 1447 (1988); Thermtron Products v. Hemansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 723, 97 S.Ct. 1439, 1440, 52 L.Ed.2d 1 (1977) (per curiam); Volvo of America Corp. v. Schwarzer, 429 U.S. 1331, 1331-33, 97 S.Ct. 284, 285, 50 L.Ed.2d 273 (1976) (opinion in chambers); Baldridge v. Kentucky-Ohio Transportation, Inc., 983 F.2d 1341, 1343-50 (6th Cir.1993); In re Shell Oil Co., 966 F.2d 1130, 1132-33 (7th Cir.1992); In re Amoco Petroleum Additives Co., 964 F.2d 706, 708-09 (7th Cir.1992). Particular attention should be paid to the import, if any, of the 1988 amendment to 28 U.S.C. § 1447(c) as it relates to the district court’s decision in this case.\nVan Meter v. State Farm Fire & Casualty Co., No. 92-2056 (6th Cir. June 22, 1993) (supplemental order). See Baldridge, 983 F.2d at 1343 (“Although plaintiffs do not contest defendants’ claim that this court has authority to consider this appeal, we are obligated to ensure that we have jurisdiction over this matter.”).\nII\nIf a district court remands a case based on the grounds listed in 28 U.S.C. § 1447(c) (1988), this court cannot review the remand order. 28 U.S.C. § 1447(d) (1988); Thermtron, 423 U.S. at 343, 96 S.Ct. at 589. We are without jurisdiction to review a remand order grounded in Section 1447(c) even if based on erroneous principles or analysis. Thermtron, 423 U.S. at 343, 96 S.Ct. at 589 (Section 1447(d) “prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ. This has been the established rule under § 1447(d) and its predecessors stretching back to 1887.”); Gravitt, 430 U.S. at 723, 97 S.Ct. at 1440 (though the Fifth Circuit had vacated a district court’s remand order because the district court “had employed erroneous principles in concluding that it was without jurisdiction,” the Supreme Court reversed, holding that the district court’s decision that the action had been “improperly removed” plainly falls under Section 1447(c) and thus is not reviewable — erroneous or not); see also Schwarzer, 429 U.S. at 1331— 33, 97 S.Ct. at 284-85 (review of district court’s order remanding a case pursuant to Section 1447(c) is barred by Section 1447(d), even though the district court “may have been wrong in its analysis”). The district court need not cite Section 1447(c) in its remand order for the Section 1447(d) bar to apply. “Several decisions show that the appeals courts will liberally construe the district court’s reasons for a remand in order to find that the court invoked § 1447(c) and thereby avoid reviewing the challenged order.” In re Romulus Community Schools, 729 F.2d 431, 435 (6th Cir.1984) (citing cases).\nSince remand orders grounded in Section 1447(c) are not reviewable, it is important to determine the nature and scope of that provision. Section 1447(e) calls for a remand when it appears that the district court “lacks subject matter jurisdiction.” Courts, including this one, have interpreted this provision as necessarily tied to a temporal reference point, namely, the time of removal. Thus, if a district court determines subject matter jurisdiction to have been lacking at the time of removal, and remands on that basis, the remand order is a Section 1447(c) remand order and is nonreviewable. However, if a district court determines subject matter jurisdiction to have existed at the time of removal, yet remands for alleged lack of subject matter jurisdiction based on some post-removal event(s), the remand order is not a Section 1447(c) remand order and is renewable on petition for a writ of mandamus. Baldridge, 983 F.2d at 1348-49 (after noting that the “timing question is disposi-tive,” we proceeded to determine whether the district court found subject matter jurisdiction to have existed at the time of removal, only to have been allegedly defeated by some post-removal event(s); in the end, we concluded that, “while it is tempting to ... find the remand reviewable as based on a belief (however erroneous) that a post-removal event had destroyed jurisdiction, the facts of this case are not amenable to such a resolution,” and found the remand order non-reviewable); see also Shell Oil, 966 F.2d at 1132 (“Whether we have the authority to issue the writ of mandamus Shell seeks depends on the unstated reason for the remand. If the district court believed that the case was properly removed, but that the stipulation [to limit damages to less than the federal jurisdictional requirement] justified a remand, then we may review the order. If, however, the district court believed ... that jurisdiction was missing at the outset, then 28 U.S.C. § 1447(d) would block any review, even though we might disagree with that decision.”); Amoco Petroleum Additives, 964 F.2d at 708 (“Was there subject-matter jurisdiction at the time of removal, vanishing because of the change in the identity of the plaintiffs? If so, we ... may review the remand order.... If the judge believed that subject-matter jurisdiction was missing at the outset, however, § 1447(d) puts the remand beyond our ken.”). Cf. Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132, 135 (3d Cir.) (“[i]t is settled that ‘[generally the right of removal is decided by the pleadings, viewed as of the time when the petition for removal is filed’”) (citation omitted), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976); Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1277 (6th Cir.1991), cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992); 14A Charles A. Wright et al., Federal Practice & Procedure § 3721, at 208-13 & n. 71 (2d ed. 1985 & West Supp.1993) (citing cases); Charles A. Wright, Law of Federal Courts § 38, at 152-53 (3d ed. 1976).\nGiven this, we are faced with the issue of whether the district court in the instant case found that the amount-in-controversy requirement was met as of the time of removal, only to have been allegedly defeated by some post-removal event(s). If the district court so found, we may review the remand order on petition for a writ of mandamus. Unfortunately, given the state of the record, we find ourselves unable to determine conclusively whether the district court found the amount-in-controversy requirement to have been met as of the time of removal.\nIt is clear that, as to Count I, the district court believed, whether based on erroneous presuppositions or not, that the amount in controversy for purposes of federal subject matter jurisdiction was approximately $30,-000 at the time of the commencement of the lawsuit, as well as, we may readily deduce, the time of removal. If the district court concluded from this alone that the amount-in-controversy requirement was not met, we would consider a related remand order to be based on Section 1447(c) grounds. As such, we could not review it.\nThere is more to consider, however. Specifically, with regard to Count II of the Complaint, the district court found that the Van Meters, post-removal, “submitted ... a signed statement claiming damages of exactly $10,000. Accordingly, plaintiffs seek from defendant a total of approximately $40,000.” J.A. at 107 (emphasis added). From this, we can determine that the district court indeed believed that the jurisdictional requirement was not met at some point after removal. Whether the court understood the amount of the Van Meters’ claim in Count II, when combined with approximately $30,000 the court found to have been in controversy in Count I plus any amount associated with Count III (which was apparently dismissed post-removal), to be less than the federal jurisdictional requirement at the time of removal is nebulous at best. See State Farm’s Supp.Br. at 9 (“[j]ust what the district judge was deciding, here, is not made very clear in his opinion”); id. at 12 (the district court’s “reason for [remand] is, at best, unclear”).\nThe Seventh Circuit, in Shell Oil, 966 F.2d 1130, was faced with a situation similar to ours. In that case, the plaintiff filed a stipulation subsequent to a removal limiting damages sought to less than the federal jurisdictional threshold. Shortly thereafter, the district court remanded the case without giving reasons why. The Seventh Circuit found itself unable to determine whether the district court considered the amount-in-eontro-versy requirement to have been met as of the time of removal. It found the temporal reference point critical in evaluating whether it could review the remand order: “[I]t matters whether the district court remanded the case because in its view jurisdiction was missing at the time of removal or because of later events. We need to know which.” Id. at 1133. ' Thus, it found it proper to direct the district court to expound upon its reasons for remand.\nIll\nBased on the foregoing, we find it proper to remand to the district court for the limited purpose of supplementing the record to indicate whether it understands that “the amount in controversy satisfies the statutory minimum,” J.A. at 109, as of the time of removal. Upon receipt of the district court’s response, we shall determine the reviewability of the Order of Remand and, if it is renewable, whether a writ of mandamus shall issue.\n. Section 1447(c) reads:\nA motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.\n. This has been true despite the 1988 amendment to Section 1447(c), Pub.L. No. 100-702, § 1016(c)(1), 102 Stat. 4642, 4670 (1988). The previous version of Section 1447(c) called for a remand when the district court realized \"that the case was removed improvidently and without jurisdiction.” The amended Section 1447(c), at issue in the instant case, provides that \"[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” As we commented in Baldridge:\nAlthough the new language suggests that removal is no longer the critical jurisdictional juncture, courts have not construed it in this revolutionary way.... The legislative histoiy of the Judicial Improvements Acts (Pub.L. 100-702), the 1988 law which changed this text, reveals no intent to direct district courts to look beyond the time of removal in deciding remand motions based on lack of jurisdiction.\n983 F.2d at 1348 n. 11; see also Shell Oil, 966 F.2d at 1133 (\"It is at least conceivable that an amendment to § 1447 makes the district judge’s reason [for remanding a case] irrelevant. St. Paul[ Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938)] held that diversity jurisdiction depends on circumstances at the time of removal. In 1988 Congress amended § 1447(c) to provide that ... ['i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.’ Does the reference to 'any time before final judgment’ mean that changes after removal can eliminate jurisdiction and require remand? We think not.... Neither the text of the revised § 1447(c) nor its legislative history implies that Congress altered the traditional view....\").\n. We note that, though we are considering what has been styled as a direct appeal, we may treat it as a petition for a writ of mandamus for purposes of reviewing the Order of Remand. See, e.g., J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 271 (7th Cir.1990) (\"We will follow the same course as we have in the past and treat the direct appeal from the remand order as a petition for a writ of mandamus.\"); see also Hammons v. Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Local 20, 754 F.2d 177, 179 (6th Cir.1985) (\"A court without direct appellate jurisdiction nevertheless is empowered to treat an appeal as though it were a petition for a writ of mandamus made pursuant to 28 U.S.C. § 1651.”).\n[END_CASE]", "role": "user" } ]
10,511,780	UNITED STATES of America, Plaintiff-Appellee, v. Leonard LOWENSTEIN, Defendant-Appellant	United States v. Lowenstein	1993-08-20	No. 92-2030	United States Court of Appeals for the Sixth Circuit	{"judges": ["Before: MILBURN, RYAN, and NORRIS, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Leonard LOWENSTEIN, Defendant-Appellant."], "opinions": [{"text": "ALAN E. NORRIS, Circuit Judge.\nDefendant, Leonard Lowenstein, appeals the sentence imposed by the district court following his conviction for threatening the life of a Michigan Special Assistant Attorney General. Defendant contends that the district court’s decision to depart upward from the Sentencing Guidelines range of twelve to eighteen months and impose a forty-eight month term of imprisonment was improper and unreasonable. Defendant also argues, for the first time on appeal, that he did not receive notice of each ground for the departure, as required by Burns v. United States, — U.S. -, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). Finding defendant’s arguments to lack merit, we affirm.\nI.\nIn 1986 defendant inherited approximately $220,000. In accordance with its inheritance tax laws, the state of Michigan ordered him to pay an inheritance tax. Despite repeated efforts by the state to collect the tax, defendant steadfastly refused to pay. Consequently, in June 1990 David Kaufman was appointed as a Special Assistant Attorney General for the purpose of collecting the tax. Kaufman met and spoke over the telephone with defendant on numerous occasions in an attempt to collect the tax. Defendant grew increasingly angry over Kaufman’s collection efforts and, in March 1991 made the first of approximately thirty telephone calls in which he threatened Kaufman’s life.\nDefendant was indicted for making threatening communications, in violation of 18 U.S.C. § 875(c), and was convicted following a jury trial. Under the Sentencing Guidelines, his sentence range was twelve to eighteen months. In defendant’s presentence report, the probation officer noted that an upward departure might be warranted under U.S.S.G. § 4A1.3, p.s. (adequacy of criminal history category). On the day of sentencing, the district court announced that it would depart upward from the guidelines range for two reasons. First, according to the district court, the applicable guidelines section, § 2A6.1, did not adequately take into account the multiple threatening communications involved in defendant’s case. Second, the district court concluded that under § 4A1.3, defendant’s criminal history category did not adequately reflect the seriousness of his past criminal conduct. Accordingly, the district court imposed a forty-eight month term of imprisonment. Defendant now appeals, arguing that the departure was improper and unreasonable, and that he did not receive notice of each ground for the departure.\nII.\nAs provided in 18 U.S.C. § 3553(b), the district court shall impose a sentence within the applicable guideline range, “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” Similarly, U.S.S.G. § 5K2.0, p.s. provides that an upward departure may be warranted “if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.”\nThis court reviews an upward departure under a three-step analysis:\n[t]he first step is a question of law regarding whether the circumstances of the case are sufficiently unusual to justify departure. Step two involves a determination as to whether there is an actual factual basis justifying the departure. Here, the standard is whether the - determination made involves clear error.\nThe third step is that, once the Court has assured itself that the sentencing court considered circumstances appropriate to the departure, the degree of departure must be measured by a standard of reasonableness on appeal.\nUnited States v. Joan, 883 F.2d 491, 494-96 (6th Cir.1989).\nWith respect to the first ground for the departure, U.S.S.G. § 2A6.1 provides:\nThreatening communications\n(a) Base Offense Level: 12\n(b) Specific Offense Characteristics\n(1) .If the defendant engaged in any conduct evidencing an intent to carry out such threat, increase by 6 levels.\n(2) If specific . offense characteristic § 2A6.1(b)(l) does not apply, and the defendant’s conduct involved a single instance evidencing little or no deliberation, decrease by 4 levels.\nThe district court properly found that § 2A6.1 does not adequately take into account the number and deliberative nature of the calls involved in this case. While the section provides for a reduced offense level when a defendant makes a single call evidencing little or no deliberation, the section does not provide for an enhancement when multiple calls are made with deliberation, which clearly are more culpable than a single call.\nThis reading of § 2A6.1 is buttressed by Application Note 1, which provides that\n[t]he Commission recognizes that this offense includes a particularly wide range of conduct and that it is not possible .to include all of the potentially relevant circumstances in the offense level. Factors not incorporated in the guideline may be considered by the court in determining whether a departure from the guidelines is warranted.\nU.S.S.G. § 2A6.1, comment, (n. 1). Given the undisputed facts that defendant made some thirty threatening telephone calls over the course of eight months, and continued his behavior after the FBI warned him to stop, sufficiently unusual circumstances existed to warrant a departure. Defendant’s actions demonstrate a heightened level of culpability that was not adequately taken into account by the guidelines. Moreover, on these facts, we find that the degree of the departure was reasonable.\nBecause the district court indicated that it would have departed based upon this ground alone, and its reliance upon this ground was appropriate and the degree of departure was reasonable, this court need not consider the appropriateness of the other ground for departure. See Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992) (court of appeals may affirm upward departure even if one ground is invalid, provided that the district court would have imposed the same sentence without the invalid ground and the departure is reasonable).\nIII.\nDefendant argues that even if the district court relied upon an appropriate ground for departure, he was not given proper notice of that ground. In Bums, the Supreme Court held that Fed.R.Crim.P. 32 requires a district court to provide the parties with reasonable notice that it is contemplating an upward departure, specifically identifying the ground for the departure. Burns, — U.S. at -, 111 S.Ct. at 2187.-\nThe record does not indicate that defendant received any notice prior to the sentencing hearing of the district court’s intent to depart upward because the guidelines did not adequately take into account his multiple threatening communications. However, the transcript of the sentencing hearing reveals that defendant never objected to this lack of notice. Moreover, in his brief to this court, he is unable to identify any prejudice suffered as a result.\nAssuming that the district court erred in failing to provide advance notice of one of the grounds for the departure, this court reviews the oversight for plain error. See United States v. Paslay, 971 F.2d 667, 674 n. 13 (11th Cir.1992) (noting in dicta that plain error standard of review applies to Bums violations to which no timely objection is taken). Federal Rule of Criminal Procedure 52(b) provides that this court may correct a plain error that “affect[s] substantial rights.” Even if the district court committed plain error, the Supreme Court recently held that a -defendant ordinarily must demonstrate prejudice as a result of the error before it may be viewed as affecting substantial rights. United States v. Olano, — U.S. -, - -, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Since, as noted earlier, defendant is unable to identify any prejudice suffered due to the lack of notice, we conclude that any error committed by the district court did not rise to the level of plain error. Accordingly, we affirm the sentence imposed by the district court.", "type": "majority", "author": "ALAN E. NORRIS, Circuit Judge."}], "attorneys": ["Rafael M. Gonzalez, Office of U.S. Atty., Detroit, MI (briefed), for U.S.", "David W. Wright, Bloomfield Hills, MI (briefed), for Leonard Lowenstein.", "Leonard Lowenstein, pro se."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Leonard LOWENSTEIN, Defendant-Appellant.\nNo. 92-2030.\nUnited States Court of Appeals, Sixth Circuit.\nSubmitted May 6, 1993.\nDecided Aug. 20, 1993.\nRafael M. Gonzalez, Office of U.S. Atty., Detroit, MI (briefed), for U.S.\nDavid W. Wright, Bloomfield Hills, MI (briefed), for Leonard Lowenstein.\nLeonard Lowenstein, pro se.\nBefore: MILBURN, RYAN, and NORRIS, Circuit Judges."}	MILBURN	RYAN	NORRIS	1	1	1	0	0	0	1 F.3d 452	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Leonard LOWENSTEIN, Defendant-Appellant\nCourt: United States Court of Appeals for the Sixth Circuit\nDate decided: 1993-08-20\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nALAN E. NORRIS, Circuit Judge.\nDefendant, Leonard Lowenstein, appeals the sentence imposed by the district court following his conviction for threatening the life of a Michigan Special Assistant Attorney General. Defendant contends that the district court’s decision to depart upward from the Sentencing Guidelines range of twelve to eighteen months and impose a forty-eight month term of imprisonment was improper and unreasonable. Defendant also argues, for the first time on appeal, that he did not receive notice of each ground for the departure, as required by Burns v. United States, — U.S. -, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). Finding defendant’s arguments to lack merit, we affirm.\nI.\nIn 1986 defendant inherited approximately $220,000. In accordance with its inheritance tax laws, the state of Michigan ordered him to pay an inheritance tax. Despite repeated efforts by the state to collect the tax, defendant steadfastly refused to pay. Consequently, in June 1990 David Kaufman was appointed as a Special Assistant Attorney General for the purpose of collecting the tax. Kaufman met and spoke over the telephone with defendant on numerous occasions in an attempt to collect the tax. Defendant grew increasingly angry over Kaufman’s collection efforts and, in March 1991 made the first of approximately thirty telephone calls in which he threatened Kaufman’s life.\nDefendant was indicted for making threatening communications, in violation of 18 U.S.C. § 875(c), and was convicted following a jury trial. Under the Sentencing Guidelines, his sentence range was twelve to eighteen months. In defendant’s presentence report, the probation officer noted that an upward departure might be warranted under U.S.S.G. § 4A1.3, p.s. (adequacy of criminal history category). On the day of sentencing, the district court announced that it would depart upward from the guidelines range for two reasons. First, according to the district court, the applicable guidelines section, § 2A6.1, did not adequately take into account the multiple threatening communications involved in defendant’s case. Second, the district court concluded that under § 4A1.3, defendant’s criminal history category did not adequately reflect the seriousness of his past criminal conduct. Accordingly, the district court imposed a forty-eight month term of imprisonment. Defendant now appeals, arguing that the departure was improper and unreasonable, and that he did not receive notice of each ground for the departure.\nII.\nAs provided in 18 U.S.C. § 3553(b), the district court shall impose a sentence within the applicable guideline range, “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” Similarly, U.S.S.G. § 5K2.0, p.s. provides that an upward departure may be warranted “if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.”\nThis court reviews an upward departure under a three-step analysis:\n[t]he first step is a question of law regarding whether the circumstances of the case are sufficiently unusual to justify departure. Step two involves a determination as to whether there is an actual factual basis justifying the departure. Here, the standard is whether the - determination made involves clear error.\nThe third step is that, once the Court has assured itself that the sentencing court considered circumstances appropriate to the departure, the degree of departure must be measured by a standard of reasonableness on appeal.\nUnited States v. Joan, 883 F.2d 491, 494-96 (6th Cir.1989).\nWith respect to the first ground for the departure, U.S.S.G. § 2A6.1 provides:\nThreatening communications\n(a) Base Offense Level: 12\n(b) Specific Offense Characteristics\n(1) .If the defendant engaged in any conduct evidencing an intent to carry out such threat, increase by 6 levels.\n(2) If specific . offense characteristic § 2A6.1(b)(l) does not apply, and the defendant’s conduct involved a single instance evidencing little or no deliberation, decrease by 4 levels.\nThe district court properly found that § 2A6.1 does not adequately take into account the number and deliberative nature of the calls involved in this case. While the section provides for a reduced offense level when a defendant makes a single call evidencing little or no deliberation, the section does not provide for an enhancement when multiple calls are made with deliberation, which clearly are more culpable than a single call.\nThis reading of § 2A6.1 is buttressed by Application Note 1, which provides that\n[t]he Commission recognizes that this offense includes a particularly wide range of conduct and that it is not possible .to include all of the potentially relevant circumstances in the offense level. Factors not incorporated in the guideline may be considered by the court in determining whether a departure from the guidelines is warranted.\nU.S.S.G. § 2A6.1, comment, (n. 1). Given the undisputed facts that defendant made some thirty threatening telephone calls over the course of eight months, and continued his behavior after the FBI warned him to stop, sufficiently unusual circumstances existed to warrant a departure. Defendant’s actions demonstrate a heightened level of culpability that was not adequately taken into account by the guidelines. Moreover, on these facts, we find that the degree of the departure was reasonable.\nBecause the district court indicated that it would have departed based upon this ground alone, and its reliance upon this ground was appropriate and the degree of departure was reasonable, this court need not consider the appropriateness of the other ground for departure. See Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992) (court of appeals may affirm upward departure even if one ground is invalid, provided that the district court would have imposed the same sentence without the invalid ground and the departure is reasonable).\nIII.\nDefendant argues that even if the district court relied upon an appropriate ground for departure, he was not given proper notice of that ground. In Bums, the Supreme Court held that Fed.R.Crim.P. 32 requires a district court to provide the parties with reasonable notice that it is contemplating an upward departure, specifically identifying the ground for the departure. Burns, — U.S. at -, 111 S.Ct. at 2187.-\nThe record does not indicate that defendant received any notice prior to the sentencing hearing of the district court’s intent to depart upward because the guidelines did not adequately take into account his multiple threatening communications. However, the transcript of the sentencing hearing reveals that defendant never objected to this lack of notice. Moreover, in his brief to this court, he is unable to identify any prejudice suffered as a result.\nAssuming that the district court erred in failing to provide advance notice of one of the grounds for the departure, this court reviews the oversight for plain error. See United States v. Paslay, 971 F.2d 667, 674 n. 13 (11th Cir.1992) (noting in dicta that plain error standard of review applies to Bums violations to which no timely objection is taken). Federal Rule of Criminal Procedure 52(b) provides that this court may correct a plain error that “affect[s] substantial rights.” Even if the district court committed plain error, the Supreme Court recently held that a -defendant ordinarily must demonstrate prejudice as a result of the error before it may be viewed as affecting substantial rights. United States v. Olano, — U.S. -, - -, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Since, as noted earlier, defendant is unable to identify any prejudice suffered due to the lack of notice, we conclude that any error committed by the district court did not rise to the level of plain error. Accordingly, we affirm the sentence imposed by the district court.\n[END_CASE]", "role": "user" } ]
10,511,826	UNITED STATES of America, Plaintiff-Appellee, v. Janet K. HOLLAND, Defendant-Appellant	United States v. Holland	1993-04-29	No. 92-2830	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before RIPPLE, Circuit Judge (in chambers)."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Janet K. HOLLAND, Defendant-Appellant."], "opinions": [{"text": "This motion is before me on application of the appellant for recall of this court’s mandate and for stay of that mandate pending the disposition of a petition for a writ of certiorari in the Supreme Court of the United States. For the reasons set forth in the following chambers opinion, the relief requested is denied. Because the issue of the applicable standards for recall of the mandate and for stay of the mandate frequently confronts practitioners, I have decided to rule on this matter by published opinion. See Connecticut Gen. Life Ins. Co. v. Chicago Title & Trust Co., 690 F.2d 115 (1982), cert. denied, 464 U.S. 999, 104 S.Ct. 502, 78 L.Ed.2d 693 (1983).\nThe appellant was convicted in the United States District Court for the Southern District of Indiana of seventeen counts of knowingly making a false statement to a federally insured institution for the purpose of influencing its actions in violation of 18 U.S.C. §§ 1014 and 2. After the imposition of sentence, the appellant took an appeal to this court. The execution of the sentence to imprisonment was stayed by the district court pending the disposition of the appeal in this court. The correctness of that decision is not before us. On April 29, 1993, this court affirmed the judgment of the district court in all respects, 992 F.2d 687. A subsequent petition for rehearing and suggestion for rehearing en banc was denied by this court on May 28, 1993. The mandate of the court issued on June 7, 1993.\nThe appellant must overcome two hurdles if the relief requested is to be granted. First, there must be an adequate showing that the mandate ought to be recalled. Second, there must be an adequate showing that the mandate, if recalled, ought to be stayed. The appellant has not made an adequate showing with respect to either of these matters.\nThe Federal Rules of Appellate Procedure provide that the mandate of this court shall issue seven days after the entry of an order denying the petition for rehearing. See Fed.R.App.P. 41(a). The appellant sought no stay before the issuance of the mandate. It is well-established that, while it is within the inherent power of the court to recall its mandate in order to protect the integrity of its own processes, the mandate ought to be recalled only in exceptional circumstances. Patterson v. Crabb, 904 F.2d 1179, 1180 (7th Cir.1990). For instance, this court has recalled its mandate when it discovered that it had misread the record and, consequently, dismissed an appeal erroneously on jurisdictional grounds, thus depriving the parties of the right to appeal. See id. Similarly, a subsequent decision of the Supreme Court calling into serious question the correctness of the court’s judgment has been held to justify the recall of the mandate. See Zipfel v. Halliburton Co., 861 F.2d 565 (9th Cir.1988). The appellant presents no such grounds here to justify her failure to request a stay before the release of the mandate.\nEven if the appellant were able to justify the recall of the mandate, she does not present adequate grounds for the stay of that mandate pending the filing of a petition for certiorari in the Supreme Court of the United States. Rule 41(b) of the Federal Rules of Appellate Procedure authorizes a court of appeals to issue such a stay. Relief is not, however, a matter of right but of sound judicial discretion. The rule in its present form does not set forth the criteria that ought to guide the exercise of that discretion. Our local rules simply require that a “substantial showing” be made that the petition for certiorari will raise “an important question meriting review by the Supreme Court.” Cir.R. 41(a)(3). The foremost treatise in this area states that “[a] stay is a form of temporary injunction, and in general is governed by the same principles, modified to some extent because the application is made after the case has already been lost in at least one court.” ROBERT L. Stern et al„ Supreme CouRT PRACTICE § 17.19 (6th ed. 1986). Therefore, the inquiry must center on whether the applicant will suffer irreparable injury and whether the applicant has a reasonable probability of succeeding on the merits. In the context of a petition for a writ of certiorari, this second criteria requires, as our local rule indicates, albeit somewhat laconically, an estimation as to whether there is a reasonable probability that four Justices will vote to grant certiorari and a reasonable possibility that five will vote to reverse the judgment of this court. Justice Brennan discussed the interrelationship of these factors in his chambers opinion in Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 3, 65 L.Ed.2d 1098 (1980):\nRelief ... is appropriate only in those extraordinary cases where the applicant is able to rebut the presumption that the decisions below — both on the merits and on the proper interim disposition of the case — are correct_ In a case like the present one, this can be accomplished only if a four-part showing is made. First, it must be established that there is a “reasonable probability” that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction.... Second, the applicant must persuade [the Circuit Justice] that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous.... Third, there must be a dempnstration that irreparable harm is likely to result from the denial of a stay.... And fourth, in a close case it may be appropriate to “balance the equities” — to explore the relative harms to applicant and respondent, as well as the interests of the public at large.\nOther justices have articulated the same standards in formulations that differ slightly in form, but not in substance. See Barnes v. E-Systems, Inc. Group Hosp. Medical & Surgical Ins. Plan, — U.S. -, 112 S.Ct. 1, 115 L.Ed.2d 1087 (1991) (Scalia, J., in chambers); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 95 S.Ct. 1, 42 L.Ed.2d 17 (1974) (Powell, J., in chambers). As the treatise cited above notes, judges of the lower courts are to apply the same criteria. Stern at § 17.19. The judicial inquiry is the same.\nIn this case, our inquiry need go no further than an examination of the issues that the appellant proposes to present to the Supreme Court. First, the appellant submits that the decision of this court is in conflict with the decision of the Tenth Circuit in United States v. Kramer, 500 F.2d 1185 (10th Cir.1974). A conflict among the circuits is an accepted basis for the granting of the writ of certiorari. See Supreme Court Rule 10(a). Here, however, there is no division among the circuits. The appellant’s contention was answered succinctly by the government in its brief on the merits:\nIn United States v. Kramer, 500 F.2d 1185 (10th Cir.1974), a bank president made a loan within his lending authority after receiving a false financial statement. In reversing his conviction under Section 1014 the court found that the evidence failed to show that he was aware the financial statement was false, that the statement was necessary for approval of the loan, or that the bank president required a financial statement before he exercised his discretion to make a loan within the bank’s established lending limit. Id. at 1187.\nThe facts in Kramer are not the facts in this case. Defendant here was charged with placing fictitious names on promissory notes for the purpose of allowing money to be lent to a person who had reached his lending limit with the bank. The defendant knew the names were fictitious, the promissory notes were a necessary part of the loan process, and the actual recipient of the money had reached the limit of what he could borrow in his own name.\nAppellee’s Br. at 17-18. The appellant’s contention that Kramer is controlling is so wide of the mark that this court did not give it independent treatment in its opinion. The second proposed issue, inadequacy of counsel was thoroughly examined by the court during its consideration of the merits and presents no novel issue requiring further review by the Supreme Court.\nAccordingly, the motion for recall of the mandate and for a stay pending the filing of a petition for a writ of certiorari is Denied.\nDenied.\n. In order to provide the parties with a ruling as quickly as possible, the opinion was released initially in typescript.", "type": "majority", "author": null}], "attorneys": ["Christina McKee, Asst. U.S. Atty. (argued), Indianapolis, IN, for U.S.", "James R. West, New Albany, IN, Belle T. Choate (argued), Robert C. Perry, Katharine C. Liell, Indianapolis, IN, for defendant-appellant.'"], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Janet K. HOLLAND, Defendant-Appellant.\nNo. 92-2830.\nUnited States Court of Appeals, Seventh Circuit.\nArgued April 6, 1993.\nDecided April 29, 1993.\nMotion to Recall and Stay the Mandate July 1, 1993.\nChristina McKee, Asst. U.S. Atty. (argued), Indianapolis, IN, for U.S.\nJames R. West, New Albany, IN, Belle T. Choate (argued), Robert C. Perry, Katharine C. Liell, Indianapolis, IN, for defendant-appellant.'\nBefore RIPPLE, Circuit Judge (in chambers)."}	RIPPLE			0	1	1	0	0	0	1 F.3d 454	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Janet K. HOLLAND, Defendant-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-04-29\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nThis motion is before me on application of the appellant for recall of this court’s mandate and for stay of that mandate pending the disposition of a petition for a writ of certiorari in the Supreme Court of the United States. For the reasons set forth in the following chambers opinion, the relief requested is denied. Because the issue of the applicable standards for recall of the mandate and for stay of the mandate frequently confronts practitioners, I have decided to rule on this matter by published opinion. See Connecticut Gen. Life Ins. Co. v. Chicago Title & Trust Co., 690 F.2d 115 (1982), cert. denied, 464 U.S. 999, 104 S.Ct. 502, 78 L.Ed.2d 693 (1983).\nThe appellant was convicted in the United States District Court for the Southern District of Indiana of seventeen counts of knowingly making a false statement to a federally insured institution for the purpose of influencing its actions in violation of 18 U.S.C. §§ 1014 and 2. After the imposition of sentence, the appellant took an appeal to this court. The execution of the sentence to imprisonment was stayed by the district court pending the disposition of the appeal in this court. The correctness of that decision is not before us. On April 29, 1993, this court affirmed the judgment of the district court in all respects, 992 F.2d 687. A subsequent petition for rehearing and suggestion for rehearing en banc was denied by this court on May 28, 1993. The mandate of the court issued on June 7, 1993.\nThe appellant must overcome two hurdles if the relief requested is to be granted. First, there must be an adequate showing that the mandate ought to be recalled. Second, there must be an adequate showing that the mandate, if recalled, ought to be stayed. The appellant has not made an adequate showing with respect to either of these matters.\nThe Federal Rules of Appellate Procedure provide that the mandate of this court shall issue seven days after the entry of an order denying the petition for rehearing. See Fed.R.App.P. 41(a). The appellant sought no stay before the issuance of the mandate. It is well-established that, while it is within the inherent power of the court to recall its mandate in order to protect the integrity of its own processes, the mandate ought to be recalled only in exceptional circumstances. Patterson v. Crabb, 904 F.2d 1179, 1180 (7th Cir.1990). For instance, this court has recalled its mandate when it discovered that it had misread the record and, consequently, dismissed an appeal erroneously on jurisdictional grounds, thus depriving the parties of the right to appeal. See id. Similarly, a subsequent decision of the Supreme Court calling into serious question the correctness of the court’s judgment has been held to justify the recall of the mandate. See Zipfel v. Halliburton Co., 861 F.2d 565 (9th Cir.1988). The appellant presents no such grounds here to justify her failure to request a stay before the release of the mandate.\nEven if the appellant were able to justify the recall of the mandate, she does not present adequate grounds for the stay of that mandate pending the filing of a petition for certiorari in the Supreme Court of the United States. Rule 41(b) of the Federal Rules of Appellate Procedure authorizes a court of appeals to issue such a stay. Relief is not, however, a matter of right but of sound judicial discretion. The rule in its present form does not set forth the criteria that ought to guide the exercise of that discretion. Our local rules simply require that a “substantial showing” be made that the petition for certiorari will raise “an important question meriting review by the Supreme Court.” Cir.R. 41(a)(3). The foremost treatise in this area states that “[a] stay is a form of temporary injunction, and in general is governed by the same principles, modified to some extent because the application is made after the case has already been lost in at least one court.” ROBERT L. Stern et al„ Supreme CouRT PRACTICE § 17.19 (6th ed. 1986). Therefore, the inquiry must center on whether the applicant will suffer irreparable injury and whether the applicant has a reasonable probability of succeeding on the merits. In the context of a petition for a writ of certiorari, this second criteria requires, as our local rule indicates, albeit somewhat laconically, an estimation as to whether there is a reasonable probability that four Justices will vote to grant certiorari and a reasonable possibility that five will vote to reverse the judgment of this court. Justice Brennan discussed the interrelationship of these factors in his chambers opinion in Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 3, 65 L.Ed.2d 1098 (1980):\nRelief ... is appropriate only in those extraordinary cases where the applicant is able to rebut the presumption that the decisions below — both on the merits and on the proper interim disposition of the case — are correct_ In a case like the present one, this can be accomplished only if a four-part showing is made. First, it must be established that there is a “reasonable probability” that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction.... Second, the applicant must persuade [the Circuit Justice] that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous.... Third, there must be a dempnstration that irreparable harm is likely to result from the denial of a stay.... And fourth, in a close case it may be appropriate to “balance the equities” — to explore the relative harms to applicant and respondent, as well as the interests of the public at large.\nOther justices have articulated the same standards in formulations that differ slightly in form, but not in substance. See Barnes v. E-Systems, Inc. Group Hosp. Medical & Surgical Ins. Plan, — U.S. -, 112 S.Ct. 1, 115 L.Ed.2d 1087 (1991) (Scalia, J., in chambers); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 95 S.Ct. 1, 42 L.Ed.2d 17 (1974) (Powell, J., in chambers). As the treatise cited above notes, judges of the lower courts are to apply the same criteria. Stern at § 17.19. The judicial inquiry is the same.\nIn this case, our inquiry need go no further than an examination of the issues that the appellant proposes to present to the Supreme Court. First, the appellant submits that the decision of this court is in conflict with the decision of the Tenth Circuit in United States v. Kramer, 500 F.2d 1185 (10th Cir.1974). A conflict among the circuits is an accepted basis for the granting of the writ of certiorari. See Supreme Court Rule 10(a). Here, however, there is no division among the circuits. The appellant’s contention was answered succinctly by the government in its brief on the merits:\nIn United States v. Kramer, 500 F.2d 1185 (10th Cir.1974), a bank president made a loan within his lending authority after receiving a false financial statement. In reversing his conviction under Section 1014 the court found that the evidence failed to show that he was aware the financial statement was false, that the statement was necessary for approval of the loan, or that the bank president required a financial statement before he exercised his discretion to make a loan within the bank’s established lending limit. Id. at 1187.\nThe facts in Kramer are not the facts in this case. Defendant here was charged with placing fictitious names on promissory notes for the purpose of allowing money to be lent to a person who had reached his lending limit with the bank. The defendant knew the names were fictitious, the promissory notes were a necessary part of the loan process, and the actual recipient of the money had reached the limit of what he could borrow in his own name.\nAppellee’s Br. at 17-18. The appellant’s contention that Kramer is controlling is so wide of the mark that this court did not give it independent treatment in its opinion. The second proposed issue, inadequacy of counsel was thoroughly examined by the court during its consideration of the merits and presents no novel issue requiring further review by the Supreme Court.\nAccordingly, the motion for recall of the mandate and for a stay pending the filing of a petition for a writ of certiorari is Denied.\nDenied.\n. In order to provide the parties with a ruling as quickly as possible, the opinion was released initially in typescript.\n[END_CASE]", "role": "user" } ]
10,511,895	UNITED STATES of America, Plaintiff-Appellee, v. Anthony W. DAWSON, Defendant-Appellant	United States v. Dawson	1993-07-02	No. 92-1934	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before POSNER and RIPPLE, Circuit Judges, and CRABB, Chief District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Anthony W. DAWSON, Defendant-Appellant."], "opinions": [{"text": "RIPPLE, Circuit Judge.\nAnthony Dawson pleaded guilty to six counts of bank robbery in violation of 18 Ú.S.C. § 2113(a) and (d) and one count of possession and use of a firearm in the commission of a crime of violence in violation of 18 U.S.C. § 924(c). Mr. Dawson had also committed numerous other uncharged robberies and had an extensive record of past criminal conduct. The district court departed upward from the otherwise applicable sentencing range. Mr. Dawson was sentenced to 360 months of imprisonment for the six bank robberies to which he pleaded guilty, an additional mandatory consecutive sentence of sixty months on the firearm count, five years of supervised release, and restitution in the amount of $17,319.00. Mr. Dawson appeals the district court’s upward departure. After reviewing the sentencing record, we believe that the district court erred in its methodology and imposed a sentence on Mr. Dawson that contravenes the Sentencing Guidelines. Accordingly, we remand this case for resen-tencing.\nI\nBACKGROUND\nA. Facts\nMr. Dawson has a long and varied criminal history during which he has consistently committed theft offenses in order to finance his drug use. From April 25, 1991, to June 17, 1991, Mr. Dawson committed a series of bank robberies that encompassed three different states. He committed eight bank robberies in Indianapolis, Indiana, and he robbed three other banks in Ohio and Kentucky. Mr. Dawson managed to elude police despite the fact that he did not wear a disguise when he robbed the banks, that he left identifiable fingerprints on the counter of one bank, and that at least once he signed a deposit slip with his own name and left it at one of the banks that he robbed.\nBelieving that Mr. Dawson was going to be killed eventually, his aunt convinced him to surrender to authorities. Early in the morning of June 25, 1991, Mr. Dawson gave himself up to the FBI. He confessed committing seventeen robberies: eleven bank robberies (which were federal crimes) and six other robberies (which were state crimes) that had occurred either in business establishments or on the streets of Indianapolis.\nOn July 11,1991, Mr. Dawson was indicted on six counts of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and six counts of using or carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). These counts were all based on bank robberies that had occurred in Indianapolis. Mr. Dawson initially gave notice to the government that he would use an insanity defense at trial. However, on January 31, 1992, Mr. Dawson pleaded guilty to all six counts of bank robbery and to one count of the firearm offense.\nB. District Court Proceedings\nOn April 10, 1992, the district court conducted a sentencing hearing. The Probation Office drafted a presentence report (PSR) on Mr. Dawson and determined that he had an adjusted offense level of 28, while his extensive past criminal conduct placed him in the highest criminal history category, Category VI. Thus, the applicable sentencing range was 140-175 months’ imprisonment. The Probation Office, however, recommended an upward departure because Mr. Dawson’s criminal history inadequately reflected the seriousness of his past criminal conduct and the likelihood of recidivism. Specifically, the recommendation noted that Mr. Dawson had been charged with only six of the numerous bank robberies to which he had confessed. Moreover, the PSR stated that the sixth charged robbery was not taken into consideration under § 3D1.4 of the United States Sentencing Guidelines’ multiple-count grouping provisions. Mr. Dawson had also confessed to six state robberies upon which he had yet to be charged; he had been convicted previously of three state felonies that had been consolidated for sentencing and thus did not receive full consideration under the Guidelines; and he also had three prior convictions that were too old for inclusion under the Guidelines. Additionally, at the sentencing hearing, the government argued for an enhancement based on the alleged extreme psychological injury to several bank tellers who were victims of Mr. Dawson’s trail of robberies.\nAt the sentencing hearing, Mr. Dawson restated his written objections to all of the recommendations for upward departure contained in the PSR, as well as the government’s attempt to show that the bank tellers suffered from extreme psychological injury. Mr. Dawson contended that his prior criminal history was adequately taken into account by the provisions of the Sentencing Guidelines. He argued that a criminal history category of VI is such a serious designation that it did adequately reflect his past criminal conduct. Moreover, Mr. Dawson argued that neither the charged nor the uncharged robberies could serve to enhance his sentence because the multiple-count grouping provisions of the Sentencing Guidelines already contemplate the commission of multiple offenses and, therefore, no upward departure was justified.\nThe district court, however, agreed with the recommendation in the PSR that an upward departure was appropriate. The district court prefaced Mr. Dawson’s sentencing hearing by stating that his criminal history category, as calculated under the Sentencing Guidelines, was inadequate. Tr. at 78. The court found that the calculated sentencing range did not fully reflect Mr. Dawson’s past criminal conduct or his likelihood of recidivism. In its departure calculations, the court did not rely upon the six state robbery confessions, the three old convictions, or the alleged extreme psychological injury of the bank tellers. Instead, the court departed upward on the basis of the three prior state convictions that had been consolidated for sentencing, on the five uncharged federal bank robberies, and on the sixth charged bank robbery that allegedly was not addressed under § 3D1.4. In making the upward departure, the court specifically stated that\nthere have been prior sentences that were not used in computing the criminal history category with reference to the consolidated state counts, and there is prior similar adult criminal conduct not resulting in a criminal conviction that also warrant an upward departure.\nTr. at 78-79. Because Mr. Dawson already qualified for the highest criminal history category, Category VI, any upward departure based upon the inadequacy of the criminal history computation had to be calculated outside the sentencing table. See U.S.S.G. § 4A1.3 (stating that in certain egregious cases, “a decision above the guideline range for a defendant with a Category VI criminal history may be warranted”).\nWith regard to the three prior offenses consolidated for sentencing, the district court noted that, had they not been .consolidated, six extra criminal history points would have been assessed against Mr. Dawson. The court departed upward by applying the six points to Mr. Dawson’s criminal history. However, because he was already in the highest criminal history category, the court increased his sentencing range fifteen percent for each category that it departed upward beyond Category VI. See United States v. Schmude, 901 F.2d 555 (7th Cir. 1990). The court found that this method resulted “in a two-level increase above the six.” Tr. at 79.\nThe court further departed upward based on both the limitations of the multiple-count grouping provision in the Guidelines and the five uncharged bank robberies that Mr. Dawson had admitted committing. Although Mr. Dawson had pleaded guilty to six bank robberies, § 3D1.4, which increases the offense level for grouped offenses, only provides for an increase of five levels. Thus, the court determined that the sixth bank robbery had not been taken into account under the grouping provision. The court departed upward based on the sixth bank robbery count. Additionally, the court decided to depart upward again based on the five uncharged federal bank robberies. Tr. at 80. The court then apparently miscounted the robberies it was basing departure upon, and instead of adding six units to the five already provided for under the grouping provision, it added the six additional units to the gross number (six) of charged robberies. The court increased Mi’. Dawson’s offense level by twelve. This miscalculation resulted in a combined adjusted offense level of 37. Mr. Dawson was, however, granted a two-level reduction for acceptance of responsibility. All of these calculations produced an offense level of 35.\nFinally, the court reached a sentencing range of 360 months to life by calculating an offense level of 35 and by dropping down two additional levels in Criminal History Category VI by virtue of the fifteen percent extrapolation method proposed in Schmude, The court sentenced Mr. Dawson to 360 months’ incarceration on the charged bank robberies, a mandatory consecutive term of sixty months’ incarceration for the firearm offense, restitution in the amount of $17,319 to be paid to the two victimized banks, and five years of supervised release.\nOn appeal, Mr. Dawson contends that the district court erred in two ways. First, he argues that the district court erred when it departed upward by adding offense levels based on the five uncharged bank robberies to which he confessed. Second, he contends that an upward departure that raises the applicable sentencing range from 140-175 months to 360 months to life is unreasonable and is unsupported by the facts.\nII\nANALYSIS\nPursuant to the jurisdiction granted this court under the Sentencing Reform Act, we review sentences for violations of law and for misapplications of the Sentencing Guidelines. See 18 U.S.C. § 3742(a) and (e). A sentence is to be imposed within the applicable guideline range “unless the [sentencing] court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b). In reviewing a court’s decision to depart upward, we review de novo “whether a district court’s stated grounds for departure may be relied on to justify the departure.” United States v. Willey, 985 F.2d 1342, 1349 (7th Cir.1993).\nMr. Dawson concedes that the district court correctly departed upward based upon the three prior state offenses that had been consolidated for sentencing; he does not appeal the departure premised on those grounds^ Moreover, he is satisfied that the district court appropriately used the Schmtide analysis to extrapolate from the Guidelines and go beyond Criminal History Category VI. Mr. Dawson does, however, urge us to find that the district court departed upward on improper grounds by using the sixth charged bank robbery and the five uncharged bank robberies to elevate his adjusted offense level. Instead, Mr. Dawson contends, the upward departure should have been premised upon additions to his criminal history category.\nA. Upward Departure by Adding the Sixth Charged Bank Robbery in the Multiple-Count Analysis\nMr. Dawson argues that the sixth charged robbery should not have been the basis for any upward departure because the Commentary to the multiple-count grouping provision, § 3D1.4, states that “[i]nasmuch as the maximum increase provided in the guideline is five levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than five Units.” § 3D1.4, Background Commentary. Mr. Dawson contends that six robberies is not significantly more than five; therefore, the sixth robbery is adequately addressed by the guideline and the district court should not have departed upward based on this count.\nThe government, on the other hand, argues that the sixth charged and the five uncharged bank robberies together constitute an amount significantly more than five units and, under § 3D1.4 were correctly used to depart upward. Otherwise, the government avers, “counting only five of the eleven federally based offenses covers less than one-half of the identified robberies.” Appellee’s Br. at 15.\nThe district court believed that the sixth charged bank robbery was not considered in the guideline computation under § 3D1.4. The court specifically stated that, “[bjecause of the grouping arrangements, we had six bank robberies that were dropped to five.” Tr. at 80. Thus, the court determined that an upward departure based upon the sixth bank robbery count was appropriate. We respectfully disagree.\nUnder the grouping provisions of the Guidelines, counts may be grouped together and a combined offense level will be calculated in accordance with § 3D1.4. Under that section, as more units are included, there is an arithmetic increase in offense levels. As noted above, the Background Commentary to § 3D 1.4 states that “[ijnasmuch as the maximum increase provided in the guidelines is 5 levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units.” However, this language should not be construed to mean that § 3D1.4 does not take into account an offense level increase for a sixth offense unit. On the contrary, the offense level is increased by five when six units are included in the calculation. Section 3D1.4 provides that for 3 Jé to 5 units, the offense level is increased 4 levels; similarly, for more than 5 units, the offense level is increased by 5. Thus, the section does not ignore or discount a sixth charged offense. See United States v. Pearson, 911 F.2d 186, 190 (9th Cir.1990) (stating that under § 3D1.4, defendant’s first six offenses were taken into account while the seventh and eighth were not considered in the guideline prior to departure); United States v. Chase, 894 F.2d 488, 491 (1st Cir.1990) (noting that § 3D1.4 encompasses six counts of bank robbery, but upward departure necessary where defendant had nine additional counts to which he had pleaded guilty).\nThe district court may have misconstrued this section because the amount of increase does not correspond exactly to the number of units considered. However, the Sentencing Commission created this disparity by providing that no increase in offense level is allowed for the first unit; increases in offense level begin only when one and a half units have been assessed. Thus, § 3D1.4 does take into account six charged offenses and the district court engaged in impermissible double-counting when it departed upward based upon Mr. Dawson’s sixth charged bank robbery.\nB. Raising the Offense Level by Including Nonconvicted Criminal Conduct in the Multiple-Count Sentencing Calculation\nWhen he surrendered to the FBI, Mr. Dawson confessed to five additional federal bank robberies. After hearing testimony from an FBI agent regarding these additional crimes and after reviewing the PSR, the district court decided to depart upward from the Guidelines. The district court prefaced its upward departure by stating that “there is prior similar adult criminal conduct not resulting in a criminal conviction that also warrant an upward departure.” Tr. at 79. The court then took these five robberies, gave a value of one unit to each of them, and added them to the units already calculated under the multiple-count grouping provision, § 3D1.4. The district court did not explain why it chose to feed the five uncharged offenses back into the multiple-count grouping provision instead of departing upward in the criminal history category. This method of upward departure raised Mr. Dawson’s offense level significantly.\nMr. Dawson believes that the court should not have departed upward by counting the five uncharged federal bank robberies in the multiple-count grouping provision, effectively increasing his offense level one for one with the uncharged offenses rather than elevating his criminal history. Mr. Dawson argues that § 3D1.4 may only be used for crimes for which a defendant has been convicted; it cannot be used to depart upward from the Guidelines’ sentencing range on the basis of unconvicted offenses. Mr. Dawson relies on the prefatory language in the Introductory Commentary to the Multiple Counts part of the Sentencing Guidelines. The Commentary states that “[t]his Part provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.” U.S.S.G. Section 3, Part D-Multiple Counts, Introductory Commentary. Moreover, had the district court used these additional crimes to depart upward in his criminal history category, Mr. Dawson claims that the court should have applied the Schmude analysis to extrapolate beyond Category VI as it did for the consolidated state crimes. Appellant’s Br. at 12.\nThe government contends, however, that the multiple-counts section of the Sentencing Guidelines does not specifically prohibit consideration of unconvicted criminal offenses. The government argues that the application of § 3D1.4 is not restricted to offenses of conviction. The government contends that any contrary interpretation would eviscerate § 4A1.3(e) which allows upward departure if the criminal history category does not adequately take into account prior similar adult criminal conduct not resulting in a criminal conviction.\nThe government’s argument misses the focal point of Mr. Dawson’s appeal. Mr. Dawson is not arguing that unconvicted conduct can never be the basis for an upward departure; on the contrary, Mr. Dawson contends that the district court could have used his five additional robberies to depart upward in his criminal history category. Mr. Dawson argues only that in these circumstances an upward departure in his offense level based upon § 3D1.4 is improper. We agree.\nMr. Dawson’s offense level should not have been raised by the inclusion of unconvicted offenses in the multiple-count grouping provision. The government argues that in United States v. Chase, 894 F.2d 488 (1st Cir. 1990), the court approved of an offense level elevation based upon nine additional robberies excluded from consideration under § 3D1.4. Chase is easily distinguishable from the situation that confronts this court. In Chase, fifteen counts of bank robbery were included in the indictment and the defendant pleaded guilty to all fifteen. Thus, the sentencing court appropriately included those counts in the § 3D1.4 analysis. By contrast, Mr. Dawson merely confessed to committing five other robberies; he was never charged with the offenses and he never pleaded guilty to them. Had Mr. Dawson stipulated to commission of the five additional robberies in his guilty plea, our decision would be different. However, Mr. Dawson’s guilty plea contained no stipulations regarding the uncharged robberies.\nIt is certainly true that some unconvicted conduct may be used to elevate a defendant’s offense level. Under § lB1.3(a)(2), offense conduct and adjustments to the offense level are determined “solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction....” We have interpreted this section to mean\nthat when the Guidelines provide tables that cumulate the amount sold or stolen, any acts that “were part of the same course of conduct or common scheme or plan as the offense of conviction” should be included in the computation of the amount on which the offense level depends, whether or not the defendant was convicted of selling or stealing these additional amounts.\nUnited States v. White, 888 F.2d 490, 497 (7th Cir.1989) (quoting U.S.S.G. § lB1.3(a)(2)). The cross-reference to the multiple-count grouping provision, therefore, is designed to encompass only particular offenses of a character for which the multiple-count rules would require grouping. These are acts for which the Guidelines, for the most part, base an offense level on quantity. See United States v. Atterson, 926 F.2d 649, 660 (7th Cir.) (stating that “when the Guidelines provide tables that cumulate the amount sold or stolen,” acts that are part of the same course of conduct as the conviction are to be included in the calculation of the offense level, without reference to conviction) (citing White, 888 F.2d at 497), cert. denied sub nom. Laurelez v. United States, — U.S. -, 111 S.Ct. 2909, 115 L.Ed.2d 1072 (1991); see also U.S.S.G. § 1B1.3, Background. As Chief Judge Breyer of the First Circuit has noted, other crimes for which sentencing is not based on fungible quantities and for which a defendant has not been convicted, such as murder or bank robbery, are not included in the calculation of the offense level “unless the government separately charges and obtains conviction for these acts.” United States v. Blanco, 888 F.2d 907, 911 (1st Cir.1989) (noting with approval the decision in White); see also § 3D 1.2(d) (listing offenses that are excluded from grouping, such as robbery).\nIn sum, the district court here apparently deemed Mr. Dawson’s five uncharged bank robberies as demonstrating the inadequacy of Mr. Dawson’s criminal history category. However, instead of departing upward by elevating further the criminal history category, the district court departed upward in offense levels. While offense level adjustments may be made under § IB 1.3 for certain types of offenses, this circuit’s decision in White, confirmed by the First Circuit’s decision in Blanco, establishes that use of this approach for bank robbery offenses is not contemplated by the Guidelines. Thus, the district court could not have premised its upward departure on this methodology.\nFinally, we note that neither the district court nor the government suggests that, on this record, the sentence calculation can be justified as an upward departure based on U.S.S.G. § 5K2.0 (Policy Statement). This section provides for upward departure when an aggravating circumstance exists “relating to the manner, effect, or other characteristics of the offense” of a kind not contemplated by the guideline for the offense of conviction. United States v. Uccio, 940 F.2d 753, 759 (2d Cir.1991). However, the uncharged misconduct that constitutes the aggravating circumstance must be related to the offense of conviction. By its plain wording, § 5K2.0 is limited to consideration of acts that, though not shown by prior sentencing patterns to be “empirically important in relation to the particular offense [of conviction] ... may [nonetheless] infrequently occur in connection with a particular crime_” U.S.S.G. Ch. 1, pt. A(4)(b) at 6 (1991) (Policy Statement). It is also important to note that the Commission carefully specified the different ways in which misconduct not resulting in conviction could be taken into account in determining punishment. The Commission has identified the sort of uncharged conduct that ought to result in an offense level adjustment. Thus, only infrequently will there be circumstances in which offense level upward departures under § 5K2.0 will be appropriate. Id. This arrangement reflects, as Chief Judge Breyer pointed out in Blanco, a carefully tuned compromise between “charge offense” sentencing and “real offense” sentencing. 888 F.2d at 911.\nWe do not want to preclude prematurely the district court’s consideration of § 5K2.0 on remand. Nevertheless, we emphasize that, in order to justify the use of such a methodology, the district court must first find that enhancement of the criminal history category is not appropriate. The district court must also conclude that the uncharged offenses are related to the offenses of conviction. See United States v. Uccio, 917 F.2d 80, 86 (2d Cir.1990). Furthermore, if the district court decides to depart in this fashion, it must do so within the context of the guidelines. As Judge Kearse has noted:\n[Sentencing judges [must] measure the extent of [§ 5K2.0] departures by reference to the penalties that would have been provided by the Guidelines if the misconduct at issue had resulted in a federal conviction, in order that “an act that need be proven only by a preponderance of evidence, ... [not] result in more punishment than would be called for if the act had been proven beyond a reasonable doubt and had resulted in conviction.”\nUccio, 940 F.2d at 759-60 (quoting United States v. Kim, 896 F.2d 678, 684 (2d Cir.1990)).\nC. Remand for Resentencing\nThe district court erred in its methodology and we cannot be certain that these errors were harmless. The Supreme Court has stated that in these circumstances, remand for resentencing is necessary:\n[T]he party challenging the sentence on appeal, although it bears the initial burden of showing that the district court relied upon an invalid factor at sentencing, does not have the additional burden of proving that the invalid factor was determinative in the sentencing decision. Rather, once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.\nWilliams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992); see also United States v. Mount, 966 F.2d 262, 265 (7th Cir.1992) (quoting Williams and stating that remand is appropriate unless error was harmless).\nIf the district court had not erred in its methodology, it may have reached a different sentence. In coming to this conclusion, we note that a sentencing court has latitude within the applicable sentencing range in which to identify an appropriate term of incarceration. Thus, we cannot state with certainty that had the district court not erred, it would have sentenced Mr. Dawson to the same term of imprisonment.\nConclusion\nFor the foregoing reasons, we remand this case to the district court for resentencing in accordance with this opinion.\nRemanded for Resentencing.\n. The FBI report listed Mr. Dawson’s series of bank robberies as: (1) April 25, 1991, stole money by pretense from a Merchants National Bank in Indianapolis, Indiana; (2) May 24, 1991, robbed an Indiana National Bank in Indianapolis; (3) May 28, 1991, robbed a Merchants National Bank in Indianapolis; (4) May 30, 1991, robbed an Indiana National Bank in Indianapolis; (5) June 4, 1991, robbed an Indiana National Bank in Indianapolis; (6) June 5, 1991, robbed a Charter Oak Federal Savings Bank in Cincinnati, Ohio; (7) June 7, 1991, robbed a Central Trust Bank in Covington, Kentucky; (8) June 10, 1991, robbed a Citizens Federal Savings and Loan in Dayton, Ohio; (9) June 11, 1991, robbed a Merchants National Bank in Indianapolis; (10) June 14, 1991, robbed a Shelby Federal Savings Bank in Indianapolis; and (11) June 17, 1991, robbed a Merchants National Bank in Indianapolis. R. 20 at Attachment 1.\n. U.S.S.G. § 3D 1.4 is the Guideline provision for determining the combined offense level for multiple counts. The section states in pertinent part:\nThe combined offense level is determined by taking the offense level applicable to the Group with the highest offense level and increasing that offense level by the amount indicated in the following table:\nNumber of Units Increase in Offense Level\n1 none\n\\'h ' add 1 level\n2 add 2 levels\n214-3 add 3 levels\n314-5 add 4 levels\nMore than 5 add 5 levels.\n. In United States v. Schmude, 901 F.2d 555, 560 (7th Cir.1990), this court noted that upward departures must correspond with the Sentencing Guidelines' inherent framework. However, if a defendant has already reached the highest criminal history category, there is no other Guidelines procedure upon which a sentencing court can base an upward departure. Id. Thus; the degree of departure becomes solely a question of reasonableness. Id. Schmude, however, sets forth a method by which departures beyond Criminal History Category VI can be made in a principled and reasonable manner. Schmude noted that\n[f\|or any given offense level, the Guidelines sentencing range increases roughly ten to fifteen percent from one Criminal History Category to the next higher category. In the case of a Category VI defendant, a sentencing judge can use this ten to fifteen percent increase to guide the departure. For example, if the grounds justifying a conclusion that Category VI is inadequate would normally have warranted a one category increase in the defendant's Criminal History Category, the sentencing judge should consider sentencing the defendant within a range ten to fifteen percent higher than the range corresponding to Criminal History Category VI.\nId.; see also United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.1990) (stating that in approximating higher criminal history categories, \"[a] judge who runs out of criminal history levels may read down to find the next higher range”).\n. See infra note 9 for further discussion of this miscalculation.\n. The court calculated the upward departure based upon the sixth charged bank robbery and the five uncharged bank robberies by stating that\n[bjecause of the grouping arrangements, we had six bank robberies that were dropped to five.\nI will consider that additional bank robbery for purposes of an upward departure and add to that the additional federally investigated offenses about which Mr. Osborne testified and the three other federal offenses that were committed in other federal districts, one on June 5 th; one on June 7th; and one on June 10th; the two about which Mr. Osborne testified that he investigated occurred on April 5th and June 14th. And I will take those six additional bank robberies ... and assign one unit to each ... [and add] those six units to the total number of units of six that are already provided for in paragraph 60 [of the presentence report]. The combined adjusted offense level becomes 37.\nTr. at 80. Thus, the court counted the sixth charged bank robbery twice.\n. On the sentencing range chart, Mr. Dawson's sentence is found at the intersection of Criminal History Category VI and Offense Level 37.\n. This was actually the amended sentence. The district court corrected a technical error in the original judgment order and neither party alleges any error by this action. Because we are remanding this case for resentencing, we shall not address the propriety of the district court’s amendment.\n. See supra note 2 for the pertinent language of § 3D1.4.\n. As noted earlier in this opinion, the district court also engaged impermissibly in double-counting when it added these units to the units already calculated under § 3D 1.4. Mr. Dawson had a total of six charged offenses. The presen-tence report thus determined that the total number of units under the provision was six, and this number translated into a five-level increase in his offense level'. The court then departed upward by adding six units (five units representing the five uncharged offenses and one unit representing the sixth charged robbery that the court believed was not taken into account in the multiple-grouping provision) to the total number of six units already calculated. This constituted double-counting. The sixth charged robbery was already included in the six units noted in the presentence report.\n. In Chapter Four of the Sentencing Guidelines regarding criminal history, § 4A1.3 specifically states that if reliable information concerning \"prior similar adult criminal conduct not resulting in a criminal conviction” indicates that the \"criminal history category does not adequately reflect the seriousness of defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes,” then the court may depart upward.\n. U.S.S.G. § IB 1.2(c) states that \"[a] conviction by a plea of guilty or nolo contendere containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s).” Moreover, the Commentary to the section notes that in the case of a stipulation to the commission of additional offense(s), the guidelines are to be applied as if the defendant had been convicted of an additional count for each of the offenses stipulated. For example, if the defendant is convicted of one count of robbery but, as part of a plea agreement, admits to having committed two additional robberies, the guidelines are to be applied as if the defendant had been convicted of three counts of robbery.\nU.S.S.G. § 1B1.2, Application Note 4; see United States v. Eske, 925 F.2d 205, 207 (7th Cir.1991) (stating that where defendant had stipulated as part of his plea agreement to the commission of two additional robberies, those offenses were to be treated as offenses of conviction and included in the offense level calculation). This section also may serve to trigger application of the multiple-count provisions.\n. Moreover, we must note that as Mr. Dawson has pointed out, the prefatory comments to the multiple-count provisions of the Sentencing Guidelines state that \"[t]his Part provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.\" § 3, Part D-Multiple Counts, Introductory Commentary (emphasis added). This principle is echoed in the Commentary to § IB 1.3, which states that while the multiple-counts provision applies to multiple counts of conviction, the scope of § lB1.3(a)(2) is not limited to counts upon which a defendant has been convicted. U.S.S.G. § 1B1.3, Application Note 2.\n. See supra text at 5.\n. See United States v. DeFelippis, 950 F.2d 444, 448 (7th Cir.1991) (noting with disapproval an increase in offense level for reasons related to criminal history); United States v. Paccione, 949 F.2d 1183, 1205 (2d Cir.1991) (stating that uncharged environmental offenses could not be used to increase offense levels under the multiple-count rules where indictment had not charged defendants with violations of federal environmental laws), cert. denied, - U.S. -, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992).\n. In United States v. Kim, 896 F.2d 678, 684 (2d Cir.1990), the court noted, albeit in dictum, that there may be circumstances \"where a defendant commits a series of bank robberies so close together in time that it would be artificial to consider their ‘prior’ acts for purposes of section 4A1.3 just because the defendant pled to the last in the series....” This dictum was based on a previous edition of the Guidelines and it is also important to note that the court stated that \"[t]he relationship that justifies [a § 5K2.0] departure [in offense level] ... must be more than temporal....\" Id. Kim also relied on United States v. Coe, 891 F.2d 405, 409-10 (2d Cir.1989). In Coe, however, the defendant had stipulated to the other three bank robberies. 891 F.2d at 408. See supra note 11 and accompanying text.", "type": "majority", "author": "RIPPLE, Circuit Judge."}, {"text": "CRABB, Chief District Judge,\nconcurring.\nI agree that the district court erred in ruling that defendant’s sixth bank robbery had not been “considered” under the Sentencing Guidelines when § 3D1.4 provides explicitly that five levels are to be added for “more than 5” units of offenses. (Section 3D 1.4 reflects a declining punishment scheme: 4 levels are added for to 5 units; 3 levels are added for 23é to 3, etc.). I write separately, however, because I disagree with what I understand to be the majority’s conclusion that a sentencing court should not use § 5K2.0 for upward departure in a case like this unless the court finds first that enhancement of the defendant’s criminal history is not appropriate. To the contrary, I think § 5K2.0 is available and that a sentencing court could look to § 3D1.4 for guidance in calculating a reasonable upward departure under § 5K2.0.\nSection 5K2.0 is a policy statement on grounds for departure. It incorporates the intent of 18 U.S.C. § 3553(b) that sentencing courts may impose sentences outside the ranges established by the sentencing guideline, if the court finds “that there exists an aggravating or mitigating circumstance of a kind; or to a degree, not adequately taken into consideration by the Sentencing Commission....” The majority suggests that the use of § 5K2.0 is not appropriate in this case because the aggravating circumstance is not related to the offense of conviction. In my opinion, the number of times a person commits the same offense is a factor closely related to the underlying offense. See United, States v. Chase, 894 F.2d 488, 491 (1st Cir.1990) (large number of robberies committed by defendant is aggravating circumstance of type contemplated in 18 U.S.C. § 3553(b)). Section 5K2.0 contemplates departure even where a factor has been taken into account if the “factor is present to a degree substantially in excess of that which ordinarily is involved in the offense.”\nA review of the guidelines shows that the Sentencing Commission did not take into consideration the kind of crime spree perpetrated by this defendant. Section 3D 1.4 makes no provision for 17 armed robberies: the table provides for adding only one level for any number “more than 5.” The commission acknowledges that a court would have to depart; it notes explicitly that a departure may be warranted “in the unusual case where the additional offenses resulted in a total significantly more than 5 Units.” See, e.g., United States v. Chase, 894 F.2d 488 (proper to depart upward using § 3D1.4 as guide where defendant committed 15 bank robberies).\nThe majority objects to using § 3D1.4 to make an offense level adjustment using conduct to which the defendant has not pleaded, and adds that the additional robberies are not the sort of uncharged conduct that would result in an offense level adjustment, because the Sentencing Commission treats armed robberies and other crimes of violence as separate offenses and does not group them with other relevant conduct as it does crimes involving money or drugs. I have no quarrel with either of these propositions. I simply do not agree that a sentencing court would be making an offense level adjustment if it used § 3D1.4 as a guide to structuring an upward departure, once it has determined that a departure is proper. Then, § 3D1.4 would be an apt source of guidance for dealing with numerous contemporaneous offenses such as the additional armed robberies at issue in this case. The manner in which the commission weighs such offenses offers sentencing courts useful guidance in determining how to depart once the decision has been made to do so.\nMy reading of United States v. Schmude, 901 F.2d 555 (7th Cir.1990), is that this court approved the extrapolation of criminal history categories as one way of fashioning an upward departure but that it did not rule out every other approach. Indeed, this court said that “the question of degree of departure is solely one of reasonableness,” to be afforded a deferential standard of review, id. at 560, and added that reasonableness implies an effort “to fashion the degree of departure to correspond to the number and the nature of the factors which warrant departure.” Id.\nThe majority implies that reference to the offense table in § 3D1.4 for calculating upward departures would work to the detriment of the defendant. In fact, if done properly, it may have the opposite effect. According to U.S.S.G. Part D, Introductory Commentary, the table in § 3D1.4 is designed to produce incremental punishment for significant additional criminal conduct, with the amount of additional punishment declining as the number of crimes increases. (This is why the table assigns a three level increase for 2$ to 3 units of offense; a four level increase for to 5 units of offense; and only five levels for more than 5.) A court calculating an upward departure should not depart upward the equivalent of one entire offense level for each additional offense but should try to conform its departure to the declining punishment scheme in the table. Under this scheme, five additional offenses could translate reasonably into a two level upward departure. Were the district court to use this approach and consider only the additional federal robberies, the proper sentence would be in the range of 210-262 months. Starting with the offense level of 28 calculated by the probation office and a criminal history category VI, the court would add the equivalent of two additional criminal history categories for defendant’s inadequate criminal history and the equivalent of two offense levels for the aggravating circumstance of the five additional federal bank robberies that were not taken into consideration by the Sentencing Commission.\nAlternatively, the district court could use the methodology approved in Schmude, 901 F.2d 555, which is based on inadequacy of criminal history, § 4A1.3. Schmude contemplates that once a court has determined that an upward departure is warranted, the court will assess additional criminal history categories for the factors justifying departure. If the defendant is already in the highest category, then the court will extrapolate a criminal history category. Because each increase in a category represents roughly a ten to fifteen percent increase in the sentencing range, the sentencing court can depart upward to the range that corresponds to the hypothetical category it has selected.\nIt would be premature to say whether it would be reasonable for the district court to assess defendant one criminal history category increase for ea'ch of the five additional federal bank robberies to- which he did not plead. If the court did make such an assessment, defendant might be facing a maximum guideline sentence of 292-365 months. His adjusted criminal history category would be the equivalent of a category XIII, after starting with his original category of VI and adding the two-category increase for the consolidated state court sentences and a five-category increase for the federal bank robberies. At least in theory, defendant could be worse off under the Schmude methodology. However, it is arguable that it would be a violation of the spirit of the declining punishment policy of the guidelines to apply that methodology on a one-category increase for each crime basis in a situation like this where the court is dealing with closely related crimes.\nIn summary, I agree with the majority that this case must be remanded to the district court for resentencing, although I disagree with the implication that the district court cannot depart upward under § 5K2.0 unless it first determines that enhancement of criminal history is inappropriate. Also, I believe it would be proper for the district court to look to § 3D1.4 for guidance in structuring a reasonable upward departure for this defendant, taking into consideration the declining punishment scheme reflected in that section.\n. It is arguable that assessing defendant one criminal history category increase for each federal bank -robbery is not reasonable, given the incremental punishing approach followed throughout the Sentencing Guidelines. Not only is this true of § 3D 1.4; it is reflected as well in § 4A1.1 (f) (criminal history). Under § 4Al.l(f), a sentencing court is limited to 3 points when adding points for prior sentences resulting from a conviction of a crime of violence that did not receive points under other sections of § 4A1.1 - because the sentence was considered related to another one resulting from a conviction of a crime of violence.", "type": "concurrence", "author": "CRABB, Chief District Judge,"}], "attorneys": ["James M. Warden, Asst. U.S. Atty., Kathleen M. Sweeney (argued), Office of the U.S. Atty., Indianapolis, IN, for plaintiff-appellee.", "Jack F. Crawford (argued), Indianapolis, IN, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Anthony W. DAWSON, Defendant-Appellant.\nNo. 92-1934.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Nov. 10, 1992.\nDecided July 2, 1993.\nJames M. Warden, Asst. U.S. Atty., Kathleen M. Sweeney (argued), Office of the U.S. Atty., Indianapolis, IN, for plaintiff-appellee.\nJack F. Crawford (argued), Indianapolis, IN, for defendant-appellant.\nBefore POSNER and RIPPLE, Circuit Judges, and CRABB, Chief District Judge.\nThe Honorable Barbara B. Crabb, of the Western District of Wisconsin, is sitting by designation."}	POSNER	RIPPLE	CRABB	1	2	1	0	1	0	1 F.3d 457	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Anthony W. DAWSON, Defendant-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-02\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nRIPPLE, Circuit Judge.\nAnthony Dawson pleaded guilty to six counts of bank robbery in violation of 18 Ú.S.C. § 2113(a) and (d) and one count of possession and use of a firearm in the commission of a crime of violence in violation of 18 U.S.C. § 924(c). Mr. Dawson had also committed numerous other uncharged robberies and had an extensive record of past criminal conduct. The district court departed upward from the otherwise applicable sentencing range. Mr. Dawson was sentenced to 360 months of imprisonment for the six bank robberies to which he pleaded guilty, an additional mandatory consecutive sentence of sixty months on the firearm count, five years of supervised release, and restitution in the amount of $17,319.00. Mr. Dawson appeals the district court’s upward departure. After reviewing the sentencing record, we believe that the district court erred in its methodology and imposed a sentence on Mr. Dawson that contravenes the Sentencing Guidelines. Accordingly, we remand this case for resen-tencing.\nI\nBACKGROUND\nA. Facts\nMr. Dawson has a long and varied criminal history during which he has consistently committed theft offenses in order to finance his drug use. From April 25, 1991, to June 17, 1991, Mr. Dawson committed a series of bank robberies that encompassed three different states. He committed eight bank robberies in Indianapolis, Indiana, and he robbed three other banks in Ohio and Kentucky. Mr. Dawson managed to elude police despite the fact that he did not wear a disguise when he robbed the banks, that he left identifiable fingerprints on the counter of one bank, and that at least once he signed a deposit slip with his own name and left it at one of the banks that he robbed.\nBelieving that Mr. Dawson was going to be killed eventually, his aunt convinced him to surrender to authorities. Early in the morning of June 25, 1991, Mr. Dawson gave himself up to the FBI. He confessed committing seventeen robberies: eleven bank robberies (which were federal crimes) and six other robberies (which were state crimes) that had occurred either in business establishments or on the streets of Indianapolis.\nOn July 11,1991, Mr. Dawson was indicted on six counts of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and six counts of using or carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). These counts were all based on bank robberies that had occurred in Indianapolis. Mr. Dawson initially gave notice to the government that he would use an insanity defense at trial. However, on January 31, 1992, Mr. Dawson pleaded guilty to all six counts of bank robbery and to one count of the firearm offense.\nB. District Court Proceedings\nOn April 10, 1992, the district court conducted a sentencing hearing. The Probation Office drafted a presentence report (PSR) on Mr. Dawson and determined that he had an adjusted offense level of 28, while his extensive past criminal conduct placed him in the highest criminal history category, Category VI. Thus, the applicable sentencing range was 140-175 months’ imprisonment. The Probation Office, however, recommended an upward departure because Mr. Dawson’s criminal history inadequately reflected the seriousness of his past criminal conduct and the likelihood of recidivism. Specifically, the recommendation noted that Mr. Dawson had been charged with only six of the numerous bank robberies to which he had confessed. Moreover, the PSR stated that the sixth charged robbery was not taken into consideration under § 3D1.4 of the United States Sentencing Guidelines’ multiple-count grouping provisions. Mr. Dawson had also confessed to six state robberies upon which he had yet to be charged; he had been convicted previously of three state felonies that had been consolidated for sentencing and thus did not receive full consideration under the Guidelines; and he also had three prior convictions that were too old for inclusion under the Guidelines. Additionally, at the sentencing hearing, the government argued for an enhancement based on the alleged extreme psychological injury to several bank tellers who were victims of Mr. Dawson’s trail of robberies.\nAt the sentencing hearing, Mr. Dawson restated his written objections to all of the recommendations for upward departure contained in the PSR, as well as the government’s attempt to show that the bank tellers suffered from extreme psychological injury. Mr. Dawson contended that his prior criminal history was adequately taken into account by the provisions of the Sentencing Guidelines. He argued that a criminal history category of VI is such a serious designation that it did adequately reflect his past criminal conduct. Moreover, Mr. Dawson argued that neither the charged nor the uncharged robberies could serve to enhance his sentence because the multiple-count grouping provisions of the Sentencing Guidelines already contemplate the commission of multiple offenses and, therefore, no upward departure was justified.\nThe district court, however, agreed with the recommendation in the PSR that an upward departure was appropriate. The district court prefaced Mr. Dawson’s sentencing hearing by stating that his criminal history category, as calculated under the Sentencing Guidelines, was inadequate. Tr. at 78. The court found that the calculated sentencing range did not fully reflect Mr. Dawson’s past criminal conduct or his likelihood of recidivism. In its departure calculations, the court did not rely upon the six state robbery confessions, the three old convictions, or the alleged extreme psychological injury of the bank tellers. Instead, the court departed upward on the basis of the three prior state convictions that had been consolidated for sentencing, on the five uncharged federal bank robberies, and on the sixth charged bank robbery that allegedly was not addressed under § 3D1.4. In making the upward departure, the court specifically stated that\nthere have been prior sentences that were not used in computing the criminal history category with reference to the consolidated state counts, and there is prior similar adult criminal conduct not resulting in a criminal conviction that also warrant an upward departure.\nTr. at 78-79. Because Mr. Dawson already qualified for the highest criminal history category, Category VI, any upward departure based upon the inadequacy of the criminal history computation had to be calculated outside the sentencing table. See U.S.S.G. § 4A1.3 (stating that in certain egregious cases, “a decision above the guideline range for a defendant with a Category VI criminal history may be warranted”).\nWith regard to the three prior offenses consolidated for sentencing, the district court noted that, had they not been .consolidated, six extra criminal history points would have been assessed against Mr. Dawson. The court departed upward by applying the six points to Mr. Dawson’s criminal history. However, because he was already in the highest criminal history category, the court increased his sentencing range fifteen percent for each category that it departed upward beyond Category VI. See United States v. Schmude, 901 F.2d 555 (7th Cir. 1990). The court found that this method resulted “in a two-level increase above the six.” Tr. at 79.\nThe court further departed upward based on both the limitations of the multiple-count grouping provision in the Guidelines and the five uncharged bank robberies that Mr. Dawson had admitted committing. Although Mr. Dawson had pleaded guilty to six bank robberies, § 3D1.4, which increases the offense level for grouped offenses, only provides for an increase of five levels. Thus, the court determined that the sixth bank robbery had not been taken into account under the grouping provision. The court departed upward based on the sixth bank robbery count. Additionally, the court decided to depart upward again based on the five uncharged federal bank robberies. Tr. at 80. The court then apparently miscounted the robberies it was basing departure upon, and instead of adding six units to the five already provided for under the grouping provision, it added the six additional units to the gross number (six) of charged robberies. The court increased Mi’. Dawson’s offense level by twelve. This miscalculation resulted in a combined adjusted offense level of 37. Mr. Dawson was, however, granted a two-level reduction for acceptance of responsibility. All of these calculations produced an offense level of 35.\nFinally, the court reached a sentencing range of 360 months to life by calculating an offense level of 35 and by dropping down two additional levels in Criminal History Category VI by virtue of the fifteen percent extrapolation method proposed in Schmude, The court sentenced Mr. Dawson to 360 months’ incarceration on the charged bank robberies, a mandatory consecutive term of sixty months’ incarceration for the firearm offense, restitution in the amount of $17,319 to be paid to the two victimized banks, and five years of supervised release.\nOn appeal, Mr. Dawson contends that the district court erred in two ways. First, he argues that the district court erred when it departed upward by adding offense levels based on the five uncharged bank robberies to which he confessed. Second, he contends that an upward departure that raises the applicable sentencing range from 140-175 months to 360 months to life is unreasonable and is unsupported by the facts.\nII\nANALYSIS\nPursuant to the jurisdiction granted this court under the Sentencing Reform Act, we review sentences for violations of law and for misapplications of the Sentencing Guidelines. See 18 U.S.C. § 3742(a) and (e). A sentence is to be imposed within the applicable guideline range “unless the [sentencing] court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b). In reviewing a court’s decision to depart upward, we review de novo “whether a district court’s stated grounds for departure may be relied on to justify the departure.” United States v. Willey, 985 F.2d 1342, 1349 (7th Cir.1993).\nMr. Dawson concedes that the district court correctly departed upward based upon the three prior state offenses that had been consolidated for sentencing; he does not appeal the departure premised on those grounds^ Moreover, he is satisfied that the district court appropriately used the Schmtide analysis to extrapolate from the Guidelines and go beyond Criminal History Category VI. Mr. Dawson does, however, urge us to find that the district court departed upward on improper grounds by using the sixth charged bank robbery and the five uncharged bank robberies to elevate his adjusted offense level. Instead, Mr. Dawson contends, the upward departure should have been premised upon additions to his criminal history category.\nA. Upward Departure by Adding the Sixth Charged Bank Robbery in the Multiple-Count Analysis\nMr. Dawson argues that the sixth charged robbery should not have been the basis for any upward departure because the Commentary to the multiple-count grouping provision, § 3D1.4, states that “[i]nasmuch as the maximum increase provided in the guideline is five levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than five Units.” § 3D1.4, Background Commentary. Mr. Dawson contends that six robberies is not significantly more than five; therefore, the sixth robbery is adequately addressed by the guideline and the district court should not have departed upward based on this count.\nThe government, on the other hand, argues that the sixth charged and the five uncharged bank robberies together constitute an amount significantly more than five units and, under § 3D1.4 were correctly used to depart upward. Otherwise, the government avers, “counting only five of the eleven federally based offenses covers less than one-half of the identified robberies.” Appellee’s Br. at 15.\nThe district court believed that the sixth charged bank robbery was not considered in the guideline computation under § 3D1.4. The court specifically stated that, “[bjecause of the grouping arrangements, we had six bank robberies that were dropped to five.” Tr. at 80. Thus, the court determined that an upward departure based upon the sixth bank robbery count was appropriate. We respectfully disagree.\nUnder the grouping provisions of the Guidelines, counts may be grouped together and a combined offense level will be calculated in accordance with § 3D1.4. Under that section, as more units are included, there is an arithmetic increase in offense levels. As noted above, the Background Commentary to § 3D 1.4 states that “[ijnasmuch as the maximum increase provided in the guidelines is 5 levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units.” However, this language should not be construed to mean that § 3D1.4 does not take into account an offense level increase for a sixth offense unit. On the contrary, the offense level is increased by five when six units are included in the calculation. Section 3D1.4 provides that for 3 Jé to 5 units, the offense level is increased 4 levels; similarly, for more than 5 units, the offense level is increased by 5. Thus, the section does not ignore or discount a sixth charged offense. See United States v. Pearson, 911 F.2d 186, 190 (9th Cir.1990) (stating that under § 3D1.4, defendant’s first six offenses were taken into account while the seventh and eighth were not considered in the guideline prior to departure); United States v. Chase, 894 F.2d 488, 491 (1st Cir.1990) (noting that § 3D1.4 encompasses six counts of bank robbery, but upward departure necessary where defendant had nine additional counts to which he had pleaded guilty).\nThe district court may have misconstrued this section because the amount of increase does not correspond exactly to the number of units considered. However, the Sentencing Commission created this disparity by providing that no increase in offense level is allowed for the first unit; increases in offense level begin only when one and a half units have been assessed. Thus, § 3D1.4 does take into account six charged offenses and the district court engaged in impermissible double-counting when it departed upward based upon Mr. Dawson’s sixth charged bank robbery.\nB. Raising the Offense Level by Including Nonconvicted Criminal Conduct in the Multiple-Count Sentencing Calculation\nWhen he surrendered to the FBI, Mr. Dawson confessed to five additional federal bank robberies. After hearing testimony from an FBI agent regarding these additional crimes and after reviewing the PSR, the district court decided to depart upward from the Guidelines. The district court prefaced its upward departure by stating that “there is prior similar adult criminal conduct not resulting in a criminal conviction that also warrant an upward departure.” Tr. at 79. The court then took these five robberies, gave a value of one unit to each of them, and added them to the units already calculated under the multiple-count grouping provision, § 3D1.4. The district court did not explain why it chose to feed the five uncharged offenses back into the multiple-count grouping provision instead of departing upward in the criminal history category. This method of upward departure raised Mr. Dawson’s offense level significantly.\nMr. Dawson believes that the court should not have departed upward by counting the five uncharged federal bank robberies in the multiple-count grouping provision, effectively increasing his offense level one for one with the uncharged offenses rather than elevating his criminal history. Mr. Dawson argues that § 3D1.4 may only be used for crimes for which a defendant has been convicted; it cannot be used to depart upward from the Guidelines’ sentencing range on the basis of unconvicted offenses. Mr. Dawson relies on the prefatory language in the Introductory Commentary to the Multiple Counts part of the Sentencing Guidelines. The Commentary states that “[t]his Part provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.” U.S.S.G. Section 3, Part D-Multiple Counts, Introductory Commentary. Moreover, had the district court used these additional crimes to depart upward in his criminal history category, Mr. Dawson claims that the court should have applied the Schmude analysis to extrapolate beyond Category VI as it did for the consolidated state crimes. Appellant’s Br. at 12.\nThe government contends, however, that the multiple-counts section of the Sentencing Guidelines does not specifically prohibit consideration of unconvicted criminal offenses. The government argues that the application of § 3D1.4 is not restricted to offenses of conviction. The government contends that any contrary interpretation would eviscerate § 4A1.3(e) which allows upward departure if the criminal history category does not adequately take into account prior similar adult criminal conduct not resulting in a criminal conviction.\nThe government’s argument misses the focal point of Mr. Dawson’s appeal. Mr. Dawson is not arguing that unconvicted conduct can never be the basis for an upward departure; on the contrary, Mr. Dawson contends that the district court could have used his five additional robberies to depart upward in his criminal history category. Mr. Dawson argues only that in these circumstances an upward departure in his offense level based upon § 3D1.4 is improper. We agree.\nMr. Dawson’s offense level should not have been raised by the inclusion of unconvicted offenses in the multiple-count grouping provision. The government argues that in United States v. Chase, 894 F.2d 488 (1st Cir. 1990), the court approved of an offense level elevation based upon nine additional robberies excluded from consideration under § 3D1.4. Chase is easily distinguishable from the situation that confronts this court. In Chase, fifteen counts of bank robbery were included in the indictment and the defendant pleaded guilty to all fifteen. Thus, the sentencing court appropriately included those counts in the § 3D1.4 analysis. By contrast, Mr. Dawson merely confessed to committing five other robberies; he was never charged with the offenses and he never pleaded guilty to them. Had Mr. Dawson stipulated to commission of the five additional robberies in his guilty plea, our decision would be different. However, Mr. Dawson’s guilty plea contained no stipulations regarding the uncharged robberies.\nIt is certainly true that some unconvicted conduct may be used to elevate a defendant’s offense level. Under § lB1.3(a)(2), offense conduct and adjustments to the offense level are determined “solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction....” We have interpreted this section to mean\nthat when the Guidelines provide tables that cumulate the amount sold or stolen, any acts that “were part of the same course of conduct or common scheme or plan as the offense of conviction” should be included in the computation of the amount on which the offense level depends, whether or not the defendant was convicted of selling or stealing these additional amounts.\nUnited States v. White, 888 F.2d 490, 497 (7th Cir.1989) (quoting U.S.S.G. § lB1.3(a)(2)). The cross-reference to the multiple-count grouping provision, therefore, is designed to encompass only particular offenses of a character for which the multiple-count rules would require grouping. These are acts for which the Guidelines, for the most part, base an offense level on quantity. See United States v. Atterson, 926 F.2d 649, 660 (7th Cir.) (stating that “when the Guidelines provide tables that cumulate the amount sold or stolen,” acts that are part of the same course of conduct as the conviction are to be included in the calculation of the offense level, without reference to conviction) (citing White, 888 F.2d at 497), cert. denied sub nom. Laurelez v. United States, — U.S. -, 111 S.Ct. 2909, 115 L.Ed.2d 1072 (1991); see also U.S.S.G. § 1B1.3, Background. As Chief Judge Breyer of the First Circuit has noted, other crimes for which sentencing is not based on fungible quantities and for which a defendant has not been convicted, such as murder or bank robbery, are not included in the calculation of the offense level “unless the government separately charges and obtains conviction for these acts.” United States v. Blanco, 888 F.2d 907, 911 (1st Cir.1989) (noting with approval the decision in White); see also § 3D 1.2(d) (listing offenses that are excluded from grouping, such as robbery).\nIn sum, the district court here apparently deemed Mr. Dawson’s five uncharged bank robberies as demonstrating the inadequacy of Mr. Dawson’s criminal history category. However, instead of departing upward by elevating further the criminal history category, the district court departed upward in offense levels. While offense level adjustments may be made under § IB 1.3 for certain types of offenses, this circuit’s decision in White, confirmed by the First Circuit’s decision in Blanco, establishes that use of this approach for bank robbery offenses is not contemplated by the Guidelines. Thus, the district court could not have premised its upward departure on this methodology.\nFinally, we note that neither the district court nor the government suggests that, on this record, the sentence calculation can be justified as an upward departure based on U.S.S.G. § 5K2.0 (Policy Statement). This section provides for upward departure when an aggravating circumstance exists “relating to the manner, effect, or other characteristics of the offense” of a kind not contemplated by the guideline for the offense of conviction. United States v. Uccio, 940 F.2d 753, 759 (2d Cir.1991). However, the uncharged misconduct that constitutes the aggravating circumstance must be related to the offense of conviction. By its plain wording, § 5K2.0 is limited to consideration of acts that, though not shown by prior sentencing patterns to be “empirically important in relation to the particular offense [of conviction] ... may [nonetheless] infrequently occur in connection with a particular crime_” U.S.S.G. Ch. 1, pt. A(4)(b) at 6 (1991) (Policy Statement). It is also important to note that the Commission carefully specified the different ways in which misconduct not resulting in conviction could be taken into account in determining punishment. The Commission has identified the sort of uncharged conduct that ought to result in an offense level adjustment. Thus, only infrequently will there be circumstances in which offense level upward departures under § 5K2.0 will be appropriate. Id. This arrangement reflects, as Chief Judge Breyer pointed out in Blanco, a carefully tuned compromise between “charge offense” sentencing and “real offense” sentencing. 888 F.2d at 911.\nWe do not want to preclude prematurely the district court’s consideration of § 5K2.0 on remand. Nevertheless, we emphasize that, in order to justify the use of such a methodology, the district court must first find that enhancement of the criminal history category is not appropriate. The district court must also conclude that the uncharged offenses are related to the offenses of conviction. See United States v. Uccio, 917 F.2d 80, 86 (2d Cir.1990). Furthermore, if the district court decides to depart in this fashion, it must do so within the context of the guidelines. As Judge Kearse has noted:\n[Sentencing judges [must] measure the extent of [§ 5K2.0] departures by reference to the penalties that would have been provided by the Guidelines if the misconduct at issue had resulted in a federal conviction, in order that “an act that need be proven only by a preponderance of evidence, ... [not] result in more punishment than would be called for if the act had been proven beyond a reasonable doubt and had resulted in conviction.”\nUccio, 940 F.2d at 759-60 (quoting United States v. Kim, 896 F.2d 678, 684 (2d Cir.1990)).\nC. Remand for Resentencing\nThe district court erred in its methodology and we cannot be certain that these errors were harmless. The Supreme Court has stated that in these circumstances, remand for resentencing is necessary:\n[T]he party challenging the sentence on appeal, although it bears the initial burden of showing that the district court relied upon an invalid factor at sentencing, does not have the additional burden of proving that the invalid factor was determinative in the sentencing decision. Rather, once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.\nWilliams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992); see also United States v. Mount, 966 F.2d 262, 265 (7th Cir.1992) (quoting Williams and stating that remand is appropriate unless error was harmless).\nIf the district court had not erred in its methodology, it may have reached a different sentence. In coming to this conclusion, we note that a sentencing court has latitude within the applicable sentencing range in which to identify an appropriate term of incarceration. Thus, we cannot state with certainty that had the district court not erred, it would have sentenced Mr. Dawson to the same term of imprisonment.\nConclusion\nFor the foregoing reasons, we remand this case to the district court for resentencing in accordance with this opinion.\nRemanded for Resentencing.\n. The FBI report listed Mr. Dawson’s series of bank robberies as: (1) April 25, 1991, stole money by pretense from a Merchants National Bank in Indianapolis, Indiana; (2) May 24, 1991, robbed an Indiana National Bank in Indianapolis; (3) May 28, 1991, robbed a Merchants National Bank in Indianapolis; (4) May 30, 1991, robbed an Indiana National Bank in Indianapolis; (5) June 4, 1991, robbed an Indiana National Bank in Indianapolis; (6) June 5, 1991, robbed a Charter Oak Federal Savings Bank in Cincinnati, Ohio; (7) June 7, 1991, robbed a Central Trust Bank in Covington, Kentucky; (8) June 10, 1991, robbed a Citizens Federal Savings and Loan in Dayton, Ohio; (9) June 11, 1991, robbed a Merchants National Bank in Indianapolis; (10) June 14, 1991, robbed a Shelby Federal Savings Bank in Indianapolis; and (11) June 17, 1991, robbed a Merchants National Bank in Indianapolis. R. 20 at Attachment 1.\n. U.S.S.G. § 3D 1.4 is the Guideline provision for determining the combined offense level for multiple counts. The section states in pertinent part:\nThe combined offense level is determined by taking the offense level applicable to the Group with the highest offense level and increasing that offense level by the amount indicated in the following table:\nNumber of Units Increase in Offense Level\n1 none\n\\'h ' add 1 level\n2 add 2 levels\n214-3 add 3 levels\n314-5 add 4 levels\nMore than 5 add 5 levels.\n. In United States v. Schmude, 901 F.2d 555, 560 (7th Cir.1990), this court noted that upward departures must correspond with the Sentencing Guidelines' inherent framework. However, if a defendant has already reached the highest criminal history category, there is no other Guidelines procedure upon which a sentencing court can base an upward departure. Id. Thus; the degree of departure becomes solely a question of reasonableness. Id. Schmude, however, sets forth a method by which departures beyond Criminal History Category VI can be made in a principled and reasonable manner. Schmude noted that\n[f\|or any given offense level, the Guidelines sentencing range increases roughly ten to fifteen percent from one Criminal History Category to the next higher category. In the case of a Category VI defendant, a sentencing judge can use this ten to fifteen percent increase to guide the departure. For example, if the grounds justifying a conclusion that Category VI is inadequate would normally have warranted a one category increase in the defendant's Criminal History Category, the sentencing judge should consider sentencing the defendant within a range ten to fifteen percent higher than the range corresponding to Criminal History Category VI.\nId.; see also United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.1990) (stating that in approximating higher criminal history categories, \"[a] judge who runs out of criminal history levels may read down to find the next higher range”).\n. See infra note 9 for further discussion of this miscalculation.\n. The court calculated the upward departure based upon the sixth charged bank robbery and the five uncharged bank robberies by stating that\n[bjecause of the grouping arrangements, we had six bank robberies that were dropped to five.\nI will consider that additional bank robbery for purposes of an upward departure and add to that the additional federally investigated offenses about which Mr. Osborne testified and the three other federal offenses that were committed in other federal districts, one on June 5 th; one on June 7th; and one on June 10th; the two about which Mr. Osborne testified that he investigated occurred on April 5th and June 14th. And I will take those six additional bank robberies ... and assign one unit to each ... [and add] those six units to the total number of units of six that are already provided for in paragraph 60 [of the presentence report]. The combined adjusted offense level becomes 37.\nTr. at 80. Thus, the court counted the sixth charged bank robbery twice.\n. On the sentencing range chart, Mr. Dawson's sentence is found at the intersection of Criminal History Category VI and Offense Level 37.\n. This was actually the amended sentence. The district court corrected a technical error in the original judgment order and neither party alleges any error by this action. Because we are remanding this case for resentencing, we shall not address the propriety of the district court’s amendment.\n. See supra note 2 for the pertinent language of § 3D1.4.\n. As noted earlier in this opinion, the district court also engaged impermissibly in double-counting when it added these units to the units already calculated under § 3D 1.4. Mr. Dawson had a total of six charged offenses. The presen-tence report thus determined that the total number of units under the provision was six, and this number translated into a five-level increase in his offense level'. The court then departed upward by adding six units (five units representing the five uncharged offenses and one unit representing the sixth charged robbery that the court believed was not taken into account in the multiple-grouping provision) to the total number of six units already calculated. This constituted double-counting. The sixth charged robbery was already included in the six units noted in the presentence report.\n. In Chapter Four of the Sentencing Guidelines regarding criminal history, § 4A1.3 specifically states that if reliable information concerning \"prior similar adult criminal conduct not resulting in a criminal conviction” indicates that the \"criminal history category does not adequately reflect the seriousness of defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes,” then the court may depart upward.\n. U.S.S.G. § IB 1.2(c) states that \"[a] conviction by a plea of guilty or nolo contendere containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s).” Moreover, the Commentary to the section notes that in the case of a stipulation to the commission of additional offense(s), the guidelines are to be applied as if the defendant had been convicted of an additional count for each of the offenses stipulated. For example, if the defendant is convicted of one count of robbery but, as part of a plea agreement, admits to having committed two additional robberies, the guidelines are to be applied as if the defendant had been convicted of three counts of robbery.\nU.S.S.G. § 1B1.2, Application Note 4; see United States v. Eske, 925 F.2d 205, 207 (7th Cir.1991) (stating that where defendant had stipulated as part of his plea agreement to the commission of two additional robberies, those offenses were to be treated as offenses of conviction and included in the offense level calculation). This section also may serve to trigger application of the multiple-count provisions.\n. Moreover, we must note that as Mr. Dawson has pointed out, the prefatory comments to the multiple-count provisions of the Sentencing Guidelines state that \"[t]his Part provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.\" § 3, Part D-Multiple Counts, Introductory Commentary (emphasis added). This principle is echoed in the Commentary to § IB 1.3, which states that while the multiple-counts provision applies to multiple counts of conviction, the scope of § lB1.3(a)(2) is not limited to counts upon which a defendant has been convicted. U.S.S.G. § 1B1.3, Application Note 2.\n. See supra text at 5.\n. See United States v. DeFelippis, 950 F.2d 444, 448 (7th Cir.1991) (noting with disapproval an increase in offense level for reasons related to criminal history); United States v. Paccione, 949 F.2d 1183, 1205 (2d Cir.1991) (stating that uncharged environmental offenses could not be used to increase offense levels under the multiple-count rules where indictment had not charged defendants with violations of federal environmental laws), cert. denied, - U.S. -, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992).\n. In United States v. Kim, 896 F.2d 678, 684 (2d Cir.1990), the court noted, albeit in dictum, that there may be circumstances \"where a defendant commits a series of bank robberies so close together in time that it would be artificial to consider their ‘prior’ acts for purposes of section 4A1.3 just because the defendant pled to the last in the series....” This dictum was based on a previous edition of the Guidelines and it is also important to note that the court stated that \"[t]he relationship that justifies [a § 5K2.0] departure [in offense level] ... must be more than temporal....\" Id. Kim also relied on United States v. Coe, 891 F.2d 405, 409-10 (2d Cir.1989). In Coe, however, the defendant had stipulated to the other three bank robberies. 891 F.2d at 408. See supra note 11 and accompanying text.\n[END_CASE]", "role": "user" } ]
10,511,945	John W. STRASBURG and Eldercare Asset Protection Plans, Inc., Plaintiffs-Appellants, v. STATE BAR OF WISCONSIN, Gerald C. Sternberg, John A. Boltz, John E. Shannon, Edmund Manydeeds III, Jacqueline Bohman, Wilbur W. Warren III, Michael Wherry, Michael Fauerbach, Lisa Lotte Gameltoft, Patricia Grove, Robert J. Kay, Celia Seraphim, and Diane Zore, Defendants-Appellees	Strasburg v. State Bar	1993-07-09	No. 91-3860	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before CUDAHY and FLAUM, Circuit Judges, and MIHM, Chief District Judge."], "parties": ["John W. STRASBURG and Eldercare Asset Protection Plans, Inc., Plaintiffs-Appellants, v. STATE BAR OF WISCONSIN, Gerald C. Sternberg, John A. Boltz, John E. Shannon, Edmund Manydeeds III, Jacqueline Bohman, Wilbur W. Warren III, Michael Wherry, Michael Fauerbach, Lisa Lotte Gameltoft, Patricia Grove, Robert J. Kay, Celia Seraphim, and Diane Zore, Defendants-Appellees."], "opinions": [{"text": "FLAUM, Circuit Judge.\nThe plaintiffs, John W. Strasburg and Eldercare Asset Protection Plans, Inc., filed suit against the State Bar of Wisconsin and thirteen members of the Board of Attorneys Professional Responsibility, alleging that the defendants attempted to prevent them from engaging in activities that non-lawyers could perform, contrary to the terms of Strasburg’s two-year suspension from the practice of law. By filing an untimely notice of appeal from an adverse decision in the district court, and by refusing to refile once notified of their mistake, the plaintiffs entangled their appeal in a welter of jurisdictional problems. We now dismiss their appeal for want of jurisdiction.\nOn November 15, 1991, the district court granted summary judgment in favor of the defendants. The court determined that one of the defendants, Gerald C. Sternberg, was entitled to summary judgment because his actions were shrouded in “absolute quasi-judicial immunity,” while the remaining defendants were entitled to the same result because they were not served with process within 120 days of the filing of the complaint. The district court issued an opinion and order, the latter providing as follows:\nIT IS ORDERED that defendants’ motion for summary judgment is GRANTED and this case is DISMISSED with prejudice with respect to defendant Gerald C. Stern-berg, in his individual capacity, and without prejudice with respect to the remaining defendants. If plaintiffs believe they have viable claims against these defendants, they may have until December 15, 1991 in which to refile the action and accomplish service. If plaintiffs do not do so, the dismissal of the complaint against remaining defendants will be amended to be with prejudice, and final judgment will be entered in favor of all defendants.\nStrasburg v. State Bar of Wisconsin, No. 91-C-018-C, slip op. at 18-19 (W.D.Wis. Nov. 15, 1991). The plaintiffs failed to refile and reserve the remaining defendants by December 15. Instead, on December 16, they filed a flurry of motions in the district court: (1) they moved for rehearing and reconsideration of the November 15 decision, and for leave to conduct additional discovery; (2) they moved to refile their complaint and asked the court to permit service on the remaining defendants; (3) they filed a notice of appeal from the November 15 decision.\nThe district court responded on December 27, 1991, with an order denying all of the plaintiffs’ motions. The court rejected the plaintiffs’ arguments for vacating its earlier decision. It also commented that the motion to refile the complaint against the remaining defendants was too late; the plaintiffs had missed the December 15 deadline and, in any event, still had not accomplished service on the remaining defendants. The court therefore made good on its earlier threat, dismissing the complaint with respect to the other defendants with prejudice, and directing the clerk of the court to enter final judgment accordingly. On December 30, final judgment was entered pursuant to Federal Rule of Civil Procedure 58.\nBecause the plaintiffs appealed only from the November 15 order, both the district court and this court of appeals have repeatedly questioned the validity of their notice of appeal. In its December 27 decision, the district court stated that the notice of appeal from the November 15 order was a “nullity.” The district court explained: “First, there is no final judgment (or its equivalent) from which to take an appeal. Second, even if there were such a judgment, a notice of appeal has no effect if it is filed before the disposition of substantive post-judgment motions.” Strasburg v. State Bar of Wisconsin, No. 91-C-018-C, slip op. at 2 (N.D.Ill. Dec. 27, 1991). Despite this warning, the plaintiffs never filed a notice of appeal from the December 30 final judgment. On January 2, 1992, we indicated to the parties that “[a] preliminary review of the short record indicates that the order appealed from may not be a final judgment within the meaning of 28 U.S.C. § 1291.” Stras-burg v. State Bar of Wisconsin, No. 91-3860 (7th Cir. Jan. 2, 1992). We directed the plaintiffs to file a brief memorandum by January 17, 1992, explaining why we should not dismiss the case for lack of jurisdiction. The plaintiffs never responded- to our order. Indeed, their opening brief contains not a whit of argument on the question of jurisdiction, and their cursory jurisdictional statement does not even hint that beneath the surface of their appeal a serious problem lurks.\nA notice of appeal must be filed within thirty days after the entry of judgment. See Fed.R.App.P. 4(a)(1). The purpose of this requirement is to provide certainty to litigants about when filing requirements for postjudgment motions and appeals begin to run. “Otherwise, a litigant is forced to guess or to do legal research as to whether a final decision has been rendered.” Smith-Bey v. Hospital Adm’r, 841 F.2d 751, 755 (7th Cir.1988). In this case, the entry of judgment did not occur until December 30, 1991, and the plaintiffs did not file a new notice of appeal thereafter. Ordinarily, the consequence of filing a premature notice of appeal is appellate dismissal. The Federal Rules of Appellate Procedure do, however, offer relief in limited instances from this harsh result. Rule 4(a)(2) provides:\nExcept as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the date thereof.\nFed.R.App.P. 4(a)(2). The rule allows certain premature appeals to “relate forward” to the date óf the entry of judgment, thus providing an exception to the strict requirements of Rule 4(a)(1).\nThe trouble with Rule 4(a)(2) is that it is imprecise — it does not tell us which announced decisions permit relation forward. The announced decision must bear some close relation to the final judgment, or else litigants would save themselves the trouble of determining which document is the final judgment, and simply appeal the first decision on any matter handed down by the district court. In the past, several circuits, including our own, ruled that only announcements of final decisions (defined as those decisions that “end[] the litigation on the merits and leave[ ] nothing for the court to' do but execute the judgment,” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) (citation omitted)) trigger Rule 4(a)(2). See United States v. Ettrick Wood Prods., Inc., 916 F.2d 1211, 1217 (7th Cir.1990); United States v. Hansen, 795 F.2d 35, 37-38 (7th Cir.1986); see also 9 James Wm. Moore et al, Moore’s Federal Practice ¶ 204.14, at 4-129 & n. 24 (2d ed. 1993) (stating that “Rule 4(a)(2) is clearly inapplicable” when “the appeal is not taken after the announcement of any final decision”). But cf. Harris v. Milwaukee County Circuit Court, 886 F.2d 982 (7th Cir.1989) (allowing relation forward from a post-dated judgment, despite the fact that it was not a final decision). In effect, these courts ruled that for a premature notice of appeal to relate forward, the decision it appeals must conclude the litigation completely, except for the essentially clerical step of entering judgment.\nThe leading ease interpreting the rule is now FirsTier Mortgage Company v. Investors Mortgage Insurance Company, 498 U.S. 269, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). According to the Supreme Court, the purpose of Rule 4(a)(2) is to protect from dismissal the unskilled litigant who files a notice of appeal from a decision that he “reasonably but mistakenly believes to be a final judgment, while failing to file a notice of appeal from the actual final judgment.” Id. at 276, 111 S.Ct. at 652-53. In FirsTier, the district court announced from the bench that it was granting the defendant’s motion for summary judgment. The court then requested. the defendant to submit proposed findings of fact and conclusions of law to support the decision, and stated that it would allow the plaintiff the opportunity to respond to these proposals. The plaintiff, however, filed a notice of appeal without waiting for the district court to enter final judgment. The Supreme Court held that this notice of appeal could relate forward to the eventual entry of final judgment, thereby preserving the appeal.\nThe Supreme Court decided in FirsTier that the announced decision under Rule 4(a)(2) need not actually be a final decision, so long as it was reasonable for the would-be appellant to think that the case had ended. Presumably, the Supreme Court did not literally mean that the litigant must “reasonably but mistakenly believe[]” that the announced decision was a final judgment, because judgments have certain attributes (for example, “[ejvery judgment must be set forth on a separate document”’ Fed.R.Civ.P. 58; see also Reytblatt v. Denton, 812 F.2d 1042, 1043-44 (7th Cir.1987) (other requirements)) that are not easily mistaken. Nor did the Court likely mean that the litigant must reasonably think that he is appealing a final decision, since surely it was not reasonable for the appellant in FirsTier to think that the litigation was over, when the district court’s order expressly stated that the court would entertain further motions by the parties. Both “final judgment” and “final decision” are specialized terms probably unfamiliar to the unskilled litigant’s ears.\nInstead, FirsTier appears to save a notice of appeal filed after a decision when the litigant could reasonably believe that the outcome of the case is settled, even if the district court has ministerial duties left to complete. Other passages in the Supreme Court’s opinion seemingly indicate as much:\nIn our view, Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces .a decision that would be appeal-able if immediately followed by the entry of judgment. In these instances, a litigant’s confusion is understandable, and permitting the notice of appeal to become effective when judgment is entered does not catch the appellee by surprise.\nFirsTier, 498 U.S. at 276, 111 S.Ct. at 653 (emphasis in original). A decision that would be appealable if immediately followed by the entry of judgment is one that effectively resolves all the claims, even if the litigation is not technically at an end. In certain situations, it may be debatable whether a ruling settles the outcome of the case. See. Allan Ides, The Authority of a Federal District Court to Proceed After a Notice of Appeal Has Been Filed, 143 F.R.D. 307, 313-16 (1993). But patently interlocutory decisions, such as discovery rulings or sanction orders, do not merit the saving provision of Rule 4(a)(2), see FirsTier, 498 U.S. at 276, 111 S.Ct. at 653, while dispositive rulings such as orders granting default judgments do, see Metropolitan Life Ins. Co. v. Estate of Cammon, 929 F.2d 1220, 1222 (7th Cir.1991). The central question is whether the district court has “announce[d] a decision purporting to dispose of all of [the litigant’s] claims.” FirsTier, 498 U.S. at 277, 111 S.Ct. at 653.\nIn this case, the district court’s November 15 order made clear’ that the outcome of the case was still open. The plaintiffs could not reasonably have thought that the result was settled: the order expressly conditioned the final disposition of the suit. In FirsTier, by contrast, “the fact remains that the bench ruling did announce a decision purporting to dispose of all of FirsTier’s claims.” Id. Whereas the district court in FirsTier had only ministerial functions left to complete after announcing summary judgment, the district court’s order here notified the parties that they should expect further dispositive rulings by the court. The district court here could not have “set forth the judgment immediately following the bench ruling,” id., because it had already provided thirty days , for the plaintiffs to refile their complaint.\nMore importantly, FirsTier indicates. that Rule 4(a)(2), at bottom, is concerned with saving litigants who • make a good-faith effort to comply with the procedural rules for filing an appeal, but through inadvertence or ignorance run afoul of them. Even if the plaintiffs’ initial belief as to the appealability of the November 15 order was reasonable when they filed their notice of appeal, their refusal to refile became unreasonable when they were expressly informed by the district court on December 27 that the November 15 order was not a final judgment and that their notice of appeal was a “nullity.” We believe that a litigant seeking to take advantage of Rule 4(a)(2)’s saving provision must continue to be reasonably “com fus[ed] as to the status of the litigation,” id., until final judgment is actually entered. If the litigant becomes aware of the fact that the notice of appeal is invalid because no final judgment has yet been entered, then he or she has both the knowledge and the opportunity (for thirty more days) to correct the mistake. This rule makes sense in light of the fact that the notice of appeal does not relate forward and become effective until final judgment is entered, because up to that time there is nothing for the notice to relate forward to. In FirsTier, the appellants never knew that their initial notice of appeal was untimely. Here, once the plaintiffs were informed that their notice was a nullity, they only had to wait for the real final judgment to be entered three days later, and then file a new notice of appeal.\nWe previously held, in a case decided prior to FirsTier, that Rule 4(a)(2) allowed a notice of appeal to relate forward from a district court order similar to this one. In Harris v. Milwaukee County Circuit Court, 886 F.2d 982 (7th Cir.1989), the district court denied a prisoner’s request to proceed in forma pau-peris. The district court stated: “Plaintiff shall have twenty (20) days from the receipt of this order to pay the required filing fee. If this deadline passes without the filing fee paid, this order will ripen into a final judgment of dismissal without further order.” The prisoner filed a notice of appeal from the dismissal of the suit before the twenty days elapsed, and thus before the order became a final judgment. We held that under Rule 4(a)(2) the premature notice of appeal related forward to the day the order ripened into a final judgment.\nWe do not decide today whether Harris survives FirsTier. In any event, we believe that our decision in this case can peacefully coexist with Harris. There, the district court’s statement that “this order will ripen into a final judgment of dismissal without further order” could easily have misled the appellant into thinking that the decision disposed of the case without further action by the court — that the outcome was already settled. The appellant in Harris never knew that his notice of appeal was premature. Here, contrastingly, the district court made clear that additional action to dispose of the case was still necessary, and later told the plaintiffs that their notice of appeal was ineffective. Their behavior in pursuing this appeal was thus unreasonable.\nThe appeal is Dismissed for want of jurisdiction.\n. Both parties are under the misconception that the notice of appeal was filed on December 15, 1991. They were probably misled by the date typed onto the notice itself by the plaintiffs, which reads \"December 15.” The pertinent date of any filing, however, is not the date the litigant prepares the document, but the date it is filed in court. The clerk of the court stamped \"4:15 p.m., December 16, 1991,” on their notice, and we measure time from that day.\n. The exception set out in Rule 4(a)(4) provides that certain postjudgment motions (namely, those filed under Rule 50(b), 52(b), or 59) toll the time for appeal and nullify any notice of appeal filed before their disposition. The district court believed that the plaintiffs’ December 16 motions canceled their earlier notice of appeal, but all of those motions were filed more than ten days after the November 15 decision. They could not, therefore, have been filed under Rule 50(b), 52(b), or 59. Although it is often difficult to determine whether an unlabelled, postjudgment motion falls into one of the Rule 4(a)(4) categories, see generally Charles W. Adams, The Timing of Appeals Under Rule 4(a)(4) of the Federal Rules of Appellate Procedure, 123 F.R.D. 371 (1988), here it is clear that these motions had no effect on the validity of the notice of appeal from the November 15 order.\n. This construction suggests an alternate reading of Rule 4(a)(2) that may better fit the Supreme Court’s approach. On the alternate reading, the key terms to be contrasted in the rule are not decision and judgment, but announcement and entry. A decision permits relation forward if it announces a final judgment, i.e. forecasts the final outcome, even if that judgment has not yet been formally entered. On this reading, the decision and the judgment are assumed to be substantively similar.\n. If the plaintiffs did not realize even then that their notice was untimely, they still had twenty-seven days after we informed them of the same fact to file a new notice.", "type": "majority", "author": "FLAUM, Circuit Judge."}], "attorneys": ["David J. Cannon (argued), Michael, Best & Friedrich, Milwaukee, WI, for plaintiffs-appellants.", "Warren D. Weinstein, Asst. Atty. Gen. (argued), Wisconsin Dept, of Justice, Madison, WI, for defendants-appellees."], "corrections": "", "head_matter": "John W. STRASBURG and Eldercare Asset Protection Plans, Inc., Plaintiffs-Appellants, v. STATE BAR OF WISCONSIN, Gerald C. Sternberg, John A. Boltz, John E. Shannon, Edmund Manydeeds III, Jacqueline Bohman, Wilbur W. Warren III, Michael Wherry, Michael Fauerbach, Lisa Lotte Gameltoft, Patricia Grove, Robert J. Kay, Celia Seraphim, and Diane Zore, Defendants-Appellees.\nNo. 91-3860.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Jan. 25, 1993.\nDecided July 9, 1993.\nRehearing and Suggestion for Rehearing En Banc Denied Aug. 12, 1993.\nDavid J. Cannon (argued), Michael, Best & Friedrich, Milwaukee, WI, for plaintiffs-appellants.\nWarren D. Weinstein, Asst. Atty. Gen. (argued), Wisconsin Dept, of Justice, Madison, WI, for defendants-appellees.\nBefore CUDAHY and FLAUM, Circuit Judges, and MIHM, Chief District Judge.\nThe Honorable John L. Coffey, Circuit Judge, did not participate in the consideration or decision of this case.\nThe Honorable Michael M. Mihm, Chief Judge of the Central District of Illinois, sitting by designation."}	CUDAHY	FLAUM	MIHM	1	1	1	0	0	0	1 F.3d 468	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: John W. STRASBURG and Eldercare Asset Protection Plans, Inc., Plaintiffs-Appellants, v. STATE BAR OF WISCONSIN, Gerald C. Sternberg, John A. Boltz, John E. Shannon, Edmund Manydeeds III, Jacqueline Bohman, Wilbur W. Warren III, Michael Wherry, Michael Fauerbach, Lisa Lotte Gameltoft, Patricia Grove, Robert J. Kay, Celia Seraphim, and Diane Zore, Defendants-Appellees\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-09\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nFLAUM, Circuit Judge.\nThe plaintiffs, John W. Strasburg and Eldercare Asset Protection Plans, Inc., filed suit against the State Bar of Wisconsin and thirteen members of the Board of Attorneys Professional Responsibility, alleging that the defendants attempted to prevent them from engaging in activities that non-lawyers could perform, contrary to the terms of Strasburg’s two-year suspension from the practice of law. By filing an untimely notice of appeal from an adverse decision in the district court, and by refusing to refile once notified of their mistake, the plaintiffs entangled their appeal in a welter of jurisdictional problems. We now dismiss their appeal for want of jurisdiction.\nOn November 15, 1991, the district court granted summary judgment in favor of the defendants. The court determined that one of the defendants, Gerald C. Sternberg, was entitled to summary judgment because his actions were shrouded in “absolute quasi-judicial immunity,” while the remaining defendants were entitled to the same result because they were not served with process within 120 days of the filing of the complaint. The district court issued an opinion and order, the latter providing as follows:\nIT IS ORDERED that defendants’ motion for summary judgment is GRANTED and this case is DISMISSED with prejudice with respect to defendant Gerald C. Stern-berg, in his individual capacity, and without prejudice with respect to the remaining defendants. If plaintiffs believe they have viable claims against these defendants, they may have until December 15, 1991 in which to refile the action and accomplish service. If plaintiffs do not do so, the dismissal of the complaint against remaining defendants will be amended to be with prejudice, and final judgment will be entered in favor of all defendants.\nStrasburg v. State Bar of Wisconsin, No. 91-C-018-C, slip op. at 18-19 (W.D.Wis. Nov. 15, 1991). The plaintiffs failed to refile and reserve the remaining defendants by December 15. Instead, on December 16, they filed a flurry of motions in the district court: (1) they moved for rehearing and reconsideration of the November 15 decision, and for leave to conduct additional discovery; (2) they moved to refile their complaint and asked the court to permit service on the remaining defendants; (3) they filed a notice of appeal from the November 15 decision.\nThe district court responded on December 27, 1991, with an order denying all of the plaintiffs’ motions. The court rejected the plaintiffs’ arguments for vacating its earlier decision. It also commented that the motion to refile the complaint against the remaining defendants was too late; the plaintiffs had missed the December 15 deadline and, in any event, still had not accomplished service on the remaining defendants. The court therefore made good on its earlier threat, dismissing the complaint with respect to the other defendants with prejudice, and directing the clerk of the court to enter final judgment accordingly. On December 30, final judgment was entered pursuant to Federal Rule of Civil Procedure 58.\nBecause the plaintiffs appealed only from the November 15 order, both the district court and this court of appeals have repeatedly questioned the validity of their notice of appeal. In its December 27 decision, the district court stated that the notice of appeal from the November 15 order was a “nullity.” The district court explained: “First, there is no final judgment (or its equivalent) from which to take an appeal. Second, even if there were such a judgment, a notice of appeal has no effect if it is filed before the disposition of substantive post-judgment motions.” Strasburg v. State Bar of Wisconsin, No. 91-C-018-C, slip op. at 2 (N.D.Ill. Dec. 27, 1991). Despite this warning, the plaintiffs never filed a notice of appeal from the December 30 final judgment. On January 2, 1992, we indicated to the parties that “[a] preliminary review of the short record indicates that the order appealed from may not be a final judgment within the meaning of 28 U.S.C. § 1291.” Stras-burg v. State Bar of Wisconsin, No. 91-3860 (7th Cir. Jan. 2, 1992). We directed the plaintiffs to file a brief memorandum by January 17, 1992, explaining why we should not dismiss the case for lack of jurisdiction. The plaintiffs never responded- to our order. Indeed, their opening brief contains not a whit of argument on the question of jurisdiction, and their cursory jurisdictional statement does not even hint that beneath the surface of their appeal a serious problem lurks.\nA notice of appeal must be filed within thirty days after the entry of judgment. See Fed.R.App.P. 4(a)(1). The purpose of this requirement is to provide certainty to litigants about when filing requirements for postjudgment motions and appeals begin to run. “Otherwise, a litigant is forced to guess or to do legal research as to whether a final decision has been rendered.” Smith-Bey v. Hospital Adm’r, 841 F.2d 751, 755 (7th Cir.1988). In this case, the entry of judgment did not occur until December 30, 1991, and the plaintiffs did not file a new notice of appeal thereafter. Ordinarily, the consequence of filing a premature notice of appeal is appellate dismissal. The Federal Rules of Appellate Procedure do, however, offer relief in limited instances from this harsh result. Rule 4(a)(2) provides:\nExcept as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the date thereof.\nFed.R.App.P. 4(a)(2). The rule allows certain premature appeals to “relate forward” to the date óf the entry of judgment, thus providing an exception to the strict requirements of Rule 4(a)(1).\nThe trouble with Rule 4(a)(2) is that it is imprecise — it does not tell us which announced decisions permit relation forward. The announced decision must bear some close relation to the final judgment, or else litigants would save themselves the trouble of determining which document is the final judgment, and simply appeal the first decision on any matter handed down by the district court. In the past, several circuits, including our own, ruled that only announcements of final decisions (defined as those decisions that “end[] the litigation on the merits and leave[ ] nothing for the court to' do but execute the judgment,” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) (citation omitted)) trigger Rule 4(a)(2). See United States v. Ettrick Wood Prods., Inc., 916 F.2d 1211, 1217 (7th Cir.1990); United States v. Hansen, 795 F.2d 35, 37-38 (7th Cir.1986); see also 9 James Wm. Moore et al, Moore’s Federal Practice ¶ 204.14, at 4-129 & n. 24 (2d ed. 1993) (stating that “Rule 4(a)(2) is clearly inapplicable” when “the appeal is not taken after the announcement of any final decision”). But cf. Harris v. Milwaukee County Circuit Court, 886 F.2d 982 (7th Cir.1989) (allowing relation forward from a post-dated judgment, despite the fact that it was not a final decision). In effect, these courts ruled that for a premature notice of appeal to relate forward, the decision it appeals must conclude the litigation completely, except for the essentially clerical step of entering judgment.\nThe leading ease interpreting the rule is now FirsTier Mortgage Company v. Investors Mortgage Insurance Company, 498 U.S. 269, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). According to the Supreme Court, the purpose of Rule 4(a)(2) is to protect from dismissal the unskilled litigant who files a notice of appeal from a decision that he “reasonably but mistakenly believes to be a final judgment, while failing to file a notice of appeal from the actual final judgment.” Id. at 276, 111 S.Ct. at 652-53. In FirsTier, the district court announced from the bench that it was granting the defendant’s motion for summary judgment. The court then requested. the defendant to submit proposed findings of fact and conclusions of law to support the decision, and stated that it would allow the plaintiff the opportunity to respond to these proposals. The plaintiff, however, filed a notice of appeal without waiting for the district court to enter final judgment. The Supreme Court held that this notice of appeal could relate forward to the eventual entry of final judgment, thereby preserving the appeal.\nThe Supreme Court decided in FirsTier that the announced decision under Rule 4(a)(2) need not actually be a final decision, so long as it was reasonable for the would-be appellant to think that the case had ended. Presumably, the Supreme Court did not literally mean that the litigant must “reasonably but mistakenly believe[]” that the announced decision was a final judgment, because judgments have certain attributes (for example, “[ejvery judgment must be set forth on a separate document”’ Fed.R.Civ.P. 58; see also Reytblatt v. Denton, 812 F.2d 1042, 1043-44 (7th Cir.1987) (other requirements)) that are not easily mistaken. Nor did the Court likely mean that the litigant must reasonably think that he is appealing a final decision, since surely it was not reasonable for the appellant in FirsTier to think that the litigation was over, when the district court’s order expressly stated that the court would entertain further motions by the parties. Both “final judgment” and “final decision” are specialized terms probably unfamiliar to the unskilled litigant’s ears.\nInstead, FirsTier appears to save a notice of appeal filed after a decision when the litigant could reasonably believe that the outcome of the case is settled, even if the district court has ministerial duties left to complete. Other passages in the Supreme Court’s opinion seemingly indicate as much:\nIn our view, Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces .a decision that would be appeal-able if immediately followed by the entry of judgment. In these instances, a litigant’s confusion is understandable, and permitting the notice of appeal to become effective when judgment is entered does not catch the appellee by surprise.\nFirsTier, 498 U.S. at 276, 111 S.Ct. at 653 (emphasis in original). A decision that would be appealable if immediately followed by the entry of judgment is one that effectively resolves all the claims, even if the litigation is not technically at an end. In certain situations, it may be debatable whether a ruling settles the outcome of the case. See. Allan Ides, The Authority of a Federal District Court to Proceed After a Notice of Appeal Has Been Filed, 143 F.R.D. 307, 313-16 (1993). But patently interlocutory decisions, such as discovery rulings or sanction orders, do not merit the saving provision of Rule 4(a)(2), see FirsTier, 498 U.S. at 276, 111 S.Ct. at 653, while dispositive rulings such as orders granting default judgments do, see Metropolitan Life Ins. Co. v. Estate of Cammon, 929 F.2d 1220, 1222 (7th Cir.1991). The central question is whether the district court has “announce[d] a decision purporting to dispose of all of [the litigant’s] claims.” FirsTier, 498 U.S. at 277, 111 S.Ct. at 653.\nIn this case, the district court’s November 15 order made clear’ that the outcome of the case was still open. The plaintiffs could not reasonably have thought that the result was settled: the order expressly conditioned the final disposition of the suit. In FirsTier, by contrast, “the fact remains that the bench ruling did announce a decision purporting to dispose of all of FirsTier’s claims.” Id. Whereas the district court in FirsTier had only ministerial functions left to complete after announcing summary judgment, the district court’s order here notified the parties that they should expect further dispositive rulings by the court. The district court here could not have “set forth the judgment immediately following the bench ruling,” id., because it had already provided thirty days , for the plaintiffs to refile their complaint.\nMore importantly, FirsTier indicates. that Rule 4(a)(2), at bottom, is concerned with saving litigants who • make a good-faith effort to comply with the procedural rules for filing an appeal, but through inadvertence or ignorance run afoul of them. Even if the plaintiffs’ initial belief as to the appealability of the November 15 order was reasonable when they filed their notice of appeal, their refusal to refile became unreasonable when they were expressly informed by the district court on December 27 that the November 15 order was not a final judgment and that their notice of appeal was a “nullity.” We believe that a litigant seeking to take advantage of Rule 4(a)(2)’s saving provision must continue to be reasonably “com fus[ed] as to the status of the litigation,” id., until final judgment is actually entered. If the litigant becomes aware of the fact that the notice of appeal is invalid because no final judgment has yet been entered, then he or she has both the knowledge and the opportunity (for thirty more days) to correct the mistake. This rule makes sense in light of the fact that the notice of appeal does not relate forward and become effective until final judgment is entered, because up to that time there is nothing for the notice to relate forward to. In FirsTier, the appellants never knew that their initial notice of appeal was untimely. Here, once the plaintiffs were informed that their notice was a nullity, they only had to wait for the real final judgment to be entered three days later, and then file a new notice of appeal.\nWe previously held, in a case decided prior to FirsTier, that Rule 4(a)(2) allowed a notice of appeal to relate forward from a district court order similar to this one. In Harris v. Milwaukee County Circuit Court, 886 F.2d 982 (7th Cir.1989), the district court denied a prisoner’s request to proceed in forma pau-peris. The district court stated: “Plaintiff shall have twenty (20) days from the receipt of this order to pay the required filing fee. If this deadline passes without the filing fee paid, this order will ripen into a final judgment of dismissal without further order.” The prisoner filed a notice of appeal from the dismissal of the suit before the twenty days elapsed, and thus before the order became a final judgment. We held that under Rule 4(a)(2) the premature notice of appeal related forward to the day the order ripened into a final judgment.\nWe do not decide today whether Harris survives FirsTier. In any event, we believe that our decision in this case can peacefully coexist with Harris. There, the district court’s statement that “this order will ripen into a final judgment of dismissal without further order” could easily have misled the appellant into thinking that the decision disposed of the case without further action by the court — that the outcome was already settled. The appellant in Harris never knew that his notice of appeal was premature. Here, contrastingly, the district court made clear that additional action to dispose of the case was still necessary, and later told the plaintiffs that their notice of appeal was ineffective. Their behavior in pursuing this appeal was thus unreasonable.\nThe appeal is Dismissed for want of jurisdiction.\n. Both parties are under the misconception that the notice of appeal was filed on December 15, 1991. They were probably misled by the date typed onto the notice itself by the plaintiffs, which reads \"December 15.” The pertinent date of any filing, however, is not the date the litigant prepares the document, but the date it is filed in court. The clerk of the court stamped \"4:15 p.m., December 16, 1991,” on their notice, and we measure time from that day.\n. The exception set out in Rule 4(a)(4) provides that certain postjudgment motions (namely, those filed under Rule 50(b), 52(b), or 59) toll the time for appeal and nullify any notice of appeal filed before their disposition. The district court believed that the plaintiffs’ December 16 motions canceled their earlier notice of appeal, but all of those motions were filed more than ten days after the November 15 decision. They could not, therefore, have been filed under Rule 50(b), 52(b), or 59. Although it is often difficult to determine whether an unlabelled, postjudgment motion falls into one of the Rule 4(a)(4) categories, see generally Charles W. Adams, The Timing of Appeals Under Rule 4(a)(4) of the Federal Rules of Appellate Procedure, 123 F.R.D. 371 (1988), here it is clear that these motions had no effect on the validity of the notice of appeal from the November 15 order.\n. This construction suggests an alternate reading of Rule 4(a)(2) that may better fit the Supreme Court’s approach. On the alternate reading, the key terms to be contrasted in the rule are not decision and judgment, but announcement and entry. A decision permits relation forward if it announces a final judgment, i.e. forecasts the final outcome, even if that judgment has not yet been formally entered. On this reading, the decision and the judgment are assumed to be substantively similar.\n. If the plaintiffs did not realize even then that their notice was untimely, they still had twenty-seven days after we informed them of the same fact to file a new notice.\n[END_CASE]", "role": "user" } ]
10,512,018	UNITED STATES of America, Plaintiff-Appellee, v. Charles EMENOGHA, Gibson Nwafor, and Vincent Nwafor, Defendants-Appellants	United States v. Emenogha	1993-07-12	Nos. 91-2577, 91-2832, 91-2833	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before CUDAHY, RIPPLE, and KANNE, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Charles EMENOGHA, Gibson Nwafor, and Vincent Nwafor, Defendants-Appellants."], "opinions": [{"text": "RIPPLE, Circuit Judge.\nOn March 26, 1991, the appellants were convicted of various drug offenses. Charles Emenogha was found guilty of one count of importing heroin and one count of possessing heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 952(a); Vincent Nwafor was found guilty of one count of possessing heroin with intent to distribute and five counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1); and Gibson Nwafor was found guilty of ten counts of structuring financial transactions to avoid Internal Revenue reporting requirements in violation of 31 U.S.C. §§ 5324 and 5322(a). All defendants were also convicted of conspiracy to import and distribute heroin in violation of 21 U.S.C. § 846. Mr. Emenogha was sentenced to 132 months’ incarceration, Gibson Nwafor to 160 months, and Vincent Nwafor to 396 months. They now appeal various aspects of their convictions and sentences. We affirm.\nI\nBACKGROUND\nThis trio of Nigerian citizens was convicted of conspiring to import heroin from Africa for distribution in Chicago. They joined forces to smuggle the drug into this country by financing couriers to purchase heroin in Lagos, Nigeria, and to convey it to Chicago where the other conspiracy members would divide it for distribution. Vincent Nwafor, the prime mover in the enterprise, organized the purchases and the subsequent distributions. Gibson Nwafor, Vincent’s brother, handled the financial arrangements. Gibson Nwafor held the profits at his own apartment, converted the proceeds to larger bills for easier handling at various Chicago banks, and wire-transferred money out of the country on Vincent Nwafor’s behalf. Mr. Emeno-gha, who is the Nwafors’ cousin, acted as a courier and brought heroin to Chicago from Nigeria on at least three occasions.\nThe operation was assisted by Ebenezer Dikeocha, who smuggled heroin into the United States and distributed it at least once in conjunction with Vincent Nwafor. Additional distributors were Andy Uwazoke and Ike Agu. Larry Palmer, a/k/a Lawrence Ofuokwu (hereinafter “Palmer”), an uncharged member of the conspiracy, travelled to Nigeria to purchase heroin; he pled guilty to a drug charge in Maryland and agreed to cooperate with the United States in investigating other members of the conspiracy. Other couriers for the conspiracy were Tracy Ousley, Beverly (last name not known), and Darlene Sumpter, Vincent Nwafor’s girlfriend, who contacted the Drug Enforcement Administration (DEA) in 1989 and agreed to cooperate in arranging an undercover purchase of heroin between Vincent Nwafor and Chicago police officer Regina Joanes.\nPalmer testified at length about the structure and activities of the conspiracy. He was privy to, and a major player in, a number of smuggling operations, including a December 1988 episode when he was involved with Vincent Nwafor and Dikeocha in importing 500 grams of heroin from Nigeria. In July 1989, Palmer met with Vincent Nwafor, Dikeocha, and Uwazoke to discuss a plan to use Tracy Ousley and Beverly to smuggle heroin from Kenya, a plan that produced 1.7 kilograms of the drug. Another plan was made that summer for Palmer to purchase drugs in Nigeria and for Tracy Ousley to bring them to the United States. Palmer made the purchase in Nigeria in October and returned to the United States, but a courier was not sent to Nigeria to pick up the drugs.\nAfter Palmer was arrested in November 1989, he telephoned Vincent Nwafor and learned that Mr. Emenogha had returned from Nigeria with some of the drugs that Palmer had left behind. When Palmer asked about his share of the profits from these drugs, Vincent Nwafor told him that he was entitled to none because Palmer’s brother in Nigeria would not relinquish a portion of the drugs that Palmer had left in his care.\nThe DEA arranged a number of undercover purchases with the aid of the Chicago police and Darlene Sumpter. Between January 27, 1989, and September 10, 1990, five purchases were made from Vincent Nwafor and one from Dikeocha. The purchases from Vincent Nwafor totalled over 200 grams of heroin. During the course of several of the purchases, Vincent Nwafor talked to Officer Joanes about her acting as courier and suggested that she travel to Africa via Jamaica or the Bahamas and return with the drugs in a specially built suitcase.\nGibson Nwafor’s role in the conspiracy was to handle the profits efficiently. He stored the cash at his apartment, exchanged small bills for $100 bills for easy transport, and wire-transferred thousands of dollars out of the country to'banks in Belgium and Germany. From February 23, 1989, to August 3, 1990, he wire-transferred $142,619 in twenty-three separate transactions. Between July 5, 1990, and September 10, 1990, he exchanged a total of $139,400 for larger bills oh ten different occasions. Palmer testified that he was with Gibson Nwafor when he processed large sums of drug money through various banks in such a way that he could avoid IRS reporting requirements.\nDarlene Sumpter was arrested at O’Hare Airport on March 31, 1990, prior to boarding an international flight with $103,940 in $100 bills. The money was in several envelopes, some of them marked with the names' Ike, MacDonald (a/k/a Emenogha), and Yin. In subsequent telephone calls, Vincent Nwafor told her that the money had been put into her luggage by other members of the conspiracy. On July 25, 1990, Mr. Emenogha was arrested on arrival at O’Hare Airport with 997 grams of heroin secreted in his suitcases. Finally, the Nwafors were arrested on September 10, 1990. Vincent Nwafor signed a consent form for a search of his apartment and storage locker., In the locker, agents found a digital scale and four plastic bags containing a substance resembling heroin. Tests later revealed that the substances amounted to approximately 400 grams of heroin in purity ranging from 2.6 percent to 35 percent. Gibson Nwafor consented to a search of his apartment where agents found $21,900 in $100 bills hidden in various places. Agents also found documents evidencing a Brussels bank account, some wire transfer receipts, and an address book with telephone numbers for Agu, Dikeocha, and Mr. Emeno-gha.\nFollowing their convictions, the three appellants challenge a number of evidentiary and sentencing matters. The Nwafors also challenge their convictions on the basis of a single conspiracy.\nII\nDISCUSSION\nA. Standards of Review\nWe review evidentiary matters for abuse of discretion. United States v. Garcia, 986 F.2d 1135, 1139 (7th Cir.1993); United States v. Briscoe, 896 F.2d 1476, 1490 (7th Cir.), cert. denied sub nom. Usman v. United States, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). “Appellants who challenge evidentiary rulings of the district court are like rich men who wish to enter the Kingdom: their prospects compare with those of camels who wish to pass through the eye of the needle.” United States v. Glecier, 923 F.2d 496, 503 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 54, 116 L.Ed.2d 31 (1991). “Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). When reviewing a challenge to the sufficiency of the evidence, we review the evidence and reasonable inferences therefrom in a light most favorable to the government, and “[i]f any rational jury could have found the defendant guilty beyond a reasonable doubt, the conviction will be affirmed.” United States v. Curry, 977 F.2d 1042, 1053 (7th Cir.1992), cert. denied sub nom. Holland v. United States, — U.S. -, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993). We review findings of fact in sentencing matters for clear error. United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993); United States v. Davis, 938 F.2d 744, 746 (7th Cir.1991); United States v. Feekes, 929 F.2d 334, 338 (7th Cir.1991).\nB. Vincent Nwafor\n1. Other crimes evidence under Federal Rule of Evidence 404(b)\nWe review evidentiary rulings for abuse of discretion. United States v. Smith, 995 F.2d 662, 671 (7th Cir.1993). Vincent Nwafor’s defense theory was that he was entrapped by his girlfriend, a government informant, who induced him with the promise of sexual favors to make drug deliveries to the undercover agents. In order to counter such a defense, the government is obliged to prove beyond a reasonable doubt either the absence of government inducement or the defendant’s predisposition to commit the crime. United States v. Simpson, 995 F.2d 109, 111 (7th Cir.1993); United States v. Blackman, 950 F.2d 420, 423 (7th Cir.1991).\nAs the Supreme Court has recently noted: [when] the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.\nJacobson v. United States, — U.S. -, -, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992). Criminal disposition is “the principal element in the defense of entrapment.” Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988) (quoting United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973)); United States v. Sanchez, 984 F.2d 769, 773 (7th Cir.1993). Evidence of other bad acts is admissible to prove predisposition when entrapment is at issue. United States v. Goodapple, 958 F.2d 1402, 1406 (7th Cir.1992). Accordingly, the government sought to introduce evidence of Vincent Nwafor’s 1986 conviction for his involvement in an undercover heroin buy. The evidence was admitted over Vincent Nwafor’s objection.\nThis court has said that such evidence is subject to a four-prong test: it is admissible if (1) it is directed toward establishing a matter other than the defendant’s propensity to commit the crime, (2) the evidence was sufficient to support a jury finding that the defendant committed the similar act, (3) the other act is similar enough and close enough in time to be relevant to the matter in issue, and (4) the probative value is not substantially outweighed by the danger of unfair prejudice. United States v. Khorrami, 895 F.2d 1186, 1194 (7th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct, 522, 112 L.Ed.2d 533 (1990); United States v. Zapata, 871 F.2d 616, 620-21 (7th Cir.1989) (citing United States v. Shackleford 738 F.2d 776 (7th Cir.1984)). In applying this analysis, the district court is afforded a considerable amount of discretion, and we shall reverse only for abuse of that discretion. Zapata, 871 F.2d at 621.\nVincent Nwafor .argues first that the evidence was introduced improperly to show his propensity to commit the crime, rather than merely his predisposition. We cannot accept this argument. The introduction of a prior drug conviction speaks directly to Vincent Nwafor’s predisposition to engage in such illegal drug activity.\nSecond, Vincent Nwafor argues that the evidence is neither similar enough nor close enough in time to be relevant. Here he is charged with being the leader and organizer, but in the 1986 conviction he was merely a broker for the heroin. We cannot find this dissimilar, given his defense that he did not have a predisposition to engage in drug' deals. Vincent Nwafor concedes that this court has held that five years is sufficiently close in time for purposes of Rule 404(b). See United States v. Zeidman, 540 F.2d 314, 319 (7th Cir.1976). However, he maintains that the government fell afoul of the prejudice prong when it went beyond the mere introduction of the prior conviction by putting on testimony of the purchasing agent and introducing the narcotics (14.05 grams) from the 1986 case.\nThe only prong of the analysis that requires our attention is the final one, a Rule, 403-type balancing of probative value with the risk of undue prejudice. See Goodapple, 958 F.2d at 1407 (the fourth prong of the Rule 404(b) analysis covers Rule 403). As a reviewing court, we cannot re-assess “the relative impact of the legitimate and illegitimate inferences supported by evidence ... [therefore we defer to the] contemporaneous assessment of the presentation, credibility, and impact of the challenged evidence. We therefore accord great deference to the district judge’s decision to admit or exclude evidence under Rule 403.” United States v. York, 933 F.2d 1343, 1352 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 321, 116 L.Ed.2d 262 (1991). “This type of evidence is always prejudicial to the defendant, but when ... it is balanced against its legitimate uses, and limited by the court’s instructions, the prejudice is outweighed by its probative value.” United States v. Powers, 978 F.2d 354, 361 (7th Cir.1992) (discussing 404(b) evidence), cert. denied, — U.S. -, 113 S.Ct. 1323, 122 L.Ed.2d 708 (1993). The probative value of this evidence is high, centered as it is on Vincent Nwafor’s prior illegal drug activities. The government submits that it did not put on a mini-trial on the matter and that the testimony only involved some fifteen pages (exclusive of defense objections) of a very long transcript. The district court was the best judge of whether the time expenditure put undue emphasis on the prior act. The actual production of the baggie containing the heroin may not have been necessary. However, the district court took great care to give repeated warnings to the jury to consider the testimony only insofar as it bears on Vincent Nwafor’s predisposition to deal in drugs. See Tr. at 1029, 1041, 1049. These instructions served to compensate for any potential prejudice. See United States v. Maholias, 985 F.2d 869, 880 (7th Cir.1993); United States v. Koen, 982 F.2d 1101, 1117 (7th Cir.1992). Indeed, immediately after the heroin was presented, the court hastened to instruct the jury once again about the testimony’s limited usefulness. Tr. at 1041. Consequently, there was no error in the admission of 404(b) evidence to show Vincent Nwafor’s predisposition for involvement in illicit drug transactions.\n2. Admission of magazine article .for impeachment\nThe government sought introduction of a photocopy of a page from a magazine article dealing with the drug connection between America and Nigeria and mentioning Vincent Nwafor, among others, as one who has been named by a Chicago Grand Jury for his involvement. The article was found with other drug-related items in Vincent Nwafor’s locker. Initially, the district court denied admission because of its concern that the probative value of the article was “substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. In light of Vincent Nwafor’s denial of his intent and predisposition to distribute heroin, as well as his ownership of the heroin and scales found in the locker, the judge, sua sponte, reconsidered his earlier ruling and permitted the government to use the article for impeachment purposes only. See United States v. Taylor, 728 F.2d 864, 870 (7th Cir.1984) (permitting evidence of other weapons at the defendant’s residence after defendant had denied knowledge’ of presence of a machine gun). It is clear that reserving judgment gave the trial court an opportunity to consider the risks and to weigh them against the probative value in light of the witness’s denial. Defense counsel objected to the reference in the article to a previous arrest of Vincent Nwafor, but the court correctly overruled the objection because the arrest had resulted in a conviction that was properly before the court in the form of 404(b) evidence. Tr. at 1223-24. ■ In addition, further safeguards were .implemented when the article was neither published to the jury nor admitted into evidence. The cross-examination was limited to questions about Vincent Nwafor’s familiarity with the article and about where he kept the clipping. Tr. at 1261-64. The admission of this material, even on such a limited basis, was obviously a close call. However, the district court recognized it as such and weighed its decision. Under these circumstances, we cannot say, given the deferential standard, that reversible error was committed.\n3. Single versus multiple conspiracies\nVincent Nwafor also challenges the sufficiency of the evidence of the existence of a single conspiracy (as opposed to discrete drug deals). Specifically, he argues that the variance' between' the proof and the indictment requires reversal. Vincent Nwafor also maintains that the charging of a single conspiracy permitted the government to make its case by introducing the uncorroborated testimony of co-conspirator Larry Palmer, pursuant to Federal Rule of Evidence 801(d)(2)(E), which would otherwise have been inadmissible. The government counters, however, that Palmer’s extensive testimony on the stand is admissible under Federal Rule of Evidence 801(d)(2)(A) as admissions of a party-opponent. In United States v. Thompson, 944 F.2d 1331, 1341 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1177, 117 L.Ed.2d 422 (1992), we said:\nCo-conspirator testimony about the words and deeds of a defendant are not hearsay; the words and deeds of the defendant, while themselves out-of-court statements, are admissions, and because the testimony is offered in court, the statements of the co-conspirator are not hearsay either.\nThe in-court testimony of Palmer was therefore properly admitted under Federal Rule of- Evidence 801(d)(2)(A).\nViewing the proof at trial in a light most favorable to the prosecution, “we must uphold the jury’s single conspiracy determination if any rational trier of fact could have found, beyond a reasonable doubt, the one conspiracy.” United States v. Paiz, 905 F.2d 1014, 1019 (7th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). The Paiz court also notes that this deference to a jury decision is important in the conspiracy context given the frequent need to infer the existence of a conspiracy from circumstantial evidence and reasonable inferences therefrom. Id.\nIn United States v. Townsend, 924 F.2d 1385, 1389-90 (7th Cir.1991), which dealt with the question of variance in a conspiracy context, we said that\n[t]he crime of conspiracy focuses on agreements, not groups. True, it takes at least two to conspire, but the government doesn’t have to prove with whom a defendant conspired; it need only prove that the defendant joined the agreement alleged, not the group_ So to overturn a conspiracy conviction on the ground of variance, an appellant must show both that he did not conspire with each defendant and that he was prejudiced by being tried with defendants who were not his coconspira-tors.\nThe essential distinguishing feature between a single conspiracy and multiple conspiracies is that multiple conspiracies manifest “no agreement toward a common goal, and each conspirator’s agreement constitutes an end unto itself.” Curry, 977 F.2d at 1052 (citing Paiz, 905 F.2d at 1020).\nThere was abundant evidence at trial from which the jury could conclude that there was a single conspiracy headed by Vincent Nwa-for that was devoted to the importation of heroin from Africa and its subsequent distribution in the Chicago area. The division of duties was fairly clear-cut. “Indeed, the whole point of a conspiracy, and the reason why it is punished separately as a crime, is to enable several persons to cooperate and split duties in order to facilitate the object of the conspiracy.” Curry, 977 F.2d at 1053. The testimony of Palmer, in conjunction with recorded telephone conversations with Gibson Nwafor, revealed the relationship among Palmer, the Nwafors, Mr. Emenogha, and Uwazoke. Vincent Nwafor entrusted the drug money to his brother, Gibson Nwafor. Tr. at 111. Palmer also testified to a group meeting, involving Palmer, Vincent Nwafor, Dikeocha, and Uwazoke, to plan a Kenya purchase by Ousley and Beverly. Tr. at 161— 62. In addition, Vincent Nwafor attempted to recruit a DEA agent to act as a courier, suggesting the use of a specially-designed suitcase that was in fact later used by another courier. Based on the evidence of record, we cannot say that a rational factfinder could not conclude that there was a single conspiracy to import and distribute heroin.\n4. Prosecutorial misconduct\nVincent Nwafor submits that the prosecutor made comments during rebuttal that disparaged defense counsel and were so inflammatory that he was denied a fair trial. The remarks at issue are as follows:\nNow, Ms. Carothers went on at length about the evidence the government presented where there were no tapes of this, no videotapes of that, no da da da da, da da da. Well, can you imagine if we left the investigation of this case to a criminal defense attorney what kind of evidence we would have?\nTr. at 1477. The record reveals that defense counsel did not object to this comment at trial. In assessing a claim of prosecutorial misconduct, we must look first at the remarks in isolation and then in the context of the entire trial. United States v. Badger, 983 F.2d 1443, 1450 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2391, 124 L.Ed.2d 293 (1993), and petition for cert. filed, 61 U.S.L.W. 3836 (U.S. May 27, 1993) (No. 92-1910). Before an appellate court will reverse a conviction on the basis of prosecu-torial misconduct, the appellant must show that the improper comments so infected the trial that he was denied due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986); Williams v. Chrans, 945 F.2d 926, 949 (7th Cir.1991), cert. denied, — U.S. -, 112 5.Ct. 3002, 120 L.Ed.2d 877 (1992); United States v. McKenzie, 922 F.2d 1323, 1326 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991). While we do not applaud such sarcastic and unprofessional behavior on the part of the prosecution, this one incident was not so egregious that it could in any sense fatally infect the trial.\n5. Sentencing issues\na. Four-point enhancement for being a leader or organizer under U.S.S.G. § 3Bl.l(a)\nVincent Nwafor insists that there is no evidence that he supervised five or more people. At the outset, it is important to note the precise requirement of the Guideline section. Guideline § 3Bl.l(a) provides:\nIf the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.\nApplication Note 3 to this Guidelines section offers guidance in distinguishing between a leadership and a management role:\nFactors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.\nAt sentencing, the court stated that “there is no doubt in my mind, from listening to all of the evidence in the case, that the defendant Vincent Nwafor was the moving force behind the narcotics distribution network with which he engaged, and was the primary individual around whom the others’ activities revolved.” Vincent Nwafor Sent. Tr. at 17. The court went on to say that Vincent Nwa-for was a key player in a group that included Dikeocha, Mr. Emenogha, Gibson Nwafor, Tracy Ousley, and Beverly, among others. Id. at 17-18. The couriers under his direction included Beverly, Ousley, and Mr. Emenogha. We agree with the government that the list goes on to include Agu, Palmer, and Uwazoke. The record also reveals that he attempted to recruit the undercover agent, Officer Joanes. Because the record abundantly supports its findings, we detect no error in the court’s enhancement of Vincent Nwafor’s sentence for occupying a leadership position in the conspiracy.\nb. Two-point enhancement of obstruction of justice under U.S.S.G. § 3C1.1\nThe district court’s finding of obstruction is a finding of fact, and we shall accept that finding unless it is clearly erroneous. United States v. Price, 988 F.2d 712, 721 (7th Cir.1993); see also United States v. Casanova, 970 F.2d 371, 377 (7th Cir.1992) (collecting cases). The Supreme Court has recently addressed this Guideline section in United States v. Dunnigan, — U.S. -, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), where it said that “[t]he district court’s determination that enhancement is required is sufficient, however, if ... the court makes a finding of an obstruction or impediment of justice that encompasses all of the factual predicates for a finding of perjury.” Id. — U.S. at —, at 1117. Further, “[a] witness testifying under oath or affirmation violates [the perjury] statute if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory. See 18 U.S.C. § 1621(1).” Dunnigan, — U.S. at -, 113 S.Ct. at 1116.\nAt the sentencing hearing, the judge found Vincent Nwafor to have been “untruthful” and “utterly incredible” when he took the stand to testify that he had been entrapped by his love for Darlene Sumpter, especially in light of Mr. Nwafor’s prior conviction for drug dealing. Vincent Nwafor Sent. Tr. at 17. This is a sufficient finding of a willful lack of truthfulness regarding a material matter (an affirmative defense) to support such an enhancement for obstruction of justice under the Guidelines.\nc. Failure to make two-point reduction for acceptance of responsibility under U.S.S.G. § 3El.l(a)\nThe district court found that Vincent Nwafor could not be afforded a two-point reduction for accepting responsibility, both because there had been no clear demonstration of acceptance and because he had twice testified untruthfully under oath. Vincent Nwafor Sent. Tr. at 18. Vincent Nwafor also contends that his use of an affirmative defense implies that he has admitted to the criminal activity and that such an admission constitutes an acceptance of responsibility. There is no basis for the contention that the simple assertion of an affirmative defense automatically entitles a defendant to a two-point reduction. As we have recently noted, “[w]here a defendant persists in asserting entrapment, she cannot also claim acceptance of responsibility.” Simpson, 995 F.2d at 112 (7th Cir.1993) (citing United States v. Hansen, 964 F.2d 1017, 1021 (10th Cir.1992)).\nIn addition, Vincent Nwafor’s sentence was enhanced as a result of the court’s finding that he had committed perjury; in light of his obstruction of justice, he has demonstrated no “extraordinary circumstances” that would justify a downward departure for acceptance of responsibility. U.S.S.G. § 3E1.1, Application Note 4; see also Feekes, 929 F.2d at 338 (the court has discretion to reject a downward adjustment under § 3C1.1 when the defendant has committed perjury). We find no error in the court’s decision not to award a reduction for acceptance of responsibility.\nd. Determination that the conspiracy involved at least three kilograms of heroin under U.S.S.G. § 2D1.1\nIn determining that the conspiracy involved an amount of heroin in excess of three kilograms, the court stated that the “evidence presented at trial through the testimony of Palmer ... indicated that between January and September of 1989 the defendant ‘personally was involved in heroin transactions and heroin importation of amounts which totalled greater than 3.1 kilograms.” Vincent Nwafor Sent. Tr. at 15 (emphasis supplied). The court referred to 100 grams imported by Dikeocha in January 1989, 1.7 kilograms smuggled in by Ousley and her Mend, and the 1.3 kilograms that Vincent Nwafor sought to buy in Nigeria in August 1989. Id. at 15-16. The court specifically stated that it found Palmer’s testimony, which addressed these matters among others, to be credible.\nU.S.S.G. § lB1.3(a)(2) provides that the offense level will be adjusted for “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Vincent Nwafor argues that he was only charged in the indictment with 1.66 kilograms and that evidence of additional quantities is unreliable. He relies on his contentions, which the district court rejected, that there is no conspiratorial link to render him responsible for any quantities beyond the amount'mentioned in the indictment and that Palmer’s testimony is unreliable. Because the district court made clear factual and credibility findings, which are supported by the record, we see no reason to disturb them.\nC. Gibson Nwafor\n1. Bank records under Federal Rule of Evidence 803(6)\nGibson Nwafor was convicted for illegally structuring financial transactions in order to avoid the IRS reporting requirements. Specifically, he was indicted for engaging in a series of currency exchange'transactions on each of ten different dates, which totalled in excess of the $10,000 limit. The government maintained that he accomplished this by conducting several smaller transactions at different branches of the First Commercial Bank. In making out its case the government submitted Currency Transáction Reports, (CTR), which reflected numerous currency exchanges made in Gibson Nwafor’s name between July 5 and September 10,1990. See Gov’t Ex. Currency Exchange Chart, Supp. 1.\nOn appeal, Gibson Nwafor argues that the CTRs were inadmissible under Federal Rule of Evidence 803(6). Rule 803(6) provides that regularly kept business records may be admitted to prove the truth of the matters asserted therein because they are presumed to be exceptionally reliable. We review the admission of business records under an abuse of discretion standard. Datamatic Services, Inc. v. United States, 909 F.2d 1029, 1032 (7th Cir.1990); Zapata, 871 F.2d at 625. We first note that McCormick counsels that “[i]f any person in the process [of producing a business record] is not acting in the regular course of the business, then an essential link in the trustworthiness chain fails, just as it does when the person feeding the information does not have firsthand knowledge.” 2 McCormick on Evidence, § 290, at 274 (4th ed. 1992). See United States v. Bohle, 445 F.2d 54, 62 (7th Cir.1971). In Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), the seminal ease in this area, the court found inadmissible a policeman’s report because it relied on information provided by a bystander rather than on the personal knowledge of the policeman who made out the report. In some cases the hearsay nature of the information provided to the maker may fall under another hearsay exception, such as when the information constitutes an admission of a party-opponent pursuant to Federal Rule of Evidence 801(d)(2). No such exception obtains here.\nOn the other hand, courts have also looked to additional sources of corroboration to cure the hearsay problem. For example, in United States v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980), the court denied admission of a hotel guest card that contained a portion filled out by the guest rather than the hotel employee, but indicated that it would have been admissible had the employee examined a source of identification. In Zapata, this court relied on Lieberman and admitted a hotel registration card to prove that the individual had indeed been a guest because it was the hotel’s regular business practice to verify the information and because others had met the individual at the hotel. Zapata, 871 F.2d at 625-26.\nIn the instant case, the government called to the stand Gregory D. Salm, First Vice President and Cashier of First Commercial Bank, who identified Gibson Nwafor in court and testified that he knew him as a bank customer, but admitted that he had never personally witnessed any of Gibson Nwafor’s bank transactions. Tr. at 1005. Mr. Salm also testified that it was the bank’s practice to ask for a driver’s license or to include an account number when completing such transactions and that the tellers were trained to indicate on the form the type of identification. Tr. at 960-62. Gibson Nwa-for objects to the admission of these records insofar as they were introduced to prove that he (and not an imposter) was indeed the person who performed each transaction.\nIn the instant case, several bank employees testified at trial. In addition to Mr. Salm, the government called to the stand several bank tellers who had handled some of the transactions in question. Cynthia Nora-lez from First Commercial Bank testified that she had handled a currency exchange for Gibson Nwafor on August 24, 1990, that totalled $9,800; an exchange on August 27, 1990, totalling $10,000; and an exchange on September 10,1990, totalling $10,000. Tr. at 1135-38. Ila Patel from First Commercial Bank identified Gibson Nwafor as the person who exchanged $2,000 for larger bills on August 11, 1990, and $1,800 for larger bills on August 27, 1990. Tr. at 1144-45.\nWe have examined the balance of the currency transfer forms and note that the person conducting the transaction has been identified either by account number or driver’s license number on all but two of the forms. Under the circumstances here, the combination of the business practice of taking some form of identification, and the added safeguard of eyewitness testimony accounting for several of the exchanges, provided the district court with an adequate basis to conclude that the CTRs were reliable and, therefore, admissible as hearsay exceptions under Federal Rule of Evidence 803(6).\n2. Obstruction of justice enhancement under U.S.S.G. § 3C1.1\nGibson Nwafor maintains that his base offense level at sentencing was improperly increased by two levels for obstruction of justice. The presentence report recommended the enhancement because Gibson Nwafor had perjured himself at a pre-trial hearing on a suppression motion when he testified that, prior to executing a consent to search form, he and his family had been threatened by law enforcement officers. The court denied the motion, and Gibson Nwafor submits that in so doing the court did not find him to have perjured himself; rather, he argues, the court found merely that he had not shifted the burden in the suppression hearing back to the government. We cannot accept this gloss on the district court’s denial of the motion.\nIn United States v. Lozoya-Morales, 931 F.2d 1216, 1218-20 (7th Cir.1991), we applied United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (warning against enhancing the sentences of all defendants whose testimony is deemed false), and determined that the district court must make an independent factual determination regarding the perjury for enhancement purposes. The sentencing court’s determination that a defendant testified falsely is a finding of fact that will be affirmed absent clear error. United States v. Easley, 977 F.2d 283, 286 (7th Cir.1992). In this case, the district court, in imposing the enhancement, acknowledged that the fact that Gibson Nwafor testified, alone, could not constitute obstruction of justice, but that “testifying untruthfully as to material matters, for the court’s determination, as Mr. Gibson Nwafor did, does constitute an obstruction of justice.... ” Gibson Nwafor Sent. Tr. at 16. In support of this conclusion, the court said that Gibson Nwafor’s testimony “was contradicted by several agents [at the pretrial proceeding] and, ... his testimony was not credible when evaluated in conjunction with the testimony provided by those agents.” Gibson Nwafor Sent. Tr. at 15-16. This statement cannot be read as anything but a clear determination by the judge who had presided at both the hearing and the trial that Gibson Nwafor had perjured himself at the suppression hearing. Consequently, the enhancement for obstruction of justice was not error.\nD. Charles Emenogha\nMr. Emenogha’s sole argument on appeal is that his offense level should have been reduced by two points because he was only a “minor participant” in the conspiracy. See U.S.S.G. § 3B1.2(b). The government argues that Mr. Emenogha has waived this argument by failing to object at sentencing. United States v. Bafia, 949 F.2d 1465, 1476 (7th Cir.1991), cert. denied sub nom. Kerridan v. United States, — U.S. -, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992). At the hearing, Mr. Emenogha’s counsel made opening remarks during which she simply stated that Mr. Emenogha’s conduct was “relatively minimal,” but counsel failed to request a reduction on the strength of § 3B1.2(b) or to elaborate on Mr. Emeno-gha’s role. Emenogha Sent. Tr. at 14. In any case, this court has found that such a reduction might be appropriate when the individual has transported a small quantity of drugs on only one occasion. United States v. Osborne, 931 F.2d 1139, 1157 (7th Cir.1991). Here, however, the court indicated that Mr. Emenogha would be sentenced on the basis of “the 997 grams [of heroin base] plus the relevant conduct of the 1.3 kilograms of heroin.” Emenogha Sent. Tr. at 19. The judge also found it significant that heroin base could yield 10% more saleable heroin. Id. at 22. In addition, couriers are critical cogs in drug conspiracies, and their importance should not be minimized. Consequently, we cannot find any error in the district court’s unwillingness to reduce the sentence on this basis.\nConclusion\nFor the foregoing reasons, we affirm the district court’s judgment in all respects.\nAFFIRMED.\n. At the time of trial defendant Ebenezer Dikeo-cha was a fugitive and does not join in this appeal.\n. Federal Rule of Evidence 404(b) provides in pertinent part:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....\n. The Supreme Court in Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988), clarified this prong; originally the Seventh Circuit standard was \"clear and convincing evidence.”\n. Vincent Nwafor argues in the reply brief that the article was improperly sent back with the jury. But Vincent Nwafor’s attorney was unable to convince this court, either in the brief or at oral argument, that there is any basis in fact and on the record for this rather rash assertion.\n. Gibson Nwafor adopts Vincent Nwafor's argument on this issue.\n. Vincent Nwafor’s citation to United States v. McLain, 823 F.2d 1457 (11th Cir.1987), does not aid his argument. In that case even repeated comments by the prosecutor that the defense counsel was lying and misleading the jury did not alone fatally infect the trial. Rather, the judge’s mismanagement, coupled with these comments, resulted in a trial that denied the defendant due process. Id. at 1462. The prosecutor's remark in the case before us pales in comparison with the McLain situation. This case is more analogous to the facts found in United States v. Turk, 870 F.2d 1304 (7th Cir.1989), where the court found that two instances of sarcasm could not have unduly influenced the jury.\n. U.S.S.G. § 3C1.1 provides:\nIf the defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.\n. The district court also said, in addressing the ácceptance of responsibility reduction request, that Vincent Nwafor twice testified under oath and had done so \"in a manner which was untruthful and incredible.” Vincent Nwafor Sent. Tr. at 18.\n. U.S.S.G. § 3El.l(a) provides in pertinent part:\nIf the defendant clearly demonstrates a recognition and affirmative acceptance of responsibility for his criminal conduct, reduce the offense level by 2 levels.\nApplication Note 4 provides:\nConduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.\n. The government also notes that there was evidence of considerably more than 3.1 kilograms of heroin: undercover buys accounted for several hundred grams and Dikeocha smuggled 500 grams into the country in January 1989.\n. Vincent Nwafor purports to adopt Gibson Nwafor’s argument regarding the admissibility of various tapes, transcripts, and translations into evidence, but because Gibson Nwafor presents no such argument, we cannot consider it.\n. Federal Rule of Evidence 803(6) provides that the following are not excluded by the hearsay rule:\nA memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness ....\n. But see 5 Wigmore, Evidence, § 1561a, at 490, § 1561b, at 507 (Chadbourn rev. 1974) (criticizing this limitation on the business records hearsay exception).\n. See, e.g., United States v. Smith, 609 F.2d 1294, 1301 n. 7 (9th Cir.1979) (as the hotel record included the declarant's signature, the hearsay problem might-have been cured by invoking Fed.R.Evid. 801(d)(2)(A) and (B)).\n. In United States v. Pearson, 508 F.2d 595, 597 (5th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975), hotel guest registration cards were admitted because the information supplied by the guests was verified by the desk clerk. Most recently, the court in United States v. McIntyre, 997 F.2d 687 (10th Cir.1993), admitted Western Union’s records to prove who had received money because verification of identity was required, while determining that the records were not admissible to identify the sender because there was no similar policy of identification.\n. Cf. United States v. Patrick, 959 F.2d 991, 1000-1001 (D.C.Cir.1992) (citing to Zapata and Lieberman with approval and finding that admission was error because no evidence was elicited that it was standard practice to verify the customer’s identity).\n. Courts have regularly upheld admissions under this hearsay exception when the records have been introduced in order to prove merely that the transactions had been carried out or that someone representing the defendant had effectuated the transaction. See, e.g., United States v. Franks, 939 F.2d 600, 602 (8th Cir.1991) (Federal Express airbill showing signature of recipient, Franks, admissible not to prove that Franks received it but to prove that someone using that name received it).\n. The two transactions, on August 2, 1990, and September 10, 1990 (both dates that were included in the charges), account for only $4,000 in exchanges.\n. U.S.S.G. § 3C1.1 provides as follows:\nIf the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.\nApplication Note 3 includes \"committing, suborning, or attempting to suborn perjury” among the examples of conduct that would merit an enhancement. See supra text accompanying note 7.\n.We must reject Gibson Nwafor’s assertion that the enhancement would have a chilling effect on his First Amendment rights. The Supreme Court has recently rejected such an argument, holding that there can be no constitutional right to commit perjury. United States v. Dunnigan, - U.S. -, -, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993).\n. See, e.g., Osborne, 931 F.2d at 1158 (quoting with approval United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990)); Briscoe, 896 F.2d at 1507.", "type": "majority", "author": "RIPPLE, Circuit Judge."}], "attorneys": ["Barry R. Elden, James P. Fleissner, Asst. U.S. Attys., Criminal Receiving, Appellate Div., Chicago, IL, Scott A. Verseman (argued), Office of the U.S. Atty., Rockford, IL, for U.S.", "David W. Gleicher (argued), Chicago, IL, for Charles Emenogha.", "Carlton E. Odim (argued), Chicago, IL, for Gibson Nwafor.", "Roberta Samotny, Anita Rivkin-Carothers (argued), Chicago, IL, for Vincent Nwafor."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Charles EMENOGHA, Gibson Nwafor, and Vincent Nwafor, Defendants-Appellants.\nNos. 91-2577, 91-2832, 91-2833.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Sept. 14, 1992.\nDecided July 12, 1993.\nBarry R. Elden, James P. Fleissner, Asst. U.S. Attys., Criminal Receiving, Appellate Div., Chicago, IL, Scott A. Verseman (argued), Office of the U.S. Atty., Rockford, IL, for U.S.\nDavid W. Gleicher (argued), Chicago, IL, for Charles Emenogha.\nCarlton E. Odim (argued), Chicago, IL, for Gibson Nwafor.\nRoberta Samotny, Anita Rivkin-Carothers (argued), Chicago, IL, for Vincent Nwafor.\nBefore CUDAHY, RIPPLE, and KANNE, Circuit Judges."}	CUDAHY	RIPPLE	KANNE	1	1	1	0	0	0	1 F.3d 473	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Charles EMENOGHA, Gibson Nwafor, and Vincent Nwafor, Defendants-Appellants\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-12\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nRIPPLE, Circuit Judge.\nOn March 26, 1991, the appellants were convicted of various drug offenses. Charles Emenogha was found guilty of one count of importing heroin and one count of possessing heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 952(a); Vincent Nwafor was found guilty of one count of possessing heroin with intent to distribute and five counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1); and Gibson Nwafor was found guilty of ten counts of structuring financial transactions to avoid Internal Revenue reporting requirements in violation of 31 U.S.C. §§ 5324 and 5322(a). All defendants were also convicted of conspiracy to import and distribute heroin in violation of 21 U.S.C. § 846. Mr. Emenogha was sentenced to 132 months’ incarceration, Gibson Nwafor to 160 months, and Vincent Nwafor to 396 months. They now appeal various aspects of their convictions and sentences. We affirm.\nI\nBACKGROUND\nThis trio of Nigerian citizens was convicted of conspiring to import heroin from Africa for distribution in Chicago. They joined forces to smuggle the drug into this country by financing couriers to purchase heroin in Lagos, Nigeria, and to convey it to Chicago where the other conspiracy members would divide it for distribution. Vincent Nwafor, the prime mover in the enterprise, organized the purchases and the subsequent distributions. Gibson Nwafor, Vincent’s brother, handled the financial arrangements. Gibson Nwafor held the profits at his own apartment, converted the proceeds to larger bills for easier handling at various Chicago banks, and wire-transferred money out of the country on Vincent Nwafor’s behalf. Mr. Emeno-gha, who is the Nwafors’ cousin, acted as a courier and brought heroin to Chicago from Nigeria on at least three occasions.\nThe operation was assisted by Ebenezer Dikeocha, who smuggled heroin into the United States and distributed it at least once in conjunction with Vincent Nwafor. Additional distributors were Andy Uwazoke and Ike Agu. Larry Palmer, a/k/a Lawrence Ofuokwu (hereinafter “Palmer”), an uncharged member of the conspiracy, travelled to Nigeria to purchase heroin; he pled guilty to a drug charge in Maryland and agreed to cooperate with the United States in investigating other members of the conspiracy. Other couriers for the conspiracy were Tracy Ousley, Beverly (last name not known), and Darlene Sumpter, Vincent Nwafor’s girlfriend, who contacted the Drug Enforcement Administration (DEA) in 1989 and agreed to cooperate in arranging an undercover purchase of heroin between Vincent Nwafor and Chicago police officer Regina Joanes.\nPalmer testified at length about the structure and activities of the conspiracy. He was privy to, and a major player in, a number of smuggling operations, including a December 1988 episode when he was involved with Vincent Nwafor and Dikeocha in importing 500 grams of heroin from Nigeria. In July 1989, Palmer met with Vincent Nwafor, Dikeocha, and Uwazoke to discuss a plan to use Tracy Ousley and Beverly to smuggle heroin from Kenya, a plan that produced 1.7 kilograms of the drug. Another plan was made that summer for Palmer to purchase drugs in Nigeria and for Tracy Ousley to bring them to the United States. Palmer made the purchase in Nigeria in October and returned to the United States, but a courier was not sent to Nigeria to pick up the drugs.\nAfter Palmer was arrested in November 1989, he telephoned Vincent Nwafor and learned that Mr. Emenogha had returned from Nigeria with some of the drugs that Palmer had left behind. When Palmer asked about his share of the profits from these drugs, Vincent Nwafor told him that he was entitled to none because Palmer’s brother in Nigeria would not relinquish a portion of the drugs that Palmer had left in his care.\nThe DEA arranged a number of undercover purchases with the aid of the Chicago police and Darlene Sumpter. Between January 27, 1989, and September 10, 1990, five purchases were made from Vincent Nwafor and one from Dikeocha. The purchases from Vincent Nwafor totalled over 200 grams of heroin. During the course of several of the purchases, Vincent Nwafor talked to Officer Joanes about her acting as courier and suggested that she travel to Africa via Jamaica or the Bahamas and return with the drugs in a specially built suitcase.\nGibson Nwafor’s role in the conspiracy was to handle the profits efficiently. He stored the cash at his apartment, exchanged small bills for $100 bills for easy transport, and wire-transferred thousands of dollars out of the country to'banks in Belgium and Germany. From February 23, 1989, to August 3, 1990, he wire-transferred $142,619 in twenty-three separate transactions. Between July 5, 1990, and September 10, 1990, he exchanged a total of $139,400 for larger bills oh ten different occasions. Palmer testified that he was with Gibson Nwafor when he processed large sums of drug money through various banks in such a way that he could avoid IRS reporting requirements.\nDarlene Sumpter was arrested at O’Hare Airport on March 31, 1990, prior to boarding an international flight with $103,940 in $100 bills. The money was in several envelopes, some of them marked with the names' Ike, MacDonald (a/k/a Emenogha), and Yin. In subsequent telephone calls, Vincent Nwafor told her that the money had been put into her luggage by other members of the conspiracy. On July 25, 1990, Mr. Emenogha was arrested on arrival at O’Hare Airport with 997 grams of heroin secreted in his suitcases. Finally, the Nwafors were arrested on September 10, 1990. Vincent Nwafor signed a consent form for a search of his apartment and storage locker., In the locker, agents found a digital scale and four plastic bags containing a substance resembling heroin. Tests later revealed that the substances amounted to approximately 400 grams of heroin in purity ranging from 2.6 percent to 35 percent. Gibson Nwafor consented to a search of his apartment where agents found $21,900 in $100 bills hidden in various places. Agents also found documents evidencing a Brussels bank account, some wire transfer receipts, and an address book with telephone numbers for Agu, Dikeocha, and Mr. Emeno-gha.\nFollowing their convictions, the three appellants challenge a number of evidentiary and sentencing matters. The Nwafors also challenge their convictions on the basis of a single conspiracy.\nII\nDISCUSSION\nA. Standards of Review\nWe review evidentiary matters for abuse of discretion. United States v. Garcia, 986 F.2d 1135, 1139 (7th Cir.1993); United States v. Briscoe, 896 F.2d 1476, 1490 (7th Cir.), cert. denied sub nom. Usman v. United States, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). “Appellants who challenge evidentiary rulings of the district court are like rich men who wish to enter the Kingdom: their prospects compare with those of camels who wish to pass through the eye of the needle.” United States v. Glecier, 923 F.2d 496, 503 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 54, 116 L.Ed.2d 31 (1991). “Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). When reviewing a challenge to the sufficiency of the evidence, we review the evidence and reasonable inferences therefrom in a light most favorable to the government, and “[i]f any rational jury could have found the defendant guilty beyond a reasonable doubt, the conviction will be affirmed.” United States v. Curry, 977 F.2d 1042, 1053 (7th Cir.1992), cert. denied sub nom. Holland v. United States, — U.S. -, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993). We review findings of fact in sentencing matters for clear error. United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993); United States v. Davis, 938 F.2d 744, 746 (7th Cir.1991); United States v. Feekes, 929 F.2d 334, 338 (7th Cir.1991).\nB. Vincent Nwafor\n1. Other crimes evidence under Federal Rule of Evidence 404(b)\nWe review evidentiary rulings for abuse of discretion. United States v. Smith, 995 F.2d 662, 671 (7th Cir.1993). Vincent Nwafor’s defense theory was that he was entrapped by his girlfriend, a government informant, who induced him with the promise of sexual favors to make drug deliveries to the undercover agents. In order to counter such a defense, the government is obliged to prove beyond a reasonable doubt either the absence of government inducement or the defendant’s predisposition to commit the crime. United States v. Simpson, 995 F.2d 109, 111 (7th Cir.1993); United States v. Blackman, 950 F.2d 420, 423 (7th Cir.1991).\nAs the Supreme Court has recently noted: [when] the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.\nJacobson v. United States, — U.S. -, -, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992). Criminal disposition is “the principal element in the defense of entrapment.” Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988) (quoting United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973)); United States v. Sanchez, 984 F.2d 769, 773 (7th Cir.1993). Evidence of other bad acts is admissible to prove predisposition when entrapment is at issue. United States v. Goodapple, 958 F.2d 1402, 1406 (7th Cir.1992). Accordingly, the government sought to introduce evidence of Vincent Nwafor’s 1986 conviction for his involvement in an undercover heroin buy. The evidence was admitted over Vincent Nwafor’s objection.\nThis court has said that such evidence is subject to a four-prong test: it is admissible if (1) it is directed toward establishing a matter other than the defendant’s propensity to commit the crime, (2) the evidence was sufficient to support a jury finding that the defendant committed the similar act, (3) the other act is similar enough and close enough in time to be relevant to the matter in issue, and (4) the probative value is not substantially outweighed by the danger of unfair prejudice. United States v. Khorrami, 895 F.2d 1186, 1194 (7th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct, 522, 112 L.Ed.2d 533 (1990); United States v. Zapata, 871 F.2d 616, 620-21 (7th Cir.1989) (citing United States v. Shackleford 738 F.2d 776 (7th Cir.1984)). In applying this analysis, the district court is afforded a considerable amount of discretion, and we shall reverse only for abuse of that discretion. Zapata, 871 F.2d at 621.\nVincent Nwafor .argues first that the evidence was introduced improperly to show his propensity to commit the crime, rather than merely his predisposition. We cannot accept this argument. The introduction of a prior drug conviction speaks directly to Vincent Nwafor’s predisposition to engage in such illegal drug activity.\nSecond, Vincent Nwafor argues that the evidence is neither similar enough nor close enough in time to be relevant. Here he is charged with being the leader and organizer, but in the 1986 conviction he was merely a broker for the heroin. We cannot find this dissimilar, given his defense that he did not have a predisposition to engage in drug' deals. Vincent Nwafor concedes that this court has held that five years is sufficiently close in time for purposes of Rule 404(b). See United States v. Zeidman, 540 F.2d 314, 319 (7th Cir.1976). However, he maintains that the government fell afoul of the prejudice prong when it went beyond the mere introduction of the prior conviction by putting on testimony of the purchasing agent and introducing the narcotics (14.05 grams) from the 1986 case.\nThe only prong of the analysis that requires our attention is the final one, a Rule, 403-type balancing of probative value with the risk of undue prejudice. See Goodapple, 958 F.2d at 1407 (the fourth prong of the Rule 404(b) analysis covers Rule 403). As a reviewing court, we cannot re-assess “the relative impact of the legitimate and illegitimate inferences supported by evidence ... [therefore we defer to the] contemporaneous assessment of the presentation, credibility, and impact of the challenged evidence. We therefore accord great deference to the district judge’s decision to admit or exclude evidence under Rule 403.” United States v. York, 933 F.2d 1343, 1352 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 321, 116 L.Ed.2d 262 (1991). “This type of evidence is always prejudicial to the defendant, but when ... it is balanced against its legitimate uses, and limited by the court’s instructions, the prejudice is outweighed by its probative value.” United States v. Powers, 978 F.2d 354, 361 (7th Cir.1992) (discussing 404(b) evidence), cert. denied, — U.S. -, 113 S.Ct. 1323, 122 L.Ed.2d 708 (1993). The probative value of this evidence is high, centered as it is on Vincent Nwafor’s prior illegal drug activities. The government submits that it did not put on a mini-trial on the matter and that the testimony only involved some fifteen pages (exclusive of defense objections) of a very long transcript. The district court was the best judge of whether the time expenditure put undue emphasis on the prior act. The actual production of the baggie containing the heroin may not have been necessary. However, the district court took great care to give repeated warnings to the jury to consider the testimony only insofar as it bears on Vincent Nwafor’s predisposition to deal in drugs. See Tr. at 1029, 1041, 1049. These instructions served to compensate for any potential prejudice. See United States v. Maholias, 985 F.2d 869, 880 (7th Cir.1993); United States v. Koen, 982 F.2d 1101, 1117 (7th Cir.1992). Indeed, immediately after the heroin was presented, the court hastened to instruct the jury once again about the testimony’s limited usefulness. Tr. at 1041. Consequently, there was no error in the admission of 404(b) evidence to show Vincent Nwafor’s predisposition for involvement in illicit drug transactions.\n2. Admission of magazine article .for impeachment\nThe government sought introduction of a photocopy of a page from a magazine article dealing with the drug connection between America and Nigeria and mentioning Vincent Nwafor, among others, as one who has been named by a Chicago Grand Jury for his involvement. The article was found with other drug-related items in Vincent Nwafor’s locker. Initially, the district court denied admission because of its concern that the probative value of the article was “substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. In light of Vincent Nwafor’s denial of his intent and predisposition to distribute heroin, as well as his ownership of the heroin and scales found in the locker, the judge, sua sponte, reconsidered his earlier ruling and permitted the government to use the article for impeachment purposes only. See United States v. Taylor, 728 F.2d 864, 870 (7th Cir.1984) (permitting evidence of other weapons at the defendant’s residence after defendant had denied knowledge’ of presence of a machine gun). It is clear that reserving judgment gave the trial court an opportunity to consider the risks and to weigh them against the probative value in light of the witness’s denial. Defense counsel objected to the reference in the article to a previous arrest of Vincent Nwafor, but the court correctly overruled the objection because the arrest had resulted in a conviction that was properly before the court in the form of 404(b) evidence. Tr. at 1223-24. ■ In addition, further safeguards were .implemented when the article was neither published to the jury nor admitted into evidence. The cross-examination was limited to questions about Vincent Nwafor’s familiarity with the article and about where he kept the clipping. Tr. at 1261-64. The admission of this material, even on such a limited basis, was obviously a close call. However, the district court recognized it as such and weighed its decision. Under these circumstances, we cannot say, given the deferential standard, that reversible error was committed.\n3. Single versus multiple conspiracies\nVincent Nwafor also challenges the sufficiency of the evidence of the existence of a single conspiracy (as opposed to discrete drug deals). Specifically, he argues that the variance' between' the proof and the indictment requires reversal. Vincent Nwafor also maintains that the charging of a single conspiracy permitted the government to make its case by introducing the uncorroborated testimony of co-conspirator Larry Palmer, pursuant to Federal Rule of Evidence 801(d)(2)(E), which would otherwise have been inadmissible. The government counters, however, that Palmer’s extensive testimony on the stand is admissible under Federal Rule of Evidence 801(d)(2)(A) as admissions of a party-opponent. In United States v. Thompson, 944 F.2d 1331, 1341 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1177, 117 L.Ed.2d 422 (1992), we said:\nCo-conspirator testimony about the words and deeds of a defendant are not hearsay; the words and deeds of the defendant, while themselves out-of-court statements, are admissions, and because the testimony is offered in court, the statements of the co-conspirator are not hearsay either.\nThe in-court testimony of Palmer was therefore properly admitted under Federal Rule of- Evidence 801(d)(2)(A).\nViewing the proof at trial in a light most favorable to the prosecution, “we must uphold the jury’s single conspiracy determination if any rational trier of fact could have found, beyond a reasonable doubt, the one conspiracy.” United States v. Paiz, 905 F.2d 1014, 1019 (7th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). The Paiz court also notes that this deference to a jury decision is important in the conspiracy context given the frequent need to infer the existence of a conspiracy from circumstantial evidence and reasonable inferences therefrom. Id.\nIn United States v. Townsend, 924 F.2d 1385, 1389-90 (7th Cir.1991), which dealt with the question of variance in a conspiracy context, we said that\n[t]he crime of conspiracy focuses on agreements, not groups. True, it takes at least two to conspire, but the government doesn’t have to prove with whom a defendant conspired; it need only prove that the defendant joined the agreement alleged, not the group_ So to overturn a conspiracy conviction on the ground of variance, an appellant must show both that he did not conspire with each defendant and that he was prejudiced by being tried with defendants who were not his coconspira-tors.\nThe essential distinguishing feature between a single conspiracy and multiple conspiracies is that multiple conspiracies manifest “no agreement toward a common goal, and each conspirator’s agreement constitutes an end unto itself.” Curry, 977 F.2d at 1052 (citing Paiz, 905 F.2d at 1020).\nThere was abundant evidence at trial from which the jury could conclude that there was a single conspiracy headed by Vincent Nwa-for that was devoted to the importation of heroin from Africa and its subsequent distribution in the Chicago area. The division of duties was fairly clear-cut. “Indeed, the whole point of a conspiracy, and the reason why it is punished separately as a crime, is to enable several persons to cooperate and split duties in order to facilitate the object of the conspiracy.” Curry, 977 F.2d at 1053. The testimony of Palmer, in conjunction with recorded telephone conversations with Gibson Nwafor, revealed the relationship among Palmer, the Nwafors, Mr. Emenogha, and Uwazoke. Vincent Nwafor entrusted the drug money to his brother, Gibson Nwafor. Tr. at 111. Palmer also testified to a group meeting, involving Palmer, Vincent Nwafor, Dikeocha, and Uwazoke, to plan a Kenya purchase by Ousley and Beverly. Tr. at 161— 62. In addition, Vincent Nwafor attempted to recruit a DEA agent to act as a courier, suggesting the use of a specially-designed suitcase that was in fact later used by another courier. Based on the evidence of record, we cannot say that a rational factfinder could not conclude that there was a single conspiracy to import and distribute heroin.\n4. Prosecutorial misconduct\nVincent Nwafor submits that the prosecutor made comments during rebuttal that disparaged defense counsel and were so inflammatory that he was denied a fair trial. The remarks at issue are as follows:\nNow, Ms. Carothers went on at length about the evidence the government presented where there were no tapes of this, no videotapes of that, no da da da da, da da da. Well, can you imagine if we left the investigation of this case to a criminal defense attorney what kind of evidence we would have?\nTr. at 1477. The record reveals that defense counsel did not object to this comment at trial. In assessing a claim of prosecutorial misconduct, we must look first at the remarks in isolation and then in the context of the entire trial. United States v. Badger, 983 F.2d 1443, 1450 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2391, 124 L.Ed.2d 293 (1993), and petition for cert. filed, 61 U.S.L.W. 3836 (U.S. May 27, 1993) (No. 92-1910). Before an appellate court will reverse a conviction on the basis of prosecu-torial misconduct, the appellant must show that the improper comments so infected the trial that he was denied due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986); Williams v. Chrans, 945 F.2d 926, 949 (7th Cir.1991), cert. denied, — U.S. -, 112 5.Ct. 3002, 120 L.Ed.2d 877 (1992); United States v. McKenzie, 922 F.2d 1323, 1326 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991). While we do not applaud such sarcastic and unprofessional behavior on the part of the prosecution, this one incident was not so egregious that it could in any sense fatally infect the trial.\n5. Sentencing issues\na. Four-point enhancement for being a leader or organizer under U.S.S.G. § 3Bl.l(a)\nVincent Nwafor insists that there is no evidence that he supervised five or more people. At the outset, it is important to note the precise requirement of the Guideline section. Guideline § 3Bl.l(a) provides:\nIf the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.\nApplication Note 3 to this Guidelines section offers guidance in distinguishing between a leadership and a management role:\nFactors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.\nAt sentencing, the court stated that “there is no doubt in my mind, from listening to all of the evidence in the case, that the defendant Vincent Nwafor was the moving force behind the narcotics distribution network with which he engaged, and was the primary individual around whom the others’ activities revolved.” Vincent Nwafor Sent. Tr. at 17. The court went on to say that Vincent Nwa-for was a key player in a group that included Dikeocha, Mr. Emenogha, Gibson Nwafor, Tracy Ousley, and Beverly, among others. Id. at 17-18. The couriers under his direction included Beverly, Ousley, and Mr. Emenogha. We agree with the government that the list goes on to include Agu, Palmer, and Uwazoke. The record also reveals that he attempted to recruit the undercover agent, Officer Joanes. Because the record abundantly supports its findings, we detect no error in the court’s enhancement of Vincent Nwafor’s sentence for occupying a leadership position in the conspiracy.\nb. Two-point enhancement of obstruction of justice under U.S.S.G. § 3C1.1\nThe district court’s finding of obstruction is a finding of fact, and we shall accept that finding unless it is clearly erroneous. United States v. Price, 988 F.2d 712, 721 (7th Cir.1993); see also United States v. Casanova, 970 F.2d 371, 377 (7th Cir.1992) (collecting cases). The Supreme Court has recently addressed this Guideline section in United States v. Dunnigan, — U.S. -, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), where it said that “[t]he district court’s determination that enhancement is required is sufficient, however, if ... the court makes a finding of an obstruction or impediment of justice that encompasses all of the factual predicates for a finding of perjury.” Id. — U.S. at —, at 1117. Further, “[a] witness testifying under oath or affirmation violates [the perjury] statute if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory. See 18 U.S.C. § 1621(1).” Dunnigan, — U.S. at -, 113 S.Ct. at 1116.\nAt the sentencing hearing, the judge found Vincent Nwafor to have been “untruthful” and “utterly incredible” when he took the stand to testify that he had been entrapped by his love for Darlene Sumpter, especially in light of Mr. Nwafor’s prior conviction for drug dealing. Vincent Nwafor Sent. Tr. at 17. This is a sufficient finding of a willful lack of truthfulness regarding a material matter (an affirmative defense) to support such an enhancement for obstruction of justice under the Guidelines.\nc. Failure to make two-point reduction for acceptance of responsibility under U.S.S.G. § 3El.l(a)\nThe district court found that Vincent Nwafor could not be afforded a two-point reduction for accepting responsibility, both because there had been no clear demonstration of acceptance and because he had twice testified untruthfully under oath. Vincent Nwafor Sent. Tr. at 18. Vincent Nwafor also contends that his use of an affirmative defense implies that he has admitted to the criminal activity and that such an admission constitutes an acceptance of responsibility. There is no basis for the contention that the simple assertion of an affirmative defense automatically entitles a defendant to a two-point reduction. As we have recently noted, “[w]here a defendant persists in asserting entrapment, she cannot also claim acceptance of responsibility.” Simpson, 995 F.2d at 112 (7th Cir.1993) (citing United States v. Hansen, 964 F.2d 1017, 1021 (10th Cir.1992)).\nIn addition, Vincent Nwafor’s sentence was enhanced as a result of the court’s finding that he had committed perjury; in light of his obstruction of justice, he has demonstrated no “extraordinary circumstances” that would justify a downward departure for acceptance of responsibility. U.S.S.G. § 3E1.1, Application Note 4; see also Feekes, 929 F.2d at 338 (the court has discretion to reject a downward adjustment under § 3C1.1 when the defendant has committed perjury). We find no error in the court’s decision not to award a reduction for acceptance of responsibility.\nd. Determination that the conspiracy involved at least three kilograms of heroin under U.S.S.G. § 2D1.1\nIn determining that the conspiracy involved an amount of heroin in excess of three kilograms, the court stated that the “evidence presented at trial through the testimony of Palmer ... indicated that between January and September of 1989 the defendant ‘personally was involved in heroin transactions and heroin importation of amounts which totalled greater than 3.1 kilograms.” Vincent Nwafor Sent. Tr. at 15 (emphasis supplied). The court referred to 100 grams imported by Dikeocha in January 1989, 1.7 kilograms smuggled in by Ousley and her Mend, and the 1.3 kilograms that Vincent Nwafor sought to buy in Nigeria in August 1989. Id. at 15-16. The court specifically stated that it found Palmer’s testimony, which addressed these matters among others, to be credible.\nU.S.S.G. § lB1.3(a)(2) provides that the offense level will be adjusted for “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Vincent Nwafor argues that he was only charged in the indictment with 1.66 kilograms and that evidence of additional quantities is unreliable. He relies on his contentions, which the district court rejected, that there is no conspiratorial link to render him responsible for any quantities beyond the amount'mentioned in the indictment and that Palmer’s testimony is unreliable. Because the district court made clear factual and credibility findings, which are supported by the record, we see no reason to disturb them.\nC. Gibson Nwafor\n1. Bank records under Federal Rule of Evidence 803(6)\nGibson Nwafor was convicted for illegally structuring financial transactions in order to avoid the IRS reporting requirements. Specifically, he was indicted for engaging in a series of currency exchange'transactions on each of ten different dates, which totalled in excess of the $10,000 limit. The government maintained that he accomplished this by conducting several smaller transactions at different branches of the First Commercial Bank. In making out its case the government submitted Currency Transáction Reports, (CTR), which reflected numerous currency exchanges made in Gibson Nwafor’s name between July 5 and September 10,1990. See Gov’t Ex. Currency Exchange Chart, Supp. 1.\nOn appeal, Gibson Nwafor argues that the CTRs were inadmissible under Federal Rule of Evidence 803(6). Rule 803(6) provides that regularly kept business records may be admitted to prove the truth of the matters asserted therein because they are presumed to be exceptionally reliable. We review the admission of business records under an abuse of discretion standard. Datamatic Services, Inc. v. United States, 909 F.2d 1029, 1032 (7th Cir.1990); Zapata, 871 F.2d at 625. We first note that McCormick counsels that “[i]f any person in the process [of producing a business record] is not acting in the regular course of the business, then an essential link in the trustworthiness chain fails, just as it does when the person feeding the information does not have firsthand knowledge.” 2 McCormick on Evidence, § 290, at 274 (4th ed. 1992). See United States v. Bohle, 445 F.2d 54, 62 (7th Cir.1971). In Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), the seminal ease in this area, the court found inadmissible a policeman’s report because it relied on information provided by a bystander rather than on the personal knowledge of the policeman who made out the report. In some cases the hearsay nature of the information provided to the maker may fall under another hearsay exception, such as when the information constitutes an admission of a party-opponent pursuant to Federal Rule of Evidence 801(d)(2). No such exception obtains here.\nOn the other hand, courts have also looked to additional sources of corroboration to cure the hearsay problem. For example, in United States v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980), the court denied admission of a hotel guest card that contained a portion filled out by the guest rather than the hotel employee, but indicated that it would have been admissible had the employee examined a source of identification. In Zapata, this court relied on Lieberman and admitted a hotel registration card to prove that the individual had indeed been a guest because it was the hotel’s regular business practice to verify the information and because others had met the individual at the hotel. Zapata, 871 F.2d at 625-26.\nIn the instant case, the government called to the stand Gregory D. Salm, First Vice President and Cashier of First Commercial Bank, who identified Gibson Nwafor in court and testified that he knew him as a bank customer, but admitted that he had never personally witnessed any of Gibson Nwafor’s bank transactions. Tr. at 1005. Mr. Salm also testified that it was the bank’s practice to ask for a driver’s license or to include an account number when completing such transactions and that the tellers were trained to indicate on the form the type of identification. Tr. at 960-62. Gibson Nwa-for objects to the admission of these records insofar as they were introduced to prove that he (and not an imposter) was indeed the person who performed each transaction.\nIn the instant case, several bank employees testified at trial. In addition to Mr. Salm, the government called to the stand several bank tellers who had handled some of the transactions in question. Cynthia Nora-lez from First Commercial Bank testified that she had handled a currency exchange for Gibson Nwafor on August 24, 1990, that totalled $9,800; an exchange on August 27, 1990, totalling $10,000; and an exchange on September 10,1990, totalling $10,000. Tr. at 1135-38. Ila Patel from First Commercial Bank identified Gibson Nwafor as the person who exchanged $2,000 for larger bills on August 11, 1990, and $1,800 for larger bills on August 27, 1990. Tr. at 1144-45.\nWe have examined the balance of the currency transfer forms and note that the person conducting the transaction has been identified either by account number or driver’s license number on all but two of the forms. Under the circumstances here, the combination of the business practice of taking some form of identification, and the added safeguard of eyewitness testimony accounting for several of the exchanges, provided the district court with an adequate basis to conclude that the CTRs were reliable and, therefore, admissible as hearsay exceptions under Federal Rule of Evidence 803(6).\n2. Obstruction of justice enhancement under U.S.S.G. § 3C1.1\nGibson Nwafor maintains that his base offense level at sentencing was improperly increased by two levels for obstruction of justice. The presentence report recommended the enhancement because Gibson Nwafor had perjured himself at a pre-trial hearing on a suppression motion when he testified that, prior to executing a consent to search form, he and his family had been threatened by law enforcement officers. The court denied the motion, and Gibson Nwafor submits that in so doing the court did not find him to have perjured himself; rather, he argues, the court found merely that he had not shifted the burden in the suppression hearing back to the government. We cannot accept this gloss on the district court’s denial of the motion.\nIn United States v. Lozoya-Morales, 931 F.2d 1216, 1218-20 (7th Cir.1991), we applied United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (warning against enhancing the sentences of all defendants whose testimony is deemed false), and determined that the district court must make an independent factual determination regarding the perjury for enhancement purposes. The sentencing court’s determination that a defendant testified falsely is a finding of fact that will be affirmed absent clear error. United States v. Easley, 977 F.2d 283, 286 (7th Cir.1992). In this case, the district court, in imposing the enhancement, acknowledged that the fact that Gibson Nwafor testified, alone, could not constitute obstruction of justice, but that “testifying untruthfully as to material matters, for the court’s determination, as Mr. Gibson Nwafor did, does constitute an obstruction of justice.... ” Gibson Nwafor Sent. Tr. at 16. In support of this conclusion, the court said that Gibson Nwafor’s testimony “was contradicted by several agents [at the pretrial proceeding] and, ... his testimony was not credible when evaluated in conjunction with the testimony provided by those agents.” Gibson Nwafor Sent. Tr. at 15-16. This statement cannot be read as anything but a clear determination by the judge who had presided at both the hearing and the trial that Gibson Nwafor had perjured himself at the suppression hearing. Consequently, the enhancement for obstruction of justice was not error.\nD. Charles Emenogha\nMr. Emenogha’s sole argument on appeal is that his offense level should have been reduced by two points because he was only a “minor participant” in the conspiracy. See U.S.S.G. § 3B1.2(b). The government argues that Mr. Emenogha has waived this argument by failing to object at sentencing. United States v. Bafia, 949 F.2d 1465, 1476 (7th Cir.1991), cert. denied sub nom. Kerridan v. United States, — U.S. -, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992). At the hearing, Mr. Emenogha’s counsel made opening remarks during which she simply stated that Mr. Emenogha’s conduct was “relatively minimal,” but counsel failed to request a reduction on the strength of § 3B1.2(b) or to elaborate on Mr. Emeno-gha’s role. Emenogha Sent. Tr. at 14. In any case, this court has found that such a reduction might be appropriate when the individual has transported a small quantity of drugs on only one occasion. United States v. Osborne, 931 F.2d 1139, 1157 (7th Cir.1991). Here, however, the court indicated that Mr. Emenogha would be sentenced on the basis of “the 997 grams [of heroin base] plus the relevant conduct of the 1.3 kilograms of heroin.” Emenogha Sent. Tr. at 19. The judge also found it significant that heroin base could yield 10% more saleable heroin. Id. at 22. In addition, couriers are critical cogs in drug conspiracies, and their importance should not be minimized. Consequently, we cannot find any error in the district court’s unwillingness to reduce the sentence on this basis.\nConclusion\nFor the foregoing reasons, we affirm the district court’s judgment in all respects.\nAFFIRMED.\n. At the time of trial defendant Ebenezer Dikeo-cha was a fugitive and does not join in this appeal.\n. Federal Rule of Evidence 404(b) provides in pertinent part:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....\n. The Supreme Court in Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988), clarified this prong; originally the Seventh Circuit standard was \"clear and convincing evidence.”\n. Vincent Nwafor argues in the reply brief that the article was improperly sent back with the jury. But Vincent Nwafor’s attorney was unable to convince this court, either in the brief or at oral argument, that there is any basis in fact and on the record for this rather rash assertion.\n. Gibson Nwafor adopts Vincent Nwafor's argument on this issue.\n. Vincent Nwafor’s citation to United States v. McLain, 823 F.2d 1457 (11th Cir.1987), does not aid his argument. In that case even repeated comments by the prosecutor that the defense counsel was lying and misleading the jury did not alone fatally infect the trial. Rather, the judge’s mismanagement, coupled with these comments, resulted in a trial that denied the defendant due process. Id. at 1462. The prosecutor's remark in the case before us pales in comparison with the McLain situation. This case is more analogous to the facts found in United States v. Turk, 870 F.2d 1304 (7th Cir.1989), where the court found that two instances of sarcasm could not have unduly influenced the jury.\n. U.S.S.G. § 3C1.1 provides:\nIf the defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.\n. The district court also said, in addressing the ácceptance of responsibility reduction request, that Vincent Nwafor twice testified under oath and had done so \"in a manner which was untruthful and incredible.” Vincent Nwafor Sent. Tr. at 18.\n. U.S.S.G. § 3El.l(a) provides in pertinent part:\nIf the defendant clearly demonstrates a recognition and affirmative acceptance of responsibility for his criminal conduct, reduce the offense level by 2 levels.\nApplication Note 4 provides:\nConduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.\n. The government also notes that there was evidence of considerably more than 3.1 kilograms of heroin: undercover buys accounted for several hundred grams and Dikeocha smuggled 500 grams into the country in January 1989.\n. Vincent Nwafor purports to adopt Gibson Nwafor’s argument regarding the admissibility of various tapes, transcripts, and translations into evidence, but because Gibson Nwafor presents no such argument, we cannot consider it.\n. Federal Rule of Evidence 803(6) provides that the following are not excluded by the hearsay rule:\nA memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness ....\n. But see 5 Wigmore, Evidence, § 1561a, at 490, § 1561b, at 507 (Chadbourn rev. 1974) (criticizing this limitation on the business records hearsay exception).\n. See, e.g., United States v. Smith, 609 F.2d 1294, 1301 n. 7 (9th Cir.1979) (as the hotel record included the declarant's signature, the hearsay problem might-have been cured by invoking Fed.R.Evid. 801(d)(2)(A) and (B)).\n. In United States v. Pearson, 508 F.2d 595, 597 (5th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975), hotel guest registration cards were admitted because the information supplied by the guests was verified by the desk clerk. Most recently, the court in United States v. McIntyre, 997 F.2d 687 (10th Cir.1993), admitted Western Union’s records to prove who had received money because verification of identity was required, while determining that the records were not admissible to identify the sender because there was no similar policy of identification.\n. Cf. United States v. Patrick, 959 F.2d 991, 1000-1001 (D.C.Cir.1992) (citing to Zapata and Lieberman with approval and finding that admission was error because no evidence was elicited that it was standard practice to verify the customer’s identity).\n. Courts have regularly upheld admissions under this hearsay exception when the records have been introduced in order to prove merely that the transactions had been carried out or that someone representing the defendant had effectuated the transaction. See, e.g., United States v. Franks, 939 F.2d 600, 602 (8th Cir.1991) (Federal Express airbill showing signature of recipient, Franks, admissible not to prove that Franks received it but to prove that someone using that name received it).\n. The two transactions, on August 2, 1990, and September 10, 1990 (both dates that were included in the charges), account for only $4,000 in exchanges.\n. U.S.S.G. § 3C1.1 provides as follows:\nIf the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.\nApplication Note 3 includes \"committing, suborning, or attempting to suborn perjury” among the examples of conduct that would merit an enhancement. See supra text accompanying note 7.\n.We must reject Gibson Nwafor’s assertion that the enhancement would have a chilling effect on his First Amendment rights. The Supreme Court has recently rejected such an argument, holding that there can be no constitutional right to commit perjury. United States v. Dunnigan, - U.S. -, -, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993).\n. See, e.g., Osborne, 931 F.2d at 1158 (quoting with approval United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990)); Briscoe, 896 F.2d at 1507.\n[END_CASE]", "role": "user" } ]
10,512,074	UNION-TRIBUNE PUBLISHING COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and San Diego Newspaper Guild, Local No. 95 of the Newspaper Guild, AFL-CIO, CLC, Intervening Respondent	Union-Tribune Publishing Co. v. National Labor Relations Board	1993-07-20	Nos. 92-1978, 92-2348	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before CUDAHY, FLAUM, and MANION, Circuit Judges."], "parties": ["UNION-TRIBUNE PUBLISHING COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and San Diego Newspaper Guild, Local No. 95 of the Newspaper Guild, AFL-CIO, CLC, Intervening Respondent."], "opinions": [{"text": "FLAUM, Circuit Judge.\nThe central issue in this case is whether substantial evidence supports a decision by the National Labor Relations Board (the Board) that Union-Tribune Publishing Company (Union-Tribune) fired Nancy Tetrault from her job as a district circulation manager because of her union activities. Although the question is close, we conclude that the Board’s order is supported by substantial evidence, and we therefore enforce it.\nI.\nWe begin by presenting the facts as found by the Administrative Law Judge (ALJ). In 1979, Nancy Tetrault began working for Union-Tribune, a publisher of two daily newspapers in San Diego County, California, as a relief district manager in the circulation department. After serving in several managerial positions in other districts, Tetrault requested a transfer to the manager’s post for District 128. The job of a district manager is to coordinate daily delivery of the newspaper within a discrete geographic area. Among her tasks are hiring route carriers who perform the deliveries, collecting subscription payments, and ensuring that each customer receives a paper every day. Because District 128 was located in a low-income, crime-ridden area, its manager had to overcome many problems such as customers who were unavailable for collection, frequent service errors, and unreliable carriers. Tetrault nevertheless wanted the job, and she received it in November, 1985.\nIn December, 1987, Tetrault became a member of the executive committee of her union, the San Diego Newspaper Guild. Union-Tribune and the Guild began negotiations in March, 1988 for a new collective-bargaining agreement. Tetrault herself became a member of the bargaining committee and took several days off from work to attend negotiation sessions. In June, Tetrault received her review for the first quarter of 1988. The report documented poor performance. In particular, customer complaints were 50% higher than the approved level for her district, which was already set at twice the level of any other district. No disciplinary action was taken against Tetrault at the time, but she was warned that she must do better. As a result of this review and her perceived need to refocus her energies on her work, Tetrault subsequently withdrew from the negotiating committee. Coastal Circulation Manager Richard Julian told her shortly thereafter that he was “glad that she had her priorities in the right place.”\nTetrault’s troubles grew serious during the summer of 1988. She had planned to take an extended vacation, and prepared a lengthy list of assignments for Glen Harms, the vacation relief manager for her district. Although Union-Tribune maintains that Harms successfully completed all his assignments but one, the ALJ found that the district was in “considerably worse shape” when Tetrault returned. Toward the end of Tetrault’s vacation and continuing for two weeks afterward, a television documentary entitled “The Non-Union Tribune” aired ten times on local cable channels. Produced by local \"college students and taking an unabashedly pro-union stance, the program portrayed Union-Tribune’s efforts to break the Guild during their collective-bargaining negotiations. Tet-rault was featured prominently in the program, especially in one scene that showed her delivering a speech to a cheering Guild audience and denouncing Union-Tribune and its “carpetbagging” law firm. Tetrault testified that after her return Division Manager Don Res'ch (Tetrault’s immediate supervisor) told her that he had seen her on the program and that he thought “everyone” had seen her.\nIn September, Tetrault received her performance review for the second quarter of 1988. Because she failed to submit on time her route profit breakdowns (RPBs) — reports detailing payments made to carriers and profits or payments due to the company — she was suspended for one day. In what they described as an attempt to give her a “fresh start,” Resch and Julian offered Tetrault the opportunity to transfer to District 122, the best-performing district in the system. She accepted. Her transfer would become final, however, only upon completion and submission of all the outstanding RPBs for District 128. That task proved far more difficult than anticipated, due in large part to Tetrault’s additional responsibility during that period for District 122. About this time, Division Manager Wesley Bates told Tetrault that the union shop was on its way out, and that “[i]t won’t exist when we’re done with this negotiation.” Tetrault’s deadline for submitting the July through September RPBs was extended several times in October. The RPBs she eventually submitted for July and August were not signed by the carriers, as they should have been.\nMeanwhile, two Union-Tribune officials had begun investigating complaints by District 128 carriers that they had not been paid. These officials also looked into accounting documents, timecards, and cash turn-in sheets that showed irregularities. As a result of their discoveries, Union-Tribune held a meeting with Tetrault on October 28 to discuss her handling of various financial matters; according to Union-Tribune, Tet-rault admitted at the meeting to using collections from prior months to pay certain carriers and commingling collections from different paper routes. On November 1, Tetrault was indefinitely suspended for gross misconduct pending further investigation. After another meeting with Union-Tribune on November 11, she was formally fired effective November 17.\nThe Guild filed two unfair labor practice charges against Union-Tribune and requested an explanation of the specific reasons why Tetrault was discharged. On January 13, 1989, Union-Tribune sent the Guild a ten-page letter listing some eighty-two reasons for her firing. The ALJ conducted a lengthy hearing on the charges and concluded that Union-Tribune had violated sections 8(a)(3) and (a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(3) and (a)(1). The ALJ gave strong weight to Tet-rault’s testimony, calling her “an eminently credible individual” and finding that she was a conscientious employee who applied all her effort to tackling the virtually insuperable problems of District 128. The ALJ examined in great detail each of Union-Tribune’s purported grounds for discharging Tetrault. Contrary to their allegations, he concluded that there was no convincing evidence that she had stolen money or engaged in any financial misconduct. In fact, the ALJ believed that the company’s investigation was a sham, undertaken so that Union-Tribune could “rid itself of an ardent union activist.” The ALJ placed heavy emphasis on the fact that Union-Tribune never informed Tetrault of the specific charges against her so that she could rebut them, either at the October 28 or November 11 meetings. Union-Tribune’s failure to allow Tetrault to defend herself, the ALJ determined, by itself showed that its offered reasons for firing her were pretextual.\nOn review, the Board acknowledged two shortcomings in the ALJ’s decision. First, it was incorrect for the ALJ to infer an improper motive for Tetrault’s discharge from Union-Tribune’s denial of information about the charges against her. Grievances had been filed in August and September that Union-Tribune was discriminating against Tetrault in violation of section 8(a)(3). There is no right to prehearing discovery for a pending section 8(a)(3) charge, see, e.g., WXON-TV, 289 N.L.R.B. 615, 617-18 (1988), and furnishing information about the November suspension and discharge would have provided information about the earlier pending charges as well. Union-Tribune was thus acting within its rights when it rejected Tetrault’s requests.\nSecond, and more seriously, the ALJ never formally determined that antiunion animus had motivated Union-Tribune’s actions against Tetrault, a prerequisite for finding a violation of the NLRA. The ALJ concluded that the reasons offered for Tetrault’s discharge were pretextual, but never found that antiunion animus was the real reason for the company’s action. Nevertheless, the Board cited five pieces of evidence in the ALJ’s decision that supported an inference of animus. (1) Union-Tribune’s division manager told Tetrault, while she was serving on the Guild’s bargaining committee, that “the union shop was out and it would not exist at the end of negotiations.” (2) A meeting was held for Union-Tribune managers-to watch a videotape broadcast of the documentary during which Tetrault chastised Union-Tribune management. (3) Richard Julian told Tet-rault that her decision to resign from the bargaining committee showed that she had gotten her priorities straight. (4) The relationship, between the bargaining parties was at a forty-year low. (5) The Guild had filed a bad-faith bargaining grievance against Union-Tribune. These factors, plus the ALJ’s determination that Union-Tribune’s reasons were pretextual, supported a finding that antiunion animus motivated Union-Tribune’s actions at least in part.\nII.\nA.\nThe procedure for analyzing unlawful discharge cases through the- use of shifting burdens of proof was laid out by the Board in Wright Line, 251 N.L.R.B. 1083 (1980), enf'd. on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), and approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). Under the Board’s approach, the General Counsel of the Board bears the initial burden of proving by a preponderance of the evidence that the employee’s protected conduct was a substantial or motivating factor in her discharge. See Transportation Management, 462 U.S. at 400, 103 S.Ct. at 2473. As another way to state this requirement, the General Counsel must prove that the employee’s discharge was based on antiunion animus or that such animus was a substantial factor. See J. Huizinga Cartage Co. v. NLRB, 941 F.2d 616, 620 (7th Cir.1991). If this requirement is met, then the burden shifts to the employer to prove by a preponderance of the evidence that the employee would have been fired anyway for a valid reason. See Transportation Management Corp., 462 U.S. at 400, 103 S.Ct. at 2473; NLRB v. Industrial Erectors, Inc., 712 F.2d 1131, 1136 (7th Cir.1983). The initial demonstration of illegal motive need not depend on direct proof; circumstantial evidence that a dismissal was improperly motivated may be sufficient to make the prima facie case against the employer. See Livingston Pipe & Tube, Inc. v. NLRB, 987 F.2d 422, 426 (7th Cir.1993); NLRB v. O’Hare-Midway Limousine Serv., Inc., 924 F.2d 692, 697 (7th Cir.1991); NLRB v. Bliss & Laughlin Steel Co., 754 F.2d 229, 235 (7th Cir.1985).\nUnion-Tribune argues that the ALJ’s decision did not conform to this two-step analysis, which requires an initial finding that protected activity motivated the employer’s action, and only then examines whether the employer’s proffered reasons for the action were pretextual. Although the Board attempted to reconstruct the ALJ’s decision, Union-Tribune .contends that the original error persists. The Board considered the finding of pretext to be one factor-that, in addition to other factors it identified in the record, supported a determination that Union-Tribune acted with an improper motivation. According to Union-Tribune, the Board’s approach still inverts the proper procedure for analyzing NLRA violations.\nWhether the employer’s explanation for a discharge can be assessed in judging the General Counsel’s prima facie case has been the subject of some debate. In a footnote to its 1980 Wright Line decision, the Board stated that “[t]he absence of any legitimate basis for an action, of course, may form part of the proof of the General Counsel’s case.” Wright Line, 251 N.L.R.B. at 1088 n. 12 (citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.1966)). Despite that seemingly straightforward statement, the Board wavered for a number of years on the issue of whether the ALJ can judge the prima facie case only in light of explanations offered by the employer contemporaneously with the challenged event, or also in light of explanations offered at the administrative hearing itself. Compare Hillside Bus Corp., 262 N.L.R.B. 1254 (1982) (restrictive view) with Active Transp., 296 N.L.R.B. 431, 432 & n. 8 (1989), enf'd mem., 924 F.2d 1057 (6th Cir.1991) (expansive view). See generally Holo-Krome Co. v. NLRB, 954 F.2d 108, 112-13 (2d Cir.1992) (charting the Board’s inconsistent positions). More recently, the Board has authorized ALJs to judge the prima facie case on the basis of all record evidence. In Greco & Haines, Inc., 306 N.L.R.B. No. 119 (Mar. 9, 1992), the Board announced that “a prima facie case may be established by the record as a whole and is not limited to evidence presented by the General Counsel.” In that context, it reiterated Wright Line’s language that the absence of a legitimate basis for an action may form part of the proof of the General Counsel’s case, and it explicitly meri-tioned the implausibility of the employer’s explanations in that case as evidence that contributed to the General Counsel’s proof. See id.; see also Golden Flake Snack Foods, 297 N.L.R.B. 594, 594 n. 2 (1990).\nThe Second Circuit recently published a scholarly opinion upholding the Board’s new approach and concluding that it is not inconsistent with Supreme Court precedent. See Holo-Krome, 954 F.2d at 113. We, too, have approved reliance on an employer’s implausible explanations to support the General Counsel’s prima facie case, although without distinguishing between contemporaneous and ex post explanations. See NLRB v. Industrial Erectors, Inc., 712 F.2d 1131, 1137 (7th Cir.1983); NLRB v. Rich’s Precision Foundry, Inc., 667 F.2d 613, 626-27 (7th Cir.1981). Accordingly, we endorse the ALJ's use of Union-Tribune’s explanations here.\nUnion-Tribune responds that even if an ALJ may consider the employer’s explanation in assessing the prima facie case, the ALJ may not rest its entire decision on that ground. We agree. It is inaccurate to state, as a general matter, that once a finding is made that an employer’s proposed justification is pretextual, the analysis of the employer’s motivation is at an end. See Brief for the NLRB at 26. A finding of pretext, standing alone, does not support a conclusion that a firing was improperly motivated. See NLRB v. Hawkins Constr. Co., 857 F.2d 1224 (8th Cir.1988); Roper Corp. v. NLRB, 712 F.2d 306, 310-11 (7th Cir.1983). As the next section shows, however, the record in this case features other evidence of animus to supplement the finding of pretext.\nB.\nIn general, we will uphold a decision of the National Labor Relations Board if it is supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); NLRB v. Lewis Univ., 765 F.2d 616, 620 (7th Cir.1985); 29 U.S.C. § 160(e) (1988). Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support the Board’s conclusion.” Mary Thompson Hosp. v. NLRB, 943 F.2d 741, 745 (7th Cir.1991) (citation omitted). We will not overturn the Board’s findings merely because “we find[] the opposite conclusion more reasonable” or “question the factual basis.” NLRB v. Advance Transp. Co., 965 F.2d 186, 190 (7th Cir.1992) (citation omitted).\nUnion-Tribune disputes the Board’s conclusion that it fired Tetrault out of anti-union animus, and it takes issue with each of the factors identified by the Board as supporting that inference. First, it denies that there is evidence in the record for the ALJ’s finding that relations between the bargaining parties had reached a forty-year low. With regard to the company supervisors’ remarks to Tetrault, Union-Tribune contends that each is a legitimate statement of opinion, not a hostile expression of antiunion animus. In any case, the NLRA explicitly allows employers to express antiunion sentiment without committing an unfair labor practice so long as those statements contain “no threat of reprisal or force or promise of benefit.” 29 U.S.C. § 158(e). Next, Union-Tribune argues that the filing of a charge or even the issuance of a complaint against an employer proves nothing about the presence of animus. Finally, it claims that there is no evidence that all the managers screened the videotape of the documentary and, even if they did, it questions the connection between that fact and the determination that they harbored antiunion animus. Union-Tribune also notes that other employees prominently featured in the documentary were not fired.\nOur task in this proceeding is not to decide for ourselves whether we believe that union activity motivated Union-Tribune to fire Tetrault, but only to determine whether the record contains evidence that supports that view. While we would not pretend that the case against Union-Tribune is overwhelming, it is strong enough to withstand our deferential review. Admittedly, none of these factors considered individually proves the existence of an antiunion animus. In combination, however, they circumstantially support the conclusion. The record certainly indicates that tension between Union-Tribune and the Guild during the summer and fall of 1988 had reached a fervid pitch. The comments made by company supervisors to Tetrault indicate that Union-Tribune was aware of her union involvement — indeed, of her role as a major Union-Tribune antagonist — and was not favorably disposed to it. These circumstances cast Tetrault’s suspension and discharge in a somewhat suspicious light; when combined with a determination that the offered reasons for these actions were implausible, they support an inference of unlawful motivation.\nThe bulk of the ALJ’s decision is devoted to an analysis of Union-Tribune’s eighty-two offered reasons for firing Tetrault. All of these reasons fell into a few repeated categories: Tetrault had submitted “cash turn-ins” for particular delivery routes that contained checks from customers on other routes; she had submitted her own personal checks to pay for several carriers’ paper bills; she had permitted carriers who had not yet been contracted with the company to ride in company vans; she had permitted uncontracted carriers to collect from customers; she had submitted RPBs that had not been signed by the carriers; and she had allocated collection money to the wrong routes or too slowly. Carriers also forwarded individual complaints about Tetrault’s management. In each case, the ALJ concluded that Tetrault had followed practices typical among district managers or specifically approved by her supervisors. For example, regarding the allegation that Tetrault submitted cash turn-ins with mismatched personal checks, the ALJ found this was a “common, accepted, and timesaving practice, which numerous district managers follow on a daily basis.” Indeed, the Training District Manager testified that she trained new district managers to follow this procedure, since it allowed managers to compensate unpaid 'carriers immediately out of cash that had been collected, by substituting checks from other routes for the cash.\nUnion-Tribune challenges these findings, but mostly criticizes the ALJ and the Board for ignoring the evidence that it submitted on its own behalf. Union-Tribune reminds us that Tetrault herself initially requested the transfer to District 128. It also contends that the ALJ overlooked evidence of Tet-rault’s history of poor performance, which was chronicled in numerous negative reviews, warnings, and disciplinary measures dating back to 1986. Union-Tribune submitted evidence that it warned Tetrault in late 1987 that continued failure to meet deadlines for the RPBs would result in disciplinary action. All the same, it points out, it took measures to lessen Tetrault’s burden, such as introducing advance collections, combined delivery routes, and adult carriers into her district. Even if the charges against Tetrault eventually proved unsubstantiated, Union-Tribune argues, it had at the time a good-faith belief in their validity.\nThe ALJ acknowledged that Tetrault had not enjoyed a stellar record as the manager of District 128, but he found that Union-Tribune bore responsibility for assigning Harms, “who was unqualified to be placed in charge of such [a] volatile district,” to be her vacation relief manager, and for refusing to help Tetrault during the months immediately preceding her vacation. Even if Tetrault’s performance up to the summer of 1988 could have justified her firing, the ALJ was not convinced that Union-Tribune was planning to take that step. On the principal issue of the mismanagement charges, the ALJ’s exhaustive inquiry into the multifarious grounds offered for Tetrault’s termination withstands attack. There was ample evidence that Tetrault had merely followed practices common among district managers, and that Union-Tribune should have known as much. We therefore believe that the ALJ’s decision was supported by substantial evidence. For the same reasons, we conclude that Union-Tribune did not carry the burden of proving its affirmative defense, that it would have fired Tetrault even if no improper motivation had existed.\nThe Board’s order is ENFORCED.\n. Under section 158(a)(1), it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” Under section 158(a)(3), it is an unfair labor practice for an employer \"by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”\n. It has been noted that the Board’s approach merges \"dual motive analysis\" and \"pretext analysis,” traditionally thought to be two different methods of evaluating an employer's conduct. See Holo-Krome Co. v. NLRB, 954 F.2d 108, 110-11 (2d Cir.1992). Use of the term \"pretext” in the ALJ’s and Board's decisions, therefore, is less anomalous than it may appear. See NLRB v. So-White Freight Lines, Inc., 969 F.2d 401, 406 (7th Cir.1992) (although the two methods are distinct, \"the fact-finding methodologies of each are similar and, indeed, overlapping”); cf. Wright Line, 251 N.L.R.B. at 1084 n. 5 (\"[T]he distinction between a pretext case and a dual motive case is sometimes difficult to discern.”).\n. The fact that Union-Tribune punished only Tct-rault and no other employee involved in the cable documentary does not undercut the Board's determination that it acted out of animus. \"[A] discriminatory motive, otherwise established, is not .disproved by an employer's proof that it did not weed out all union adherents.” Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir.1964) (citation omitted).\n. Nonetheless, we are troubled by the General Counsel’s argument that Union-Tribune’s failure to notify Tetrault of the charges against her is evidence that the investigation was conducted in bad faith. The General Counsel’s brief does not even mention the Board’s ruling that Union-Tribune was entitled not to disclose its reasons for discharging Tetrault, with which his argument is at least superficially inconsistent. Indeed, although the Board affirmed the ALJ’s de-cisión, it did so subject to several modifications of which that ruling was one.", "type": "majority", "author": "FLAUM, Circuit Judge."}, {"text": "MANION, Circuit Judge,\ndissenting.\nI do not dispute the legal boundaries of today’s decision. The law is quite plain. The Board must prove that antiunion animus motivated Union-Tribune’s actions against Tetrault. Nor do I disagree with the Board’s new approach of looking to all record evidence in judging whether the plaintiff has made out a prima facie case. The Administrative Law Judge (ALJ) thought the case was over when he found that Union-Tribune’s asserted reasons for firing Tetrault were not truthful. The court is correct in holding that alone this cannot support a finding that the company otherwise acted with antiunion animus. In the usual unfair labor dispute, we would give great deference to such a finding by the ALJ. In this case, however, we are asked to review the Board’s order that created its own finding based on other evidence in the record.\nThe hearing before the ALJ began on September 25,1989 and ended September 14, 1990. After nearly a year of testimony, the Board now relies on five factors in concluding that antiunion animus caused Union-Tribune to fire Tetrault. I agree with the court, supra page 491, that “none of these factors considered individually proves the existence of antiunion animus.” I disagree, however, that together they provide circumstantial evidence of improper motive.\nThe court finds, supra page 491, that certain comments made by company supervisors to Tetrault indicate that Union-Tribune was not favorably disposed to her union involvement. I disagree. While Tetrault was a member of the bargaining committee, she was told that “the union shop was out and it would not exist at the end of negotiations.” (Emphasis added). The court would have us believe that this supports a finding that the company was telling her that she would be out at the end of negotiations. Such comments do not show any more than the usual confrontation between company and union officials during heated bargaining seasons. Similarly, whether the bargaining relationship of the parties was at an all-time low or whether the union had filed a bad-faith bargaining grievance against the company have little to do with why Union-Tribune would specifically target Tetrault. Only two specific factors relied upon by the Board could connect such dots.\nRichard Julian told Tetrault that her decision to resign from the bargaining committee showed that she had her priorities straight. If anything this supports the company’s case. She does not allege that the company in any way forced her to resign from the bargaining committee. That was her decision. And obviously District 128 was demanding. The fact that the company was pleased with her decision to devote more time to the problems of her job cannot in any way support a finding that she would later be fired for involvement in an activity she had voluntarily diminished.\nTetrault also appeared on television in a videotape documentary, critical of the company. I am at a loss as to the relevance of any implication here. Certainly Union-Tribune knew she was active in the union. Tetrault cannot have this court assume that because she chastised the company, it would naturally want to get back at her. As we are trying to determine the Union-Tribune’s motive, its only action here was watching the broadcast. The company cannot be faulted for keeping abreast of its public exposure.\nUnion-Tribune did not act out of antiunion animus in firing Tetrault. Because the ALJ failed to make such a finding, and no other evidence supports such a view, I respectfully dissent.", "type": "dissent", "author": "MANION, Circuit Judge,"}], "attorneys": ["E. Andrew Norwood, Howard M. Kastrin-sky, King & Ballow, Nashville, TN, Paul H. Duvall (argued), King & Ballow, San Diego, CA, for petitioner/cross-respondent.", "Charles P. Donnelly, Jr., John C. Trues-dale, John Fawley (argued), N.L.R.B., Contempt Litigation Branch, Aileen A. Armstrong, William M. Bernstein, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Robert R. Petering, N.L.R.B., Counsel for the Gen. Counsel, San Diego, CA, Victoria E. Aguayo, N.L.R.B., Region 21, Los Angeles, CA, for respondenVcross-petitioner.", "Richard D. Prochazka, San Diego, CA, for intervening-respondent."], "corrections": "", "head_matter": "UNION-TRIBUNE PUBLISHING COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and San Diego Newspaper Guild, Local No. 95 of the Newspaper Guild, AFL-CIO, CLC, Intervening Respondent.\nNos. 92-1978, 92-2348.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Jan. 13, 1993.\nDecided July 20, 1993.\nE. Andrew Norwood, Howard M. Kastrin-sky, King & Ballow, Nashville, TN, Paul H. Duvall (argued), King & Ballow, San Diego, CA, for petitioner/cross-respondent.\nCharles P. Donnelly, Jr., John C. Trues-dale, John Fawley (argued), N.L.R.B., Contempt Litigation Branch, Aileen A. Armstrong, William M. Bernstein, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Robert R. Petering, N.L.R.B., Counsel for the Gen. Counsel, San Diego, CA, Victoria E. Aguayo, N.L.R.B., Region 21, Los Angeles, CA, for respondenVcross-petitioner.\nRichard D. Prochazka, San Diego, CA, for intervening-respondent.\nBefore CUDAHY, FLAUM, and MANION, Circuit Judges."}	CUDAHY	FLAUM	MANION	1	2	1	1	0	0	1 F.3d 486	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNION-TRIBUNE PUBLISHING COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and San Diego Newspaper Guild, Local No. 95 of the Newspaper Guild, AFL-CIO, CLC, Intervening Respondent\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-20\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nFLAUM, Circuit Judge.\nThe central issue in this case is whether substantial evidence supports a decision by the National Labor Relations Board (the Board) that Union-Tribune Publishing Company (Union-Tribune) fired Nancy Tetrault from her job as a district circulation manager because of her union activities. Although the question is close, we conclude that the Board’s order is supported by substantial evidence, and we therefore enforce it.\nI.\nWe begin by presenting the facts as found by the Administrative Law Judge (ALJ). In 1979, Nancy Tetrault began working for Union-Tribune, a publisher of two daily newspapers in San Diego County, California, as a relief district manager in the circulation department. After serving in several managerial positions in other districts, Tetrault requested a transfer to the manager’s post for District 128. The job of a district manager is to coordinate daily delivery of the newspaper within a discrete geographic area. Among her tasks are hiring route carriers who perform the deliveries, collecting subscription payments, and ensuring that each customer receives a paper every day. Because District 128 was located in a low-income, crime-ridden area, its manager had to overcome many problems such as customers who were unavailable for collection, frequent service errors, and unreliable carriers. Tetrault nevertheless wanted the job, and she received it in November, 1985.\nIn December, 1987, Tetrault became a member of the executive committee of her union, the San Diego Newspaper Guild. Union-Tribune and the Guild began negotiations in March, 1988 for a new collective-bargaining agreement. Tetrault herself became a member of the bargaining committee and took several days off from work to attend negotiation sessions. In June, Tetrault received her review for the first quarter of 1988. The report documented poor performance. In particular, customer complaints were 50% higher than the approved level for her district, which was already set at twice the level of any other district. No disciplinary action was taken against Tetrault at the time, but she was warned that she must do better. As a result of this review and her perceived need to refocus her energies on her work, Tetrault subsequently withdrew from the negotiating committee. Coastal Circulation Manager Richard Julian told her shortly thereafter that he was “glad that she had her priorities in the right place.”\nTetrault’s troubles grew serious during the summer of 1988. She had planned to take an extended vacation, and prepared a lengthy list of assignments for Glen Harms, the vacation relief manager for her district. Although Union-Tribune maintains that Harms successfully completed all his assignments but one, the ALJ found that the district was in “considerably worse shape” when Tetrault returned. Toward the end of Tetrault’s vacation and continuing for two weeks afterward, a television documentary entitled “The Non-Union Tribune” aired ten times on local cable channels. Produced by local \"college students and taking an unabashedly pro-union stance, the program portrayed Union-Tribune’s efforts to break the Guild during their collective-bargaining negotiations. Tet-rault was featured prominently in the program, especially in one scene that showed her delivering a speech to a cheering Guild audience and denouncing Union-Tribune and its “carpetbagging” law firm. Tetrault testified that after her return Division Manager Don Res'ch (Tetrault’s immediate supervisor) told her that he had seen her on the program and that he thought “everyone” had seen her.\nIn September, Tetrault received her performance review for the second quarter of 1988. Because she failed to submit on time her route profit breakdowns (RPBs) — reports detailing payments made to carriers and profits or payments due to the company — she was suspended for one day. In what they described as an attempt to give her a “fresh start,” Resch and Julian offered Tetrault the opportunity to transfer to District 122, the best-performing district in the system. She accepted. Her transfer would become final, however, only upon completion and submission of all the outstanding RPBs for District 128. That task proved far more difficult than anticipated, due in large part to Tetrault’s additional responsibility during that period for District 122. About this time, Division Manager Wesley Bates told Tetrault that the union shop was on its way out, and that “[i]t won’t exist when we’re done with this negotiation.” Tetrault’s deadline for submitting the July through September RPBs was extended several times in October. The RPBs she eventually submitted for July and August were not signed by the carriers, as they should have been.\nMeanwhile, two Union-Tribune officials had begun investigating complaints by District 128 carriers that they had not been paid. These officials also looked into accounting documents, timecards, and cash turn-in sheets that showed irregularities. As a result of their discoveries, Union-Tribune held a meeting with Tetrault on October 28 to discuss her handling of various financial matters; according to Union-Tribune, Tet-rault admitted at the meeting to using collections from prior months to pay certain carriers and commingling collections from different paper routes. On November 1, Tetrault was indefinitely suspended for gross misconduct pending further investigation. After another meeting with Union-Tribune on November 11, she was formally fired effective November 17.\nThe Guild filed two unfair labor practice charges against Union-Tribune and requested an explanation of the specific reasons why Tetrault was discharged. On January 13, 1989, Union-Tribune sent the Guild a ten-page letter listing some eighty-two reasons for her firing. The ALJ conducted a lengthy hearing on the charges and concluded that Union-Tribune had violated sections 8(a)(3) and (a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(3) and (a)(1). The ALJ gave strong weight to Tet-rault’s testimony, calling her “an eminently credible individual” and finding that she was a conscientious employee who applied all her effort to tackling the virtually insuperable problems of District 128. The ALJ examined in great detail each of Union-Tribune’s purported grounds for discharging Tetrault. Contrary to their allegations, he concluded that there was no convincing evidence that she had stolen money or engaged in any financial misconduct. In fact, the ALJ believed that the company’s investigation was a sham, undertaken so that Union-Tribune could “rid itself of an ardent union activist.” The ALJ placed heavy emphasis on the fact that Union-Tribune never informed Tetrault of the specific charges against her so that she could rebut them, either at the October 28 or November 11 meetings. Union-Tribune’s failure to allow Tetrault to defend herself, the ALJ determined, by itself showed that its offered reasons for firing her were pretextual.\nOn review, the Board acknowledged two shortcomings in the ALJ’s decision. First, it was incorrect for the ALJ to infer an improper motive for Tetrault’s discharge from Union-Tribune’s denial of information about the charges against her. Grievances had been filed in August and September that Union-Tribune was discriminating against Tetrault in violation of section 8(a)(3). There is no right to prehearing discovery for a pending section 8(a)(3) charge, see, e.g., WXON-TV, 289 N.L.R.B. 615, 617-18 (1988), and furnishing information about the November suspension and discharge would have provided information about the earlier pending charges as well. Union-Tribune was thus acting within its rights when it rejected Tetrault’s requests.\nSecond, and more seriously, the ALJ never formally determined that antiunion animus had motivated Union-Tribune’s actions against Tetrault, a prerequisite for finding a violation of the NLRA. The ALJ concluded that the reasons offered for Tetrault’s discharge were pretextual, but never found that antiunion animus was the real reason for the company’s action. Nevertheless, the Board cited five pieces of evidence in the ALJ’s decision that supported an inference of animus. (1) Union-Tribune’s division manager told Tetrault, while she was serving on the Guild’s bargaining committee, that “the union shop was out and it would not exist at the end of negotiations.” (2) A meeting was held for Union-Tribune managers-to watch a videotape broadcast of the documentary during which Tetrault chastised Union-Tribune management. (3) Richard Julian told Tet-rault that her decision to resign from the bargaining committee showed that she had gotten her priorities straight. (4) The relationship, between the bargaining parties was at a forty-year low. (5) The Guild had filed a bad-faith bargaining grievance against Union-Tribune. These factors, plus the ALJ’s determination that Union-Tribune’s reasons were pretextual, supported a finding that antiunion animus motivated Union-Tribune’s actions at least in part.\nII.\nA.\nThe procedure for analyzing unlawful discharge cases through the- use of shifting burdens of proof was laid out by the Board in Wright Line, 251 N.L.R.B. 1083 (1980), enf'd. on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), and approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). Under the Board’s approach, the General Counsel of the Board bears the initial burden of proving by a preponderance of the evidence that the employee’s protected conduct was a substantial or motivating factor in her discharge. See Transportation Management, 462 U.S. at 400, 103 S.Ct. at 2473. As another way to state this requirement, the General Counsel must prove that the employee’s discharge was based on antiunion animus or that such animus was a substantial factor. See J. Huizinga Cartage Co. v. NLRB, 941 F.2d 616, 620 (7th Cir.1991). If this requirement is met, then the burden shifts to the employer to prove by a preponderance of the evidence that the employee would have been fired anyway for a valid reason. See Transportation Management Corp., 462 U.S. at 400, 103 S.Ct. at 2473; NLRB v. Industrial Erectors, Inc., 712 F.2d 1131, 1136 (7th Cir.1983). The initial demonstration of illegal motive need not depend on direct proof; circumstantial evidence that a dismissal was improperly motivated may be sufficient to make the prima facie case against the employer. See Livingston Pipe & Tube, Inc. v. NLRB, 987 F.2d 422, 426 (7th Cir.1993); NLRB v. O’Hare-Midway Limousine Serv., Inc., 924 F.2d 692, 697 (7th Cir.1991); NLRB v. Bliss & Laughlin Steel Co., 754 F.2d 229, 235 (7th Cir.1985).\nUnion-Tribune argues that the ALJ’s decision did not conform to this two-step analysis, which requires an initial finding that protected activity motivated the employer’s action, and only then examines whether the employer’s proffered reasons for the action were pretextual. Although the Board attempted to reconstruct the ALJ’s decision, Union-Tribune .contends that the original error persists. The Board considered the finding of pretext to be one factor-that, in addition to other factors it identified in the record, supported a determination that Union-Tribune acted with an improper motivation. According to Union-Tribune, the Board’s approach still inverts the proper procedure for analyzing NLRA violations.\nWhether the employer’s explanation for a discharge can be assessed in judging the General Counsel’s prima facie case has been the subject of some debate. In a footnote to its 1980 Wright Line decision, the Board stated that “[t]he absence of any legitimate basis for an action, of course, may form part of the proof of the General Counsel’s case.” Wright Line, 251 N.L.R.B. at 1088 n. 12 (citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.1966)). Despite that seemingly straightforward statement, the Board wavered for a number of years on the issue of whether the ALJ can judge the prima facie case only in light of explanations offered by the employer contemporaneously with the challenged event, or also in light of explanations offered at the administrative hearing itself. Compare Hillside Bus Corp., 262 N.L.R.B. 1254 (1982) (restrictive view) with Active Transp., 296 N.L.R.B. 431, 432 & n. 8 (1989), enf'd mem., 924 F.2d 1057 (6th Cir.1991) (expansive view). See generally Holo-Krome Co. v. NLRB, 954 F.2d 108, 112-13 (2d Cir.1992) (charting the Board’s inconsistent positions). More recently, the Board has authorized ALJs to judge the prima facie case on the basis of all record evidence. In Greco & Haines, Inc., 306 N.L.R.B. No. 119 (Mar. 9, 1992), the Board announced that “a prima facie case may be established by the record as a whole and is not limited to evidence presented by the General Counsel.” In that context, it reiterated Wright Line’s language that the absence of a legitimate basis for an action may form part of the proof of the General Counsel’s case, and it explicitly meri-tioned the implausibility of the employer’s explanations in that case as evidence that contributed to the General Counsel’s proof. See id.; see also Golden Flake Snack Foods, 297 N.L.R.B. 594, 594 n. 2 (1990).\nThe Second Circuit recently published a scholarly opinion upholding the Board’s new approach and concluding that it is not inconsistent with Supreme Court precedent. See Holo-Krome, 954 F.2d at 113. We, too, have approved reliance on an employer’s implausible explanations to support the General Counsel’s prima facie case, although without distinguishing between contemporaneous and ex post explanations. See NLRB v. Industrial Erectors, Inc., 712 F.2d 1131, 1137 (7th Cir.1983); NLRB v. Rich’s Precision Foundry, Inc., 667 F.2d 613, 626-27 (7th Cir.1981). Accordingly, we endorse the ALJ's use of Union-Tribune’s explanations here.\nUnion-Tribune responds that even if an ALJ may consider the employer’s explanation in assessing the prima facie case, the ALJ may not rest its entire decision on that ground. We agree. It is inaccurate to state, as a general matter, that once a finding is made that an employer’s proposed justification is pretextual, the analysis of the employer’s motivation is at an end. See Brief for the NLRB at 26. A finding of pretext, standing alone, does not support a conclusion that a firing was improperly motivated. See NLRB v. Hawkins Constr. Co., 857 F.2d 1224 (8th Cir.1988); Roper Corp. v. NLRB, 712 F.2d 306, 310-11 (7th Cir.1983). As the next section shows, however, the record in this case features other evidence of animus to supplement the finding of pretext.\nB.\nIn general, we will uphold a decision of the National Labor Relations Board if it is supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); NLRB v. Lewis Univ., 765 F.2d 616, 620 (7th Cir.1985); 29 U.S.C. § 160(e) (1988). Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support the Board’s conclusion.” Mary Thompson Hosp. v. NLRB, 943 F.2d 741, 745 (7th Cir.1991) (citation omitted). We will not overturn the Board’s findings merely because “we find[] the opposite conclusion more reasonable” or “question the factual basis.” NLRB v. Advance Transp. Co., 965 F.2d 186, 190 (7th Cir.1992) (citation omitted).\nUnion-Tribune disputes the Board’s conclusion that it fired Tetrault out of anti-union animus, and it takes issue with each of the factors identified by the Board as supporting that inference. First, it denies that there is evidence in the record for the ALJ’s finding that relations between the bargaining parties had reached a forty-year low. With regard to the company supervisors’ remarks to Tetrault, Union-Tribune contends that each is a legitimate statement of opinion, not a hostile expression of antiunion animus. In any case, the NLRA explicitly allows employers to express antiunion sentiment without committing an unfair labor practice so long as those statements contain “no threat of reprisal or force or promise of benefit.” 29 U.S.C. § 158(e). Next, Union-Tribune argues that the filing of a charge or even the issuance of a complaint against an employer proves nothing about the presence of animus. Finally, it claims that there is no evidence that all the managers screened the videotape of the documentary and, even if they did, it questions the connection between that fact and the determination that they harbored antiunion animus. Union-Tribune also notes that other employees prominently featured in the documentary were not fired.\nOur task in this proceeding is not to decide for ourselves whether we believe that union activity motivated Union-Tribune to fire Tetrault, but only to determine whether the record contains evidence that supports that view. While we would not pretend that the case against Union-Tribune is overwhelming, it is strong enough to withstand our deferential review. Admittedly, none of these factors considered individually proves the existence of an antiunion animus. In combination, however, they circumstantially support the conclusion. The record certainly indicates that tension between Union-Tribune and the Guild during the summer and fall of 1988 had reached a fervid pitch. The comments made by company supervisors to Tetrault indicate that Union-Tribune was aware of her union involvement — indeed, of her role as a major Union-Tribune antagonist — and was not favorably disposed to it. These circumstances cast Tetrault’s suspension and discharge in a somewhat suspicious light; when combined with a determination that the offered reasons for these actions were implausible, they support an inference of unlawful motivation.\nThe bulk of the ALJ’s decision is devoted to an analysis of Union-Tribune’s eighty-two offered reasons for firing Tetrault. All of these reasons fell into a few repeated categories: Tetrault had submitted “cash turn-ins” for particular delivery routes that contained checks from customers on other routes; she had submitted her own personal checks to pay for several carriers’ paper bills; she had permitted carriers who had not yet been contracted with the company to ride in company vans; she had permitted uncontracted carriers to collect from customers; she had submitted RPBs that had not been signed by the carriers; and she had allocated collection money to the wrong routes or too slowly. Carriers also forwarded individual complaints about Tetrault’s management. In each case, the ALJ concluded that Tetrault had followed practices typical among district managers or specifically approved by her supervisors. For example, regarding the allegation that Tetrault submitted cash turn-ins with mismatched personal checks, the ALJ found this was a “common, accepted, and timesaving practice, which numerous district managers follow on a daily basis.” Indeed, the Training District Manager testified that she trained new district managers to follow this procedure, since it allowed managers to compensate unpaid 'carriers immediately out of cash that had been collected, by substituting checks from other routes for the cash.\nUnion-Tribune challenges these findings, but mostly criticizes the ALJ and the Board for ignoring the evidence that it submitted on its own behalf. Union-Tribune reminds us that Tetrault herself initially requested the transfer to District 128. It also contends that the ALJ overlooked evidence of Tet-rault’s history of poor performance, which was chronicled in numerous negative reviews, warnings, and disciplinary measures dating back to 1986. Union-Tribune submitted evidence that it warned Tetrault in late 1987 that continued failure to meet deadlines for the RPBs would result in disciplinary action. All the same, it points out, it took measures to lessen Tetrault’s burden, such as introducing advance collections, combined delivery routes, and adult carriers into her district. Even if the charges against Tetrault eventually proved unsubstantiated, Union-Tribune argues, it had at the time a good-faith belief in their validity.\nThe ALJ acknowledged that Tetrault had not enjoyed a stellar record as the manager of District 128, but he found that Union-Tribune bore responsibility for assigning Harms, “who was unqualified to be placed in charge of such [a] volatile district,” to be her vacation relief manager, and for refusing to help Tetrault during the months immediately preceding her vacation. Even if Tetrault’s performance up to the summer of 1988 could have justified her firing, the ALJ was not convinced that Union-Tribune was planning to take that step. On the principal issue of the mismanagement charges, the ALJ’s exhaustive inquiry into the multifarious grounds offered for Tetrault’s termination withstands attack. There was ample evidence that Tetrault had merely followed practices common among district managers, and that Union-Tribune should have known as much. We therefore believe that the ALJ’s decision was supported by substantial evidence. For the same reasons, we conclude that Union-Tribune did not carry the burden of proving its affirmative defense, that it would have fired Tetrault even if no improper motivation had existed.\nThe Board’s order is ENFORCED.\n. Under section 158(a)(1), it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” Under section 158(a)(3), it is an unfair labor practice for an employer \"by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”\n. It has been noted that the Board’s approach merges \"dual motive analysis\" and \"pretext analysis,” traditionally thought to be two different methods of evaluating an employer's conduct. See Holo-Krome Co. v. NLRB, 954 F.2d 108, 110-11 (2d Cir.1992). Use of the term \"pretext” in the ALJ’s and Board's decisions, therefore, is less anomalous than it may appear. See NLRB v. So-White Freight Lines, Inc., 969 F.2d 401, 406 (7th Cir.1992) (although the two methods are distinct, \"the fact-finding methodologies of each are similar and, indeed, overlapping”); cf. Wright Line, 251 N.L.R.B. at 1084 n. 5 (\"[T]he distinction between a pretext case and a dual motive case is sometimes difficult to discern.”).\n. The fact that Union-Tribune punished only Tct-rault and no other employee involved in the cable documentary does not undercut the Board's determination that it acted out of animus. \"[A] discriminatory motive, otherwise established, is not .disproved by an employer's proof that it did not weed out all union adherents.” Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir.1964) (citation omitted).\n. Nonetheless, we are troubled by the General Counsel’s argument that Union-Tribune’s failure to notify Tetrault of the charges against her is evidence that the investigation was conducted in bad faith. The General Counsel’s brief does not even mention the Board’s ruling that Union-Tribune was entitled not to disclose its reasons for discharging Tetrault, with which his argument is at least superficially inconsistent. Indeed, although the Board affirmed the ALJ’s de-cisión, it did so subject to several modifications of which that ruling was one.\n[END_CASE]", "role": "user" } ]
10,512,167	Jack SCHMIDLING, Mike Regenfuss, Larry Clark, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation and Richard M. Daley, in his official capacity, Defendants-Appellees	Schmidling v. City of Chicago	1993-07-22	No. 92-1410	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before MANION and ROVNER, Circuit Judges, and REYNOLDS, Senior District Judge."], "parties": ["Jack SCHMIDLING, Mike Regenfuss, Larry Clark, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation and Richard M. Daley, in his official capacity, Defendants-Appellees."], "opinions": [{"text": "MANION, Circuit Judge.\nJack Schmidling, Mike Regenfuss, Larry Clark, Debra Lynn Petro, and Rick Hyerczyk (“plaintiffs”), reside in the City of Chicago and cultivate natural gardens on their property. They sued the City of Chicago and Mayor Richard M. Daley (“defendants”) in federal court claiming a “genuine fear” of prosecution under the City’s so-called weed ordinance, Municipal Code of Chicago § 7-28-120 (1990), which requires persons owning or controlling property within the City to keep the weeds on their property at an average height not exceeding ten inches. The district court dismissed the lawsuit because the plaintiffs lacked standing to sue. As an alternative ground for dismissal, the district court cited the doctrine of federal court abstention enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The district court also denied Schmidling and Clark leave to file a second amended complaint. The plaintiffs appeal, and we affirm.\nI. Background\nThe plaintiffs live in Chicago. Rather than having traditional lawns and gardens on then-property, they maintain natural landscapes that include a variety of native Illinois wild flowers and prairie plants. The City of Chicago has a weed ordinance, which states in relevant part:\n(a) Any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed 10 inches. Any person who violates this subsection shall be subject to a fine of not less than $50.00 nor more than $150.00. Each day that such violation continues shall be considered a separate offense.\n(b) All weeds which have not been cut or otherwise controlled, and which exceed an average height of 10 inches, are hereby declared to be a public nuisance. If any person has been convicted of violating subsection (a) and has not cut or otherwise controlled any weeds as required by this section within 10 days after the date of the conviction, the city may cause any such weeds to be cut at any time. In such event, the person who owns or controls the property on which the weeds are situated shall be liable to the city for all costs and expenses incurred by the city in cutting the weeds.\nMunicipal Code of Chicago § 7-28-120(a)-(b) (1990).\nIn June 1991, the plaintiffs sued the defendants in federal court. In their first amended complaint, the plaintiffs sought both a declaratory judgment that the current weed ordinance is unconstitutional and a permanent injunction against the enforcement of the ordinance. They alleged that the ordinance denies them due process because it is vague and ambiguous; -in particular, they claimed it fails to define the term “weed” or the term “average” and does not delineate the manner in which the “average height” of the weeds should be measured. The plaintiffs further alleged that because of its ambiguity and vagueness, the ordinance fails to give adequate notice of prohibited conduct and, thereby, invites arbitrary and discriminatory enforcement. Furthermore, they claimed the ordinance denies them equal protection of the law because it is not rationally related to any legitimate governmental interest.\nAlthough not alleged in their first amended complaint, the plaintiffs state in their Initial Brief that the plants used in natural landscapes generally grow taller than ten inches in height. Apparently, the height of the plaintiffs’ plants, not to mention the appearance of their plants, is one of the implicit reasons the plaintiffs are concerned the City will prosecute them under the current weed ordinance. (We make this point to give context to their lawsuit with respect to the ordinance and to note the omission from their first amended complaint.)\nTo demonstrate their standing to sue, the plaintiffs claimed they “genuinely fear” the City will prosecute them under the current weed ordinance. Although three of the plaintiffs (Regenfuss, Petro, and Hyerczyk) have never been cited or prosecuted under any weed ordinance, the City has cited Clark and Schmidling in the past. In 1984 and 1987, the City cited Clark for allegedly violating the previous version of the weed ordinance, and the City cited Schmidling under the same ordinance in 1987, 1988, and 1989. The City dropped each charge, however, before either man was fined or penalized. Although the plaintiffs do not explain the details behind the dismissal of the charges against Clark, they do allege that the City dropped each citation against Schmidling after receiving a letter from him explaining his reasons for cultivating his natural garden.\nThe plaintiffs also claimed they “genuinely fear” prosecution because the City is currently prosecuting another natural gardener, Marie Wojcieehowski, a nonparty to this lawsuit. The City first prosecuted Wojcieehowski under the earlier weed ordinance in 1989. According to the plaintiffs’ first amended complaint, “[ajfter a trial on the merits, the judge ordered Ms. Wojciechowski to clean up certain debris in her yard, cut the plants so that they would not encroach on her neighbors [sic] yard and pay a $110.00 fine and court costs.” In 1990, the City began its second prosecution of Wojciechowski under the current weed ordinance. This prosecution was pending when the plaintiffs filed their federal suit.\nThe plaintiffs further claimed the City selectively enforces the weed ordinance. Although the City is prosecuting Wojciechow-ski, they claimed it has not prosecuted the following government agencies that also maintain natural landscapes: the David Lee Animal Control Center, the Illinois Department of Transportation, the Cook County Forest Preserve, and the Chicago Park District. Moreover, the plaintiffs alleged that other villages and municipalities have ordinances that prohibit weeds in excess of a certain height and that natural gardeners have been subject to prosecution under those ordinances. The plaintiffs offered no specifics, however, about which villages and municipalities have such ordinances and about which natural gardeners have been prosecuted under those ordinances.\nDespite the plaintiffs’ allegations of a “genuine fear” of prosecution, there are no pending citations against any of them for violating the current weed ordinance. None of the plaintiffs has ever been fined or penalized under either version of the weed ordinance, and the City has never threatened to enforce the current weed ordinance against any of the plaintiffs.\nIn November 1991, the defendants moved to dismiss the first amended complaint on the ground that the plaintiffs lacked standing to maintain the lawsuit. Relying on Nuclear Engineering Co. v. Scott, 660 F.2d 241 (7th Cir.1981), the district court granted the motion because the plaintiffs had not alleged that their “genuine fear” of prosecution caused them any immediate coercive consequences. In addition, the district court sua sponte granted the motion to dismiss on the alternative basis of Younger abstention. The court ruled that abstention was apropos in light of the City’s ongoing prosecution of Wojciechowski. The court wrote: “It would be an unwarranted interference in federal-state relations for this court to interpret a municipal ordinance and decide its .constitutionality at a time that a state, court is in the process of doing the same thing.”\nThe plaintiffs then moved the district court to reconsider the judgment against them or, in the alternative, for leave to allow just Schmidling and Clark to file a second amended complaint to correct the pleading defects regarding standing. In the proposed second amended complaint, Schmidling and Clark alleged that the threat of enforcement (the past tickets and the pending prosecution of Wojciechowski) had immediate coercive consequences on them. As examples of these consequences, Schmidling and Clark alleged, among other things, that they both erected fences around their yards to block the view of their natural landscapes from the street and that Schmidling refrains from cultivating a natural garden on his front yard, even though he has useable land. The district court denied the motion to reconsider and the motion to amend the complaint. This timely appeal followed.\nII. Analysis\nWe have jurisdiction, 28 U.S.C: § 1291, to consider the three issues the plaintiffs raise on appeal. First, whether the district court erred in dismissing their lawsuit on the ground that they lacked standing. Second, whether the district court erred in basing its dismissal on the alternative ground of Younger abstention. Third, whether the district court abused its discretion in denying Schmi-dling and Clark the right to file a second amended complaint.\nA. Standing\nTo invoke a federal court’s jurisdiction, a litigant must establish the existence of a case or controversy. U.S. Const, art. III, § 2; Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). To set forth the requisite Article III case or controversy, the litigant “must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). A litigant “ ‘does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979).\nThe injury, however, cannot be abstract. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). “It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct.” Id. “The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical’ ” Id. Of course, “[t]he difference between an abstract question and a ‘ease or controversy’ is one of degree ... and is not discernible by any precise test.” Babbitt, 442 U.S. at 297, 99 S.Ct. at 2308; accord Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969).\nIn addition, “the litigant must satisfy the ‘causation’ and ‘redressability’ prongs of the Art. Ill minima by showing that the injury ‘fairly can be traced to the challenged action,’ and ‘is likely to be redressed by a favorable decision.’ ” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990). A litigant must clearly and specifically set forth these Article III standing requirements with sufficient facts, because “[a] federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.” Id. at 155-56, 110 S.Ct. at 1723.\nIn their first amended complaint, the plaintiffs did not allege any actual injury; as a result, we examine de novo their first amended complaint to determine whether they have alleged a sufficiently immediate threat of injury. See Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991). In so doing, we accept as true all the material allegations in the complaint and construe the complaint in favor of the plaintiffs. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); Prince, 940 F.2d at 1106.\nThe'plaintiffs alleged that they have a “genuine fear” of prosecution under the current weed ordinance, specifically because the City has ticketed two of them in the past for allegedly violating the previous version of the weed ordinance and because the City is currently prosecuting Wojciechowski under the present version of the ordinance.\nEven though the City is prosecuting Wojciechowski under the current version of the weed ordinance, that does not necessarily mean the City will definitively prosecute the plaintiffs. Wisconsin’s Envtl. Decade, Inc. v. State Bar of Wis., 747 F.2d 407, 412 (7th Cir.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2324, 85 L.Ed.2d 842 (1985); People v. General Elec. Co., 683 F.2d 206, 210 (7th Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). To establish standing, the plaintiffs must also show that the City has threatened them with immediate prosecution under the current weed ordinance. See Gladstone, Realtors, 441 U.S. at 99, 99 S.Ct. at 1607-08; Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974). The plaintiffs have failed to do so. The plaintiffs have instead claimed that the City ticketed Schmi-dling and Clark in the past for allegedly violating the earlier version of the ordinance. (The City dropped the tickets before either man was fined or penalized.) These allegations are deficient to establish a case or controversy.\nIn the first place, the ticketing of Schmi-dling and Clark is too attenuated in time to show a sufficiently immediate threat that the City will prosecute the plaintiffs. The plaintiffs brought then- lawsuit in 1991. The last ticket Clark received was in 1987. The last ticket Schmidling received was in 1989. Since those dates, in addition to amending the ordinance, the City has neither prosecuted nor threatened to prosecute either man, see, e.g., O’Shea, 414 U.S. at 495-96, 94 S.Ct. at 675-76 (noting that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy ... if unaccompanied by any continuing, present adverse effects”), and the City has never cited, fined, prosecuted, or threatened the other three plaintiffs with prosecution under either version of the ordinance. The plaintiffs may consider the new ordinance unacceptable and they apparently think they are violating it, but without a showing of imminent enforcement, they have no Article III injury.\nIn the second place, a violation under the earlier ordinance is different from a violation under the present ordinance. The earlier ordinance set no height limit on weeds. The ordinance stated: “All weeds including weeds which due to pollination are a menace to health and weeds otherwise injurious to public health or welfare are hereby declared to be a public nuisance.” Municipal Code of Chicago § 99-9 (1970) (amended to current form Dee. 20,1989). In contrast, the current ordinance requires property owners or those who control property to cut all weeds so that their average height is no greater than ten inches. Id. § 7-28-120(a) (1990). Aceord-ingly, Schmidling and Clark could have been subject to prosecution for violating the earlier ordinance, but not necessarily be subject to prosecution for violating the current ordinance. Thus, the allegations of the past tickets — absent allegations of any immediate threat of prosecution under the current ordinance — fail to show a realistic danger that the City will certainly prosecute the plaintiffs under the present weed ordinance. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09; O’Shea, 414 U.S. at 495-96, 94 S.Ct. at 675-76; Wisconsin’s Envtl. Decade, Inc., 747 F.2d at 412; General Elec. Co., 683 F.2d at 209-10.\nMoreover, although the plaintiffs have alleged that they have a “genuine fear” of being prosecuted, their allegations are inadequate to show that the City has caused that fear. We find no allegations in the first amended complaint that the City has threatened the plaintiffs in any way with prosecution under the current ordinance. For the purposes of determining standing, we are initially and primarily concerned with the threat of prosecution, not with a litigant’s anticipation of it. Gladstone, Realtors, 441 U.S. at 99, 99 S.Ct. at 1607-08; Warth, 422 U.S. at 499, 95 S.Ct. at 2205. The reason: anticipation, fervor of advocacy, speculation, or even fear is not enough by itself to establish standing. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485-86, 102 S.Ct. 752, 765-66, 70 L.Ed.2d 700 (1982); Nuclear Eng’g Co. v. Scott, 660 F.2d 241, 252 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982). A credible threat of direct injury to the litigant must exist. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09; O’Shea, 414 U.S. at 494, 94 S.Ct. at 675. As such, because the plaintiffs have not alleged sufficient facts to show that the City has threatened them with prosecution under the current weed ordinance, we find their claims of “genuine fear” unrealistic. Steffel, 415 U.S. at 459, 94 S.Ct. at 1215-16; O’Shea, 414 U.S. at 494, 94 S.Ct. at 675. Indeed, because the plaintiffs are not engaged in any constitutionally protected conduct- or expression, this is not one of those cases where the mere existence of a law can, under the correct circumstance, serve as a sufficient threat in and of itself to give a litigant standing to sue. Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09 (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’ ”); e.g., New York State Club Ass’n v. City of New York, 487 U.S. 1, 8-10, 108 S.Ct. 2225, 2231-33, 101 L.Ed.2d 1 (1988) (a consortium of private clubs obtained standing to sue because its member associations could have established standing on behalf of their members who were suffering immediate or threatened injury to their associational rights because of the enactment of a law, even though none had been charged); Epperson v. Arkansas, 393 U.S. 97, 98-102, 89 S.Ct. 266, 267-69, 21 L.Ed.2d 228 (1968) (biology teacher, although not yet charged criminally, obtained standing to challenge law that prohibited the teaching of evolution); Kucharek v. Hanaway, 902 F.2d 513, 516 (7th Cir.1990) (sellers of sexually explicit materials obtained standing to challenge newly enacted obscenity statute based on their reasonable fear of prosecution, even though they were not charged criminally), cert. denied, 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). But see Younger, 401 U.S. at 42, 91 S.Ct. at 749-50 (“[Pjersons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.... ”).\nIn sum, we affirm the district court for granting the defendants’ motion to dismiss. We do not find the allegations in the first amended complaint to have demonstrated that the plaintiffs are in real and immediate danger of sustaining some direct injury as a result of the operation or enforcement of the weed ordinance. Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09; O’Shea, 414 U.S. at 494, 94 S.Ct. at 675; General Elec. Co., 683 F.2d at 210. Our reason for affirming the district court varies somewhat from the one the court advanced in dismissing the amended complaint. The district court relied on Nuclear Engineering to determine that the plaintiffs lacked standing. In that case, the Nuclear Engineering Company (“NEC”) brought a federal suit after hearing the Illinois Attorney General announce at a press conference his intent to commence lawsuits at some future date against those persons, including NEC, whom he thought were violating Illinois environmental protection laws. Nuclear Eng’g Co., 660 F.2d at 243-44, 252. We ruled that for NEC to establish standing based on this threat of future prosecution, it had to show that “the threat of enforcement [had] immediate coercive consequences of some sort upon [it].” Id. at 252. Therefore, in applying Nuclear Engineering, the district court here determined that the plaintiffs lacked standing because they did not demonstrate some immediate coercive consequence. For the district court to have reached that conclusion, though, it had to first find that the City had threatened the plaintiffs with future prosecution under the current weed ordinance. Yet, based on our de novo review of the first amended complaint, we conclude that the City has not threatened the plaintiffs with either immediate or future prosecution under the current weed ordinance.\nB. Abstention\nThe plaintiffs also argue that the district court erred in abstaining sua sponte on the basis of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which the court used as an alternative basis for granting the defendants’ motion to dismiss. “Under Younger -abstention doctrine, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237-38, 104 S.Ct. 2321, 2327-28, 81 L.Ed.2d 186 (1984). Because we have already affirmed the district court on the basis that the plaintiffs lacked standing to bring their lawsuit, we do not need to reach this point on appeal.\nC. Motion to Amend\nAfter the district court dismissed the plaintiffs’ first amended complaint, the plaintiffs moved the court to reconsider the judgment against them. The court denied that motion. In the alternative, the plaintiffs moved for just Schmidling and Clark to file a second amended complaint to resolve the pleading defects the district court had noted in its order of dismissal. In that order, the district court stated that even though the plaintiffs had alleged a “genuine fear” of prosecution, they had to show that they suffered some immediate coercive consequences to achieve standing. In light of the court’s conclusion, Schmidling and Clark alleged in their proposed second amended complaint that the threat of prosecution (the past tickets and the Wojciechowski suit) caused them to suffer immediate coercive consequences. For instance, they alleged that they had to build fences around their yards to block the view of their natural landscapes from the street. The court denied the motion to amend.\nIn their proposed second amended complaint, Schmidling and Clark rely on the same claims of threatened prosecution the plaintiffs raised in the first amended complaint, that is, the past tickets and the prosecution of Wojciechowski. We have already ruled that those allegations do not demonstrate a credible or realistic threat that the City will prosecute any of the plaintiffs under the current ordinance now or in the future. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09. Thus, the actions Schmidling and Clark allege they have taken do not represent steps taken in response to some genuine threat of future prosecution, but represent steps taken in response to their speculative and imaginary fear of prosecution. See, e.g., id. If anything, these prudent measures reduced the possibility of prosecution under the current ordinance. Consequently, the district court did not abuse its discretion in denying the motion to file a second amended complaint. See Perkins v. Silverstein, 939 F.2d 463, 471-72 (7th Cir.1991); Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir.1991).\nIII. Conclusion\nThe district court properly dismissed the lawsuit on the basis of standing; as such, we do not need to reach the abstention question. The district court also did not abuse its discretion in denying the motion to file a second amended complaint. Accordingly, the district court is Affirmed.\n. The district court properly dismissed Mayor Daley, sued in his official capacity, as a party to this action. A lawsuit against Mayor Daley in his\n. The version of the weed ordinance that preceded the current version stated in pertinent part:\n99-9. All weeds including weeds which due to pollination are a menace to health and weeds otherwise injurious to public health or welfare are hereby declared to be a public nuisance.\nIt shall be unlawful for any person owning or controlling any plot of ground to permit the growth of such weeds thereon.\nAll such weeds shall be cut, pulled, destroyed or chemically sprayed ... by the owner or person in control of said plot of ground at least twice a year....\nThe failure to destroy such weeds within the designated periods shall constitute a violation of this section.\nWhen the owner or person in control of any plot of ground fails to destroy or spray weeds growing thereon as provided herein, the city official charged with the enforcement of this section shall destroy the said weeds, and any expense incurred by the city in so doing shall be a charge against the owner so failing, which may be recovered in an appropriate action in law instituted by the corporation counsel.\nMunicipal Code of Chicago § 99-9 (1970) (amended to current form Dec. 20, 1989).\n. Because the plaintiffs do not give any specifics in their first ámended complaint or in their appellate briefs about the current prosecution of Wojciechowski, we have reviewed the initial complaint and first amended complaint in her state-court suit on our own initiative. See Green v. Warden, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). The City is charging Wojciechow-ski with having weeds in excess of ten inches in height on her property, thereby causing a public nuisance, and with storing pieces of lumber and stacks of bricks on her property. City of Chicago v. Wojciechowski, No. 90-MCI-322079 (Cir.Ct. Cook County, III.). The fact that the City- is prosecuting Wojciechowski for having bricks and lumber on her property separates her situation from the pristine gardeners who carefully nurture their yards. The second prosecution against Wojciechowski appears to have resulted from her not doing what the state trial judge ordered her to do after her first prosecution. As of oral argument, Wojciechowski's case was still pending in the Cook County Circuit Court.\n. Although the plaintiffs claim that they and Wo-jciechowski engage in the same type of gardening behavior, the record is unclear regarding the similarity between her garden and those of all the plaintiffs. Also, the City cited Wojciechowski not only for having weeds on her property, but for storing bricks and lumber on her property as well. Supra note 3. The existence of the bricks and lumber may have created some other hazard, nuisance, or health problem that motivated the City to issue the citation. No doubt the existence of the bricks and lumber is a difference between Wojciechowski's situation and the plaintiffs' situation.", "type": "majority", "author": "MANION, Circuit Judge."}, {"text": "REYNOLDS, Senior District Judge,\nconcurring.\nI disagree with the majority’s conclusion that plaintiff-appellant Jack Schmidling lacks standing to challenge the Chicago weed ordinance. Schmidling was three times threatened -with prosecution under the previous ordinance, the most recent citation having been issued in 1989, less than two years before this lawsuit was filed. The ordinance was amended in 1990, but not in any way that reduces the likelihood of Schmidling being cited again. Another natural gardener, Marie Wojciechowski (not a party to this action), has been cited and prosecuted under both versions of the ordinance, and her garden (or weed-patch, depending on your point of view) is identical to Schmidling’s for purposes relevant to the weed ordinance.\nUnder these circumstances, I think Schmi-dling has established a “credible threat of prosecution,” thereby satisfying the case or controversy requirement of Article III. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979). See Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974) (two prior warnings to cease handbilling, combined with prosecution of plaintiffs “handbilling companion” create Article III controversy). The majority’s characterization of Schmidling’s fear of prosecution as “speculative and imaginary” should be, and usually is, reserved for cases in which the plaintiff “feel[s] inhibited” by the mere existence of a law; it is not an appropriate characterization where the plaintiff has received actual, formal threats of prosecution. Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749-50, 27 L.Ed.2d 669 (1971); Steffel, 415 U.S. at 459, 94 S.Ct. at 1215-16.\nNevertheless, I concur with the result reached by the majority because I believe plaintiffs have no hope of prevailing on the merits of their constitutional claims. Were the issue to be reached, the weed ordinance would be found neither unconstitutionally vague nor irrational.", "type": "concurrence", "author": "REYNOLDS, Senior District Judge,"}], "attorneys": ["Bret A. Rappaport, Asst. Atty. Gen., Schwartz, Cooper, Kolb & Gaynor, James A. Romanyak, Bell, Boyd & Lloyd, Gregory A. Stayart, Chicago, IL, for plaintiffs-appellants.", "Mary F. Harkenrider, Anita K. Modak-Truran, Office of the Corp. Counsel, Kelly R. Welsh, Benna R. Solomon, Timothy W. Jor-anko, Office of Corp. Counsel, App.Div., Chicago, IL, for defendants-appellees."], "corrections": "", "head_matter": "Jack SCHMIDLING, Mike Regenfuss, Larry Clark, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation and Richard M. Daley, in his official capacity, Defendants-Appellees.\nNo. 92-1410.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Nov. 12, 1992.\nDecided July 22, 1993.\nBret A. Rappaport, Asst. Atty. Gen., Schwartz, Cooper, Kolb & Gaynor, James A. Romanyak, Bell, Boyd & Lloyd, Gregory A. Stayart, Chicago, IL, for plaintiffs-appellants.\nMary F. Harkenrider, Anita K. Modak-Truran, Office of the Corp. Counsel, Kelly R. Welsh, Benna R. Solomon, Timothy W. Jor-anko, Office of Corp. Counsel, App.Div., Chicago, IL, for defendants-appellees.\nBefore MANION and ROVNER, Circuit Judges, and REYNOLDS, Senior District Judge.\nHon. John W. Reynolds, Senior District Judge for the Eastern District of Wisconsin, is sitting by designation. official capacity is the same as a lawsuit against the City of Chicago. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985). Consequently, Mayor Daley is not a party to this appeal."}	MANION	ROVNER	REYNOLDS	1	2	1	0	1	0	1 F.3d 494	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jack SCHMIDLING, Mike Regenfuss, Larry Clark, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation and Richard M. Daley, in his official capacity, Defendants-Appellees\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-22\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nMANION, Circuit Judge.\nJack Schmidling, Mike Regenfuss, Larry Clark, Debra Lynn Petro, and Rick Hyerczyk (“plaintiffs”), reside in the City of Chicago and cultivate natural gardens on their property. They sued the City of Chicago and Mayor Richard M. Daley (“defendants”) in federal court claiming a “genuine fear” of prosecution under the City’s so-called weed ordinance, Municipal Code of Chicago § 7-28-120 (1990), which requires persons owning or controlling property within the City to keep the weeds on their property at an average height not exceeding ten inches. The district court dismissed the lawsuit because the plaintiffs lacked standing to sue. As an alternative ground for dismissal, the district court cited the doctrine of federal court abstention enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The district court also denied Schmidling and Clark leave to file a second amended complaint. The plaintiffs appeal, and we affirm.\nI. Background\nThe plaintiffs live in Chicago. Rather than having traditional lawns and gardens on then-property, they maintain natural landscapes that include a variety of native Illinois wild flowers and prairie plants. The City of Chicago has a weed ordinance, which states in relevant part:\n(a) Any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed 10 inches. Any person who violates this subsection shall be subject to a fine of not less than $50.00 nor more than $150.00. Each day that such violation continues shall be considered a separate offense.\n(b) All weeds which have not been cut or otherwise controlled, and which exceed an average height of 10 inches, are hereby declared to be a public nuisance. If any person has been convicted of violating subsection (a) and has not cut or otherwise controlled any weeds as required by this section within 10 days after the date of the conviction, the city may cause any such weeds to be cut at any time. In such event, the person who owns or controls the property on which the weeds are situated shall be liable to the city for all costs and expenses incurred by the city in cutting the weeds.\nMunicipal Code of Chicago § 7-28-120(a)-(b) (1990).\nIn June 1991, the plaintiffs sued the defendants in federal court. In their first amended complaint, the plaintiffs sought both a declaratory judgment that the current weed ordinance is unconstitutional and a permanent injunction against the enforcement of the ordinance. They alleged that the ordinance denies them due process because it is vague and ambiguous; -in particular, they claimed it fails to define the term “weed” or the term “average” and does not delineate the manner in which the “average height” of the weeds should be measured. The plaintiffs further alleged that because of its ambiguity and vagueness, the ordinance fails to give adequate notice of prohibited conduct and, thereby, invites arbitrary and discriminatory enforcement. Furthermore, they claimed the ordinance denies them equal protection of the law because it is not rationally related to any legitimate governmental interest.\nAlthough not alleged in their first amended complaint, the plaintiffs state in their Initial Brief that the plants used in natural landscapes generally grow taller than ten inches in height. Apparently, the height of the plaintiffs’ plants, not to mention the appearance of their plants, is one of the implicit reasons the plaintiffs are concerned the City will prosecute them under the current weed ordinance. (We make this point to give context to their lawsuit with respect to the ordinance and to note the omission from their first amended complaint.)\nTo demonstrate their standing to sue, the plaintiffs claimed they “genuinely fear” the City will prosecute them under the current weed ordinance. Although three of the plaintiffs (Regenfuss, Petro, and Hyerczyk) have never been cited or prosecuted under any weed ordinance, the City has cited Clark and Schmidling in the past. In 1984 and 1987, the City cited Clark for allegedly violating the previous version of the weed ordinance, and the City cited Schmidling under the same ordinance in 1987, 1988, and 1989. The City dropped each charge, however, before either man was fined or penalized. Although the plaintiffs do not explain the details behind the dismissal of the charges against Clark, they do allege that the City dropped each citation against Schmidling after receiving a letter from him explaining his reasons for cultivating his natural garden.\nThe plaintiffs also claimed they “genuinely fear” prosecution because the City is currently prosecuting another natural gardener, Marie Wojcieehowski, a nonparty to this lawsuit. The City first prosecuted Wojcieehowski under the earlier weed ordinance in 1989. According to the plaintiffs’ first amended complaint, “[ajfter a trial on the merits, the judge ordered Ms. Wojciechowski to clean up certain debris in her yard, cut the plants so that they would not encroach on her neighbors [sic] yard and pay a $110.00 fine and court costs.” In 1990, the City began its second prosecution of Wojciechowski under the current weed ordinance. This prosecution was pending when the plaintiffs filed their federal suit.\nThe plaintiffs further claimed the City selectively enforces the weed ordinance. Although the City is prosecuting Wojciechow-ski, they claimed it has not prosecuted the following government agencies that also maintain natural landscapes: the David Lee Animal Control Center, the Illinois Department of Transportation, the Cook County Forest Preserve, and the Chicago Park District. Moreover, the plaintiffs alleged that other villages and municipalities have ordinances that prohibit weeds in excess of a certain height and that natural gardeners have been subject to prosecution under those ordinances. The plaintiffs offered no specifics, however, about which villages and municipalities have such ordinances and about which natural gardeners have been prosecuted under those ordinances.\nDespite the plaintiffs’ allegations of a “genuine fear” of prosecution, there are no pending citations against any of them for violating the current weed ordinance. None of the plaintiffs has ever been fined or penalized under either version of the weed ordinance, and the City has never threatened to enforce the current weed ordinance against any of the plaintiffs.\nIn November 1991, the defendants moved to dismiss the first amended complaint on the ground that the plaintiffs lacked standing to maintain the lawsuit. Relying on Nuclear Engineering Co. v. Scott, 660 F.2d 241 (7th Cir.1981), the district court granted the motion because the plaintiffs had not alleged that their “genuine fear” of prosecution caused them any immediate coercive consequences. In addition, the district court sua sponte granted the motion to dismiss on the alternative basis of Younger abstention. The court ruled that abstention was apropos in light of the City’s ongoing prosecution of Wojciechowski. The court wrote: “It would be an unwarranted interference in federal-state relations for this court to interpret a municipal ordinance and decide its .constitutionality at a time that a state, court is in the process of doing the same thing.”\nThe plaintiffs then moved the district court to reconsider the judgment against them or, in the alternative, for leave to allow just Schmidling and Clark to file a second amended complaint to correct the pleading defects regarding standing. In the proposed second amended complaint, Schmidling and Clark alleged that the threat of enforcement (the past tickets and the pending prosecution of Wojciechowski) had immediate coercive consequences on them. As examples of these consequences, Schmidling and Clark alleged, among other things, that they both erected fences around their yards to block the view of their natural landscapes from the street and that Schmidling refrains from cultivating a natural garden on his front yard, even though he has useable land. The district court denied the motion to reconsider and the motion to amend the complaint. This timely appeal followed.\nII. Analysis\nWe have jurisdiction, 28 U.S.C: § 1291, to consider the three issues the plaintiffs raise on appeal. First, whether the district court erred in dismissing their lawsuit on the ground that they lacked standing. Second, whether the district court erred in basing its dismissal on the alternative ground of Younger abstention. Third, whether the district court abused its discretion in denying Schmi-dling and Clark the right to file a second amended complaint.\nA. Standing\nTo invoke a federal court’s jurisdiction, a litigant must establish the existence of a case or controversy. U.S. Const, art. III, § 2; Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). To set forth the requisite Article III case or controversy, the litigant “must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). A litigant “ ‘does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979).\nThe injury, however, cannot be abstract. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). “It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct.” Id. “The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical’ ” Id. Of course, “[t]he difference between an abstract question and a ‘ease or controversy’ is one of degree ... and is not discernible by any precise test.” Babbitt, 442 U.S. at 297, 99 S.Ct. at 2308; accord Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969).\nIn addition, “the litigant must satisfy the ‘causation’ and ‘redressability’ prongs of the Art. Ill minima by showing that the injury ‘fairly can be traced to the challenged action,’ and ‘is likely to be redressed by a favorable decision.’ ” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990). A litigant must clearly and specifically set forth these Article III standing requirements with sufficient facts, because “[a] federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.” Id. at 155-56, 110 S.Ct. at 1723.\nIn their first amended complaint, the plaintiffs did not allege any actual injury; as a result, we examine de novo their first amended complaint to determine whether they have alleged a sufficiently immediate threat of injury. See Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991). In so doing, we accept as true all the material allegations in the complaint and construe the complaint in favor of the plaintiffs. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); Prince, 940 F.2d at 1106.\nThe'plaintiffs alleged that they have a “genuine fear” of prosecution under the current weed ordinance, specifically because the City has ticketed two of them in the past for allegedly violating the previous version of the weed ordinance and because the City is currently prosecuting Wojciechowski under the present version of the ordinance.\nEven though the City is prosecuting Wojciechowski under the current version of the weed ordinance, that does not necessarily mean the City will definitively prosecute the plaintiffs. Wisconsin’s Envtl. Decade, Inc. v. State Bar of Wis., 747 F.2d 407, 412 (7th Cir.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2324, 85 L.Ed.2d 842 (1985); People v. General Elec. Co., 683 F.2d 206, 210 (7th Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). To establish standing, the plaintiffs must also show that the City has threatened them with immediate prosecution under the current weed ordinance. See Gladstone, Realtors, 441 U.S. at 99, 99 S.Ct. at 1607-08; Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974). The plaintiffs have failed to do so. The plaintiffs have instead claimed that the City ticketed Schmi-dling and Clark in the past for allegedly violating the earlier version of the ordinance. (The City dropped the tickets before either man was fined or penalized.) These allegations are deficient to establish a case or controversy.\nIn the first place, the ticketing of Schmi-dling and Clark is too attenuated in time to show a sufficiently immediate threat that the City will prosecute the plaintiffs. The plaintiffs brought then- lawsuit in 1991. The last ticket Clark received was in 1987. The last ticket Schmidling received was in 1989. Since those dates, in addition to amending the ordinance, the City has neither prosecuted nor threatened to prosecute either man, see, e.g., O’Shea, 414 U.S. at 495-96, 94 S.Ct. at 675-76 (noting that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy ... if unaccompanied by any continuing, present adverse effects”), and the City has never cited, fined, prosecuted, or threatened the other three plaintiffs with prosecution under either version of the ordinance. The plaintiffs may consider the new ordinance unacceptable and they apparently think they are violating it, but without a showing of imminent enforcement, they have no Article III injury.\nIn the second place, a violation under the earlier ordinance is different from a violation under the present ordinance. The earlier ordinance set no height limit on weeds. The ordinance stated: “All weeds including weeds which due to pollination are a menace to health and weeds otherwise injurious to public health or welfare are hereby declared to be a public nuisance.” Municipal Code of Chicago § 99-9 (1970) (amended to current form Dee. 20,1989). In contrast, the current ordinance requires property owners or those who control property to cut all weeds so that their average height is no greater than ten inches. Id. § 7-28-120(a) (1990). Aceord-ingly, Schmidling and Clark could have been subject to prosecution for violating the earlier ordinance, but not necessarily be subject to prosecution for violating the current ordinance. Thus, the allegations of the past tickets — absent allegations of any immediate threat of prosecution under the current ordinance — fail to show a realistic danger that the City will certainly prosecute the plaintiffs under the present weed ordinance. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09; O’Shea, 414 U.S. at 495-96, 94 S.Ct. at 675-76; Wisconsin’s Envtl. Decade, Inc., 747 F.2d at 412; General Elec. Co., 683 F.2d at 209-10.\nMoreover, although the plaintiffs have alleged that they have a “genuine fear” of being prosecuted, their allegations are inadequate to show that the City has caused that fear. We find no allegations in the first amended complaint that the City has threatened the plaintiffs in any way with prosecution under the current ordinance. For the purposes of determining standing, we are initially and primarily concerned with the threat of prosecution, not with a litigant’s anticipation of it. Gladstone, Realtors, 441 U.S. at 99, 99 S.Ct. at 1607-08; Warth, 422 U.S. at 499, 95 S.Ct. at 2205. The reason: anticipation, fervor of advocacy, speculation, or even fear is not enough by itself to establish standing. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485-86, 102 S.Ct. 752, 765-66, 70 L.Ed.2d 700 (1982); Nuclear Eng’g Co. v. Scott, 660 F.2d 241, 252 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982). A credible threat of direct injury to the litigant must exist. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09; O’Shea, 414 U.S. at 494, 94 S.Ct. at 675. As such, because the plaintiffs have not alleged sufficient facts to show that the City has threatened them with prosecution under the current weed ordinance, we find their claims of “genuine fear” unrealistic. Steffel, 415 U.S. at 459, 94 S.Ct. at 1215-16; O’Shea, 414 U.S. at 494, 94 S.Ct. at 675. Indeed, because the plaintiffs are not engaged in any constitutionally protected conduct- or expression, this is not one of those cases where the mere existence of a law can, under the correct circumstance, serve as a sufficient threat in and of itself to give a litigant standing to sue. Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09 (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’ ”); e.g., New York State Club Ass’n v. City of New York, 487 U.S. 1, 8-10, 108 S.Ct. 2225, 2231-33, 101 L.Ed.2d 1 (1988) (a consortium of private clubs obtained standing to sue because its member associations could have established standing on behalf of their members who were suffering immediate or threatened injury to their associational rights because of the enactment of a law, even though none had been charged); Epperson v. Arkansas, 393 U.S. 97, 98-102, 89 S.Ct. 266, 267-69, 21 L.Ed.2d 228 (1968) (biology teacher, although not yet charged criminally, obtained standing to challenge law that prohibited the teaching of evolution); Kucharek v. Hanaway, 902 F.2d 513, 516 (7th Cir.1990) (sellers of sexually explicit materials obtained standing to challenge newly enacted obscenity statute based on their reasonable fear of prosecution, even though they were not charged criminally), cert. denied, 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). But see Younger, 401 U.S. at 42, 91 S.Ct. at 749-50 (“[Pjersons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.... ”).\nIn sum, we affirm the district court for granting the defendants’ motion to dismiss. We do not find the allegations in the first amended complaint to have demonstrated that the plaintiffs are in real and immediate danger of sustaining some direct injury as a result of the operation or enforcement of the weed ordinance. Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09; O’Shea, 414 U.S. at 494, 94 S.Ct. at 675; General Elec. Co., 683 F.2d at 210. Our reason for affirming the district court varies somewhat from the one the court advanced in dismissing the amended complaint. The district court relied on Nuclear Engineering to determine that the plaintiffs lacked standing. In that case, the Nuclear Engineering Company (“NEC”) brought a federal suit after hearing the Illinois Attorney General announce at a press conference his intent to commence lawsuits at some future date against those persons, including NEC, whom he thought were violating Illinois environmental protection laws. Nuclear Eng’g Co., 660 F.2d at 243-44, 252. We ruled that for NEC to establish standing based on this threat of future prosecution, it had to show that “the threat of enforcement [had] immediate coercive consequences of some sort upon [it].” Id. at 252. Therefore, in applying Nuclear Engineering, the district court here determined that the plaintiffs lacked standing because they did not demonstrate some immediate coercive consequence. For the district court to have reached that conclusion, though, it had to first find that the City had threatened the plaintiffs with future prosecution under the current weed ordinance. Yet, based on our de novo review of the first amended complaint, we conclude that the City has not threatened the plaintiffs with either immediate or future prosecution under the current weed ordinance.\nB. Abstention\nThe plaintiffs also argue that the district court erred in abstaining sua sponte on the basis of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which the court used as an alternative basis for granting the defendants’ motion to dismiss. “Under Younger -abstention doctrine, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237-38, 104 S.Ct. 2321, 2327-28, 81 L.Ed.2d 186 (1984). Because we have already affirmed the district court on the basis that the plaintiffs lacked standing to bring their lawsuit, we do not need to reach this point on appeal.\nC. Motion to Amend\nAfter the district court dismissed the plaintiffs’ first amended complaint, the plaintiffs moved the court to reconsider the judgment against them. The court denied that motion. In the alternative, the plaintiffs moved for just Schmidling and Clark to file a second amended complaint to resolve the pleading defects the district court had noted in its order of dismissal. In that order, the district court stated that even though the plaintiffs had alleged a “genuine fear” of prosecution, they had to show that they suffered some immediate coercive consequences to achieve standing. In light of the court’s conclusion, Schmidling and Clark alleged in their proposed second amended complaint that the threat of prosecution (the past tickets and the Wojciechowski suit) caused them to suffer immediate coercive consequences. For instance, they alleged that they had to build fences around their yards to block the view of their natural landscapes from the street. The court denied the motion to amend.\nIn their proposed second amended complaint, Schmidling and Clark rely on the same claims of threatened prosecution the plaintiffs raised in the first amended complaint, that is, the past tickets and the prosecution of Wojciechowski. We have already ruled that those allegations do not demonstrate a credible or realistic threat that the City will prosecute any of the plaintiffs under the current ordinance now or in the future. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09. Thus, the actions Schmidling and Clark allege they have taken do not represent steps taken in response to some genuine threat of future prosecution, but represent steps taken in response to their speculative and imaginary fear of prosecution. See, e.g., id. If anything, these prudent measures reduced the possibility of prosecution under the current ordinance. Consequently, the district court did not abuse its discretion in denying the motion to file a second amended complaint. See Perkins v. Silverstein, 939 F.2d 463, 471-72 (7th Cir.1991); Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir.1991).\nIII. Conclusion\nThe district court properly dismissed the lawsuit on the basis of standing; as such, we do not need to reach the abstention question. The district court also did not abuse its discretion in denying the motion to file a second amended complaint. Accordingly, the district court is Affirmed.\n. The district court properly dismissed Mayor Daley, sued in his official capacity, as a party to this action. A lawsuit against Mayor Daley in his\n. The version of the weed ordinance that preceded the current version stated in pertinent part:\n99-9. All weeds including weeds which due to pollination are a menace to health and weeds otherwise injurious to public health or welfare are hereby declared to be a public nuisance.\nIt shall be unlawful for any person owning or controlling any plot of ground to permit the growth of such weeds thereon.\nAll such weeds shall be cut, pulled, destroyed or chemically sprayed ... by the owner or person in control of said plot of ground at least twice a year....\nThe failure to destroy such weeds within the designated periods shall constitute a violation of this section.\nWhen the owner or person in control of any plot of ground fails to destroy or spray weeds growing thereon as provided herein, the city official charged with the enforcement of this section shall destroy the said weeds, and any expense incurred by the city in so doing shall be a charge against the owner so failing, which may be recovered in an appropriate action in law instituted by the corporation counsel.\nMunicipal Code of Chicago § 99-9 (1970) (amended to current form Dec. 20, 1989).\n. Because the plaintiffs do not give any specifics in their first ámended complaint or in their appellate briefs about the current prosecution of Wojciechowski, we have reviewed the initial complaint and first amended complaint in her state-court suit on our own initiative. See Green v. Warden, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). The City is charging Wojciechow-ski with having weeds in excess of ten inches in height on her property, thereby causing a public nuisance, and with storing pieces of lumber and stacks of bricks on her property. City of Chicago v. Wojciechowski, No. 90-MCI-322079 (Cir.Ct. Cook County, III.). The fact that the City- is prosecuting Wojciechowski for having bricks and lumber on her property separates her situation from the pristine gardeners who carefully nurture their yards. The second prosecution against Wojciechowski appears to have resulted from her not doing what the state trial judge ordered her to do after her first prosecution. As of oral argument, Wojciechowski's case was still pending in the Cook County Circuit Court.\n. Although the plaintiffs claim that they and Wo-jciechowski engage in the same type of gardening behavior, the record is unclear regarding the similarity between her garden and those of all the plaintiffs. Also, the City cited Wojciechowski not only for having weeds on her property, but for storing bricks and lumber on her property as well. Supra note 3. The existence of the bricks and lumber may have created some other hazard, nuisance, or health problem that motivated the City to issue the citation. No doubt the existence of the bricks and lumber is a difference between Wojciechowski's situation and the plaintiffs' situation.\n[END_CASE]", "role": "user" } ]
10,512,208	Lloyd E. WILLIAMS, Jr. and Mildred A. Williams, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee	Williams v. Commissioner	1993-07-23	No. 92-3691	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before POSNER and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge."], "parties": ["Lloyd E. WILLIAMS, Jr. and Mildred A. Williams, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee."], "opinions": [{"text": "POSNER, Circuit Judge.\nSection 483 of the Internal Revenue Code, before it was amended in 1984, provided that if the first installment of the price for a purchase was not due for more than six months, the purchaser could pretend that he had borrowed the amount of the installment from the seller and could compute — and when he finally paid the installment, deduct from his taxable income — the portion of the installment that represented'implicit interest on the “loan.” The method of calculating this implicit interest was extremely favorable to the taxpayer. The taxpayers in this case took such an interest deduction, but were assessed a deficiency on the ground that the sale had occurred when the first installment was due (and paid) rather than, as they had believed, more than six months earlier. The Tax Court agreed with the Internal Revenue Service. 63 T.C.M. (CCH) 2959, 1992 WL 95656 (1992).\nThe taxpayers argue that the Tax Court was precluded by either the doctrine of res judicata or (somewhat more plausibly) the doctrine of law of the case from disallowing the deduction. The case had initially been assigned to a judge of the Tax Court, who granted partial summary judgment for the taxpayers, 94 T.C. 464, 1990 WL 29267 (1990), implicitly (the taxpayers argue) resolving the main issue in this case — the applicability of section 483 — -in their favor. The case was later reassigned to another judge, who reached the opposite conclusion. If the same judge had handled the case throughout, the law of the case doctrine would not have prevented him from reversing himself, Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir.1991); Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir.1985); Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134 (2d Cir.1956) (L. Hand, J.), unless the time for reconsideration had expired. Johnson v. Burken, supra, 930 F.2d at 1207. This is an important qualification, though inapplicable here. If a final judgment had been entered, the ease appealed, the judgment reversed, and the case remanded, the trial judge would be required to adhere on remand to the rulings that he had made before the case was first appealed, provided of course that they had not been set aside by the appellate court. Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987); cf. General Tire & Rubber Co. v. Firestone Tire & Rubber Co., 489 F.2d 1105, 1124 (6th Cir.1973); Dillard v. Chesapeake & Ohio Ry., 136 F.Supp. 689, 691 (S.D.W.Va.1955). Even more clearly would he be required — this is the most elementary application of the doctrine of law of the case — to comply with the rulings of the appellate .court. Johnson v. Burken, supra, 930 F.2d at 1207.\nThe situation is different when judges are changed in midstream. Litigants have a right to expect that a change in judges will not mean going back to square one. The second judge may alter previous rulings if new information convinces him that they are incorrect, but he is not free to do so even though the .time for reconsideration-has not expired, merely because he has a different view of the law or facts from the first judge. Peterson v. Lindner, supra, 765 F.2d at 704; Diaz v. Indian Head, Inc., 686 F.2d 558, 562-63 (7th Cir.1982); Dictograph Products Co. v. Sonotone Corp., supra, 230 F.2d at 134-35; United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir.1970); see generally Annot., 20 A.L.R.Fed. 13 (1974 and 1992 Supp.). In this situation the doctrine of law of the case has bite. But as explained in Peterson v. Lindner, supra, 765 F.2d at 704-05, the bite is lessened when the case is appealed. At that point, if rulings by the district court on issues of law are challenged the question is not whether the second judge should have deferred to the ruling of the first judge, but whether that ruling was correct. If it was, the ruling of the second judge was incorrect, whether or not he even had the power to make it, and the aggrieved party is entitled to obtain correction on appeal even if the second trial judge should not have tried to correct it himself. Champaign-Urbana News Agency, Inc. v. J.L. Cummins News Co., 632 F.2d 680, 683 (7th Cir.1980). Matters stand differently if the rulings challenged are not ones on which appellate review is plenary. Suppose they concerned a discretionary matter. Then even though the first and second judges had disagreed, neither might have committed reversible error, and the law of the case doctrine would require the court of appeals to defer to the first judge’s ruling. Moses v. Business Card Express, Inc., 929 F.2d 1131, 1137-38 (6th Cir.1991). With this important exception, the doctrine when applied at the appellate level concerns previous rulings by the appellate court itself. If a case that the court had remanded should return after the proceedings on remand, the court will not reexamine its previous rulings unless there is a compelling reason, such as an intervening change in law, to do so. Evans v. City of Chicago, 873 F.2d 1007, 1014 (7th Cir.1989).\nIf the rulings by the two Tax Court judges in the present case had been inconsistent, and the rulings had concerned discretionary matters as to which appellate review is limited, the taxpayers might, therefore, have a good argument based on the doctrine of law of the case. But the rulings were not inconsistent. The first rejected one set of-contentions of the Internal Revenue Service; the second accepted another contention of the Service. Rejecting arguments a and b does not imply the rejection of c unless it is related to a or b in particular ways, and in this case it was not.\nThe taxpayers’ alternative suggestion, that the Tax Court’s initial ruling had res judicata (they mean collateral estoppel) effect, is frivolous. Only a final judgment has such effect. G. & C. Merriam Co. v. Saalfield, 241 U.S. 22, 28, 36 S.Ct. 477, 479, 60 L.Ed. 868 (1916); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4432 (1981). What is true is that a judgment final in the trial court may have collateral estoppel effect even though the loser has not exhausted his appellate remedies. 18 id., § 4433 at pp. 308-15; Restatement (Second) of Judgments § 13, comment f, at p. 135 (1980); Kurek v. Pleasure Driveway & Park District, 557 F.2d 580, 595 (7th Cir.1977), vacated on other grounds, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978); Martin v. Malhoyt, 830 F.2d 237, 264 (D.C.Cir.1987). And it has been suggested that this rule might be extended to certain cases of summary judgment and even of partial summary judgment. 18 Wright, Miller & Cooper, supra, § 4434 at p. 325; cf. Miller Brewing Co. v. Joseph Schlitz Brewing Co., 605 F.2d 990, 996 (7th Cir.1979); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89-90 (2d Cir.1961) (Friendly, J.). But the purpose would be to cut off a litigant’s right to press or contest the same issues in different suits when one of the suits is almost though not quite concluded. 18 Wright, Miller & Cooper, supra, § 4434 at p. 328. There is no basis for using res judicata or collateral es-toppel to prevent a judge from reconsidering an earlier ruling in the same, ongoing case.\nSo much for procedural matters; we turn to the tax issue. On June 22, 1983, the taxpayers signed a contract to buy an unfinished ski condominium in Utah from the developer-builder. The contract fixed a purchase price of $1,514,000, of which $10,000 was to be paid immediately and the balance in two installments as specified in the buyers’ promissory note, dated the next day. The first installment, of $477,000, was to be paid on what the contract called the “settlement date,” December 30,1983, and the balance on July 24, 2013. The note recited that no interest was to be payable on it but of course the note itself is mostly interest — the appraised value of the (completed) condominium in 1983 was only $500,000. The contract required the seller to execute and place in escrow a warranty deed to be delivered to the buyers on the settlement date; and it required the buyers both to execute a quitclaim deed and place it in escrow from which it would be delivered to the seller if the buyers defaulted on the contract, and to execute a judgment note for $50,000 which would be returned to the buyers on the settlement date. The contract further recites that the buyers entered into possession of the condominium on June 22 (though it hadn’t been completed yet — indeed was not far beyond the foundations stage) and became liable for real estate taxes on that day and that if the buyers break the contract before the settlement date the seller’s “sole remedy” is to retain the down payment, enforce the judgment note, and, of course, get the condominium back. If the seller breaks the contract before the settlement date, the buyers’ “sole and exclusive remedy” is to rescind the contract and get back their down payment and the judgment note.\nThe contract was performed as agreed. The Tax Court held that the actual sale of the condominium did not take place until the settlement date. The buyers (the taxpayers) argue that it took place on the date of the contract, which was a few days more than six months previously. The question when the sale took place is a question of fact for purposes of appellate review, Durkin v. Commissioner, 872 F.2d 1271, 1275 (7th Cir.1989); Major Realty Corp. v. Commissioner, 749 F.2d 1483, 1486 (11th Cir.1985), so we can reverse only if we think the Tax Court was clearly in error. We are not so blinded by our own jargon as to think it is really a question of fact — the sort of question a layman with no instruction in legal principles could answer. Obviously it is a question about the proper application of a legal standard to the (real) facts. Since, however, it requires a judgment based on the idiosyncratic facts of a particular case rather than the formulation of a general rule, it is one best confided to the first-line judicial officer subject to only light appellate review. On the basis of this reasoning what are sometimes called “mixed questions of fact and law” or “ultimate questions of fact,” but, more precisely, are the application of law to facts, are governed by the clear-error standard, just like laymen’s facts. Hartford Accident & Indemnity Co. v. Sullivan, 846 F.2d 377, 384 (7th Cir.1988); Mucha v. King, 792 F.2d 602, 605 (7th Cir.1986).\nThe taxpayers argue that if title passed on June 22 or 23 under Utah law, section 483 applies. The government ripostes that the time of sale for purposes of the statute is a question of federal law. Congress can define “sale” any way it wants, but as there is no usable definition of the word in the Internal Revenue Code or Treasury Regulations, see Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965) (Treas.Reg. § 1.1002-1(d) is truistic), we assume that section 483 simply attaches federal tax consequences to a transaction defined by state law. United States v. National Bank of Commerce, 472 U.S. 713, 722, 105 S.Ct. 2919, 2925, 86 L.Ed.2d 565 (1985); Poe v. Seaborn, 282 U.S. 101, 110, 51 S.Ct. 58, 58, 75 L.Ed. 239 (1930); Commissioner v. Stuart, 300 F.2d 872, 875 (3d Cir.1962). Each state has a well-developed body of law determining the time when title passes in a sale, and taxpayers ought to be able to rely on that law in structuring their transactions. It is doubtful, to say the least, that a state would jigger its sales law just to permit a taxpayer to take advantage of the esoteric largesse of 26 U.S.C. § 483. And if the sole purpose of a transaction is to beat federal taxes, the Internal Revenue Service can ignore the legal form and recharacterize the transaction in accordance with its true purpose. Yosha v. Commissioner, 861 F.2d 494 (7th Cir.1988); Bramblett v. Commissioner, 960 F.2d 526, 533 (5th Cir.1992). The government invoked the doctrine of “substance over form” as an alternative ground in this case, but the Tax Court found it unnecessary to consider it, as do we.\nThe taxpayers argue that the sale occurred in June under Utah law because the contract of sale vested “equitable title” in them, enabling them to obtain specific performance if the seller defaulted. The first point is unhelpful, and the second incorrect. A contract to buy real estate in the future vests the buyer with “equitable title” on the day the contract is signed, in the sense that he is entitled to seek the aid of a court of equity in obtaining full legal title should the seller balk at honoring the agreement. Butler v. Wilkinson, 740 P.2d 1244, 1255 and n. 5 (Utah 1987). Nevertheless there is a distinction between a sale on the one hand and a contract for a future sale on the other, and we do not understand the taxpayers to be arguing that if the latter is the proper characterization of their contract the “sale” took place on the day it was signed. Of course if the seller is retaining legal title merely as security, as in many installment land sales, the contract of sale will be reconceived as the sale, and title will be deemed to pass when the contract is signed. Id. at 1254-55; C & J Industries, Inc. v. Bailey, 618 P.2d 58 (Utah 1980). This is not such a case. The parties contemplated that formal legal title would pass to the buyers long before the latter had paid the installment note in full.\nThere was no vesting of “equitable title” in any sense, because the contract excluded a suit for specific performance by the buyers. That the contract allowed the seller in effect to rescind at will until December 30 reinforces the inference that that is the day on which the sale actually took place. The taxpayers argue, however, that the Utah courts would not honor the parties’ agreement to exclude the buyer’s remedy of specific performance. It is true that the specification of a particular remedy does not by itself exclude a remedy of specific performance. Kelley v. Leucadia Financial Corp., 846 P.2d 1238, 1241-43 (Utah 1992); Restatement (Second) of Contracts § 361 (1981). But where as in this case the parties say that they are specifying an exclusive remedy, their agreement ordinarily will be honored, in Utah as elsewhere. Kelley v. Leucadia Financial Corp., supra, 846 P.2d 1238, 1242-43. The taxpayers argue that if this is so it makes the seller’s contractual undertaking illusory by allowing him to rescind at will without consequence, and therefore it cannot be so. Despite much lore to the contrary, however, a promise is not necessarily “illusory” merely because it is not enforceable, although its unenforceability may excuse the other party from having to perform. Truck Insurance Exchange v. Ashland Oil, Inc., 951 F.2d 787, 790 (7th Cir.1992). Contracts have other purposes besides setting the stage for a lawsuit, notably to clarify the parties’ understanding of the terms upon which they are to deal. No .doubt there is a strong presumption of enforceability, as we noted recently in Cutting v. Jerome Foods, Inc., 993 F.2d 1293, 1295-96 (7th Cir.1993). But we.cannot imagine why the courts of Utah would want to override an express provision in a contract between financially sophisticated parties (the principal taxpayer is a lawyer). And even if, to remove the “illusion,” a Utah court would interpolate a buyer’s remedy of specific performance, Ocean Dunes of Hutchinson Island Development Corp. v. Colangelo, 463 So.2d 437 (Fla.App.1985); E. Allan Farns-worth, Contracts § 2.13 (2d ed. 1990), this would only make the contract a typical buyer’s option, not a sale before the option was exercised.\nThe Tax Court in fact described the contract as an option contract. If the buyers backed out, the seller would get $60,000. The buyers acquired not a legal right but merely an opportunity to buy the condominium on the settlement date. The seller acquired not a buyer but the right to be paid $60,000 if the buyers decided not to buy. Even if the condominium had been completed so that the buyers could have moved in on June 22, they would not have “owned” the condominium then any more than a tenant owns his landlord’s building; and the fact that the buyers agreed to pay real estate taxes from June 22 on and may have borne the risk of loss from fire or earthquake would not change the essential character of the transaction. If the value of the property appreciated substantially before December 30, the seller would return the buyers’ down payment and sell the condominium for a higher price to someone else. However the buyers’ interest should be described, it was nothing like what Utah or any other jurisdiction calls ownership.\nThe flaw in the Tax Court’s analysis is that the seller delivered a warranty deed to the escrow agent on June 23 with instructions to deliver it on the settlement date to the buyers, who argue that the sale therefore was fully executed on June 23 and the seller could not have walked away from it afterward. If the buyers came up with the $477,000 first installment due on December 30, the escrow agent was required to give them the deed, period. Nothing in the contract, or in any other document exchanged between the parties, authorized the seller to instruct the escrow agent to return the deed to him, unless the buyers broke the contract; the entire purpose of an escrow arrangement is to place property beyond the reach of the parties unless stated contingencies materialize. 4 Herbert Thorndike Tiffany, Law of Real Property § 1050 (3d ed. 1975). There is no inconsistency with the provision limiting the buyers’ remedy for breach of the contract of sale to rescission, since the seller could have broken the contract by not completing the condominium. He could not have broken it, however, given the escrow arrangement, by refusing to complete the sale on December 30.\nA side agreement between the parties that was effectively a part of the contract of sale required the seller to obtain a financial institution’s commitment to finance the sale. The seller could have broken this promise, but if the property had appreciated in value the buyers would have had no difficulty obtaining financing elsewhere; so again the seller could not have retained or obtained the benefits of ownership. Still, if the seller had wanted to get out of the contract, all he had to do was delay completion of the condominium. Unless the property had appreciated at an astronomical rate, the buyers would not have been willing to plunk down $477,000 on December 30 for a piece of land with an excavation and a few beams — all there had been in June. (The contract required the seller to “use reasonable efforts to have the Condominium fully constructed and ready for occupancy by December 30,” and in any event to complete it except for finish by 200 days from June 22, which would be sometime in January.) The buyers’ only recourse would be to rescind and get their money back.\nAll this said, there was something more here than a pure seller’s option. But so what? If the seller was hogtied, all this means is that the contract was not a seller’s option. That would not make it a sale. In this case it would make it a buyer’s option. By waiving any right to seek specific performance or damages — by agreeing that if the buyers defaulted the only consequence would be that the sale would not go through and the buyers would forfeit $60,000 (unlike Fletcher v. United States, 303 F.Supp. 683, 588-89 (N.D.Ind.1967), aff'd, 436 F.2d 413 (7th Cir.1971) (per curiam), where the right to sue for compensatory damages was retained) — the seller in effect sold a purchase option (a call) for $60,000. The sale of a call for $60,000 is not the sale of a house for $500,000. Commissioner v. Stuart, supra. It is true that as the amount to be forfeited creeps toward the purchase price of the house, a point is reached at which the sale is not of the call but of the house, as in Commissioner v. Baertschi, 412 F.2d 494 (6th Cir.1969). In Baertschi the forfeiture was of a down payment equal to 29 percent of the purchase price, and that was held to cross the line. Id. at 498. Here it was 12 percent, and — or so the Tax Court could hold without committing a clear error — did not.\nAffirmed.", "type": "majority", "author": "POSNER, Circuit Judge."}], "attorneys": ["J. Gordon Hansen (argued), Scott R. Carpenter, Parsons, Behle & Latimer, Salt Lake, UT, for petitioners-appellants.", "Gary R. Allen, Teresa McLaughlin, Sara S. Holderness (argued), Dept, of Justice, Tax Div., Appellate Section, Washington, DC, for respondent-appellee."], "corrections": "", "head_matter": "Lloyd E. WILLIAMS, Jr. and Mildred A. Williams, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.\nNo. 92-3691.\nUnited States Court of Appeals, Seventh Circuit.\nArgued June 10, 1993.\nDecided July 23, 1993.\nRehearing and Suggestion for Rehearing En Banc Denied Aug. 31, 1993.\nJ. Gordon Hansen (argued), Scott R. Carpenter, Parsons, Behle & Latimer, Salt Lake, UT, for petitioners-appellants.\nGary R. Allen, Teresa McLaughlin, Sara S. Holderness (argued), Dept, of Justice, Tax Div., Appellate Section, Washington, DC, for respondent-appellee.\nBefore POSNER and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge."}	POSNER	COFFEY	ESCHBACH	1	1	1	0	0	0	1 F.3d 502	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Lloyd E. WILLIAMS, Jr. and Mildred A. Williams, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-23\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPOSNER, Circuit Judge.\nSection 483 of the Internal Revenue Code, before it was amended in 1984, provided that if the first installment of the price for a purchase was not due for more than six months, the purchaser could pretend that he had borrowed the amount of the installment from the seller and could compute — and when he finally paid the installment, deduct from his taxable income — the portion of the installment that represented'implicit interest on the “loan.” The method of calculating this implicit interest was extremely favorable to the taxpayer. The taxpayers in this case took such an interest deduction, but were assessed a deficiency on the ground that the sale had occurred when the first installment was due (and paid) rather than, as they had believed, more than six months earlier. The Tax Court agreed with the Internal Revenue Service. 63 T.C.M. (CCH) 2959, 1992 WL 95656 (1992).\nThe taxpayers argue that the Tax Court was precluded by either the doctrine of res judicata or (somewhat more plausibly) the doctrine of law of the case from disallowing the deduction. The case had initially been assigned to a judge of the Tax Court, who granted partial summary judgment for the taxpayers, 94 T.C. 464, 1990 WL 29267 (1990), implicitly (the taxpayers argue) resolving the main issue in this case — the applicability of section 483 — -in their favor. The case was later reassigned to another judge, who reached the opposite conclusion. If the same judge had handled the case throughout, the law of the case doctrine would not have prevented him from reversing himself, Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir.1991); Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir.1985); Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134 (2d Cir.1956) (L. Hand, J.), unless the time for reconsideration had expired. Johnson v. Burken, supra, 930 F.2d at 1207. This is an important qualification, though inapplicable here. If a final judgment had been entered, the ease appealed, the judgment reversed, and the case remanded, the trial judge would be required to adhere on remand to the rulings that he had made before the case was first appealed, provided of course that they had not been set aside by the appellate court. Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987); cf. General Tire & Rubber Co. v. Firestone Tire & Rubber Co., 489 F.2d 1105, 1124 (6th Cir.1973); Dillard v. Chesapeake & Ohio Ry., 136 F.Supp. 689, 691 (S.D.W.Va.1955). Even more clearly would he be required — this is the most elementary application of the doctrine of law of the case — to comply with the rulings of the appellate .court. Johnson v. Burken, supra, 930 F.2d at 1207.\nThe situation is different when judges are changed in midstream. Litigants have a right to expect that a change in judges will not mean going back to square one. The second judge may alter previous rulings if new information convinces him that they are incorrect, but he is not free to do so even though the .time for reconsideration-has not expired, merely because he has a different view of the law or facts from the first judge. Peterson v. Lindner, supra, 765 F.2d at 704; Diaz v. Indian Head, Inc., 686 F.2d 558, 562-63 (7th Cir.1982); Dictograph Products Co. v. Sonotone Corp., supra, 230 F.2d at 134-35; United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir.1970); see generally Annot., 20 A.L.R.Fed. 13 (1974 and 1992 Supp.). In this situation the doctrine of law of the case has bite. But as explained in Peterson v. Lindner, supra, 765 F.2d at 704-05, the bite is lessened when the case is appealed. At that point, if rulings by the district court on issues of law are challenged the question is not whether the second judge should have deferred to the ruling of the first judge, but whether that ruling was correct. If it was, the ruling of the second judge was incorrect, whether or not he even had the power to make it, and the aggrieved party is entitled to obtain correction on appeal even if the second trial judge should not have tried to correct it himself. Champaign-Urbana News Agency, Inc. v. J.L. Cummins News Co., 632 F.2d 680, 683 (7th Cir.1980). Matters stand differently if the rulings challenged are not ones on which appellate review is plenary. Suppose they concerned a discretionary matter. Then even though the first and second judges had disagreed, neither might have committed reversible error, and the law of the case doctrine would require the court of appeals to defer to the first judge’s ruling. Moses v. Business Card Express, Inc., 929 F.2d 1131, 1137-38 (6th Cir.1991). With this important exception, the doctrine when applied at the appellate level concerns previous rulings by the appellate court itself. If a case that the court had remanded should return after the proceedings on remand, the court will not reexamine its previous rulings unless there is a compelling reason, such as an intervening change in law, to do so. Evans v. City of Chicago, 873 F.2d 1007, 1014 (7th Cir.1989).\nIf the rulings by the two Tax Court judges in the present case had been inconsistent, and the rulings had concerned discretionary matters as to which appellate review is limited, the taxpayers might, therefore, have a good argument based on the doctrine of law of the case. But the rulings were not inconsistent. The first rejected one set of-contentions of the Internal Revenue Service; the second accepted another contention of the Service. Rejecting arguments a and b does not imply the rejection of c unless it is related to a or b in particular ways, and in this case it was not.\nThe taxpayers’ alternative suggestion, that the Tax Court’s initial ruling had res judicata (they mean collateral estoppel) effect, is frivolous. Only a final judgment has such effect. G. & C. Merriam Co. v. Saalfield, 241 U.S. 22, 28, 36 S.Ct. 477, 479, 60 L.Ed. 868 (1916); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4432 (1981). What is true is that a judgment final in the trial court may have collateral estoppel effect even though the loser has not exhausted his appellate remedies. 18 id., § 4433 at pp. 308-15; Restatement (Second) of Judgments § 13, comment f, at p. 135 (1980); Kurek v. Pleasure Driveway & Park District, 557 F.2d 580, 595 (7th Cir.1977), vacated on other grounds, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978); Martin v. Malhoyt, 830 F.2d 237, 264 (D.C.Cir.1987). And it has been suggested that this rule might be extended to certain cases of summary judgment and even of partial summary judgment. 18 Wright, Miller & Cooper, supra, § 4434 at p. 325; cf. Miller Brewing Co. v. Joseph Schlitz Brewing Co., 605 F.2d 990, 996 (7th Cir.1979); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89-90 (2d Cir.1961) (Friendly, J.). But the purpose would be to cut off a litigant’s right to press or contest the same issues in different suits when one of the suits is almost though not quite concluded. 18 Wright, Miller & Cooper, supra, § 4434 at p. 328. There is no basis for using res judicata or collateral es-toppel to prevent a judge from reconsidering an earlier ruling in the same, ongoing case.\nSo much for procedural matters; we turn to the tax issue. On June 22, 1983, the taxpayers signed a contract to buy an unfinished ski condominium in Utah from the developer-builder. The contract fixed a purchase price of $1,514,000, of which $10,000 was to be paid immediately and the balance in two installments as specified in the buyers’ promissory note, dated the next day. The first installment, of $477,000, was to be paid on what the contract called the “settlement date,” December 30,1983, and the balance on July 24, 2013. The note recited that no interest was to be payable on it but of course the note itself is mostly interest — the appraised value of the (completed) condominium in 1983 was only $500,000. The contract required the seller to execute and place in escrow a warranty deed to be delivered to the buyers on the settlement date; and it required the buyers both to execute a quitclaim deed and place it in escrow from which it would be delivered to the seller if the buyers defaulted on the contract, and to execute a judgment note for $50,000 which would be returned to the buyers on the settlement date. The contract further recites that the buyers entered into possession of the condominium on June 22 (though it hadn’t been completed yet — indeed was not far beyond the foundations stage) and became liable for real estate taxes on that day and that if the buyers break the contract before the settlement date the seller’s “sole remedy” is to retain the down payment, enforce the judgment note, and, of course, get the condominium back. If the seller breaks the contract before the settlement date, the buyers’ “sole and exclusive remedy” is to rescind the contract and get back their down payment and the judgment note.\nThe contract was performed as agreed. The Tax Court held that the actual sale of the condominium did not take place until the settlement date. The buyers (the taxpayers) argue that it took place on the date of the contract, which was a few days more than six months previously. The question when the sale took place is a question of fact for purposes of appellate review, Durkin v. Commissioner, 872 F.2d 1271, 1275 (7th Cir.1989); Major Realty Corp. v. Commissioner, 749 F.2d 1483, 1486 (11th Cir.1985), so we can reverse only if we think the Tax Court was clearly in error. We are not so blinded by our own jargon as to think it is really a question of fact — the sort of question a layman with no instruction in legal principles could answer. Obviously it is a question about the proper application of a legal standard to the (real) facts. Since, however, it requires a judgment based on the idiosyncratic facts of a particular case rather than the formulation of a general rule, it is one best confided to the first-line judicial officer subject to only light appellate review. On the basis of this reasoning what are sometimes called “mixed questions of fact and law” or “ultimate questions of fact,” but, more precisely, are the application of law to facts, are governed by the clear-error standard, just like laymen’s facts. Hartford Accident & Indemnity Co. v. Sullivan, 846 F.2d 377, 384 (7th Cir.1988); Mucha v. King, 792 F.2d 602, 605 (7th Cir.1986).\nThe taxpayers argue that if title passed on June 22 or 23 under Utah law, section 483 applies. The government ripostes that the time of sale for purposes of the statute is a question of federal law. Congress can define “sale” any way it wants, but as there is no usable definition of the word in the Internal Revenue Code or Treasury Regulations, see Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965) (Treas.Reg. § 1.1002-1(d) is truistic), we assume that section 483 simply attaches federal tax consequences to a transaction defined by state law. United States v. National Bank of Commerce, 472 U.S. 713, 722, 105 S.Ct. 2919, 2925, 86 L.Ed.2d 565 (1985); Poe v. Seaborn, 282 U.S. 101, 110, 51 S.Ct. 58, 58, 75 L.Ed. 239 (1930); Commissioner v. Stuart, 300 F.2d 872, 875 (3d Cir.1962). Each state has a well-developed body of law determining the time when title passes in a sale, and taxpayers ought to be able to rely on that law in structuring their transactions. It is doubtful, to say the least, that a state would jigger its sales law just to permit a taxpayer to take advantage of the esoteric largesse of 26 U.S.C. § 483. And if the sole purpose of a transaction is to beat federal taxes, the Internal Revenue Service can ignore the legal form and recharacterize the transaction in accordance with its true purpose. Yosha v. Commissioner, 861 F.2d 494 (7th Cir.1988); Bramblett v. Commissioner, 960 F.2d 526, 533 (5th Cir.1992). The government invoked the doctrine of “substance over form” as an alternative ground in this case, but the Tax Court found it unnecessary to consider it, as do we.\nThe taxpayers argue that the sale occurred in June under Utah law because the contract of sale vested “equitable title” in them, enabling them to obtain specific performance if the seller defaulted. The first point is unhelpful, and the second incorrect. A contract to buy real estate in the future vests the buyer with “equitable title” on the day the contract is signed, in the sense that he is entitled to seek the aid of a court of equity in obtaining full legal title should the seller balk at honoring the agreement. Butler v. Wilkinson, 740 P.2d 1244, 1255 and n. 5 (Utah 1987). Nevertheless there is a distinction between a sale on the one hand and a contract for a future sale on the other, and we do not understand the taxpayers to be arguing that if the latter is the proper characterization of their contract the “sale” took place on the day it was signed. Of course if the seller is retaining legal title merely as security, as in many installment land sales, the contract of sale will be reconceived as the sale, and title will be deemed to pass when the contract is signed. Id. at 1254-55; C & J Industries, Inc. v. Bailey, 618 P.2d 58 (Utah 1980). This is not such a case. The parties contemplated that formal legal title would pass to the buyers long before the latter had paid the installment note in full.\nThere was no vesting of “equitable title” in any sense, because the contract excluded a suit for specific performance by the buyers. That the contract allowed the seller in effect to rescind at will until December 30 reinforces the inference that that is the day on which the sale actually took place. The taxpayers argue, however, that the Utah courts would not honor the parties’ agreement to exclude the buyer’s remedy of specific performance. It is true that the specification of a particular remedy does not by itself exclude a remedy of specific performance. Kelley v. Leucadia Financial Corp., 846 P.2d 1238, 1241-43 (Utah 1992); Restatement (Second) of Contracts § 361 (1981). But where as in this case the parties say that they are specifying an exclusive remedy, their agreement ordinarily will be honored, in Utah as elsewhere. Kelley v. Leucadia Financial Corp., supra, 846 P.2d 1238, 1242-43. The taxpayers argue that if this is so it makes the seller’s contractual undertaking illusory by allowing him to rescind at will without consequence, and therefore it cannot be so. Despite much lore to the contrary, however, a promise is not necessarily “illusory” merely because it is not enforceable, although its unenforceability may excuse the other party from having to perform. Truck Insurance Exchange v. Ashland Oil, Inc., 951 F.2d 787, 790 (7th Cir.1992). Contracts have other purposes besides setting the stage for a lawsuit, notably to clarify the parties’ understanding of the terms upon which they are to deal. No .doubt there is a strong presumption of enforceability, as we noted recently in Cutting v. Jerome Foods, Inc., 993 F.2d 1293, 1295-96 (7th Cir.1993). But we.cannot imagine why the courts of Utah would want to override an express provision in a contract between financially sophisticated parties (the principal taxpayer is a lawyer). And even if, to remove the “illusion,” a Utah court would interpolate a buyer’s remedy of specific performance, Ocean Dunes of Hutchinson Island Development Corp. v. Colangelo, 463 So.2d 437 (Fla.App.1985); E. Allan Farns-worth, Contracts § 2.13 (2d ed. 1990), this would only make the contract a typical buyer’s option, not a sale before the option was exercised.\nThe Tax Court in fact described the contract as an option contract. If the buyers backed out, the seller would get $60,000. The buyers acquired not a legal right but merely an opportunity to buy the condominium on the settlement date. The seller acquired not a buyer but the right to be paid $60,000 if the buyers decided not to buy. Even if the condominium had been completed so that the buyers could have moved in on June 22, they would not have “owned” the condominium then any more than a tenant owns his landlord’s building; and the fact that the buyers agreed to pay real estate taxes from June 22 on and may have borne the risk of loss from fire or earthquake would not change the essential character of the transaction. If the value of the property appreciated substantially before December 30, the seller would return the buyers’ down payment and sell the condominium for a higher price to someone else. However the buyers’ interest should be described, it was nothing like what Utah or any other jurisdiction calls ownership.\nThe flaw in the Tax Court’s analysis is that the seller delivered a warranty deed to the escrow agent on June 23 with instructions to deliver it on the settlement date to the buyers, who argue that the sale therefore was fully executed on June 23 and the seller could not have walked away from it afterward. If the buyers came up with the $477,000 first installment due on December 30, the escrow agent was required to give them the deed, period. Nothing in the contract, or in any other document exchanged between the parties, authorized the seller to instruct the escrow agent to return the deed to him, unless the buyers broke the contract; the entire purpose of an escrow arrangement is to place property beyond the reach of the parties unless stated contingencies materialize. 4 Herbert Thorndike Tiffany, Law of Real Property § 1050 (3d ed. 1975). There is no inconsistency with the provision limiting the buyers’ remedy for breach of the contract of sale to rescission, since the seller could have broken the contract by not completing the condominium. He could not have broken it, however, given the escrow arrangement, by refusing to complete the sale on December 30.\nA side agreement between the parties that was effectively a part of the contract of sale required the seller to obtain a financial institution’s commitment to finance the sale. The seller could have broken this promise, but if the property had appreciated in value the buyers would have had no difficulty obtaining financing elsewhere; so again the seller could not have retained or obtained the benefits of ownership. Still, if the seller had wanted to get out of the contract, all he had to do was delay completion of the condominium. Unless the property had appreciated at an astronomical rate, the buyers would not have been willing to plunk down $477,000 on December 30 for a piece of land with an excavation and a few beams — all there had been in June. (The contract required the seller to “use reasonable efforts to have the Condominium fully constructed and ready for occupancy by December 30,” and in any event to complete it except for finish by 200 days from June 22, which would be sometime in January.) The buyers’ only recourse would be to rescind and get their money back.\nAll this said, there was something more here than a pure seller’s option. But so what? If the seller was hogtied, all this means is that the contract was not a seller’s option. That would not make it a sale. In this case it would make it a buyer’s option. By waiving any right to seek specific performance or damages — by agreeing that if the buyers defaulted the only consequence would be that the sale would not go through and the buyers would forfeit $60,000 (unlike Fletcher v. United States, 303 F.Supp. 683, 588-89 (N.D.Ind.1967), aff'd, 436 F.2d 413 (7th Cir.1971) (per curiam), where the right to sue for compensatory damages was retained) — the seller in effect sold a purchase option (a call) for $60,000. The sale of a call for $60,000 is not the sale of a house for $500,000. Commissioner v. Stuart, supra. It is true that as the amount to be forfeited creeps toward the purchase price of the house, a point is reached at which the sale is not of the call but of the house, as in Commissioner v. Baertschi, 412 F.2d 494 (6th Cir.1969). In Baertschi the forfeiture was of a down payment equal to 29 percent of the purchase price, and that was held to cross the line. Id. at 498. Here it was 12 percent, and — or so the Tax Court could hold without committing a clear error — did not.\nAffirmed.\n[END_CASE]", "role": "user" } ]
10,512,293	Daniel L. KULAVIC, Plaintiff-Appellant, Cross-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee, Cross-Appellant	Kulavic v. Chicago & Illinois Midland Railway Co.	1993-07-26	Nos. 92-1707 & 92-1907	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before FLAUM and RIPPLE, Circuit Judges, and KAUFMAN, Senior District Judge."], "parties": ["Daniel L. KULAVIC, Plaintiff-Appellant, Cross-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee, Cross-Appellant."], "opinions": [{"text": "RIPPLE, Circuit Judge.\nDaniel Kulavie was an employee of the Chicago & Illinois Midland Railway Company (C & IM) when he was injured on the job in a physical altercation with his supervisor. Subsequently, his employment was terminated when he failed to follow C & IM’s request to report to work and, in the company’s view, did not provide sufficient medical evidence, to excuse his absence. Mr. Kulavie pursued relief under the Railway Labor Act (RLA), 45 U.S.C. §§ 151-188 (1988), but his termination was upheld. He then brought suit in federal court under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (1988), to recover for injuries sustained in the incident with his supervisor. The district court, however, determined that Mr. Kulavie was barred from presenting any evidence of future lost wages, benefits, and earning capacity from the date of his discharge. The court held that Mr. Kulavie was precluded from presenting the issue of these damages to the jury in his FELA action because the issue had been resolved in the RLA proceedings. 760 F.Supp. 137. Although the jury in the FELA action ultimately awarded damages to Mr. Kulavie, he moved for a new trial on damages or, in the alternative, for judgment notwithstanding the verdict and addi-tur. The district court denied the motion and Mr. Kulavie now appeals. C & IM also appeals from several evidentiary rulings the district court made during the damages phase of trial. We reverse the judgment of the district court and remand for a new trial on damages. C & IM’s cross-appeal is dismissed.\nI\nBACKGROUND\nA. Facts\nMr. Kulavie was employed by C & IM as a carman. While at work on August 30, 1985, Mr. Kulavie was involved in an altercation during which his supervisor physically assaulted him. Mr. Kulavie and his supervisor had disagreed over the proper method for testing air brakes on railroad ears submitted to the car department for inspection. After a heated discussion, the supervisor attacked Mr. Kulavie from behind, punching and kicking him and causing him to fall on a brake beam. Mr. Kulavie was injured in this incident. Because of their conduct, C & IM temporarily suspended both Mr. Kulavie and his supervisor from duty. Suffering from injuries incurred in the attack, Mr. Kulavie consulted and began treatment with several different doctors. He was treated for abrasions to his right forearm, left arm, and left leg. Over the course of several months, he was also treated for rib pain, temporal mandibular joint dysfunction, tinnitus, and extreme nervousness, anxiety, and depression, all allegedly stemming from the altercation with his supervisor.\nMr. Kulavic’s work suspension was set to terminate on January 6,1986, but on January 2, Mr. Kulavie advised the head of his department, Hal Bast, by letter that he was still under his doctors’ care and would be unable to return to work. R. 53, part 2 at Carrier’s Ex. C. Mr. Kulavie informed Bast that he would advise the railroad when he was able to return. Id. On January 3,1986, C & IM’s general surgeon, Dr. John Meyer, examined Mr. Kulavie to determine whether he was physically capable of returning to work. Dr. Meyer also requested that Mr. Kulavie make available all medical records compiled by any doctors who had examined or treated him during his work suspension. Based on the examination and the information he received from some of Mr. Kulavic’s treating physicians, Dr. Meyer had come to the conclusion, by the beginning of June 1986, that Mr. Kulavie was capable of returning to work.\nBast then notified Mr. Kulavie that he was to report for work on June 9, 1986, because Dr. Meyer had approved him for regular work as a carman. R. 53, part 3 at B. On the appointed day, however, Mr. Kulavic did not report to work; instead, he telephoned the general car foreman and informed him that he was still sick and had not yet been released by his doctor. R. 53, part 3 at C. Bast then sent Mr. Kulavic a letter notifying him that his excuse was not valid unless\nyou can prove by medical evidence from a reputable physician that you are physically unable to work this date, and each date you are absent prior to your return to service. As always, final determination as to an employe’s [sic] physical and mental ability to work will be made by the company physician.\nWe will have no alternative but to consider you absent without permission until such time as you return to work, or show by medical evidence why you cannot.\nR. 53, part 3 at D. In response, Mr. Kulavic submitted to C & IM an insurance report with an attachment filled out by his physician, but the railroad determined that the document did not meet the required standard of “medical evidence from a reputable physician that you are physically unable to return to service.” R. 53, section 3 at K. Thus, Mr. Kulavic’s work absences could not be excused on the basis of his alleged continuing disability. On June 17, Bast advised Mr. Kulavic to report to C & IM for an investigation and hearing to\ndevelop facts, and your responsibility, if any, in connection with your alleged failure to report for work as instructed, ... your alleged absence without permission, ... and your alleged failure to timely notify your supervisor you would be absent on June 10, 11, 12, 13, 16, and 17, 1986.\nYou are entitled to representation, to present witnesses in your own behalf and to examine and cross-examine any witnesses appearing at such investigation and hearing.\nR. 54, part 7 at Carrier’s Ex. LL.\nThe investigative hearing was held on July 15,1986, on the premises of C & IM and both the Interrogator and the Hearing Officer were railroad employees. Mr. Kulavic attended the proceedings and was represented by a union official. Mr. Kulavic’s medical records and his physicians’ correspondence were examined and Mr. Kulavic was allowed to present his case to the railroad.\nTen days later, the Hearing Officer sent Mr. Kulavic a letter detailing the findings of the investigation and informing Mr. Kulavic that C & IM had terminated his employment. The Hearing Officer concluded that none of the evidence presented at the investigation served to excuse Mr. Kulavic’s work absence; Mr. Kulavic had failed to present sufficient medical evidence of his inability to return to work. R. 54, part 5.\nPursuant to the procedures dictated by the RLA, Mr. Kulavic appealed his dismissal to a Public Law Board (PLB). He claimed that the railroad had violated the collective bargaining agreement (CBA) by unfairly dismissing him, and he alleged that the railroad’s investigation had been improper and unjust. Thus, Mr. Kulavic submitted that his employment should be restored to him and his wages and all other benefits, plus interest, should be granted to him as relief. R. 55, part 8 at 1. A majority of the PLB, however, found no reason to interfere with the railroad’s termination of Mr. Kulavic’s employment. The PLB stated:\nUpon review, we find that the investigation was conducted in a fair and impartial manner. None of claimant’s agreement rights was violated. We have considered the objections of the Organization and do not find them of sufficient significance to invalidate the proceedings.\nSubstantial evidence was adduced in the investigation in support of the charge against claimant. There was no evidence presented in the investigation that claimant was being withheld from Carrier’s service by any doctor. It is clear from the record that claimant was attempting to substitute his personal opinion as to his ability to return to work for the professional opinions of the several medical doctors involved.\nId. at 4. Thus, the PLB denied Mr. Kulavic’s claim and upheld the railroad’s termination. Mr. Kulavie did not appeal from the award.\nB. District Court Proceedings: The FELA Action\nOn August 3, 1986, Mr. Kulavie filed an action in federal court alleging liability against C & IM under the FELA. See 45 U.S.C. §§ 51-60. Mr. Kulavie sought redress for the injuries he had sustained in the altercation with his supervisor. Mr. Kulavie claimed that C & IM had negligently caused, at least in part, his numerous injuries. The district court bifurcated the trial into a liability phase and a damages phase. In the liability phase, the jury found C & IM eighty-five percent negligent and Mr. Kulavie fifteen percent negligent for his injuries. Thus, the railroad was responsible for eighty-five percent of any damages that the jury might award to Mr. Kulavie in the second phase of trial.\nPrior to trial on liability, C & IM had filed a motion in limine seeking to bar Mr. Kulavie from seeking lost earnings, fringe benefits, and loss of earning capacity from the date of his discharge onward. C & IM argued that these damages had already been addressed and resolved by the PLB when it reviewed the railroad’s dismissal of Mr. Kulavie. The district court agreed and granted the railroad’s motion. However, after the jury brought back the negligence allocations, but prior to trial on damages, the district court revisited the issue of the preclusive effect of the PLB’s decision. Because the court believed the question to be both important to the litigation and novel, it ordered the parties to submit supplemental briefs on the issue.\nOn April 2, 1991, the district court again ruled that the PLB’s decision precluded the availability of some of Mr. Kulavie’s alleged economic damages in the FELA claim. R. 95, Mem. Op. at 10. The court found that, in the course of the PLB’s review of the railroad’s investigatory hearing, the PLB had examined Mr. Kulavic’s medical records and physicians’ reports and had determined that Mr. Kulavie was physically capable of returning to work. According to the court, this determination required a conclusion that Mr. Kulavie had no right to future wages and compensation for loss of earning capacity because he was able to return to work. Allowing Mr. Kulavie to argue to the jury that he had lost wages, benefits, and earning capacity subsequent to his termination would, the district court concluded, nullify the PLB’s decision, thus ignoring the finality such decisions are given by the RLA. See 45 U.S.C. § 153 First (m) and 153 Second. Additionally, the district court stated that giving the PLB decision preclusive effect in a subsequent FELA action did not deny Mr. Kulavie his statutory right to redress his injuries, Mem. Op. at 10; Mr. Kulavie was allowed to present to the jury evidence regarding past and future medical bills, pain and suffering, disability resulting from injury, and lost earnings between the time of injury and the date of discharge. Thus, the court held that compensation under the FELA was not entirely foreclosed. Subject to C & IM’s motion in limine, the damages phase of Mr. Kulavie’s case was tried to the jury. The jury awarded $75,000 in damages, $63,750 of which was the responsibility of the railroad. Both parties then submitted post-trial motions. Mr. Kulavie moved for a new trial on damages or, in the alternative, judgment notwithstanding the verdict and additur. C & IM also moved for a new trial on damages or, in the alternative, to alter or amend the judgment to reflect certain setoffs and liens. The district court denied all of the motions and both parties now appeal. Mr. Kulavie contends that the district court erred when it prohibited him from presenting certain economic damages to the jury. He asserts that determinations made pursuant to RLA-mandated arbitration should not be given preclusive effect in a separate FELA action. In its cross-appeal, C & IM raises several alleged evidentiary errors made by the district court in the damages phase of trial and contends that certain set-offs should have been assessed against the amount of damages awarded Mr. Kulavie.\nII\nANALYSIS\nMr. Kulavie acknowledges that, under the RLA, the PLB’s award regarding his dismissal is final and binding. See 45 U.S.C. § 153 First (m) and 153 Second (both provisions stating that “awards shall be final and binding on both parties to the dispute”). Mr. Kulavie also makes clear that he is not attempting to relitigate a wrongful discharge claim in the FELA action. Although he does not agree with the decision of the PLB, he acknowledges that he cannot relitigate the question of whether his discharge was wrongful and violative of the CBA. Instead, Mr. Kulavie states that he brought the FELA suit to recover for the alleged injuries he sustained in the altercation with his supervisor. He denies that the injuries he is claiming are related to his discharge. Relying extensively on Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), Mr. Kulavie argues that the award by the PLB should not be given preclusive effect over federal statutory rights embodied in the FELA.\nC & IM, however, emphasizes that awards made by the PLB are final and binding on both parties to the dispute. It states that an issue resolved under the RLA cannot be relitigated in a separate judicial forum. Congress intended that decisions rendered under the RLA be final and, according to C & IM, allowing relitigation under the FELA would frustrate that intent. Moreover, C & IM contends that the district court’s decision regarding preclusion did not eliminate Mr. Kulavic’s right to recovery under the FELA. The court disallowed only a portion of Mr. Kulavic’s alleged damages, while allowing the jury to consider the rest. Thus, C & IM believes the district court correctly respected the finality of the PLB’s award by finding that Mr. Kulavie was precluded from asking the jury for damages due to lost wages, benefits, and earning capacity incurred after his termination.\nA. The FELA and RLA Frameworks\n1.\nCongress originally enacted the FELA in 1906 to create a federal remedy for railroad employees injured on the job by the negligence of their employers or their coworkers. Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557, 561, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563 (1987); Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 812 (7th Cir.1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987). Independent of the railroad’s obligations under its CBA, the FELA provides railroad workers not only with substantive protection against negligent conduct by the railroad, but also affords an injured worker a remedy suited to his needs, untrammeled by many traditional defenses against tort liability. Buell, 480 U.S. at 565, 107 S.Ct. at 1415. This statute thus serves to provide an injured worker with an expeditious recovery and also gives a railroad the incentive to maintain vigilance over the safety of its workers and, concomitantly, the conditions in which they must work. An injured railroad employee can recover under the FELA as long as the employer’s negligence “played any part, even the slightest, in producing the injury ... for which damages are sought.” Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). Moreover, the FELA has also been interpreted to reach at least some intentional torts. See Lancaster, 773 F.2d at 812. The FELA is, therefore, a broad remedial statute to be construed liberally in order to effectuate its purpose. Buell, 480 U.S. at 562, 107 S.Ct. at 1414.\n2.\nThe RLA was established to achieve an altogether different goal. Enacted in 1926, the RLA provides an extensive administrative framework for resolving labor disputes in the railroad industry. Id. Under the RLA, minor disputes — those involving “grievances that arise daily between employees and carriers regarding rates of pay, rules, and working conditions,” i.e., disputes under the operative CBA — are to be resolved out of court. See 45 U.S.C. § 153 First (i). In this manner, Congress promoted stability in the railroad industry by creating a mandatory alternative to judicial resolution of railroad-employee disputes arising out of the interpretation of CBAs. Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978).\nPursuant to the RLA, a minor dispute must first be handled through the railroad’s usual internal dispute resolution procedures. This usually consists of an investigation held on the railroad’s premises. If the dispute remains unsettled, a party may submit it to the National Railroad Adjustment Board (NRAB) or to a PLB (which is merely a smaller version of the NRAB and is frequently stipulated to by the parties in order to hasten dispute resolution, see 45 -U.S.C. § 153 Second). Buell, 480 U.S. at 562-63, 107 S.Ct. at 1414. A PLB is composed of a labor member, a railroad member, and a neutral member and is essentially an arbitral tribunal that reviews the outcome of a railroad’s investigative hearing to ascertain whether the result is consonant with the terms of the CBA between the railroad and its union employees. See Elmore v. Chicago & I.M. Ry., 782 F.2d 94, 95 (7th Cir.1986); FRANK Elkouri & Edna A. Elkouri, How Arbitration Works 304 (4th ed. 1985). A PLB award may be appealed in federal court, but the scope of judicial review is “among the nairowest known to the law.” Sheehan, 439 U.S. at 91, 99 S.Ct. at 401; see also American Train Dispatchers Ass’n v. Norfolk & Western Ry., 937 F.2d 365, 366 (7th Cir. 1991). “Judicial review of Board orders is limited to three specific grounds: (1) failure of the Board to comply with the requirements of the Railway Labor Act; (2) failure of the Board to confine itself to matters within the scope of its jurisdiction; and (3) fraud or corruption.” American Train Dispatchers, 937 F.2d at 366 (citing 45 U.S.C. § 153 First (q)).\n3.\nAlthough the RLA was enacted many years after the FELA had been established, the text makes no mention of the FELA, Buell, 480 U.S. at 562, 107 S.Ct. at 1414, much less mention of any preclusive effect a PLB award might have on issues raised in a FELA claim. Moreover, there is no indication in the RLA that the FELA rights were in any way diluted by the enactment of the RLA. The RLA merely states that awards of the PLB “shall be final and binding up'on both parties to the dispute.” 45 U.S.C. § 153 First (m) and 153 Second. In discussing whether a worker’s action for emotional injury should be considered a FELA claim or should fall under the purview of the RLA, the Supreme Court has noted that “absent an intolerable conflict between the two statutes, we are unwilling to read the RLA as repealing any part of the FELA.... As far as a worker’s right to damages under the FELA is concerned, Congress’ enactment of the RLA has had no effect.” Buell, 480 U.S. at 566-67, 107 S.Ct. at 1416; see also Capraro v. United Parcel Serv. Co., 993 F.2d 328 (3d Cir.1993) (noting that the RLA does not preempt claims that may also be brought under the FELA).\nAs noted above, Mr. Kulavic does not contest the PLB’s ultimate determination that he was not wrongfully terminated from his position as a C & IM carman. Thus, he acknowledges the finality and binding effect of the PLB’s award. The district court, however, held that in reaching its result, the PLB implicitly considered and resolved the issues underlying Mr. Kulavic’s discharge. Mem. Op. at 8. “This included whether at the time of his discharge, Kulavic was physically capable of preforming [sic] the duties of carman.” Id. Because the district court believed that the PLB had implicitly found Mr. Kulavic healthy enough to continue his work as a carman, the court ruled that he could not present to the jury the question of whether he lost future income and benefits from his injuries. Submission of this matter to the jury would constitute, in the district court’s view, a relitigation of the same issue in his FELA action. We must determine whether the court correctly gave preclusive effect to an issue purportedly resolved by the PLB.\nB. Reconciliation of the Statutory Schemes\n1.\nPLB resolution of minor disputes is deemed “compulsory arbitration” for the limited field of the RLA. See Brotherhood of R.R. Trainmen v. Chicago River & I. R.R., 353 U.S. 30, 39, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Thus, an award made by the PLB has the same finality as a decision made by arbitrators. Gunther v. San Diego & A. Eastern Ry., 382 U.S. 257, 263, 86 S.Ct. 368, 371, 15 L.Ed.2d 308 (1965). The Supreme Court has stated, as a general principle, that “it is far from certain that arbitration proceedings will have any preclusive effect on the litigation of nonarbitrable federal claims.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 222, 105 S.Ct. 1238, 1243, 84 L.Ed.2d 158 (1985). It is the task of the courts to determine whether preclusive effect will be given a finding made in arbitration; this determination directly safeguards other federal interests. Id. at 223, 105 S.Ct. at 1243; see also McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984). Thus, “in framing preclusion rules [in the context of arbitration,] courts shall take into account the federal interests warranting protection.” Dean Witter, 470 U.S. at 223, 105 S.Ct. at 1244.\nIn several cases, the Supreme Court has refused to give arbitrated claims preclusive effect in subsequent judicial proceedings:\nThis Court has, on numerous occasions, declined to hold that individual employees are, because of the availability of arbitration, barred from bringing claims under federal statutes. See, e.g., McDonald v. West Branch, 466 U.S. 284 [104 S.Ct. 1799, 80 L.Ed.2d 302] (1984); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 [101 S.Ct. 1437, 67 L.Ed.2d 641] (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36 [94 S.Ct. 1011, 39 L.Ed.2d 147] (1974). Although the analysis of the question under each statute is quite distinct, the theory running through these cases is that notwithstanding the strong policies encouraging arbitration “different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” Barrentine, [450 U.S.] at 737 [101 S.Ct. at 14.43].\nLingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411-12, 108 S.Ct. 1877, 1884, 100 L.Ed.2d 410 (1988) (quoting Buell, 480 U.S. at 564-65, 107 S.Ct. at 1415). In McDonald, the Court held that arbitration does not preclude a subsequent § 1983 action; Barren-tine states that arbitration has no preclusive effect on a claim under the Fair Labor Standards Act; Gardner-Denver holds that arbitration has no preclusive effect on a Title VII claim; and Buell states that the availability of an action under the RLA does not preclude the filing of a FELA claim.\nIn discussing this judicial reluctance to give preclusive effect to arbitration decisions, Justice Powell’s opinion for the Court in Alexander v. Gardner-Denver, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), set forth the considerations that were to surface repeatedly in subsequent cases. In Gardner-Denver, an employee, pursuant to a CBA, submitted his race discrimination claim to an arbitrator who ' rejected the employee’s claims. The employee then brought suit in federal court under Title VII, in which he alleged that he had been discharged from his employment as a consequence of racially discriminatory employment practices. The Supreme Court held that the arbitrator’s decision did not have preclusive effect in the Title VII action, despite the fact that the employee’s claim was virtually the same in both actions. As part of its rationale for this holding, the Court noted that Title VII is an important congressionally created enforcement mechanism for remedying racial discrimination and that the federal courts have been given plenary power to enforce the statutory requirements. Id. at 47, 94 S.Ct. at 1019. The Court also emphasized a distinction between asserting contractual rights under a CBA and asserting independent, individually-based statutory rights accorded by Congress. Id. at 49-50, 94 S.Ct. at 1020. Thus, the Court based its rejection of preclu-sive effect, in large part, on its belief that Congress intended the statute to be judicially enforceable and that arbitration does not provide an adequate substitute for judicial proceedings in adjudicating claims under that statute.\nThe Court further emphasized that arbitration has a well-defined role in the “system of industrial self-government.” Id. at 52, 94 S.Ct. at 1022 (footnote omitted).\nAs the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the “industrial common law of the shop” and the various needs and desires of the parties.\nId. at 53, 94 S.Ct. at 1022. Consequently, arbitral procedures, while well-suited to the resolution of arbitral disputes, make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VII. Id. at 56, 94 S.Ct. at 1023.\n[T]he specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land_ Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations. On the other hand, the resolution of statutory or constitutional issues is a primary responsibility of courts....\nId. at 57, 94 S.Ct. at 1024,\nJustice Powell also stated that\nthe factfinding process in arbitration usually is not equivalent to judicial factfinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable.\nId. at 57-58, 94 S.Ct. at 1024. He also noted that arbitrators are under no obligation to give reasons for their award. Id. at 58, 94 S.Ct. at 1024. Moreover, in the collective bargaining process, the manner and extent to which an individual grievance is presented and the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit. Id. at 58 n. 19, 94 S.Ct. at 1024 n. 19. Similar considerations guided the Court’s determination in Barrentine with respect to the Fair Labor Standards Act. Again, in McDonald, the Court came to a similar conclusion when it held that § 1983 claims are important congressionally created and judicially enforceable statutory rights, and thus that arbitration does not provide an “adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard.” 466 U.S. at 290, 104 S.Ct. at 1803.\n2.\nWe must now examine in some detail the procedures a PLB utilizes in reviewing a minor dispute and making a final award. We shall, of course, focus on the particular arbitration process at issue in this case.\nUnder the RLA, the PLB reviews a minor, dispute only after the claim is first presented to the railroad pursuant to its usual reviewing procedures. 45 U.S.C. § 153 First (i). The RLA does not govern the procedures a railroad uses in its investigative hearing. Edwards v. St. Louis-San Francisco R.R., 361 F.2d 946, 953 (7th Cir.1966). Instead, at this stage of a grievance claim, “the dispute is between private parties [the employee and the railroad] and the applicable procedure for •settling the dispute is governed by the contract between them.” Id. at 954. The rights available to an employee, therefore, are governed by the CBA and may vary from agreement to agreement; CBAs are not required to contain a standard set of guarantees for investigative hearings. For example, the employee does not necessarily have the right to be represented by an attorney during the proceedings. Id. In Edwards, this court stated that “[b]asically, all that is required of the initial conference on company property is that ‘men of good faith must in good faith get together in a sincere effort to resolve their differences.’ ” Id. (quoting Rutland Ry. v. Brotherhood of Locomotive Eng’rs, 307 F.2d 21, 41 (2d Cir.1962), cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978 (1963)). Of course, a CBA can provide for more stringent procedural guarantees.\nC & IM’s minor dispute procedure provides for an investigative hearing regarding Mr. Kulavic’s work absence. The CBA between C & IM and Mr. Kulavic’s union was not included by either party in the record on appeal; thus, we do not know what investigative procedures were guaranteed Mr. Kulavic. We do know, however, that, like most investigations of this nature, the hearing was held on the railroad’s premises and was conducted by railroad officials. At Mr. Kulavic’s hearing, the Hearing Officer was a superintendent of the railroad and the Interrogator was a chief engineer who at that time had been employed by C & IM for fourteen years. R. 53, part 4 at 1. The parties agree that Mr. Kulavic did not have the right to be represented by counsel; a union official represented Mr. Kulavic. Furthermore, Mr. Kulavic contends that no discovery procedures were available to aid his preparation for the hearing and that, while he had the ability to cross-examine witnesses, he had no right to subpoena witnesses for either live or deposition testimony. Most importantly, he asserts that his employer, the railroad, was both judge and jury in the proceedings. Appellant’s Br. at 11, A railroad official presided over the hearing and that same official both determined that Mr. Kulavic had breached the terms of his employment and disciplined him by terminating his employment with the railroad. See R. 54, part 5 (letter from Hearing Officer to Mr. Kulavic). C & IM does not dispute any of these assertions and thus the absence of the CBA in the record is not of critical concern.\nThe purpose of the investigative hearing was to determine whether Mr. Kulavic had breached the terms of the CBA by not reporting for work after he had been instructed to do so. The investigation centered on the medical evidence that Mr. Kulavic had provided to C & IM regarding his alleged inability to return to work. Much of the hearing was spent reading letters and medical opinions into the record. The railroad reiterated that its physician, Dr. Meyer, did not believe Mr. Kulavic had submitted sufficient medical evidence to show that he was unable to perform his duties as a carman, see R. 53, part 4 at 15; Dr. Meyer, however, did not appear at the hearing.\nAfter Mr. Kulavic had submitted to the hearing, he was then able to appeal to a PLB. However, the PLB apparently does not review the railroad’s investigatory proceedings de novo. Mr. Kulavic asserts that PLBs are\nthe only stage of the disciplinary process not controlled by the railroad, [but they] do not provide a trial de novo to the aggrieved party, ... instead [they] act much like appellate courts in that their review is limited to the record made of the disciplinary proceedings conducted by the railroad at its “investigation.”\nAppellant’s Br. at 10. At oral argument, Mr. Kulavic’s counsel could point to no definitive statement in the RLA’s text that mandates this type of review; however, C & IM did not take issue with this characterization of the review available from the PLB.\nThe extent of the PLB’s review of an investigative hearing poses a difficult question. In any event, it is unnecessary for us to determine whether PLBs are generally restricted from considering evidence not previously presented at an investigative hearing, because Public Law Board - No. 4284, the PLB that assessed Mr. Kulavic’s appeal, clearly stated that it could not look beyond the record made at the investigative hearing. “[I]t is well settled in railroad disciplinary proceedings that the parties to the dispute and any Board having jurisdiction are limited to the evidence in the investigation, and such record may not properly be added to after the investigation closes.” PLB award, R. 55, part 8 at 4-5. This PLB, therefore, did not look beyond the record established by railroad management in the investigative hearing and this fact must give us pause for concern.\nBecause the PLB here functioned as an appellate tribunal, it was limited to reviewing the record created in the railroad-controlled investigative hearing. Furthermore, C & IM does not dispute that the factfinding process utilized at the hearing was not equivalent to evidentiary procedures used in judicial fact-finding. For these reasons, we do not believe that the PLB’s review could protect adequately the statutory rights set forth in the FELA.\nWhile the informality of an investigative hearing and circumscribed PLB review were intended to provide an expeditious alternative to lengthy court litigation for day-to-day minor labor disputes, these same procedures do not provide sufficient guarantees for reliable factfinding under the FELA. As we have noted earlier, this same rationale formed part of the basis for' the Supreme Court’s decisions in Gardner-Denver, Barrentine, and McDonald which determined that arbitration prior to Title VII, FLSA, or §' 1983 actions could not preclude the statutory actions. In each case, the Court found that the procedures used in arbitral factfind-ing were insufficient to protect the important statutory and constitutional rights employees were seeking to enforce in subsequent judicial actions. In Gardner-Denver, the Supreme Court acknowledged that “it is the informality of arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution. This same characteristic, however, makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts.” 415 U.S. at 58, 94 S.Ct. at 1024.\nC & IM has the burden of establishing that res judicata or collateral estoppel ought to bar post-termination economic damages in the FELA action. In this case, that burden has not been met. C & IM has not demonstrated that these procedures were sufficiently protective of Mr. Kulavic’s federal statutory right to recover under the FELA.\n3.\nWe find further support for our holding in a decision by the Second Circuit, Coppinger v. Metro-North Commuter R.R., 861 F.2d 33 (2d Cir.1988). In Coppinger, a railroad employee was discharged after he tested positive for the presence of narcotics. He sought, to have his termination rescinded through RLA arbitration proceedings; however, a PLB upheld his dismissal. The employee then brought a § 1983 action in federal court, charging that the railroad had infringed his Fourth Amendment right to be free from unreasonable search and seizure, when it required him to provide blood and urine samples for the drug test. The railroad asserted that the employee had been given a full and fair opportunity to present his Fourth Amendment claim to the PLB and, thus, the arbitration proceedings should preclude any subsequent § 1983 action.\nThe Second Circuit refused to grant such preclusive effect. It determined that the legal and factual issues raised under the Fourth Amendment and § 1983 are arguably beyond the competence of arbitrators whose expertise primarily encompasses industrial relations and the interpretation of CBAs. Furthermore, the PLB’s mandate is to interpret the CBA, not to enforce statutes. The court also stated that the arbitral procedures used by the PLB “are less protective of constitutional guarantees than are the procedures employed in the United States courts.” 861 F.2d at 39. Finally, the court held that granting preclusive effect in the § 1983 action would deny the employee the full range of relief that would otherwise be available to compensate him for the violation of his rights. Relief under the RLA for unjust dismissal would have been limited to reinstatement and back pay, whereas in the district court the employee would have all of the usual avenues of recovery available. “Hence, the remedies available in the arbitral forum, though effective for the resolution of ‘minor disputes’ under the collective bargaining agreement, are patently inadequate as a means of resolving appellant’s constitutional claims under § 1983.” Id. Acknowledging that the record did not indicate that the employee’s constitutional claims had been considered or determined by the PLB, the court concluded that the arbitral decision by the PLB was not res judicata with respect to the district court action. Id.\nIn a subsequent case, Benjamin v. Traffic Exec. Ass’n Eastern R.R., 869 F.2d 107 (2d Cir.1989), the Second Circuit determined that an arbitral finding (one apparently not made before a PLB) that employees were not rate bureau employees under the Staggers Act should be given preclusive effect on claims under RICO and for fraud and breach of fiduciary duty. Although the court discussed Coppinger, it found that the concerns expressed in that opinion were inapplicable to the circumstances in Benjamin.\nBenjamin explicitly left Coppinger undisturbed and therefore does not alter our analysis. The Benjamin court emphasized and specifically held that the employees had been given a full and fair opportunity to litigate before the arbitration board. Id. at 110. Furthermore, the court relied heavily on the point that the issue reviewed in the arbitration, which was instituted after the commencement of judicial proceedings, was identical to the issue submitted to the court for de novo decision. Had the arbitral determination not been given preclusive effect, there was a danger of inconsistent results. Pursuant to the arbitration, the employees 'were found not to be rate bureau employees under the Staggers Act, but the possibility existed that if they were allowed to go to trial on the remaining claims, the factfinder could have found them to be rate bureau employees for the other three counts. This result, in the Second Circuit’s view, would have been untenable. The court also found that the nature of the issue in front of the arbitrators— whether the employees were considered rate bureau employees under the Staggers Act— was closer to the arbitrators’ realm of expertise than was the Fourth Amendment claim in Coppinger.\nBenjamin is simply not controlling here. We have held already that the factfinding procedures used in Mr. Kulavic’s case are inadequate to convince us that facts allegedly determined in the arbitration should be given preclusive effect in a FELA action. Focusing on the inadequacy of the arbitral procedures, when juxtaposed against the important statutory rights embodied in the FELA, we believe that the situations in Coppinger and this case are analogous.\n4.\nFinally, we note that, while arising in a different context than'the case'before us, the Supreme Court’s analysis in its recent decision in Astoria Federal Savings & Loan Association v. Solimino, — U.S. -, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991), confirms the correctness of the methodology we have employed. In that ease, which dealt with the circumstances in which the decision of an administrative tribunal — not an arbitration proceeding — ought to be recognized in later judicial proceedings, the Court first noted that the matter of issue preclusion is, fundamentally, a matter of legislative intent. That legislative intent can be discerned only by an examination of “the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures.” — U.S. at -, 111 S.Ct. at 2170.\nAs we have previously noted, there is no indication that Congress intended to subordinate the rights created by FELA to the strictures of the RLA. Moreover, the task of the PLB was limited to application of the CBA. Indeed, it is not at all clear that the issue determined by the PLB was even the same issue as the damages issue presented to the district court in the FELA action. Finally, as we have already noted, the procedures of the PLB are not an adequate substitute for the factfinding processes of the district court. In short, while this case involves the preclusive effect of an arbitration award, as opposed to an administrative decision, we have walked an analytical path compatible with the one followed by the Court in Astoria Federal.\nConclusion\nThe arbitral award by the PLB should not have been given preclusive effect in Mr. Ku-lavic’s subsequent FELA action. In his prayer for relief, Mr. Kulavie requested a new trial only on the issue of damages. Because the trial was bifurcated into a liability phase and a damages phase, this relief is appropriate. Furthermore, because we are resolving the case in this manner, C & IM’s cross-appeal regarding alleged evidentiary errors in the damages phase of trial is moot. Any resolution of those claims on appeal would be advisory. For the foregoing reasons, we reverse the ruling of the district court regarding the preclusive effect of the PLB award, remand for a new trial on damages in accordance with this opinion, and dismiss C & IM’s claims on cross-appeal. Mr. Kulavie may recover his costs in this court.\nREVERSED AND REMANDED AND CROSS-APpeal Dismissed.\n. In a state trial, Mr. Kulavic's supervisor was found guilty of battery.\n. The labor member of the PLB dissented from the majority's award.\n. Both parties made various objections during the course of the hearing, but we do not know what rules were the basis of these objections. Nor do we know the effect of such objections. As far as we can tell from the transcript of the investigation, the Hearing Officer’s response to these objections was that the objections were a matter of record and would be given due consideration.\n. We have previously noted that it is not entirely clear that a PLB is limited to reviewing only the evidence presented in the investigative hearing, although we have acknowledged that arguably the introduction of new evidence is prohibited at the arbitral stage. Brotherhood Ry. Carmen Div. v. Atchison, T. & S.F. Ry., 956 F.2d 156, 159 (7th Cir.1992). In further support of this proposition, one treatise on arbitration has stated that\n[i]f the arbitration tribunal is serving essentially in an appellate capacity there is obviously strong reason to confine the evidence to what was considered below. In this regard, the rules of the National Railroad Adjustment Board require that all data submitted in support of the party's position must affirmatively show the same to have been presented to the other party and made a part of the particular question in dispute.\nFrank Elkourj & Edna A. Elkourj, How Arbitration Works 304 (4th ed. 1985) (citations omitted). Furthermore, we note that the regulations for the NRAB state that \"all data submitted [to the Board] in support of [either the carrier's or the employee's] position must affirmatively show the same to have been presented [to the other party] and made a part of the particular question in dispute.” 29 C.F.R. § 301.5(d) and (c).\nAs we stated in Atchison, it is particularly likely that a PLB is limited to reviewing the evidence presented in the \"on premises” investigation. This is true because the RLA requires an employee to exhaust all of the usual grievance procedures before PLB review will be allowed.\nThe requirement of exhaustion implies, in turn, that a party may not raise an issue, or present new evidence concerning an old issue, for the first time at the arbitration stage, for by doing so he would bypass the earlier stages and thus fail to exhaust the remedies provided at those stages.\nAtchison, 956 F.2d at 159. But see Polewsky v. Bay Colony R.R., 799 F.Supp. 396, 400 (D.Vt. 1992). The Polewsky court held that NRAB review is not limited to evidence presented at a prior hearing because the RLA and the regulations provide that the Board is to be presented \"with a full statement of the facts and all supporting data bearing upon the disputes.\" Id. (quoting 45 U.S.C. § 153 First (i); 29 C.F.R. § 301.2(a) (1992)). The court did not discuss the meaning of the language set forth in 29 C.F.R. § 301.5(d) and (e).\n. These cases deal with the question of whether arbitration can totally and definitively preclude judicial proceedings on the identical claim. By contrast, as C & IM acknowledges, Mr. Kulavic has a separate right to FELA damages and some of the elements of that claim were not addressed by the PLB. Of course, the rationales of Gardner-Denver, Barrentine, McDonald, and also Buell, are equally applicable here in determining the adequacy of the fact-finding process to safeguard a separate substantive statutory claim.\n. See Blonder-Tongue Labs., Inc. v. University of III. Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (stating that res judicata is an affirmative defense); La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906 (7th Cir.1990) (holding that party claiming collateral estoppel effect has the burden of proving its appropriateness); 18 Charles A. Wright et al.. Federal Practice and Procedure § 4405 at 38 (1981) (stating that \"the burden of establishing preclusion is placed on the party claiming it”).\n. The court specifically noted that\n[a]rbitration does not carry with it the right to a trial by jury; arbitrators are not generally required to give the reasons for their decisions; the record of arbitral proceedings generally is not as complete as a trial record; judicial review of Board decisions is more limited than review of district court proceedings; the Federal Rules of Evidence and of Civil Procedure do not apply; and other rights such as testimony under oath, cross-examination, discovery, and compulsory process are restricted. In short, where suits are tried is often as important as the substantive rights sought to be vindicated.\nCoppinger, 861 F.2d at 39.\n. Because we distinguish the two Second Circuit cases on these grounds, we need not decide whether we support the Benjamin court's analysis of the difference in preclusive effect between res judicata and collateral estoppel.\n.The court described the arbitration process as follows:\nFollowing commencement of this action, defendants moved to compel arbitration on the Staggers Act claim. The employees agreed to submit that count to binding arbitration on a classwide basis. Both parties set up informal procedural rules to govern the arbitration proceeding. They agreed to presentation of oral or written testimony, to extensive briefing and did, in fact, engage in informal discovery. At the hearing the' plaintiffs cross-examined the defendants' witnesses who testified orally, and could have, if they had chosen, called in and cross-examined those witnesses who submitted their testimony on paper.\nBenjamin, 869 F.2d at 109.\n. This court has recently held that RICO claims premised on a railroad’s alleged violation of its CBA are preempted by the RLA. Underwood v. Venango River Corp., 995 F.2d 677 (7th Cir.1993). Because the RICO claims \"depended solely upon an interpretation of the rights created in the collective-bargaining agreement,\" we stated that the action would not vindicate substantive rights independent from the CBA. 995 F.2d at 685. Thus, the RLA controlled. This is not the case, however, with Mr. Kulavic's FELA claim. As we earlier noted, the FELA does provide for substantive statutory rights independent of the RLA. Interpretation of the CBA is not required to construe those rights.\n. As C & IM acknowledged at oral argument, the ultimate determination by the PLB was that the railroad had appropriately terminated Mr. Kulavic's employment; in other words, the investigative hearing had not been improper or fraudulent. The underlying rationale of the PLB's award seems to be that Mr. Kulavic did not provide sufficient medical evidence to excuse his failure to return to work when instructed to do so by C & IM, thereby breaching the provisions of the CBA and allowing the railroad justifiably to terminate his employment. The award states that\n[tjhere was no evidence presented in the investigation that claimant was being withheld from Carrier’s service by any doctor. It is clear from the record that claimant was attempting to substitute his personal opinion as to his ability to return to work for the professional opinions of the several medical doctors involved.\nR. 55, part 8 at 4. In this litigation, however, C & IM asserts that the focal point of the award was Mr. Kulavic’s physical ability to perform the duties of his former job. The railroad contends that the PLB, after reviewing the medical documents presented to it, determined that Mr. Ku-lavic was physically fit to return to work and that, the PLB ruled out any possibility that he is entitled to future wages and benefits from the date of his discharge as recompense for his alleged injuries. Nowhere in its award, however, does the PLB specifically state that it has determined Mr. Kulavic to be physically able to perform his former duties. Although the district court was persuaded by C & IM’s interpretation of the award, we believe the matter is far from clear. The language can just as easily be read to support the contention that Mr. Kulavic simply failed to present sufficient medical evidence to the railroad as required under the CBA, choosing instead to rely unjustifiably on his own opinion as evidence to convince his employer that he was physically unable to return to work.", "type": "majority", "author": "RIPPLE, Circuit Judge."}, {"text": "FLAUM, Circuit Judge,\nconcurring.\nThis case poses a rather tricky question of issue preclusion. The court’s opinion represents a very thorough elaboration of the relative scope and purposes of the FELA and the RLA as well as the particular tension between the two statutes with regard to Ku-lavic’s claim. At the most basic level, neither party disputes that Kulavie was entitled to recover damages under the FELA for the harm he suffered at the hands of his supervisor. See Lancaster v. Norfolk and Western Ry. Co., 773 F.2d 807, 814-15 (7th Cir.1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987). His supervisor’s conduct that precipitated Kulavic’s injuries constitute an unauthorized touching of him and, although intentional rather than negligent, nevertheless fall within the bounds of the FELA. The principal question then is whether Kulavie is entitled to seek all the damages to which he maintains he is entitled.\nIn his complaint, Kulavie claimed a right to recover for disability from his injury, pain and suffering, medical expenses, lost earnings, and loss of earning capacity and fringe benefits. Chicago & Illinois Midland Railway Company (“C & IM”) contested only whether he has the right to present evidence to the jury of any wages or earning capacity or fringe benefits lost after it terminated him. Thus, the district court’s denying Ku-lavic the right to offer evidence of any losses after his discharge did not totally deprive him of his FELA claim but merely circumscribed it in a fairly limited way (assuming that pain and suffering constitutes the major component of a personal injury claim).\nTo determine whether Kulavie can present evidence on his post-termination damages, the court’s opinion carefully retraces the sometimes blurry line between the RLA and the FELA. For example, Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), contains some rather expansive language regarding the types of negligence claims by railroad employees that may be brought under the FELA. Apparently taking Buell’s lead, the court reasons that because the RLA does not preempt FELA actions, a PLB order arrived at through RLA arbitration procedures does not have any preclusive effect on a FELA action. Analogizing from cases such as Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), and Coppinger v. Metro-North Commuter Railroad, 861 F.2d 33 (2d Cir.1988), the court maintains that the nature of the grievance process and the PLB arbitration “[does] not provide an adequate substitute for judicial proceedings in adjudicating claims under that statute.” Op. at 514. Certainly, no one would dispute that an arbitration panel is, ill-equipped to consider certain types of claims, particularly those falling outside the range of claims stemming from minor breaches of collective bargaining contracts. Accordingly, arbitration would not be a proper method for adjudicating an.employee’s Title VII or section 1983 claims.\nOn the present facts, however, I believe that the damages claimed by Kulavic do not fall unequivocally outside of the RLA regime for resolving workplace grievances. In this regard, I find Benjamin v. Traffic Executive Ass’n Eastern Railroads, 869 F.2d 107 (2d Cir.1989), to be more germane than Copping-er. For Kulavic to assert his personal injury claim in court under the FELA and avoid the preclusive effect of the RLA, his claim must, as a preliminary matter, be based on a specific provision of FELA, that is, Congress must have intended that such actions be litigated in FELA suits. See Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1050 (7th Cir.1983). The language of the FELA on which Kulavic is relying provides:\nEvery ... railroad ... shall be liable in damages to any person suffering injury while he is employed by any such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of the officers, agents, or employees of such carrier.\n45 U.S.C. § 51 (1986). At first glance, his damages action falls squarely within this provision. However, a somewhat different characterization of Kulavic’s action does suggest that the FELA may not be broad enough to accommodate him in recovering all the damages he seeks. One could properly regard his claims for lost wages and fringe benefits as discharge-related claims. And an extremely literal reading of this FELA provision may allow recovery only for injuries that accrued during the tenure of the employee with a given carrier. Because any lost wages and benefits precluded by the district court accrued after Kulavic’s termination, he would not be able to pin them on this (or any other) statutory provision in the FELA. Kulavic would probably respond that even those damages can be traced back to the original altercation with his supervisor; moreover, the PLB did not literally address whether he was entitled to these post-discharge wages or fringe benefits during its termination hearing. It resolved only whether the discharge of Kulavic was lawful. Accordingly, I believe that the only issue relevant to this court’s review should be the estoppel effect of Ku-lavic’s termination, the legitimacy of which he did not challenge earlier and should not be able to challenge now. In this regard, I would focus not on the competence of those administering the termination hearing, itself the subject of collective bargaining, or the PLB, an 'entity sanctioned by Congress under the RLA, see 45 U.S.C. § 153 (1986), but on the reach of their conclusions.\nOne of the goals of issue preclusion is to put to rest'those matters that a party has had an “full and fair opportunity to litigate.” See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328, 91 S.Ct. 1434, 1442, 28 L.Ed.2d 788 (1971). Kulavic contends that because the factfinding by the PLB is distinct from, if not inferior to, judicial factfinding, the PLB termination decision should not have preclusive effect on the post-discharge losses. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 n. 15, 99 S.Ct. 645, 655 n. 15, 58 L.Ed.2d 552 (1979) (“differences in available procedures may sometimes justify not allowing a prior judgment to have estoppel effect in a subsequent action even between the same parties”). More to the point, despite a possible overlap in the evidence reviewed by the PLB and that which Kulavic would present in federal court, the PLB did not have occasion to consider his future economic damages.\nIn terminating Kulavic, the PLB deemed that he was fit to return to work. Any demands by Kulavic for post-discharge wages and benefits appear then to be unwarranted because those items in essence represent the remedial elements of a wrongful discharge claim (minus reinstatement), which would properly fall within the strictures of the RLA and the purview of the PLB. Cf. Morrissette v. Chicago, Burlington & Quincy R.R. Co., 299 F.2d 502 (7th Cir.1961), cert. denied, 369 U.S. 874, 82 S.Ct. 1141, 8 L.Ed.2d 277 (1962). I am not inclined to permit Kulavic to reopen or to circumvent the discharge proceedings, particularly if he was just balking at returning to the railyard. In my opinion, allowing a jury to hear evidence on whether Kulavic is entitled to post-termination lost wages and fringe benefits would be an end run around the finality of his termination, which is contrary to a very basic purpose of collateral estoppel. On the other hand, an employee’s claim for the loss of future earning capacity is not dependent on that employee’s present or previous employment circumstances. See, e.g., Wiles v. New York, Central & St. Louis R.R., 283 F.2d 328 (3d Cir.), cert. denied, 364 U.S. 900, 81 S.Ct. 232, 5 L.Ed.2d 193 (1960); see generally McKnight v. General Motors Corp., 973 F.2d 1366 (7th Cir.1992); Wolkenhauer v. Smith, 822 F.2d 711 (7th Cir.1987). Because the issue of Kulavic’s lost earning capacity falls outside the scope of the PLB termination decision, I would limit remand to the district court for a new trial solely on the issue of future economic damages, excluding any consideration of lost wages and fringe benefits subsequent to his discharge from C & IM.\n. Whether estoppel of certain damages claims by means of the PLB's decision to uphold Kulavic's termination “is intended by the legislature\" is another way of asking whether Congress intended for sufch claims to be brought under the FELA. See Astoria Federal Sav. & Loan Ass'n v. Solimino, - U.S. -, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991).\n. Finally, I would note that although the court dismissed C & IM’s cross appeal on its right to set off against the FELA judgment, the availability of set off to C & IM is not in dispute. See 45 U.S.C. § 55, Burlington Northern R.R. Co. v. Strong, 907 F.2d 707 (7th Cir. 1990).", "type": "concurrence", "author": "FLAUM, Circuit Judge,"}], "attorneys": ["John L. Swartz, Carol J. Hansen-Fines, Giffin, Winning, Cohen & Bodewes, Springfield, IL, Charles A. Collins, Collins & Inge-britson, Minneapolis, MN, Michael L. Weiner, Weiner & Kvas, St. Paul, MN, for plaintiff-appellee.", "Hugh J. Graham, Dean W. Jackson, Graham & Graham, Springfield, IL, for defendant-appellant."], "corrections": "", "head_matter": "Daniel L. KULAVIC, Plaintiff-Appellant, Cross-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee, Cross-Appellant.\nNos. 92-1707 & 92-1907.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Oct. 23, 1992.\nDecided July 26, 1993.\nJohn L. Swartz, Carol J. Hansen-Fines, Giffin, Winning, Cohen & Bodewes, Springfield, IL, Charles A. Collins, Collins & Inge-britson, Minneapolis, MN, Michael L. Weiner, Weiner & Kvas, St. Paul, MN, for plaintiff-appellee.\nHugh J. Graham, Dean W. Jackson, Graham & Graham, Springfield, IL, for defendant-appellant.\nBefore FLAUM and RIPPLE, Circuit Judges, and KAUFMAN, Senior District Judge.\nThe Honorable Frank A. Kaufman, Senior District Judge for the District of Maryland, is sitting by designation."}	FLAUM	RIPPLE	KAUFMAN	1	2	1	0	1	0	1 F.3d 507	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Daniel L. KULAVIC, Plaintiff-Appellant, Cross-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee, Cross-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nRIPPLE, Circuit Judge.\nDaniel Kulavie was an employee of the Chicago & Illinois Midland Railway Company (C & IM) when he was injured on the job in a physical altercation with his supervisor. Subsequently, his employment was terminated when he failed to follow C & IM’s request to report to work and, in the company’s view, did not provide sufficient medical evidence, to excuse his absence. Mr. Kulavie pursued relief under the Railway Labor Act (RLA), 45 U.S.C. §§ 151-188 (1988), but his termination was upheld. He then brought suit in federal court under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (1988), to recover for injuries sustained in the incident with his supervisor. The district court, however, determined that Mr. Kulavie was barred from presenting any evidence of future lost wages, benefits, and earning capacity from the date of his discharge. The court held that Mr. Kulavie was precluded from presenting the issue of these damages to the jury in his FELA action because the issue had been resolved in the RLA proceedings. 760 F.Supp. 137. Although the jury in the FELA action ultimately awarded damages to Mr. Kulavie, he moved for a new trial on damages or, in the alternative, for judgment notwithstanding the verdict and addi-tur. The district court denied the motion and Mr. Kulavie now appeals. C & IM also appeals from several evidentiary rulings the district court made during the damages phase of trial. We reverse the judgment of the district court and remand for a new trial on damages. C & IM’s cross-appeal is dismissed.\nI\nBACKGROUND\nA. Facts\nMr. Kulavie was employed by C & IM as a carman. While at work on August 30, 1985, Mr. Kulavie was involved in an altercation during which his supervisor physically assaulted him. Mr. Kulavie and his supervisor had disagreed over the proper method for testing air brakes on railroad ears submitted to the car department for inspection. After a heated discussion, the supervisor attacked Mr. Kulavie from behind, punching and kicking him and causing him to fall on a brake beam. Mr. Kulavie was injured in this incident. Because of their conduct, C & IM temporarily suspended both Mr. Kulavie and his supervisor from duty. Suffering from injuries incurred in the attack, Mr. Kulavie consulted and began treatment with several different doctors. He was treated for abrasions to his right forearm, left arm, and left leg. Over the course of several months, he was also treated for rib pain, temporal mandibular joint dysfunction, tinnitus, and extreme nervousness, anxiety, and depression, all allegedly stemming from the altercation with his supervisor.\nMr. Kulavic’s work suspension was set to terminate on January 6,1986, but on January 2, Mr. Kulavie advised the head of his department, Hal Bast, by letter that he was still under his doctors’ care and would be unable to return to work. R. 53, part 2 at Carrier’s Ex. C. Mr. Kulavie informed Bast that he would advise the railroad when he was able to return. Id. On January 3,1986, C & IM’s general surgeon, Dr. John Meyer, examined Mr. Kulavie to determine whether he was physically capable of returning to work. Dr. Meyer also requested that Mr. Kulavie make available all medical records compiled by any doctors who had examined or treated him during his work suspension. Based on the examination and the information he received from some of Mr. Kulavic’s treating physicians, Dr. Meyer had come to the conclusion, by the beginning of June 1986, that Mr. Kulavie was capable of returning to work.\nBast then notified Mr. Kulavie that he was to report for work on June 9, 1986, because Dr. Meyer had approved him for regular work as a carman. R. 53, part 3 at B. On the appointed day, however, Mr. Kulavic did not report to work; instead, he telephoned the general car foreman and informed him that he was still sick and had not yet been released by his doctor. R. 53, part 3 at C. Bast then sent Mr. Kulavic a letter notifying him that his excuse was not valid unless\nyou can prove by medical evidence from a reputable physician that you are physically unable to work this date, and each date you are absent prior to your return to service. As always, final determination as to an employe’s [sic] physical and mental ability to work will be made by the company physician.\nWe will have no alternative but to consider you absent without permission until such time as you return to work, or show by medical evidence why you cannot.\nR. 53, part 3 at D. In response, Mr. Kulavic submitted to C & IM an insurance report with an attachment filled out by his physician, but the railroad determined that the document did not meet the required standard of “medical evidence from a reputable physician that you are physically unable to return to service.” R. 53, section 3 at K. Thus, Mr. Kulavic’s work absences could not be excused on the basis of his alleged continuing disability. On June 17, Bast advised Mr. Kulavic to report to C & IM for an investigation and hearing to\ndevelop facts, and your responsibility, if any, in connection with your alleged failure to report for work as instructed, ... your alleged absence without permission, ... and your alleged failure to timely notify your supervisor you would be absent on June 10, 11, 12, 13, 16, and 17, 1986.\nYou are entitled to representation, to present witnesses in your own behalf and to examine and cross-examine any witnesses appearing at such investigation and hearing.\nR. 54, part 7 at Carrier’s Ex. LL.\nThe investigative hearing was held on July 15,1986, on the premises of C & IM and both the Interrogator and the Hearing Officer were railroad employees. Mr. Kulavic attended the proceedings and was represented by a union official. Mr. Kulavic’s medical records and his physicians’ correspondence were examined and Mr. Kulavic was allowed to present his case to the railroad.\nTen days later, the Hearing Officer sent Mr. Kulavic a letter detailing the findings of the investigation and informing Mr. Kulavic that C & IM had terminated his employment. The Hearing Officer concluded that none of the evidence presented at the investigation served to excuse Mr. Kulavic’s work absence; Mr. Kulavic had failed to present sufficient medical evidence of his inability to return to work. R. 54, part 5.\nPursuant to the procedures dictated by the RLA, Mr. Kulavic appealed his dismissal to a Public Law Board (PLB). He claimed that the railroad had violated the collective bargaining agreement (CBA) by unfairly dismissing him, and he alleged that the railroad’s investigation had been improper and unjust. Thus, Mr. Kulavic submitted that his employment should be restored to him and his wages and all other benefits, plus interest, should be granted to him as relief. R. 55, part 8 at 1. A majority of the PLB, however, found no reason to interfere with the railroad’s termination of Mr. Kulavic’s employment. The PLB stated:\nUpon review, we find that the investigation was conducted in a fair and impartial manner. None of claimant’s agreement rights was violated. We have considered the objections of the Organization and do not find them of sufficient significance to invalidate the proceedings.\nSubstantial evidence was adduced in the investigation in support of the charge against claimant. There was no evidence presented in the investigation that claimant was being withheld from Carrier’s service by any doctor. It is clear from the record that claimant was attempting to substitute his personal opinion as to his ability to return to work for the professional opinions of the several medical doctors involved.\nId. at 4. Thus, the PLB denied Mr. Kulavic’s claim and upheld the railroad’s termination. Mr. Kulavie did not appeal from the award.\nB. District Court Proceedings: The FELA Action\nOn August 3, 1986, Mr. Kulavie filed an action in federal court alleging liability against C & IM under the FELA. See 45 U.S.C. §§ 51-60. Mr. Kulavie sought redress for the injuries he had sustained in the altercation with his supervisor. Mr. Kulavie claimed that C & IM had negligently caused, at least in part, his numerous injuries. The district court bifurcated the trial into a liability phase and a damages phase. In the liability phase, the jury found C & IM eighty-five percent negligent and Mr. Kulavie fifteen percent negligent for his injuries. Thus, the railroad was responsible for eighty-five percent of any damages that the jury might award to Mr. Kulavie in the second phase of trial.\nPrior to trial on liability, C & IM had filed a motion in limine seeking to bar Mr. Kulavie from seeking lost earnings, fringe benefits, and loss of earning capacity from the date of his discharge onward. C & IM argued that these damages had already been addressed and resolved by the PLB when it reviewed the railroad’s dismissal of Mr. Kulavie. The district court agreed and granted the railroad’s motion. However, after the jury brought back the negligence allocations, but prior to trial on damages, the district court revisited the issue of the preclusive effect of the PLB’s decision. Because the court believed the question to be both important to the litigation and novel, it ordered the parties to submit supplemental briefs on the issue.\nOn April 2, 1991, the district court again ruled that the PLB’s decision precluded the availability of some of Mr. Kulavie’s alleged economic damages in the FELA claim. R. 95, Mem. Op. at 10. The court found that, in the course of the PLB’s review of the railroad’s investigatory hearing, the PLB had examined Mr. Kulavic’s medical records and physicians’ reports and had determined that Mr. Kulavie was physically capable of returning to work. According to the court, this determination required a conclusion that Mr. Kulavie had no right to future wages and compensation for loss of earning capacity because he was able to return to work. Allowing Mr. Kulavie to argue to the jury that he had lost wages, benefits, and earning capacity subsequent to his termination would, the district court concluded, nullify the PLB’s decision, thus ignoring the finality such decisions are given by the RLA. See 45 U.S.C. § 153 First (m) and 153 Second. Additionally, the district court stated that giving the PLB decision preclusive effect in a subsequent FELA action did not deny Mr. Kulavie his statutory right to redress his injuries, Mem. Op. at 10; Mr. Kulavie was allowed to present to the jury evidence regarding past and future medical bills, pain and suffering, disability resulting from injury, and lost earnings between the time of injury and the date of discharge. Thus, the court held that compensation under the FELA was not entirely foreclosed. Subject to C & IM’s motion in limine, the damages phase of Mr. Kulavie’s case was tried to the jury. The jury awarded $75,000 in damages, $63,750 of which was the responsibility of the railroad. Both parties then submitted post-trial motions. Mr. Kulavie moved for a new trial on damages or, in the alternative, judgment notwithstanding the verdict and additur. C & IM also moved for a new trial on damages or, in the alternative, to alter or amend the judgment to reflect certain setoffs and liens. The district court denied all of the motions and both parties now appeal. Mr. Kulavie contends that the district court erred when it prohibited him from presenting certain economic damages to the jury. He asserts that determinations made pursuant to RLA-mandated arbitration should not be given preclusive effect in a separate FELA action. In its cross-appeal, C & IM raises several alleged evidentiary errors made by the district court in the damages phase of trial and contends that certain set-offs should have been assessed against the amount of damages awarded Mr. Kulavie.\nII\nANALYSIS\nMr. Kulavie acknowledges that, under the RLA, the PLB’s award regarding his dismissal is final and binding. See 45 U.S.C. § 153 First (m) and 153 Second (both provisions stating that “awards shall be final and binding on both parties to the dispute”). Mr. Kulavie also makes clear that he is not attempting to relitigate a wrongful discharge claim in the FELA action. Although he does not agree with the decision of the PLB, he acknowledges that he cannot relitigate the question of whether his discharge was wrongful and violative of the CBA. Instead, Mr. Kulavie states that he brought the FELA suit to recover for the alleged injuries he sustained in the altercation with his supervisor. He denies that the injuries he is claiming are related to his discharge. Relying extensively on Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), Mr. Kulavie argues that the award by the PLB should not be given preclusive effect over federal statutory rights embodied in the FELA.\nC & IM, however, emphasizes that awards made by the PLB are final and binding on both parties to the dispute. It states that an issue resolved under the RLA cannot be relitigated in a separate judicial forum. Congress intended that decisions rendered under the RLA be final and, according to C & IM, allowing relitigation under the FELA would frustrate that intent. Moreover, C & IM contends that the district court’s decision regarding preclusion did not eliminate Mr. Kulavic’s right to recovery under the FELA. The court disallowed only a portion of Mr. Kulavic’s alleged damages, while allowing the jury to consider the rest. Thus, C & IM believes the district court correctly respected the finality of the PLB’s award by finding that Mr. Kulavie was precluded from asking the jury for damages due to lost wages, benefits, and earning capacity incurred after his termination.\nA. The FELA and RLA Frameworks\n1.\nCongress originally enacted the FELA in 1906 to create a federal remedy for railroad employees injured on the job by the negligence of their employers or their coworkers. Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557, 561, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563 (1987); Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 812 (7th Cir.1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987). Independent of the railroad’s obligations under its CBA, the FELA provides railroad workers not only with substantive protection against negligent conduct by the railroad, but also affords an injured worker a remedy suited to his needs, untrammeled by many traditional defenses against tort liability. Buell, 480 U.S. at 565, 107 S.Ct. at 1415. This statute thus serves to provide an injured worker with an expeditious recovery and also gives a railroad the incentive to maintain vigilance over the safety of its workers and, concomitantly, the conditions in which they must work. An injured railroad employee can recover under the FELA as long as the employer’s negligence “played any part, even the slightest, in producing the injury ... for which damages are sought.” Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). Moreover, the FELA has also been interpreted to reach at least some intentional torts. See Lancaster, 773 F.2d at 812. The FELA is, therefore, a broad remedial statute to be construed liberally in order to effectuate its purpose. Buell, 480 U.S. at 562, 107 S.Ct. at 1414.\n2.\nThe RLA was established to achieve an altogether different goal. Enacted in 1926, the RLA provides an extensive administrative framework for resolving labor disputes in the railroad industry. Id. Under the RLA, minor disputes — those involving “grievances that arise daily between employees and carriers regarding rates of pay, rules, and working conditions,” i.e., disputes under the operative CBA — are to be resolved out of court. See 45 U.S.C. § 153 First (i). In this manner, Congress promoted stability in the railroad industry by creating a mandatory alternative to judicial resolution of railroad-employee disputes arising out of the interpretation of CBAs. Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978).\nPursuant to the RLA, a minor dispute must first be handled through the railroad’s usual internal dispute resolution procedures. This usually consists of an investigation held on the railroad’s premises. If the dispute remains unsettled, a party may submit it to the National Railroad Adjustment Board (NRAB) or to a PLB (which is merely a smaller version of the NRAB and is frequently stipulated to by the parties in order to hasten dispute resolution, see 45 -U.S.C. § 153 Second). Buell, 480 U.S. at 562-63, 107 S.Ct. at 1414. A PLB is composed of a labor member, a railroad member, and a neutral member and is essentially an arbitral tribunal that reviews the outcome of a railroad’s investigative hearing to ascertain whether the result is consonant with the terms of the CBA between the railroad and its union employees. See Elmore v. Chicago & I.M. Ry., 782 F.2d 94, 95 (7th Cir.1986); FRANK Elkouri & Edna A. Elkouri, How Arbitration Works 304 (4th ed. 1985). A PLB award may be appealed in federal court, but the scope of judicial review is “among the nairowest known to the law.” Sheehan, 439 U.S. at 91, 99 S.Ct. at 401; see also American Train Dispatchers Ass’n v. Norfolk & Western Ry., 937 F.2d 365, 366 (7th Cir. 1991). “Judicial review of Board orders is limited to three specific grounds: (1) failure of the Board to comply with the requirements of the Railway Labor Act; (2) failure of the Board to confine itself to matters within the scope of its jurisdiction; and (3) fraud or corruption.” American Train Dispatchers, 937 F.2d at 366 (citing 45 U.S.C. § 153 First (q)).\n3.\nAlthough the RLA was enacted many years after the FELA had been established, the text makes no mention of the FELA, Buell, 480 U.S. at 562, 107 S.Ct. at 1414, much less mention of any preclusive effect a PLB award might have on issues raised in a FELA claim. Moreover, there is no indication in the RLA that the FELA rights were in any way diluted by the enactment of the RLA. The RLA merely states that awards of the PLB “shall be final and binding up'on both parties to the dispute.” 45 U.S.C. § 153 First (m) and 153 Second. In discussing whether a worker’s action for emotional injury should be considered a FELA claim or should fall under the purview of the RLA, the Supreme Court has noted that “absent an intolerable conflict between the two statutes, we are unwilling to read the RLA as repealing any part of the FELA.... As far as a worker’s right to damages under the FELA is concerned, Congress’ enactment of the RLA has had no effect.” Buell, 480 U.S. at 566-67, 107 S.Ct. at 1416; see also Capraro v. United Parcel Serv. Co., 993 F.2d 328 (3d Cir.1993) (noting that the RLA does not preempt claims that may also be brought under the FELA).\nAs noted above, Mr. Kulavic does not contest the PLB’s ultimate determination that he was not wrongfully terminated from his position as a C & IM carman. Thus, he acknowledges the finality and binding effect of the PLB’s award. The district court, however, held that in reaching its result, the PLB implicitly considered and resolved the issues underlying Mr. Kulavic’s discharge. Mem. Op. at 8. “This included whether at the time of his discharge, Kulavic was physically capable of preforming [sic] the duties of carman.” Id. Because the district court believed that the PLB had implicitly found Mr. Kulavic healthy enough to continue his work as a carman, the court ruled that he could not present to the jury the question of whether he lost future income and benefits from his injuries. Submission of this matter to the jury would constitute, in the district court’s view, a relitigation of the same issue in his FELA action. We must determine whether the court correctly gave preclusive effect to an issue purportedly resolved by the PLB.\nB. Reconciliation of the Statutory Schemes\n1.\nPLB resolution of minor disputes is deemed “compulsory arbitration” for the limited field of the RLA. See Brotherhood of R.R. Trainmen v. Chicago River & I. R.R., 353 U.S. 30, 39, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Thus, an award made by the PLB has the same finality as a decision made by arbitrators. Gunther v. San Diego & A. Eastern Ry., 382 U.S. 257, 263, 86 S.Ct. 368, 371, 15 L.Ed.2d 308 (1965). The Supreme Court has stated, as a general principle, that “it is far from certain that arbitration proceedings will have any preclusive effect on the litigation of nonarbitrable federal claims.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 222, 105 S.Ct. 1238, 1243, 84 L.Ed.2d 158 (1985). It is the task of the courts to determine whether preclusive effect will be given a finding made in arbitration; this determination directly safeguards other federal interests. Id. at 223, 105 S.Ct. at 1243; see also McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984). Thus, “in framing preclusion rules [in the context of arbitration,] courts shall take into account the federal interests warranting protection.” Dean Witter, 470 U.S. at 223, 105 S.Ct. at 1244.\nIn several cases, the Supreme Court has refused to give arbitrated claims preclusive effect in subsequent judicial proceedings:\nThis Court has, on numerous occasions, declined to hold that individual employees are, because of the availability of arbitration, barred from bringing claims under federal statutes. See, e.g., McDonald v. West Branch, 466 U.S. 284 [104 S.Ct. 1799, 80 L.Ed.2d 302] (1984); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 [101 S.Ct. 1437, 67 L.Ed.2d 641] (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36 [94 S.Ct. 1011, 39 L.Ed.2d 147] (1974). Although the analysis of the question under each statute is quite distinct, the theory running through these cases is that notwithstanding the strong policies encouraging arbitration “different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” Barrentine, [450 U.S.] at 737 [101 S.Ct. at 14.43].\nLingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411-12, 108 S.Ct. 1877, 1884, 100 L.Ed.2d 410 (1988) (quoting Buell, 480 U.S. at 564-65, 107 S.Ct. at 1415). In McDonald, the Court held that arbitration does not preclude a subsequent § 1983 action; Barren-tine states that arbitration has no preclusive effect on a claim under the Fair Labor Standards Act; Gardner-Denver holds that arbitration has no preclusive effect on a Title VII claim; and Buell states that the availability of an action under the RLA does not preclude the filing of a FELA claim.\nIn discussing this judicial reluctance to give preclusive effect to arbitration decisions, Justice Powell’s opinion for the Court in Alexander v. Gardner-Denver, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), set forth the considerations that were to surface repeatedly in subsequent cases. In Gardner-Denver, an employee, pursuant to a CBA, submitted his race discrimination claim to an arbitrator who ' rejected the employee’s claims. The employee then brought suit in federal court under Title VII, in which he alleged that he had been discharged from his employment as a consequence of racially discriminatory employment practices. The Supreme Court held that the arbitrator’s decision did not have preclusive effect in the Title VII action, despite the fact that the employee’s claim was virtually the same in both actions. As part of its rationale for this holding, the Court noted that Title VII is an important congressionally created enforcement mechanism for remedying racial discrimination and that the federal courts have been given plenary power to enforce the statutory requirements. Id. at 47, 94 S.Ct. at 1019. The Court also emphasized a distinction between asserting contractual rights under a CBA and asserting independent, individually-based statutory rights accorded by Congress. Id. at 49-50, 94 S.Ct. at 1020. Thus, the Court based its rejection of preclu-sive effect, in large part, on its belief that Congress intended the statute to be judicially enforceable and that arbitration does not provide an adequate substitute for judicial proceedings in adjudicating claims under that statute.\nThe Court further emphasized that arbitration has a well-defined role in the “system of industrial self-government.” Id. at 52, 94 S.Ct. at 1022 (footnote omitted).\nAs the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the “industrial common law of the shop” and the various needs and desires of the parties.\nId. at 53, 94 S.Ct. at 1022. Consequently, arbitral procedures, while well-suited to the resolution of arbitral disputes, make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VII. Id. at 56, 94 S.Ct. at 1023.\n[T]he specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land_ Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations. On the other hand, the resolution of statutory or constitutional issues is a primary responsibility of courts....\nId. at 57, 94 S.Ct. at 1024,\nJustice Powell also stated that\nthe factfinding process in arbitration usually is not equivalent to judicial factfinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable.\nId. at 57-58, 94 S.Ct. at 1024. He also noted that arbitrators are under no obligation to give reasons for their award. Id. at 58, 94 S.Ct. at 1024. Moreover, in the collective bargaining process, the manner and extent to which an individual grievance is presented and the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit. Id. at 58 n. 19, 94 S.Ct. at 1024 n. 19. Similar considerations guided the Court’s determination in Barrentine with respect to the Fair Labor Standards Act. Again, in McDonald, the Court came to a similar conclusion when it held that § 1983 claims are important congressionally created and judicially enforceable statutory rights, and thus that arbitration does not provide an “adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard.” 466 U.S. at 290, 104 S.Ct. at 1803.\n2.\nWe must now examine in some detail the procedures a PLB utilizes in reviewing a minor dispute and making a final award. We shall, of course, focus on the particular arbitration process at issue in this case.\nUnder the RLA, the PLB reviews a minor, dispute only after the claim is first presented to the railroad pursuant to its usual reviewing procedures. 45 U.S.C. § 153 First (i). The RLA does not govern the procedures a railroad uses in its investigative hearing. Edwards v. St. Louis-San Francisco R.R., 361 F.2d 946, 953 (7th Cir.1966). Instead, at this stage of a grievance claim, “the dispute is between private parties [the employee and the railroad] and the applicable procedure for •settling the dispute is governed by the contract between them.” Id. at 954. The rights available to an employee, therefore, are governed by the CBA and may vary from agreement to agreement; CBAs are not required to contain a standard set of guarantees for investigative hearings. For example, the employee does not necessarily have the right to be represented by an attorney during the proceedings. Id. In Edwards, this court stated that “[b]asically, all that is required of the initial conference on company property is that ‘men of good faith must in good faith get together in a sincere effort to resolve their differences.’ ” Id. (quoting Rutland Ry. v. Brotherhood of Locomotive Eng’rs, 307 F.2d 21, 41 (2d Cir.1962), cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978 (1963)). Of course, a CBA can provide for more stringent procedural guarantees.\nC & IM’s minor dispute procedure provides for an investigative hearing regarding Mr. Kulavic’s work absence. The CBA between C & IM and Mr. Kulavic’s union was not included by either party in the record on appeal; thus, we do not know what investigative procedures were guaranteed Mr. Kulavic. We do know, however, that, like most investigations of this nature, the hearing was held on the railroad’s premises and was conducted by railroad officials. At Mr. Kulavic’s hearing, the Hearing Officer was a superintendent of the railroad and the Interrogator was a chief engineer who at that time had been employed by C & IM for fourteen years. R. 53, part 4 at 1. The parties agree that Mr. Kulavic did not have the right to be represented by counsel; a union official represented Mr. Kulavic. Furthermore, Mr. Kulavic contends that no discovery procedures were available to aid his preparation for the hearing and that, while he had the ability to cross-examine witnesses, he had no right to subpoena witnesses for either live or deposition testimony. Most importantly, he asserts that his employer, the railroad, was both judge and jury in the proceedings. Appellant’s Br. at 11, A railroad official presided over the hearing and that same official both determined that Mr. Kulavic had breached the terms of his employment and disciplined him by terminating his employment with the railroad. See R. 54, part 5 (letter from Hearing Officer to Mr. Kulavic). C & IM does not dispute any of these assertions and thus the absence of the CBA in the record is not of critical concern.\nThe purpose of the investigative hearing was to determine whether Mr. Kulavic had breached the terms of the CBA by not reporting for work after he had been instructed to do so. The investigation centered on the medical evidence that Mr. Kulavic had provided to C & IM regarding his alleged inability to return to work. Much of the hearing was spent reading letters and medical opinions into the record. The railroad reiterated that its physician, Dr. Meyer, did not believe Mr. Kulavic had submitted sufficient medical evidence to show that he was unable to perform his duties as a carman, see R. 53, part 4 at 15; Dr. Meyer, however, did not appear at the hearing.\nAfter Mr. Kulavic had submitted to the hearing, he was then able to appeal to a PLB. However, the PLB apparently does not review the railroad’s investigatory proceedings de novo. Mr. Kulavic asserts that PLBs are\nthe only stage of the disciplinary process not controlled by the railroad, [but they] do not provide a trial de novo to the aggrieved party, ... instead [they] act much like appellate courts in that their review is limited to the record made of the disciplinary proceedings conducted by the railroad at its “investigation.”\nAppellant’s Br. at 10. At oral argument, Mr. Kulavic’s counsel could point to no definitive statement in the RLA’s text that mandates this type of review; however, C & IM did not take issue with this characterization of the review available from the PLB.\nThe extent of the PLB’s review of an investigative hearing poses a difficult question. In any event, it is unnecessary for us to determine whether PLBs are generally restricted from considering evidence not previously presented at an investigative hearing, because Public Law Board - No. 4284, the PLB that assessed Mr. Kulavic’s appeal, clearly stated that it could not look beyond the record made at the investigative hearing. “[I]t is well settled in railroad disciplinary proceedings that the parties to the dispute and any Board having jurisdiction are limited to the evidence in the investigation, and such record may not properly be added to after the investigation closes.” PLB award, R. 55, part 8 at 4-5. This PLB, therefore, did not look beyond the record established by railroad management in the investigative hearing and this fact must give us pause for concern.\nBecause the PLB here functioned as an appellate tribunal, it was limited to reviewing the record created in the railroad-controlled investigative hearing. Furthermore, C & IM does not dispute that the factfinding process utilized at the hearing was not equivalent to evidentiary procedures used in judicial fact-finding. For these reasons, we do not believe that the PLB’s review could protect adequately the statutory rights set forth in the FELA.\nWhile the informality of an investigative hearing and circumscribed PLB review were intended to provide an expeditious alternative to lengthy court litigation for day-to-day minor labor disputes, these same procedures do not provide sufficient guarantees for reliable factfinding under the FELA. As we have noted earlier, this same rationale formed part of the basis for' the Supreme Court’s decisions in Gardner-Denver, Barrentine, and McDonald which determined that arbitration prior to Title VII, FLSA, or §' 1983 actions could not preclude the statutory actions. In each case, the Court found that the procedures used in arbitral factfind-ing were insufficient to protect the important statutory and constitutional rights employees were seeking to enforce in subsequent judicial actions. In Gardner-Denver, the Supreme Court acknowledged that “it is the informality of arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution. This same characteristic, however, makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts.” 415 U.S. at 58, 94 S.Ct. at 1024.\nC & IM has the burden of establishing that res judicata or collateral estoppel ought to bar post-termination economic damages in the FELA action. In this case, that burden has not been met. C & IM has not demonstrated that these procedures were sufficiently protective of Mr. Kulavic’s federal statutory right to recover under the FELA.\n3.\nWe find further support for our holding in a decision by the Second Circuit, Coppinger v. Metro-North Commuter R.R., 861 F.2d 33 (2d Cir.1988). In Coppinger, a railroad employee was discharged after he tested positive for the presence of narcotics. He sought, to have his termination rescinded through RLA arbitration proceedings; however, a PLB upheld his dismissal. The employee then brought a § 1983 action in federal court, charging that the railroad had infringed his Fourth Amendment right to be free from unreasonable search and seizure, when it required him to provide blood and urine samples for the drug test. The railroad asserted that the employee had been given a full and fair opportunity to present his Fourth Amendment claim to the PLB and, thus, the arbitration proceedings should preclude any subsequent § 1983 action.\nThe Second Circuit refused to grant such preclusive effect. It determined that the legal and factual issues raised under the Fourth Amendment and § 1983 are arguably beyond the competence of arbitrators whose expertise primarily encompasses industrial relations and the interpretation of CBAs. Furthermore, the PLB’s mandate is to interpret the CBA, not to enforce statutes. The court also stated that the arbitral procedures used by the PLB “are less protective of constitutional guarantees than are the procedures employed in the United States courts.” 861 F.2d at 39. Finally, the court held that granting preclusive effect in the § 1983 action would deny the employee the full range of relief that would otherwise be available to compensate him for the violation of his rights. Relief under the RLA for unjust dismissal would have been limited to reinstatement and back pay, whereas in the district court the employee would have all of the usual avenues of recovery available. “Hence, the remedies available in the arbitral forum, though effective for the resolution of ‘minor disputes’ under the collective bargaining agreement, are patently inadequate as a means of resolving appellant’s constitutional claims under § 1983.” Id. Acknowledging that the record did not indicate that the employee’s constitutional claims had been considered or determined by the PLB, the court concluded that the arbitral decision by the PLB was not res judicata with respect to the district court action. Id.\nIn a subsequent case, Benjamin v. Traffic Exec. Ass’n Eastern R.R., 869 F.2d 107 (2d Cir.1989), the Second Circuit determined that an arbitral finding (one apparently not made before a PLB) that employees were not rate bureau employees under the Staggers Act should be given preclusive effect on claims under RICO and for fraud and breach of fiduciary duty. Although the court discussed Coppinger, it found that the concerns expressed in that opinion were inapplicable to the circumstances in Benjamin.\nBenjamin explicitly left Coppinger undisturbed and therefore does not alter our analysis. The Benjamin court emphasized and specifically held that the employees had been given a full and fair opportunity to litigate before the arbitration board. Id. at 110. Furthermore, the court relied heavily on the point that the issue reviewed in the arbitration, which was instituted after the commencement of judicial proceedings, was identical to the issue submitted to the court for de novo decision. Had the arbitral determination not been given preclusive effect, there was a danger of inconsistent results. Pursuant to the arbitration, the employees 'were found not to be rate bureau employees under the Staggers Act, but the possibility existed that if they were allowed to go to trial on the remaining claims, the factfinder could have found them to be rate bureau employees for the other three counts. This result, in the Second Circuit’s view, would have been untenable. The court also found that the nature of the issue in front of the arbitrators— whether the employees were considered rate bureau employees under the Staggers Act— was closer to the arbitrators’ realm of expertise than was the Fourth Amendment claim in Coppinger.\nBenjamin is simply not controlling here. We have held already that the factfinding procedures used in Mr. Kulavic’s case are inadequate to convince us that facts allegedly determined in the arbitration should be given preclusive effect in a FELA action. Focusing on the inadequacy of the arbitral procedures, when juxtaposed against the important statutory rights embodied in the FELA, we believe that the situations in Coppinger and this case are analogous.\n4.\nFinally, we note that, while arising in a different context than'the case'before us, the Supreme Court’s analysis in its recent decision in Astoria Federal Savings & Loan Association v. Solimino, — U.S. -, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991), confirms the correctness of the methodology we have employed. In that ease, which dealt with the circumstances in which the decision of an administrative tribunal — not an arbitration proceeding — ought to be recognized in later judicial proceedings, the Court first noted that the matter of issue preclusion is, fundamentally, a matter of legislative intent. That legislative intent can be discerned only by an examination of “the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures.” — U.S. at -, 111 S.Ct. at 2170.\nAs we have previously noted, there is no indication that Congress intended to subordinate the rights created by FELA to the strictures of the RLA. Moreover, the task of the PLB was limited to application of the CBA. Indeed, it is not at all clear that the issue determined by the PLB was even the same issue as the damages issue presented to the district court in the FELA action. Finally, as we have already noted, the procedures of the PLB are not an adequate substitute for the factfinding processes of the district court. In short, while this case involves the preclusive effect of an arbitration award, as opposed to an administrative decision, we have walked an analytical path compatible with the one followed by the Court in Astoria Federal.\nConclusion\nThe arbitral award by the PLB should not have been given preclusive effect in Mr. Ku-lavic’s subsequent FELA action. In his prayer for relief, Mr. Kulavie requested a new trial only on the issue of damages. Because the trial was bifurcated into a liability phase and a damages phase, this relief is appropriate. Furthermore, because we are resolving the case in this manner, C & IM’s cross-appeal regarding alleged evidentiary errors in the damages phase of trial is moot. Any resolution of those claims on appeal would be advisory. For the foregoing reasons, we reverse the ruling of the district court regarding the preclusive effect of the PLB award, remand for a new trial on damages in accordance with this opinion, and dismiss C & IM’s claims on cross-appeal. Mr. Kulavie may recover his costs in this court.\nREVERSED AND REMANDED AND CROSS-APpeal Dismissed.\n. In a state trial, Mr. Kulavic's supervisor was found guilty of battery.\n. The labor member of the PLB dissented from the majority's award.\n. Both parties made various objections during the course of the hearing, but we do not know what rules were the basis of these objections. Nor do we know the effect of such objections. As far as we can tell from the transcript of the investigation, the Hearing Officer’s response to these objections was that the objections were a matter of record and would be given due consideration.\n. We have previously noted that it is not entirely clear that a PLB is limited to reviewing only the evidence presented in the investigative hearing, although we have acknowledged that arguably the introduction of new evidence is prohibited at the arbitral stage. Brotherhood Ry. Carmen Div. v. Atchison, T. & S.F. Ry., 956 F.2d 156, 159 (7th Cir.1992). In further support of this proposition, one treatise on arbitration has stated that\n[i]f the arbitration tribunal is serving essentially in an appellate capacity there is obviously strong reason to confine the evidence to what was considered below. In this regard, the rules of the National Railroad Adjustment Board require that all data submitted in support of the party's position must affirmatively show the same to have been presented to the other party and made a part of the particular question in dispute.\nFrank Elkourj & Edna A. Elkourj, How Arbitration Works 304 (4th ed. 1985) (citations omitted). Furthermore, we note that the regulations for the NRAB state that \"all data submitted [to the Board] in support of [either the carrier's or the employee's] position must affirmatively show the same to have been presented [to the other party] and made a part of the particular question in dispute.” 29 C.F.R. § 301.5(d) and (c).\nAs we stated in Atchison, it is particularly likely that a PLB is limited to reviewing the evidence presented in the \"on premises” investigation. This is true because the RLA requires an employee to exhaust all of the usual grievance procedures before PLB review will be allowed.\nThe requirement of exhaustion implies, in turn, that a party may not raise an issue, or present new evidence concerning an old issue, for the first time at the arbitration stage, for by doing so he would bypass the earlier stages and thus fail to exhaust the remedies provided at those stages.\nAtchison, 956 F.2d at 159. But see Polewsky v. Bay Colony R.R., 799 F.Supp. 396, 400 (D.Vt. 1992). The Polewsky court held that NRAB review is not limited to evidence presented at a prior hearing because the RLA and the regulations provide that the Board is to be presented \"with a full statement of the facts and all supporting data bearing upon the disputes.\" Id. (quoting 45 U.S.C. § 153 First (i); 29 C.F.R. § 301.2(a) (1992)). The court did not discuss the meaning of the language set forth in 29 C.F.R. § 301.5(d) and (e).\n. These cases deal with the question of whether arbitration can totally and definitively preclude judicial proceedings on the identical claim. By contrast, as C & IM acknowledges, Mr. Kulavic has a separate right to FELA damages and some of the elements of that claim were not addressed by the PLB. Of course, the rationales of Gardner-Denver, Barrentine, McDonald, and also Buell, are equally applicable here in determining the adequacy of the fact-finding process to safeguard a separate substantive statutory claim.\n. See Blonder-Tongue Labs., Inc. v. University of III. Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (stating that res judicata is an affirmative defense); La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906 (7th Cir.1990) (holding that party claiming collateral estoppel effect has the burden of proving its appropriateness); 18 Charles A. Wright et al.. Federal Practice and Procedure § 4405 at 38 (1981) (stating that \"the burden of establishing preclusion is placed on the party claiming it”).\n. The court specifically noted that\n[a]rbitration does not carry with it the right to a trial by jury; arbitrators are not generally required to give the reasons for their decisions; the record of arbitral proceedings generally is not as complete as a trial record; judicial review of Board decisions is more limited than review of district court proceedings; the Federal Rules of Evidence and of Civil Procedure do not apply; and other rights such as testimony under oath, cross-examination, discovery, and compulsory process are restricted. In short, where suits are tried is often as important as the substantive rights sought to be vindicated.\nCoppinger, 861 F.2d at 39.\n. Because we distinguish the two Second Circuit cases on these grounds, we need not decide whether we support the Benjamin court's analysis of the difference in preclusive effect between res judicata and collateral estoppel.\n.The court described the arbitration process as follows:\nFollowing commencement of this action, defendants moved to compel arbitration on the Staggers Act claim. The employees agreed to submit that count to binding arbitration on a classwide basis. Both parties set up informal procedural rules to govern the arbitration proceeding. They agreed to presentation of oral or written testimony, to extensive briefing and did, in fact, engage in informal discovery. At the hearing the' plaintiffs cross-examined the defendants' witnesses who testified orally, and could have, if they had chosen, called in and cross-examined those witnesses who submitted their testimony on paper.\nBenjamin, 869 F.2d at 109.\n. This court has recently held that RICO claims premised on a railroad’s alleged violation of its CBA are preempted by the RLA. Underwood v. Venango River Corp., 995 F.2d 677 (7th Cir.1993). Because the RICO claims \"depended solely upon an interpretation of the rights created in the collective-bargaining agreement,\" we stated that the action would not vindicate substantive rights independent from the CBA. 995 F.2d at 685. Thus, the RLA controlled. This is not the case, however, with Mr. Kulavic's FELA claim. As we earlier noted, the FELA does provide for substantive statutory rights independent of the RLA. Interpretation of the CBA is not required to construe those rights.\n. As C & IM acknowledged at oral argument, the ultimate determination by the PLB was that the railroad had appropriately terminated Mr. Kulavic's employment; in other words, the investigative hearing had not been improper or fraudulent. The underlying rationale of the PLB's award seems to be that Mr. Kulavic did not provide sufficient medical evidence to excuse his failure to return to work when instructed to do so by C & IM, thereby breaching the provisions of the CBA and allowing the railroad justifiably to terminate his employment. The award states that\n[tjhere was no evidence presented in the investigation that claimant was being withheld from Carrier’s service by any doctor. It is clear from the record that claimant was attempting to substitute his personal opinion as to his ability to return to work for the professional opinions of the several medical doctors involved.\nR. 55, part 8 at 4. In this litigation, however, C & IM asserts that the focal point of the award was Mr. Kulavic’s physical ability to perform the duties of his former job. The railroad contends that the PLB, after reviewing the medical documents presented to it, determined that Mr. Ku-lavic was physically fit to return to work and that, the PLB ruled out any possibility that he is entitled to future wages and benefits from the date of his discharge as recompense for his alleged injuries. Nowhere in its award, however, does the PLB specifically state that it has determined Mr. Kulavic to be physically able to perform his former duties. Although the district court was persuaded by C & IM’s interpretation of the award, we believe the matter is far from clear. The language can just as easily be read to support the contention that Mr. Kulavic simply failed to present sufficient medical evidence to the railroad as required under the CBA, choosing instead to rely unjustifiably on his own opinion as evidence to convince his employer that he was physically unable to return to work.\n[END_CASE]", "role": "user" } ]
10,512,367	NORTHWEST TISSUE CENTER, Department of the Puget Sound Blood Center, a Washington Corporation, and Oregon Tissue Bank, a Department of the Em-manual Hospital and Health Center, a Legacy Health System Affiliate, an Oregon Corporation, Plaintiffs-Appellants, v. Donna E. SHALALA, Secretary of the United States Department of Health and Human Services, and David Kessler, Commissioner of the United States Food and Drug Administration, Defendants-Appellees	Northwest Tissue Center v. Shalala	1993-07-27	No. 93-1078	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before BAUER, Chief Judge, MANION and ROVNER, Circuit Judges."], "parties": ["NORTHWEST TISSUE CENTER, Department of the Puget Sound Blood Center, a Washington Corporation, and Oregon Tissue Bank, a Department of the Em-manual Hospital and Health Center, a Legacy Health System Affiliate, an Oregon Corporation, Plaintiffs-Appellants, v. Donna E. SHALALA, Secretary of the United States Department of Health and Human Services, and David Kessler, Commissioner of the United States Food and Drug Administration, Defendants-Appellees."], "opinions": [{"text": "BAUER, Chief Judge.\nIn this appeal we revisit the United States Food and Drug Administration’s (“FDA”) treatment of human heart valve allografts as devices under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-394 (“the FDC Act”) and its implementing regulations. The district court dismissed the plaintiffs’ complaint, ruling that it was mooted by our holding in Alabama Tissue Center v. Sullivan, 975 F.2d 373 (7th Cir.1993). In Alabama Tissue, we dismissed a petition challenging an FDA notice interpreting one of its regulations because the notice was not a “regulation” subject to direct appellate review. Id. at 379. Although two of the plaintiffs’ three claims were mooted by that ruling, we believe count three of the plaintiffs’ complaint should not have been dismissed, and remand this case to the district court for proceedings consistent with this opinion.\nI. Background\nA. Statutory Framework\nOur review of the plaintiffs’ claims requires us to delve into the bowels of the regulatory framework imposed by the FDC Act. The Medical Device Amendments of 1976 classify medical devices into three categories — Class I, II, and III — to reflect the devices’ relative safety and effectiveness. 21 U.S.C. § 360c(a). Class I devices are the safest, followed by Class II, and then Class III. See 21 U.S.C. § 360c(a)(l). See also Becton, Dickinson, & Co. v. FDA 589 F.2d 1175, 1177 (2d Cir.1978) (discussing classification scheme). Examples of Class III devices include pacemakers, artificial heart valves, and other products intended to be implanted in the body or designed to sustain human life. 21 U.S.C. § 360c(c)(2)(C)(i). The Act imposes significant restrictions on the marketing of Class III devices to minimize the risk of harm they pose to consumers. One of these requirements is premarket approval. 21 U.S.C. § 360e. Before a Class III device may be distributed commercially, manufacturers must submit extensive data to the FDA for review. The FDA examines the data and must approve the manufacturer’s application before a device can be marketed. Id. Application for premarket approval is an onerous process, see 21 U.S.C. § 360e(c); Congress estimated that manufacturers would need thirty months to complete the process. 21 U.S.C. § 351(f)(2)(B)(i).\nTo ease the burden of the process and minimize the disruption to the' market, Congress requires the Secretary of the FDA to regulate devices that were in commercial distribution in 1976 (when the amendments were adopted) in two steps. The two-step procedure allows these preamendment Class III devices to remain in circulation while the FDA evaluates them. First, the Secretary is required to classify all preamendment devices into one of the three classes outlined in 21 U.S.C. § ,360c. The Secretary must publish the proposed classification in the Federal Register. The notice of proposed classification invites comment from interested persons and is intended to put manufacturers on notice to enable them to begin to prepare a premarket approval application for their devices. If the Secretary proposes that a device be classified as Class III, it is referred to a scientific panel for its review and recommendation respecting the appropriate classification of the device. § 360c(c). The panel’s recommendation is published in the Federal Register, and interested persons are given the opportunity to comment. § 360c(d). After notice and comment, the Secretary publishes the regulation classifying a device as Class III.\nIn the second step of the process, the Secretary promulgates a second regulation to require manufacturers to submit applications for premarket approval. 21 U.S.C. § 360e(b)(l). The Secretary is to publish the proposed regulation in the Federal Register, again with opportunity for comment by interested persons. Id. The proposed regulation must include proposed findings “with respect to the degree of risk of illness or injury designed to be eliminated or reduced by requiring the device to have an approved application for premarket approval and the benefit to the public for the use of the device.” 21 U.S.C. § 360e(b)(2)(A). After the final rule requiring submission of premarket approval applications is published, a manufacturer must complete the premarket approval process within ninety days or thirty months from the date the final classification regulation was promulgated, whichever is longer. 21 U.S.C. §§ 351(f)(2)(B)(i), (ii). A device that does not satisfy these requirements is deemed adulterated and is subject to seizure. The manufacturer is subject to sanction. 21 U.S.C. ■§ 351(f)(1).\nThe FDA'issued a regulation in 1980 classifying replacement heart valves as Class III devices, 21 C.F.R. § 870, 45 Fed.Reg. 7948 (1980). The 1980 regulation identified a replacement heart valve as a\ndevice intended to perform the function of any of the heart’s natural valves. This device includes valves constructed of prosthetic materials, biologic valves (e.g. porcine valves), or valves constructed of a combination of prosthetic and biologic materials.\n21 C.F.R. § 870.3925. A second regulation promulgated in 1987 subjects replacement heart valves to premarket approval. 21 C.F.R. § 870, 52 Fed.Reg. 18162 (1987). Both regulations were enacted pursuant to the notice and comment provisions of the FDC Act, 21 U.S.C. § 360e, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. Things proceeded swimmingly until 1991.\nIn 1991, the FDA issued a “Notice of applicability of a final rule.” (“NAFR”) 56 Fed.Reg. 29177 (June 26, 1991). The NAFR-informed manufacturers that allografts are subject to the 1980 and 1987 regulations governing replacement heart valves. The NAFR posed difficulties for allograft manufacturers: it announced that to continue distributing allografts, manufacturers were required to have an approved premarket approval application in effect within ninety days, a far cry from the thirty months Congress estimates is required for premarket approval. Allografts had been distributed commercially for years with no indication from the FDA that they were subject to the replacement heart valve regulations. Because they were unprepared for the pre-market approval process, manufacturers confronted the substantial likelihood that they would need to pull their products from the market or face sanctions for selling adulterated devices. Indeed, the NAFR threatened as much. 58 FedReg. 29178 (citing 21 U.S.C. § 351(f)(1)(A)). Further, none of the manufacturers participated in the notice and comment proceedings conducted when the replacement heart valve regulations were promulgated in 1980 and 1987.\nB. Allograft Litigation History\nSix not-for-profit allograft manufacturers petitioned this court for direct appellate review of the FDA’s NAFR under 21 U.S.C. § 360(a), (g). That section authorizes review within thirty days of promulgation of final FDA regulations which require premarket approval of medical devices. Alabama Tissue, 975 F.2d at 374. The petitioners also filed suit in district court challenging the FDA’s action, seeking injunctive and declaratory relief. In the petition to this court, the manufacturers alleged that the 1991 NAFR was a new “regulation” challengeable under § 360(a)(g) because allografts were not previously subject to the regulations governing other heart replacement valves. Id. at 378-79. This new regulation was promulgated without notice or comment, the manufacturers argued, in violation of the FDC Act and the APA. The FDA countered that the NAFR was not a new regulation, but an interpretation of an existing regulation. For that reason, the agency claimed, this court lacked jurisdiction to review the NAFR. Id. ■ at 376-77.\nBecause our jurisdiction depended on whether the NAFR was a regulation, 21 U.S.C. § 360(g), the jurisdictional and substantive issues overlapped. Id. at 376. The NAFR itself purported to be an interpretation of the earlier regulations. Id. at 377 (“[T]he summary of the NAFR specifically states ‘the FDA is issuing a notice to clarify that replacement heart valve allografts, devices, are subject to a final rule that was issued by FDA on May 13, 1987.’ ”) (quoting the NAFR). Applying the analysis set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we concluded that the NAFR was a permissible interpretation of the regulations. For that reason we held that the NAFR was not a regulation, but an interpretive rule. We dismissed the petition for lack of jurisdiction under § 360g. Alabama Tissue, 975 F.2d at 379.\nAfter we dismissed their petition, petitioners pursued their suit in the district court — it had been stayed pending our decision. The government filed a motion to dismiss the petitioners’ (now plaintiffs’) complaint under Fed.R.Civ.P. 12(b)(6). The complaint charged that: (1) the FDA does not have authority to regulate the distribution of human heart valves under the FDC Act; (2) the FDA’s attempt to require premarket approval of allografts under the 1980- and 1987 regulations violates the procedural requirements of. the FDC Act §§ 360c(d) and 360e(b), which dictate the procedures the FDA must follow to promulgate a regulation that requires premarket approval; and (3) the FDA wrongfully denied plaintiffs the right to comment on the 1980 and 1987 regulations in violation of the Administrative Procedure Act (“APA”) and the FDC Act because nothing in the regulations or administrative record provided notice that the regulations would apply to allografts. This lack of notice, they contend, violated the provisions of the Act which set forth procedures for notifying interested persons, 21 U.S.C. §§ 360c(b)-(d), 360e(b), and the Due Process Clause of the Fifth Amendment.\nThe defendants argued to the district court that the plaintiffs’ claims should be dismissed because this court decided them in Alabama Tissue. The district court agreed, and dismissed the complaint as moot. The petitioners contended in this court that allografts could not be “devices” because they are human heart tissue. As the court correctly found, we ruled that the definition of device is broad enough to permit the FDA to regulate human tissue distribution under the Act. Alabama Tissue Center v. Sullivan, No. 91 C 6515, slip op. at 4, 1992 WL 349646 (N.D.Ill. Nov. 12, 1992) (“Mem. & Order”); Alabama Tissue, 975 F.2d at 378-79. The district court also acknowledged our conclusion that the NAFR is not a final rule subject to the notice and comment procedures set forth in the APA, 5 U.S.C. § 553 because it is a permissible interpretation of the 1980 and 1987 regulations. Mem. & Order at 4. Relying on these rulings, the district court dismissed counts one and two of the complaint. The district court also found that our opinion moots the plaintiffs’ claim in' count three— that they were not on notice that the regulations included allografts:\n“[T]he Court of Appeals determined that the definition of replacement heart valves ‘clearly encompasses matters relating to human organisms.’ Id. at 11. The Court further determined that although plaintiffs claim that ‘biologic valves’ only refer to animal valves and not human valves.... [T]he list and example contained in the definition [of replacement heart valves] are clearly not intended to be all inclusive.” Id. at 12. ’Therefore the Court dismissed plaintiffs’ allegation that they were not reasonably put on notice of the content of the regulations. Moreover, the Court noted that review of such claims should only be granted in exceptional circumstances and plaintiffs failed to provide convincing justification for review. See Id. at 12, n. 2. Thus, plaintiffs were not wrongfully denied the right to comment on the 1980 and 1987 regulations.\nMem. & Order at 6. Finding all the plaintiffs’ claims mooted by our decision, the district court granted the defendants’ motion to dismiss. Two of the plaintiffs appeal.\nII. Analysis\nA. Standard of Review\nWe review the dismissal of a complaint under Federal Rule of Procedure 12(b)(6) de novo. We accept all the factual allegations in the complaint and draw all reasonable inferences from these facts in favor of the plaintiff. Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir.1991). A court can dismiss a complaint only if the plaintiff cannot establish any set of facts upon which relief can be granted. Id.\nB. The Vitality of the Plaintiffs’ Complaint\nWe believe the district court correctly dismissed the first two counts of the plaintiffs’ complaint pursuant to our ruling in Alabama Tissue. As discussed supra at note 5, we expressly rejected plaintiffs’ contention in count one that the FDA lacks authority to regulate human tissue under the FDC Act. Alabama Tissue, 975 F.2d at 378. As for count two, we held that the NAFR is an interpretation of a regulation, not a legislative rule subject to the notice and comment provisions of the APA and the FDC Act. Id. at 379.\nWe cannot dispose of count three so easily. The plaintiffs argue that the agency promulgated a back door amendment to the 1980 and 1987 regulations to regulate allografts. This back door procedure denied them the right to notice and comment on the regulation of allografts which the FDC Act and the APA guarantee. According to plaintiffs, the agency also thereby dodged the FDC Act’s requirement that a scientific panel review classifications of devices. The plaintiffs contend that the FDA gave no indication when it promulgated the regulations that allografts were deemed “replacement heart valves,” and, therefore, judicial review of their claim is not foreclosed by the thirty-day limitations period imposed by 21 U.S.C. § 360g.\nThe plaintiffs’ claim finds parallels in several lines of authority which explore the procedural protections which should be afforded those affected by administrative agency action. These lines of authority include cases which consider an agency’s ability to promulgate a final rule that differs significantly from the proposed one. See, e.g., Shell Oil Co. v. EPA 950 F.2d 741, 751 (D.C.Cir.1991).\n[I]t was the business of the EPA, not the public, to foresee that possibility and address it in its proposed regulations.... Under the standards of the APA, ‘notice must necessarily come — if at all — from the Agency’.... [A]mbiguous comments and weak signals from the agency gave petitioners no such opportunity to anticipate and criticize the rules or to offer alternatives.\nId. See also American Medical Ass’n v. United States, 887 F.2d 760, 767 (7th Cir.1989) (final rule valid because “logical outgrowth” of proposed rule); Natural Resources Defense Council v. EPA, 824 F.2d 1258, 1282-85 (1st Cir.1987) (final rule invalid because proposed rule did not give adequate notice of its terms, i.e. final rule not “logical outgrowth” of proposed rule); BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir. 1979) (same). The issues plaintiffs raise have also been considered when (1) an agency has issued ‘interpretations’ of rules which differ from a court’s prior interpretation, see, e.g., Chamber of Commerce v. OSHA 636 F.2d 464 (D.C.Cir.1980), or the agency’s prior interpretation, see, e.g., National Family Planning v. Sullivan, 979 F.2d 227 (D.C.Cir.1992); Jerri’s Ceramic Arts, Inc. v. Consumer Product Safety, 874 F.2d 205, 206 (4th Cir.1989) (“Statement of Interpretation” changing agency’s enforcement policy actually substantive amendment to regulation subject to notice and comment), or (2) an agency has announced creative interpretations of regulatory language. Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1117 (10th Cir.1977). In Usery, for example, the Secretary of Labor interpreted a regulation which stated ladders “shall be provided” to mean employers “shall require use” of ladders. Id. at 1118-19. The court rejected the interpretation:\nKennecott was not required to assume the burden of guessing what the Secretary intended plain and unambiguous words employed in the safety regulations to mean. This is especially true when violation of a regulation subjects one to criminal or civil sanctions. A- regulation cannot be construed to mean what an agency intended but did not adequately express. If the Secretary were to be permitted to interpret regulations by employing the unusual meaning of words, employers would be deprived of fair notice of that which is expected of them in violation of their due process rights.\nId. [citations omitted]. See also Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976) (“open-sided floor” could not be interpreted to include “open-sided roof’).\nWe also find discussions of these issues in cases in which an agency has ducked procedural requirements imposed by Congress. See Becton, Dickinson & Co. v. FDA, 589 F.2d 1175, 1182 (2d Cir.1978); Usery, 577 F.2d at 1117. Although it is not directly on point, in Becton, the Second Circuit chided the FDA for “procedural brinkmanship” similar to the kind plaintiffs allege here. Becton Dickinson, 589 F.2d at 1182. The opinion sheds some light on our analysis. Becton, like this case, involved the Secretary’s implementation of the medical device amendments to the FDC Act. These amendments, as. we have discussed supra, direct the Secretary to classify devices into one of three categories based upon them safety and effectiveness. The amendments also give the Secretary the authority to inspect facilities manufacturing “restricted devices.” 589 F.2d at 1178.\nThe medical device amendments define “restrictive device” as “a device subject to a regulation under this subsection.” 21 U.S.C. § 360j (e)(1). The Secretary did not promulgate new regulations under the amendments to announce which devices were restricted. Id. at 1179. Instead, a week after the amendments became law, the Secretary published a notice in the Federal Register entitled “Implementation of the Medical Device Amendments Act of 1976.” Becton, 589 F.2d at 1180. This document stated in part that “Restricted devices include all prescription devices as now defined in 21 CFR 801.-109.... Additional notices and proposed regulations will be published in future issues of the Federal Register_” Id. The document also stated that FDA representatives planned to inspect facilities manufacturing restricted devices as the document defined them. Id. The government, as in this case, conceded that notice and comment procedures had not been followed before the document was published. The FDA simply regarded the document as “fair advice” to the industry of its position. To wit, the agency believed that the previously adopted prescription device regulation was sufficient under § 360j(e) to regulate “restricted devices” under the new amendments. Id.\nThe plaintiff manufactured devices “intended for use by or on the prescription of a physician.” Id. (We cannot tell from the opinion exactly what kind of devices.) The FDA attempted to inspect plaintiffs facility and records. When plaintiff balked, the FDA obtained a warrant. Id. To prevent further invasions, plaintiff sued, seeking injunctive relief barring FDA inspections until the agency promulgated regulations defining “restrictive devices” as the FDC Act required. Id.\nThe Second Circuit refused to allow the agency to bootstrap the regulation of restricted devices under the prescription device regulation. It acknowledged that the Secretary’s construction of the regulations reflected “common sense” because the terms “prescription” and “restricted” incorporated similar safety standards. Nevertheless, it found that\nCongress was careful to provide a rule-making procedure in which all participants would have a full opportunity to present their views and analyses of the data underlying the proposed regulation^ and] ... intended that the Secretary ... determine that the particular restriction on sale, distribution or use is justified by the risks presented by the device.\nId. at 1181. The court invalidated the rule because the Secretary failed to follow Congress’ directives to conduct notice and comment rulemaking. It rejected the FDA’s argument that the notice and comment period for the prescription device regulation was adequate to allow prescription device manufacturers to present their views of regulation under the FDC Act. The court explained that those comments would not have been addressed to the constraints imposed by the restrictive device amendments, but to the regulatory exemptions provided in the prescription dévice regulations. The court concluded that despite the FDA’s broad discretion to regulate matters affecting public health, because of congressional emphasis on careful procedures and regulations, it could not sanction FDA’s regulation of restricted devices under the prescription device regulations. Id. at 1181-82. See also National Nutritional Foods Ass’n v. Kennedy, 572 F.2d 377, 382-84 (2d Cir.1978) (rejecting FDA Secretary’s attempts to justify failure to provide notice and comment before promulgating final rule).\nIssues plaintiffs raise in count three have also been considered by courts wrestling with ripeness in the administrative context. The D.C. Circuit has explained that timeliness and ripeness, although somewhat related and often confused, are not the same thing. “It is the‘duty of the court to make the prudential judgment whether a challenge to an agency action is ripe; it is the responsibility of petitioners to file for review within the period set by Congress.” Eagle-Picher Indus., 759 F.2d at 912. Nevertheless, in some exceptional circumstances a petitioner’s failure to file a timely challenge may be “forgiven” because the party “lacked a meaningful opportunity to challenge the agency action during the review period due to, for example, inadequate notice that the petitioner would be affected by the action.... ” Id. at 911; Recreation Vehicle Indus. Ass’n v. EPA, 653 F.2d 562, 568 (D.C.Cir.1981).\n[T]he statutory time limit restricting judicial review of agency action is applicable only to cut off review directly from the order promulgating a rule. It does not foreclose subsequent examination of a rule ... of further agency action applying it. For unlike ordinary adjudicative orders, administrative rules and regulations are capable of continuing application; limiting the right of review of the underlying rule would effectively deny many parties affected by a rule an opportunity to question its validity.\nNLRB Union v. Federal Labor Relations Authority, 834 F.2d 191, 195-96 (D.C.Cir.1987) (quoting Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C.Cir.1958), cert. denied, 361 U.S. 813, 80 S.Ct. 50, 4 L.Ed.2d 60 (1959)). See also Investment Company Institute v. Board of Governors of the Federal Reserve System, 551 F.2d 1270, 1280 (D.C.Cir.1977) (“Where the right to petition for review within 30 days after promulgation of a regulation does not provide an adequate remedy, alternative means may be utilized to bring a claim before this court.”).\nWe believe plaintiffs may be “forgiven” for failing to file a timely challenge to the 1980 and 1987 regulations because the facts they allege indicate that they may not have received adequate notice of the effect of the regulations. Common themes in the lines of authority we have cited cement our decision to “forgive” the untimeliness of the plaintiffs’ challenge to the FDA’s heart valve regulations. Proper promulgation does not necessarily render a regulation valid for all time or for all purposes. “[Bjecause an administrative order or regulation which may have appeared valid at one time may not be valid, a statutory time limit on judicial review cannot cut off forever all review of administrative decisions.” Illinois Central Gulf R.R. Co. v. ICC, 720 F.2d 958, 961 (7th Cir.1983) (citing Geller v. FCC, 610 F.2d 973, 978 (D.C.Cir.1979); Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C.Cir.1958), cert. denied, 361 U.S. 813, 80 S.Ct. 50, 4 L.Ed.2d 60 (1959)). Courts have developed a cluster of policies to protect the rights of parties affected by agency action, and yet preserve the finality of agency action: If the statute authorizing agency action requires the agency to solicit data and comments from interested parties, the parties ought to have a meaningful opportunity to present these materials to the agency before it embarks upon a course of action, particularly if the agency can impose criminal or civil sanctions for violations of its regulations. An agency should not be able to avoid the notice-and-comment process with fancy interpretive footwork. Nevertheless, parties cannot sit on their rights and wait for a convenient moment to challenge agency action.\nCount three presents a form of ripeness argument — plaintiffs could not have challenged the, regulations within the statutory period because they did not know that they were aggrieved by them until the NAFR was published in 1991. See RCA Global Communications, Inc. v. FCC, 758 F.2d 722, 730 (D.C.Cir.1985) (“Although statutory time limitations on judicial review of agency action are jurisdictional, self-evidently the calendar does not run until the agency had decided a question in a manner that reasonably puts aggrieved parties on notice of the rule’s content.”) (citation omitted); Geller, 610 F.2d at 973 (changed circumstances allow challenge to continued vitality of regulations). See also Raton Gas, 852 F.2d at 615 (“[A] litigant may still, under certain circumstances, question an agency regulation after the expiration of the statutory period for direct review.”); Eagle-Picher Indus, v. EPA, 759 F.2d 905, 911 (D.C.Cir.1985) (challenge to regulation promulgated a year earlier untimely).\nThis court has reviewed agency decisions after the statutory time limit expired when “no one had any reason to challenge the decision when it was made ... because it was unlikely to have much impact....” Illinois Central, 720 F.2d at 961 (jurisdiction to review regulation promulgated two years earlier). See also Commonwealth Edison Co. v. United States Nuclear Regulatory Comm’n, 830 F.2d 610 (7th Cir.1987) (challenge to licensing application fee brought three years after promulgation of regulation setting application fees). Other courts have allowed challenges years after the agency promulgated the regulation. See Natural Resources Defense Council v. Nuclear Regulatory Comm’n, 666 F.2d 595, 602 (D.C.Cir.1981); Geller v. FCC, 610 F.2d 973, 978 (D.C.Cir.1979) (jurisdiction to review regulations promulgated five years earlier).\nPlaintiffs’ pleading in count three is sufficient to sustain their claim (at least through a motion to dismiss) that the FDA did not provide notice of its intent to regulate allo-grafts under the replacement heart valve regulations when it promulgated the regulations. Complaint, ¶ 38-40, R.Doc. 1. Certainly the FDA did not enforce the regulations against allografts during the five-year period between the promulgation of the pre-market approval regulation and the issuance of the NAFR. Further, documents in the record indicate that FDA officials informed plaintiffs during this intervening period that “FDA continues to maintain that' they have authority over processors of human source valves, but they' choose not to exercise that authority at this time.” Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction, Exhibit B to Exhibit 14, R.Doc. 12. Allograft manufacturers could have interpreted this comment as a representation that the Secretary believed she possessed statutory authority to regulate allo-grafts, but was not currently regulating them. If she was not yet exercising her statutory authority, the FDC Act seems to require her to promulgate regulations before she did so. These facts suggest that the plaintiffs could not have known when the regulations were promulgated that they would be governed by them. “Though our review of an agency’s final decision is relatively narrow, we must be strict in reviewing an agency’s compliance with procedural rules.” Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098, 1103 (4th Cir.1985) (citing BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 641 (1st Cir.1979), cert. denied sub nom., Eli Lilly & Co. v. Costle, 444 U.S. 1096, 100 S.Ct. 1063, 62 L.Ed.2d 784 (1980)). Accord Wyerhauser Co. v. Costle, 590 F.2d 1011, 1013 (D.C.Cir.1978).\nWe emphasize it is not the substance of the FDA’s interpretation, but the manner in which it was announced that we believe merits review. Congress imposed very .significant procedural restrictions on the FDA’s ability to regulate medical devices. These restrictions were designed to minimize the disruption of the commercial marketing of medical devices. See S.Rep. No. 94-33, 94th Cong., 1st Sess. 3, 11 (March 11, 1975); H.R.Rep. No. 94-853, 94th Cong., 2d Sess. 42 (Feb. 29, 1976), U.S.Code Cong. & Admin.News 1976, pp. 1070, 1072, 1080. Fundamental fairness requires that we ensure that the agency has not nullified the thirty-month grace period Congress provided to allow medical device manufacturers to comply with the amendments to the Act. Cf. Small Ref. Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 542 (D.C.Cir.1983) (EPA promised in proposed regulation to give potential regulatees adequate lead time before enacting new regulatory standards — “Unless EPA had a strong reason for breaking its promise of adequate lead time, a court might well have concluded that its action was arbitrary.”).\nC. Effect of Alabama Tissue\nThe defendants argue that plaintiffs’ claim is foreclosed by our ruling in Alabama Tissue. The district court agreed and granted the defendants’ motion to dismiss. Mem. & Order at 6. We believe the defendants and the district court have read our opinion, perhaps understandably, too broadly. In Alabama Tissue, we were asked to determine whether the NAFR was a final rule. The petitioners contended that the FDA violated the FDC Act and the APA because it promulgated a new substantive rule, but skipped the procedures Congress required for classifying and regulating Class III devices. Because the FDA did not intend to regulate allografts when it promulgated the regulation in 1980, the argument went, the NAFR’s imposition of a premarket approval requirement in 1991 must have been a final rule. We ruled the NAFR was a permissible interpretation, of the 1980 and 1987 regulations and held that it was not a final rule. We denied the petition for direct review under 21 U.S.C. § 360g.\nThe defendants assert that our ruling that the interpretation was permissible closes the door on plaintiffs’ contention that the notice was inadequate. According to defendants, a permissible interpretation, ipso facto, makes any notice the agency provided adequate. At oral argument, counsel for the FDA asserted that if an interpretation is permissible, it “defies logic to suggest that there has been no notice given of that interpretation.” We disagree.\nSuppose an agency charged with regulating the nation’s highways promulgates regulations requiring “all vehicles” to conform to certain safety standards. For five years the agency enforces these standards only against automobiles of various types. Then it publishes a notice in the Federal Register announcing that the regulations also apply to bicycles. The dictionary definition of vehicle (“A device, such as a car or sled, for carrying passengers, goods, or equipment; conveyance .... ”) reasonably encompasses bicycle as a permissible interpretation. Nevertheless, it seems silly to suggest that the nation’s bicyclists would have been “on notice” at the time the regulations were promulgated that the agency’s standards applied to their bikes.\nIn fact, a ruling from the D.C. Circuit impliedly rejects the FDA’s argument. In Shell Oil Co. v. EPA 950 F.2d 741, 753-56 (D.C.Cir.1991), a petition challenged the EPA’s construction of the statutory term “treatment” in a final regulation. The court analyzed the EPA’s interpretation under Chevron, and determined that it was permissible. Id. Then, the court considered separately whether there was adequate notice and opportunity for comment on the agency’s usage and application of the term. Id. at 756. The court thereby implicitly rejected the FDA’s argument here that a permissible interpretation means by definition that the agency provided adequate notice.\nThe FDA argues that a ruling from a district court in this Circuit supports their contention that a permissible interpretation renders any notice and comment procedure adequate. See Sima Products Corp. v. McLucas, 460 F.Supp. 128 (N.D.Ill.1978), aff'd, 612 F.2d 309, 312 (7th Cir.1980). We do not agree with' the agency’s reading of Sima Products. In that case, plaintiff asked the head of the FAA to promulgate .an amendment to an FAA regulation governing notice to passengers of the effects of X-Ray inspection on film. The regulation required signs in airports to indicate that only X-Ray and scientific film could be harmed by X-Ray inspection. Plaintiff contended that the signs were misleading. The FAA denied the petition to amend the rule. Plaintiff sued the agency and asked the district court to declare that the regulation was void and to direct the agency to promulgate a new regulation requiring accurate signs. The district court granted the defendants’ 12(b)(6) motion. 460 F.Supp. at 129.\nIn addition to its substantive challenge to the regulation, the plaintiff challenged the sufficiency of the FAA’s notice procedures under the APA and the FAA’s governing regulations. Despite its participation in the notice and comment process conducted when the regulation was proposed, the plaintiff alleged it had received inadequate notice of the FAA’s film warning regulation. According to the district court:\nIt is well established that an agency’s notice to the public of proposed rule-making is sufficient under 5 U.S.C. § 553(b) where the substance of the proposed rule is announced, National Industrial Traffic League v. United States, 396 F.Supp. 456, 460 (D.C.D.C.1975) and where interested parties are given a reasonable opportunity to participate, Forester v. Consumer Products Safety Comm’n, 559 F.2d 774, 787 (D.C.Cir.1977). Furthermore, as the court in Forester concluded, 5 U.S.C. § 553(b) “provides at least as much protection as does the Fifth Amendment.” Id. at 787. Defendant’s notice of rule-making that was published in the Federal Register meets the reasonableness standard of Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In a situation such as this, where all parties interested in the promulgation of a rule may not be known to defendant, it is simply not reasonable or practical to require defendant to give more adequate notice.\nSima Products, 460 F.Supp. at 133. The court ruled that the notice the agency provided' was satisfactory. We find minimal support in this case (or in our opinion affirming it) for the proposition that affected persons are necessarily put on notice of all permissible interpretations of agency regulations, regardless of the course of proceedings and history of the regulation. Sima Products held simply that an agency need not give personal notice to parties of rulemaking.\nThe defendants also argue that interpretive rules never require notice and comment. The cases upon which they rely in their brief to support this argument are distinguishable from the facts presented in this case. See Indiana Dep’t Pub. Welfare v. Sullivan, 934 F.2d 853, 855. (7th Cir.1991); American Bancorporation v. Board of Governors of Fed. Reserve Sys., 509 F.2d 29, 34-35 (8th Cir.1984). In Indiana Dep’t, the Secretary of Health and Human Services disallowed federal contributions to the State’s nursing homes. The Secretary refused to pay because the state agency charged with conducting a survey of the nursing homes required by HHS failed to conduct the survey according to the terms of an HHS operations manual. 934 F.2d at 855. The manual required the survey to be conducted after the nursing homes began treating patients. Indiana surveyed some facilities before they began treating patients. HHS promulgated regulations setting forth the data the survey was designed to collect. Although the regulations did not specifically include the requirement that facilities be treating patients when the surveys were conducted, much of the data could only be gathered if patients were in-house. Id. Indiana argued that the in-house requirement was not valid because it was not promulgated under APA procedures.\nThis court disagreed. We found the in-house rule was implicit in the promulgated regulations — indeed the regulatory standards were “nonsensical unless they were read to include a patient-in-the-house requirement.” Id. at 855. HHS could not enforce the survey regulations without the in-house requirement. In this case, however, regulation of other types of replacement heart valves is not “nonsensical” without the regulation of allografts. Further, allograft regulation is not required to enforce the promulgated regulations against other replacement valves.\nIn American Bancorp., the petitioners challenged an amendment to the bank holding company regulations that were promulgated without notice and comment. The amendment narrowed the scope of activities that the original language of the regulation apparently authorized. 509 F.2d at 34. The court ruled that the amendment was an interpretive rule, exempt from notice and comment. The amendment was an interpretive rule because it not only narrowed the scope of the original regulation; “it makes explicit what was implicit under that regulation.” Id.\nAgain, this case is distinguishable from American Bancorp. In Bancorp., the new interpretation narrowed the scope of the existing regulations. Here, the Secretary’s interpretation expands the scope of the regulation. Whether the interpretation was “implicit” in the original regulation brings us back to the question of whether the FDA provided adequate notice of its intent to regulate allografts as replacement heart valves.\nIn Alabama Tissue, the plaintiffs argued briefly that even if the NAFR was not a final rule, we could review the 1987 regulation because allograft manufacturers were not reasonably placed on notice of the content of the 1987 regulation, and because the regulation “remained clearly unripe for review during the statutory review period.” Alabama Tissue, 975 F.2d at 379 n. 2. We noted the brief argument in a footnote, and cited one case which might support the petitioners’ invitation to review the 1987 regulation. The footnote is set out fully in the margin. We stated, however, that petitioners had not offered a convincing justification to follow the D.C. Circuit. We did not expressly consider the adequacy of the notice provided by the 1980 and 1987 regulations. Indeed, we could not have considered the petitioners’ invitation to review the adequacy of the FDA’s notice of the impact of the 1987 regulation, and impliedly refused to do so, because we declined petitioners’ request to supplement the appellate record with records of the proceedings leading to the promulgation of the 1980 and 1987 regulations. We stated, perhaps prematurely, that these records were not “material.” See Alabama Tissue, 975 F.2d at 376. See also American Bancorporation v. Board of Governors of Fed. Reserve Sys., 509 F.2d 29, 34-35 (8th Cir.1984) (discussing informal record including submissions in response to request for comment). Because we declined to review the very evidence that might present “convincing justification” for their failure to file within the statutory period, we do not believe the plaintiffs should be barred from presenting the more developed claim they pursue in count three to the district court. See Eagle-Picher, 759 F.2d at 909 (Court may consider untimely claim when there is “clear evidence that a failure to consider a petitioner’s claims would work a manifest injustice.”). Further, we believe the 1980 and 1987 regulations should be reviewed together because both regulations are necessary to subject allografts to premarket approval under the regulatory scheme imposed by the FDC Act. We believe count three of the complaint correctly raises the connection between the two regulations.\nAt oral argument, counsel for the FDA contended that “it is disingenuous” for plaintiffs to suggest that they were deprived of notice in the early 1980s, because the technology that makes allografts marketable commodities (the .preservation techniques which extend their shelf life) did not emerge until the mid-to-late 1980s. If we bear in mind that all facts and reasonable inferences must be viewed in the light most favorable to the plaintiffs, this accusation strengthens the plaintiffs’ position. If allografts were not in commercial distribution, would processors know that a regulation affected them? Indeed, if allografts were not in commercial distribution, they might not be subject to the classification and regulation scheme for “preamendment” devices imposed by the statute and applied to replacement heart valves in the 1980 and 1987 regulations. See 21 U.S.C. § 360c(f) (discussing regulation of devices “which [were] not introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976.”).\nThe FDA also opined at oral argument that entrants in regulated fields must apprise themselves of even a “potential for enforcement” of regulations against their products. We believe requiring parties to divine a “potential for enforcement” from a five-year-old regulation is a little much. See Shell Oil Co. v. EPA, 950 F.2d 741, 751 (D.C.Cir.1991) (“Interested parties cannot be expected to divine the EPA’s unspoken thoughts.”). Accord MCI Telecommunications Corp. v. FCC, 765 F.2d 1186, 1191 (D.C.Cir.1985) (“It would be patently unfair to hold that an agency’s entirely unspoken (or impenetrably obscure) belief that Proposition B follows from Holding A may'be the basis for precluding judicial review of Proposition B ..(emphasis in original) (citation omitted). Parties may foresee possible areas of regulation, but “[ujnder the standards of the APA, ‘notice must necessarily come — if at all — from the Agency’_ [Ajmbiguous comments and weak signals from the agency [do not give interested parties an] opportunity to anticipate and- criticize the rules or to offer alternatives.” Shell Oil, 950 F.2d at 751.\nWe are reluctant to dismiss cavalierly the plaintiffs’ notice claim, particularly because the FDA seems to have stated its intention not to regulate allografts before it issued the NAFR. It now threatens to sanction allo-graft manufacturers for selling adulterated devices. “If a court mistakenly gives an agency interpretation the force of law, ‘an especially odious frustration is visited upon the affected private parties: they are bound by a proposition they had no opportunity to help shape and will have no meaningful opportunity to challenge when it is applied to them.’ ”. National Family Planning v. Sullivan, 979 F.2d 227, 240 (D.C.Cir.1992) (quoting Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 Yale J. on Reg. 1, 58 (1990)). See also Usery v. Kennecott Copper Corp., 571 F.2d 1113, 1119 (“A regulation cannot be construed to mean what an agency intended but did not adequately express.”).\nWe believe our ruling pays proper heed to the caution of the D.C. Circuit:\nIn considering the need for or propriety of judicial review in a particular case, we must recognize that terms like ‘order’ or ‘request’ may be terms of conclusion rather than analysis.... If linguistic technicalities are honored, and the practicalities of administrative involvement are ignored, we will have in truth unleashed a ‘monster which rules with no practical limits on its discretion.’\nIndependent Broker-Dealers’ Trade Ass’n v. SEC, 442 F.2d 132, 139 (D.C.Cir.) (quoting Burlington Track Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)), cert. denied, 404 U.S. 828 (1971). See also Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098, 1105 (4th Cir.1985) (“[A]lthough helpful, verbal formulations are not omnipotent talismans, and ... in the final analysis each case ‘must turn on how well the notice that the agency gave serves the policies underlying the notice requirement.”). Judge Bazelon suggested that giving agencies a free rein to impose new interpretations on existing regulations threatens our democratic society. See Chamber of Commerce v. OSHA, 636 F.2d 464, 471-72 (D.C.Cir.1980) (Bazelon, J. concurring). Although we do not believe the FDA’s regulation of allografts imperils our constitutional democracy, we do think the plaintiffs are entitled to present their claim.\nFinally, as we explained 'in Rockford League of Women Voters v. United States Nuclear Regulatory Comm’n, 679 F.2d 1218, 1220 (7th Cir.1982), “[t]he district court is arguably the more appropriate venue to review informal agency action” because the lack of a formal record requires that evidence be gathered to reconstruct the agency’s actions. Whether the agency provided adequate notice of its intention to regulate allografts is essentially a factual question. We noted in Alabama Tissue that the records the petitioners proffered of the promulgation proceedings were incomplete. 975 F.2d at 376. The district court is better equipped than we to manage the gathering and presentation of evidence, and to conduct the necessary factual inquiry. See Denberg v. United States R.R. Retirement Bd., 696 F.2d 1193, 1196 (7th Cir.1983), cert. denied, 466 U.S. 926, 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984).\nWe remand the case to the district court to examine whether the agency provided adequate notice of its intention to regulate allo-grafts under the replacement valve regulations. The court should consider the content of the agency’s publications in the Federal Register, including the scientific literature the agency cited. See 44 Fed.Reg. 13284 (1979) (classification of cardiovascular devices); 44 Fed.Reg. 13387 (1979) (classification of replacement heart valves); 45 Fed. Reg. 7948 (1980) (same); 51 Fed.Reg. 5296 (1986) (premarket approval); 52 Fed.Reg. 18162 (1987) (same). In this appeal the plaintiffs contend that none of this literature discusses allografts. The FDA contends that allografts are discussed. We believe the content of the medical literature might shed light on the adequacy of the notice the agency provided. The court should examine the proposed findings published pursuant to 21 U.S.C. § 360e(b)(2)(a) to determine whether they apply to allografts. The state of the marketing and development of allografts at the time the regulations were promulgated might also shed light on the validity of the agency’s contention that it provided adequate notice that allografts would be regulated. The court might also examine whether the scientific panel which considered the classification of heart valves also considered allo-grafts. Generally, however, we leave to the district court the selection of evidence it deems relevant to its inquiry into the adequacy of the FDA’s notice.\nIII.\nFor the foregoing reasons, the judgment of the district court is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.\n. Allografts are human heart valves, recovered from deceased human donors, which are preserved and stored for transplantation.\n. Section 321(h) defines the term \"device’' as \"an instrument, apparatus, implement, machine, contrivance, implant, in vitro agency, or other similar or related article....”\n. In the alternative, allografts could be distributed for investigational use only if they met the requirements of 21 U.S.C. § 360j(g) and 21 C.F.R.'§ 812, which impose a different set of procedural hurdles.\n. The D.C. Circuit has advised that \"careful counsel” in doubt of the proper forum for their claims pursue this dual filing strategy to protect their clients' claims. See, e.g., Investment Company Institute v. Board of Governors of the Federal Reserve System, 551 F.2d 1270, 1280 (D.C.Cir. 1977).\n. We noted the expansive definition the agency and the courts have given “device,” and Congress’ definition of \"device” to include \"implant.” Alabama Tissue, 975 F.2d at 378 (quoting 21 U.S.C. § 321(h)). The FDC Act defines the term \"implant\" to include \"tissue ... inserted or grafted into the body for prosthetic, therapeutic, diagnostic, or experimental purposes.” Id. Based on this definition, and the definition of \"implantation,” we concluded that heart valve allografts reasonably fit within the definition of implants and, therefore, may be considered devices. .Id.\n. Of this line of cases, we find the D.C. Circuit's decision in Fertilizer Institute v. EPA, 935 F.2d 1303 (D.C.Cir.1991), particularly helpful. The petitioners challenged two administrative exemptions to CERCLA (the Comprehensive Environmental Response, Compensation & Liability Act, 42 U.S.C. §§ 9601-9675) announced by the EPA in a final rule promulgated under § 553 of the APA. The proposed rule did not mention the possible creation of administrative exemptions. The EPA argued that the proposed rule provided adequate notice nevertheless because it included a discussion of statutory exemptions to CERCLA. 935 F.2d at 1311. The D.C. Circuit disagreed.\nUnder the EPA’s argument, the petitioners were responsible for inferring from the proposed rule’s reference to statutory exemptions that the creation of administrative exemptions might be considered. Implicit in this argument is the notion that a reference to a specific topic (here, statutory exemptions) can give rise to notice of the existence of a more general topic (here, exemptions in general) and that the general topic, in turn can encompass notice of a second specific topic (here, administrative exemptions) only remotely related to the first specific one. Such reasoning, if accepted by the court, would turn notice and comment rulemaking into a guessing game in which the inclusion of one subject indicates that a distant cousin of that subject might be addressed. This reading of the APA cannot be sustained.\nId. at 1311. In the instant case, the agency’s argument would be that regulation of mechanical and animal valves provides notice that all heart valves are being regulated. This general regulation provides notice that human heart valves are being regulated. Like the D.C. Circuit, we have our doubts about this form of attenuated notice.\nThe court also rejected the agency’s contention that the new rule was a logical outgrowth of the proposed one. To determine if a final rule is a logical outgrowth of the proposed one, the court must decide \"whether the purposes of notice and comment have been adequately served.\" Id. A final rule is \"the logical outgrowth of a proposed rule if a new round of notice and comment would not provide commenters with 'their first occasion to offer new and different criticisms which the agency might find convincing.' \" Id. (quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1225 (D.C.Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981)). The court also refused to accept the EPA’s argument that the notice must have been adequate because some comments addressed administrative exemptions.\n. Before any litigant reasonably can be expected to present a petition for review of an agency rule, he first must be put on fair notice that the rule in question is applicable to him. Otherwise the agency could promulgate a confusing regulation and, after expiration of the time for any judicial contest, clarify it to the surprise and prejudice of a party whose opportunity for judicial review meanwhile has been extinguished.\nRecreation Vehicle, 653 F.2d at 568.\n. We have discussed some of these issues in Commonwealth Edison Co. v. United States Nuclear Regulatory Comm'n, 830 F.2d 610, 614-15 (7th Cir.1987) (considering challenge to licensing application fee brought three years after promulgation of regulation setting application fees).\n. See Abbott Laboratories v. Gardner, 387 U.S. 136, 153, 87 S.Ct. 1507, 1518, 18 L.Ed.2d 681 (1967) (\"Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance....”), ovemded on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Shell Oil Co. v. EPA, 950 F.2d 741, 759 (D.C.Cir.1991) (\"Where the imposition of penal sanctions is at issue, however, the due process clause prevents that deference [to agency expertise] from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires.”).\n. See National Family Planning v. Sullivan, 979 F.2d 227, 231 (D.C.Cir.1992) (\"When an agency promulgates a legislative regulation by notice and comment directly affecting the conduct of both agency personnel and members of the public, whose meaning the agency announces as clear and definitive to the public, ... it may not subsequently repudiate that announced meaning and substitute for it a totally different meaning without proceeding through the notice and comment rulemaking normally required for amendments -of a rule.\"); Homemakers Northshore, Inc. v. Bowen, 832 F.2d 408, 412 (7th Cir.1987) (“The judicial responsibility to accept the agency’s interpretation comes from the existence of (a) a decision that was (2) taken in a proccdurally regular way ... a volte face may be an attempt to avoid the notice and opportunity for comment that the Administrative Procedure Act requires for the alteration of a rule.”) (emphasis in original); Panhandle Eastern Pipe Line Co. v. F.E.R.C., 613 F.2d 1120 (D.C.Cir.1979) (\"We agree that 'the Commission's broad responsibilities ... demand a generous construction of its statutory authority,’ but we do not believe the Commission should have authority to play fast and loose with its own regulations.”), cert. denied, 449 U.S. 889, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980); Usery, 577 F.2d at 1117.\n. See Raton Gas, 852 F.2d at 615; Small Ref. Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C.Cir.1983); Natural Resources Defense Council v. Nuclear Regulatory Comm’n, 666 F.2d 595, 602 (D.C.Cir.1981) (\"We have previously suggested that those who have had the opportunity to challenge general rules should not later be heard to complain of their invalidity on grounds fully known to them at the time of their issuance.”).\n. We recall our responsibility when we .review the dismissal of a complaint to draw all reasonable inferences in the plaintiffs' favor.\n. American Heritage Dictionary 1340 (2d College ed. 1991).\n. Indeed, before this court, the plaintiff admitted it had notice of the proposed regulation, but argued that the agency was required to conduct a \"true hearing” on the merits of plaintiff’s position before it promulgated the rule. We did not agree. Sima Products, 612 F.2d at 312.\n. In reliance on law from the District of Columbia Circuit, petitioners also briefly argue that even if the NAFR is not a final rule, this Court has jurisdiction to review the 1987 Regulation although the statutory time limit for review has expired.\nFirst, petitioners claim that they were not reasonably placed on notice of the content of the 1987 Regulation. See Raton Gas Transmission Co. v. F.E.R.C., 852 F.2d 612, 615 (D.C.Cir.1988). Second, they allege that the 1987 regulation remained clearly unripe for review during the statutory review period, or 30 days of its promulgation. See id. However, the District of Columbia [sic] has only granted such review in exceptional circumstances. Id. Petitioners provide no convincing justification.\n. Moreover, in the preamble to the classification regulation for cardiovascular devices, the FDA stated, \"Devices that were solely for experimental or investigational use or that were not generally available were not usually included.... Additional cardiovascular devices, which are not included in this list and which were commercially available before May 28, 1976, will be added to the list as necessary.” Proposed Rule on Classification of Cardiovascular Devices, 44 Fed. Reg. 13285 (1979). Allograft processors may have relied on this preamble if the allograft market was still in its infancy when the FDA began regulating cardiovascular devices.", "type": "majority", "author": "BAUER, Chief Judge."}], "attorneys": ["George M. Burditt (argued), Alan I. Becker, Deborah B. Norton, Jamie S. Freveletti, Burditt & Radzius, Chicago, IL, for plaintiffs-appellants.", "Thomas P. Walsh, Asst. U.S. Atty., Crim. Div., Chicago, IL, William M. Zoffer (argued), Drake Cutini, Dept, of Justice, Consumer Litigation, Washington, DC, for defendants-appellees."], "corrections": "", "head_matter": "NORTHWEST TISSUE CENTER, Department of the Puget Sound Blood Center, a Washington Corporation, and Oregon Tissue Bank, a Department of the Em-manual Hospital and Health Center, a Legacy Health System Affiliate, an Oregon Corporation, Plaintiffs-Appellants, v. Donna E. SHALALA, Secretary of the United States Department of Health and Human Services, and David Kessler, Commissioner of the United States Food and Drug Administration, Defendants-Appellees.\nNo. 93-1078.\nUnited States Court of Appeals, Seventh Circuit.\nArgued June 1, 1993.\nDecided July 27, 1993.\nRehearing and Suggestion for Rehearing En Banc Denied Sept. 24, 1993.\nGeorge M. Burditt (argued), Alan I. Becker, Deborah B. Norton, Jamie S. Freveletti, Burditt & Radzius, Chicago, IL, for plaintiffs-appellants.\nThomas P. Walsh, Asst. U.S. Atty., Crim. Div., Chicago, IL, William M. Zoffer (argued), Drake Cutini, Dept, of Justice, Consumer Litigation, Washington, DC, for defendants-appellees.\nBefore BAUER, Chief Judge, MANION and ROVNER, Circuit Judges.\n. After this case was commenced in the district court, Donna E. Shalala succeeded Louis W. Sullivan as Secretary of the Department of Health and Human Services. Her name has been substituted for his in the caption. Fed. R-Civ.P. 43(c)."}	BAUER	MANION	ROVNER	1	1	1	0	0	0	1 F.3d 522	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: NORTHWEST TISSUE CENTER, Department of the Puget Sound Blood Center, a Washington Corporation, and Oregon Tissue Bank, a Department of the Em-manual Hospital and Health Center, a Legacy Health System Affiliate, an Oregon Corporation, Plaintiffs-Appellants, v. Donna E. SHALALA, Secretary of the United States Department of Health and Human Services, and David Kessler, Commissioner of the United States Food and Drug Administration, Defendants-Appellees\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-27\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nBAUER, Chief Judge.\nIn this appeal we revisit the United States Food and Drug Administration’s (“FDA”) treatment of human heart valve allografts as devices under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-394 (“the FDC Act”) and its implementing regulations. The district court dismissed the plaintiffs’ complaint, ruling that it was mooted by our holding in Alabama Tissue Center v. Sullivan, 975 F.2d 373 (7th Cir.1993). In Alabama Tissue, we dismissed a petition challenging an FDA notice interpreting one of its regulations because the notice was not a “regulation” subject to direct appellate review. Id. at 379. Although two of the plaintiffs’ three claims were mooted by that ruling, we believe count three of the plaintiffs’ complaint should not have been dismissed, and remand this case to the district court for proceedings consistent with this opinion.\nI. Background\nA. Statutory Framework\nOur review of the plaintiffs’ claims requires us to delve into the bowels of the regulatory framework imposed by the FDC Act. The Medical Device Amendments of 1976 classify medical devices into three categories — Class I, II, and III — to reflect the devices’ relative safety and effectiveness. 21 U.S.C. § 360c(a). Class I devices are the safest, followed by Class II, and then Class III. See 21 U.S.C. § 360c(a)(l). See also Becton, Dickinson, & Co. v. FDA 589 F.2d 1175, 1177 (2d Cir.1978) (discussing classification scheme). Examples of Class III devices include pacemakers, artificial heart valves, and other products intended to be implanted in the body or designed to sustain human life. 21 U.S.C. § 360c(c)(2)(C)(i). The Act imposes significant restrictions on the marketing of Class III devices to minimize the risk of harm they pose to consumers. One of these requirements is premarket approval. 21 U.S.C. § 360e. Before a Class III device may be distributed commercially, manufacturers must submit extensive data to the FDA for review. The FDA examines the data and must approve the manufacturer’s application before a device can be marketed. Id. Application for premarket approval is an onerous process, see 21 U.S.C. § 360e(c); Congress estimated that manufacturers would need thirty months to complete the process. 21 U.S.C. § 351(f)(2)(B)(i).\nTo ease the burden of the process and minimize the disruption to the' market, Congress requires the Secretary of the FDA to regulate devices that were in commercial distribution in 1976 (when the amendments were adopted) in two steps. The two-step procedure allows these preamendment Class III devices to remain in circulation while the FDA evaluates them. First, the Secretary is required to classify all preamendment devices into one of the three classes outlined in 21 U.S.C. § ,360c. The Secretary must publish the proposed classification in the Federal Register. The notice of proposed classification invites comment from interested persons and is intended to put manufacturers on notice to enable them to begin to prepare a premarket approval application for their devices. If the Secretary proposes that a device be classified as Class III, it is referred to a scientific panel for its review and recommendation respecting the appropriate classification of the device. § 360c(c). The panel’s recommendation is published in the Federal Register, and interested persons are given the opportunity to comment. § 360c(d). After notice and comment, the Secretary publishes the regulation classifying a device as Class III.\nIn the second step of the process, the Secretary promulgates a second regulation to require manufacturers to submit applications for premarket approval. 21 U.S.C. § 360e(b)(l). The Secretary is to publish the proposed regulation in the Federal Register, again with opportunity for comment by interested persons. Id. The proposed regulation must include proposed findings “with respect to the degree of risk of illness or injury designed to be eliminated or reduced by requiring the device to have an approved application for premarket approval and the benefit to the public for the use of the device.” 21 U.S.C. § 360e(b)(2)(A). After the final rule requiring submission of premarket approval applications is published, a manufacturer must complete the premarket approval process within ninety days or thirty months from the date the final classification regulation was promulgated, whichever is longer. 21 U.S.C. §§ 351(f)(2)(B)(i), (ii). A device that does not satisfy these requirements is deemed adulterated and is subject to seizure. The manufacturer is subject to sanction. 21 U.S.C. ■§ 351(f)(1).\nThe FDA'issued a regulation in 1980 classifying replacement heart valves as Class III devices, 21 C.F.R. § 870, 45 Fed.Reg. 7948 (1980). The 1980 regulation identified a replacement heart valve as a\ndevice intended to perform the function of any of the heart’s natural valves. This device includes valves constructed of prosthetic materials, biologic valves (e.g. porcine valves), or valves constructed of a combination of prosthetic and biologic materials.\n21 C.F.R. § 870.3925. A second regulation promulgated in 1987 subjects replacement heart valves to premarket approval. 21 C.F.R. § 870, 52 Fed.Reg. 18162 (1987). Both regulations were enacted pursuant to the notice and comment provisions of the FDC Act, 21 U.S.C. § 360e, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. Things proceeded swimmingly until 1991.\nIn 1991, the FDA issued a “Notice of applicability of a final rule.” (“NAFR”) 56 Fed.Reg. 29177 (June 26, 1991). The NAFR-informed manufacturers that allografts are subject to the 1980 and 1987 regulations governing replacement heart valves. The NAFR posed difficulties for allograft manufacturers: it announced that to continue distributing allografts, manufacturers were required to have an approved premarket approval application in effect within ninety days, a far cry from the thirty months Congress estimates is required for premarket approval. Allografts had been distributed commercially for years with no indication from the FDA that they were subject to the replacement heart valve regulations. Because they were unprepared for the pre-market approval process, manufacturers confronted the substantial likelihood that they would need to pull their products from the market or face sanctions for selling adulterated devices. Indeed, the NAFR threatened as much. 58 FedReg. 29178 (citing 21 U.S.C. § 351(f)(1)(A)). Further, none of the manufacturers participated in the notice and comment proceedings conducted when the replacement heart valve regulations were promulgated in 1980 and 1987.\nB. Allograft Litigation History\nSix not-for-profit allograft manufacturers petitioned this court for direct appellate review of the FDA’s NAFR under 21 U.S.C. § 360(a), (g). That section authorizes review within thirty days of promulgation of final FDA regulations which require premarket approval of medical devices. Alabama Tissue, 975 F.2d at 374. The petitioners also filed suit in district court challenging the FDA’s action, seeking injunctive and declaratory relief. In the petition to this court, the manufacturers alleged that the 1991 NAFR was a new “regulation” challengeable under § 360(a)(g) because allografts were not previously subject to the regulations governing other heart replacement valves. Id. at 378-79. This new regulation was promulgated without notice or comment, the manufacturers argued, in violation of the FDC Act and the APA. The FDA countered that the NAFR was not a new regulation, but an interpretation of an existing regulation. For that reason, the agency claimed, this court lacked jurisdiction to review the NAFR. Id. ■ at 376-77.\nBecause our jurisdiction depended on whether the NAFR was a regulation, 21 U.S.C. § 360(g), the jurisdictional and substantive issues overlapped. Id. at 376. The NAFR itself purported to be an interpretation of the earlier regulations. Id. at 377 (“[T]he summary of the NAFR specifically states ‘the FDA is issuing a notice to clarify that replacement heart valve allografts, devices, are subject to a final rule that was issued by FDA on May 13, 1987.’ ”) (quoting the NAFR). Applying the analysis set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we concluded that the NAFR was a permissible interpretation of the regulations. For that reason we held that the NAFR was not a regulation, but an interpretive rule. We dismissed the petition for lack of jurisdiction under § 360g. Alabama Tissue, 975 F.2d at 379.\nAfter we dismissed their petition, petitioners pursued their suit in the district court — it had been stayed pending our decision. The government filed a motion to dismiss the petitioners’ (now plaintiffs’) complaint under Fed.R.Civ.P. 12(b)(6). The complaint charged that: (1) the FDA does not have authority to regulate the distribution of human heart valves under the FDC Act; (2) the FDA’s attempt to require premarket approval of allografts under the 1980- and 1987 regulations violates the procedural requirements of. the FDC Act §§ 360c(d) and 360e(b), which dictate the procedures the FDA must follow to promulgate a regulation that requires premarket approval; and (3) the FDA wrongfully denied plaintiffs the right to comment on the 1980 and 1987 regulations in violation of the Administrative Procedure Act (“APA”) and the FDC Act because nothing in the regulations or administrative record provided notice that the regulations would apply to allografts. This lack of notice, they contend, violated the provisions of the Act which set forth procedures for notifying interested persons, 21 U.S.C. §§ 360c(b)-(d), 360e(b), and the Due Process Clause of the Fifth Amendment.\nThe defendants argued to the district court that the plaintiffs’ claims should be dismissed because this court decided them in Alabama Tissue. The district court agreed, and dismissed the complaint as moot. The petitioners contended in this court that allografts could not be “devices” because they are human heart tissue. As the court correctly found, we ruled that the definition of device is broad enough to permit the FDA to regulate human tissue distribution under the Act. Alabama Tissue Center v. Sullivan, No. 91 C 6515, slip op. at 4, 1992 WL 349646 (N.D.Ill. Nov. 12, 1992) (“Mem. & Order”); Alabama Tissue, 975 F.2d at 378-79. The district court also acknowledged our conclusion that the NAFR is not a final rule subject to the notice and comment procedures set forth in the APA, 5 U.S.C. § 553 because it is a permissible interpretation of the 1980 and 1987 regulations. Mem. & Order at 4. Relying on these rulings, the district court dismissed counts one and two of the complaint. The district court also found that our opinion moots the plaintiffs’ claim in' count three— that they were not on notice that the regulations included allografts:\n“[T]he Court of Appeals determined that the definition of replacement heart valves ‘clearly encompasses matters relating to human organisms.’ Id. at 11. The Court further determined that although plaintiffs claim that ‘biologic valves’ only refer to animal valves and not human valves.... [T]he list and example contained in the definition [of replacement heart valves] are clearly not intended to be all inclusive.” Id. at 12. ’Therefore the Court dismissed plaintiffs’ allegation that they were not reasonably put on notice of the content of the regulations. Moreover, the Court noted that review of such claims should only be granted in exceptional circumstances and plaintiffs failed to provide convincing justification for review. See Id. at 12, n. 2. Thus, plaintiffs were not wrongfully denied the right to comment on the 1980 and 1987 regulations.\nMem. & Order at 6. Finding all the plaintiffs’ claims mooted by our decision, the district court granted the defendants’ motion to dismiss. Two of the plaintiffs appeal.\nII. Analysis\nA. Standard of Review\nWe review the dismissal of a complaint under Federal Rule of Procedure 12(b)(6) de novo. We accept all the factual allegations in the complaint and draw all reasonable inferences from these facts in favor of the plaintiff. Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir.1991). A court can dismiss a complaint only if the plaintiff cannot establish any set of facts upon which relief can be granted. Id.\nB. The Vitality of the Plaintiffs’ Complaint\nWe believe the district court correctly dismissed the first two counts of the plaintiffs’ complaint pursuant to our ruling in Alabama Tissue. As discussed supra at note 5, we expressly rejected plaintiffs’ contention in count one that the FDA lacks authority to regulate human tissue under the FDC Act. Alabama Tissue, 975 F.2d at 378. As for count two, we held that the NAFR is an interpretation of a regulation, not a legislative rule subject to the notice and comment provisions of the APA and the FDC Act. Id. at 379.\nWe cannot dispose of count three so easily. The plaintiffs argue that the agency promulgated a back door amendment to the 1980 and 1987 regulations to regulate allografts. This back door procedure denied them the right to notice and comment on the regulation of allografts which the FDC Act and the APA guarantee. According to plaintiffs, the agency also thereby dodged the FDC Act’s requirement that a scientific panel review classifications of devices. The plaintiffs contend that the FDA gave no indication when it promulgated the regulations that allografts were deemed “replacement heart valves,” and, therefore, judicial review of their claim is not foreclosed by the thirty-day limitations period imposed by 21 U.S.C. § 360g.\nThe plaintiffs’ claim finds parallels in several lines of authority which explore the procedural protections which should be afforded those affected by administrative agency action. These lines of authority include cases which consider an agency’s ability to promulgate a final rule that differs significantly from the proposed one. See, e.g., Shell Oil Co. v. EPA 950 F.2d 741, 751 (D.C.Cir.1991).\n[I]t was the business of the EPA, not the public, to foresee that possibility and address it in its proposed regulations.... Under the standards of the APA, ‘notice must necessarily come — if at all — from the Agency’.... [A]mbiguous comments and weak signals from the agency gave petitioners no such opportunity to anticipate and criticize the rules or to offer alternatives.\nId. See also American Medical Ass’n v. United States, 887 F.2d 760, 767 (7th Cir.1989) (final rule valid because “logical outgrowth” of proposed rule); Natural Resources Defense Council v. EPA, 824 F.2d 1258, 1282-85 (1st Cir.1987) (final rule invalid because proposed rule did not give adequate notice of its terms, i.e. final rule not “logical outgrowth” of proposed rule); BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir. 1979) (same). The issues plaintiffs raise have also been considered when (1) an agency has issued ‘interpretations’ of rules which differ from a court’s prior interpretation, see, e.g., Chamber of Commerce v. OSHA 636 F.2d 464 (D.C.Cir.1980), or the agency’s prior interpretation, see, e.g., National Family Planning v. Sullivan, 979 F.2d 227 (D.C.Cir.1992); Jerri’s Ceramic Arts, Inc. v. Consumer Product Safety, 874 F.2d 205, 206 (4th Cir.1989) (“Statement of Interpretation” changing agency’s enforcement policy actually substantive amendment to regulation subject to notice and comment), or (2) an agency has announced creative interpretations of regulatory language. Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1117 (10th Cir.1977). In Usery, for example, the Secretary of Labor interpreted a regulation which stated ladders “shall be provided” to mean employers “shall require use” of ladders. Id. at 1118-19. The court rejected the interpretation:\nKennecott was not required to assume the burden of guessing what the Secretary intended plain and unambiguous words employed in the safety regulations to mean. This is especially true when violation of a regulation subjects one to criminal or civil sanctions. A- regulation cannot be construed to mean what an agency intended but did not adequately express. If the Secretary were to be permitted to interpret regulations by employing the unusual meaning of words, employers would be deprived of fair notice of that which is expected of them in violation of their due process rights.\nId. [citations omitted]. See also Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976) (“open-sided floor” could not be interpreted to include “open-sided roof’).\nWe also find discussions of these issues in cases in which an agency has ducked procedural requirements imposed by Congress. See Becton, Dickinson & Co. v. FDA, 589 F.2d 1175, 1182 (2d Cir.1978); Usery, 577 F.2d at 1117. Although it is not directly on point, in Becton, the Second Circuit chided the FDA for “procedural brinkmanship” similar to the kind plaintiffs allege here. Becton Dickinson, 589 F.2d at 1182. The opinion sheds some light on our analysis. Becton, like this case, involved the Secretary’s implementation of the medical device amendments to the FDC Act. These amendments, as. we have discussed supra, direct the Secretary to classify devices into one of three categories based upon them safety and effectiveness. The amendments also give the Secretary the authority to inspect facilities manufacturing “restricted devices.” 589 F.2d at 1178.\nThe medical device amendments define “restrictive device” as “a device subject to a regulation under this subsection.” 21 U.S.C. § 360j (e)(1). The Secretary did not promulgate new regulations under the amendments to announce which devices were restricted. Id. at 1179. Instead, a week after the amendments became law, the Secretary published a notice in the Federal Register entitled “Implementation of the Medical Device Amendments Act of 1976.” Becton, 589 F.2d at 1180. This document stated in part that “Restricted devices include all prescription devices as now defined in 21 CFR 801.-109.... Additional notices and proposed regulations will be published in future issues of the Federal Register_” Id. The document also stated that FDA representatives planned to inspect facilities manufacturing restricted devices as the document defined them. Id. The government, as in this case, conceded that notice and comment procedures had not been followed before the document was published. The FDA simply regarded the document as “fair advice” to the industry of its position. To wit, the agency believed that the previously adopted prescription device regulation was sufficient under § 360j(e) to regulate “restricted devices” under the new amendments. Id.\nThe plaintiff manufactured devices “intended for use by or on the prescription of a physician.” Id. (We cannot tell from the opinion exactly what kind of devices.) The FDA attempted to inspect plaintiffs facility and records. When plaintiff balked, the FDA obtained a warrant. Id. To prevent further invasions, plaintiff sued, seeking injunctive relief barring FDA inspections until the agency promulgated regulations defining “restrictive devices” as the FDC Act required. Id.\nThe Second Circuit refused to allow the agency to bootstrap the regulation of restricted devices under the prescription device regulation. It acknowledged that the Secretary’s construction of the regulations reflected “common sense” because the terms “prescription” and “restricted” incorporated similar safety standards. Nevertheless, it found that\nCongress was careful to provide a rule-making procedure in which all participants would have a full opportunity to present their views and analyses of the data underlying the proposed regulation^ and] ... intended that the Secretary ... determine that the particular restriction on sale, distribution or use is justified by the risks presented by the device.\nId. at 1181. The court invalidated the rule because the Secretary failed to follow Congress’ directives to conduct notice and comment rulemaking. It rejected the FDA’s argument that the notice and comment period for the prescription device regulation was adequate to allow prescription device manufacturers to present their views of regulation under the FDC Act. The court explained that those comments would not have been addressed to the constraints imposed by the restrictive device amendments, but to the regulatory exemptions provided in the prescription dévice regulations. The court concluded that despite the FDA’s broad discretion to regulate matters affecting public health, because of congressional emphasis on careful procedures and regulations, it could not sanction FDA’s regulation of restricted devices under the prescription device regulations. Id. at 1181-82. See also National Nutritional Foods Ass’n v. Kennedy, 572 F.2d 377, 382-84 (2d Cir.1978) (rejecting FDA Secretary’s attempts to justify failure to provide notice and comment before promulgating final rule).\nIssues plaintiffs raise in count three have also been considered by courts wrestling with ripeness in the administrative context. The D.C. Circuit has explained that timeliness and ripeness, although somewhat related and often confused, are not the same thing. “It is the‘duty of the court to make the prudential judgment whether a challenge to an agency action is ripe; it is the responsibility of petitioners to file for review within the period set by Congress.” Eagle-Picher Indus., 759 F.2d at 912. Nevertheless, in some exceptional circumstances a petitioner’s failure to file a timely challenge may be “forgiven” because the party “lacked a meaningful opportunity to challenge the agency action during the review period due to, for example, inadequate notice that the petitioner would be affected by the action.... ” Id. at 911; Recreation Vehicle Indus. Ass’n v. EPA, 653 F.2d 562, 568 (D.C.Cir.1981).\n[T]he statutory time limit restricting judicial review of agency action is applicable only to cut off review directly from the order promulgating a rule. It does not foreclose subsequent examination of a rule ... of further agency action applying it. For unlike ordinary adjudicative orders, administrative rules and regulations are capable of continuing application; limiting the right of review of the underlying rule would effectively deny many parties affected by a rule an opportunity to question its validity.\nNLRB Union v. Federal Labor Relations Authority, 834 F.2d 191, 195-96 (D.C.Cir.1987) (quoting Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C.Cir.1958), cert. denied, 361 U.S. 813, 80 S.Ct. 50, 4 L.Ed.2d 60 (1959)). See also Investment Company Institute v. Board of Governors of the Federal Reserve System, 551 F.2d 1270, 1280 (D.C.Cir.1977) (“Where the right to petition for review within 30 days after promulgation of a regulation does not provide an adequate remedy, alternative means may be utilized to bring a claim before this court.”).\nWe believe plaintiffs may be “forgiven” for failing to file a timely challenge to the 1980 and 1987 regulations because the facts they allege indicate that they may not have received adequate notice of the effect of the regulations. Common themes in the lines of authority we have cited cement our decision to “forgive” the untimeliness of the plaintiffs’ challenge to the FDA’s heart valve regulations. Proper promulgation does not necessarily render a regulation valid for all time or for all purposes. “[Bjecause an administrative order or regulation which may have appeared valid at one time may not be valid, a statutory time limit on judicial review cannot cut off forever all review of administrative decisions.” Illinois Central Gulf R.R. Co. v. ICC, 720 F.2d 958, 961 (7th Cir.1983) (citing Geller v. FCC, 610 F.2d 973, 978 (D.C.Cir.1979); Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C.Cir.1958), cert. denied, 361 U.S. 813, 80 S.Ct. 50, 4 L.Ed.2d 60 (1959)). Courts have developed a cluster of policies to protect the rights of parties affected by agency action, and yet preserve the finality of agency action: If the statute authorizing agency action requires the agency to solicit data and comments from interested parties, the parties ought to have a meaningful opportunity to present these materials to the agency before it embarks upon a course of action, particularly if the agency can impose criminal or civil sanctions for violations of its regulations. An agency should not be able to avoid the notice-and-comment process with fancy interpretive footwork. Nevertheless, parties cannot sit on their rights and wait for a convenient moment to challenge agency action.\nCount three presents a form of ripeness argument — plaintiffs could not have challenged the, regulations within the statutory period because they did not know that they were aggrieved by them until the NAFR was published in 1991. See RCA Global Communications, Inc. v. FCC, 758 F.2d 722, 730 (D.C.Cir.1985) (“Although statutory time limitations on judicial review of agency action are jurisdictional, self-evidently the calendar does not run until the agency had decided a question in a manner that reasonably puts aggrieved parties on notice of the rule’s content.”) (citation omitted); Geller, 610 F.2d at 973 (changed circumstances allow challenge to continued vitality of regulations). See also Raton Gas, 852 F.2d at 615 (“[A] litigant may still, under certain circumstances, question an agency regulation after the expiration of the statutory period for direct review.”); Eagle-Picher Indus, v. EPA, 759 F.2d 905, 911 (D.C.Cir.1985) (challenge to regulation promulgated a year earlier untimely).\nThis court has reviewed agency decisions after the statutory time limit expired when “no one had any reason to challenge the decision when it was made ... because it was unlikely to have much impact....” Illinois Central, 720 F.2d at 961 (jurisdiction to review regulation promulgated two years earlier). See also Commonwealth Edison Co. v. United States Nuclear Regulatory Comm’n, 830 F.2d 610 (7th Cir.1987) (challenge to licensing application fee brought three years after promulgation of regulation setting application fees). Other courts have allowed challenges years after the agency promulgated the regulation. See Natural Resources Defense Council v. Nuclear Regulatory Comm’n, 666 F.2d 595, 602 (D.C.Cir.1981); Geller v. FCC, 610 F.2d 973, 978 (D.C.Cir.1979) (jurisdiction to review regulations promulgated five years earlier).\nPlaintiffs’ pleading in count three is sufficient to sustain their claim (at least through a motion to dismiss) that the FDA did not provide notice of its intent to regulate allo-grafts under the replacement heart valve regulations when it promulgated the regulations. Complaint, ¶ 38-40, R.Doc. 1. Certainly the FDA did not enforce the regulations against allografts during the five-year period between the promulgation of the pre-market approval regulation and the issuance of the NAFR. Further, documents in the record indicate that FDA officials informed plaintiffs during this intervening period that “FDA continues to maintain that' they have authority over processors of human source valves, but they' choose not to exercise that authority at this time.” Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction, Exhibit B to Exhibit 14, R.Doc. 12. Allograft manufacturers could have interpreted this comment as a representation that the Secretary believed she possessed statutory authority to regulate allo-grafts, but was not currently regulating them. If she was not yet exercising her statutory authority, the FDC Act seems to require her to promulgate regulations before she did so. These facts suggest that the plaintiffs could not have known when the regulations were promulgated that they would be governed by them. “Though our review of an agency’s final decision is relatively narrow, we must be strict in reviewing an agency’s compliance with procedural rules.” Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098, 1103 (4th Cir.1985) (citing BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 641 (1st Cir.1979), cert. denied sub nom., Eli Lilly & Co. v. Costle, 444 U.S. 1096, 100 S.Ct. 1063, 62 L.Ed.2d 784 (1980)). Accord Wyerhauser Co. v. Costle, 590 F.2d 1011, 1013 (D.C.Cir.1978).\nWe emphasize it is not the substance of the FDA’s interpretation, but the manner in which it was announced that we believe merits review. Congress imposed very .significant procedural restrictions on the FDA’s ability to regulate medical devices. These restrictions were designed to minimize the disruption of the commercial marketing of medical devices. See S.Rep. No. 94-33, 94th Cong., 1st Sess. 3, 11 (March 11, 1975); H.R.Rep. No. 94-853, 94th Cong., 2d Sess. 42 (Feb. 29, 1976), U.S.Code Cong. & Admin.News 1976, pp. 1070, 1072, 1080. Fundamental fairness requires that we ensure that the agency has not nullified the thirty-month grace period Congress provided to allow medical device manufacturers to comply with the amendments to the Act. Cf. Small Ref. Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 542 (D.C.Cir.1983) (EPA promised in proposed regulation to give potential regulatees adequate lead time before enacting new regulatory standards — “Unless EPA had a strong reason for breaking its promise of adequate lead time, a court might well have concluded that its action was arbitrary.”).\nC. Effect of Alabama Tissue\nThe defendants argue that plaintiffs’ claim is foreclosed by our ruling in Alabama Tissue. The district court agreed and granted the defendants’ motion to dismiss. Mem. & Order at 6. We believe the defendants and the district court have read our opinion, perhaps understandably, too broadly. In Alabama Tissue, we were asked to determine whether the NAFR was a final rule. The petitioners contended that the FDA violated the FDC Act and the APA because it promulgated a new substantive rule, but skipped the procedures Congress required for classifying and regulating Class III devices. Because the FDA did not intend to regulate allografts when it promulgated the regulation in 1980, the argument went, the NAFR’s imposition of a premarket approval requirement in 1991 must have been a final rule. We ruled the NAFR was a permissible interpretation, of the 1980 and 1987 regulations and held that it was not a final rule. We denied the petition for direct review under 21 U.S.C. § 360g.\nThe defendants assert that our ruling that the interpretation was permissible closes the door on plaintiffs’ contention that the notice was inadequate. According to defendants, a permissible interpretation, ipso facto, makes any notice the agency provided adequate. At oral argument, counsel for the FDA asserted that if an interpretation is permissible, it “defies logic to suggest that there has been no notice given of that interpretation.” We disagree.\nSuppose an agency charged with regulating the nation’s highways promulgates regulations requiring “all vehicles” to conform to certain safety standards. For five years the agency enforces these standards only against automobiles of various types. Then it publishes a notice in the Federal Register announcing that the regulations also apply to bicycles. The dictionary definition of vehicle (“A device, such as a car or sled, for carrying passengers, goods, or equipment; conveyance .... ”) reasonably encompasses bicycle as a permissible interpretation. Nevertheless, it seems silly to suggest that the nation’s bicyclists would have been “on notice” at the time the regulations were promulgated that the agency’s standards applied to their bikes.\nIn fact, a ruling from the D.C. Circuit impliedly rejects the FDA’s argument. In Shell Oil Co. v. EPA 950 F.2d 741, 753-56 (D.C.Cir.1991), a petition challenged the EPA’s construction of the statutory term “treatment” in a final regulation. The court analyzed the EPA’s interpretation under Chevron, and determined that it was permissible. Id. Then, the court considered separately whether there was adequate notice and opportunity for comment on the agency’s usage and application of the term. Id. at 756. The court thereby implicitly rejected the FDA’s argument here that a permissible interpretation means by definition that the agency provided adequate notice.\nThe FDA argues that a ruling from a district court in this Circuit supports their contention that a permissible interpretation renders any notice and comment procedure adequate. See Sima Products Corp. v. McLucas, 460 F.Supp. 128 (N.D.Ill.1978), aff'd, 612 F.2d 309, 312 (7th Cir.1980). We do not agree with' the agency’s reading of Sima Products. In that case, plaintiff asked the head of the FAA to promulgate .an amendment to an FAA regulation governing notice to passengers of the effects of X-Ray inspection on film. The regulation required signs in airports to indicate that only X-Ray and scientific film could be harmed by X-Ray inspection. Plaintiff contended that the signs were misleading. The FAA denied the petition to amend the rule. Plaintiff sued the agency and asked the district court to declare that the regulation was void and to direct the agency to promulgate a new regulation requiring accurate signs. The district court granted the defendants’ 12(b)(6) motion. 460 F.Supp. at 129.\nIn addition to its substantive challenge to the regulation, the plaintiff challenged the sufficiency of the FAA’s notice procedures under the APA and the FAA’s governing regulations. Despite its participation in the notice and comment process conducted when the regulation was proposed, the plaintiff alleged it had received inadequate notice of the FAA’s film warning regulation. According to the district court:\nIt is well established that an agency’s notice to the public of proposed rule-making is sufficient under 5 U.S.C. § 553(b) where the substance of the proposed rule is announced, National Industrial Traffic League v. United States, 396 F.Supp. 456, 460 (D.C.D.C.1975) and where interested parties are given a reasonable opportunity to participate, Forester v. Consumer Products Safety Comm’n, 559 F.2d 774, 787 (D.C.Cir.1977). Furthermore, as the court in Forester concluded, 5 U.S.C. § 553(b) “provides at least as much protection as does the Fifth Amendment.” Id. at 787. Defendant’s notice of rule-making that was published in the Federal Register meets the reasonableness standard of Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In a situation such as this, where all parties interested in the promulgation of a rule may not be known to defendant, it is simply not reasonable or practical to require defendant to give more adequate notice.\nSima Products, 460 F.Supp. at 133. The court ruled that the notice the agency provided' was satisfactory. We find minimal support in this case (or in our opinion affirming it) for the proposition that affected persons are necessarily put on notice of all permissible interpretations of agency regulations, regardless of the course of proceedings and history of the regulation. Sima Products held simply that an agency need not give personal notice to parties of rulemaking.\nThe defendants also argue that interpretive rules never require notice and comment. The cases upon which they rely in their brief to support this argument are distinguishable from the facts presented in this case. See Indiana Dep’t Pub. Welfare v. Sullivan, 934 F.2d 853, 855. (7th Cir.1991); American Bancorporation v. Board of Governors of Fed. Reserve Sys., 509 F.2d 29, 34-35 (8th Cir.1984). In Indiana Dep’t, the Secretary of Health and Human Services disallowed federal contributions to the State’s nursing homes. The Secretary refused to pay because the state agency charged with conducting a survey of the nursing homes required by HHS failed to conduct the survey according to the terms of an HHS operations manual. 934 F.2d at 855. The manual required the survey to be conducted after the nursing homes began treating patients. Indiana surveyed some facilities before they began treating patients. HHS promulgated regulations setting forth the data the survey was designed to collect. Although the regulations did not specifically include the requirement that facilities be treating patients when the surveys were conducted, much of the data could only be gathered if patients were in-house. Id. Indiana argued that the in-house requirement was not valid because it was not promulgated under APA procedures.\nThis court disagreed. We found the in-house rule was implicit in the promulgated regulations — indeed the regulatory standards were “nonsensical unless they were read to include a patient-in-the-house requirement.” Id. at 855. HHS could not enforce the survey regulations without the in-house requirement. In this case, however, regulation of other types of replacement heart valves is not “nonsensical” without the regulation of allografts. Further, allograft regulation is not required to enforce the promulgated regulations against other replacement valves.\nIn American Bancorp., the petitioners challenged an amendment to the bank holding company regulations that were promulgated without notice and comment. The amendment narrowed the scope of activities that the original language of the regulation apparently authorized. 509 F.2d at 34. The court ruled that the amendment was an interpretive rule, exempt from notice and comment. The amendment was an interpretive rule because it not only narrowed the scope of the original regulation; “it makes explicit what was implicit under that regulation.” Id.\nAgain, this case is distinguishable from American Bancorp. In Bancorp., the new interpretation narrowed the scope of the existing regulations. Here, the Secretary’s interpretation expands the scope of the regulation. Whether the interpretation was “implicit” in the original regulation brings us back to the question of whether the FDA provided adequate notice of its intent to regulate allografts as replacement heart valves.\nIn Alabama Tissue, the plaintiffs argued briefly that even if the NAFR was not a final rule, we could review the 1987 regulation because allograft manufacturers were not reasonably placed on notice of the content of the 1987 regulation, and because the regulation “remained clearly unripe for review during the statutory review period.” Alabama Tissue, 975 F.2d at 379 n. 2. We noted the brief argument in a footnote, and cited one case which might support the petitioners’ invitation to review the 1987 regulation. The footnote is set out fully in the margin. We stated, however, that petitioners had not offered a convincing justification to follow the D.C. Circuit. We did not expressly consider the adequacy of the notice provided by the 1980 and 1987 regulations. Indeed, we could not have considered the petitioners’ invitation to review the adequacy of the FDA’s notice of the impact of the 1987 regulation, and impliedly refused to do so, because we declined petitioners’ request to supplement the appellate record with records of the proceedings leading to the promulgation of the 1980 and 1987 regulations. We stated, perhaps prematurely, that these records were not “material.” See Alabama Tissue, 975 F.2d at 376. See also American Bancorporation v. Board of Governors of Fed. Reserve Sys., 509 F.2d 29, 34-35 (8th Cir.1984) (discussing informal record including submissions in response to request for comment). Because we declined to review the very evidence that might present “convincing justification” for their failure to file within the statutory period, we do not believe the plaintiffs should be barred from presenting the more developed claim they pursue in count three to the district court. See Eagle-Picher, 759 F.2d at 909 (Court may consider untimely claim when there is “clear evidence that a failure to consider a petitioner’s claims would work a manifest injustice.”). Further, we believe the 1980 and 1987 regulations should be reviewed together because both regulations are necessary to subject allografts to premarket approval under the regulatory scheme imposed by the FDC Act. We believe count three of the complaint correctly raises the connection between the two regulations.\nAt oral argument, counsel for the FDA contended that “it is disingenuous” for plaintiffs to suggest that they were deprived of notice in the early 1980s, because the technology that makes allografts marketable commodities (the .preservation techniques which extend their shelf life) did not emerge until the mid-to-late 1980s. If we bear in mind that all facts and reasonable inferences must be viewed in the light most favorable to the plaintiffs, this accusation strengthens the plaintiffs’ position. If allografts were not in commercial distribution, would processors know that a regulation affected them? Indeed, if allografts were not in commercial distribution, they might not be subject to the classification and regulation scheme for “preamendment” devices imposed by the statute and applied to replacement heart valves in the 1980 and 1987 regulations. See 21 U.S.C. § 360c(f) (discussing regulation of devices “which [were] not introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976.”).\nThe FDA also opined at oral argument that entrants in regulated fields must apprise themselves of even a “potential for enforcement” of regulations against their products. We believe requiring parties to divine a “potential for enforcement” from a five-year-old regulation is a little much. See Shell Oil Co. v. EPA, 950 F.2d 741, 751 (D.C.Cir.1991) (“Interested parties cannot be expected to divine the EPA’s unspoken thoughts.”). Accord MCI Telecommunications Corp. v. FCC, 765 F.2d 1186, 1191 (D.C.Cir.1985) (“It would be patently unfair to hold that an agency’s entirely unspoken (or impenetrably obscure) belief that Proposition B follows from Holding A may'be the basis for precluding judicial review of Proposition B ..(emphasis in original) (citation omitted). Parties may foresee possible areas of regulation, but “[ujnder the standards of the APA, ‘notice must necessarily come — if at all — from the Agency’_ [Ajmbiguous comments and weak signals from the agency [do not give interested parties an] opportunity to anticipate and- criticize the rules or to offer alternatives.” Shell Oil, 950 F.2d at 751.\nWe are reluctant to dismiss cavalierly the plaintiffs’ notice claim, particularly because the FDA seems to have stated its intention not to regulate allografts before it issued the NAFR. It now threatens to sanction allo-graft manufacturers for selling adulterated devices. “If a court mistakenly gives an agency interpretation the force of law, ‘an especially odious frustration is visited upon the affected private parties: they are bound by a proposition they had no opportunity to help shape and will have no meaningful opportunity to challenge when it is applied to them.’ ”. National Family Planning v. Sullivan, 979 F.2d 227, 240 (D.C.Cir.1992) (quoting Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 Yale J. on Reg. 1, 58 (1990)). See also Usery v. Kennecott Copper Corp., 571 F.2d 1113, 1119 (“A regulation cannot be construed to mean what an agency intended but did not adequately express.”).\nWe believe our ruling pays proper heed to the caution of the D.C. Circuit:\nIn considering the need for or propriety of judicial review in a particular case, we must recognize that terms like ‘order’ or ‘request’ may be terms of conclusion rather than analysis.... If linguistic technicalities are honored, and the practicalities of administrative involvement are ignored, we will have in truth unleashed a ‘monster which rules with no practical limits on its discretion.’\nIndependent Broker-Dealers’ Trade Ass’n v. SEC, 442 F.2d 132, 139 (D.C.Cir.) (quoting Burlington Track Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)), cert. denied, 404 U.S. 828 (1971). See also Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098, 1105 (4th Cir.1985) (“[A]lthough helpful, verbal formulations are not omnipotent talismans, and ... in the final analysis each case ‘must turn on how well the notice that the agency gave serves the policies underlying the notice requirement.”). Judge Bazelon suggested that giving agencies a free rein to impose new interpretations on existing regulations threatens our democratic society. See Chamber of Commerce v. OSHA, 636 F.2d 464, 471-72 (D.C.Cir.1980) (Bazelon, J. concurring). Although we do not believe the FDA’s regulation of allografts imperils our constitutional democracy, we do think the plaintiffs are entitled to present their claim.\nFinally, as we explained 'in Rockford League of Women Voters v. United States Nuclear Regulatory Comm’n, 679 F.2d 1218, 1220 (7th Cir.1982), “[t]he district court is arguably the more appropriate venue to review informal agency action” because the lack of a formal record requires that evidence be gathered to reconstruct the agency’s actions. Whether the agency provided adequate notice of its intention to regulate allografts is essentially a factual question. We noted in Alabama Tissue that the records the petitioners proffered of the promulgation proceedings were incomplete. 975 F.2d at 376. The district court is better equipped than we to manage the gathering and presentation of evidence, and to conduct the necessary factual inquiry. See Denberg v. United States R.R. Retirement Bd., 696 F.2d 1193, 1196 (7th Cir.1983), cert. denied, 466 U.S. 926, 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984).\nWe remand the case to the district court to examine whether the agency provided adequate notice of its intention to regulate allo-grafts under the replacement valve regulations. The court should consider the content of the agency’s publications in the Federal Register, including the scientific literature the agency cited. See 44 Fed.Reg. 13284 (1979) (classification of cardiovascular devices); 44 Fed.Reg. 13387 (1979) (classification of replacement heart valves); 45 Fed. Reg. 7948 (1980) (same); 51 Fed.Reg. 5296 (1986) (premarket approval); 52 Fed.Reg. 18162 (1987) (same). In this appeal the plaintiffs contend that none of this literature discusses allografts. The FDA contends that allografts are discussed. We believe the content of the medical literature might shed light on the adequacy of the notice the agency provided. The court should examine the proposed findings published pursuant to 21 U.S.C. § 360e(b)(2)(a) to determine whether they apply to allografts. The state of the marketing and development of allografts at the time the regulations were promulgated might also shed light on the validity of the agency’s contention that it provided adequate notice that allografts would be regulated. The court might also examine whether the scientific panel which considered the classification of heart valves also considered allo-grafts. Generally, however, we leave to the district court the selection of evidence it deems relevant to its inquiry into the adequacy of the FDA’s notice.\nIII.\nFor the foregoing reasons, the judgment of the district court is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.\n. Allografts are human heart valves, recovered from deceased human donors, which are preserved and stored for transplantation.\n. Section 321(h) defines the term \"device’' as \"an instrument, apparatus, implement, machine, contrivance, implant, in vitro agency, or other similar or related article....”\n. In the alternative, allografts could be distributed for investigational use only if they met the requirements of 21 U.S.C. § 360j(g) and 21 C.F.R.'§ 812, which impose a different set of procedural hurdles.\n. The D.C. Circuit has advised that \"careful counsel” in doubt of the proper forum for their claims pursue this dual filing strategy to protect their clients' claims. See, e.g., Investment Company Institute v. Board of Governors of the Federal Reserve System, 551 F.2d 1270, 1280 (D.C.Cir. 1977).\n. We noted the expansive definition the agency and the courts have given “device,” and Congress’ definition of \"device” to include \"implant.” Alabama Tissue, 975 F.2d at 378 (quoting 21 U.S.C. § 321(h)). The FDC Act defines the term \"implant\" to include \"tissue ... inserted or grafted into the body for prosthetic, therapeutic, diagnostic, or experimental purposes.” Id. Based on this definition, and the definition of \"implantation,” we concluded that heart valve allografts reasonably fit within the definition of implants and, therefore, may be considered devices. .Id.\n. Of this line of cases, we find the D.C. Circuit's decision in Fertilizer Institute v. EPA, 935 F.2d 1303 (D.C.Cir.1991), particularly helpful. The petitioners challenged two administrative exemptions to CERCLA (the Comprehensive Environmental Response, Compensation & Liability Act, 42 U.S.C. §§ 9601-9675) announced by the EPA in a final rule promulgated under § 553 of the APA. The proposed rule did not mention the possible creation of administrative exemptions. The EPA argued that the proposed rule provided adequate notice nevertheless because it included a discussion of statutory exemptions to CERCLA. 935 F.2d at 1311. The D.C. Circuit disagreed.\nUnder the EPA’s argument, the petitioners were responsible for inferring from the proposed rule’s reference to statutory exemptions that the creation of administrative exemptions might be considered. Implicit in this argument is the notion that a reference to a specific topic (here, statutory exemptions) can give rise to notice of the existence of a more general topic (here, exemptions in general) and that the general topic, in turn can encompass notice of a second specific topic (here, administrative exemptions) only remotely related to the first specific one. Such reasoning, if accepted by the court, would turn notice and comment rulemaking into a guessing game in which the inclusion of one subject indicates that a distant cousin of that subject might be addressed. This reading of the APA cannot be sustained.\nId. at 1311. In the instant case, the agency’s argument would be that regulation of mechanical and animal valves provides notice that all heart valves are being regulated. This general regulation provides notice that human heart valves are being regulated. Like the D.C. Circuit, we have our doubts about this form of attenuated notice.\nThe court also rejected the agency’s contention that the new rule was a logical outgrowth of the proposed one. To determine if a final rule is a logical outgrowth of the proposed one, the court must decide \"whether the purposes of notice and comment have been adequately served.\" Id. A final rule is \"the logical outgrowth of a proposed rule if a new round of notice and comment would not provide commenters with 'their first occasion to offer new and different criticisms which the agency might find convincing.' \" Id. (quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1225 (D.C.Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981)). The court also refused to accept the EPA’s argument that the notice must have been adequate because some comments addressed administrative exemptions.\n. Before any litigant reasonably can be expected to present a petition for review of an agency rule, he first must be put on fair notice that the rule in question is applicable to him. Otherwise the agency could promulgate a confusing regulation and, after expiration of the time for any judicial contest, clarify it to the surprise and prejudice of a party whose opportunity for judicial review meanwhile has been extinguished.\nRecreation Vehicle, 653 F.2d at 568.\n. We have discussed some of these issues in Commonwealth Edison Co. v. United States Nuclear Regulatory Comm'n, 830 F.2d 610, 614-15 (7th Cir.1987) (considering challenge to licensing application fee brought three years after promulgation of regulation setting application fees).\n. See Abbott Laboratories v. Gardner, 387 U.S. 136, 153, 87 S.Ct. 1507, 1518, 18 L.Ed.2d 681 (1967) (\"Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance....”), ovemded on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Shell Oil Co. v. EPA, 950 F.2d 741, 759 (D.C.Cir.1991) (\"Where the imposition of penal sanctions is at issue, however, the due process clause prevents that deference [to agency expertise] from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires.”).\n. See National Family Planning v. Sullivan, 979 F.2d 227, 231 (D.C.Cir.1992) (\"When an agency promulgates a legislative regulation by notice and comment directly affecting the conduct of both agency personnel and members of the public, whose meaning the agency announces as clear and definitive to the public, ... it may not subsequently repudiate that announced meaning and substitute for it a totally different meaning without proceeding through the notice and comment rulemaking normally required for amendments -of a rule.\"); Homemakers Northshore, Inc. v. Bowen, 832 F.2d 408, 412 (7th Cir.1987) (“The judicial responsibility to accept the agency’s interpretation comes from the existence of (a) a decision that was (2) taken in a proccdurally regular way ... a volte face may be an attempt to avoid the notice and opportunity for comment that the Administrative Procedure Act requires for the alteration of a rule.”) (emphasis in original); Panhandle Eastern Pipe Line Co. v. F.E.R.C., 613 F.2d 1120 (D.C.Cir.1979) (\"We agree that 'the Commission's broad responsibilities ... demand a generous construction of its statutory authority,’ but we do not believe the Commission should have authority to play fast and loose with its own regulations.”), cert. denied, 449 U.S. 889, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980); Usery, 577 F.2d at 1117.\n. See Raton Gas, 852 F.2d at 615; Small Ref. Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C.Cir.1983); Natural Resources Defense Council v. Nuclear Regulatory Comm’n, 666 F.2d 595, 602 (D.C.Cir.1981) (\"We have previously suggested that those who have had the opportunity to challenge general rules should not later be heard to complain of their invalidity on grounds fully known to them at the time of their issuance.”).\n. We recall our responsibility when we .review the dismissal of a complaint to draw all reasonable inferences in the plaintiffs' favor.\n. American Heritage Dictionary 1340 (2d College ed. 1991).\n. Indeed, before this court, the plaintiff admitted it had notice of the proposed regulation, but argued that the agency was required to conduct a \"true hearing” on the merits of plaintiff’s position before it promulgated the rule. We did not agree. Sima Products, 612 F.2d at 312.\n. In reliance on law from the District of Columbia Circuit, petitioners also briefly argue that even if the NAFR is not a final rule, this Court has jurisdiction to review the 1987 Regulation although the statutory time limit for review has expired.\nFirst, petitioners claim that they were not reasonably placed on notice of the content of the 1987 Regulation. See Raton Gas Transmission Co. v. F.E.R.C., 852 F.2d 612, 615 (D.C.Cir.1988). Second, they allege that the 1987 regulation remained clearly unripe for review during the statutory review period, or 30 days of its promulgation. See id. However, the District of Columbia [sic] has only granted such review in exceptional circumstances. Id. Petitioners provide no convincing justification.\n. Moreover, in the preamble to the classification regulation for cardiovascular devices, the FDA stated, \"Devices that were solely for experimental or investigational use or that were not generally available were not usually included.... Additional cardiovascular devices, which are not included in this list and which were commercially available before May 28, 1976, will be added to the list as necessary.” Proposed Rule on Classification of Cardiovascular Devices, 44 Fed. Reg. 13285 (1979). Allograft processors may have relied on this preamble if the allograft market was still in its infancy when the FDA began regulating cardiovascular devices.\n[END_CASE]", "role": "user" } ]
10,512,414	Todd KRUEGER, Plaintiff-Appellant, v. CITY OF ALGOMA, WISCONSIN, Police Department, City of Algoma, Marvin DeQuaine, individually and as the Chief of Police of the City of Algoma Police Department, et al., Defendants-Appellees	Krueger v. City of Algoma	1993-07-28	No. 92-2742	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before BAUER, Chief Judge, and FLAUM and MANION, Circuit Judges."], "parties": ["Todd KRUEGER, Plaintiff-Appellant, v. CITY OF ALGOMA, WISCONSIN, Police Department, City of Algoma, Marvin DeQuaine, individually and as the Chief of Police of the City of Algoma Police Department, et al., Defendants-Appellees."], "opinions": [{"text": "MANION, Circuit Judge.\nTodd Krueger attempted suicide the day after a City of Algoma police officer arrested him for disorderly conduct. He sued the City of Algoma and several police officers, claiming they violated his civil rights by arresting him and that the alleged violations somehow caused his suicide attempt. The district court granted summary judgment and we affirm.\nI. Facts\nIn 1988, the City of Algoma faced an epidemic of underage drinking. Todd Krueger, then a senior at the local high school, had been cited at least five times. On two of those occasions he required medical treatment. On December 20, 1988, Krueger attended a high school basketball game. As he was leaving the parking lot after the game he hung out of the passenger window of the car he was in and yelled to Officer Todd Haltauf-derheid, who was directing traffic, “[w]hy don’t you direct that G- D- traffic?” Officer Haltaufderheid got into his police car and tracked down the vehicle in which Krueger was a passenger. As he approached the vehicle, he noticed Krueger in the passenger seat attempting to put on a seat belt. Officer Haltaufderheid instructed Krueger to step out of the car, and he refused. He noticed that Krueger’s eyes were red and that he emitted a strong odor of alcohol. Officer Haltaufderheid then reached into the car, grabbed Krueger by the arm, and assisted him out. The car in which Krueger was riding then sped away, and Officer Haltauf-derheid questioned Krueger. Officer Hal-taufderheid believed he had probable cause to cite Krueger for underage drinking and disorderly conduct. However, he issued only an underage drinking citation and took Krueger to the Algoma police station.\nWhile at the police station, Krueger told Officer Haltaufderheid that “If I get this ticket, you’ll be reading about me in the obituaries tomorrow.” When Krueger’s mother came to pick him up at the police station, Officer Haltaufderheid told her of the suicide threat, and he recommended that she seek treatment for her son. Officer Haltauf-derheid then released Krueger into his mother’s custody. She did not act on Officer Haltaufderheid’s suggestion. Instead, she and her son went home.\nThe next morning, Krueger took his father’s shotgun and left his house before his parents awoke. When the parents later realized he was missing, Krueger’s mother told his father of the events of the previous night. Krueger’s father then went to the police station to report that his son and his shotgun were missing from the family home. He suggested to Chief Marvin DeQuaine that no police officer should have contact with his son until he (the father) had been called to calm him down. At Chief DeQuaine’s request, Officer Arnold Zahn typed a “Missing Person” report which noted Krueger’s suicide comment.\nLater that morning, Officer Zahn saw a car speeding and disobeying traffic signals in the city of Algoma. Officer Zahn gave chase; he did not know at the time that Krueger was driving the car. When Krueger noticed that Officer Zahn had activated his siren and flashing lights, he “accelerated hard” in an attempt to flee. Krueger continued to flee at high speed until he reached the Bruemerville Dam. Once there, he got out of his car-brandishing the shotgun he had taken from his house. He pointed the gun at' Officer Zahn, who ducked behind his car. Officer Zahn warned Krueger to put down the gun. He then heard a shot.- When Officer Zahn looked around the car which was shielding him, he saw Krueger laying on the ground bleeding from the chest. Krueger had attempted suicide. He survived but with major injuries.\nThe City of Algoma prosecuted Krueger for the underage drinking citation. In an apparent mistake, the citation had been issued for “procuring or attempting to procure alcoholic beverages” instead of underage drinking. The county judge dismissed the case on August 24, 1989 noting that the real charge — underage consumption of alcohol— was not on the face of the citation. The judge also considered Officer Haltaufder-heid’s allegations that Krueger treated him with disrespect leading up to the arrest. The judge admonished Krueger for the disrespect, but found that Krueger’s behavior did not provide an independent cause for the arrest.\nOn December 1, 1989, Krueger filed his complaint in this case, alleging that the police officers and the City of Algoma violated his constitutional rights by harassing and arresting him, and that the violations caused his suicide attempt. The district court granted summary judgment in favor of the defendants, concluding that Krueger failed to support his claimed constitutional violations. Krueger makes three arguments on appeal: 1) that Officer Haltaufderheid illegally arrested him on December 20, 1988; 2) that Officer Zahn engaged him in a wrongful pursuit in contravention of an alleged order from Chief DeQuaine; and 3) that Chief DeQuaine failed to train and supervise his officers properly.\nII. Analysis\nThe district court began its order granting summary judgment by noting that “[tjhere comes a point when human beings must be required to accept responsibility for then-voluntary actions rather than being, permitted to impose legal liability or moral blame on other individuals or on society in general.” It is tragic when an 18-year-old attempts suicide. But who is responsible for this tragedy? Krueger points to three actions by City of Algoma police officers which he claims violated his civil rights and caused his suicide attempt. None of these actions, however, were so outside the scope of a reasonable exercise of police authority to amount to a constitutional violation.\nFirst, Krueger contends that there is a question of fact whether his arrest by Officer Haltaufderheid the night before the suicide attempt was an unlawful arrest. The county judge who considered the citation issued to Krueger found that he was arrested without cause in violation of section 968.07, Wisconsin Statutes. But this conclusion is not dispositive in assessing the constitutionality of the police officers’ actions. The Supreme Court instructs that a district court should assess the constitutionality of an alleged unlawful arrest by determining whether any reasonable police officer could have found probable cause to arrest. Hunter v. Bryant, — U.S. -, -, 112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991). If so, the police officer is shielded from liability by the principle of qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (police officers are entitled to qualified immunity for allegations of unlawful arrest if reasonable police officers could disagree whether there was probable cause to make the arrest).\nThe district court found that because Krueger stuck his head out of the window and yelled “[w]hy don’t you direct that G- D-traffic?” there was a sufficient basis “to find that Officer Haltaufderheid was qualifiedly immune based on his reasonable belief that probable cause existed for the ordinance violation of provoking a disturbance or disrupting good order.” The district court proceeds to note: “The subsequent acts flowing from the stop also support Officer Haltaufderheid’s qualified immunity. Todd Krueger, himself, admits that he had been drinking and that he was underage. His blood alcohol level tested at .08 percent.” We agree with the district court. As a matter of law, a police officer could have reasonably believed he had probable cause to arrest under such circumstances.\nNext, Krueger claims that Officer Zahn illegally arrested him at the Bruemerville Dam. He posits that Officer Zahn should not have arrested him after observing him speeding and disobeying traffic signals. Again, we must determine whether any reasonable police officer could have concluded that there was probable cause for arrest under such circumstances. Obviously, police officers have probable cause to arrest in light of such flagrant traffic violations. The propriety of the arrest is confirmed by the fact that Krueger pointed a gun at Officer Zahn after the stop. Because of his behavior, Krueger was a danger not only to himself but the community. Officer Zahn certainly had constitutional discretion to arrest.\nKrueger’s theory that the arrest was improper is partly based on his belief that because his father advised the police that his son should not be approached until the father had a chance to talk with him, the police were required to follow this advice. Police officers, however, do not commit constitutional violations by failing to follow the tactical advice of non-police officers. Police officers have discretion to arrest even in contravention of such advice. Officer Zahn had good reasons to arrest Krueger.\nFinally, Krueger argues that Chief DeQuaine violated his constitutional rights by failing to properly train and supervise his officers. Although his brief does not clearly state his legal theory on this point, apparently Krueger believes that Chief DeQuaine should have instructed the Algoma police officers not to arrest him on the occasions when they reasonably believed he was violating the law. Of course, no police chief is under a constitutional obligation to give such an order. Somehow tied to this theory is Krueger’s complaint that the police department violated his rights by releasing him into his mother’s custody after he had made a suicide threat. Apparently, Krueger believes that Chief DeQuaine had a responsibility to establish a departmental policy against such releases. The district court noted the inconsistency of Krueger’s position in this regard: on the one hand he claims the officers violated his constitutional rights by arresting him, and on the other hand he claims that they did so by releasing him. In any event, Officer Haltaufderheid’s release of Krueger into his mother’s custody was patently reasonable under the circumstances, and did not come close to breaching his constitutional rights.\nIII. Conclusion\nBecause reasonable police officers could have found probable cause to arrest Krueger, the individual officers are qualifiedly immune from suit. Because Krueger fails to demonstrate that the individual police officers did anything wrong, he also fails to demonstrate that Chief DeQuaine violated the Constitution by failing to train or supervise the officers in his command. Finally, Krueger has not presented any evidence that the City of Algoma engaged in unconstitutional practices or policies subjecting it up to liability. Therefore, the judgment of the district court is\nAFFIRMED.", "type": "majority", "author": "MANION, Circuit Judge."}], "attorneys": ["Thomas 0. Schultz (submitted), Green Bay, WI, for plaintiff-appellant.", "Raymond J. Pollen, Mark A. McClendon, Riordan, Crivello, Carlson, Mentkowski & Steeves, Milwaukee, WI, Timothy J. Stratt-ner, Amy J. Ringenoldus, Schellinger & Doyle, Brookfield, WI, Gregg T. Heidenreich, Milwaukee, WI, for defendants-appellees."], "corrections": "", "head_matter": "Todd KRUEGER, Plaintiff-Appellant, v. CITY OF ALGOMA, WISCONSIN, Police Department, City of Algoma, Marvin DeQuaine, individually and as the Chief of Police of the City of Algoma Police Department, et al., Defendants-Appellees.\nNo. 92-2742.\nUnited States Court of Appeals, Seventh Circuit.\nSubmitted Feb. 26, 1993.\nDecided July 28, 1993.\nThomas 0. Schultz (submitted), Green Bay, WI, for plaintiff-appellant.\nRaymond J. Pollen, Mark A. McClendon, Riordan, Crivello, Carlson, Mentkowski & Steeves, Milwaukee, WI, Timothy J. Stratt-ner, Amy J. Ringenoldus, Schellinger & Doyle, Brookfield, WI, Gregg T. Heidenreich, Milwaukee, WI, for defendants-appellees.\nBefore BAUER, Chief Judge, and FLAUM and MANION, Circuit Judges."}	BAUER	FLAUM	MANION	1	1	1	0	0	0	1 F.3d 537	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Todd KRUEGER, Plaintiff-Appellant, v. CITY OF ALGOMA, WISCONSIN, Police Department, City of Algoma, Marvin DeQuaine, individually and as the Chief of Police of the City of Algoma Police Department, et al., Defendants-Appellees\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-28\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nMANION, Circuit Judge.\nTodd Krueger attempted suicide the day after a City of Algoma police officer arrested him for disorderly conduct. He sued the City of Algoma and several police officers, claiming they violated his civil rights by arresting him and that the alleged violations somehow caused his suicide attempt. The district court granted summary judgment and we affirm.\nI. Facts\nIn 1988, the City of Algoma faced an epidemic of underage drinking. Todd Krueger, then a senior at the local high school, had been cited at least five times. On two of those occasions he required medical treatment. On December 20, 1988, Krueger attended a high school basketball game. As he was leaving the parking lot after the game he hung out of the passenger window of the car he was in and yelled to Officer Todd Haltauf-derheid, who was directing traffic, “[w]hy don’t you direct that G- D- traffic?” Officer Haltaufderheid got into his police car and tracked down the vehicle in which Krueger was a passenger. As he approached the vehicle, he noticed Krueger in the passenger seat attempting to put on a seat belt. Officer Haltaufderheid instructed Krueger to step out of the car, and he refused. He noticed that Krueger’s eyes were red and that he emitted a strong odor of alcohol. Officer Haltaufderheid then reached into the car, grabbed Krueger by the arm, and assisted him out. The car in which Krueger was riding then sped away, and Officer Haltauf-derheid questioned Krueger. Officer Hal-taufderheid believed he had probable cause to cite Krueger for underage drinking and disorderly conduct. However, he issued only an underage drinking citation and took Krueger to the Algoma police station.\nWhile at the police station, Krueger told Officer Haltaufderheid that “If I get this ticket, you’ll be reading about me in the obituaries tomorrow.” When Krueger’s mother came to pick him up at the police station, Officer Haltaufderheid told her of the suicide threat, and he recommended that she seek treatment for her son. Officer Haltauf-derheid then released Krueger into his mother’s custody. She did not act on Officer Haltaufderheid’s suggestion. Instead, she and her son went home.\nThe next morning, Krueger took his father’s shotgun and left his house before his parents awoke. When the parents later realized he was missing, Krueger’s mother told his father of the events of the previous night. Krueger’s father then went to the police station to report that his son and his shotgun were missing from the family home. He suggested to Chief Marvin DeQuaine that no police officer should have contact with his son until he (the father) had been called to calm him down. At Chief DeQuaine’s request, Officer Arnold Zahn typed a “Missing Person” report which noted Krueger’s suicide comment.\nLater that morning, Officer Zahn saw a car speeding and disobeying traffic signals in the city of Algoma. Officer Zahn gave chase; he did not know at the time that Krueger was driving the car. When Krueger noticed that Officer Zahn had activated his siren and flashing lights, he “accelerated hard” in an attempt to flee. Krueger continued to flee at high speed until he reached the Bruemerville Dam. Once there, he got out of his car-brandishing the shotgun he had taken from his house. He pointed the gun at' Officer Zahn, who ducked behind his car. Officer Zahn warned Krueger to put down the gun. He then heard a shot.- When Officer Zahn looked around the car which was shielding him, he saw Krueger laying on the ground bleeding from the chest. Krueger had attempted suicide. He survived but with major injuries.\nThe City of Algoma prosecuted Krueger for the underage drinking citation. In an apparent mistake, the citation had been issued for “procuring or attempting to procure alcoholic beverages” instead of underage drinking. The county judge dismissed the case on August 24, 1989 noting that the real charge — underage consumption of alcohol— was not on the face of the citation. The judge also considered Officer Haltaufder-heid’s allegations that Krueger treated him with disrespect leading up to the arrest. The judge admonished Krueger for the disrespect, but found that Krueger’s behavior did not provide an independent cause for the arrest.\nOn December 1, 1989, Krueger filed his complaint in this case, alleging that the police officers and the City of Algoma violated his constitutional rights by harassing and arresting him, and that the violations caused his suicide attempt. The district court granted summary judgment in favor of the defendants, concluding that Krueger failed to support his claimed constitutional violations. Krueger makes three arguments on appeal: 1) that Officer Haltaufderheid illegally arrested him on December 20, 1988; 2) that Officer Zahn engaged him in a wrongful pursuit in contravention of an alleged order from Chief DeQuaine; and 3) that Chief DeQuaine failed to train and supervise his officers properly.\nII. Analysis\nThe district court began its order granting summary judgment by noting that “[tjhere comes a point when human beings must be required to accept responsibility for then-voluntary actions rather than being, permitted to impose legal liability or moral blame on other individuals or on society in general.” It is tragic when an 18-year-old attempts suicide. But who is responsible for this tragedy? Krueger points to three actions by City of Algoma police officers which he claims violated his civil rights and caused his suicide attempt. None of these actions, however, were so outside the scope of a reasonable exercise of police authority to amount to a constitutional violation.\nFirst, Krueger contends that there is a question of fact whether his arrest by Officer Haltaufderheid the night before the suicide attempt was an unlawful arrest. The county judge who considered the citation issued to Krueger found that he was arrested without cause in violation of section 968.07, Wisconsin Statutes. But this conclusion is not dispositive in assessing the constitutionality of the police officers’ actions. The Supreme Court instructs that a district court should assess the constitutionality of an alleged unlawful arrest by determining whether any reasonable police officer could have found probable cause to arrest. Hunter v. Bryant, — U.S. -, -, 112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991). If so, the police officer is shielded from liability by the principle of qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (police officers are entitled to qualified immunity for allegations of unlawful arrest if reasonable police officers could disagree whether there was probable cause to make the arrest).\nThe district court found that because Krueger stuck his head out of the window and yelled “[w]hy don’t you direct that G- D-traffic?” there was a sufficient basis “to find that Officer Haltaufderheid was qualifiedly immune based on his reasonable belief that probable cause existed for the ordinance violation of provoking a disturbance or disrupting good order.” The district court proceeds to note: “The subsequent acts flowing from the stop also support Officer Haltaufderheid’s qualified immunity. Todd Krueger, himself, admits that he had been drinking and that he was underage. His blood alcohol level tested at .08 percent.” We agree with the district court. As a matter of law, a police officer could have reasonably believed he had probable cause to arrest under such circumstances.\nNext, Krueger claims that Officer Zahn illegally arrested him at the Bruemerville Dam. He posits that Officer Zahn should not have arrested him after observing him speeding and disobeying traffic signals. Again, we must determine whether any reasonable police officer could have concluded that there was probable cause for arrest under such circumstances. Obviously, police officers have probable cause to arrest in light of such flagrant traffic violations. The propriety of the arrest is confirmed by the fact that Krueger pointed a gun at Officer Zahn after the stop. Because of his behavior, Krueger was a danger not only to himself but the community. Officer Zahn certainly had constitutional discretion to arrest.\nKrueger’s theory that the arrest was improper is partly based on his belief that because his father advised the police that his son should not be approached until the father had a chance to talk with him, the police were required to follow this advice. Police officers, however, do not commit constitutional violations by failing to follow the tactical advice of non-police officers. Police officers have discretion to arrest even in contravention of such advice. Officer Zahn had good reasons to arrest Krueger.\nFinally, Krueger argues that Chief DeQuaine violated his constitutional rights by failing to properly train and supervise his officers. Although his brief does not clearly state his legal theory on this point, apparently Krueger believes that Chief DeQuaine should have instructed the Algoma police officers not to arrest him on the occasions when they reasonably believed he was violating the law. Of course, no police chief is under a constitutional obligation to give such an order. Somehow tied to this theory is Krueger’s complaint that the police department violated his rights by releasing him into his mother’s custody after he had made a suicide threat. Apparently, Krueger believes that Chief DeQuaine had a responsibility to establish a departmental policy against such releases. The district court noted the inconsistency of Krueger’s position in this regard: on the one hand he claims the officers violated his constitutional rights by arresting him, and on the other hand he claims that they did so by releasing him. In any event, Officer Haltaufderheid’s release of Krueger into his mother’s custody was patently reasonable under the circumstances, and did not come close to breaching his constitutional rights.\nIII. Conclusion\nBecause reasonable police officers could have found probable cause to arrest Krueger, the individual officers are qualifiedly immune from suit. Because Krueger fails to demonstrate that the individual police officers did anything wrong, he also fails to demonstrate that Chief DeQuaine violated the Constitution by failing to train or supervise the officers in his command. Finally, Krueger has not presented any evidence that the City of Algoma engaged in unconstitutional practices or policies subjecting it up to liability. Therefore, the judgment of the district court is\nAFFIRMED.\n[END_CASE]", "role": "user" } ]
10,512,446	EVANSTON HOSPITAL, Plaintiff-Appellant, v. Robert V. HAUCK, Louis W. Sullivan, Secretary of the United States Department of Health and Human Services, Phillip Bradley, Director of Illinois Department of Public Aid, et al., Defendants-Appellees	Evanston Hospital v. Hauck	1993-07-30	No. 92-3551	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before BAUER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges."], "parties": ["EVANSTON HOSPITAL, Plaintiff-Appellant, v. Robert V. HAUCK, Louis W. Sullivan, Secretary of the United States Department of Health and Human Services, Phillip Bradley, Director of Illinois Department of Public Aid, et al., Defendants-Appellees."], "opinions": [{"text": "CUMMINGS, Circuit Judge.\nAfter coming in contact with a live electrical wire, Robert V. Hauck landed in Evans-ton Hospital and stayed there for more than a year, running up a bill of $270,760.24. He could not pay it and apparently did not have private health insurance to pay it for him. The hospital decided to accept partial reimbursement of $113,424 from Medicaid, the government-run health care insurance program for indigents, which in Illinois is administered by the state Department of Public Aid (“IDPA”). The hospital’s acceptance of the money from. Medicaid was conditioned on the understanding that it would be payment in full — whatever claims the hospital might have had against Hauck were relinquished to IDPA. Then Hauck won a $9.6 million judgment in a lawsuit stemming from his accident. Hauck’s newfound wealth caused Ev-anston Hospital to regret the deal it had made with Medicaid. The hospital now wants to give back to IDPA the $113,424 it earlier accepted as payment in full so that it can sue Hauck for the $270,760.24 it originally sought. The hospital attempts to justify reneging on its agreement with IDPA by claiming that Illinois law is in conflict with federal law. It isn’t. The district court dismissed the hospital’s suit for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and we affirm.\nUnder Illinois law, when Medicaid pays money to a hospital on behalf of an individual, it “shall constitute payment in full for the goods or services covered thereby. Acceptance of the payment by or on behalf of the vendor [hospital] shall bar him from obtaining, or attempting to obtain, additional payment therefor from the recipient or any other person.” 305 ILCS 5/11-13. The Illinois Administrative Code states the rule explicitly: “The provider [hospital] shall agree to * * * [A]ccept as payment in full the amounts established by [IDPA] * * Ill.Admin.Code tit. 89, § 140.12(h) (1993).\nEvanston Hospital first argues that by refusing to accept its offer of a refund, IDPA has forced the hospital to abandon its lien on Hauck’s property. But Evanston Hospital was not “forced” to abandon its right to sue Hauck; no one coerced the hospital into cashing a $113,424 check from the taxpayers as partial reimbursement for Hauck’s medical bills. Rather, the hospital could have simply forsaken Medicaid and taken its chances that Hauck would somehow come up with the money to pay the bills himself. By opting for reimbursement from Medicaid, Evanston Hospital bought certainty. It purchased a guarantee of partial payment in lieu of possibly full payment or possibly no payment at all. Risk-averse companies that are owed money (or which do not want the hassle) make this same deal all the time with collection agencies — something secure is traded for a crack at a higher sum. Evanston Hospital wants out of its agreement with Medicaid now only because its gamble, in retrospect, was unwise.\nEvanston Hospital’s position would not be so far-fetched if it could prove that its contract with IDPA were somehow invalid— say, if it were against public policy. Thus plaintiff argues that Illinois law and procedures regarding Medicaid conflict with federal law, are invalid and should not be enforced. As best we can discern from the hospital’s briefs and from the position taken by counsel at oral argument, Medicaid must be the payor of last resort; that is, Medicaid can only pay a medical bill when every other possible source has been exhausted. Here, since it was later determined that Hauck himself could pay because of his multi-million dollar tort judgment, IDPA should not have reimbursed Evanston Hospital. And if IDPA should never have paid Evanston Hospital, then of course there is no harm in allowing the hospital to refund IDPA’s money so that it can sue Hauek. In plaintiffs view, the Illinois law requiring hospitals to accept money from Medicaid only as full and final payment is in conflict with the federal requirement that Medicaid be the payor of last resort. It posits that the only way to resolve the conflict is to rewrite the Illinois Medicaid law — by reinterpreting the phrase “any other person” to exclude third parties — to allow hospitals and other providers to go after proceeds from tortfeasors even after the providers have accepted government reimbursement.\nThe logic behind this argument is elusive. First, the federal statutes cited by the hospital do not actually say that Medicaid must be the payor of last resort. Indeed, at no point in the law governing Medicaid are states directed not to pay for services where the patient is or may be entitled to payments by a third party. Plaintiff, for example, cites 42 U.S.C. § 1396b(o), but this provision only says that a state should not pay medical bills where a private insurer would normally be responsible except for a clause in the insurance contract excusing the company’s obligations if the government will pay .instead. This provision is merely designed to keep insurance companies from shifting responsibility onto the government by contractual fiat, and is utterly inapplicable to these circumstances where Hauck did not even have private insurance. Evanston Hospital’s brief cites other-administrative commentaries but these are similarly beside the point.\nIn any event, Medicaid was the payor of last resort at the time Hauck’s medical bills came due. Hauek was released from the hospital on November 14, 1986. It was not until December of 1991 that Hauck prevailed on his tort claim. When IDPA agreed to pay $113,424 for Hauck’s care and Evanston Hospital agreed to accept that sum as total payment, Hauck’s $9.6 million award was merely a gleam in the eye of a personal injury lawyer. Even if there were a payor-of-last-resort requirement in Medicaid law, it could not have the meaning plaintiff proposes because there will always be some possibility that an indigent patient will emerge victorious in a future lawsuit, win the lottery, strike gold, or land a good job and save some money. Under plaintiffs reading of Medicaid law, no state administrative agency could ever qualify as a Medicaid payor of last resort because alternative sources of reimbursement might later emerge.\nMore to the point, Evanston Hospital misconstrues the notion of what it means to be a payor of last resort. To the extent such a concept is implicit in the federal statute, it means that the government itself should not be stuck paying medical bills when another source is available, not that hospitals and doctors should reap a windfall at the government’s expense. Thus both federal and Illinois law agree that once Medicaid has paid for medical services, IDPA is obliged to vigorously pursue any third party who might bear some legal responsibility for footing the bill. Under federal law, a state must:\ntake all reasonable measures to ascertain the legal liability of third parties (including health insurers) to pay for care and services available under the plan * * * [and] in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the cost of such recovery, the State or local agency mil seek reimbursement for such assistance to the extent of such legal liability.\n42 U.S.C. § 1396a(a)(25)(A)-(B) (emphasis added). The statute does not say anything about turning over this right of reimbursement to the hospitals and doctors who have already received some compensation for their services. Again, Congress’ intent that state Medicaid agencies, not hospitals or doctors, seek reimbursement from third parties is evident in another section of the Medicaid statute that requires indigent recipients of benefits to assign to the government whatever rights they might have in payment for medical care from other sources. 42 U.S.C. §§ 1396a(a)(45) and 1396k(a). If this- arrangement is not acceptable to doctors and hospitals, they should not take Medicaid money in the first instance.\nPlaintiffs assertion that states may not condition Medicaid disbursements on the understanding that payments are full and final is directly contradicted by the federal statute: “[I]n the case of an individual who is entitled to medical assistance under the State plan with respect to a service for which a third party is liable for payment, the person furnishing the services may not seek to collect from the individual (or any financially responsible relative or representative of that individual) payment of any amount for that service * * *.” 42 U.S.C. § 1396a(a)(25)(C). What Evanston Hospital seeks, then, is to turn Medicaid upside down by converting the system into an insurance program for hospitals rather than for indigent patients. It wants to be reimbursed when the patient is indigent and still retain the right to sue patients who later become solvent — a classic example of wanting to both have and eat cake. The Medicaid system would go bankrupt in short order under this scenario because hospitals would have every incentive to capture as much government money as they could without regard for the probabilities of collecting reimbursement from the private party.\nHauck also received a few thousand dollars worth of out-patient services after his release from Evanston Hospital which were paid for not by Medicaid but by Medicare, the federally run health care insurance program for the elderly and disabled. The Medicare law, unlike the Medicaid statute, forbids payment where a third party can reasonably be expected to make prompt payment. 42 U.S.C. § 1395y(b)(2). This is known as the Medicare Secondary Payer provision. Like Medicaid, however, once the government has paid, the hospital or doctor accepting the money agrees to abandon all rights to further payment. Rybicki v. Hartley, 792 F.2d 260, 262 (1st Cir.1986). The Medicare Secondary Payer provision is intended to keep the government from paying a medical bill where it is clear an insurance company will pay instead. Id. The point is not to give doctors and hospitals an ongoing right to return Medicare’s money when it becomes expedient. Here again, Evanston Hospital alleges that Medicare should not have paid Hauck’s bill in the first instance because his lawsuit assured there would be future third-party payment. And if Medicare should not have paid the bill to begin with, Evanston Hospital contends there would be no harm in allowing it to refund the money to the government so that it can sue Hauck personally. The Medicare Secondary Payer provision does not apply in these circumstances, however, because a tort judgment five years in the future can in no sense be considered the kind of certain, prompt third-party payment Congress had in mind when it wrote the Medicare statute.\nThere is recourse against Hauck for the cost of his care, but the recourse belongs to the government, not to Evanston Hospital. It is true that under our decision today Hauck receives a windfall equal to the value of the medical care he received but for which the government did not pay. But someone was bound to receive a windfall in these circumstances, and Congress decided it should be the recipient of medical care, not the hospital.\nThe district court’s judgment is affirmed.\n. This provision used to be numbered as Ill.Rev. Stat.1991, ch. 23, § 11-13.\n. The parties dispute how much the hospital billed Medicare and how much the program paid. The amounts are not significant to our resolution of the issues in the case, although the Secretary of Health and Human Services contends that Medicare, which pays by the service rendered rather than the hospital's billing rate, actually paid Evanston Hospital more than requested because of the program's fixed reimbursement scheme.", "type": "majority", "author": "CUMMINGS, Circuit Judge."}], "attorneys": ["Ronald J. Hennings, Raymond E. Clutts, Paul A. Grabowski (argued) and Leonard D. Saphire-Bernstein, Grabowski & Clutts, Ev-anston, IL, for plaintiff-appellant.", "Thomas A. Demetrio, Michael G. Mahoney (argued), Corboy & Demetrio; Shirley M. Michaelson (argued), Dept, of Health and Human Services, Region V, Office of the Gen. Counsel; Michele M. Fox, Asst. U.S. Atty., Office of the U.S. Atty., Civ. Div., Appellate Section; and James C. O’Connell, Asst. Atty. Gen., David Adler (argued) and William 0. Arnold, III, Office of the Atty. Gen., Chicago, IL, for defendants-appellees."], "corrections": "", "head_matter": "EVANSTON HOSPITAL, Plaintiff-Appellant, v. Robert V. HAUCK, Louis W. Sullivan, Secretary of the United States Department of Health and Human Services, Phillip Bradley, Director of Illinois Department of Public Aid, et al., Defendants-Appellees.\nNo. 92-3551.\nUnited States Court of Appeals, Seventh Circuit.\nArgued May 7, 1993.\nDecided July 30, 1993.\nRonald J. Hennings, Raymond E. Clutts, Paul A. Grabowski (argued) and Leonard D. Saphire-Bernstein, Grabowski & Clutts, Ev-anston, IL, for plaintiff-appellant.\nThomas A. Demetrio, Michael G. Mahoney (argued), Corboy & Demetrio; Shirley M. Michaelson (argued), Dept, of Health and Human Services, Region V, Office of the Gen. Counsel; Michele M. Fox, Asst. U.S. Atty., Office of the U.S. Atty., Civ. Div., Appellate Section; and James C. O’Connell, Asst. Atty. Gen., David Adler (argued) and William 0. Arnold, III, Office of the Atty. Gen., Chicago, IL, for defendants-appellees.\nBefore BAUER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges."}	BAUER	CUMMINGS	EASTERBROOK	1	1	1	0	0	0	1 F.3d 540	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: EVANSTON HOSPITAL, Plaintiff-Appellant, v. Robert V. HAUCK, Louis W. Sullivan, Secretary of the United States Department of Health and Human Services, Phillip Bradley, Director of Illinois Department of Public Aid, et al., Defendants-Appellees\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-30\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCUMMINGS, Circuit Judge.\nAfter coming in contact with a live electrical wire, Robert V. Hauck landed in Evans-ton Hospital and stayed there for more than a year, running up a bill of $270,760.24. He could not pay it and apparently did not have private health insurance to pay it for him. The hospital decided to accept partial reimbursement of $113,424 from Medicaid, the government-run health care insurance program for indigents, which in Illinois is administered by the state Department of Public Aid (“IDPA”). The hospital’s acceptance of the money from. Medicaid was conditioned on the understanding that it would be payment in full — whatever claims the hospital might have had against Hauck were relinquished to IDPA. Then Hauck won a $9.6 million judgment in a lawsuit stemming from his accident. Hauck’s newfound wealth caused Ev-anston Hospital to regret the deal it had made with Medicaid. The hospital now wants to give back to IDPA the $113,424 it earlier accepted as payment in full so that it can sue Hauck for the $270,760.24 it originally sought. The hospital attempts to justify reneging on its agreement with IDPA by claiming that Illinois law is in conflict with federal law. It isn’t. The district court dismissed the hospital’s suit for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and we affirm.\nUnder Illinois law, when Medicaid pays money to a hospital on behalf of an individual, it “shall constitute payment in full for the goods or services covered thereby. Acceptance of the payment by or on behalf of the vendor [hospital] shall bar him from obtaining, or attempting to obtain, additional payment therefor from the recipient or any other person.” 305 ILCS 5/11-13. The Illinois Administrative Code states the rule explicitly: “The provider [hospital] shall agree to * * * [A]ccept as payment in full the amounts established by [IDPA] * * Ill.Admin.Code tit. 89, § 140.12(h) (1993).\nEvanston Hospital first argues that by refusing to accept its offer of a refund, IDPA has forced the hospital to abandon its lien on Hauck’s property. But Evanston Hospital was not “forced” to abandon its right to sue Hauck; no one coerced the hospital into cashing a $113,424 check from the taxpayers as partial reimbursement for Hauck’s medical bills. Rather, the hospital could have simply forsaken Medicaid and taken its chances that Hauck would somehow come up with the money to pay the bills himself. By opting for reimbursement from Medicaid, Evanston Hospital bought certainty. It purchased a guarantee of partial payment in lieu of possibly full payment or possibly no payment at all. Risk-averse companies that are owed money (or which do not want the hassle) make this same deal all the time with collection agencies — something secure is traded for a crack at a higher sum. Evanston Hospital wants out of its agreement with Medicaid now only because its gamble, in retrospect, was unwise.\nEvanston Hospital’s position would not be so far-fetched if it could prove that its contract with IDPA were somehow invalid— say, if it were against public policy. Thus plaintiff argues that Illinois law and procedures regarding Medicaid conflict with federal law, are invalid and should not be enforced. As best we can discern from the hospital’s briefs and from the position taken by counsel at oral argument, Medicaid must be the payor of last resort; that is, Medicaid can only pay a medical bill when every other possible source has been exhausted. Here, since it was later determined that Hauck himself could pay because of his multi-million dollar tort judgment, IDPA should not have reimbursed Evanston Hospital. And if IDPA should never have paid Evanston Hospital, then of course there is no harm in allowing the hospital to refund IDPA’s money so that it can sue Hauek. In plaintiffs view, the Illinois law requiring hospitals to accept money from Medicaid only as full and final payment is in conflict with the federal requirement that Medicaid be the payor of last resort. It posits that the only way to resolve the conflict is to rewrite the Illinois Medicaid law — by reinterpreting the phrase “any other person” to exclude third parties — to allow hospitals and other providers to go after proceeds from tortfeasors even after the providers have accepted government reimbursement.\nThe logic behind this argument is elusive. First, the federal statutes cited by the hospital do not actually say that Medicaid must be the payor of last resort. Indeed, at no point in the law governing Medicaid are states directed not to pay for services where the patient is or may be entitled to payments by a third party. Plaintiff, for example, cites 42 U.S.C. § 1396b(o), but this provision only says that a state should not pay medical bills where a private insurer would normally be responsible except for a clause in the insurance contract excusing the company’s obligations if the government will pay .instead. This provision is merely designed to keep insurance companies from shifting responsibility onto the government by contractual fiat, and is utterly inapplicable to these circumstances where Hauck did not even have private insurance. Evanston Hospital’s brief cites other-administrative commentaries but these are similarly beside the point.\nIn any event, Medicaid was the payor of last resort at the time Hauck’s medical bills came due. Hauek was released from the hospital on November 14, 1986. It was not until December of 1991 that Hauck prevailed on his tort claim. When IDPA agreed to pay $113,424 for Hauck’s care and Evanston Hospital agreed to accept that sum as total payment, Hauck’s $9.6 million award was merely a gleam in the eye of a personal injury lawyer. Even if there were a payor-of-last-resort requirement in Medicaid law, it could not have the meaning plaintiff proposes because there will always be some possibility that an indigent patient will emerge victorious in a future lawsuit, win the lottery, strike gold, or land a good job and save some money. Under plaintiffs reading of Medicaid law, no state administrative agency could ever qualify as a Medicaid payor of last resort because alternative sources of reimbursement might later emerge.\nMore to the point, Evanston Hospital misconstrues the notion of what it means to be a payor of last resort. To the extent such a concept is implicit in the federal statute, it means that the government itself should not be stuck paying medical bills when another source is available, not that hospitals and doctors should reap a windfall at the government’s expense. Thus both federal and Illinois law agree that once Medicaid has paid for medical services, IDPA is obliged to vigorously pursue any third party who might bear some legal responsibility for footing the bill. Under federal law, a state must:\ntake all reasonable measures to ascertain the legal liability of third parties (including health insurers) to pay for care and services available under the plan * * * [and] in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the cost of such recovery, the State or local agency mil seek reimbursement for such assistance to the extent of such legal liability.\n42 U.S.C. § 1396a(a)(25)(A)-(B) (emphasis added). The statute does not say anything about turning over this right of reimbursement to the hospitals and doctors who have already received some compensation for their services. Again, Congress’ intent that state Medicaid agencies, not hospitals or doctors, seek reimbursement from third parties is evident in another section of the Medicaid statute that requires indigent recipients of benefits to assign to the government whatever rights they might have in payment for medical care from other sources. 42 U.S.C. §§ 1396a(a)(45) and 1396k(a). If this- arrangement is not acceptable to doctors and hospitals, they should not take Medicaid money in the first instance.\nPlaintiffs assertion that states may not condition Medicaid disbursements on the understanding that payments are full and final is directly contradicted by the federal statute: “[I]n the case of an individual who is entitled to medical assistance under the State plan with respect to a service for which a third party is liable for payment, the person furnishing the services may not seek to collect from the individual (or any financially responsible relative or representative of that individual) payment of any amount for that service * * *.” 42 U.S.C. § 1396a(a)(25)(C). What Evanston Hospital seeks, then, is to turn Medicaid upside down by converting the system into an insurance program for hospitals rather than for indigent patients. It wants to be reimbursed when the patient is indigent and still retain the right to sue patients who later become solvent — a classic example of wanting to both have and eat cake. The Medicaid system would go bankrupt in short order under this scenario because hospitals would have every incentive to capture as much government money as they could without regard for the probabilities of collecting reimbursement from the private party.\nHauck also received a few thousand dollars worth of out-patient services after his release from Evanston Hospital which were paid for not by Medicaid but by Medicare, the federally run health care insurance program for the elderly and disabled. The Medicare law, unlike the Medicaid statute, forbids payment where a third party can reasonably be expected to make prompt payment. 42 U.S.C. § 1395y(b)(2). This is known as the Medicare Secondary Payer provision. Like Medicaid, however, once the government has paid, the hospital or doctor accepting the money agrees to abandon all rights to further payment. Rybicki v. Hartley, 792 F.2d 260, 262 (1st Cir.1986). The Medicare Secondary Payer provision is intended to keep the government from paying a medical bill where it is clear an insurance company will pay instead. Id. The point is not to give doctors and hospitals an ongoing right to return Medicare’s money when it becomes expedient. Here again, Evanston Hospital alleges that Medicare should not have paid Hauck’s bill in the first instance because his lawsuit assured there would be future third-party payment. And if Medicare should not have paid the bill to begin with, Evanston Hospital contends there would be no harm in allowing it to refund the money to the government so that it can sue Hauck personally. The Medicare Secondary Payer provision does not apply in these circumstances, however, because a tort judgment five years in the future can in no sense be considered the kind of certain, prompt third-party payment Congress had in mind when it wrote the Medicare statute.\nThere is recourse against Hauck for the cost of his care, but the recourse belongs to the government, not to Evanston Hospital. It is true that under our decision today Hauck receives a windfall equal to the value of the medical care he received but for which the government did not pay. But someone was bound to receive a windfall in these circumstances, and Congress decided it should be the recipient of medical care, not the hospital.\nThe district court’s judgment is affirmed.\n. This provision used to be numbered as Ill.Rev. Stat.1991, ch. 23, § 11-13.\n. The parties dispute how much the hospital billed Medicare and how much the program paid. The amounts are not significant to our resolution of the issues in the case, although the Secretary of Health and Human Services contends that Medicare, which pays by the service rendered rather than the hospital's billing rate, actually paid Evanston Hospital more than requested because of the program's fixed reimbursement scheme.\n[END_CASE]", "role": "user" } ]
10,512,486	John GOULD, Plaintiff-Appellant, v. ARTISOFT, INCORPORATED, Defendant-Appellee	Gould v. Artisoft, Inc.	1993-07-30	No. 92-2419	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before POSNER and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge."], "parties": ["John GOULD, Plaintiff-Appellant, v. ARTISOFT, INCORPORATED, Defendant-Appellee."], "opinions": [{"text": "ILANA DIAMOND ROVNER, Circuit Judge.\nIn this diversity action, John Gould alleges that Artisoft, Incorporated (“Artisoft”) breached his employment contract. The district court dismissed Gould’s complaint, concluding that he had failed to satisfy a condition precedent and, alternatively, that the contract failed for lack of consideration. Because we find that Gould sufficiently alleged the formation of a valid contract supported by adequate consideration, we reverse and remand for further proceedings.\nI. FACTS\nIn reviewing this grant of a motion to dismiss, we consider only the well-pleaded factual allegations of Gould’s second amended complaint and any reasonable inferences that might be drawn therefrom. See Mid Am. Title Co. v. Kirk, 991 F.2d 417, 419 (7th Cir.1993).\nArtisoft, which distributes computer hardware and software products, hired John Gould in January 1991 to assemble and coordinate its nationwide sales force. In July of that year, Artisoft’s Vice President of Sales and Marketing, David Hallmen, sent Gould a written offer to be Artisoft’s Director of Sales. After making handwritten changes to Artisoft’s offer, Gould signed the agreement on July 15, 1991, and Artisoft accepted Gould’s proposed modifications in the last week of July. Under the terms of the agreement, Gould was to assume his new position on or before July 29, 1991, but until then, he was to remain in his previous position.\nAs a condition of his employment, the contract required Gould to execute “the enclosed nondisclosure and noncompetition agreement.” (Gould App. Ex. F, at 6.) But no such agreement accompanied the written offer, nor did Artisoft tender such an agreement for Gould’s signature prior to his termination. The contract provided for a three-month probationary period during which Ar-tisoft would evaluate Gould’s performance in his new position. At the end of the probationary period, either Gould or Artisoft could terminate the agreement if it became apparent that the arrangement was not mutually beneficial. The contract also contemplated that Gould would relocate to Tucson, Arizona, that Artisoft would pay the cost of his relocation, and that Artisoft would extend a bridge loan to facilitate Gould’s purchase of a home in Tucson. If Gould were to resign from Artisoft within one year, however, he would be required to reimburse Artisoft for his relocation expenses. The contract further provided that in addition to his annual salary, Gould was to receive fifty shares of Artisoft stock.\nWhen the parties executed the contract, Artisoft was a privately-held Arizona corporation. Plans were in the works, however, to make an initial public offering of Artisoft stock, and in anticipation of that offering, Artisoft was reincorporated in Delaware. On July 26, 1991, the fifty shares of stock referenced in the agreement were canceled and converted to 10,000 shares of the reincorporated Delaware corporation.\nArtisoft terminated Gould’s employment on August 7, 1991, less than two weeks after he assumed his new position with the company. The record does not reveal the reason, if any, for Gould’s termination. Gould alleges that by the time he was terminated he already had begun “making the necessary arrangements to move and reside in Tucson, Arizona.” (Gould App. Ex. F, at 4; see also id. at 2.)\nAfter his termination, Gould sued Artisoft in the Circuit Court of Cook County, seeking specific performance of Artisoft’s promise to provide fifty shares of stock. Gould asserted that he became entitled to the stock upon acceptance of Artisoft’s offer and that his right to the stock was unaffected by his termination. Gould also sought a preliminary injunction barring the public offering of Artisoft stock, which he claimed would diminish the value of his shares.\nArtisoft removed the action to federal court, and Gould responded with an emergency motion to remand, which the district court denied. The court found that the $50,-000 amount in controversy requirement for diversity jurisdiction had been satisfied because the value of the disputed stock in either a public or private sale was likely to exceed the jurisdictional amount.\nAfter the district court denied Gould’s motion for injunctive relief, Artisoft moved to dismiss the complaint, arguing that a condition precedent to the employment contract— execution of the noncompetition agreement — • had not been satisfied and that the contract lacked consideration. The district court granted Artisoft’s motion in an oral opinion, and Gould appeals.\nII. DISCUSSION\nA. Federal Jurisdiction\nWe first must consider whether the $50,000 amount in controversy requirement of 28 U.S.C. § 1332(a) has been satisfied. If not, we would be required to vacate the district court’s judgment and remand the action to state court. See Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir. 1993).\nOur recent decision in Shaw establishes the analytical framework for considering whether the amount in controversy meets the threshold for diversity jurisdiction in removal cases. We generally would determine that amount “by merely looking at plaintiffs state court complaint, along with the record as a whole.” Id. (citing Oglesby v. RCA Corp., 752 F.2d 272, 275, 278 (7th Cir.1985); Davenport v. Proctor & Gamble Mfg. Co., 241 F.2d 511, 513 (2d Cir.1957)). But here, as- in Shaw, Gould’s original complaint does not reveal the precise value of his claim, for he requested only specific performance of Arti-soft’s promise to tender the fifty shares. We have struggled before with the problem of determining the actual amount in controversy when plaintiffs request only declaratory or equitable relief. See, e.g., Jadair, Inc. v. Walt Keeler Co., 679 F.2d 131, 132 (7th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 258, 74 L.Ed.2d 201 (1982); McCarty v. Amoco Pipeline Co., 595 F.2d 389, 391-95 (7th Cir.1979). But here, it is clear that the shares of stock themselves are at issue and that the amount in controversy therefore depends on the value of those shares. See Sarnoff v. American Home Prod. Corp., 798 F.2d 1075, 1078 (7th Cir.1986) (amount in controversy equal to the present value of shares of stock allegedly due to the plaintiff over a ten-year period).\nBecause Artisoft invoked our jurisdiction by removing the case, it bears the burden of showing that the amount in controversy is sufficient. Shaw, 994 F.2d at 366; see also Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921). Sfhaw requires that Artisoft meet its burden by a preponderance of the evidence, which means “proof to a reasonable probability, that jurisdiction exists.” Shaw, 994 F.2d at 366 & n. 2; see. also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). We look to the facts that existed at the time of removal to determine our jurisdiction, for a plaintiff “may not manipulate the process” to defeat federal jurisdiction and force a remand once the case has been properly removed. Shaw, 994 F.2d at 368; see also id. at 368.\nGould argues that the jurisdictional amount was not satisfied here because nei- • ther the present nor the prospective value of the Artisoft stock could be ascertained. Instead, Gould contends that the stock’s value was speculative and therefore insufficient to establish jurisdiction. Like the district court, we reject the notion that the amount in controversy requirement can never be satisfied where stock with no ascertainable public market value is at issue. If the defendant can establish to a reasonable probability that the value of the stock in a private transaction would exceed the jurisdictional amount, that requirement is satisfied. See Cumming v. Johnson, 616 F.2d 1069, 1072 (9th Cir.1979).\nArtisoft attempted to satisfy its burden with a draft of the Prospectus it planned to issue in connection with the initial public offering of its stock. (R. 4, at Ex. B.) The draft Prospectus stated that the initial offering price would be between $11.50 and $13.50 per share, with a target price of $12.50 per share. Because Gould alleged an entitlement to 10,000 shares (after the conversion of his fifty shares pursuant to Artisoft’s reincorporation), his claim would be valued at between $115,000 and $135,000. We view that estimate as persuasive evidence of the value of the disputed shares at the time of removal, particularly because Gould presented no evidence to cast doubt on the accuracy of the estimated price range. Gould argued only that the share value was speculative and that the initial public offering was itself not a certainty. Yet the speculative nature of the estimated share price cannot defeat federal jurisdiction in the absence of evidence suggesting a significantly lesser value. And even if it was possible at the time of removal that the initial public offering would not occur, jurisdiction still was proper if Artisoft could show to a reasonable probability that the stock’s value in a private sale also would exceed $50,000. See Cumming, 616 F.2d at 1072. Absent evidence of a previous stock sale, the private sale value can be stated as the percentage of the total value of the company represented by Gould’s shares. The assets of the company as evidenced in the draft Prospectus, and therefore the company’s value in a private sale, support the district court’s conclusion that the amount in controversy exceeds the jurisdictional amount. In fact, Gould has not contested the district court’s conclusion to this effect. (See Sept. 4, 1991 Tr. at 14.) We therefore find that the district court properly exercised jurisdiction over Gould’s complaint.\nB. Dismissal of Gould’s Complaint\nHaving resolved the jurisdictional issue, we turn to the merits. We review the district court’s decision to dismiss Gould’s complaint de novo, accepting as true the complaint’s well-pleaded factual allegations and drawing all reasonable inferences in Gould’s favor. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992); Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991). We may affirm the dismissal of Gould’s complaint only if “it appears beyond doubt that [he] can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); see also Mid Am. Title Co., 991 F.2d at 419. The district court dismissed the complaint both because Gould had failed to satisfy a condition precedent to the employment contract and because the contract lacked adequate consideration.\n1. Condition Precedent\nAlthough the parties’ agreement provides that “[a]s a condition of employment, [Gould] will be required to sign the enclosed nondisclosure and noncompetition agreement,” (Gould App. Ex. F, at 6), Artisoft never provided a noncompetition agreement for Gould’s signature. The district court determined that without the signed noncom-petition agreement, no contract had been formed. (Feb. 28, 1992 Tr. at 6.) The court found that Artisoft’s failure to tender the agreement did not excuse satisfaction of the condition because it was “at least theoretically possible that Gould could have on his own tendered to the defendant a written promise not to disclose what he learned and not to compete.” (Id. at 7.) But this “theoretical possibility” is inconsistent with the plain language of the parties’ contract. By failing to tender a noncompetition agreement for Gould’s signature, Artisoft waived the condition that Gould execute such an agreement.\nUnder Illinois law, “[a] condition precedent is some act that must be performed or event that must occur before a contract becomes effective or before one party to an existing contract is obligated to perform.” Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Ins. Co., 962 F.2d 628, 633 (7th Cir.1992); see also Wasserman v. Autohaus on Edens, Inc., 202 Ill.App.3d 229, 147 Ill.Dec. 571, 576, 559 N.E.2d 911, 916 (1990); Grill v. Adams, 123 Ill.App.3d 913, 79 Ill.Dec. 342, 346, 463 N.E.2d 896, 900 (1984); Lyntel Products, Inc. v. Alcan Aluminum Corp., 107 Ill. App.3d 176, 63 Ill.Dec. 4, 7, 437 N.E.2d 653, 656 (1981). If the condition is not satisfied, then any obligations of the parties under their agreement are at an end. Cummings v. Beaton & Assocs., Inc., — Ill.App.3d -, -, 187 Ill.Dec. 701, 712, 618 N.E.2d 292, 303, (Ill.App.Ct.1992); Grill, 79 Ill.Dec. at 346, 463 N.E.2d at 900; Lyntel Products, 63 Ill.Dec. at 7, 437 N.E.2d at 656. However, “[c]onditions precedent may be waived when a party to a contract intentionally relinquishes a known right either expressly or by conduct indicating that strict compliance with the conditions is not required.” Hardin, Rodriguez & Boivin, 962 F.2d at 633; see also Quake Constr., Inc. v. American Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 323, 565 N.E.2d 990, 1005 (1990). For example, where satisfaction of the condition is within the sole control of one party, that party may not prevent satisfaction of the condition in order to escape its contractual obligations. Cummings, — Ill.App.3d at -, 187 Ill.Dec. at 712, 618 N.E.2d at 303; Wasserman, 147 Ill.Dec. at 578, 559 N.E.2d at 918; Grill, 79 Ill.Dec. at 346, 463 N.E.2d at 900; cf. Unit Trainship, Inc. v. Soo Line R.R. Co., 905 F.2d 160, 163 (7th Cir.1990) (“where a party’s obligation is subject to a condition precedent, a duty of good faith and fair dealing is imposed upon that party to cooperate and to not hinder the occurrence of the condition.”).\nThe contract here plainly states that Gould was required to sign the “enclosed nondisclosure and noncompetition agreement.” Use of the word “enclosed” placed the obligation on Artisoft to provide such an agreement for Gould’s signature, either with the contract or perhaps shortly thereafter. Yet, Artisoft did not provide a noncompetition agreement pri- or to Gould’s termination, and we do not believe that Gould was required to draft and execute his own agreement in light of the express contractual language. Artisoft thus waived satisfaction of the condition, and it may not rely on the failure of the condition precedent to escape its obligations.\n2. Consideration\nThe district court also dismissed Gould’s complaint because it found that the contract lacked consideration. Although it acknowledged that a promise for a promise can constitute consideration in an appropriate circumstance, the court concluded that “there is simply nothing that shows detriment to Gould which would constitute consideration.” (Feb. 28, 1992 Tr. at 7-8.) We disagree. Although Gould had not yet taken action to fulfill his promises when his employment was terminated, those promises nonetheless provide adequate consideration for the agreement.\nFirst, Gould promised to sign a noncom-petition agreement. That promise clearly involves a detriment in that it limits Gould’s future employment opportunities; it therefore constitutes adequate consideration despite the fact that the agreement had not been signed prior to Gould’s termination. Moreover, Gould promised to relocate to Tucson, Arizona. That too is a promise to incur a detriment and is adequate consideration for the contract even if Gould had yet to relocate.\nThese promises, given by Gould in exchange for Artisoft’s promise of employment and compensation in accordance with the terms of the contract, constitute adequate consideration under Illinois law. See Cohen v. Wood Bros. Steel Stamping Co., 175 Ill.App.3d 511, 124 Ill.Dec. 951, 953, 529 N.E.2d 1068, 1070 (1988); In re Estate of Parker, 171 Ill.App.3d 538, 121 Ill.Dec. 842, 846, 525 N.E.2d 1149, 1153 (1988) (“Mutual and concurrent promises are sufficient legal consideration for a contract.”); Anderson v. Vrahnos, 149 Ill.App.3d 251, 102 Ill.Dec. 488, 490, 500 N.E.2d 110, 112 (1986). The fact that these promises relate to future conduct and did not result in a present detriment does not invalidate the agreement. In Estate of Parker, 121 Ill.Dec. at 847, 525 N.E.2d at 1154, which involved a prenuptial agreement obligating both parties to deposit $10,000 in certificates of deposit into a joint account, “[t]he fact that neither party had acquired the certificates of deposit as required by the prenuptial agreement did not void the agreement as it was the promise to do so and not the actual purchase of the certificates of deposit that formed the consideration.” Here, Gould’s promises to sign the noncompetition agreement and to relocate similarly provided consideration for the parties’ agreement. The agreement is therefore not void for lack of consideration.\nIII. CONCLUSION\nBecause Gould alleged facts suggesting that Artisoft had waived the condition precedent and that the contract was supported by adequate consideration, the district court’s judgment dismissing Gould’s complaint is reversed, and the case is remanded to the district court for further proceedings.\nREVERSED AND REMANDED.\n. The district court was entitled to consider the draft Prospectus although it was attached to Arti-soft’s memorandum in opposition to the emergency motion to remand, rather than to the removal petition itself. In testing the sufficiency of the jurisdictional amount alleged in a removal petition, a district court is not obliged to rely solely on the plaintiff’s complaint or on the jurisdictional statements in the removal petition; rather, ”[i]t is entitled to consider the matter when the parties raise it, as they did here by a motion to remand and the memorandum and affidavits in opposition thereto.” Jadair, 67F.2d at 132-33.\n. In fact, that value would have to be less than half the estimated value in the draft Prospectus before the amount in controversy would fall below the jurisdictional amount.\n. We were informed at oral argument, however, that the initial public offering did occur and that Artisoft's shares are now publicly traded.\n. If we were to assess the value of this case from Artisoft’s perspective in accordance with the \"either viewpoint” rule (see McCarty, 595 F.2d at 395; see also Gottlieb v. Westin Hotel Co., 990 F.2d 323, 329-30 (7th Cir.1993)), we agree with Artisoft that we would be likely to find jurisdiction because the pecuniary harm to Artisoft from the injunctive relief Gould requested would exceed $50,000. In fact, Gould’s counsel conceded at oral argument that the harm to Artisoft from an order enjoining its initial public offering would have exceeded the jurisdictional amount. We do not base our decision on this ground, however, as it was raised for the first time on appeal and was not considered by the district court. At the same time, we do not suggest that this would not also be a proper basis for the exercise of federal jurisdiction. See, e.g., Hoefferle Truck Sales, Inc. v. Divco-Wayne Corp., 523 F.2d 543, 549 (7th Cir.1975) (finding jurisdiction on a ground not raised before the district court).\n. The district court seemed to reach these conclusions somewhat reluctantly, stating at the outset of its oral ruling that it had \"some difficulties with this given the presumptions in favor of the pleader of the complaint. But I’m going to grant the motion to dismiss.” (Feb. 28, 1992 Tr. at 5.)\n. Artisoft’s counsel told us at oral argument that his client had prepared the noncompetition agreement and was in the process of submitting the agreement for Gould’s signature but that Gould's employment was terminated before that occurred.\n. Artisoft takes no position as to whether Illinois or Arizona law controls our analysis of the parties' agreement. (See Artisoft Br. at 14 n. 11.) Gould, meanwhile, cites only to Illinois cases. Neither suggests that the substantive laws of Illinois and Arizona differ with respect to the issues raised here. Where the parties have not identified a conflict between the two bodies of state law that might apply to their dispute, we will apply the law of the forum state — here, Illinois. Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 473 (7th Cir.1991); Gonzalez v. Volvo of Am. Corp., 752 F.2d 295, 299 (7th Cir.1985) (\"Where parties fail to raise a possible conflict of substantive laws, the better rule ... is that the substantive law of the forum controls.”).\n. In any event, Gould did allege that he had begun making arrangements to relocate to Tucson, Arizona. (See Gould App. Ex. F, at 2 & 4.) Accepting that allegation as true, Gould already had incurred a concrete detriment in return for Artisoft’s promise to make him its Director of Sales.", "type": "majority", "author": "ILANA DIAMOND ROVNER, Circuit Judge."}], "attorneys": ["Mark L. LeFevour (argued), Matt LaKo-ma, Gene Callahan, Callahan, Fitzpatrick, Lakoma & McGlynn, Oak Brook, IL, for plaintiff-appellant.", "George F. Venei, Jr., David T.B. Audley (argued), Michael W. Ford, Chapman & Cutler, Chicago, IL, for defendant-appellee."], "corrections": "", "head_matter": "John GOULD, Plaintiff-Appellant, v. ARTISOFT, INCORPORATED, Defendant-Appellee.\nNo. 92-2419.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Feb. 18, 1993.\nDecided July 30, 1993.\nMark L. LeFevour (argued), Matt LaKo-ma, Gene Callahan, Callahan, Fitzpatrick, Lakoma & McGlynn, Oak Brook, IL, for plaintiff-appellant.\nGeorge F. Venei, Jr., David T.B. Audley (argued), Michael W. Ford, Chapman & Cutler, Chicago, IL, for defendant-appellee.\nBefore POSNER and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge."}	POSNER	ROVNER	ESCHBACH	1	1	1	0	0	0	1 F.3d 544	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: John GOULD, Plaintiff-Appellant, v. ARTISOFT, INCORPORATED, Defendant-Appellee\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-07-30\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nILANA DIAMOND ROVNER, Circuit Judge.\nIn this diversity action, John Gould alleges that Artisoft, Incorporated (“Artisoft”) breached his employment contract. The district court dismissed Gould’s complaint, concluding that he had failed to satisfy a condition precedent and, alternatively, that the contract failed for lack of consideration. Because we find that Gould sufficiently alleged the formation of a valid contract supported by adequate consideration, we reverse and remand for further proceedings.\nI. FACTS\nIn reviewing this grant of a motion to dismiss, we consider only the well-pleaded factual allegations of Gould’s second amended complaint and any reasonable inferences that might be drawn therefrom. See Mid Am. Title Co. v. Kirk, 991 F.2d 417, 419 (7th Cir.1993).\nArtisoft, which distributes computer hardware and software products, hired John Gould in January 1991 to assemble and coordinate its nationwide sales force. In July of that year, Artisoft’s Vice President of Sales and Marketing, David Hallmen, sent Gould a written offer to be Artisoft’s Director of Sales. After making handwritten changes to Artisoft’s offer, Gould signed the agreement on July 15, 1991, and Artisoft accepted Gould’s proposed modifications in the last week of July. Under the terms of the agreement, Gould was to assume his new position on or before July 29, 1991, but until then, he was to remain in his previous position.\nAs a condition of his employment, the contract required Gould to execute “the enclosed nondisclosure and noncompetition agreement.” (Gould App. Ex. F, at 6.) But no such agreement accompanied the written offer, nor did Artisoft tender such an agreement for Gould’s signature prior to his termination. The contract provided for a three-month probationary period during which Ar-tisoft would evaluate Gould’s performance in his new position. At the end of the probationary period, either Gould or Artisoft could terminate the agreement if it became apparent that the arrangement was not mutually beneficial. The contract also contemplated that Gould would relocate to Tucson, Arizona, that Artisoft would pay the cost of his relocation, and that Artisoft would extend a bridge loan to facilitate Gould’s purchase of a home in Tucson. If Gould were to resign from Artisoft within one year, however, he would be required to reimburse Artisoft for his relocation expenses. The contract further provided that in addition to his annual salary, Gould was to receive fifty shares of Artisoft stock.\nWhen the parties executed the contract, Artisoft was a privately-held Arizona corporation. Plans were in the works, however, to make an initial public offering of Artisoft stock, and in anticipation of that offering, Artisoft was reincorporated in Delaware. On July 26, 1991, the fifty shares of stock referenced in the agreement were canceled and converted to 10,000 shares of the reincorporated Delaware corporation.\nArtisoft terminated Gould’s employment on August 7, 1991, less than two weeks after he assumed his new position with the company. The record does not reveal the reason, if any, for Gould’s termination. Gould alleges that by the time he was terminated he already had begun “making the necessary arrangements to move and reside in Tucson, Arizona.” (Gould App. Ex. F, at 4; see also id. at 2.)\nAfter his termination, Gould sued Artisoft in the Circuit Court of Cook County, seeking specific performance of Artisoft’s promise to provide fifty shares of stock. Gould asserted that he became entitled to the stock upon acceptance of Artisoft’s offer and that his right to the stock was unaffected by his termination. Gould also sought a preliminary injunction barring the public offering of Artisoft stock, which he claimed would diminish the value of his shares.\nArtisoft removed the action to federal court, and Gould responded with an emergency motion to remand, which the district court denied. The court found that the $50,-000 amount in controversy requirement for diversity jurisdiction had been satisfied because the value of the disputed stock in either a public or private sale was likely to exceed the jurisdictional amount.\nAfter the district court denied Gould’s motion for injunctive relief, Artisoft moved to dismiss the complaint, arguing that a condition precedent to the employment contract— execution of the noncompetition agreement — • had not been satisfied and that the contract lacked consideration. The district court granted Artisoft’s motion in an oral opinion, and Gould appeals.\nII. DISCUSSION\nA. Federal Jurisdiction\nWe first must consider whether the $50,000 amount in controversy requirement of 28 U.S.C. § 1332(a) has been satisfied. If not, we would be required to vacate the district court’s judgment and remand the action to state court. See Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir. 1993).\nOur recent decision in Shaw establishes the analytical framework for considering whether the amount in controversy meets the threshold for diversity jurisdiction in removal cases. We generally would determine that amount “by merely looking at plaintiffs state court complaint, along with the record as a whole.” Id. (citing Oglesby v. RCA Corp., 752 F.2d 272, 275, 278 (7th Cir.1985); Davenport v. Proctor & Gamble Mfg. Co., 241 F.2d 511, 513 (2d Cir.1957)). But here, as- in Shaw, Gould’s original complaint does not reveal the precise value of his claim, for he requested only specific performance of Arti-soft’s promise to tender the fifty shares. We have struggled before with the problem of determining the actual amount in controversy when plaintiffs request only declaratory or equitable relief. See, e.g., Jadair, Inc. v. Walt Keeler Co., 679 F.2d 131, 132 (7th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 258, 74 L.Ed.2d 201 (1982); McCarty v. Amoco Pipeline Co., 595 F.2d 389, 391-95 (7th Cir.1979). But here, it is clear that the shares of stock themselves are at issue and that the amount in controversy therefore depends on the value of those shares. See Sarnoff v. American Home Prod. Corp., 798 F.2d 1075, 1078 (7th Cir.1986) (amount in controversy equal to the present value of shares of stock allegedly due to the plaintiff over a ten-year period).\nBecause Artisoft invoked our jurisdiction by removing the case, it bears the burden of showing that the amount in controversy is sufficient. Shaw, 994 F.2d at 366; see also Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921). Sfhaw requires that Artisoft meet its burden by a preponderance of the evidence, which means “proof to a reasonable probability, that jurisdiction exists.” Shaw, 994 F.2d at 366 & n. 2; see. also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). We look to the facts that existed at the time of removal to determine our jurisdiction, for a plaintiff “may not manipulate the process” to defeat federal jurisdiction and force a remand once the case has been properly removed. Shaw, 994 F.2d at 368; see also id. at 368.\nGould argues that the jurisdictional amount was not satisfied here because nei- • ther the present nor the prospective value of the Artisoft stock could be ascertained. Instead, Gould contends that the stock’s value was speculative and therefore insufficient to establish jurisdiction. Like the district court, we reject the notion that the amount in controversy requirement can never be satisfied where stock with no ascertainable public market value is at issue. If the defendant can establish to a reasonable probability that the value of the stock in a private transaction would exceed the jurisdictional amount, that requirement is satisfied. See Cumming v. Johnson, 616 F.2d 1069, 1072 (9th Cir.1979).\nArtisoft attempted to satisfy its burden with a draft of the Prospectus it planned to issue in connection with the initial public offering of its stock. (R. 4, at Ex. B.) The draft Prospectus stated that the initial offering price would be between $11.50 and $13.50 per share, with a target price of $12.50 per share. Because Gould alleged an entitlement to 10,000 shares (after the conversion of his fifty shares pursuant to Artisoft’s reincorporation), his claim would be valued at between $115,000 and $135,000. We view that estimate as persuasive evidence of the value of the disputed shares at the time of removal, particularly because Gould presented no evidence to cast doubt on the accuracy of the estimated price range. Gould argued only that the share value was speculative and that the initial public offering was itself not a certainty. Yet the speculative nature of the estimated share price cannot defeat federal jurisdiction in the absence of evidence suggesting a significantly lesser value. And even if it was possible at the time of removal that the initial public offering would not occur, jurisdiction still was proper if Artisoft could show to a reasonable probability that the stock’s value in a private sale also would exceed $50,000. See Cumming, 616 F.2d at 1072. Absent evidence of a previous stock sale, the private sale value can be stated as the percentage of the total value of the company represented by Gould’s shares. The assets of the company as evidenced in the draft Prospectus, and therefore the company’s value in a private sale, support the district court’s conclusion that the amount in controversy exceeds the jurisdictional amount. In fact, Gould has not contested the district court’s conclusion to this effect. (See Sept. 4, 1991 Tr. at 14.) We therefore find that the district court properly exercised jurisdiction over Gould’s complaint.\nB. Dismissal of Gould’s Complaint\nHaving resolved the jurisdictional issue, we turn to the merits. We review the district court’s decision to dismiss Gould’s complaint de novo, accepting as true the complaint’s well-pleaded factual allegations and drawing all reasonable inferences in Gould’s favor. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992); Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991). We may affirm the dismissal of Gould’s complaint only if “it appears beyond doubt that [he] can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); see also Mid Am. Title Co., 991 F.2d at 419. The district court dismissed the complaint both because Gould had failed to satisfy a condition precedent to the employment contract and because the contract lacked adequate consideration.\n1. Condition Precedent\nAlthough the parties’ agreement provides that “[a]s a condition of employment, [Gould] will be required to sign the enclosed nondisclosure and noncompetition agreement,” (Gould App. Ex. F, at 6), Artisoft never provided a noncompetition agreement for Gould’s signature. The district court determined that without the signed noncom-petition agreement, no contract had been formed. (Feb. 28, 1992 Tr. at 6.) The court found that Artisoft’s failure to tender the agreement did not excuse satisfaction of the condition because it was “at least theoretically possible that Gould could have on his own tendered to the defendant a written promise not to disclose what he learned and not to compete.” (Id. at 7.) But this “theoretical possibility” is inconsistent with the plain language of the parties’ contract. By failing to tender a noncompetition agreement for Gould’s signature, Artisoft waived the condition that Gould execute such an agreement.\nUnder Illinois law, “[a] condition precedent is some act that must be performed or event that must occur before a contract becomes effective or before one party to an existing contract is obligated to perform.” Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Ins. Co., 962 F.2d 628, 633 (7th Cir.1992); see also Wasserman v. Autohaus on Edens, Inc., 202 Ill.App.3d 229, 147 Ill.Dec. 571, 576, 559 N.E.2d 911, 916 (1990); Grill v. Adams, 123 Ill.App.3d 913, 79 Ill.Dec. 342, 346, 463 N.E.2d 896, 900 (1984); Lyntel Products, Inc. v. Alcan Aluminum Corp., 107 Ill. App.3d 176, 63 Ill.Dec. 4, 7, 437 N.E.2d 653, 656 (1981). If the condition is not satisfied, then any obligations of the parties under their agreement are at an end. Cummings v. Beaton & Assocs., Inc., — Ill.App.3d -, -, 187 Ill.Dec. 701, 712, 618 N.E.2d 292, 303, (Ill.App.Ct.1992); Grill, 79 Ill.Dec. at 346, 463 N.E.2d at 900; Lyntel Products, 63 Ill.Dec. at 7, 437 N.E.2d at 656. However, “[c]onditions precedent may be waived when a party to a contract intentionally relinquishes a known right either expressly or by conduct indicating that strict compliance with the conditions is not required.” Hardin, Rodriguez & Boivin, 962 F.2d at 633; see also Quake Constr., Inc. v. American Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 323, 565 N.E.2d 990, 1005 (1990). For example, where satisfaction of the condition is within the sole control of one party, that party may not prevent satisfaction of the condition in order to escape its contractual obligations. Cummings, — Ill.App.3d at -, 187 Ill.Dec. at 712, 618 N.E.2d at 303; Wasserman, 147 Ill.Dec. at 578, 559 N.E.2d at 918; Grill, 79 Ill.Dec. at 346, 463 N.E.2d at 900; cf. Unit Trainship, Inc. v. Soo Line R.R. Co., 905 F.2d 160, 163 (7th Cir.1990) (“where a party’s obligation is subject to a condition precedent, a duty of good faith and fair dealing is imposed upon that party to cooperate and to not hinder the occurrence of the condition.”).\nThe contract here plainly states that Gould was required to sign the “enclosed nondisclosure and noncompetition agreement.” Use of the word “enclosed” placed the obligation on Artisoft to provide such an agreement for Gould’s signature, either with the contract or perhaps shortly thereafter. Yet, Artisoft did not provide a noncompetition agreement pri- or to Gould’s termination, and we do not believe that Gould was required to draft and execute his own agreement in light of the express contractual language. Artisoft thus waived satisfaction of the condition, and it may not rely on the failure of the condition precedent to escape its obligations.\n2. Consideration\nThe district court also dismissed Gould’s complaint because it found that the contract lacked consideration. Although it acknowledged that a promise for a promise can constitute consideration in an appropriate circumstance, the court concluded that “there is simply nothing that shows detriment to Gould which would constitute consideration.” (Feb. 28, 1992 Tr. at 7-8.) We disagree. Although Gould had not yet taken action to fulfill his promises when his employment was terminated, those promises nonetheless provide adequate consideration for the agreement.\nFirst, Gould promised to sign a noncom-petition agreement. That promise clearly involves a detriment in that it limits Gould’s future employment opportunities; it therefore constitutes adequate consideration despite the fact that the agreement had not been signed prior to Gould’s termination. Moreover, Gould promised to relocate to Tucson, Arizona. That too is a promise to incur a detriment and is adequate consideration for the contract even if Gould had yet to relocate.\nThese promises, given by Gould in exchange for Artisoft’s promise of employment and compensation in accordance with the terms of the contract, constitute adequate consideration under Illinois law. See Cohen v. Wood Bros. Steel Stamping Co., 175 Ill.App.3d 511, 124 Ill.Dec. 951, 953, 529 N.E.2d 1068, 1070 (1988); In re Estate of Parker, 171 Ill.App.3d 538, 121 Ill.Dec. 842, 846, 525 N.E.2d 1149, 1153 (1988) (“Mutual and concurrent promises are sufficient legal consideration for a contract.”); Anderson v. Vrahnos, 149 Ill.App.3d 251, 102 Ill.Dec. 488, 490, 500 N.E.2d 110, 112 (1986). The fact that these promises relate to future conduct and did not result in a present detriment does not invalidate the agreement. In Estate of Parker, 121 Ill.Dec. at 847, 525 N.E.2d at 1154, which involved a prenuptial agreement obligating both parties to deposit $10,000 in certificates of deposit into a joint account, “[t]he fact that neither party had acquired the certificates of deposit as required by the prenuptial agreement did not void the agreement as it was the promise to do so and not the actual purchase of the certificates of deposit that formed the consideration.” Here, Gould’s promises to sign the noncompetition agreement and to relocate similarly provided consideration for the parties’ agreement. The agreement is therefore not void for lack of consideration.\nIII. CONCLUSION\nBecause Gould alleged facts suggesting that Artisoft had waived the condition precedent and that the contract was supported by adequate consideration, the district court’s judgment dismissing Gould’s complaint is reversed, and the case is remanded to the district court for further proceedings.\nREVERSED AND REMANDED.\n. The district court was entitled to consider the draft Prospectus although it was attached to Arti-soft’s memorandum in opposition to the emergency motion to remand, rather than to the removal petition itself. In testing the sufficiency of the jurisdictional amount alleged in a removal petition, a district court is not obliged to rely solely on the plaintiff’s complaint or on the jurisdictional statements in the removal petition; rather, ”[i]t is entitled to consider the matter when the parties raise it, as they did here by a motion to remand and the memorandum and affidavits in opposition thereto.” Jadair, 67F.2d at 132-33.\n. In fact, that value would have to be less than half the estimated value in the draft Prospectus before the amount in controversy would fall below the jurisdictional amount.\n. We were informed at oral argument, however, that the initial public offering did occur and that Artisoft's shares are now publicly traded.\n. If we were to assess the value of this case from Artisoft’s perspective in accordance with the \"either viewpoint” rule (see McCarty, 595 F.2d at 395; see also Gottlieb v. Westin Hotel Co., 990 F.2d 323, 329-30 (7th Cir.1993)), we agree with Artisoft that we would be likely to find jurisdiction because the pecuniary harm to Artisoft from the injunctive relief Gould requested would exceed $50,000. In fact, Gould’s counsel conceded at oral argument that the harm to Artisoft from an order enjoining its initial public offering would have exceeded the jurisdictional amount. We do not base our decision on this ground, however, as it was raised for the first time on appeal and was not considered by the district court. At the same time, we do not suggest that this would not also be a proper basis for the exercise of federal jurisdiction. See, e.g., Hoefferle Truck Sales, Inc. v. Divco-Wayne Corp., 523 F.2d 543, 549 (7th Cir.1975) (finding jurisdiction on a ground not raised before the district court).\n. The district court seemed to reach these conclusions somewhat reluctantly, stating at the outset of its oral ruling that it had \"some difficulties with this given the presumptions in favor of the pleader of the complaint. But I’m going to grant the motion to dismiss.” (Feb. 28, 1992 Tr. at 5.)\n. Artisoft’s counsel told us at oral argument that his client had prepared the noncompetition agreement and was in the process of submitting the agreement for Gould’s signature but that Gould's employment was terminated before that occurred.\n. Artisoft takes no position as to whether Illinois or Arizona law controls our analysis of the parties' agreement. (See Artisoft Br. at 14 n. 11.) Gould, meanwhile, cites only to Illinois cases. Neither suggests that the substantive laws of Illinois and Arizona differ with respect to the issues raised here. Where the parties have not identified a conflict between the two bodies of state law that might apply to their dispute, we will apply the law of the forum state — here, Illinois. Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 473 (7th Cir.1991); Gonzalez v. Volvo of Am. Corp., 752 F.2d 295, 299 (7th Cir.1985) (\"Where parties fail to raise a possible conflict of substantive laws, the better rule ... is that the substantive law of the forum controls.”).\n. In any event, Gould did allege that he had begun making arrangements to relocate to Tucson, Arizona. (See Gould App. Ex. F, at 2 & 4.) Accepting that allegation as true, Gould already had incurred a concrete detriment in return for Artisoft’s promise to make him its Director of Sales.\n[END_CASE]", "role": "user" } ]
10,512,559	NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHELBY MEMORIAL HOSPITAL ASSOCIATION, d.b.a. Shelby Memorial Home, Respondent	National Labor Relations Board v. Shelby Memorial Hospital Ass'n	1993-08-02	Nos. 92-1285, 92-2368	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before MANION and KANNE, Circuit Judges, and WILL, Senior Circuit Judge."], "parties": ["NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHELBY MEMORIAL HOSPITAL ASSOCIATION, d.b.a. Shelby Memorial Home, Respondent."], "opinions": [{"text": "KANNE, Circuit Judge.\nThe National Labor Relations Board (NLRB or Board) seeks enforcement of two orders against Shelby Memorial Hospital Association, doing business as Shelby Memorial Home (Home). The cases in which the orders issued were consolidated for disposition by this court. For the reasons that follow, we grant enforcement of both orders.\nI. Background\nShelby Memorial Hospital operates Shelby Memorial Home, a skilled nursing home in Shelbyville, Illinois. In the main, the facility’s employees consist of registered nurses (RNs), licensed practical nurses (LPNs), and certified nurse’s aides (CNAs). These individuals are classified as either full-time, part-time, or on-call employees. The twenty-four hour work day at the Home is divided into three shifts. An administrator, director of nursing, maintenance supervisor, and various department heads constitute the Home’s supervisory staff.\nIn early summer 1990, nurses at the Home began a union drive. The Home unsuccessfully opposed the union. The first case heard by the Board arose when, in July 1990, an affiliate of the International Brotherhood of Teamsters and Home employee LPN Michelle Sands filed charges of unfair labor practices against the Home. From April 1-3, 1991, a NLRB administrative law judge (ALJ) conducted hearings on the consolidated cases stemming from these charges. The ALJ issued a decision on July 15, finding that numerous actions of the Home in response to the union organizing campaign violated § 8(a)(1), (3), and (4) of the National Labor Relations Act (NLRA or Act), codified at 29 U.S.C. § 158(a)(1), (3), and (4). A three-member panel of the NLRB affirmed the ALJ’s findings and conclusions, and adopted his recommended order. We refer to this order as the “first order.” The Board filed an application for enforcement in this court on February 5, 1992; a week later, the Home filed a timely answer.\nIn a separate case, the Teamsters affiliate filed unfair labor practice charges against the Home based specifically on its treatment of LPN Sands. The matter was heard before an ALJ on October 17,1991. The ALJ found that the Home’s treatment of Sands violated § 158(a)(1), (3), and (4). A panel of the Board affirmed the ALJ’s determinations and adopted his recommended order. We refer to this order as the “second order.” The Board filed an application for enforcement in this court on June 10, and the Home made a timely answer. On April 15, this court issued an order consolidating the enforcement applications for the first and second orders.\nII. Standard of Review\nWe have jurisdiction to consider the Board’s petitions for enforcement under 29 U.S.C. § 160(e), which also governs our standard of review. “We must uphold the Board’s determination if its factual findings are supported by substantial evidence in the record as a whole and its legal conclusions have a reasonable basis in the law.” NLRB v. Augusta Bakery Corporation, 957 F.2d 1467, 1471 (7th Cir.1992). See also United States Marine Corporation v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992). Substantial evidence “means such relevant evidence that a reasonable mind might accept as adequate to support” the Board’s determination. Universal Camera Corporation v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). See also Roadmaster Corporation v. NLRB, 874 F.2d 448, 452 (7th Cir.1989).\nThe narrow scope of our review “does not allow us to dabble in fact-finding, and we may not displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo.” NLRB v. PIE Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991). See also Lapham-Hickey Steel Corporation v. NLRB, 904 F.2d 1180, 1184 (7th Cir.1990). Accordingly, we must uphold the Board’s legal conclusions unless they are irrational or inconsistent with the National Labor Relations Act. Aquar-Chem, Inc., Cleaver-Brooks Division v. NLRB, 910 F.2d 1487, 1490 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991). Moreover, we will not disturb the Board’s remedial order “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Company v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943). See also Fibreboard Paper Products Corporation v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964).\nIII. Analysis\nThe Home argues that several of the Board’s findings should not be enforced because they are not supported by substantial evidence in the record as a whole. In short, the Home insists that while it opposed the union, its actions with respect to individual employees were motivated by financial concerns at a time when the facility was losing money. We address the Home’s arguments in roughly the same order they are raised in the briefs, beginning with the first order.\nA. The First Order\n1. Affirmative Remedies\nAs part of its benefits program for nurses, the Home offered tuition assistance to CNAs who desired to attend nursing school. Under the arrangement, the Home would pay approximately three-quarters of a CNA’s tuition in exchange for that individual’s promise to work for the Home for two years following graduation. On June 10, 1990, Home’s Director of Nursing, Joyce Turpin, informed CNAs Karen Endsley and Stewart Edersheim that they had been accepted into Home’s tuition assistance program.\nIn late June, three employees of the Home contacted the International Brotherhood of Teamsters to inquire about organizing a union. A meeting between Home employees and a Teamsters representative was scheduled for July 5 at a local public park. On June 25, Nursing Director Turpin told CNA Edersheim that the Home would be unable to send him and CNA Endsley to nursing school because to do so could be construed as trying to influence their votes on the union. Turpin added that previously scheduled wage increases for the two CNAs had been postponed for the same reason. This action ran counter to the Home’s policy, since 1989, of granting a raise on an employee’s anniversary date following a satisfactory job evaluation. At the hearing before the ALJ, LPN Lisa Standefer testified that she overheard the conversation between Turpin and Eder-sheim, and that Turpin had said tuition assistance and wage increases would be “considered a bribe.”\nEdersheim and Endsley were among the Home’s employees who attended the July 5 union meeting, and both signed union authorization cards. On July 10, the Teamsters Union filed with the NLRB a petition for a union representation election at the Home. On July 30, CNA Endsley asked Nursing Director Turpin about her raise, which had been due the previous March, as well as about the Home’s prior commitment to assist her with nursing school tuition. Turpin responded that the raise and assistance had been “put on hold because of the union.” Endsley started nursing school the following September, paying her own way. Also in September, Edersheim spoke with Home Administrator Albert Wimer and was told that he could not receive tuition assistance because it would be viewed as an attempt to influence his vote in the union election. In October, Edersheim quit. The next month, the Home granted raises retroactive to each employee’s starting date, although some employees, including Edersheim and LPN Feld-pouch, never received one.\nOn the basis of these facts, the Board found that the Home violated § 158(a)(1) by informing CNAs Edersheim and Endsley that their annual raises were being withheld, and the offers of tuition assistance rescinded, because of their union activities. The Board noted that it has found a violation of the NLRA where an employer refuses to follow an established practice of assisting employees in attending seminars or receiving job training because of the employees’ union activities, citing St. Francis Hospital, 1982 WL 24751 (1982), enforced, 729 F.2d 844 (D.C.Cir.1984), and The Norwalk Hospital, 1979 WL 9968 (1979). The order adopted by the Board requires the Home to reimburse Endsley for the cost (including interest) of attending nursing school to the extent other employees were reimbursed under the tuition assistance program. In addition, the Home must pay Edersheim the annual raise he did not receive (also including interest). The Home argues that these affirmative remedies are inappropriate.\nCongress has charged the Board with “the task of devising remedies to effectuate the policies of the Act.” NLRB v. Seven-Up Bottling Company, 344 U.S. 344, 346, 73 S.Ct. 287, 289, 97 L.Ed. 377 (1953). Accordingly, “[ilt is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged.” International Association of Machinists v. NLRB, 311 U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50 (1940). See also NLRB v. Gissel Packing Company, 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1939 n. 32, 23 L.Ed.2d 547 (1969). The Board’s authority to fashion remedies “is a broad discretionary one, subject to limited judicial review”; we only consider whether the remedial order attempts to effectuate the policies of the NLRA. Fibreboard Paper Products Corporation, 379 U.S. at 216, 85 S.Ct. at 406. See also United States Marine Corporation, 944 F.2d at 1314.\nWith respect to the remedy awarded to Endsley, the Home does not contest the Board’s finding that the rescission of the offer of tuition assistance violated the NLRA, accordingly that finding is entitled to summary affirmance. United States Marine Corporation, 944 F.2d at 1314-15. See also NLRB v. Jakel Motors, Inc., 875 F.2d 644, 645 (7th Cir.1989). The Home argues only that the remedy is inappropriate because Endsley’s voluntary departure in November 1990 made it impossible, under the terms of the tuition assistance policy, for her to honor her two-year commitment to work for the Home. According to the Home, it would have been impossible for Endsley to satisfy this requirement because she quit working and was later rehired.\nThis argument is without merit. The Board noted that a student’s two-year obligation to the Home begins after completion of his or her nursing studies. A copy of the written tuition agreement used by the Home, entered in the record as “Joint Exhibit 1,” supports this view. The agreement states that the two-year commitment applies to full-time employment at the Home “immediately following completion of nursing school” (emphasis added). Under the terms of the agreement, the Home will make payments “to [the] student each quarter or semester as appropriate”; in return, the student, for his or her part, must sign and deliver a promissory note to the hospital. If the student successfully completes nursing school and works for the Home for two years, “then the entire scholarship loan and interest shall be forgiven.”\nThe Board’s order requires the Home to provide Endsley with tuition assistance “to the extent [the Home] reimbursed other employees for their nursing school costs before the involved union organizing drive,” including interest. Before Endsley left the Home’s employ in late November 1990 she had started nursing school, paying her own way because the Home would not honor its previous commitment to her.\nWe conclude that the Board’s remedy properly attempts to restore Endsley to the position she would have occupied had the Home not unlawfully withheld promised benefits. At the time oral argument was heard in these cases, Endsley was still employed by the Home. Presumably she finished (or will finish) her studies during the course of her employment. Accordingly, the Home must provide Endsley with the tuition payments it should have made when she began nursing school in September 1990, though it can require her to sign a promissory note in order to protect its investment and to encourage her post-graduate employment at the Home. Adding interest to the amount Endsley is due merely accounts for the time value of money and insures that she is fully reimbursed for the costs she incurred.\nThe Home objects that, because the Board did not direct it to reimburse Edersheim, whose offer of tuition assistance was also rescinded because of his union activities, reimbursement to Endsley is inappropriate. This argument makes little sense. Endsley remains employed by the Home, Edersheim does not. Moreover, there is no evidence in the record that Edersheim, while still in the Home’s employ, began nursing school paying his own way. Contrary to the Home’s argument, there is nothing inconsistent in requiring that a particular remedy be awarded to a current employee, but not to a former one. Inasmuch as it seeks to return Endsley to the status quo, the Board’s order of retroactive tuition assistance passes this test. See Gissel Packing Company, 395 U.S. at 612, 89 S.Ct. at 1939.\nThe Home argues next that it should not be required to give CNA Edersheim, who worked at the Home from April 1988 until his voluntary departure in October 1990, a retroactive pay raise as required by the Board. The Board’s order states that the Home must\n[m]ake whole Stewart A. Edersheim, and any other employee denied a timely raise, for the retaliatory denial of wage increases by making payments of a sum of money equal to that which they would have earned had [the Home] not engaged in ... unlawful action[,] with backpay and interest thereon....\nThe Home asserts that it awarded wage increases effective September 1, 1990, retroactive to the individual employee’s anniversary date, and that “[s]ince Endersheim [sic] left in October it seems most difficult to conclude that he should receive a pay increase not effective until after he left.” Whether or not the wage increase became effective after Edersheim left the Home’s employ, the evidence is undisputed that he never received the wage increase that was withheld because of his union activities.\nBefore reaching the issue of the propriety of the Board’s remedy as to Edersheim, however, we must first address the Home’s argument that it did not violate the NLRA by withholding wage increases during the summer of 1990 because it was concerned that such conduct would be perceived as an improper attempt to influence the union representation vote held on October 3 of that year. Withholding regularly scheduled benefits during a union campaign can violate § 158(a)(1) and (3) of the Act. NLRB v. Don’s Olney Foods, 870 F.2d 1279, 1285 (7th Cir.1989). See also NLRB v. Industrial Erectors, Inc., 712 F.2d 1131, 1135 (7th Cir.1983); NLRB v. Lucy Ellen Candy Division of F & F Laboratories, Inc., 517 F.2d 551, 554 (7th Cir.1975). In Don’s Olney Foods, we stated that\n[i]n order not to unfairly influence a union election, the employer must maintain the pre-union status quo respecting employee benefits, viewed dynamically; that is, expectations of upcoming benefits created by the employer either by promises or through a regular pattern of granting benefits cannot be disappointed without proof of a union-neutral justification.\n870 F.2d at 1285.\nThe Home maintains that the Board’s holding in Retlaw Broadcasting, 1991 WL 69703 (1991), provides such a justification. In that case, employees were told that suspension of their annual evaluations and corresponding wage increases was based on the advice of the employer’s attorney that to continue the evaluations could be considered unlawful interference in a union representation election, and that the employer would reinstate the program as soon as it was advised it was legal to do so. The Board ruled that an employer could suspend employee evaluations and raises on the advice of its attorney during a union organizing campaign, and even during the employer’s appeal of the results of the subsequent election. In fashioning this rule, the Board relied on Atlantic Forest Products, 1987 WL 90186 (1987), which holds that an employer can postpone a wage adjustment so long as it makes clear to employees that the adjustment would be awarded whether or not they select a union, and that the sole reason for the postponement is to avoid the appearance of influencing the outcome of the representation election.\nIt is clear that neither Retlaw nor Atlantic Forest helps the Home in this case. The Home concedes that it told employees that wage increases were being withheld because of union activity but never informed them that the raises would be reinstated regardless of the outcome of the union election. Indeed, the Home breathed nary a word that the raises, even for those employees whose anniversary dates preceded the union campaign, would ever be awarded. Thus, we conclude that the Board’s finding that the Home unlawfully postponed wage increases is supported by substantial evidence. Moreover, we conclude that the Home’s decision to award raises retroactively does not cure the violation with respect to Edersheim because he never received one. The violation of the Act occurred while Edersheim was an employee of the Home. The Board’s order that he is entitled to the wage increase he would have received had it not been unlawfully withheld, with interest on that amount, is appropriate.\n2. Interrogation of Employees\nChristina Welton worked in the Home’s dietary department. She attended the July 5 union organization meeting and signed a union authorization card. At the hearing before the ALJ, she testified that, the day after the meeting, Dietary Supervisor Mildred Fisher took her aside at work and asked whether she or anyone from the dietary department had attended the meeting. Welton denied any knowledge of the meeting.\nBefore the ALJ, Fisher denied having any conversation with Welton about the union meeting, admitting only that she had heard from other employees that Welton, Welton’s mother LPN Judy Read, and LPN Brenda Toothman had attended. Fisher also testified that she and other supervisors were advised by Home Administrator Wimer at a meeting of department heads as to what could and could not be said to employees about the union.\nThe Board found that the questioning of Welton constituted unlawful interrogation in violation of § 158(a)(1). The Board credited Welton’s testimony over that of Fisher because Welton was no longer employed by the Home at the time of the hearing and had nothing to gain by testifying falsely about the incident. In contrast, the Board did not consider Fisher to be a credible witness, finding that she did not specifically deny Welton’s story, but instead gave “brief responses to carefully couched questions” during direct examination. Moreover, Fisher’s credibility was weakened by her admission on cross-examination that the meeting with Administrator Wimer did not occur until after the July 5 union meeting.\nGeorge Hopkins worked as a janitor for the Home. In April 1990, as a result of the financial problems the Home was then experiencing, he was laid off. He was subsequently rehired in late June. Following his return, Hopkins attended the July 5 meeting and signed an authorization card. He testified before the ALJ that, on July 15, five days after the Teamsters Union had filed an election petition, Richard Carlson, the Home’s Maintenance Supervisor, approached him at work and said: “IVe got t'o ask you this question. You can tell me if it’s none of my business if you want to. Has [sic] any of the nurses or aides harassed you about the union?” Hopkins said no. Carlson denied initiating a conversation with Hopkins about the union. Rather, he testified at the administrative hearing that Hopkins asked him about the union, and that he told Hopkins he had a right to vote on the matter as he saw fit.\nThe Board credited Hopkins’s version of events, noting that he, like Christina Welton, was not employed by the Home at the time and had nothing to gain by fabricating his testimony. Consequently, the Board concluded that Carlson unlawfully interrogated Hopkins in an attempt to elicit the names of employees who had spoken with him about the union.\nThe Home challenges the Board’s findings with respect to both Welton and Hopkins. We begin our discussion with an overview of the law and the nature of our review. Coercive interrogation of an employee about his union sentiments can violate § 158(a)(1) of the NLRA. NLRB v. Berger Transfer & Storage Company, 678 F.2d 679, 689 (7th Cir.1982); NLRB v. Rich’s Precision Foundry, Inc., 667 F.2d 613, 624 (7th Cir.1981). In order to establish a violation, it need not be shown that an attempt at coercion succeeded; the test of interference with the right of self-organization is whether the employer engaged in conduct which reasonably tended to interfere with, restrain, or coerce employees with respect to union activities. NLRB v. Almet, Inc., 987 F.2d 445, 451 (7th Cir.1993); NLRB v. Ajax Tool Works, Inc., 713 F.2d 1307, 1313 (7th Cir.1983) (per curiam); Rich’s Precision Foundry, 667 F.2d at 624.\nIn determining the effect of an employer’s interrogation on an employee, the court should consider, inter alia, the background of employer-employee-union relations, the identity and authority of the questioner, the nature of the information sought, the place and method of questioning, and the truthfulness of the reply. Rich’s Precision Foundry, 667 F.2d at 624; Ajax Tool Works, 713 F.2d at 1314; First Lakewood Associates v. NLRB, 582 F.2d 416, 418-19 (7th Cir.1978). These factors are not exclusive, however; in the end, the court must consider all relevant circumstances, including whether the questions were accompanied by a persuasive legitimate explanation for the employer’s interest and whether the questioned employee was assured that no reprisals would follow his response. Ajax Tool Works, 713 F.2d at 1314.\nTurning to the specific findings before us, we point out that the resolution of conflicting testimony is for the ALJ and the Board, and their credibility determinations will not be overturned absent extraordinary circumstances. Augusta Bakery Corporation, 957 F.2d at 1477; Roadmaster Corporation, 874 F.2d at 453 n. 4; Richmond Recording Corporation v. NLRB, 836 F.2d 289, 295 (7th Cir.1987). We find nothing exceptional about the Board’s credibility findings, and proceed to the substantive issue of whether the questioning of Welton and Hopkins violated § 158(a)(1).\nBoth Welton and Hopkins attended the union meeting, both were questioned at work by their supervisors (in Welton’s case, one day after the meeting; in Hopkins’s case, within a week of the election petition filing), and both were questioned directly about union activity and their possible involvement. Welton did not truthfully answer Fisher’s question, permitting the reasonable inference that she feared possible reprisal. See Ajax Tool Works, 713 F.2d at 1315.\nCarlson approached Hopkins saying that he had a question, and that Hopkins could tell him it was none of his business if he wished. The Board reasonably concluded from this statement that the Home was requiring its supervisors to ask employees about their union activities. Moreover, Hopkins had recently returned to the Home after having been laid off. It is doubtful, given the Home’s financial problems during the summer of 1990 and, as a consequence, the tenuous nature of Hopkins’s job security, that he believed he could take his supervisor at his word and tell him to mind his own business. That subsequently the Home took no action against either employee is irrelevant; the proper inquiry is the context of the interrogation itself. On the record as a whole, substantial evidence supports the Board’s conclusions that the questioning of Welton and Hopkins amounted to unlawful interrogation in violation of § 158(a)(1).\n3. Coercive Statements and Threats to LPNs at the July 19, 1990 Meeting\nOn July 18, the Home circulated the following memorandum to all employees:\nTHIS IS TO ADVISE YOU THAT THE NLRB HAS TENTATIVELY SET A HEARING ON WEDNESDAY, JULY 25TH, TO DECIDE WHO CAN VOTE IN A UNION ELECTION. OUR POSITION IS SUPERVISORS, RNs, AND LPNs CANNOT VOTE. WE WILL KEEP YOU ADVISED.\nOn July 19, the Home held a mandatory meeting for all RNs, LPNs, and supervisors. The Home’s Administrator, Albert Wimer, Home attorney, Joseph Yocum, and the Chief Executive Officer of the Home’s affiliated hospital, Dan Colby, conducted the meeting. Yocum told the nurses that, in the Home’s opinion, all RNs and LPNs were supervisors who could not vote in the upcoming election but must remain loyal to the Home. When asked by LPN Michelle Sands, a union supporter, what he meant by “loyalty,” Yocum replied that all RNs and LPNs were prohibited from engaging in union activities.\nLPN Amy Feldpouch, also a union supporter, then asked if LPNs could be fired before the NLRB had determined whether or not they were supervisors. Yocum, according to Feldpouch, said yes, adding that LPNs found to be engaging in union organization could be discharged. When asked by Sands why the Home opposed the union, Yocum responded, “Well, for one thing, they cost too God damn much money.... [D]o you think those dues come out of thin air?” Feldpouch recalled that near the end of the meeting Yocum added, “Now don’t get me wrong, we’re not going to fire anybody.” Administrator Wimer testified before the ALJ that the Home considered LPNs to be supervisors who could be discharged for engaging in union activity, though he did not recall any statement at the July 19 meeting to the effect that LPNs could be discharged before the NLRB determined their status.\nThe Board concluded that the Home, through attorney Yocum, violated § 158(a)(1) by telling LPNs present at the meeting that they could not vote in the upcoming union election or participate in union activities, and that engaging in such activities could subject them to dismissal. Threatening employees with discharge, discipline, or other reprisals for engaging in union activity violates § 158(a)(1) because these actions reasonably tend to coerce employees in the exercise of their rights, regardless of whether they do, in fact, coerce. Northern Wire Corporation v. NLRB, 887 F.2d 1313, 1317 (7th Cir.1989). See also NLRB v. Del Rey Tortilleria, Inc., 787 F.2d 1118, 1122-23 (7th Cir.1986); Berger Transfer & Storage Company, 678 F.2d at 690-91.\nThe Home contests the Board’s findings, arguing that, as a result of the filing of a union election, it was properly concerned about the status of the LPNs and whether or not they were supervisors whose loyalty to the Home could be compelled. The July 19 meeting, the Home insists, was called merely to advise RNs and LPNs of the Home’s legal position with regard to their status. The Home does not specifically deny that Yocum made the statements attributed to him, nor does it seriously challenge the testimony of LPNs Sands and Feldpouch. Rather the Home submits that Yocum’s remarks, considered as a whole, do not amount to a violation of the NLRA. The Home points to Yocum’s declaration, near the close of the meeting, that the Home was not going to fire anyone as evidence that his talk was intended neither to threaten nor coerce. The Home also claims that, before the ALJ, Administrator Wimer “testified that he heard none of the allegations stated [by the nurses] in this matter at the meeting, rather he heard statements to the effect that ‘if any employee was found by the Board to be a supervisor!,] the rights to engage in protected union activities and vote in an election would be lost.”\nThe circumstances of the meeting support the Board’s conclusion that Yocum’s statements went beyond merely announcing the Home’s legal position on the status of certain employees. Yocum’s assurances that the Home was not going to fire anyone undercut the argument that his previous statements were not the equivalent of threats against employees who engaged in union organization activities. If Yocum had not earlier conveyed the impression that union supporters could lose their jobs, such a statement would have been unnecessary. Finally, as the Board found, Yocum’s afterthought “did not result in his total withdrawal or repudíation of his earlier statements” that employees could be disciplined for union activities.\nFurthermore, nothing in Wimer’s testimony alters the conclusion that the meeting was intended to coerce the Home’s LPNs in the exercise of their right to self-organization. Contrary to the Home’s summary of his testimony, Wimer stated that, in the Home’s view, the LPNs were supervisors and that supervisors could be discharged for engaging in union activities. Moreover, he stated only that he did not remember any statement being made that LPNs were told they could be discharged before a final determination of their status by the NLRB. At best, Wimer’s testimony was a weak rebuttal to the testimony of Feldpouch, and the Board’s decision to credit her on this point will stand. See Richmond Recording Corporation, 836 F.2d at 295. Substantial evidence supports the Board’s finding that Yocum’s statements violated § 158(a)(1) of the NLRA.\n4. The August 10, 1990 Schedule\nLPN Michelle Sands had worked for the Home during several intervals of time and was perhaps the most visible union supporter at the facility. She testified on behalf of the union at the August 2,1990 Board hearing to determine whether the Home’s RNs and LPNs would be eligible to vote in the union election scheduled for October. Later, she filed a charge against the Home and testified at both administrative proceedings in these cases. LPN Deanna Bly attended the July 25 union organization meeting and was a known union supporter.\nOn August 10, the Home posted a new two-week work schedule for nurses. Previously, the Home had scheduled nurses’ shifts on a monthly basis. The August 10 schedule replaced a schedule that had two weeks left to run, and took LPN Sands off the full-time day shift, relegating her to on-call status. Sands was placed third on the on-call list, behind two employees, LPN Rosemary Stretch (a part-time employee who had been designated as “temporary” on past work schedules) and Paula Rentfro, both of whom had less seniority. Nursing Director Joyce Turpin had previously told Sands that she could work full-time on the day shift and that Stretch would work any shifts left over on an on-call basis. Prior to August 10, Stretch had been on on-call status.\nUpon learning that a new schedule had been posted, Sands contacted Assistant Nursing Director Kendra White. White told Sands that she had been placed on on-call status for financial reasons, and that Stretch and Rentfro would be called in ahead of her because of their seniority as measured by the dates they were last rehired by the Home. When Sands protested that she, in fact, had greater seniority than both women, White suggested that she speak to Nursing Director Turpin. Sands responded that she did not wish to speak to Turpin because she had lied during her testimony at the August 2 Board hearing. White replied, “Look, we didn’t ask for this.”\nUnder the August 10 schedule, LPN Bly was shifted from full-time to fourth position on the on-call list, behind Sands. When asked by Bly why she had been moved, Director Turpin said only that she had used rehiring dates to establish the order on the on-call list. When Bly mentioned that she was a full-time employee while Stretch only worked part-time, Turpin responded, “That’s just the way I’m doing it.”\nThe Board determined that the Home unlawfully discriminated against Sands and Bly by removing them from their full-time day shifts and placing them on on-call status, in violation of § 158(a)(1), (3), and (4). The Home argues that any schedule change relating to both employees was due to the “economic facts of life.” According to the Home, the shift changes were necessitated by the Home’s financial problems, not anti-union animus, and the reduced time period covered by the new schedule (two weeks instead of the usual thirty days) was a response to problems created by employees who were scheduled but did not show up for work.\nAs support for its argument, the Home points out that staff reductions began in 1990 prior to the advent of the union campaign, and that changes in the nursing department had been delayed until the late summer because the Home was engaged in the process of bringing its nursing department policies, schedules, and employment levels into line with state and federal regulations. The changes instituted on August 10, the Home insists, were for the purpose of allowing it to review its work schedule and to “reduce overhead.” Moreover, the scheduling changes affected many employees alike, regardless of union sympathies; some union adherents were not subject to any changes whatsoever.\nWe conclude that the Board had a sufficient basis for finding that the Home violated Sands’s rights under § 157. In determining whether an employer acts unlawfully, the Board may properly rely on such factors as the employer’s knowledge of union activity, manifestations of anti-union animus, suspicious timing, and departures from past practice. Rich’s Precision Foundry, 667 F.2d at 625. With respect to the Home’s treatment of Sands, there was evidence of each of these factors to demonstrate anti-union motivation. Prior to the August 1990 posting, the Home had scheduled nurses on a monthly basis for several years. The new schedule replaced one with two weeks left to run, and placed Sands behind two part-time employees. This move contradicted the apparent policy of the Home to give preference to permanent or full-time employees over temporary ones in matters such as scheduling, shift assignments, and staff reductions. Accordingly, the Board could reject the Home’s argument that seniority was determined solely by the last date of hire, without regard to full or part-time status.\nThe Home makes much of its financial problems during the summer and fall of 1990, arguing that sustained losses resulted in its sale to another organization in June 1991. However, the Home does not explain how its monthly losses are related to the August 10 scheduling changes. As the Board noted, the Home’s monthly losses went from a high of $32,759 in November 1989 to lows of $3,277 in April 1990 and $3,457 in June 1990. In its brief to this court, the Home gives loss figures for December 1990, and January and February of 1991. No figures are given for July, August, or September 1990 that might lend credence to the argument that the scheduling changes introduced on August 10 were motivated by business concerns. The failure of an employer to produce relevant evidence particularly within its control allows the Board to draw an adverse inference that such evidence would not be favorable to it. See NLRB v. Dorothy Shamrock Coal Company, 833 F.2d 1263, 1269 (7th Cir.1987). Certainly; in the absence of such evidence, the Board was entitled to reject the Home’s proffered justification for its actions. The Board found that the Home’s business justifications for the actions taken against Sands were pretextual, and substantial evidence supports that conclusion.\nEvidence of the Home’s unlawful treatment of Bly is not as strong as the evidence with respect to Sands, but we find it is sufficient to support the Board’s findings. The Board determined that Bly’s removal from the full-time shift was intended by the Home to punish Sands. As the Board characterized it, “Bly was a casualty in [the Home’s] war against Sands.” Regardless of whether Bly’s fate was part of plan by the Home to conceal its discriminatory treatment of Sands, we find there is substantial evidence to support the finding that Bly’s removal from her full-time position, only to be replaced by a temporary employee, violated her rights under § 157 of the NLRA. As discussed, the Board properly rejected as unpersuasive the Home’s business justifications for any scheduling changes, and the record reflects that, once placed on on-call status, Bly received few telephone calls to work, and these either came at the last minute or consisted of messages to call back in five minutes or “forget it.” This evidence is adequate to sustain the Board’s finding that the Home’s treatment of Bly violated § 158(a)(1) and (3).\n5. Assistant Nursing Director Kendra White’s Statement to LPN Michelle Sands\nThe Board found that Assistant Nursing Director White’s statement to Sands (“Look, we didn’t ask for this”) imparted a threat that linked Sands’s support for the union to her placement on the on-call list, thus constituting a separate violation of § 158(a)(1). Specifically, the Board concluded that “there can be no other interpretation except that White was saying [the Home] did not ask for the employees to organize a union and therefore the schedule change for Sands and others is what the employees deserved_” The Home challenges this finding, offering a somewhat different, if enigmatic, interpretation of the conversation. As the Home sees it, White was merely “advising Sands of the fact [that the Home] was facing a most unusual situation in the context of financial losses, scheduling problems and administrative proceedings.”\nWhatever this means, we find that the Board’s interpretation is supported by substantial evidence. Sands’s testimony of the incident was unrefuted. White’s comment arose in the context of a discussion over a scheduling change that adversely affected Sands, and was cast as a rejoinder to Sands’s remark concerning the veracity of Turpin’s testimony at a Board hearing. The inference drawn by the Board — that White was specifically referring to the employees’ efforts to organize a union and intended to link that endeavor to unfavorable scheduling assignments — is reasonable. By suggesting a connection between union activity and a reduction in Sands’s work hours, White’s statement amounted to an admission that some employees were getting what the Home considered to be their just desserts.\n6. Wearing of Union Insignia\nIn October 1990, two days before the union election, LPNs Judy Read and Lisa Standefer arrived at work wearing union patches on their uniforms. Both employees were union supporters; Read had previously attended the July 5 organization meeting. Director Turpin called the women into her office and told them to remove the patches. They complied. The Home’s employee handbook prohibits the wearing of pins or badges that “do not relate to better health care delivery.” This rule was not, however, enforced. Thus, Standefer had previously worn a yellow ribbon on her uniform to support the armed forces, and Read had worn a button to work on which was inscribed “Your Attitude Is Showing” without comment from nursing home management.\nThe Board found that Turpin’s actions violated § 158(a)(1). We have recognized that under the rights guaranteed by § 157, employees are entitled to wear union buttons or insignia as part of a concerted activity to assist the union. NLRB v. Mayrath Company, 319 F.2d 424, 426 (7th Cir.1963). See also Republic Aviation Corporation v. NLRB, 324 U.S. 793, 801-03, 65 S.Ct. 982, 987-88, 89 L.Ed. 1372 (1945); NLRB v. Orr Iron, Inc., 508 F.2d 1305, 1308-09 (7th Cir.1975) (per curiam). This right, of course, is not unbounded; it must coexist with “the equally undisputed right of employers to maintain discipline in their establishments.” Republic Aviation Corporation v. NLRB, 324 U.S. at 797-98, 65 S.Ct. at 985. An employer’s right to prohibit organizational activity, however,\nis limited to the restriction of activities which disrupt, or tend' to disrupt, production and to break down employee discipline, and does not include restriction of passive inoffensive advertisement of organizational aims and interests, i.e., the wearing of advertising insignia and buttons, which in no way interferes with discipline or efficient production.... ”\nCaterpillar Tractor Company v. NLRB, 230 F.2d 357, 359 (7th Cir.1956). See also Mayrath, 319 F.2d at 426-27.\nThe Home concedes that its employees have been permitted to wear pins and insignia on their uniforms despite the rule against such items, but argues that Beth Israel Hospital v. NLRB, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978), allows health care facilities, because they require an atmosphere of tranquility, order and discipline, to place “greater restrictions on [union] activity than employers in other types of operations.” This latitude, the Home proposes, shielded Turpin’s actions with respect to Read and Standefer.\nThe Home’s reading of Beth Israel is incomplete. That case involved not the wearing of union insignia, but a rule that prohibited employees from soliciting and distributing literature except in certain designated areas of a hospital. The Supreme Court held that “the Board’s general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibitions as necessary to avoid disruption of healthcare operations or disturbance of patients, is consistent with the Act.” Id. at 507, 98 S.Ct. at 2476.\nWhile Beth Israel would support the proposition that a health care facility may prohibit the wearing of patches that reasonably tend to interfere with employee discipline or disturb nursing home residents, it clearly does not endorse selective enforcement of an otherwise valid rule against wearing insignia unrelated to health care delivéry. The Home does not argue that the patches worn by Read and Standefer had the potential to disrupt the efficient and ordered delivery of resident services. As a result, the Home cannot adequately explain its sudden decision to enforce a rule against insignia that, by the Home’s own admission, had been negligibly enforced in the past. The Board could reasonably conclude that Turpin deliberately selected Read and Standefer for disparate and discriminatory enforcement of the Home’s rule against wearing insignia on employee uniforms.\n7. The Home’s Discriminatory Treatment and Discharge of LPN Brenda Tooth-man\nLPN Brenda Toothman was an early and open supporter of the union. She was one of three Home employees who initially contacted the Teamsters, she organized the July 5 meeting in the park, distributed authorization cards at work, and otherwise actively campaigned for union representation.\nUnder the August 10 work schedule, Toothman was moved from the 7 a.m. to 3 p.m. shift, where she had worked for a year and a half, to the 3 p.m. to 11 p.m. shift. When she asked Nursing Director Turpin why she had been moved to an evening shift when two part-time employees, LPN Rosemary Stretch and Paula Rentfro had been given a day shift, Turpin responded that the day shift was the only one that Stretch and Rentfro had agreed to work. When Tooth-man reminded her that she, too, had agreed to work only the 7 to 3 shift, Turpin relied, “That’s the way it is.” Previously, when she worked at the Home as a temporary employee, Toothman had been told by Turpin that temporary employees accumulated no seniority rights or benefits.\nOn November 5, 1990, Toothman took medical leave to undergo surgery for carpel tunnel syndrome. She had taken a leave of absence the previous April for the same surgical procedure, returning afterwards to her full-time position on the day shift. Before leaving in November, she presented the Home with a medical note giving January 2, 1991 as her return date. Administrator Wimer and Turpin signed the note.\nOn December 27, when she was ready to return to work, Toothman presented a medical release to Florence Glenn, the Home’s new Nursing Director and Turpin’s replacement. Glenn told Toothman that there was no opening for her at that time and that she had relinquished all seniority rights when she took medical leave. When Toothman stated that she had previously been reinstated after taking medical leave, Glenn responded that she was only following the Home’s policy as set forth in the employee handbook.\nOn January 7, Glenn met with Toothman and handed her a job evaluation dated December 27, .completed by an RN staff nurse (serving in the capacity of acting nursing director) and Administrator Wimer. Usually, nurses? evaluations were performed by the director and assistant director of nursing; Wimer had never before evaluated Tooth-man’s job performance. The evaluation contained lower ratings than Toothman had previously received, including a substandard grade for “Attitude,” even though she had not been the subject of a reprimand or disciplinary action.\nDuring their meeting, Glenn offered Toothman a full-time position on the 3 to 11 shift. Toothman accepted, but complained that she should have been allowed to return to her position on the day shift in light of her seniority over nearly all of the LPNs working that shift. When Toothman inquired whether or not the other LPNs working the 3 to 11 shift were going to remain on that shift, Glenn replied that they were. The next day, however, the Home moved LPN Paula Beeson, who had been hired the previous summer and, consequently, had less seniority than Toothman, from the 3 to 11 to the 7 to 3 shift.\nOn February 11, Toothman photocopied ten resident care plans for study at home. These plans, kept in a binder located in one of the nursing facility’s hallways, contain instructions pertaining to individual residents’ dietary, hygienic, and therapeutic needs, and are used by nurses working the different shifts. The nurse in charge of the care plans had recently quit working for the Home, and Nursing Director Turpin, just before leaving the Home’s employ herself, had instructed the LPNs how to complete the care plans in accordance with state requirements. As a result of her medical leave, Toothman had missed this training. Although her work had not yet required her to fill out a plan, Tooth-man decided that she should learn the proper way to write one.\nToothman’s supervisor, RN Nora Smith, observed her photocopying the plans and asked what she was doing. Toothman testified that when she asked if she could take the plans home to study, Smith replied that it was all right with her. Toothman also stated that Smith told her she could purchase a book explaining how care plans should be written. Deciding that she did not need all ten plans, Toothman discarded eight of them before leaving the facility, and cut the residents’ names off the remaining two.\nThe next day, Smith told Nursing Director Glenn that Toothman had copied the care plans. Glenn informed Bill Morgan, the Home’s new Administrator, and the two met with Toothman on February 14. Tooth-man admitted that she had copied the care plans and had taken two of them out of the facility. Morgan told Toothman that she had invaded the privacy of the Home’s residents and discharged her.\nThe Board found that the Home violated § 158(a)(1) and (3) by (i) failing to reinstate her to her former, or an equal, position of employment following her medical leave of absence, (ii) giving her a poor work evaluation, and (iii) ultimately discharging her. The Home challenges only the first and third findings. We conclude that substantial evidence supports both determinations.\nThe Home offers no explanation for its treatment of Toothman after her return from medical leave other than to resurrect the unavailing assertion that the Home had no seniority policy, an issue addressed earlier. The Home does not dispute that Tooth-man had previously taken medical leave and was fully reinstated, nor does it contend that she was told, in November, that by taking leave she would forfeit her seniority rights. Moreover, the employee handbook, which Nursing Director Glenn invoked as the source of the leave “policy,” supplies no justification for the Home’s apparent departure from past practice; indeed, the handbook’s provisions would appear to prohibit the action taken against Toothman. The Board’s conclusion that the Home failed to return Toothman to her former position for discriminatory reasons is supported by the evidence.\nThe Board found that the Home, by offering Toothman a position on the 3 to 11 shift after she returned from medical leave, dis-criminatorily failed to return her to a position that provided terms and conditions of employment similar to those she had previously enjoyed. In addition, the Board found that after Toothman had agreed to work on the evening shift the Home intentionally gave her a poor work evaluation in retaliation for her union activities. The Home’s brief does not address Toothman’s placement on the evening shift, and only mentions the substandard evaluation to say that she was not disciplined as a result of it. Because the Home does not challenge the Board’s conclusions that these actions constituted yet more transgressions of the NLRA, those findings are summarily affirmed. NLRB v. Jakel Motors, Inc., 875 F.2d at 645. The uncontested violations do not disappear, however; “[t]hey remain, lending their aroma to the context in which the [contested] issues are considered.” NLRB v. Clark Manor Nursing Home Corporation, 671 F.2d 657, 660 (1st Cir.1982).\nThe Home does challenge the Board’s finding that it unlawfully discharged Toothman. The Home argues that, by copying resident care plans for home study, Toothman removed medical records from the facility in violation of the faculty’s anti-disclosure policies as well as state and federal regulations. The Home points out that, under the provisions of the employee handbook, the Home has the authority to discharge employees who take confidential records. In defense of the Home’s decision, Administrator Morgan testified before the ALJ that, during his forty years in the health care field, he had never worked in a facility that allowed nurses to make copies of health care plans and take them home. Morgan also stated that he would have fired Toothman for copying the plans even if she had not engaged in union activity. Toothman’s supervisor, RN Nora Smith, testified that she never gave Tooth-man permission to photocopy the plans. Finally, the Home submits that Toothman implicitly acknowledged her misconduct because she originally protested to Glenn and Morgan only that discharge was too severe a penalty.\nToothman testified that she wanted the care plans for private study and had removed the names of residents from the two copies she took with her. The Board credited this testimony over that of the Home’s witnesses, finding that no breach of resident confidentiality had, in fact, occurred. The Board noted that Toothman’s supervisor, RN Smith, admitted that she did not know whether the Home had any policy prohibiting the photocopying of care plans. Moreover, both Smith and Glenn acknowledged that there could be no breach of confidentiality if a resident’s name had been removed from a plan. Morgan admitted that, at the time he discharged Toothman, he had no knowledge that she had shared any information in the plans with others.\nThe Board may properly look to circumstantial evidence in determining whether a dismissal was illegally motivated. Livingston Pipe & Tube, Inc. v. NLRB, 987 F.2d 422, 426 (7th Cir.1993). This evidence can include the employer’s knowledge of the discharged employee’s union activity, whether or not the dismissal closely followed the commission of other unfair labor practices by the employer, and an implausible explanation for the discharge. Id.; NLRB v. Industrial Erectors, Inc., 712 F.2d at 1137. “Once the general counsel establishes that the employer was motivated by antiunion sentiment, the employer will be held in violation of the Act unless it can show that the same decisions would have been made absent the employee’s protected activity.” J. Huizinga Cartage Company v. NLRB, 941 F.2d 616, 620 (7th Cir.1991).\nThe evidence supports the Board’s finding that the Home’s reason for discharging Toothman — that she had breached resident confidentiality — was a pretext for unlawful discrimination in violation of § 158(a)(1) and (3). Toothman had a legitimate reason for photocopying the care plans, and no information concerning the Home’s residents was disclosed to others. In light of this evidence, the Board could reasonably conclude that Toothman, who had previously been subjected to the Home’s unfair labor practices, would not have been discharged absent her union activities. Rather, termination was the final step in a series of reprisals against an employee who had been an active union adherent from the start.\nB. The Second Order\nDischarge of LPN Michelle Sands\nOn February 14, 1991, LPN Michelle Sands, who had been placed on on-call status as a result of the August 10, 1990 schedule, met with Director Glenn to discuss maternity leave. Sands told Glenn that she planned to take six weeks off following her delivery, scheduled for early March. Glenn said fine, adding that Sands should provide her with a medical release permitting her to work until the date of delivery. Sands provided Glenn with a note from her doctor on February 19. She delivered her child on March 6.\nThe ALJ conducted hearings on the allegations of unfair labor practices against the Home on April 1-3. Sands was called as a witness by the NLRB; she was the sole employee representative seated at Board counsel’s table. During a break in the hearing, Sands was speaking with LPN Deanna Bly when the two were joined by Administrator Morgan. Bly asked Sands when she planned to return to work, and Sands replied that she would return in a couple of weeks, once she had received medical clearance from her doctor. Morgan said nothing about Sands’s status as a Home employee at that time.\nTwo weeks later, Sands contacted Ward Clerk Paula Chesser to notify the Home that she was able to return to work. Chesser responded, “Okay.” Because she was not subsequently contacted to work, Sands applied for unemployment compensation. On April 24, the Unemployment Compensation Board (UCB) notified her that the Home was contesting her application for benefits on the ground that she had quit her job.\nSands immediately phoned Morgan, who told her that the Home assumed she had quit because she had not filled out papers requesting a leave of absence as required by the Home’s employee handbook. Sands replied that Glenn did not mention the need to fill out any forms when the two met on February 14. Morgan stated that Glenn should have done so and, when asked by Sands if she still had a job, told her everything was fine and instructed her to call Joan Bell, the Home’s personnel director. Morgan added that Sands should refer the UCB to him if there were any more problems.\nSands telephoned Bell the same day and related what Morgan had said. Bell replied that Sands was still required to complete the relevant paperwork requesting a leave of absence. When Sands relayed this information to Morgan in a subsequent call, Morgan disagreed with Bell and again instructed Sands to refer the UCB to him. Later that day, after unsuccessfully trying to contact Morgan, UCB informed Sands that it would resume payment of her unemployment benefits. Subsequently, Sands received a letter from UCB stating that, after discussing the matter with the Home, UCB had determined that she had not quit her job.\nOn May 14, Sands received another letter from the UCB, this time notifying her that the Home was appealing the UCB’s finding that Sands had not quit as well as its decision to resume unemployment benefits. Sands telephoned Morgan, who denied any knowledge of the appeal. Morgan suggested that Sands call the Home’s insurance carrier and, when asked by Sands who she should contact at the Home about scheduling work, told her to call Julia Little. When Sands called Little and told her that she was available to work, Little said that she had just been informed by Morgan that Sands no longer worked for the Home.\nSands then called Morgan and demanded an explanation for his statement to Little. Morgan said that he had not intended to mislead her, but that the Home’s “bosses” felt that she had quit because she had not filled out medical leave papers. When Sands reminded him that he had previously told her everything was fine, Morgan merely repeated that, because she had not filled out the forms, the “bosses” felt she had quit. Sands asked if he was referring to Dan Colby, Chief Executive Officer of Shelby Memorial Hospital, and Morgan said yes. Sands then attempted to reach Colby, who did not return her calls. Approximately a week later, the Home dropped its appeal with the UCB. Sands has not worked for the Home since.\nThe Board found that the Home violated § 158(a)(3) and (4) by terminating Sands because of her union activities and because she testified at the April 1991 unfair labor practices hearing. The Home acknowledges that it was well aware of Sands’s extensive union activities, but claims that these activities do not insulate an employee from an employer’s valid rules and regulations. The Home does not now contend, as it did before the ALJ and the Board, that it was entitled to treat Sands as if she had quit because she did not complete the appropriate paperwork. Rather, the Home takes the position that the leave policy set forth in the employee handbook “did not give Sands any right to a leave of absence” because she was not a full-time employee. The Home also claims that Sands never advised the Home that she was going to be absent from work for more than three days, and never supplied the Home with a written work release from her physician upon her return. Finally, the Home asserts that, in order to show discriminatory treatment of Sands, counsel for the NLRB bore the burden of showing that the Home gave similar leave to persons who, like Sands, were not full-time employees.\nThe Board’s finding that Sands was effectively terminated for her union participation and testimony at the unfair labor practices hearing before the ALJ is amply supported by the evidence. As the Board noted, the Home’s assumption that Sands had voluntarily left was, to say the least, inconsistent with her actions, including her discussion with Nursing Director Glenn about maternity leave, her telephone call notifying the Home that she had been cleared by her doctor to return to work, and her repeated calls to Morgan in an attempt to secure her job. The Board also noted that the rule governing leave in the employee handbook applied only to full-time employees, concluding that Sands was under no obligation to submit a request for maternity leave under this provision. The Home seizes upon this conclusion in this court, arguing that Sands had no right to maternity leave under the policy in the first place and thus her leave of absence could properly be treated by the Home as a voluntary departure from her job. Because this argument was not raised before the ALJ or the Board, however, it is waived. See 29 U.S.C. § 160(e). See also Woelke & Romero Framing Company, Inc. v. NLRB, 456 U.S. 645, 665-66, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398 (1982). The Home has not alleged, much less established, any extraordinary circumstances that would allow it to bypass § 160(e)’s waiver rule. See PIE Nationwide, Inc., 923 F.2d at 516 n. 13; NLRB v. American Printers & Lithographers, 820 F.2d 878, 881 n. 2 (7th Cir.1987).\nThe Board found that Nursing Director Glenn said nothing in her discussion with Sands about the need to submit papers to receive medical leave, nor informed Sands that an oral request for leave was insufficient. Moreover, the evidence of record shows that the Home did not require strict adherence to handbook policy, even of those to whom it indisputably applied: LPN Tooth-man, a full-time employee at the time, took medical leave from November 5,1990 to January 2, 1991 without submitting a written request and was not considered to have quit. Indeed, the Board found that the Home did not produce a single example of an employee who was either discharged or assumed to have quit as a result of failing to submit a written request for a leave of absence.\nThe Home first took the position that Sands had quit her job only after she had testified at the April 1991 hearing, more than a month after she had left work to give birth. At the hearing, Sands told LPN Bly, in the presence of Director Morgan, that she intended to return to work in a couple of weeks. Morgan made no response, supporting the inference, drawn by the Board, that the Home did not believe at that time that Sands had stopped working there for good.\nThe Home’s argument that Sands did not present the Home with a written release from her doctor when she sought to return to work is irrelevant to the issue of whether Sands was effectively terminated. The Home does not claim that, but for a written release, Sands would have been promptly reinstated. Likewise, the argument that the Board failed to show that the Home granted similar leaves of absence to on-call employees is without merit. It is undisputed that Glenn approved Sands’s request for time off. Once approval was given, the issue became why the Home assumed Sands had quit when all indications were to the contrary. The Board adequately demonstrated that the Home’s leave “policy” depended largely on the identity, not the status, of the employee, and discriminatory treatment of employees whose identity is linked to union activities violates the NLRA.\nThe Home’s insistence that Sands had quit, when the evidence clearly shows she did not, amounted to discharge in violation of § 158(a)(3). That her termination was motivated, in part, by her appearance at the April 1991 Board hearing violates § 158(a)(4). Substantial evidence supports both findings.\nIV. Conclusions\nThe record in these cases reveals that the Home was actively hostile toward the union organization efforts of its employees, and substantial evidence supports the challenged findings of violations of § 158(a)(1), (3), and (4). Accordingly, the Board’s applications for enforcement are granted in their entirety.\nEnforced\n. We adopt the ALJ’s designation of these shifts as the 7 a.m. to 3 p.m., 3 p.m. to 11 p.m., and 11 p.m. to 7 a.m. shifts.\n. 29 U.S.C. § 157 provides that \"[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations....\" 29 U.S.C. § 158(a)(1) makes it an unfair labor practice for an employer \"to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” § 157. Section 158(a)(3) makes it an unfair labor practice for an employer to discriminate \"in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization....” Section 158(a)(4) makes it an unfair labor practice \"to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under” the NLRA.\n. Shelby Memorial Hospital Association, 1991 WL 280338 (1991).\n. Shelby Memorial Hospital Association, 1992 WL 77796 (1992).\n. Albert Wimer, the Home’s Administrator until January 1, 1991, testified before the ALJ that, prior to 1989, the Home administered percentage wage increases across the board to its employees. In 1989, after Dan Colby took over as Chief Executive Officer of the hospital affiliated with the Home, the policy was changed so that raises were based on merit and awarded annually on the individual employee's anniversary date.\n. The record discloses that a number of the Home's nurses, including LPNs Deanna Bly and Marlena Pritzman, were told that wage increases were being withheld because they would be considered a bribe to employees.\n. Endsley continued to work at the Home until Thanksgiving, when she quit. She was rehired on January 19, 1991.\n. For example, CNA Endsley's anniversary date was in March.\n. Subsequent to the meeting, the regional director of the NLRB found that LPNs were not supervisors within the meaning of the NLRA. As the Board pointed out in its first order, \"[a]n employer acts at its peril when it takes steps calculated to chill the exercise of [§ 157] rights by individuals who may later be found to be under the protection of the Act” (citing Sav-On Drugs, 1980 WL 12648 (1980), enforced, 728 F.2d 1254 (9th Cir.1984) (en banc)).\n. The following exchange took place during the cross-examination of Wimer by the General Counsel of the NLRB:\nQ. Do you recall during the course of that meeting there being some discussion about the LPN’s being supervisors?\nA. Yes.\nQ. That was the employer’s position; isn’t that correct?\nA. That was the employer’s position.\nQ. Mr. Yocum advised employees that was the employer’s position?\nA. Yes, sir.\nQ. And was there not discussion that with employees — if these LPN’s were supervisors, they could be discharged?\nA. Yes. It was.\nQ. Okay.\nA. If my memory serves me right.\nQ. Was it not also stated that they could be discharged even before a determination was made by the Labor Board at the hearing that was upcoming?\nA. I can’t recall that.\nQ. But it was mentioned that they could be discharged?\nA. If supervisors participated in union activity, that they could be discharged.\nQ. Did you tell the LPN’s that they were supervisors?\nA. Yes. We did. In the company’s view point and in my view point, they were supervisors.\n. Sands worked as a dietary aide from September 1981 to August 1982; as a CNA from September 1982 to March 1983, and from November 1983 to February 1984; and as an LPN from September 1987 to March 1988, and from March 1989 to April 1991.\n. Nurses on the on-cal! list did not work regular hours but were contacted to fill in as needed.\n. Paula Rentfro was first hired by the Home in April 1981 as a CNA. She worked off and on until March 1991. Rentfro’s status is not described in the ALJ's opinion; however, the record indicates that, at the time of the new sched-ulc, she was considered a part-time employee who worked during the day.\n.Specifically, the ALJ’s Conclusions of Law found that the Home's treatment of Sands violated § 158(a)(1), (3) and (4), and that its treatment of Bly violated § 158(a)(1) and (3).\n. The direct testimony of former Administrator Wimer supports the existence of an informal seniority policy based on full or part-time status:\nQ. Now, during your tenure as administrator, did the facility have a — a seniority policy?\nA. We did not have a strict seniority policy. We tried to go by seniority purposes as far as cutting back and with part-time people versus full-time people versus this sort of thing [referring to an employee's preferences for particular work times]. And going by date of employment. But we did not have a formal seniority policy, per se.\nQ. Did you [follow] seniority — with relation to shift assignments?\nA. We tried to. Yes.\nQ. Were there situations where you would not do this?\nA. It would depend on whether the individuals [sic] was a full-time person, a part-time person and their date of hire. Yeah.\nQ. And if you were unable to follow seniority, would you follow any other procedures?\nA. We tried to go by the employee preference.\nOn cross-examination, Wimer testified as follows:\nQ. Well, let me ask you in a different way then. Two employees start on January 1, 1990.\nA. Right.\nQ. One is a temporary employee.\nA. Right.\nQ. The other one is a full-time employee.\nA. Right.\nQ. When it comes time to either make cutbacks or changes in schedules—\nA. - A temporary employee would get it first.\nWimer also testified that temporary and on-call employees received \"basically” no benefits, with the exception of accrued vacation time. This is supported by the unrebutted testimony of LPN Brenda Toothman that, when she was working at the Home as a temporary employee, Nursing Director Turpin had told her that temporary employees accumulated no seniority rights or benefits. We think the record discloses that the Home had an established practice — one that \" ‘would be clearly apparent to a reasonably objective employer,' ” Don's Olney Foods, 870 F.2d at 1285 (quoting Gossen Company v. NLRB, 719 F.2d 1354, 1357 (7th Cir.1983)) — of giving preference to full-time employees in employment-related matters.\n. We point out that the Home's treatment of Sands subsequent to the schedule change smacks of retaliation, further supporting the Board's finding that the new schedule was intended to punish her for her union activities. Uncontra-dicted evidence in the record demonstrates that, once Sands was placed on on-call status, the Home made little, if any, effort to contact her to work. In addition, on November 4, 1990, when two positions on the day shift were available, Sands reapplied for a full-time position. She was not rehired until November 20; in the interim, however, the Home hired a new LPN, Nancy Miller, and used temporary employees Stretch and Rentfro to fill the full-time vacancies. Even after being returned to full-time status, Sands was removed to the on-call list in January 1, 1991, ostensibly because she was the last full-time nurse \"hired” by the hospital.\n. The NLRB's argument to this court is that Bly, who had less seniority than Sands, was deliberately placed behind Sands on the on-call list. This was done, according to the Board's counsel, because “the Home could not purport lawfully to remove Sands from full[-]time [status] without removing Bly as well.” We understand the argument to be that the Home removed Bly from her full-time position in an effort to conceal its unlawful treatment of Sands.\n. The patches were self-adhesive, with a white field bearing a square with a check mark in it. The words \"Vote Yes” also appeared. Teamster representatives had told Home employees that they could wear the patches two days before the election.\n. In its brief, the Home refers to Beth Israel by name, but gives the citation to a later case dealing with substantially the same issue, NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 99 S.Ct. 2598, 61 L.Ed.2d 251 (1979). Our analysis and conclusions would be the same under both cases.\n. At the time, Toothman had more seniority than all but one LPN on the day shift.\n. Bill Morgan replaced Albert Wimer as the Home's Administrator on January 2, 1991.\n. The relevant section of the employee handbook reads:\nAn approved leave of absence assures the employee his/her previous or a similar position at a salary not less than was received at the beginning of the leave of absence.\n.The handbook states:\nAny employee who, in the opinion of his supervisor or chief executive officer is guilty of disseminating confidential information concerning patients or residents, may be discharged from his position or have such other disciplinary action taken as the supervisor deems appropriate.\n. These hearings resulted in the first order.\n. That policy states:\nAfter continuous employment of at least one year, full-time employees are eligible to request a leave of absence for legitimate cause, such as extended illness, further education or maternity leave.\nRequest for leave of absence shall be in the form of a request form or letter addressed to the supervisor and submitted at least 30 days in advance of the starting date of the proposed leave....", "type": "majority", "author": "KANNE, Circuit Judge."}], "attorneys": ["Elizabeth Kinney, N.L.R.B., Chicago, IL, Aile'en A. Armstrong, Peter D. Winkler, Vincent Falvo (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Joseph H. Solien, N.L.R.B., St. Louis, MO, for petitioner.", "Brian J. Fahey, Mark D. Nelson, Keck, Mahin & Cate, Chicago, IL, Joseph A. Yo-cum (argued), Evansville, IN, for respondent."], "corrections": "", "head_matter": "NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHELBY MEMORIAL HOSPITAL ASSOCIATION, d.b.a. Shelby Memorial Home, Respondent.\nNos. 92-1285, 92-2368.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Dee. 2, 1992.\nDecided Aug. 2, 1993.\nElizabeth Kinney, N.L.R.B., Chicago, IL, Aile'en A. Armstrong, Peter D. Winkler, Vincent Falvo (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Joseph H. Solien, N.L.R.B., St. Louis, MO, for petitioner.\nBrian J. Fahey, Mark D. Nelson, Keck, Mahin & Cate, Chicago, IL, Joseph A. Yo-cum (argued), Evansville, IN, for respondent.\nBefore MANION and KANNE, Circuit Judges, and WILL, Senior Circuit Judge.\nThe Honorable Hubert L. Will, Senior District Judge for the Northern District of Illinois, is sitting by designation."}	MANION	KANNE	WILL	1	1	1	0	0	0	1 F.3d 550	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHELBY MEMORIAL HOSPITAL ASSOCIATION, d.b.a. Shelby Memorial Home, Respondent\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-02\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nKANNE, Circuit Judge.\nThe National Labor Relations Board (NLRB or Board) seeks enforcement of two orders against Shelby Memorial Hospital Association, doing business as Shelby Memorial Home (Home). The cases in which the orders issued were consolidated for disposition by this court. For the reasons that follow, we grant enforcement of both orders.\nI. Background\nShelby Memorial Hospital operates Shelby Memorial Home, a skilled nursing home in Shelbyville, Illinois. In the main, the facility’s employees consist of registered nurses (RNs), licensed practical nurses (LPNs), and certified nurse’s aides (CNAs). These individuals are classified as either full-time, part-time, or on-call employees. The twenty-four hour work day at the Home is divided into three shifts. An administrator, director of nursing, maintenance supervisor, and various department heads constitute the Home’s supervisory staff.\nIn early summer 1990, nurses at the Home began a union drive. The Home unsuccessfully opposed the union. The first case heard by the Board arose when, in July 1990, an affiliate of the International Brotherhood of Teamsters and Home employee LPN Michelle Sands filed charges of unfair labor practices against the Home. From April 1-3, 1991, a NLRB administrative law judge (ALJ) conducted hearings on the consolidated cases stemming from these charges. The ALJ issued a decision on July 15, finding that numerous actions of the Home in response to the union organizing campaign violated § 8(a)(1), (3), and (4) of the National Labor Relations Act (NLRA or Act), codified at 29 U.S.C. § 158(a)(1), (3), and (4). A three-member panel of the NLRB affirmed the ALJ’s findings and conclusions, and adopted his recommended order. We refer to this order as the “first order.” The Board filed an application for enforcement in this court on February 5, 1992; a week later, the Home filed a timely answer.\nIn a separate case, the Teamsters affiliate filed unfair labor practice charges against the Home based specifically on its treatment of LPN Sands. The matter was heard before an ALJ on October 17,1991. The ALJ found that the Home’s treatment of Sands violated § 158(a)(1), (3), and (4). A panel of the Board affirmed the ALJ’s determinations and adopted his recommended order. We refer to this order as the “second order.” The Board filed an application for enforcement in this court on June 10, and the Home made a timely answer. On April 15, this court issued an order consolidating the enforcement applications for the first and second orders.\nII. Standard of Review\nWe have jurisdiction to consider the Board’s petitions for enforcement under 29 U.S.C. § 160(e), which also governs our standard of review. “We must uphold the Board’s determination if its factual findings are supported by substantial evidence in the record as a whole and its legal conclusions have a reasonable basis in the law.” NLRB v. Augusta Bakery Corporation, 957 F.2d 1467, 1471 (7th Cir.1992). See also United States Marine Corporation v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992). Substantial evidence “means such relevant evidence that a reasonable mind might accept as adequate to support” the Board’s determination. Universal Camera Corporation v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). See also Roadmaster Corporation v. NLRB, 874 F.2d 448, 452 (7th Cir.1989).\nThe narrow scope of our review “does not allow us to dabble in fact-finding, and we may not displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo.” NLRB v. PIE Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991). See also Lapham-Hickey Steel Corporation v. NLRB, 904 F.2d 1180, 1184 (7th Cir.1990). Accordingly, we must uphold the Board’s legal conclusions unless they are irrational or inconsistent with the National Labor Relations Act. Aquar-Chem, Inc., Cleaver-Brooks Division v. NLRB, 910 F.2d 1487, 1490 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991). Moreover, we will not disturb the Board’s remedial order “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Company v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943). See also Fibreboard Paper Products Corporation v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964).\nIII. Analysis\nThe Home argues that several of the Board’s findings should not be enforced because they are not supported by substantial evidence in the record as a whole. In short, the Home insists that while it opposed the union, its actions with respect to individual employees were motivated by financial concerns at a time when the facility was losing money. We address the Home’s arguments in roughly the same order they are raised in the briefs, beginning with the first order.\nA. The First Order\n1. Affirmative Remedies\nAs part of its benefits program for nurses, the Home offered tuition assistance to CNAs who desired to attend nursing school. Under the arrangement, the Home would pay approximately three-quarters of a CNA’s tuition in exchange for that individual’s promise to work for the Home for two years following graduation. On June 10, 1990, Home’s Director of Nursing, Joyce Turpin, informed CNAs Karen Endsley and Stewart Edersheim that they had been accepted into Home’s tuition assistance program.\nIn late June, three employees of the Home contacted the International Brotherhood of Teamsters to inquire about organizing a union. A meeting between Home employees and a Teamsters representative was scheduled for July 5 at a local public park. On June 25, Nursing Director Turpin told CNA Edersheim that the Home would be unable to send him and CNA Endsley to nursing school because to do so could be construed as trying to influence their votes on the union. Turpin added that previously scheduled wage increases for the two CNAs had been postponed for the same reason. This action ran counter to the Home’s policy, since 1989, of granting a raise on an employee’s anniversary date following a satisfactory job evaluation. At the hearing before the ALJ, LPN Lisa Standefer testified that she overheard the conversation between Turpin and Eder-sheim, and that Turpin had said tuition assistance and wage increases would be “considered a bribe.”\nEdersheim and Endsley were among the Home’s employees who attended the July 5 union meeting, and both signed union authorization cards. On July 10, the Teamsters Union filed with the NLRB a petition for a union representation election at the Home. On July 30, CNA Endsley asked Nursing Director Turpin about her raise, which had been due the previous March, as well as about the Home’s prior commitment to assist her with nursing school tuition. Turpin responded that the raise and assistance had been “put on hold because of the union.” Endsley started nursing school the following September, paying her own way. Also in September, Edersheim spoke with Home Administrator Albert Wimer and was told that he could not receive tuition assistance because it would be viewed as an attempt to influence his vote in the union election. In October, Edersheim quit. The next month, the Home granted raises retroactive to each employee’s starting date, although some employees, including Edersheim and LPN Feld-pouch, never received one.\nOn the basis of these facts, the Board found that the Home violated § 158(a)(1) by informing CNAs Edersheim and Endsley that their annual raises were being withheld, and the offers of tuition assistance rescinded, because of their union activities. The Board noted that it has found a violation of the NLRA where an employer refuses to follow an established practice of assisting employees in attending seminars or receiving job training because of the employees’ union activities, citing St. Francis Hospital, 1982 WL 24751 (1982), enforced, 729 F.2d 844 (D.C.Cir.1984), and The Norwalk Hospital, 1979 WL 9968 (1979). The order adopted by the Board requires the Home to reimburse Endsley for the cost (including interest) of attending nursing school to the extent other employees were reimbursed under the tuition assistance program. In addition, the Home must pay Edersheim the annual raise he did not receive (also including interest). The Home argues that these affirmative remedies are inappropriate.\nCongress has charged the Board with “the task of devising remedies to effectuate the policies of the Act.” NLRB v. Seven-Up Bottling Company, 344 U.S. 344, 346, 73 S.Ct. 287, 289, 97 L.Ed. 377 (1953). Accordingly, “[ilt is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged.” International Association of Machinists v. NLRB, 311 U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50 (1940). See also NLRB v. Gissel Packing Company, 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1939 n. 32, 23 L.Ed.2d 547 (1969). The Board’s authority to fashion remedies “is a broad discretionary one, subject to limited judicial review”; we only consider whether the remedial order attempts to effectuate the policies of the NLRA. Fibreboard Paper Products Corporation, 379 U.S. at 216, 85 S.Ct. at 406. See also United States Marine Corporation, 944 F.2d at 1314.\nWith respect to the remedy awarded to Endsley, the Home does not contest the Board’s finding that the rescission of the offer of tuition assistance violated the NLRA, accordingly that finding is entitled to summary affirmance. United States Marine Corporation, 944 F.2d at 1314-15. See also NLRB v. Jakel Motors, Inc., 875 F.2d 644, 645 (7th Cir.1989). The Home argues only that the remedy is inappropriate because Endsley’s voluntary departure in November 1990 made it impossible, under the terms of the tuition assistance policy, for her to honor her two-year commitment to work for the Home. According to the Home, it would have been impossible for Endsley to satisfy this requirement because she quit working and was later rehired.\nThis argument is without merit. The Board noted that a student’s two-year obligation to the Home begins after completion of his or her nursing studies. A copy of the written tuition agreement used by the Home, entered in the record as “Joint Exhibit 1,” supports this view. The agreement states that the two-year commitment applies to full-time employment at the Home “immediately following completion of nursing school” (emphasis added). Under the terms of the agreement, the Home will make payments “to [the] student each quarter or semester as appropriate”; in return, the student, for his or her part, must sign and deliver a promissory note to the hospital. If the student successfully completes nursing school and works for the Home for two years, “then the entire scholarship loan and interest shall be forgiven.”\nThe Board’s order requires the Home to provide Endsley with tuition assistance “to the extent [the Home] reimbursed other employees for their nursing school costs before the involved union organizing drive,” including interest. Before Endsley left the Home’s employ in late November 1990 she had started nursing school, paying her own way because the Home would not honor its previous commitment to her.\nWe conclude that the Board’s remedy properly attempts to restore Endsley to the position she would have occupied had the Home not unlawfully withheld promised benefits. At the time oral argument was heard in these cases, Endsley was still employed by the Home. Presumably she finished (or will finish) her studies during the course of her employment. Accordingly, the Home must provide Endsley with the tuition payments it should have made when she began nursing school in September 1990, though it can require her to sign a promissory note in order to protect its investment and to encourage her post-graduate employment at the Home. Adding interest to the amount Endsley is due merely accounts for the time value of money and insures that she is fully reimbursed for the costs she incurred.\nThe Home objects that, because the Board did not direct it to reimburse Edersheim, whose offer of tuition assistance was also rescinded because of his union activities, reimbursement to Endsley is inappropriate. This argument makes little sense. Endsley remains employed by the Home, Edersheim does not. Moreover, there is no evidence in the record that Edersheim, while still in the Home’s employ, began nursing school paying his own way. Contrary to the Home’s argument, there is nothing inconsistent in requiring that a particular remedy be awarded to a current employee, but not to a former one. Inasmuch as it seeks to return Endsley to the status quo, the Board’s order of retroactive tuition assistance passes this test. See Gissel Packing Company, 395 U.S. at 612, 89 S.Ct. at 1939.\nThe Home argues next that it should not be required to give CNA Edersheim, who worked at the Home from April 1988 until his voluntary departure in October 1990, a retroactive pay raise as required by the Board. The Board’s order states that the Home must\n[m]ake whole Stewart A. Edersheim, and any other employee denied a timely raise, for the retaliatory denial of wage increases by making payments of a sum of money equal to that which they would have earned had [the Home] not engaged in ... unlawful action[,] with backpay and interest thereon....\nThe Home asserts that it awarded wage increases effective September 1, 1990, retroactive to the individual employee’s anniversary date, and that “[s]ince Endersheim [sic] left in October it seems most difficult to conclude that he should receive a pay increase not effective until after he left.” Whether or not the wage increase became effective after Edersheim left the Home’s employ, the evidence is undisputed that he never received the wage increase that was withheld because of his union activities.\nBefore reaching the issue of the propriety of the Board’s remedy as to Edersheim, however, we must first address the Home’s argument that it did not violate the NLRA by withholding wage increases during the summer of 1990 because it was concerned that such conduct would be perceived as an improper attempt to influence the union representation vote held on October 3 of that year. Withholding regularly scheduled benefits during a union campaign can violate § 158(a)(1) and (3) of the Act. NLRB v. Don’s Olney Foods, 870 F.2d 1279, 1285 (7th Cir.1989). See also NLRB v. Industrial Erectors, Inc., 712 F.2d 1131, 1135 (7th Cir.1983); NLRB v. Lucy Ellen Candy Division of F & F Laboratories, Inc., 517 F.2d 551, 554 (7th Cir.1975). In Don’s Olney Foods, we stated that\n[i]n order not to unfairly influence a union election, the employer must maintain the pre-union status quo respecting employee benefits, viewed dynamically; that is, expectations of upcoming benefits created by the employer either by promises or through a regular pattern of granting benefits cannot be disappointed without proof of a union-neutral justification.\n870 F.2d at 1285.\nThe Home maintains that the Board’s holding in Retlaw Broadcasting, 1991 WL 69703 (1991), provides such a justification. In that case, employees were told that suspension of their annual evaluations and corresponding wage increases was based on the advice of the employer’s attorney that to continue the evaluations could be considered unlawful interference in a union representation election, and that the employer would reinstate the program as soon as it was advised it was legal to do so. The Board ruled that an employer could suspend employee evaluations and raises on the advice of its attorney during a union organizing campaign, and even during the employer’s appeal of the results of the subsequent election. In fashioning this rule, the Board relied on Atlantic Forest Products, 1987 WL 90186 (1987), which holds that an employer can postpone a wage adjustment so long as it makes clear to employees that the adjustment would be awarded whether or not they select a union, and that the sole reason for the postponement is to avoid the appearance of influencing the outcome of the representation election.\nIt is clear that neither Retlaw nor Atlantic Forest helps the Home in this case. The Home concedes that it told employees that wage increases were being withheld because of union activity but never informed them that the raises would be reinstated regardless of the outcome of the union election. Indeed, the Home breathed nary a word that the raises, even for those employees whose anniversary dates preceded the union campaign, would ever be awarded. Thus, we conclude that the Board’s finding that the Home unlawfully postponed wage increases is supported by substantial evidence. Moreover, we conclude that the Home’s decision to award raises retroactively does not cure the violation with respect to Edersheim because he never received one. The violation of the Act occurred while Edersheim was an employee of the Home. The Board’s order that he is entitled to the wage increase he would have received had it not been unlawfully withheld, with interest on that amount, is appropriate.\n2. Interrogation of Employees\nChristina Welton worked in the Home’s dietary department. She attended the July 5 union organization meeting and signed a union authorization card. At the hearing before the ALJ, she testified that, the day after the meeting, Dietary Supervisor Mildred Fisher took her aside at work and asked whether she or anyone from the dietary department had attended the meeting. Welton denied any knowledge of the meeting.\nBefore the ALJ, Fisher denied having any conversation with Welton about the union meeting, admitting only that she had heard from other employees that Welton, Welton’s mother LPN Judy Read, and LPN Brenda Toothman had attended. Fisher also testified that she and other supervisors were advised by Home Administrator Wimer at a meeting of department heads as to what could and could not be said to employees about the union.\nThe Board found that the questioning of Welton constituted unlawful interrogation in violation of § 158(a)(1). The Board credited Welton’s testimony over that of Fisher because Welton was no longer employed by the Home at the time of the hearing and had nothing to gain by testifying falsely about the incident. In contrast, the Board did not consider Fisher to be a credible witness, finding that she did not specifically deny Welton’s story, but instead gave “brief responses to carefully couched questions” during direct examination. Moreover, Fisher’s credibility was weakened by her admission on cross-examination that the meeting with Administrator Wimer did not occur until after the July 5 union meeting.\nGeorge Hopkins worked as a janitor for the Home. In April 1990, as a result of the financial problems the Home was then experiencing, he was laid off. He was subsequently rehired in late June. Following his return, Hopkins attended the July 5 meeting and signed an authorization card. He testified before the ALJ that, on July 15, five days after the Teamsters Union had filed an election petition, Richard Carlson, the Home’s Maintenance Supervisor, approached him at work and said: “IVe got t'o ask you this question. You can tell me if it’s none of my business if you want to. Has [sic] any of the nurses or aides harassed you about the union?” Hopkins said no. Carlson denied initiating a conversation with Hopkins about the union. Rather, he testified at the administrative hearing that Hopkins asked him about the union, and that he told Hopkins he had a right to vote on the matter as he saw fit.\nThe Board credited Hopkins’s version of events, noting that he, like Christina Welton, was not employed by the Home at the time and had nothing to gain by fabricating his testimony. Consequently, the Board concluded that Carlson unlawfully interrogated Hopkins in an attempt to elicit the names of employees who had spoken with him about the union.\nThe Home challenges the Board’s findings with respect to both Welton and Hopkins. We begin our discussion with an overview of the law and the nature of our review. Coercive interrogation of an employee about his union sentiments can violate § 158(a)(1) of the NLRA. NLRB v. Berger Transfer & Storage Company, 678 F.2d 679, 689 (7th Cir.1982); NLRB v. Rich’s Precision Foundry, Inc., 667 F.2d 613, 624 (7th Cir.1981). In order to establish a violation, it need not be shown that an attempt at coercion succeeded; the test of interference with the right of self-organization is whether the employer engaged in conduct which reasonably tended to interfere with, restrain, or coerce employees with respect to union activities. NLRB v. Almet, Inc., 987 F.2d 445, 451 (7th Cir.1993); NLRB v. Ajax Tool Works, Inc., 713 F.2d 1307, 1313 (7th Cir.1983) (per curiam); Rich’s Precision Foundry, 667 F.2d at 624.\nIn determining the effect of an employer’s interrogation on an employee, the court should consider, inter alia, the background of employer-employee-union relations, the identity and authority of the questioner, the nature of the information sought, the place and method of questioning, and the truthfulness of the reply. Rich’s Precision Foundry, 667 F.2d at 624; Ajax Tool Works, 713 F.2d at 1314; First Lakewood Associates v. NLRB, 582 F.2d 416, 418-19 (7th Cir.1978). These factors are not exclusive, however; in the end, the court must consider all relevant circumstances, including whether the questions were accompanied by a persuasive legitimate explanation for the employer’s interest and whether the questioned employee was assured that no reprisals would follow his response. Ajax Tool Works, 713 F.2d at 1314.\nTurning to the specific findings before us, we point out that the resolution of conflicting testimony is for the ALJ and the Board, and their credibility determinations will not be overturned absent extraordinary circumstances. Augusta Bakery Corporation, 957 F.2d at 1477; Roadmaster Corporation, 874 F.2d at 453 n. 4; Richmond Recording Corporation v. NLRB, 836 F.2d 289, 295 (7th Cir.1987). We find nothing exceptional about the Board’s credibility findings, and proceed to the substantive issue of whether the questioning of Welton and Hopkins violated § 158(a)(1).\nBoth Welton and Hopkins attended the union meeting, both were questioned at work by their supervisors (in Welton’s case, one day after the meeting; in Hopkins’s case, within a week of the election petition filing), and both were questioned directly about union activity and their possible involvement. Welton did not truthfully answer Fisher’s question, permitting the reasonable inference that she feared possible reprisal. See Ajax Tool Works, 713 F.2d at 1315.\nCarlson approached Hopkins saying that he had a question, and that Hopkins could tell him it was none of his business if he wished. The Board reasonably concluded from this statement that the Home was requiring its supervisors to ask employees about their union activities. Moreover, Hopkins had recently returned to the Home after having been laid off. It is doubtful, given the Home’s financial problems during the summer of 1990 and, as a consequence, the tenuous nature of Hopkins’s job security, that he believed he could take his supervisor at his word and tell him to mind his own business. That subsequently the Home took no action against either employee is irrelevant; the proper inquiry is the context of the interrogation itself. On the record as a whole, substantial evidence supports the Board’s conclusions that the questioning of Welton and Hopkins amounted to unlawful interrogation in violation of § 158(a)(1).\n3. Coercive Statements and Threats to LPNs at the July 19, 1990 Meeting\nOn July 18, the Home circulated the following memorandum to all employees:\nTHIS IS TO ADVISE YOU THAT THE NLRB HAS TENTATIVELY SET A HEARING ON WEDNESDAY, JULY 25TH, TO DECIDE WHO CAN VOTE IN A UNION ELECTION. OUR POSITION IS SUPERVISORS, RNs, AND LPNs CANNOT VOTE. WE WILL KEEP YOU ADVISED.\nOn July 19, the Home held a mandatory meeting for all RNs, LPNs, and supervisors. The Home’s Administrator, Albert Wimer, Home attorney, Joseph Yocum, and the Chief Executive Officer of the Home’s affiliated hospital, Dan Colby, conducted the meeting. Yocum told the nurses that, in the Home’s opinion, all RNs and LPNs were supervisors who could not vote in the upcoming election but must remain loyal to the Home. When asked by LPN Michelle Sands, a union supporter, what he meant by “loyalty,” Yocum replied that all RNs and LPNs were prohibited from engaging in union activities.\nLPN Amy Feldpouch, also a union supporter, then asked if LPNs could be fired before the NLRB had determined whether or not they were supervisors. Yocum, according to Feldpouch, said yes, adding that LPNs found to be engaging in union organization could be discharged. When asked by Sands why the Home opposed the union, Yocum responded, “Well, for one thing, they cost too God damn much money.... [D]o you think those dues come out of thin air?” Feldpouch recalled that near the end of the meeting Yocum added, “Now don’t get me wrong, we’re not going to fire anybody.” Administrator Wimer testified before the ALJ that the Home considered LPNs to be supervisors who could be discharged for engaging in union activity, though he did not recall any statement at the July 19 meeting to the effect that LPNs could be discharged before the NLRB determined their status.\nThe Board concluded that the Home, through attorney Yocum, violated § 158(a)(1) by telling LPNs present at the meeting that they could not vote in the upcoming union election or participate in union activities, and that engaging in such activities could subject them to dismissal. Threatening employees with discharge, discipline, or other reprisals for engaging in union activity violates § 158(a)(1) because these actions reasonably tend to coerce employees in the exercise of their rights, regardless of whether they do, in fact, coerce. Northern Wire Corporation v. NLRB, 887 F.2d 1313, 1317 (7th Cir.1989). See also NLRB v. Del Rey Tortilleria, Inc., 787 F.2d 1118, 1122-23 (7th Cir.1986); Berger Transfer & Storage Company, 678 F.2d at 690-91.\nThe Home contests the Board’s findings, arguing that, as a result of the filing of a union election, it was properly concerned about the status of the LPNs and whether or not they were supervisors whose loyalty to the Home could be compelled. The July 19 meeting, the Home insists, was called merely to advise RNs and LPNs of the Home’s legal position with regard to their status. The Home does not specifically deny that Yocum made the statements attributed to him, nor does it seriously challenge the testimony of LPNs Sands and Feldpouch. Rather the Home submits that Yocum’s remarks, considered as a whole, do not amount to a violation of the NLRA. The Home points to Yocum’s declaration, near the close of the meeting, that the Home was not going to fire anyone as evidence that his talk was intended neither to threaten nor coerce. The Home also claims that, before the ALJ, Administrator Wimer “testified that he heard none of the allegations stated [by the nurses] in this matter at the meeting, rather he heard statements to the effect that ‘if any employee was found by the Board to be a supervisor!,] the rights to engage in protected union activities and vote in an election would be lost.”\nThe circumstances of the meeting support the Board’s conclusion that Yocum’s statements went beyond merely announcing the Home’s legal position on the status of certain employees. Yocum’s assurances that the Home was not going to fire anyone undercut the argument that his previous statements were not the equivalent of threats against employees who engaged in union organization activities. If Yocum had not earlier conveyed the impression that union supporters could lose their jobs, such a statement would have been unnecessary. Finally, as the Board found, Yocum’s afterthought “did not result in his total withdrawal or repudíation of his earlier statements” that employees could be disciplined for union activities.\nFurthermore, nothing in Wimer’s testimony alters the conclusion that the meeting was intended to coerce the Home’s LPNs in the exercise of their right to self-organization. Contrary to the Home’s summary of his testimony, Wimer stated that, in the Home’s view, the LPNs were supervisors and that supervisors could be discharged for engaging in union activities. Moreover, he stated only that he did not remember any statement being made that LPNs were told they could be discharged before a final determination of their status by the NLRB. At best, Wimer’s testimony was a weak rebuttal to the testimony of Feldpouch, and the Board’s decision to credit her on this point will stand. See Richmond Recording Corporation, 836 F.2d at 295. Substantial evidence supports the Board’s finding that Yocum’s statements violated § 158(a)(1) of the NLRA.\n4. The August 10, 1990 Schedule\nLPN Michelle Sands had worked for the Home during several intervals of time and was perhaps the most visible union supporter at the facility. She testified on behalf of the union at the August 2,1990 Board hearing to determine whether the Home’s RNs and LPNs would be eligible to vote in the union election scheduled for October. Later, she filed a charge against the Home and testified at both administrative proceedings in these cases. LPN Deanna Bly attended the July 25 union organization meeting and was a known union supporter.\nOn August 10, the Home posted a new two-week work schedule for nurses. Previously, the Home had scheduled nurses’ shifts on a monthly basis. The August 10 schedule replaced a schedule that had two weeks left to run, and took LPN Sands off the full-time day shift, relegating her to on-call status. Sands was placed third on the on-call list, behind two employees, LPN Rosemary Stretch (a part-time employee who had been designated as “temporary” on past work schedules) and Paula Rentfro, both of whom had less seniority. Nursing Director Joyce Turpin had previously told Sands that she could work full-time on the day shift and that Stretch would work any shifts left over on an on-call basis. Prior to August 10, Stretch had been on on-call status.\nUpon learning that a new schedule had been posted, Sands contacted Assistant Nursing Director Kendra White. White told Sands that she had been placed on on-call status for financial reasons, and that Stretch and Rentfro would be called in ahead of her because of their seniority as measured by the dates they were last rehired by the Home. When Sands protested that she, in fact, had greater seniority than both women, White suggested that she speak to Nursing Director Turpin. Sands responded that she did not wish to speak to Turpin because she had lied during her testimony at the August 2 Board hearing. White replied, “Look, we didn’t ask for this.”\nUnder the August 10 schedule, LPN Bly was shifted from full-time to fourth position on the on-call list, behind Sands. When asked by Bly why she had been moved, Director Turpin said only that she had used rehiring dates to establish the order on the on-call list. When Bly mentioned that she was a full-time employee while Stretch only worked part-time, Turpin responded, “That’s just the way I’m doing it.”\nThe Board determined that the Home unlawfully discriminated against Sands and Bly by removing them from their full-time day shifts and placing them on on-call status, in violation of § 158(a)(1), (3), and (4). The Home argues that any schedule change relating to both employees was due to the “economic facts of life.” According to the Home, the shift changes were necessitated by the Home’s financial problems, not anti-union animus, and the reduced time period covered by the new schedule (two weeks instead of the usual thirty days) was a response to problems created by employees who were scheduled but did not show up for work.\nAs support for its argument, the Home points out that staff reductions began in 1990 prior to the advent of the union campaign, and that changes in the nursing department had been delayed until the late summer because the Home was engaged in the process of bringing its nursing department policies, schedules, and employment levels into line with state and federal regulations. The changes instituted on August 10, the Home insists, were for the purpose of allowing it to review its work schedule and to “reduce overhead.” Moreover, the scheduling changes affected many employees alike, regardless of union sympathies; some union adherents were not subject to any changes whatsoever.\nWe conclude that the Board had a sufficient basis for finding that the Home violated Sands’s rights under § 157. In determining whether an employer acts unlawfully, the Board may properly rely on such factors as the employer’s knowledge of union activity, manifestations of anti-union animus, suspicious timing, and departures from past practice. Rich’s Precision Foundry, 667 F.2d at 625. With respect to the Home’s treatment of Sands, there was evidence of each of these factors to demonstrate anti-union motivation. Prior to the August 1990 posting, the Home had scheduled nurses on a monthly basis for several years. The new schedule replaced one with two weeks left to run, and placed Sands behind two part-time employees. This move contradicted the apparent policy of the Home to give preference to permanent or full-time employees over temporary ones in matters such as scheduling, shift assignments, and staff reductions. Accordingly, the Board could reject the Home’s argument that seniority was determined solely by the last date of hire, without regard to full or part-time status.\nThe Home makes much of its financial problems during the summer and fall of 1990, arguing that sustained losses resulted in its sale to another organization in June 1991. However, the Home does not explain how its monthly losses are related to the August 10 scheduling changes. As the Board noted, the Home’s monthly losses went from a high of $32,759 in November 1989 to lows of $3,277 in April 1990 and $3,457 in June 1990. In its brief to this court, the Home gives loss figures for December 1990, and January and February of 1991. No figures are given for July, August, or September 1990 that might lend credence to the argument that the scheduling changes introduced on August 10 were motivated by business concerns. The failure of an employer to produce relevant evidence particularly within its control allows the Board to draw an adverse inference that such evidence would not be favorable to it. See NLRB v. Dorothy Shamrock Coal Company, 833 F.2d 1263, 1269 (7th Cir.1987). Certainly; in the absence of such evidence, the Board was entitled to reject the Home’s proffered justification for its actions. The Board found that the Home’s business justifications for the actions taken against Sands were pretextual, and substantial evidence supports that conclusion.\nEvidence of the Home’s unlawful treatment of Bly is not as strong as the evidence with respect to Sands, but we find it is sufficient to support the Board’s findings. The Board determined that Bly’s removal from the full-time shift was intended by the Home to punish Sands. As the Board characterized it, “Bly was a casualty in [the Home’s] war against Sands.” Regardless of whether Bly’s fate was part of plan by the Home to conceal its discriminatory treatment of Sands, we find there is substantial evidence to support the finding that Bly’s removal from her full-time position, only to be replaced by a temporary employee, violated her rights under § 157 of the NLRA. As discussed, the Board properly rejected as unpersuasive the Home’s business justifications for any scheduling changes, and the record reflects that, once placed on on-call status, Bly received few telephone calls to work, and these either came at the last minute or consisted of messages to call back in five minutes or “forget it.” This evidence is adequate to sustain the Board’s finding that the Home’s treatment of Bly violated § 158(a)(1) and (3).\n5. Assistant Nursing Director Kendra White’s Statement to LPN Michelle Sands\nThe Board found that Assistant Nursing Director White’s statement to Sands (“Look, we didn’t ask for this”) imparted a threat that linked Sands’s support for the union to her placement on the on-call list, thus constituting a separate violation of § 158(a)(1). Specifically, the Board concluded that “there can be no other interpretation except that White was saying [the Home] did not ask for the employees to organize a union and therefore the schedule change for Sands and others is what the employees deserved_” The Home challenges this finding, offering a somewhat different, if enigmatic, interpretation of the conversation. As the Home sees it, White was merely “advising Sands of the fact [that the Home] was facing a most unusual situation in the context of financial losses, scheduling problems and administrative proceedings.”\nWhatever this means, we find that the Board’s interpretation is supported by substantial evidence. Sands’s testimony of the incident was unrefuted. White’s comment arose in the context of a discussion over a scheduling change that adversely affected Sands, and was cast as a rejoinder to Sands’s remark concerning the veracity of Turpin’s testimony at a Board hearing. The inference drawn by the Board — that White was specifically referring to the employees’ efforts to organize a union and intended to link that endeavor to unfavorable scheduling assignments — is reasonable. By suggesting a connection between union activity and a reduction in Sands’s work hours, White’s statement amounted to an admission that some employees were getting what the Home considered to be their just desserts.\n6. Wearing of Union Insignia\nIn October 1990, two days before the union election, LPNs Judy Read and Lisa Standefer arrived at work wearing union patches on their uniforms. Both employees were union supporters; Read had previously attended the July 5 organization meeting. Director Turpin called the women into her office and told them to remove the patches. They complied. The Home’s employee handbook prohibits the wearing of pins or badges that “do not relate to better health care delivery.” This rule was not, however, enforced. Thus, Standefer had previously worn a yellow ribbon on her uniform to support the armed forces, and Read had worn a button to work on which was inscribed “Your Attitude Is Showing” without comment from nursing home management.\nThe Board found that Turpin’s actions violated § 158(a)(1). We have recognized that under the rights guaranteed by § 157, employees are entitled to wear union buttons or insignia as part of a concerted activity to assist the union. NLRB v. Mayrath Company, 319 F.2d 424, 426 (7th Cir.1963). See also Republic Aviation Corporation v. NLRB, 324 U.S. 793, 801-03, 65 S.Ct. 982, 987-88, 89 L.Ed. 1372 (1945); NLRB v. Orr Iron, Inc., 508 F.2d 1305, 1308-09 (7th Cir.1975) (per curiam). This right, of course, is not unbounded; it must coexist with “the equally undisputed right of employers to maintain discipline in their establishments.” Republic Aviation Corporation v. NLRB, 324 U.S. at 797-98, 65 S.Ct. at 985. An employer’s right to prohibit organizational activity, however,\nis limited to the restriction of activities which disrupt, or tend' to disrupt, production and to break down employee discipline, and does not include restriction of passive inoffensive advertisement of organizational aims and interests, i.e., the wearing of advertising insignia and buttons, which in no way interferes with discipline or efficient production.... ”\nCaterpillar Tractor Company v. NLRB, 230 F.2d 357, 359 (7th Cir.1956). See also Mayrath, 319 F.2d at 426-27.\nThe Home concedes that its employees have been permitted to wear pins and insignia on their uniforms despite the rule against such items, but argues that Beth Israel Hospital v. NLRB, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978), allows health care facilities, because they require an atmosphere of tranquility, order and discipline, to place “greater restrictions on [union] activity than employers in other types of operations.” This latitude, the Home proposes, shielded Turpin’s actions with respect to Read and Standefer.\nThe Home’s reading of Beth Israel is incomplete. That case involved not the wearing of union insignia, but a rule that prohibited employees from soliciting and distributing literature except in certain designated areas of a hospital. The Supreme Court held that “the Board’s general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibitions as necessary to avoid disruption of healthcare operations or disturbance of patients, is consistent with the Act.” Id. at 507, 98 S.Ct. at 2476.\nWhile Beth Israel would support the proposition that a health care facility may prohibit the wearing of patches that reasonably tend to interfere with employee discipline or disturb nursing home residents, it clearly does not endorse selective enforcement of an otherwise valid rule against wearing insignia unrelated to health care delivéry. The Home does not argue that the patches worn by Read and Standefer had the potential to disrupt the efficient and ordered delivery of resident services. As a result, the Home cannot adequately explain its sudden decision to enforce a rule against insignia that, by the Home’s own admission, had been negligibly enforced in the past. The Board could reasonably conclude that Turpin deliberately selected Read and Standefer for disparate and discriminatory enforcement of the Home’s rule against wearing insignia on employee uniforms.\n7. The Home’s Discriminatory Treatment and Discharge of LPN Brenda Tooth-man\nLPN Brenda Toothman was an early and open supporter of the union. She was one of three Home employees who initially contacted the Teamsters, she organized the July 5 meeting in the park, distributed authorization cards at work, and otherwise actively campaigned for union representation.\nUnder the August 10 work schedule, Toothman was moved from the 7 a.m. to 3 p.m. shift, where she had worked for a year and a half, to the 3 p.m. to 11 p.m. shift. When she asked Nursing Director Turpin why she had been moved to an evening shift when two part-time employees, LPN Rosemary Stretch and Paula Rentfro had been given a day shift, Turpin responded that the day shift was the only one that Stretch and Rentfro had agreed to work. When Tooth-man reminded her that she, too, had agreed to work only the 7 to 3 shift, Turpin relied, “That’s the way it is.” Previously, when she worked at the Home as a temporary employee, Toothman had been told by Turpin that temporary employees accumulated no seniority rights or benefits.\nOn November 5, 1990, Toothman took medical leave to undergo surgery for carpel tunnel syndrome. She had taken a leave of absence the previous April for the same surgical procedure, returning afterwards to her full-time position on the day shift. Before leaving in November, she presented the Home with a medical note giving January 2, 1991 as her return date. Administrator Wimer and Turpin signed the note.\nOn December 27, when she was ready to return to work, Toothman presented a medical release to Florence Glenn, the Home’s new Nursing Director and Turpin’s replacement. Glenn told Toothman that there was no opening for her at that time and that she had relinquished all seniority rights when she took medical leave. When Toothman stated that she had previously been reinstated after taking medical leave, Glenn responded that she was only following the Home’s policy as set forth in the employee handbook.\nOn January 7, Glenn met with Toothman and handed her a job evaluation dated December 27, .completed by an RN staff nurse (serving in the capacity of acting nursing director) and Administrator Wimer. Usually, nurses? evaluations were performed by the director and assistant director of nursing; Wimer had never before evaluated Tooth-man’s job performance. The evaluation contained lower ratings than Toothman had previously received, including a substandard grade for “Attitude,” even though she had not been the subject of a reprimand or disciplinary action.\nDuring their meeting, Glenn offered Toothman a full-time position on the 3 to 11 shift. Toothman accepted, but complained that she should have been allowed to return to her position on the day shift in light of her seniority over nearly all of the LPNs working that shift. When Toothman inquired whether or not the other LPNs working the 3 to 11 shift were going to remain on that shift, Glenn replied that they were. The next day, however, the Home moved LPN Paula Beeson, who had been hired the previous summer and, consequently, had less seniority than Toothman, from the 3 to 11 to the 7 to 3 shift.\nOn February 11, Toothman photocopied ten resident care plans for study at home. These plans, kept in a binder located in one of the nursing facility’s hallways, contain instructions pertaining to individual residents’ dietary, hygienic, and therapeutic needs, and are used by nurses working the different shifts. The nurse in charge of the care plans had recently quit working for the Home, and Nursing Director Turpin, just before leaving the Home’s employ herself, had instructed the LPNs how to complete the care plans in accordance with state requirements. As a result of her medical leave, Toothman had missed this training. Although her work had not yet required her to fill out a plan, Tooth-man decided that she should learn the proper way to write one.\nToothman’s supervisor, RN Nora Smith, observed her photocopying the plans and asked what she was doing. Toothman testified that when she asked if she could take the plans home to study, Smith replied that it was all right with her. Toothman also stated that Smith told her she could purchase a book explaining how care plans should be written. Deciding that she did not need all ten plans, Toothman discarded eight of them before leaving the facility, and cut the residents’ names off the remaining two.\nThe next day, Smith told Nursing Director Glenn that Toothman had copied the care plans. Glenn informed Bill Morgan, the Home’s new Administrator, and the two met with Toothman on February 14. Tooth-man admitted that she had copied the care plans and had taken two of them out of the facility. Morgan told Toothman that she had invaded the privacy of the Home’s residents and discharged her.\nThe Board found that the Home violated § 158(a)(1) and (3) by (i) failing to reinstate her to her former, or an equal, position of employment following her medical leave of absence, (ii) giving her a poor work evaluation, and (iii) ultimately discharging her. The Home challenges only the first and third findings. We conclude that substantial evidence supports both determinations.\nThe Home offers no explanation for its treatment of Toothman after her return from medical leave other than to resurrect the unavailing assertion that the Home had no seniority policy, an issue addressed earlier. The Home does not dispute that Tooth-man had previously taken medical leave and was fully reinstated, nor does it contend that she was told, in November, that by taking leave she would forfeit her seniority rights. Moreover, the employee handbook, which Nursing Director Glenn invoked as the source of the leave “policy,” supplies no justification for the Home’s apparent departure from past practice; indeed, the handbook’s provisions would appear to prohibit the action taken against Toothman. The Board’s conclusion that the Home failed to return Toothman to her former position for discriminatory reasons is supported by the evidence.\nThe Board found that the Home, by offering Toothman a position on the 3 to 11 shift after she returned from medical leave, dis-criminatorily failed to return her to a position that provided terms and conditions of employment similar to those she had previously enjoyed. In addition, the Board found that after Toothman had agreed to work on the evening shift the Home intentionally gave her a poor work evaluation in retaliation for her union activities. The Home’s brief does not address Toothman’s placement on the evening shift, and only mentions the substandard evaluation to say that she was not disciplined as a result of it. Because the Home does not challenge the Board’s conclusions that these actions constituted yet more transgressions of the NLRA, those findings are summarily affirmed. NLRB v. Jakel Motors, Inc., 875 F.2d at 645. The uncontested violations do not disappear, however; “[t]hey remain, lending their aroma to the context in which the [contested] issues are considered.” NLRB v. Clark Manor Nursing Home Corporation, 671 F.2d 657, 660 (1st Cir.1982).\nThe Home does challenge the Board’s finding that it unlawfully discharged Toothman. The Home argues that, by copying resident care plans for home study, Toothman removed medical records from the facility in violation of the faculty’s anti-disclosure policies as well as state and federal regulations. The Home points out that, under the provisions of the employee handbook, the Home has the authority to discharge employees who take confidential records. In defense of the Home’s decision, Administrator Morgan testified before the ALJ that, during his forty years in the health care field, he had never worked in a facility that allowed nurses to make copies of health care plans and take them home. Morgan also stated that he would have fired Toothman for copying the plans even if she had not engaged in union activity. Toothman’s supervisor, RN Nora Smith, testified that she never gave Tooth-man permission to photocopy the plans. Finally, the Home submits that Toothman implicitly acknowledged her misconduct because she originally protested to Glenn and Morgan only that discharge was too severe a penalty.\nToothman testified that she wanted the care plans for private study and had removed the names of residents from the two copies she took with her. The Board credited this testimony over that of the Home’s witnesses, finding that no breach of resident confidentiality had, in fact, occurred. The Board noted that Toothman’s supervisor, RN Smith, admitted that she did not know whether the Home had any policy prohibiting the photocopying of care plans. Moreover, both Smith and Glenn acknowledged that there could be no breach of confidentiality if a resident’s name had been removed from a plan. Morgan admitted that, at the time he discharged Toothman, he had no knowledge that she had shared any information in the plans with others.\nThe Board may properly look to circumstantial evidence in determining whether a dismissal was illegally motivated. Livingston Pipe & Tube, Inc. v. NLRB, 987 F.2d 422, 426 (7th Cir.1993). This evidence can include the employer’s knowledge of the discharged employee’s union activity, whether or not the dismissal closely followed the commission of other unfair labor practices by the employer, and an implausible explanation for the discharge. Id.; NLRB v. Industrial Erectors, Inc., 712 F.2d at 1137. “Once the general counsel establishes that the employer was motivated by antiunion sentiment, the employer will be held in violation of the Act unless it can show that the same decisions would have been made absent the employee’s protected activity.” J. Huizinga Cartage Company v. NLRB, 941 F.2d 616, 620 (7th Cir.1991).\nThe evidence supports the Board’s finding that the Home’s reason for discharging Toothman — that she had breached resident confidentiality — was a pretext for unlawful discrimination in violation of § 158(a)(1) and (3). Toothman had a legitimate reason for photocopying the care plans, and no information concerning the Home’s residents was disclosed to others. In light of this evidence, the Board could reasonably conclude that Toothman, who had previously been subjected to the Home’s unfair labor practices, would not have been discharged absent her union activities. Rather, termination was the final step in a series of reprisals against an employee who had been an active union adherent from the start.\nB. The Second Order\nDischarge of LPN Michelle Sands\nOn February 14, 1991, LPN Michelle Sands, who had been placed on on-call status as a result of the August 10, 1990 schedule, met with Director Glenn to discuss maternity leave. Sands told Glenn that she planned to take six weeks off following her delivery, scheduled for early March. Glenn said fine, adding that Sands should provide her with a medical release permitting her to work until the date of delivery. Sands provided Glenn with a note from her doctor on February 19. She delivered her child on March 6.\nThe ALJ conducted hearings on the allegations of unfair labor practices against the Home on April 1-3. Sands was called as a witness by the NLRB; she was the sole employee representative seated at Board counsel’s table. During a break in the hearing, Sands was speaking with LPN Deanna Bly when the two were joined by Administrator Morgan. Bly asked Sands when she planned to return to work, and Sands replied that she would return in a couple of weeks, once she had received medical clearance from her doctor. Morgan said nothing about Sands’s status as a Home employee at that time.\nTwo weeks later, Sands contacted Ward Clerk Paula Chesser to notify the Home that she was able to return to work. Chesser responded, “Okay.” Because she was not subsequently contacted to work, Sands applied for unemployment compensation. On April 24, the Unemployment Compensation Board (UCB) notified her that the Home was contesting her application for benefits on the ground that she had quit her job.\nSands immediately phoned Morgan, who told her that the Home assumed she had quit because she had not filled out papers requesting a leave of absence as required by the Home’s employee handbook. Sands replied that Glenn did not mention the need to fill out any forms when the two met on February 14. Morgan stated that Glenn should have done so and, when asked by Sands if she still had a job, told her everything was fine and instructed her to call Joan Bell, the Home’s personnel director. Morgan added that Sands should refer the UCB to him if there were any more problems.\nSands telephoned Bell the same day and related what Morgan had said. Bell replied that Sands was still required to complete the relevant paperwork requesting a leave of absence. When Sands relayed this information to Morgan in a subsequent call, Morgan disagreed with Bell and again instructed Sands to refer the UCB to him. Later that day, after unsuccessfully trying to contact Morgan, UCB informed Sands that it would resume payment of her unemployment benefits. Subsequently, Sands received a letter from UCB stating that, after discussing the matter with the Home, UCB had determined that she had not quit her job.\nOn May 14, Sands received another letter from the UCB, this time notifying her that the Home was appealing the UCB’s finding that Sands had not quit as well as its decision to resume unemployment benefits. Sands telephoned Morgan, who denied any knowledge of the appeal. Morgan suggested that Sands call the Home’s insurance carrier and, when asked by Sands who she should contact at the Home about scheduling work, told her to call Julia Little. When Sands called Little and told her that she was available to work, Little said that she had just been informed by Morgan that Sands no longer worked for the Home.\nSands then called Morgan and demanded an explanation for his statement to Little. Morgan said that he had not intended to mislead her, but that the Home’s “bosses” felt that she had quit because she had not filled out medical leave papers. When Sands reminded him that he had previously told her everything was fine, Morgan merely repeated that, because she had not filled out the forms, the “bosses” felt she had quit. Sands asked if he was referring to Dan Colby, Chief Executive Officer of Shelby Memorial Hospital, and Morgan said yes. Sands then attempted to reach Colby, who did not return her calls. Approximately a week later, the Home dropped its appeal with the UCB. Sands has not worked for the Home since.\nThe Board found that the Home violated § 158(a)(3) and (4) by terminating Sands because of her union activities and because she testified at the April 1991 unfair labor practices hearing. The Home acknowledges that it was well aware of Sands’s extensive union activities, but claims that these activities do not insulate an employee from an employer’s valid rules and regulations. The Home does not now contend, as it did before the ALJ and the Board, that it was entitled to treat Sands as if she had quit because she did not complete the appropriate paperwork. Rather, the Home takes the position that the leave policy set forth in the employee handbook “did not give Sands any right to a leave of absence” because she was not a full-time employee. The Home also claims that Sands never advised the Home that she was going to be absent from work for more than three days, and never supplied the Home with a written work release from her physician upon her return. Finally, the Home asserts that, in order to show discriminatory treatment of Sands, counsel for the NLRB bore the burden of showing that the Home gave similar leave to persons who, like Sands, were not full-time employees.\nThe Board’s finding that Sands was effectively terminated for her union participation and testimony at the unfair labor practices hearing before the ALJ is amply supported by the evidence. As the Board noted, the Home’s assumption that Sands had voluntarily left was, to say the least, inconsistent with her actions, including her discussion with Nursing Director Glenn about maternity leave, her telephone call notifying the Home that she had been cleared by her doctor to return to work, and her repeated calls to Morgan in an attempt to secure her job. The Board also noted that the rule governing leave in the employee handbook applied only to full-time employees, concluding that Sands was under no obligation to submit a request for maternity leave under this provision. The Home seizes upon this conclusion in this court, arguing that Sands had no right to maternity leave under the policy in the first place and thus her leave of absence could properly be treated by the Home as a voluntary departure from her job. Because this argument was not raised before the ALJ or the Board, however, it is waived. See 29 U.S.C. § 160(e). See also Woelke & Romero Framing Company, Inc. v. NLRB, 456 U.S. 645, 665-66, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398 (1982). The Home has not alleged, much less established, any extraordinary circumstances that would allow it to bypass § 160(e)’s waiver rule. See PIE Nationwide, Inc., 923 F.2d at 516 n. 13; NLRB v. American Printers & Lithographers, 820 F.2d 878, 881 n. 2 (7th Cir.1987).\nThe Board found that Nursing Director Glenn said nothing in her discussion with Sands about the need to submit papers to receive medical leave, nor informed Sands that an oral request for leave was insufficient. Moreover, the evidence of record shows that the Home did not require strict adherence to handbook policy, even of those to whom it indisputably applied: LPN Tooth-man, a full-time employee at the time, took medical leave from November 5,1990 to January 2, 1991 without submitting a written request and was not considered to have quit. Indeed, the Board found that the Home did not produce a single example of an employee who was either discharged or assumed to have quit as a result of failing to submit a written request for a leave of absence.\nThe Home first took the position that Sands had quit her job only after she had testified at the April 1991 hearing, more than a month after she had left work to give birth. At the hearing, Sands told LPN Bly, in the presence of Director Morgan, that she intended to return to work in a couple of weeks. Morgan made no response, supporting the inference, drawn by the Board, that the Home did not believe at that time that Sands had stopped working there for good.\nThe Home’s argument that Sands did not present the Home with a written release from her doctor when she sought to return to work is irrelevant to the issue of whether Sands was effectively terminated. The Home does not claim that, but for a written release, Sands would have been promptly reinstated. Likewise, the argument that the Board failed to show that the Home granted similar leaves of absence to on-call employees is without merit. It is undisputed that Glenn approved Sands’s request for time off. Once approval was given, the issue became why the Home assumed Sands had quit when all indications were to the contrary. The Board adequately demonstrated that the Home’s leave “policy” depended largely on the identity, not the status, of the employee, and discriminatory treatment of employees whose identity is linked to union activities violates the NLRA.\nThe Home’s insistence that Sands had quit, when the evidence clearly shows she did not, amounted to discharge in violation of § 158(a)(3). That her termination was motivated, in part, by her appearance at the April 1991 Board hearing violates § 158(a)(4). Substantial evidence supports both findings.\nIV. Conclusions\nThe record in these cases reveals that the Home was actively hostile toward the union organization efforts of its employees, and substantial evidence supports the challenged findings of violations of § 158(a)(1), (3), and (4). Accordingly, the Board’s applications for enforcement are granted in their entirety.\nEnforced\n. We adopt the ALJ’s designation of these shifts as the 7 a.m. to 3 p.m., 3 p.m. to 11 p.m., and 11 p.m. to 7 a.m. shifts.\n. 29 U.S.C. § 157 provides that \"[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations....\" 29 U.S.C. § 158(a)(1) makes it an unfair labor practice for an employer \"to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” § 157. Section 158(a)(3) makes it an unfair labor practice for an employer to discriminate \"in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization....” Section 158(a)(4) makes it an unfair labor practice \"to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under” the NLRA.\n. Shelby Memorial Hospital Association, 1991 WL 280338 (1991).\n. Shelby Memorial Hospital Association, 1992 WL 77796 (1992).\n. Albert Wimer, the Home’s Administrator until January 1, 1991, testified before the ALJ that, prior to 1989, the Home administered percentage wage increases across the board to its employees. In 1989, after Dan Colby took over as Chief Executive Officer of the hospital affiliated with the Home, the policy was changed so that raises were based on merit and awarded annually on the individual employee's anniversary date.\n. The record discloses that a number of the Home's nurses, including LPNs Deanna Bly and Marlena Pritzman, were told that wage increases were being withheld because they would be considered a bribe to employees.\n. Endsley continued to work at the Home until Thanksgiving, when she quit. She was rehired on January 19, 1991.\n. For example, CNA Endsley's anniversary date was in March.\n. Subsequent to the meeting, the regional director of the NLRB found that LPNs were not supervisors within the meaning of the NLRA. As the Board pointed out in its first order, \"[a]n employer acts at its peril when it takes steps calculated to chill the exercise of [§ 157] rights by individuals who may later be found to be under the protection of the Act” (citing Sav-On Drugs, 1980 WL 12648 (1980), enforced, 728 F.2d 1254 (9th Cir.1984) (en banc)).\n. The following exchange took place during the cross-examination of Wimer by the General Counsel of the NLRB:\nQ. Do you recall during the course of that meeting there being some discussion about the LPN’s being supervisors?\nA. Yes.\nQ. That was the employer’s position; isn’t that correct?\nA. That was the employer’s position.\nQ. Mr. Yocum advised employees that was the employer’s position?\nA. Yes, sir.\nQ. And was there not discussion that with employees — if these LPN’s were supervisors, they could be discharged?\nA. Yes. It was.\nQ. Okay.\nA. If my memory serves me right.\nQ. Was it not also stated that they could be discharged even before a determination was made by the Labor Board at the hearing that was upcoming?\nA. I can’t recall that.\nQ. But it was mentioned that they could be discharged?\nA. If supervisors participated in union activity, that they could be discharged.\nQ. Did you tell the LPN’s that they were supervisors?\nA. Yes. We did. In the company’s view point and in my view point, they were supervisors.\n. Sands worked as a dietary aide from September 1981 to August 1982; as a CNA from September 1982 to March 1983, and from November 1983 to February 1984; and as an LPN from September 1987 to March 1988, and from March 1989 to April 1991.\n. Nurses on the on-cal! list did not work regular hours but were contacted to fill in as needed.\n. Paula Rentfro was first hired by the Home in April 1981 as a CNA. She worked off and on until March 1991. Rentfro’s status is not described in the ALJ's opinion; however, the record indicates that, at the time of the new sched-ulc, she was considered a part-time employee who worked during the day.\n.Specifically, the ALJ’s Conclusions of Law found that the Home's treatment of Sands violated § 158(a)(1), (3) and (4), and that its treatment of Bly violated § 158(a)(1) and (3).\n. The direct testimony of former Administrator Wimer supports the existence of an informal seniority policy based on full or part-time status:\nQ. Now, during your tenure as administrator, did the facility have a — a seniority policy?\nA. We did not have a strict seniority policy. We tried to go by seniority purposes as far as cutting back and with part-time people versus full-time people versus this sort of thing [referring to an employee's preferences for particular work times]. And going by date of employment. But we did not have a formal seniority policy, per se.\nQ. Did you [follow] seniority — with relation to shift assignments?\nA. We tried to. Yes.\nQ. Were there situations where you would not do this?\nA. It would depend on whether the individuals [sic] was a full-time person, a part-time person and their date of hire. Yeah.\nQ. And if you were unable to follow seniority, would you follow any other procedures?\nA. We tried to go by the employee preference.\nOn cross-examination, Wimer testified as follows:\nQ. Well, let me ask you in a different way then. Two employees start on January 1, 1990.\nA. Right.\nQ. One is a temporary employee.\nA. Right.\nQ. The other one is a full-time employee.\nA. Right.\nQ. When it comes time to either make cutbacks or changes in schedules—\nA. - A temporary employee would get it first.\nWimer also testified that temporary and on-call employees received \"basically” no benefits, with the exception of accrued vacation time. This is supported by the unrebutted testimony of LPN Brenda Toothman that, when she was working at the Home as a temporary employee, Nursing Director Turpin had told her that temporary employees accumulated no seniority rights or benefits. We think the record discloses that the Home had an established practice — one that \" ‘would be clearly apparent to a reasonably objective employer,' ” Don's Olney Foods, 870 F.2d at 1285 (quoting Gossen Company v. NLRB, 719 F.2d 1354, 1357 (7th Cir.1983)) — of giving preference to full-time employees in employment-related matters.\n. We point out that the Home's treatment of Sands subsequent to the schedule change smacks of retaliation, further supporting the Board's finding that the new schedule was intended to punish her for her union activities. Uncontra-dicted evidence in the record demonstrates that, once Sands was placed on on-call status, the Home made little, if any, effort to contact her to work. In addition, on November 4, 1990, when two positions on the day shift were available, Sands reapplied for a full-time position. She was not rehired until November 20; in the interim, however, the Home hired a new LPN, Nancy Miller, and used temporary employees Stretch and Rentfro to fill the full-time vacancies. Even after being returned to full-time status, Sands was removed to the on-call list in January 1, 1991, ostensibly because she was the last full-time nurse \"hired” by the hospital.\n. The NLRB's argument to this court is that Bly, who had less seniority than Sands, was deliberately placed behind Sands on the on-call list. This was done, according to the Board's counsel, because “the Home could not purport lawfully to remove Sands from full[-]time [status] without removing Bly as well.” We understand the argument to be that the Home removed Bly from her full-time position in an effort to conceal its unlawful treatment of Sands.\n. The patches were self-adhesive, with a white field bearing a square with a check mark in it. The words \"Vote Yes” also appeared. Teamster representatives had told Home employees that they could wear the patches two days before the election.\n. In its brief, the Home refers to Beth Israel by name, but gives the citation to a later case dealing with substantially the same issue, NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 99 S.Ct. 2598, 61 L.Ed.2d 251 (1979). Our analysis and conclusions would be the same under both cases.\n. At the time, Toothman had more seniority than all but one LPN on the day shift.\n. Bill Morgan replaced Albert Wimer as the Home's Administrator on January 2, 1991.\n. The relevant section of the employee handbook reads:\nAn approved leave of absence assures the employee his/her previous or a similar position at a salary not less than was received at the beginning of the leave of absence.\n.The handbook states:\nAny employee who, in the opinion of his supervisor or chief executive officer is guilty of disseminating confidential information concerning patients or residents, may be discharged from his position or have such other disciplinary action taken as the supervisor deems appropriate.\n. These hearings resulted in the first order.\n. That policy states:\nAfter continuous employment of at least one year, full-time employees are eligible to request a leave of absence for legitimate cause, such as extended illness, further education or maternity leave.\nRequest for leave of absence shall be in the form of a request form or letter addressed to the supervisor and submitted at least 30 days in advance of the starting date of the proposed leave....\n[END_CASE]", "role": "user" } ]
10,512,619	Harold W. DOTSON, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services of the United States of America, Defendant-Appellee	Dotson v. Shalala	1993-08-02	No. 92-3148	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before RIPPLE and MANION, Circuit Judges, and ENGEL, Senior Circuit Judge."], "parties": ["Harold W. DOTSON, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services of the United States of America, Defendant-Appellee."], "opinions": [{"text": "ENGEL, Senior Circuit Judge.\nHarold Wayne Dotson, a Supplemental Security Income claimant, appeals the district court’s grant of summary judgment in favor of Donna E. Shalala, Secretary of the Department of Health and Human Services. In granting summary judgment, the district court upheld an administrative law judge’s finding that Dotson was engaging in substantial gainful activity by supporting a $200- to $300-per-day heroin and cocaine habit through illegal means. See Dotson v. Sullivan, 813 F.Supp. 651 (C.D.Ill.1992). Because we agree that illegal activity can constitute substantial gainful activity, we affirm.\nI. BACKGROUND\nDotson applied for Supplemental Security Income benefits on September 25, 1989, alleging disability since 1968 due to asthma, multiple allergies, and past drug abuse. The Social Security Administration denied his application on January 10,1990, and again upon reconsideration on May 21, 1990. Dotson then requested and received a hearing before an administrative law judge (“ALJ”). At the administrative hearing, Dotson testified that he uses $200 to $300 worth of heroin and cocaine each day. Additionally, he testified that he supports his drug habit by hustling. When asked to define hustling, Dotson replied: “steal, beg, whatever, you know.”\nWith regard to his begging, Dotson stated that he usually panhandles at the Warner Homes, which are located in a poor neighborhood in Peoria, Illinois. As to Dotson’s thievery, the following colloquy occurred during the administrative hearing:\nQ. [By ALJ] Where do you steal at?\nA. [By Dotson] You can do that anywhere. Wherever we can find a place to.\nQ. Give me an idea. Give me some examples.\nA. The mall, downtown, wherever. You just ride and look and, you know.\nQ. How long do you spend riding and looking until you find a place to steal?\nA. As long as you have to.\nQ. Like how long?\nA. Sometime—\nQ. All day long?\nA. Sometimes it takes all day.\nQ. What kinds of things have you stolen this month?\nA. This month?\nQ. Uh huh.\nA. I, well, I like to, I try to concentrate on saws.\nQ. On what?\nA. Saws.\nQ. Saws?\nA. You know, the chainsaws, the little bitty chainsaws?\nQ. Where do you find those at?\nA. Everywhere, everywhere.\nQ. And once you get them, what do you do with them?\nA. You sell them.\nQ. To who?\nA. A lot of people buy.\nQ. Well, where do you find — I wouldn’t imagine there would be a lot of demand for them in Warner homes.\nA. No.\nQ. Where do you go to sell the chainsaws?\nA. Different businesses.\nQ. Like what?\nA. Small businesses.\nQ. Give me some examples.\nA. Like small stores or cleaners, different places like that.\nQ. Do you have to travel around to these places? How long does it take you to find somebody to buy a saw?\nA. Usually, they already, you have been — you kind of already know they probably want one.\nQ. So you have already canvassed these places earlier? You have gone out and—\nA. No, you have probably sold them stuff and they can give you kind of an idea about what else they might like, you know.\nBased on Dotson’s testimony, the ALJ found that Dotson’s stealing and panhandling constituted substantial gainful activity (“SGA”) worth an average of approximately $5,600 per month and, accordingly, denied his claim for SSI benefits. Specifically, the ALJ found that, due to the poor area in which Dotson panhandles, the bulk of his income must come from illegal means. As to the nature of Dotson’s criminal endeavors, the ALJ concluded:\nIn order to steal he must “case” the area in which he has determined to steal the property. He must then plan on how he is going to steal the property and then actually steal it. During the month in which the hearing was held the claimant was stealing chainsaws. Lifting and carrying the chainsaws would also be significant physical activity. The planning and execution of the larceny entails significant mental activity. From these activities the claimant earns enough money to support his cocaine habit and provide him with other money in substantial amounts exceeding $200 to $300 a day. [Emphasis in original.]\nOn July 9, 1991, the Appeals Council declined to review the ALJ’s decision. Dotson then filed the instant action against the Secretary of the Department of Health and Human Services (“Secretary”) in federal court. On July 1, 1992, with cross-motions for summary judgment before it, the district court granted the Secretary’s motion for summary affirmance and entered a separate judgment against Dotson and in favor of the Secretary. See Dotson v. Sullivan, 813 F.Supp. 651 (C.D.Ill.1992). This appeal followed.\nII. DISCUSSION\nDotson essentially raises four arguments. First, he believes that illegal activities undertaken solely to satisfy a drug addiction cannot constitute SGA. Second, assuming that illegal activity can constitute SGA, Dotson claims that the ALJ’s finding of SGA in his case is unsupported by substantial evidence. Third, Dotson contends that if illegal activity undertaken to support a drug habit can constitute SGA, then the Secretary is required to deduct the cost of the narcotics from the claimant’s income as an impairment-related work expense. Fourth and finally, Dotson believes that using illegal activities to furnish the basis for finding SGA denies him due process and equal protection of the laws under the United States Constitution.\nA. OVERVIEW.\nThe Social Security Act (“Act”), as amended, 42 U.S.C. § 301 et seq., provides for the payment of benefits to disabled persons. Title II of the Act governs the payment of Old-Age, Survivors, and Disability Insurance (“OASDI”) benefits to disabled persons who have contributed to the Social Security program. 42 U.S.C. § 401 et seq. Title XVI of the Act, the title under which Dotson filed his application for benefits, provides for the payment of Supplemental Security Income (“SSI”) benefits to disabled persons who are indigent. 42 U.S.C. § 1382 et seq.; see generally Bowen v. Yuekert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987). Both Titles II and XVI define disability as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months....” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).\nPursuant to statutory authority, the Secretary has promulgated regulations establishing a five-step sequential analysis for determining whether an SSI claimant is disabled. See 20 C.F.R. § 416.920; Sullivan v. Zebley, 493 U.S. 521, 525, 110 S.Ct. 885, 888, 107 L.Ed.2d 967 (1990). The first step of the process, and the only one relevant for purposes of this appeal, requires the Secretary to determine whether the claimant is engaging in SGA. See 20 C.F.R. § 416.-920(a). A finding of SGA means that the claimant is ineligible for SSI benefits. Id. at § 416.920(b); Yuekert, 482 U.S. at 140, 107 S.Ct. at 2290. In this case, because the ALJ found that Dotson’s stealing and panhandling-constituted SGA, he denied Dotson’s claim for benefits without moving to the next step in the sequential analysis.\nB. ILLEGAL ACTIVITY AS SGA.\nOur research reveals that we are the first appellate court to address the issue of whether illegal activity can support a finding of SGA. The handful of federal trial courts faced with this question, including the district court below, have answered unanimously in the affirmative. Because the ALJ and district court’s determination that illegal activity can constitute SGA is a construction of the Secretary’s regulations, we review this decision of law de novo. See Johnson v. Sullivan, 922 F.2d 346, 356 (7th Cir.1990).\nAs the definition of disability quoted above indicates, the inability to engage in SGA is a statutory prerequisite to obtaining either SSI or OASDI benefits. Nonetheless, Congress delegated to the Secretary the responsibility for defining SGA. 42 U.S.C. § 1382c(a)(3)(D) (Title XVI). In response to the Act’s mandate, and as the components of the term suggest, the Secretary has defined SGA as “work activity that is both substantial and gainful.” See 20 C.F.R. § 416.972. Work activity is substantial if it “involves doing significant physical or mental activities.” Id. at § 416.972(a). Work activity is gainful if it is “the kind of work usually done for pay or profit, whether or not a profit is realized.” Id. at § 416.972(b); see generally Callaghan v. Shalala, 992 F.2d 692 (7th Cir.1993) (discussing elements of SGA). Activities such as taking care of one’s self, performing household tasks, engaging in hobbies or therapy, and attending school, clubs, or social programs generally do not constitute SGA. 20 C.F.R. § 416.972(c).\nThe foregoing framework underscores the dual nature of an ALJ’s inquiry into whether a claimant is engaging in SGA. Under the substantiality prong of the analysis, an ALJ considers the nature of the undertakings comprising the claimant’s work activity. Thus, the degree to which a claimant’s work requires the use of “expertise, skills, supervision and responsibilities” becomes relevant in determining whether that work constitutes SGA. See 20 C.F.R. § 416.-973(a). Additionally, an ALJ will consider how well a claimant performs his or her work activities:\nIf you do your work satisfactorily, this may show that you are working at the substantial gainful activity level. If you are unable, because of your impairments, to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work, this may show that you are not working at the substantial gainful activity level. If you are doing work that involves minimal duties that make little or no demands on you and that are of little or no use to your employer, or to the operation of a business if you are self-employed, this does not show that you are working at the substantial gainful activity level.\nId. at § 416.973(b).\nIn evaluating the gainfulness of a claimant’s work, an ALJ’s inquiry is more circumscribed. Here, as noted above, the claimant’s undertakings need be only of the type that normally result in pay or profit. In other words, a claimant can be found to be engaging in SGA without earning any income. See Callaghan, 992 F.2d at 695-96 (unprofitable business owner was engaging in SGA). This is not to say that a claimant’s earnings are irrelevant for purposes of determining whether he or she is engaging in SGA. See, e.g., 20 C.F.R. § 416.974(a)(1). To the contrary, a claimant who earns on average less than $300 per month is presumed not to be engaging in SGA, while a claimant who makes more than an average of $500 per month is presumptively ineligible for SSI benefits. Id. at §§ 416.974(b)(3)(vii), (b)(2)(vii). As with most legal presumptions, however, these income guidelines are rebut-table and “do not relieve an ALJ of the duty to develop the record fully and fairly.” Dugan v. Sullivan, 957 F.2d 1384, 1390 (7th Cir.1992) (citations and internal quotations omitted).\nAgainst this background, Dotson concedes — as he must — that in at least some instances illegal activity can be substantial gainful activity. Dotson continues, however, that the context in which his thievery occurs precludes its use in determining whether he has been engaging in SGA. In his own words:\nA drastic distinction exists between a person who is engaged in illegal activity for effectively the equivalent of a legal career such as being a drug dealer, illegal drug importer or other illegal activity which has counterparts in lawful activities such as business managers, business owners and the like, and a thief who steals merely to feed the cravings of unquenchable drug addiction.\nAplnt’s. Br. at 18. Considering Dotson’s claim under the scheme set forth above, we conclude that he forwards a distinction without a difference.\nAdmittedly, even a cursory examination of the regulations reveals that the Secretary envisioned their application within a traditional employment context. Importantly, however, nothing in the Act or its regulations specifically requires SGA to be lawful. This silence, we believe, suggests that illegal activities can constitute SGA. The inference is strengthened, moreover, when considering that the relevant considerations noted above apply with almost equal ease irrespective of the legality of the activities involved. Thus, one can envision a number of illegal activities that might not rise to the level of SGA. Whether legally or illegally employed, the regulations direct an ALJ to focus on whether the claimant is performing significant physical or mental activities, and doing so with the intent of earning money or making a profit.\nMoreover, it must be remembered that an ALJ performs the SGA analysis as one of five steps used to determine whether a person is disabled and, consequently, unable to function within our economy. A claimant who can manage through illegal means is just as undeserving of benefits as a claimant who can survive without violating the law. For this reason, there is no difference between the addict who spends all of his lawfully derived earnings on narcotics and the one who illegally obtains, and then exhausts, her income. Both are fueled, to quote Dotson, by the “cravings of unquenchable drug addiction.” The only real distinction between the two — the lawfulness of their income — -finds no cognizance under the Act and its interpretive regulations.\nFinally, our conclusion that illegal activity can constitute SGA derives substantial support from the well-established tax principle that unlawful earnings come within the meaning of the term “gross income” and are thus taxable. See, e.g., James v. United States, 366 U.S. 213, 218, 81 S.Ct. 1052, 1054, 6 L.Ed.2d 246 (1961) (plurality opinion of Warren, C.J.), overruling Commissioner v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946); United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 607, 71 L.Ed. 1037 (1927). Notably, the Act has adopted the tax code’s definition of gross income for purposes of determining whether a SSI claimant’s income is sufficiently high so as to render him or her ineligible for benefits. 42 U.S.C. § 1382(d); see also 20 C.F.R. § 416.-1110(b). Indeed, one of the concerns motivating the plurality in James, “to remove the incongruity of having the gains of the honest laborer taxed and the gains of the dishonest immune,” 366 U.S. at 218, 81 S.Ct. at 1054, provides the crux of our reasoning in this case.\nC. SUFFICIENCY OF THE EVIDENCE.\nHaving concluded that illegal activity can constitute SGA, we must next determine whether the ALJ properly applied the legal standard in Dotson’s case. Our inquiry is a limited one. We will not decide facts anew, reweigh evidence, or substitute our judgment for the Secretary’s. Shroeter v. Sullivan, 977 F.2d 391, 394 (7th Cir.1992). Rather, we look to see whether “substantial evidence” supports the ALJ’s findings. See 42 U.S.C. § 1383(c)(3) (citing 42 U.S.C. § 405(g)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).\nDotson first contends that the ALJ had before him no evidence of specific illegal acts which could support a finding of SGA. Secondly, he believes the ALJ erroneously assumed that he paid full street-value for the narcotics he used and, thus, overestimated the amount of income needed to support his drug habit. We address each claim in order.\nDotson’s first claim, that the record lacks any evidence of illegal activities, is belied by his own testimony and by the reasonable inferences drawn therefrom by the ALJ. For example, when the ALJ asked Dotson to describe what types of items he had stolen in the month during which the administrative hearing was held, Dotson replied: “I try to concentrate on saws.... You know, the chainsaws, the little bitty chainsaws.” Dotson then went on to explain, in some detail, how he would sell the stolen items. Additionally, the ALJ made at least one specific inquiry into the substantiality of Dotson’s activities, asking him how long it takes him to find a place to steal.\nWe grant to Dotson his point that the record contains no evidence concerning any specific act of thievery. Also, we agree with him that the ALJ could have more fully developed the record as to the nature of his criminal undertakings. Nevertheless, we cannot say that the record before us contains less than substantial evidence that Dotson’s thievery required the significant use of his physical and mental skills, and that those skills were applied within a context designed to produce pay or profit. See 20 C.F.R. §§ 416.972(a), (b). In short, Dotson’s testimony allowed the ALJ to reasonably conclude that the effort required to steal the chainsaws with regularity constituted SGA, and we therefore uphold this aspect of the ALJ’s decision. A more exacting inquiry, while desirable, was not required.\nDotson’s second argument, that the ALJ overestimated the cost of the narcotics, is also unpersuasive. As an initial matter, this claim suffers from the same weakness that proved fatal to his first argument, that is, Dotson testified without contradiction to using $200 to $300 worth of heroin and cocaine daily. If Dotson actually paid less for his narcotics, one would have expected him to testify accordingly. Furthermore, this case is unlike Curtis v. Sullivan, 764 F.Supp. 119 (N.D.Ill.1991), where the ALJ simply imputed to the claimant an income sufficient to satisfy his addiction. In that case, the ALJ concluded, in the absence of evidence as to legal or illegal employment, that the claimant had to be engaging in SGA in order to support his expensive drug habit. Here, on the other hand, Dotson’s testimony as to his thievery filled the gap. From this, the ALJ was justified in finding that Dotson’s earnings surpassed $500 per month, thereby rendering him presumptively ineligible for SSI benefits. See 20 C.F.R. § 416.974(b)(2)(vii).\nWe agree with the court in Curtis that simply because a claimant has a severe and expensive drug habit does not mean that the person is engaging in SGA to support it. 764 F.Supp. at 120-21. The record must contain substantial evidence, of the type outlined in Section 11(B), supra, that the claimant is engaging in legal or illegal activities that are substantial and gainful. Because we have held that the ALJ’s decision in this case comports with those requirements, we reject Dotson’s challenge to the evidence supporting the Secretary’s decision.\nD. NARCOTICS AS AN IMPAIRMENT-RELATED WORK EXPENSE.\nDotson next raises the interesting yet ultimately unavailing argument that, if illegal activities undertaken to maintain a drug habit can constitute SGA, then the cost of the narcotics must be deducted from income as an impairment-related work expense (“IRWE”) under 42 U.S.C. § 1382a(b)(4)(B)(ii) and its interpretive regulations, 20 C.F.R. § 416.976. As we discuss below, Dotson misapprehends the nature of IRWEs.\n42 U.S.C. § 1382a(b)(4)(B)(ii), enacted as part of the Social Security Disability Amendments of 1980, Pub.L. No. 96-265, 94 Stat. 441 (1980), provides:\nIn determining the income of an individual (and his eligible spouse) there shall be excluded ... if such individual (or such spouse) is disabled but not blind (and has not attained age 65, or received benefits under this subchapter (or aid under a State plan approved under section 1352 or 1382 of this title) for the month before the month in which he attained age 65) ... such additional amounts of earned income of such individual, if such individual’s disability is sufficiently severe to result in a functional limitation requiring assistance in order for him to work, as may be necessary to pay the costs (to such individual) of attendant care services, medical devices, equipment, prostheses, and similar items and services (not including routine drugs or routine medical services unless such drugs or services are necessary for the control of the disabling condition) which are necessary (as determined by the Secretary in regulations) for that purpose, whether or not such assistance is also needed to enable him to carry out his normal daily functions, except that the amounts to be excluded shall be subject to such reasonable limits as the Secretary may prescribe.\nSee also 42 U.S.C. § 1382c(a)(3)(D) (restating same). In 1983, the Department of Health and Human Services promulgated 20 C.F.R. § 416.976. See 48 Fed.Reg. 21940 (1983). These regulations established a five-part test for determining the deductibility of an IRWE:\nWe will deduct impairment-related work expenses if—\n(1) You are otherwise disabled ...;\n(2) The severity of your impairment(s) requires you to purchase (or rent) certain items and services in order to work;\n(3) You pay the cost of the item or service....;\n(4) You pay for the item or service in accordance with paragraph (d) of this section; and\n(5) Your payment is in cash (including checks and other forms of money). Payment in kind is not deductible.\n20 C.F.R. § 416.976(b). With respect to the deductibility of drugs as an IRWE, the regulations provide:\nIf you must use drugs ... to control your impairment(s), the payments you make for them may be deducted. The drugs or services must be prescribed (or utilized) to reduce or eliminate the symptoms of your impairment(s) or to slow down its progression.\n* * ❖ # * X\nExamples of deductible drugs ... are anti-convulsant drugs to control epilepsy ...; antidepressant medication for mental disorders; medication used to allay the side effects of certain treatments; ... and im-munosuppressive medications that kidney transplant patients regularly take to protect against graft rejection.\n20 C.F.R. §§ 416.976(c)(5)®, (ii). Consistent with the Act’s objective, use of the drugs must be necessary to allow the person to perform work. See Soe.Sec.R. 84-26 at 18 (1984) (“Routine drugs ... are ‘needed’ when they are required to control the disabling condition, thereby enabling the individual to function at work.”).\nDotson argues that, due to the severity of his drug addiction, he needs the cocaine and heroin in order for him to steal and panhandle. (Of course, he steals and panhandles so that he can purchase more cocaine and heroin, so that he can continue to steal and panhandle — and thus the cycle of addiction continues.) Because he needs the narcotics in order to engage in SGA, Dotson continues, he believes that the cost of the cocaine and heroin should be deducted from his earnings as an IRWE.\nSadly, we have no reason to disbelieve Dotson’s self-characterization. Unfortunately for him, however, the regulations comprehend more than mere addiction to a substance before the cost of that substance will be considered an IRWE. As the statute and regulations reveal, a number of obstacles lie in the path of Dotson’s argument. We content ourselves, however, to focus upon the requirement that in order to be an IRWE a drug must “reduce or eliminate” the symptoms of a claimant’s impairment, or “slow down its progression.” 20 C.F.R. § 416.-976(c)(5)®. In the face of Dotson’s claim that his disability stems from drug abuse, he cannot hope to maintain the argument that his continued use of heroin and cocaine reduces or eliminates the symptoms of his impairment. Rather, Dotson’s use of drugs serves as the basis of his alleged disability. And far from slowing Dotson’s dependency upon narcotics, his continued use of heroin and cocaine only exacerbates his disability. With these considerations in mind, we must reject Dotson’s claim for an IRWE.\nE. THE CONSTITUTIONAL CLAIMS.\nDotson lastly argues that using illegal activity to constitute SGA violates his rights to due process and equal protection of the laws under the United States Constitution, although he has encountered some difficulty in articulating the precise nature of his constitutional complaints. It would seem that his due process argument — one which might be more properly construed as an administrative challenge to the regulations — reduces to the theory that the ALJ’s decision in this case attempts to override Congress’ intent to provide SSI benefits to substance abusers and, therefore, is void for want of a rational basis. His equal protection claim, on the other hand, appears based on the assertion that, under the Secretary’s position, rich drug addicts will be treated preferentially to the disadvantage of poor ones. We briefly address each of his arguments.'\n1. Due Process.\nTo establish a due process violation, Dotson faces the well-settled and formidable burden of proving that the Secretary’s regulations, as we have interpreted them, lack a rational basis. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975) (“the Due Process Clause can be thought to interpose a bar only if the statute [or, as here, a regulation] manifests a patently arbitrary classification, utterly lacking in rational justification [citation omitted]”). Moreover, that rational basis need not be expressed explicitly by Congress or the administrative agency; “any state of facts reasonably may be conceived to justify it.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (citation omitted).\nInitially, we note that interpreting the Secretary’s regulations as allowing illegal activity to constitute SGA does not interfere with Congress’ intent, assuming there is one, to provide disability benefits to substance abusers. Rather, such an interpretation prevents only those substance abusers who are engaging in SGA, whether legally or illegally employed, from receiving SSI benefits reserved for disabled persons who are also poor. See Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987) (“Title XVI of the Act provides for the payment of disability benefits to indigent persons.... ” [Emphasis added.]) Thus, the Secretary’s regulations coincide with the SSI program’s underlying purpose.\nMoving to the next level, Dotson’s myopic view of Congress’ intent in the statutory context serves to highlight the flaw in his constitutional argument. Simply put, we cannot say that regulations which preclude the disbursement of federal disability benefits to persons who are engaging in substantial and gainful activity, regardless of the activity’s legality, constitutes a “patently arbitrary classification” warranting judicial intervention. To the contrary, working within a system where the limited supply of federal funds will never satisfy the deserving demand, we are hard pressed to think of a better dividing line than the one drawn by the Secretary. Having said this much, we must reject Dotson’s due process claim.\n2. Equal Protection.\nDotson faces an equally difficult burden when arguing to this court that the Secretary’s regulations violate the equal protection component of the Fifth Amendment. Because a statute’s or regulation’s differential impact upon the poor versus the wealthy, by itself, does not subject that distinction to strict judicial scrutiny, see, e.g., Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 458, 108 S.Ct. 2481, 2487, 101 L.Ed.2d 399 (1988), Dotson must prove that the classification drawn by the Secretary’s regulations fails to rationally further a legitimate interest, Zobel v. Williams, 457 U.S. 55, 60, 102 S.Ct. 2309, 2312, 72 L.Ed.2d 672 (1982). Under such a standard, Dotson’s constitutional claim again must fail.\nDotson argues that the Secretary’s position, if implemented, will hurt only poor drug abusers because rich ones, who presumably will have paid into the Social Security system, will be eligible to receive OASDI benefits under Title II of the Act. This argument misses the mark for the simple reason that OASDI claimants, just like SSI claimants, must navigate the same five-step administrative process, the first of which requires that the claimant not be engaging in SGA. Compare 42 U.S.C. § 423(d)(1)(A) and 20 C.F.R. § 404.1520(a) (Title II) with 42 U.S.C. § 1382c(a)(3)(A) and 20 C.F.R. § 416.-920(a) (Title XVI). Even if Dotson could maintain such an argument, we would be inclined to reject it because the Secretary’s classification seems rationally to further the legitimate interest of rewarding those persons with a prior attachment to the work force who have contributed to the Social Security system.\nThe judgment of the district court is Affirmed.\n. For other, more generalized, SSI eligibility requirements, see 20 C.F.R. § 416.202.\n. The parties have devoted some attention to the issue of whether panhandling, or the income therefrom, can cause a person to become ineligible for SSI benefits. We decline to reach this issue. As noted above, the ALJ determined that, due to the poor area in which Dotson panhandles, the bulk of his income comes from illegal activities. We believe the ALJ's finding to be supported by substantial evidence and, therefore, leave the panhandling issue to a court with the question properly before it.\n. See Bell v. Sullivan, 817 F.Supp. 719 (N.D.Ill.1993) (Marovich, J.); Jones v. Sullivan, 804 F.Supp. 1045 (N.D.Ill.1992) (Holderman, J.); Curtis v. Sullivan, 764 F.Supp. 119 (N.D.Ill.1991) (Búa, J.); Moore v. Sullivan, 1992 WL 199257 (N.D.Ill. Aug. 4, 1992) (Reinhard, J.; unpublished); Love v. Sullivan, 1992 WL 86193 (N.D.Ill. Apr. 22, 1992) (Conlon, J.; unpublished); Dugan v. Bowen, 1989 WL 281911 (S.D.Ill. Nov. 8, 1989) (unpublished), rev'd on other grounds sub nom. Dugan v. Sullivan, 957 F.2d 1384 (7th Cir.1992); Hart v. Sullivan, 824 F.Supp. 903 (N.D.Cal.1992). Cf. Hammonds v. Celebrezze, 260 F.Supp. 992 (N.D.Ala.1965) (claimant's illegal manufacture of whiskey not conclusive evidence of SGA absent evidence of earnings).\n. For a reconstituted formulation of the above definition, see 20 C.F.R. § 416.910, which provides: \"Substantial gainful activity means work that—(a) Involves doing significant and productive physical or mental duties; and (b) Is done (or intended) for pay or profit.”\n. Accordingly, substantial but non-remunerativc volunteer work would fall short of SGA because people normally do not volunteer their services for pay or profit. See Social Security Law and Practice § 37:4 at 8 (Timothy E. Travers ct al. eds., 1987). Evidence of such volunteer work, however, could be used to deny a claimant benefits at a later stage in the sequential evaluation process. See 20 C.F.R. § 416.971.\n. In contrast to the OASDI provisions of the Act, the SSI program is particularly concerned with a claimant’s financial situation:\nThe basic purpose underlying the supplemental security income program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level.\n20 C.F.R. § 416.110 (emphasis added); see also id. at § 416.1100 (\"the amount of income you have is a major factor in deciding whether you are eligible for SSI benefits”). Thus, a claimant not engaging in SGA and otherwise eligible for the SSI program will be denied benefits if he or she has too much income or too many resources. See 42 U.S.C. § 1382(a); generally 20 C.F.R. Subpts. K, § 416.1100 et seq. (income) and L, § 416.1201 et seq. (resources).\n.For example, acting as a lookout at a drug house might constitute a gainful yet insubstantial activity, whereas someone who chronically engages in acts of vandalism may be substantially, but not gainfully, occupied.\n. Indeed, were we to hold otherwise, the court would be creating the perverse incentive — although admittedly only at the margins — for both SSI claimants and recipients to engage in illegal activity because the income therefrom would be ignored.\n. Again, however, the resources and income analysis implicated here and discussed at note 6, supra, is different from the ALJ's responsibility to determine whether a claimant is engaging in SGA.\n.Dotson also argues that the ALJ erred by underestimating the amount of money he earned through panhandling. As we discussed at note 2, supra, the ALJ’s decision to discount Dotson's panhandling income — because of the poor area in which he begs — is supported by substantial evidence.\n. Moreover, this is not an instance where the claimant's testimony was of such dubious veracity that the ALJ should have discredited it. Dotson’s claim to spending $200 to $300 per day on heroin and cocaine, while on the high side, is certainly within the realm of possibility. See, e.g., Hart v. Sullivan, 824 F.Supp. 903 (N.D.Cal.1992) (claimant “presently consumes seven or eight twenty-dollar bags of heroin daily ..., uses crack every night ..., and drinks approximately eight half-pints of hard liquor daily”).\n. We are inclined to agree with Dotson that Congress has envisioned the application of the Act to substance abusers. See, e.g., 42 U.S.C. § 1382(e)(3)(A) (requiring SSI recipients who are alcoholics or drug addicts to undergo treatment as a condition of receiving disability benefits); 42 U.S.C. § 1383(a)(2)(A)(ii) (providing for payment of SSI benefits to alcoholics and drug addicts through representative payees).\n. Dotson’s argument would become relevant in two situations, the first of which is beyond the court’s powers generally and the second of which is not implicated in this appeal. The first scenario involves a wealthy addict who is able to satisfy his or her addiction without resort to the welfare system. Such a person, of course, is better off than Dotson, but this disparity yields him no cause of action. In the second scenario, a wealthy addict who is not engaging in SGA, but who has paid into the Social Security system, applies for and receives OASDI benefits. This person, again undoubtedly better off than Dotson, presumably would be ineligible for SSI benefits due to an excess of resources and income. See generally note 6, supra. Importantly, however, Dotson is not in a position to make this argument because the ALJ below did not deny him benefits based on his income or resources, but rather based on the fact that Dotson was engaging in SGA.", "type": "majority", "author": "ENGEL, Senior Circuit Judge."}], "attorneys": ["Thomas M. Henry, Peoria, IL (argued), for plaintiff-appellant.", "Michael C. Messer (argued), Dept, of Health and Human Services, Region V, Office of Gen. Counsel, Chicago, IL, K. Tate Chambers, Asst. U.S. Atty., Peoria, IL, for defendant-appellee."], "corrections": "", "head_matter": "Harold W. DOTSON, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services of the United States of America, Defendant-Appellee.\nNo. 92-3148.\nUnited States Court of Appeals, Seventh Circuit.\nArgued April 6, 1993.\nDecided Aug. 2, 1993.\nThomas M. Henry, Peoria, IL (argued), for plaintiff-appellant.\nMichael C. Messer (argued), Dept, of Health and Human Services, Region V, Office of Gen. Counsel, Chicago, IL, K. Tate Chambers, Asst. U.S. Atty., Peoria, IL, for defendant-appellee.\nBefore RIPPLE and MANION, Circuit Judges, and ENGEL, Senior Circuit Judge.\nPursuant to Federal Rule of Appellate Procedure 43(c)(1), we have substituted Donna E. Shalala for her predecessor, Louis W. Sullivan, as Secretary of the Department of Health and Human Services.\nThe Honorable Albert J. Engel, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, is sitting by designation."}	RIPPLE	MANION	ENGEL	1	1	1	0	0	0	1 F.3d 571	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Harold W. DOTSON, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services of the United States of America, Defendant-Appellee\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-02\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nENGEL, Senior Circuit Judge.\nHarold Wayne Dotson, a Supplemental Security Income claimant, appeals the district court’s grant of summary judgment in favor of Donna E. Shalala, Secretary of the Department of Health and Human Services. In granting summary judgment, the district court upheld an administrative law judge’s finding that Dotson was engaging in substantial gainful activity by supporting a $200- to $300-per-day heroin and cocaine habit through illegal means. See Dotson v. Sullivan, 813 F.Supp. 651 (C.D.Ill.1992). Because we agree that illegal activity can constitute substantial gainful activity, we affirm.\nI. BACKGROUND\nDotson applied for Supplemental Security Income benefits on September 25, 1989, alleging disability since 1968 due to asthma, multiple allergies, and past drug abuse. The Social Security Administration denied his application on January 10,1990, and again upon reconsideration on May 21, 1990. Dotson then requested and received a hearing before an administrative law judge (“ALJ”). At the administrative hearing, Dotson testified that he uses $200 to $300 worth of heroin and cocaine each day. Additionally, he testified that he supports his drug habit by hustling. When asked to define hustling, Dotson replied: “steal, beg, whatever, you know.”\nWith regard to his begging, Dotson stated that he usually panhandles at the Warner Homes, which are located in a poor neighborhood in Peoria, Illinois. As to Dotson’s thievery, the following colloquy occurred during the administrative hearing:\nQ. [By ALJ] Where do you steal at?\nA. [By Dotson] You can do that anywhere. Wherever we can find a place to.\nQ. Give me an idea. Give me some examples.\nA. The mall, downtown, wherever. You just ride and look and, you know.\nQ. How long do you spend riding and looking until you find a place to steal?\nA. As long as you have to.\nQ. Like how long?\nA. Sometime—\nQ. All day long?\nA. Sometimes it takes all day.\nQ. What kinds of things have you stolen this month?\nA. This month?\nQ. Uh huh.\nA. I, well, I like to, I try to concentrate on saws.\nQ. On what?\nA. Saws.\nQ. Saws?\nA. You know, the chainsaws, the little bitty chainsaws?\nQ. Where do you find those at?\nA. Everywhere, everywhere.\nQ. And once you get them, what do you do with them?\nA. You sell them.\nQ. To who?\nA. A lot of people buy.\nQ. Well, where do you find — I wouldn’t imagine there would be a lot of demand for them in Warner homes.\nA. No.\nQ. Where do you go to sell the chainsaws?\nA. Different businesses.\nQ. Like what?\nA. Small businesses.\nQ. Give me some examples.\nA. Like small stores or cleaners, different places like that.\nQ. Do you have to travel around to these places? How long does it take you to find somebody to buy a saw?\nA. Usually, they already, you have been — you kind of already know they probably want one.\nQ. So you have already canvassed these places earlier? You have gone out and—\nA. No, you have probably sold them stuff and they can give you kind of an idea about what else they might like, you know.\nBased on Dotson’s testimony, the ALJ found that Dotson’s stealing and panhandling constituted substantial gainful activity (“SGA”) worth an average of approximately $5,600 per month and, accordingly, denied his claim for SSI benefits. Specifically, the ALJ found that, due to the poor area in which Dotson panhandles, the bulk of his income must come from illegal means. As to the nature of Dotson’s criminal endeavors, the ALJ concluded:\nIn order to steal he must “case” the area in which he has determined to steal the property. He must then plan on how he is going to steal the property and then actually steal it. During the month in which the hearing was held the claimant was stealing chainsaws. Lifting and carrying the chainsaws would also be significant physical activity. The planning and execution of the larceny entails significant mental activity. From these activities the claimant earns enough money to support his cocaine habit and provide him with other money in substantial amounts exceeding $200 to $300 a day. [Emphasis in original.]\nOn July 9, 1991, the Appeals Council declined to review the ALJ’s decision. Dotson then filed the instant action against the Secretary of the Department of Health and Human Services (“Secretary”) in federal court. On July 1, 1992, with cross-motions for summary judgment before it, the district court granted the Secretary’s motion for summary affirmance and entered a separate judgment against Dotson and in favor of the Secretary. See Dotson v. Sullivan, 813 F.Supp. 651 (C.D.Ill.1992). This appeal followed.\nII. DISCUSSION\nDotson essentially raises four arguments. First, he believes that illegal activities undertaken solely to satisfy a drug addiction cannot constitute SGA. Second, assuming that illegal activity can constitute SGA, Dotson claims that the ALJ’s finding of SGA in his case is unsupported by substantial evidence. Third, Dotson contends that if illegal activity undertaken to support a drug habit can constitute SGA, then the Secretary is required to deduct the cost of the narcotics from the claimant’s income as an impairment-related work expense. Fourth and finally, Dotson believes that using illegal activities to furnish the basis for finding SGA denies him due process and equal protection of the laws under the United States Constitution.\nA. OVERVIEW.\nThe Social Security Act (“Act”), as amended, 42 U.S.C. § 301 et seq., provides for the payment of benefits to disabled persons. Title II of the Act governs the payment of Old-Age, Survivors, and Disability Insurance (“OASDI”) benefits to disabled persons who have contributed to the Social Security program. 42 U.S.C. § 401 et seq. Title XVI of the Act, the title under which Dotson filed his application for benefits, provides for the payment of Supplemental Security Income (“SSI”) benefits to disabled persons who are indigent. 42 U.S.C. § 1382 et seq.; see generally Bowen v. Yuekert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987). Both Titles II and XVI define disability as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months....” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).\nPursuant to statutory authority, the Secretary has promulgated regulations establishing a five-step sequential analysis for determining whether an SSI claimant is disabled. See 20 C.F.R. § 416.920; Sullivan v. Zebley, 493 U.S. 521, 525, 110 S.Ct. 885, 888, 107 L.Ed.2d 967 (1990). The first step of the process, and the only one relevant for purposes of this appeal, requires the Secretary to determine whether the claimant is engaging in SGA. See 20 C.F.R. § 416.-920(a). A finding of SGA means that the claimant is ineligible for SSI benefits. Id. at § 416.920(b); Yuekert, 482 U.S. at 140, 107 S.Ct. at 2290. In this case, because the ALJ found that Dotson’s stealing and panhandling-constituted SGA, he denied Dotson’s claim for benefits without moving to the next step in the sequential analysis.\nB. ILLEGAL ACTIVITY AS SGA.\nOur research reveals that we are the first appellate court to address the issue of whether illegal activity can support a finding of SGA. The handful of federal trial courts faced with this question, including the district court below, have answered unanimously in the affirmative. Because the ALJ and district court’s determination that illegal activity can constitute SGA is a construction of the Secretary’s regulations, we review this decision of law de novo. See Johnson v. Sullivan, 922 F.2d 346, 356 (7th Cir.1990).\nAs the definition of disability quoted above indicates, the inability to engage in SGA is a statutory prerequisite to obtaining either SSI or OASDI benefits. Nonetheless, Congress delegated to the Secretary the responsibility for defining SGA. 42 U.S.C. § 1382c(a)(3)(D) (Title XVI). In response to the Act’s mandate, and as the components of the term suggest, the Secretary has defined SGA as “work activity that is both substantial and gainful.” See 20 C.F.R. § 416.972. Work activity is substantial if it “involves doing significant physical or mental activities.” Id. at § 416.972(a). Work activity is gainful if it is “the kind of work usually done for pay or profit, whether or not a profit is realized.” Id. at § 416.972(b); see generally Callaghan v. Shalala, 992 F.2d 692 (7th Cir.1993) (discussing elements of SGA). Activities such as taking care of one’s self, performing household tasks, engaging in hobbies or therapy, and attending school, clubs, or social programs generally do not constitute SGA. 20 C.F.R. § 416.972(c).\nThe foregoing framework underscores the dual nature of an ALJ’s inquiry into whether a claimant is engaging in SGA. Under the substantiality prong of the analysis, an ALJ considers the nature of the undertakings comprising the claimant’s work activity. Thus, the degree to which a claimant’s work requires the use of “expertise, skills, supervision and responsibilities” becomes relevant in determining whether that work constitutes SGA. See 20 C.F.R. § 416.-973(a). Additionally, an ALJ will consider how well a claimant performs his or her work activities:\nIf you do your work satisfactorily, this may show that you are working at the substantial gainful activity level. If you are unable, because of your impairments, to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work, this may show that you are not working at the substantial gainful activity level. If you are doing work that involves minimal duties that make little or no demands on you and that are of little or no use to your employer, or to the operation of a business if you are self-employed, this does not show that you are working at the substantial gainful activity level.\nId. at § 416.973(b).\nIn evaluating the gainfulness of a claimant’s work, an ALJ’s inquiry is more circumscribed. Here, as noted above, the claimant’s undertakings need be only of the type that normally result in pay or profit. In other words, a claimant can be found to be engaging in SGA without earning any income. See Callaghan, 992 F.2d at 695-96 (unprofitable business owner was engaging in SGA). This is not to say that a claimant’s earnings are irrelevant for purposes of determining whether he or she is engaging in SGA. See, e.g., 20 C.F.R. § 416.974(a)(1). To the contrary, a claimant who earns on average less than $300 per month is presumed not to be engaging in SGA, while a claimant who makes more than an average of $500 per month is presumptively ineligible for SSI benefits. Id. at §§ 416.974(b)(3)(vii), (b)(2)(vii). As with most legal presumptions, however, these income guidelines are rebut-table and “do not relieve an ALJ of the duty to develop the record fully and fairly.” Dugan v. Sullivan, 957 F.2d 1384, 1390 (7th Cir.1992) (citations and internal quotations omitted).\nAgainst this background, Dotson concedes — as he must — that in at least some instances illegal activity can be substantial gainful activity. Dotson continues, however, that the context in which his thievery occurs precludes its use in determining whether he has been engaging in SGA. In his own words:\nA drastic distinction exists between a person who is engaged in illegal activity for effectively the equivalent of a legal career such as being a drug dealer, illegal drug importer or other illegal activity which has counterparts in lawful activities such as business managers, business owners and the like, and a thief who steals merely to feed the cravings of unquenchable drug addiction.\nAplnt’s. Br. at 18. Considering Dotson’s claim under the scheme set forth above, we conclude that he forwards a distinction without a difference.\nAdmittedly, even a cursory examination of the regulations reveals that the Secretary envisioned their application within a traditional employment context. Importantly, however, nothing in the Act or its regulations specifically requires SGA to be lawful. This silence, we believe, suggests that illegal activities can constitute SGA. The inference is strengthened, moreover, when considering that the relevant considerations noted above apply with almost equal ease irrespective of the legality of the activities involved. Thus, one can envision a number of illegal activities that might not rise to the level of SGA. Whether legally or illegally employed, the regulations direct an ALJ to focus on whether the claimant is performing significant physical or mental activities, and doing so with the intent of earning money or making a profit.\nMoreover, it must be remembered that an ALJ performs the SGA analysis as one of five steps used to determine whether a person is disabled and, consequently, unable to function within our economy. A claimant who can manage through illegal means is just as undeserving of benefits as a claimant who can survive without violating the law. For this reason, there is no difference between the addict who spends all of his lawfully derived earnings on narcotics and the one who illegally obtains, and then exhausts, her income. Both are fueled, to quote Dotson, by the “cravings of unquenchable drug addiction.” The only real distinction between the two — the lawfulness of their income — -finds no cognizance under the Act and its interpretive regulations.\nFinally, our conclusion that illegal activity can constitute SGA derives substantial support from the well-established tax principle that unlawful earnings come within the meaning of the term “gross income” and are thus taxable. See, e.g., James v. United States, 366 U.S. 213, 218, 81 S.Ct. 1052, 1054, 6 L.Ed.2d 246 (1961) (plurality opinion of Warren, C.J.), overruling Commissioner v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946); United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 607, 71 L.Ed. 1037 (1927). Notably, the Act has adopted the tax code’s definition of gross income for purposes of determining whether a SSI claimant’s income is sufficiently high so as to render him or her ineligible for benefits. 42 U.S.C. § 1382(d); see also 20 C.F.R. § 416.-1110(b). Indeed, one of the concerns motivating the plurality in James, “to remove the incongruity of having the gains of the honest laborer taxed and the gains of the dishonest immune,” 366 U.S. at 218, 81 S.Ct. at 1054, provides the crux of our reasoning in this case.\nC. SUFFICIENCY OF THE EVIDENCE.\nHaving concluded that illegal activity can constitute SGA, we must next determine whether the ALJ properly applied the legal standard in Dotson’s case. Our inquiry is a limited one. We will not decide facts anew, reweigh evidence, or substitute our judgment for the Secretary’s. Shroeter v. Sullivan, 977 F.2d 391, 394 (7th Cir.1992). Rather, we look to see whether “substantial evidence” supports the ALJ’s findings. See 42 U.S.C. § 1383(c)(3) (citing 42 U.S.C. § 405(g)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).\nDotson first contends that the ALJ had before him no evidence of specific illegal acts which could support a finding of SGA. Secondly, he believes the ALJ erroneously assumed that he paid full street-value for the narcotics he used and, thus, overestimated the amount of income needed to support his drug habit. We address each claim in order.\nDotson’s first claim, that the record lacks any evidence of illegal activities, is belied by his own testimony and by the reasonable inferences drawn therefrom by the ALJ. For example, when the ALJ asked Dotson to describe what types of items he had stolen in the month during which the administrative hearing was held, Dotson replied: “I try to concentrate on saws.... You know, the chainsaws, the little bitty chainsaws.” Dotson then went on to explain, in some detail, how he would sell the stolen items. Additionally, the ALJ made at least one specific inquiry into the substantiality of Dotson’s activities, asking him how long it takes him to find a place to steal.\nWe grant to Dotson his point that the record contains no evidence concerning any specific act of thievery. Also, we agree with him that the ALJ could have more fully developed the record as to the nature of his criminal undertakings. Nevertheless, we cannot say that the record before us contains less than substantial evidence that Dotson’s thievery required the significant use of his physical and mental skills, and that those skills were applied within a context designed to produce pay or profit. See 20 C.F.R. §§ 416.972(a), (b). In short, Dotson’s testimony allowed the ALJ to reasonably conclude that the effort required to steal the chainsaws with regularity constituted SGA, and we therefore uphold this aspect of the ALJ’s decision. A more exacting inquiry, while desirable, was not required.\nDotson’s second argument, that the ALJ overestimated the cost of the narcotics, is also unpersuasive. As an initial matter, this claim suffers from the same weakness that proved fatal to his first argument, that is, Dotson testified without contradiction to using $200 to $300 worth of heroin and cocaine daily. If Dotson actually paid less for his narcotics, one would have expected him to testify accordingly. Furthermore, this case is unlike Curtis v. Sullivan, 764 F.Supp. 119 (N.D.Ill.1991), where the ALJ simply imputed to the claimant an income sufficient to satisfy his addiction. In that case, the ALJ concluded, in the absence of evidence as to legal or illegal employment, that the claimant had to be engaging in SGA in order to support his expensive drug habit. Here, on the other hand, Dotson’s testimony as to his thievery filled the gap. From this, the ALJ was justified in finding that Dotson’s earnings surpassed $500 per month, thereby rendering him presumptively ineligible for SSI benefits. See 20 C.F.R. § 416.974(b)(2)(vii).\nWe agree with the court in Curtis that simply because a claimant has a severe and expensive drug habit does not mean that the person is engaging in SGA to support it. 764 F.Supp. at 120-21. The record must contain substantial evidence, of the type outlined in Section 11(B), supra, that the claimant is engaging in legal or illegal activities that are substantial and gainful. Because we have held that the ALJ’s decision in this case comports with those requirements, we reject Dotson’s challenge to the evidence supporting the Secretary’s decision.\nD. NARCOTICS AS AN IMPAIRMENT-RELATED WORK EXPENSE.\nDotson next raises the interesting yet ultimately unavailing argument that, if illegal activities undertaken to maintain a drug habit can constitute SGA, then the cost of the narcotics must be deducted from income as an impairment-related work expense (“IRWE”) under 42 U.S.C. § 1382a(b)(4)(B)(ii) and its interpretive regulations, 20 C.F.R. § 416.976. As we discuss below, Dotson misapprehends the nature of IRWEs.\n42 U.S.C. § 1382a(b)(4)(B)(ii), enacted as part of the Social Security Disability Amendments of 1980, Pub.L. No. 96-265, 94 Stat. 441 (1980), provides:\nIn determining the income of an individual (and his eligible spouse) there shall be excluded ... if such individual (or such spouse) is disabled but not blind (and has not attained age 65, or received benefits under this subchapter (or aid under a State plan approved under section 1352 or 1382 of this title) for the month before the month in which he attained age 65) ... such additional amounts of earned income of such individual, if such individual’s disability is sufficiently severe to result in a functional limitation requiring assistance in order for him to work, as may be necessary to pay the costs (to such individual) of attendant care services, medical devices, equipment, prostheses, and similar items and services (not including routine drugs or routine medical services unless such drugs or services are necessary for the control of the disabling condition) which are necessary (as determined by the Secretary in regulations) for that purpose, whether or not such assistance is also needed to enable him to carry out his normal daily functions, except that the amounts to be excluded shall be subject to such reasonable limits as the Secretary may prescribe.\nSee also 42 U.S.C. § 1382c(a)(3)(D) (restating same). In 1983, the Department of Health and Human Services promulgated 20 C.F.R. § 416.976. See 48 Fed.Reg. 21940 (1983). These regulations established a five-part test for determining the deductibility of an IRWE:\nWe will deduct impairment-related work expenses if—\n(1) You are otherwise disabled ...;\n(2) The severity of your impairment(s) requires you to purchase (or rent) certain items and services in order to work;\n(3) You pay the cost of the item or service....;\n(4) You pay for the item or service in accordance with paragraph (d) of this section; and\n(5) Your payment is in cash (including checks and other forms of money). Payment in kind is not deductible.\n20 C.F.R. § 416.976(b). With respect to the deductibility of drugs as an IRWE, the regulations provide:\nIf you must use drugs ... to control your impairment(s), the payments you make for them may be deducted. The drugs or services must be prescribed (or utilized) to reduce or eliminate the symptoms of your impairment(s) or to slow down its progression.\n* * ❖ # * X\nExamples of deductible drugs ... are anti-convulsant drugs to control epilepsy ...; antidepressant medication for mental disorders; medication used to allay the side effects of certain treatments; ... and im-munosuppressive medications that kidney transplant patients regularly take to protect against graft rejection.\n20 C.F.R. §§ 416.976(c)(5)®, (ii). Consistent with the Act’s objective, use of the drugs must be necessary to allow the person to perform work. See Soe.Sec.R. 84-26 at 18 (1984) (“Routine drugs ... are ‘needed’ when they are required to control the disabling condition, thereby enabling the individual to function at work.”).\nDotson argues that, due to the severity of his drug addiction, he needs the cocaine and heroin in order for him to steal and panhandle. (Of course, he steals and panhandles so that he can purchase more cocaine and heroin, so that he can continue to steal and panhandle — and thus the cycle of addiction continues.) Because he needs the narcotics in order to engage in SGA, Dotson continues, he believes that the cost of the cocaine and heroin should be deducted from his earnings as an IRWE.\nSadly, we have no reason to disbelieve Dotson’s self-characterization. Unfortunately for him, however, the regulations comprehend more than mere addiction to a substance before the cost of that substance will be considered an IRWE. As the statute and regulations reveal, a number of obstacles lie in the path of Dotson’s argument. We content ourselves, however, to focus upon the requirement that in order to be an IRWE a drug must “reduce or eliminate” the symptoms of a claimant’s impairment, or “slow down its progression.” 20 C.F.R. § 416.-976(c)(5)®. In the face of Dotson’s claim that his disability stems from drug abuse, he cannot hope to maintain the argument that his continued use of heroin and cocaine reduces or eliminates the symptoms of his impairment. Rather, Dotson’s use of drugs serves as the basis of his alleged disability. And far from slowing Dotson’s dependency upon narcotics, his continued use of heroin and cocaine only exacerbates his disability. With these considerations in mind, we must reject Dotson’s claim for an IRWE.\nE. THE CONSTITUTIONAL CLAIMS.\nDotson lastly argues that using illegal activity to constitute SGA violates his rights to due process and equal protection of the laws under the United States Constitution, although he has encountered some difficulty in articulating the precise nature of his constitutional complaints. It would seem that his due process argument — one which might be more properly construed as an administrative challenge to the regulations — reduces to the theory that the ALJ’s decision in this case attempts to override Congress’ intent to provide SSI benefits to substance abusers and, therefore, is void for want of a rational basis. His equal protection claim, on the other hand, appears based on the assertion that, under the Secretary’s position, rich drug addicts will be treated preferentially to the disadvantage of poor ones. We briefly address each of his arguments.'\n1. Due Process.\nTo establish a due process violation, Dotson faces the well-settled and formidable burden of proving that the Secretary’s regulations, as we have interpreted them, lack a rational basis. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975) (“the Due Process Clause can be thought to interpose a bar only if the statute [or, as here, a regulation] manifests a patently arbitrary classification, utterly lacking in rational justification [citation omitted]”). Moreover, that rational basis need not be expressed explicitly by Congress or the administrative agency; “any state of facts reasonably may be conceived to justify it.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (citation omitted).\nInitially, we note that interpreting the Secretary’s regulations as allowing illegal activity to constitute SGA does not interfere with Congress’ intent, assuming there is one, to provide disability benefits to substance abusers. Rather, such an interpretation prevents only those substance abusers who are engaging in SGA, whether legally or illegally employed, from receiving SSI benefits reserved for disabled persons who are also poor. See Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987) (“Title XVI of the Act provides for the payment of disability benefits to indigent persons.... ” [Emphasis added.]) Thus, the Secretary’s regulations coincide with the SSI program’s underlying purpose.\nMoving to the next level, Dotson’s myopic view of Congress’ intent in the statutory context serves to highlight the flaw in his constitutional argument. Simply put, we cannot say that regulations which preclude the disbursement of federal disability benefits to persons who are engaging in substantial and gainful activity, regardless of the activity’s legality, constitutes a “patently arbitrary classification” warranting judicial intervention. To the contrary, working within a system where the limited supply of federal funds will never satisfy the deserving demand, we are hard pressed to think of a better dividing line than the one drawn by the Secretary. Having said this much, we must reject Dotson’s due process claim.\n2. Equal Protection.\nDotson faces an equally difficult burden when arguing to this court that the Secretary’s regulations violate the equal protection component of the Fifth Amendment. Because a statute’s or regulation’s differential impact upon the poor versus the wealthy, by itself, does not subject that distinction to strict judicial scrutiny, see, e.g., Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 458, 108 S.Ct. 2481, 2487, 101 L.Ed.2d 399 (1988), Dotson must prove that the classification drawn by the Secretary’s regulations fails to rationally further a legitimate interest, Zobel v. Williams, 457 U.S. 55, 60, 102 S.Ct. 2309, 2312, 72 L.Ed.2d 672 (1982). Under such a standard, Dotson’s constitutional claim again must fail.\nDotson argues that the Secretary’s position, if implemented, will hurt only poor drug abusers because rich ones, who presumably will have paid into the Social Security system, will be eligible to receive OASDI benefits under Title II of the Act. This argument misses the mark for the simple reason that OASDI claimants, just like SSI claimants, must navigate the same five-step administrative process, the first of which requires that the claimant not be engaging in SGA. Compare 42 U.S.C. § 423(d)(1)(A) and 20 C.F.R. § 404.1520(a) (Title II) with 42 U.S.C. § 1382c(a)(3)(A) and 20 C.F.R. § 416.-920(a) (Title XVI). Even if Dotson could maintain such an argument, we would be inclined to reject it because the Secretary’s classification seems rationally to further the legitimate interest of rewarding those persons with a prior attachment to the work force who have contributed to the Social Security system.\nThe judgment of the district court is Affirmed.\n. For other, more generalized, SSI eligibility requirements, see 20 C.F.R. § 416.202.\n. The parties have devoted some attention to the issue of whether panhandling, or the income therefrom, can cause a person to become ineligible for SSI benefits. We decline to reach this issue. As noted above, the ALJ determined that, due to the poor area in which Dotson panhandles, the bulk of his income comes from illegal activities. We believe the ALJ's finding to be supported by substantial evidence and, therefore, leave the panhandling issue to a court with the question properly before it.\n. See Bell v. Sullivan, 817 F.Supp. 719 (N.D.Ill.1993) (Marovich, J.); Jones v. Sullivan, 804 F.Supp. 1045 (N.D.Ill.1992) (Holderman, J.); Curtis v. Sullivan, 764 F.Supp. 119 (N.D.Ill.1991) (Búa, J.); Moore v. Sullivan, 1992 WL 199257 (N.D.Ill. Aug. 4, 1992) (Reinhard, J.; unpublished); Love v. Sullivan, 1992 WL 86193 (N.D.Ill. Apr. 22, 1992) (Conlon, J.; unpublished); Dugan v. Bowen, 1989 WL 281911 (S.D.Ill. Nov. 8, 1989) (unpublished), rev'd on other grounds sub nom. Dugan v. Sullivan, 957 F.2d 1384 (7th Cir.1992); Hart v. Sullivan, 824 F.Supp. 903 (N.D.Cal.1992). Cf. Hammonds v. Celebrezze, 260 F.Supp. 992 (N.D.Ala.1965) (claimant's illegal manufacture of whiskey not conclusive evidence of SGA absent evidence of earnings).\n. For a reconstituted formulation of the above definition, see 20 C.F.R. § 416.910, which provides: \"Substantial gainful activity means work that—(a) Involves doing significant and productive physical or mental duties; and (b) Is done (or intended) for pay or profit.”\n. Accordingly, substantial but non-remunerativc volunteer work would fall short of SGA because people normally do not volunteer their services for pay or profit. See Social Security Law and Practice § 37:4 at 8 (Timothy E. Travers ct al. eds., 1987). Evidence of such volunteer work, however, could be used to deny a claimant benefits at a later stage in the sequential evaluation process. See 20 C.F.R. § 416.971.\n. In contrast to the OASDI provisions of the Act, the SSI program is particularly concerned with a claimant’s financial situation:\nThe basic purpose underlying the supplemental security income program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level.\n20 C.F.R. § 416.110 (emphasis added); see also id. at § 416.1100 (\"the amount of income you have is a major factor in deciding whether you are eligible for SSI benefits”). Thus, a claimant not engaging in SGA and otherwise eligible for the SSI program will be denied benefits if he or she has too much income or too many resources. See 42 U.S.C. § 1382(a); generally 20 C.F.R. Subpts. K, § 416.1100 et seq. (income) and L, § 416.1201 et seq. (resources).\n.For example, acting as a lookout at a drug house might constitute a gainful yet insubstantial activity, whereas someone who chronically engages in acts of vandalism may be substantially, but not gainfully, occupied.\n. Indeed, were we to hold otherwise, the court would be creating the perverse incentive — although admittedly only at the margins — for both SSI claimants and recipients to engage in illegal activity because the income therefrom would be ignored.\n. Again, however, the resources and income analysis implicated here and discussed at note 6, supra, is different from the ALJ's responsibility to determine whether a claimant is engaging in SGA.\n.Dotson also argues that the ALJ erred by underestimating the amount of money he earned through panhandling. As we discussed at note 2, supra, the ALJ’s decision to discount Dotson's panhandling income — because of the poor area in which he begs — is supported by substantial evidence.\n. Moreover, this is not an instance where the claimant's testimony was of such dubious veracity that the ALJ should have discredited it. Dotson’s claim to spending $200 to $300 per day on heroin and cocaine, while on the high side, is certainly within the realm of possibility. See, e.g., Hart v. Sullivan, 824 F.Supp. 903 (N.D.Cal.1992) (claimant “presently consumes seven or eight twenty-dollar bags of heroin daily ..., uses crack every night ..., and drinks approximately eight half-pints of hard liquor daily”).\n. We are inclined to agree with Dotson that Congress has envisioned the application of the Act to substance abusers. See, e.g., 42 U.S.C. § 1382(e)(3)(A) (requiring SSI recipients who are alcoholics or drug addicts to undergo treatment as a condition of receiving disability benefits); 42 U.S.C. § 1383(a)(2)(A)(ii) (providing for payment of SSI benefits to alcoholics and drug addicts through representative payees).\n. Dotson’s argument would become relevant in two situations, the first of which is beyond the court’s powers generally and the second of which is not implicated in this appeal. The first scenario involves a wealthy addict who is able to satisfy his or her addiction without resort to the welfare system. Such a person, of course, is better off than Dotson, but this disparity yields him no cause of action. In the second scenario, a wealthy addict who is not engaging in SGA, but who has paid into the Social Security system, applies for and receives OASDI benefits. This person, again undoubtedly better off than Dotson, presumably would be ineligible for SSI benefits due to an excess of resources and income. See generally note 6, supra. Importantly, however, Dotson is not in a position to make this argument because the ALJ below did not deny him benefits based on his income or resources, but rather based on the fact that Dotson was engaging in SGA.\n[END_CASE]", "role": "user" } ]
10,512,660	UNITED STATES of America, Plaintiff-Appellee, v. Mark A. CHEVALIER, Defendant-Appellant	United States v. Chevalier	1993-08-03	No. 92-1598	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before POSNER and MANION, Circuit Judges, and WOOD, Jr., Senior Circuit Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Mark A. CHEVALIER, Defendant-Appellant."], "opinions": [{"text": "MANION, Circuit Judge.\nOn June 11, 1991, a federal grand jury returned a superseding indictment against Mark A. Chevalier alleging three counts of tax fraud, 26 U.S.C. § 7206(1), and two counts of making false statements in connection with loan extensions, 18 U.S.C. § 1014. On November 1, 1991, the district court granted Chevalier’s motion to sever the tax and bank fraud counts. At the close of trial, the jury convicted Chevalier of the three tax fraud counts. He later pleaded guilty to one count of bank fraud, and by agreement the other count was dismissed. On appeal he challenges the scope of the government’s cross-examination after he took the witness stand at the tax trial and the district court’s computation of his sentence for bank fraud. We affirm Chevalier’s conviction, but vacate his sentence and remand to the district court for resentencing.\nI. Background\nA. Tax Fraud.\nChevalier operated a business in Wisconsin that sold heavy construction equipment. This began as an adjunct operation with his father’s automobile dealership, and by 1982 Chevalier was on his own. Gross receipts and sales totaled between one and two million dollars. He alone kept the books and records of his business, and he filed the necessary income tax forms. What started out as a profitable business, however, eventually evolved into desparate schemes to stay afloat.\nBeginning with his 1984 tax return, Chevalier underreported his gross receipts and sales by $279,000; in 1985, $83,000; in 1986, $23,000. For example, from 1984 to 1986 Chevalier failed to report the sales of parts and tires, and only portions of customer trade-ins. Although he collected sales tax from customers, Wisconsin never received the money. This led to Chevalier’s indictment on three counts of tax fraud, 26 U.S.C. § 7206(1).\nB. Bank Fraud.\nStephenson National Bank financed a significant amount of the operation. It was a simple security arrangement. Chevalier would boiTow money and pledge his inventory as collateral. However, Chevalier lied to the bank on several occasions in order to obtain loan renewals. On August 30, 1988 Chevalier had borrowed $100,000 to finance the purchases of three pieces of construction equipment. He sold that equipment on September 30, 1988, but the loan was not paid off. During the bank’s on-site inventory inspections, Chevalier would point out various pieces of other equipment on the lot that matched the description of the pledged inventory; however, the bank employee did not cheek serial numbers. If similar equipment was not in the yard, Chevalier would tell the bank employee that the equipment was being repaired. On February 27, 1989 Chevalier renewed the note for $65,000, again pledging the previously sold equipment as collateral. He likewise renewed the note again in May, August and November. In the end, the bank wrote off the $65,000 loss. This led to Chevalier’s indictment on Counts four and five of making false statements in connection with loan extensions, 18 U.S.C. § 1014.\nThe district court severed the tax and bank fraud counts, trying the tax fraud counts first. The jury convicted Chevalier as charged. He thereafter pleaded guilty to the bank fraud as alleged in Count four; Count five was dismissed as part of the plea agreement.\nII. Cross-examination\nAt trial on the tax fraud, Chevalier admitted that he filed false tax returns subject to the penalties of perjury. Tax fraud, however, requires an element of intent. The sole issue for the jury was whether Chevalier willfully signed the tax returns believing that they were not correct. Chevalier took the stand as his only defense witness. During cross-examination the district court allowed the government to question Chevalier about the facts surrounding the alleged bank fraud counts, which had been severed for a later trial.\nChevalier vigorously objected, arguing that the bank fraud counts were irrelevant to the government’s proof of tax fraud, and that the bank fraud counts involved alleged conduct that occurred three years after the end of the 1986 tax year. In Chevalier’s view the government was attempting to convince the jury that if Chevalier lied to the bank in 1989, he probably lied to the Internal Revenue Service (“IRS”) from 1984 to 1986. In support of this argument, Chevalier relied on Fed.R.Evid. 404(b):\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,....\nThe government on the other hand relied on Fed.R.Evid. 608(b):\nSpecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, ... may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness,....\nWe review the introduction of such evidence under the abuse of discretion standard. United States v. Wilson, 985 F.2d 348, 351 (7th Cir.1993).\nThe question at the tax trial was whether Chevalier lied to the IRS on his 1984-1986 tax returns. Granted, if Chevalier had not taken the witness stand, the government could not have introduced evidence of the alleged bank fraud without facing Rule 404(b). The government could not have attempted to show that because Chevalier committed bank fraud, he likely would have committed tax fraud as well. But by electing to testify, Chevalier placed his credibility in issue. United States v. Covelli, 738 F.2d 847, 856 (7th Cir.), cert. denied, 469 U.S. 867, 105 S.Ct. 211, 83 L.Ed.2d 141 (1984). Thus, the government could introduce evidence relevant to whether Chevalier was testifying truthfully, pursuant to Rule 404(b) (evidence of other crimes admissible for other purposes) and Rule 608(b)(1) (if probative of truthfulness). Wilson, 985 F.2d at 351-52 (bribery, perjury and the defendant’s failure to file income tax returns are acts of dishonesty within the scope of cross-examination under Rule 608(b)); United States v. Fulk, 816 F.2d 1202, 1206 (7th Cir.1987) (under Rule 608(b) the court should have allowed the government to impeach the defendant regarding whether his chiropractor’s license had been suspended for deceptive practices); United States v. Howard, 114, F.2d 838, 844-45 (7th Cir.1985) (Rule 608(b) allowed the government to question the defendant as to whether he had lied on employment applications).\nChevalier does not deny that submitting false statements to obtain loan extensions constitutes specific instances of conduct probative of truthfulness. He also admits that a defendant who takes the stand may be impeached with prior instances of misconduct, citing Covelli, 738 F.2d at 856, and a plethora of cases from other circuits. United States v. Sperling, 726 F.2d 69 (2d Cir.), cert. denied, 467 U.S. 1243, 104 S.Ct. 3516, 82 L.Ed.2d 824 (1984); United States v. Mansaw, 714 F.2d 785 (8th Cir.), cert. denied, 464 U.S. 964, 104 S.Ct. 403, 78 L.Ed.2d 343 (1983); United States v. Cole, 617 F.2d 151 (5th Cir.1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); and United States v. Reid, 634 F.2d 469 (9th Cir.1980). Yet he insists that the rule allowing impeachment with prior instances of misconduct does not allow evidence of bank fraud that occurred after the tax fraud. We reject such syllogism. Rule 608(b) allows specific instances of misconduct prior to Chevalier taking the witness stand, not prior to the crime in which he is charged. See McCormick on Evidence, p. 102 (3d ed. 1984). Thus, the government’s cross-examination was proper. Chevalier’s convictions for tax fraud are Affirmed.\nIII. Sentencing\nThe court sentenced Chevalier to concurrent sentences of twelve months on the three tax fraud counts, which were not under the sentencing guidelines. He does not appeal this decision. As to his conviction for bank fraud pursuant to the guilty plea, the court ordered a presentence report and thereafter sentenced him to twelve months and one day under the sentencing guidelines. Chevalier appeals the court’s upward adjustment of his base offense level because of the amount involved in the bank fraud. He also appeals the court’s refusal to adjust downward because of his acceptance of responsibility. We address each in turn.\nA. Amount of Fraud.\nOn August 30, 1988 Chevalier had borrowed $100,000 to finance the purchases of three pieces of construction equipment. That equipment was sold on September 30, 1988. In the next six months, Chevalier had paid off approximately $35,000 of principal. Thus, on February 27, 1989 he renewed the note for $65,000, again pledging the previously sold equipment as collateral. This note was renewed for the same amount in May, August and November of 1989. In March, 1990, the bank consolidated a number (but not ah) of Chevalier’s loans, including the $65,000 note that formed the basis of the bank fraud count. After the loan consolidation no separate records were kept on the $65,000 note. The consolidated loan amount totalled $1,065,966, principal and interest, and Chevalier had made payments of at least $297,900. He argues that the method of calculating the amount of loss attributed to the bank fraud count directly affects any increase in his base offense level. On appeal he asserts that the percent paid on the consolidated loan should be prorated against the $65,000, which would leave only $46,930 outstanding.\nAs the district court found under the Guidelines in effect at the time of sentencing, if Chevalier cheated the bank out of more than $50,000 (but less than $100,000), his Guideline range would be increased five levels, thereby resulting in an eight to fourteen month sentence. Less than $50,000 would result in a sentence of six to twelve months and allow the possibility of intermittent local confinement on work release. Thus Chevalier obviously wants the ceiling kept below $50,000. To show how the $65,000 loan should be lowered for sentencing purposes, Chevalier relies on payments he made to the bank, both prior to the indictment and sentencing dates.\nWe review the district court’s determination of the amount of loss for clear errólas a finding of fact. “However, the meaning of ‘loss’ in § 2Fl.l(b)(l) is a ‘legal question on which our review is plenary.’” United States v. Strozier, 981 F.2d 281, 283 (7th Cir.1992) (citing United States v. Mount, 966 F.2d 262, 265 (7th Cir.1992)).\nIn pertinent part, the district court made the following findings regarding the payments Chevalier had paid on the consolidated loan in calculating the amount of loss in this case:\nWithout some specific designation as to what payments if any were made on the $65,000 obligation, I find it difficult to apply the percentage that has been suggested here by defense counsel of 27.8 percent of payments made. It does appear to the court that when no designation is made[,l the bank then, being the recipient of those payments, can apply those obligations on the revolving credit, and in doing so it ivoidd appear that the indebtedness represented by the revolving credit has to some extent been reduced. ¶ Under those circumstances the court feels that the amount for consideration here on this charge should be $65,000, and the additional increase in the level of five would be appropriate as shown in the presentence report. [Emphasis added.]\nThus, the court found that the consolidated loan amount was reduced; however, the court did not make any findings regarding how the specific loan which was a part of that consolidation was somehow affected.\nFor determining the pertinent offense level, the parties do not dispute that U.S.S.G. § 2F1.1 applies to this case. See United States v. Rothberg, 954 F.2d 217, 218-19 (4th Cir.1992); United States v. Johnson, 908 F.2d 396, 398 (8th Cir.1990). In calculating the amount of fraud, the district court was required to find\nthe amount of money the victim has actually lost (estimated at the time of sentencing), not the potential loss as measured at the time of the crime. However, the “loss” should be revised upward to the loss that the defendant intended to inflict, if that amount is higher than the actual loss.\nUnited States v. Kopp, 951 F.2d 521, 536 (3d Cir.1991), citing with approval United States v. Schneider, 930 F.2d 555, 558-59 (7th Cir.1991). The record does not show from what date the district court was measuring the amount of loss. When the crime was discovered? at indictment? at sentencing? If measured prior to sentencing, perhaps Chevalier received too harsh a sentence. This is not to say that the court must search for mathematical certainty, United States v. Haddon, 927 F.2d 942, 951 (7th Cir.1991), or devise special accounting rules in cases involving consolidated loans. See U.S.S.G. § 2F1.1, comment, (n. 8) (“The amount of loss need not be precise.... The court need only make a reasonable estimate of the range of loss, given the available information.”).\nNevertheless, proper findings are particularly necessary in this case. The government indicted Chevalier for bank fraud involving a $65,000 loan. Yet he had loans with the bank totalling over one million dollars.' Prior to indictment, the bank consolidated most of the outstanding loans, including the $65,000, and stopped maintaining separate records. Eventually the bank wrote off the entire $65,000 as a loss. Also, the parties do not dispute that Chevalier at some time paid a considerable amount off on the consolidated loan. The government wants to give him no credit at all, considering that the bank lost much more than $65,000 on the consolidated amount. But the government, in turn, has made no showing that Chevalier defrauded the bank on anything other than the $65,000. To the contrary, throughout this case the government has stipulated that the bank lost no more than $65,000 due to fraud. This implies that the other loans were legitimate, although in hindsight not prudent. In any event, in order to increase Chevalier’s sentence, the government must prove the actual loss involved in this case. United States v. Smith, 951 F.2d 1164, 1167 & n. 5 (10th Cir.1991).\nChevalier, in turn, argued initially to the district court that after consolidation, the $65,000 note was paid off in full. He later softened his stance and argued that the $297,000 he paid on the total amount owed of $1,065,966 (a 27.8 percent payment) should be prorated against the $65,000 note, resulting in a loss to the bank of $46,930. For the first time on appeal, Chevalier asserts that he also turned over to the bank $223,900 worth of equipment (for a total of $521,800).\nNeither approach gives us sufficient facts for review. See United States v. Whitehead, 912 F.2d 448, 451-52 (10th Cir.1990) (the court applied a de novo review and held that in determining the amount of loss, the value of an option to purchase a home does not equate with the value of the home). Without a more precise calculation of the amount of loss and the designation of a specific time when the loss was measured, we are not able to determine whether the government has met its burden. United States v. Jackson, 983 F.2d 757, 771 (7th Cir.1993).\nFor example, suppose Chevalier had defrauded the bank on a $100,000 loan and also obtained a legitimate loan for $500,000. The former was secured by inventory that Chevalier had previously sold (thus, the fraud as in this case); the latter was secured by inventory at the store. As the business crumbles, if Chevalier turned over to the bank his inventory securing the $500,000 loan, surely he cannot be heard to argue that any portion of that amount should be prorated against the amount the bank lost on the fraudulent, unsecured loan. In contrast, if Chevalier paid the bank from profits received on unsecured inventory, such profits could be applied to the amount the bank lost as a result of fraud. The calculation becomes difficult where the loans are consolidated and the security agreements do not specify which inventory secures which notes. To accommodate judicial review, the district court will need to set out precise calculations in order to enhance Chevalier’s sentence.\nWe remand for just such a hearing. The district court should entertain evidence on the nature of Chevalier’s relationship with the bank, in particular the timing and terms of the consolidated loan agreement, the usual accounting practices the bank uses in reducing consolidated loans (e.g., how would the bank have applied Chevalier’s payments to the $65,000 note if it was not the result of fraud?), and include in its calculations all payments made by Chevalier by the time of sentencing. The court may also add such losses as Chevalier intended to inflict, if that amount is higher than the actual loss. See Strozier, 981 F.2d at 284.\nB. Acceptance of Responsibility.\nAfter the jury convicted him of tax fraud, Chevalier pleaded guilty to one count of bank fraud. He asserts that as part of the plea, the government agreed to recommend a two point downward adjustment for acceptance of responsibility. The presentence report so recommended. By the time of the sentencing hearing, however, the government had changed its posture. The district court refused to reduce the offense level and Chevalier appeals.\nThe Sentencing Guidelines provide the district court with an opportunity to decrease the offense level by up to two points where “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). This determination involves questions of fact, United States v. McKenzie, 922 F.2d 1323, 1329 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991), entitled to “great deference and will not be disturbed unless ... without foundation.” United States v. McGuire, 957 F.2d 310, 317 (7th Cir.1992); see U.S.S.G. § 3E1.1, comment, (n. 5). We review the district court’s findings of fact for clear error. United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993); United States v. Skinner, 986 F.2d 1091, 1093 (7th Cir.1993).\nIn the plea agreement, the United States was “to recommend a two level decrease for acceptance of responsibility as authorized by § 3E1.1 of the Sentencing Guidelines Manual, but only if the defendant exhibits conduct consistent with the acceptance of responsibility.” This language is conditional. In essence, the plea agreement left open the ultimate question the district court had to decide: the degree to which the defendant accepted responsibility for his criminal conduct. So we will move directly to the pertinent evidence submitted at sentencing.\nAt Chevalier’s tax trial, he testified on redirect examination that on some occasions bank officials would have him sign blank loan renewal forms, which were later completed and mailed back. Although the district court did not make a specific finding on this issue, the government argues that this testimony exhibited an attempt by Chevalier to negate the necessary intent involved in bank fraud. The testimony does not demand such an interpretation. Chevalier testified that some blank forms were signed. He never specified whether this included the documents involved in the bank fraud. It is important that the district court make a finding on this testimony and its reliance on this testimony when declining to reduce the offense level. Chevalier pleaded guilty to bank fraud after the tax fraud case was over. If Chevalier’s testimony reflected non-acceptance of responsibility, as the government now insists, why would the government enter a plea agreement containing even a conditional recommendation otherwise? The district court still could have made a determination that Chevalier’s testimony reflected non-acceptance of responsibility. But without such reflection in the record, we cannot solely rely on the government’s present spin.\nThe initial presentence report recommended no downward adjustment for acceptance of responsibility. Apparently, in his interview, Chevalier was less than forthright with the author of the presentence report. Chevalier thereafter wrote a letter of remorse to the report’s author, who then changed his recommendation. The district court noted that it was primarily concerned about the timeliness of Chevalier’s asserted acceptance of responsibility. The court found that Chevalier did not manifest responsibility until the “11th hour,” after the tax and bank fraud counts were bifurcated and the tax fraud set for trial. In essence the court heard the parties’ separate arguments and concluded that Chevalier failed to “clearly demonstrate recognition and affirmative acceptance of responsibility,” tracking the language of U.S.S.G. § 3El.l(a).\nChevalier does not challenge the district court’s findings with regard to the timeliness of his actions. Rather, he argues that the district court erred in not considering the amount of money that he paid to the bank on the consolidated loan. The rule is not in dispute. The district court can consider Chevalier’s “voluntary payment of restitution prior to the adjudication of guilt.” U.S.S.G. § 3E1.1, comment, (n. 1(c)). The government responds that Chevalier’s consolidated loan payments cannot qualify as restitution under section 3E1.1, because they were made as part of a continuing business obligation that transcended the fraudulent loan at issue. By finding that Chevalier’s payments on the consolidated loan did not qualify to reduce the amount the bank lost as a result of the fraud, the court did not thereafter address whether Chevalier’s payments on the consolidated note qualified as evidence that he had accepted responsibility for the bank fraud.\nIn United States v. Escobar-Mejia, 915 F.2d 1152 (7th Cir.1990), we remanded a case for resentencing where the district court had refused to consider whether the defendant had accepted responsibility because he had not provided substantial assistance to the government. The district court had apparently confused acceptance of responsibility and substantial assistance to the government by merging the two standards into a single reason to reduce the defendant’s sentence. The Sentencing Guidelines, however, allow for either or both to contribute toward a reduced sentence. Id. at 1153. A similar possibility of confusion exists in this case.\nIn determining whether a defendant is entitled to a two point reduction for acceptance of responsibility, the district court can consider his “voluntary payment of restitution prior to adjudication of guilt.” U.S.S.G. § 3E1.1, comment, (n. 1(e)). But in focusing on whether Chevalier accepted responsibility, the court made no findings with respect to the amounts Chevalier paid on the consolidated loan prior to adjudication of guilt. And we cannot say that the district court could have otherwise considered the issue because the record does not show that the court properly applied Chevalier’s payments when determining the amount of loss under section 2F1.1. Thus, we remand for the court to consider Chevalier’s restitution prior to his adjudication of guilt, and whether such findings, together with all other evidence properly considered under section 3E1.1, should allow him a reduction for acceptance of responsibility.\nAgainst this anticipated ruling the government argues that Chevalier’s consolidated loan payments cannot qualify as restitution because they were made as part of a continuing business obligation. Not so. In United States v. Carey, 895 F.2d 318, 322-23 (7th Cir.1990), the defendant defrauded a bank by using a check kiting scheme, 18 U.S.C. § 1344. He had deposited checks totalling $220,000 in Bank One, knowing there were insufficient funds in Indiana National Bank to cover them. 895 F.2d at 320. By the time of sentencing the defendant had paid Bank One over $200,000. We found no error in the district court classifying this amount as restitution. In fact, we reversed the court’s attempt to consider the defendant’s payment as a reason to depart downward under section 2F1.1, and instructed the court to consider the defendant’s payments under sections 3E1.1 or 5K2.0. 895 F.2d at 322-23.\nIn United States v. Garlich, 951 F.2d 161 (8th Cir.1991), the defendant car dealer had pledged the same vehicles as collateral for loans from two separate banks. Over a year before the indictment, the defendant paid the banks approximately $1.4 million; the banks lost $253,000. The Eighth Circuit approved the district court’s two-level reduction for acceptance of responsibility because of the defendant’s voluntary payments, as restitution. Id. at 163. The government in this case distinguishes Garlich by arguing that Chevalier entered into the consolidated loan only after learning of the government’s general investigation. The timing of the restitution, however, is no reason to reject the reasoning in Garlich that payments made to a bank after fraudulently obtaining a loan constitute restitution under section 3E1.1. As to the question of timing, application note 1(c) to that section specifically states that the court should consider “voluntary payment of restitution prior to adjudication of guilt” (Emphasis added).\nWe make no comment whether Chevalier has clearly demonstrated a recognition and affirmative acceptance of responsibility, deserving of a two level reduction in his offense level. We remand only to give the district court an opportunity to better determine this question consistent with the foregoing opinion.\nIY. Conclusion\nThe government’s cross-examination was proper. Chevalier’s conviction for tax fraud is therefore Affirmed. We Remand to the district court for additional findings and for resentencing on the amount of the bank’s loss and whether Chevalier accepted responsibility for bank fraud.\n. Count five involved an alleged misrepresentation to the bank on May 8, 1990 involving a $70,000 loan. Again, the collateral securing the loan had been previously sold.\n. Chevalier also asserts in his brief that the district court allowed Exhibits 130 to 137 into evidence, which constitute extrinsic evidence in violation of Fed.R.Evid. 608(b). The record reflects the opposite. During cross-examination, the government sought to show that Chevalier made false statements to Stevenson National Bank. Exhibit 130 was a chattel security agreement dated August 30, 1988. The others were related to that agreement: exhibit 131, a business note; exhibits 132-135, renewals; and exhibit 136, an invoice. Exhibit 137 was not mentioned. Contrary to Chevalier's arguments, these exhibits were not admitted into evidence; they were shown to him only after he could not remember signing them and to merely refresh his recollection. When questioning Chevalier on the bank fraud allegations, the government had to take his answer and not get into cxtrinsics. The record supports just that. Chevalier’s arguments concerning the propriety of the government addressing the bank fraud during closing argument do not come close to the threshold of reversible error. See Moylan v. The Meadow Club, Inc., 979 F.2d 1246, 1250 (7th Cir.1992).\n. The superseding indictment and the plea agreement show that Chevalier committed bank fraud on February 27, 1989 when he renewed the $65,000 note. Chevalier was sentenced on February 27, 1992. As a general rule, courts apply the Guidelines in effect at the time of sentencing. United States v. Willey, 985 F.2d 1342, 1350 (7th Cir.1993); cf. United States v. Schnell, 982 F.2d 216, 218-19 (7th Cir.1992). But if the current Guidelines result in stiffer penalties, the courts must apply the earlier version in effect when the crime was committed. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). So Chevalier has a choice between the February 1989 version or the current one. The current version of U.S.S.G. § 2F1.1 indicates that a loss of more than forty thousand dollars, not fifty, calls for a five-level increase. U.S.S.G. § 2F 1.1 (b)(1)(F). So it is unlikely that he would chose the latest version. In any event, the Guidelines now give very specific commentary on determining the amount of loss in cases involving fraudulent loan applications.\nIn fraudulent loan application cases and contract procurement cases where the defendant’s capabilities are fraudulently represented, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss). For example, if a defendant fraudulently obtains a loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered, or can expect to recover, from any assets pledged to secure the loan.\nU.S.S.G. § 2F1.1, comment, (n. 7(b)). The court can also consider the risk of loss Chevalier created for the bank. Id. In this case the district court neither found with respect to the amount Chevalier had paid the bank by the time his fraud was discovered, nor how much the bank lost (actual or expected) or was at risk of losing.\n. Chevalier has made no argument that the court failed to comply with Fed.R.Crim.P. 11. See United States v. Price, 988 F.2d 712, 718-19 (7th Cir.1993); United States v. Bennett, 990 F.2d 998, 1004 (7th Cir.1993).\n. On appeal the government raises for the first time that Chevalier perpetrated the bank fraud by consolidating the $65,000 loan into the larger loan agreement. And that considering the consolidated loan, Chevalier’s bank debt far exceeds the $65,000 loan involved in the count four pica agreement. At oral argument the government questioned whether interest on the $65,000 debt should be considered in calculating the effect of any loan payments. We decline to address these arguments not made to nor considered by the district court. Textile Banking Co. v. Rentschler, 657 F.2d 844, 853 (7th Cir.1981).", "type": "majority", "author": "MANION, Circuit Judge."}], "attorneys": ["Mel Johnson (argued), Stephen J. Liccione, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, WI, for plaintiff-appellee.", "Mama M. Tess-Mattner, Franklyn M. Gimbel, Kathryn A. Keppel, Raymond M. DalPOsto (argued), Gimbel, Reilly, Guerin & Brown, Milwaukee, WI, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Mark A. CHEVALIER, Defendant-Appellant.\nNo. 92-1598.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Feb. 23, 1993.\nDecided Aug. 3, 1993.\nMel Johnson (argued), Stephen J. Liccione, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, WI, for plaintiff-appellee.\nMama M. Tess-Mattner, Franklyn M. Gimbel, Kathryn A. Keppel, Raymond M. DalPOsto (argued), Gimbel, Reilly, Guerin & Brown, Milwaukee, WI, for defendant-appellant.\nBefore POSNER and MANION, Circuit Judges, and WOOD, Jr., Senior Circuit Judge."}	POSNER	MANION	WOOD	1	1	1	0	0	0	1 F.3d 581	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Mark A. CHEVALIER, Defendant-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-03\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nMANION, Circuit Judge.\nOn June 11, 1991, a federal grand jury returned a superseding indictment against Mark A. Chevalier alleging three counts of tax fraud, 26 U.S.C. § 7206(1), and two counts of making false statements in connection with loan extensions, 18 U.S.C. § 1014. On November 1, 1991, the district court granted Chevalier’s motion to sever the tax and bank fraud counts. At the close of trial, the jury convicted Chevalier of the three tax fraud counts. He later pleaded guilty to one count of bank fraud, and by agreement the other count was dismissed. On appeal he challenges the scope of the government’s cross-examination after he took the witness stand at the tax trial and the district court’s computation of his sentence for bank fraud. We affirm Chevalier’s conviction, but vacate his sentence and remand to the district court for resentencing.\nI. Background\nA. Tax Fraud.\nChevalier operated a business in Wisconsin that sold heavy construction equipment. This began as an adjunct operation with his father’s automobile dealership, and by 1982 Chevalier was on his own. Gross receipts and sales totaled between one and two million dollars. He alone kept the books and records of his business, and he filed the necessary income tax forms. What started out as a profitable business, however, eventually evolved into desparate schemes to stay afloat.\nBeginning with his 1984 tax return, Chevalier underreported his gross receipts and sales by $279,000; in 1985, $83,000; in 1986, $23,000. For example, from 1984 to 1986 Chevalier failed to report the sales of parts and tires, and only portions of customer trade-ins. Although he collected sales tax from customers, Wisconsin never received the money. This led to Chevalier’s indictment on three counts of tax fraud, 26 U.S.C. § 7206(1).\nB. Bank Fraud.\nStephenson National Bank financed a significant amount of the operation. It was a simple security arrangement. Chevalier would boiTow money and pledge his inventory as collateral. However, Chevalier lied to the bank on several occasions in order to obtain loan renewals. On August 30, 1988 Chevalier had borrowed $100,000 to finance the purchases of three pieces of construction equipment. He sold that equipment on September 30, 1988, but the loan was not paid off. During the bank’s on-site inventory inspections, Chevalier would point out various pieces of other equipment on the lot that matched the description of the pledged inventory; however, the bank employee did not cheek serial numbers. If similar equipment was not in the yard, Chevalier would tell the bank employee that the equipment was being repaired. On February 27, 1989 Chevalier renewed the note for $65,000, again pledging the previously sold equipment as collateral. He likewise renewed the note again in May, August and November. In the end, the bank wrote off the $65,000 loss. This led to Chevalier’s indictment on Counts four and five of making false statements in connection with loan extensions, 18 U.S.C. § 1014.\nThe district court severed the tax and bank fraud counts, trying the tax fraud counts first. The jury convicted Chevalier as charged. He thereafter pleaded guilty to the bank fraud as alleged in Count four; Count five was dismissed as part of the plea agreement.\nII. Cross-examination\nAt trial on the tax fraud, Chevalier admitted that he filed false tax returns subject to the penalties of perjury. Tax fraud, however, requires an element of intent. The sole issue for the jury was whether Chevalier willfully signed the tax returns believing that they were not correct. Chevalier took the stand as his only defense witness. During cross-examination the district court allowed the government to question Chevalier about the facts surrounding the alleged bank fraud counts, which had been severed for a later trial.\nChevalier vigorously objected, arguing that the bank fraud counts were irrelevant to the government’s proof of tax fraud, and that the bank fraud counts involved alleged conduct that occurred three years after the end of the 1986 tax year. In Chevalier’s view the government was attempting to convince the jury that if Chevalier lied to the bank in 1989, he probably lied to the Internal Revenue Service (“IRS”) from 1984 to 1986. In support of this argument, Chevalier relied on Fed.R.Evid. 404(b):\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,....\nThe government on the other hand relied on Fed.R.Evid. 608(b):\nSpecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, ... may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness,....\nWe review the introduction of such evidence under the abuse of discretion standard. United States v. Wilson, 985 F.2d 348, 351 (7th Cir.1993).\nThe question at the tax trial was whether Chevalier lied to the IRS on his 1984-1986 tax returns. Granted, if Chevalier had not taken the witness stand, the government could not have introduced evidence of the alleged bank fraud without facing Rule 404(b). The government could not have attempted to show that because Chevalier committed bank fraud, he likely would have committed tax fraud as well. But by electing to testify, Chevalier placed his credibility in issue. United States v. Covelli, 738 F.2d 847, 856 (7th Cir.), cert. denied, 469 U.S. 867, 105 S.Ct. 211, 83 L.Ed.2d 141 (1984). Thus, the government could introduce evidence relevant to whether Chevalier was testifying truthfully, pursuant to Rule 404(b) (evidence of other crimes admissible for other purposes) and Rule 608(b)(1) (if probative of truthfulness). Wilson, 985 F.2d at 351-52 (bribery, perjury and the defendant’s failure to file income tax returns are acts of dishonesty within the scope of cross-examination under Rule 608(b)); United States v. Fulk, 816 F.2d 1202, 1206 (7th Cir.1987) (under Rule 608(b) the court should have allowed the government to impeach the defendant regarding whether his chiropractor’s license had been suspended for deceptive practices); United States v. Howard, 114, F.2d 838, 844-45 (7th Cir.1985) (Rule 608(b) allowed the government to question the defendant as to whether he had lied on employment applications).\nChevalier does not deny that submitting false statements to obtain loan extensions constitutes specific instances of conduct probative of truthfulness. He also admits that a defendant who takes the stand may be impeached with prior instances of misconduct, citing Covelli, 738 F.2d at 856, and a plethora of cases from other circuits. United States v. Sperling, 726 F.2d 69 (2d Cir.), cert. denied, 467 U.S. 1243, 104 S.Ct. 3516, 82 L.Ed.2d 824 (1984); United States v. Mansaw, 714 F.2d 785 (8th Cir.), cert. denied, 464 U.S. 964, 104 S.Ct. 403, 78 L.Ed.2d 343 (1983); United States v. Cole, 617 F.2d 151 (5th Cir.1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); and United States v. Reid, 634 F.2d 469 (9th Cir.1980). Yet he insists that the rule allowing impeachment with prior instances of misconduct does not allow evidence of bank fraud that occurred after the tax fraud. We reject such syllogism. Rule 608(b) allows specific instances of misconduct prior to Chevalier taking the witness stand, not prior to the crime in which he is charged. See McCormick on Evidence, p. 102 (3d ed. 1984). Thus, the government’s cross-examination was proper. Chevalier’s convictions for tax fraud are Affirmed.\nIII. Sentencing\nThe court sentenced Chevalier to concurrent sentences of twelve months on the three tax fraud counts, which were not under the sentencing guidelines. He does not appeal this decision. As to his conviction for bank fraud pursuant to the guilty plea, the court ordered a presentence report and thereafter sentenced him to twelve months and one day under the sentencing guidelines. Chevalier appeals the court’s upward adjustment of his base offense level because of the amount involved in the bank fraud. He also appeals the court’s refusal to adjust downward because of his acceptance of responsibility. We address each in turn.\nA. Amount of Fraud.\nOn August 30, 1988 Chevalier had borrowed $100,000 to finance the purchases of three pieces of construction equipment. That equipment was sold on September 30, 1988. In the next six months, Chevalier had paid off approximately $35,000 of principal. Thus, on February 27, 1989 he renewed the note for $65,000, again pledging the previously sold equipment as collateral. This note was renewed for the same amount in May, August and November of 1989. In March, 1990, the bank consolidated a number (but not ah) of Chevalier’s loans, including the $65,000 note that formed the basis of the bank fraud count. After the loan consolidation no separate records were kept on the $65,000 note. The consolidated loan amount totalled $1,065,966, principal and interest, and Chevalier had made payments of at least $297,900. He argues that the method of calculating the amount of loss attributed to the bank fraud count directly affects any increase in his base offense level. On appeal he asserts that the percent paid on the consolidated loan should be prorated against the $65,000, which would leave only $46,930 outstanding.\nAs the district court found under the Guidelines in effect at the time of sentencing, if Chevalier cheated the bank out of more than $50,000 (but less than $100,000), his Guideline range would be increased five levels, thereby resulting in an eight to fourteen month sentence. Less than $50,000 would result in a sentence of six to twelve months and allow the possibility of intermittent local confinement on work release. Thus Chevalier obviously wants the ceiling kept below $50,000. To show how the $65,000 loan should be lowered for sentencing purposes, Chevalier relies on payments he made to the bank, both prior to the indictment and sentencing dates.\nWe review the district court’s determination of the amount of loss for clear errólas a finding of fact. “However, the meaning of ‘loss’ in § 2Fl.l(b)(l) is a ‘legal question on which our review is plenary.’” United States v. Strozier, 981 F.2d 281, 283 (7th Cir.1992) (citing United States v. Mount, 966 F.2d 262, 265 (7th Cir.1992)).\nIn pertinent part, the district court made the following findings regarding the payments Chevalier had paid on the consolidated loan in calculating the amount of loss in this case:\nWithout some specific designation as to what payments if any were made on the $65,000 obligation, I find it difficult to apply the percentage that has been suggested here by defense counsel of 27.8 percent of payments made. It does appear to the court that when no designation is made[,l the bank then, being the recipient of those payments, can apply those obligations on the revolving credit, and in doing so it ivoidd appear that the indebtedness represented by the revolving credit has to some extent been reduced. ¶ Under those circumstances the court feels that the amount for consideration here on this charge should be $65,000, and the additional increase in the level of five would be appropriate as shown in the presentence report. [Emphasis added.]\nThus, the court found that the consolidated loan amount was reduced; however, the court did not make any findings regarding how the specific loan which was a part of that consolidation was somehow affected.\nFor determining the pertinent offense level, the parties do not dispute that U.S.S.G. § 2F1.1 applies to this case. See United States v. Rothberg, 954 F.2d 217, 218-19 (4th Cir.1992); United States v. Johnson, 908 F.2d 396, 398 (8th Cir.1990). In calculating the amount of fraud, the district court was required to find\nthe amount of money the victim has actually lost (estimated at the time of sentencing), not the potential loss as measured at the time of the crime. However, the “loss” should be revised upward to the loss that the defendant intended to inflict, if that amount is higher than the actual loss.\nUnited States v. Kopp, 951 F.2d 521, 536 (3d Cir.1991), citing with approval United States v. Schneider, 930 F.2d 555, 558-59 (7th Cir.1991). The record does not show from what date the district court was measuring the amount of loss. When the crime was discovered? at indictment? at sentencing? If measured prior to sentencing, perhaps Chevalier received too harsh a sentence. This is not to say that the court must search for mathematical certainty, United States v. Haddon, 927 F.2d 942, 951 (7th Cir.1991), or devise special accounting rules in cases involving consolidated loans. See U.S.S.G. § 2F1.1, comment, (n. 8) (“The amount of loss need not be precise.... The court need only make a reasonable estimate of the range of loss, given the available information.”).\nNevertheless, proper findings are particularly necessary in this case. The government indicted Chevalier for bank fraud involving a $65,000 loan. Yet he had loans with the bank totalling over one million dollars.' Prior to indictment, the bank consolidated most of the outstanding loans, including the $65,000, and stopped maintaining separate records. Eventually the bank wrote off the entire $65,000 as a loss. Also, the parties do not dispute that Chevalier at some time paid a considerable amount off on the consolidated loan. The government wants to give him no credit at all, considering that the bank lost much more than $65,000 on the consolidated amount. But the government, in turn, has made no showing that Chevalier defrauded the bank on anything other than the $65,000. To the contrary, throughout this case the government has stipulated that the bank lost no more than $65,000 due to fraud. This implies that the other loans were legitimate, although in hindsight not prudent. In any event, in order to increase Chevalier’s sentence, the government must prove the actual loss involved in this case. United States v. Smith, 951 F.2d 1164, 1167 & n. 5 (10th Cir.1991).\nChevalier, in turn, argued initially to the district court that after consolidation, the $65,000 note was paid off in full. He later softened his stance and argued that the $297,000 he paid on the total amount owed of $1,065,966 (a 27.8 percent payment) should be prorated against the $65,000 note, resulting in a loss to the bank of $46,930. For the first time on appeal, Chevalier asserts that he also turned over to the bank $223,900 worth of equipment (for a total of $521,800).\nNeither approach gives us sufficient facts for review. See United States v. Whitehead, 912 F.2d 448, 451-52 (10th Cir.1990) (the court applied a de novo review and held that in determining the amount of loss, the value of an option to purchase a home does not equate with the value of the home). Without a more precise calculation of the amount of loss and the designation of a specific time when the loss was measured, we are not able to determine whether the government has met its burden. United States v. Jackson, 983 F.2d 757, 771 (7th Cir.1993).\nFor example, suppose Chevalier had defrauded the bank on a $100,000 loan and also obtained a legitimate loan for $500,000. The former was secured by inventory that Chevalier had previously sold (thus, the fraud as in this case); the latter was secured by inventory at the store. As the business crumbles, if Chevalier turned over to the bank his inventory securing the $500,000 loan, surely he cannot be heard to argue that any portion of that amount should be prorated against the amount the bank lost on the fraudulent, unsecured loan. In contrast, if Chevalier paid the bank from profits received on unsecured inventory, such profits could be applied to the amount the bank lost as a result of fraud. The calculation becomes difficult where the loans are consolidated and the security agreements do not specify which inventory secures which notes. To accommodate judicial review, the district court will need to set out precise calculations in order to enhance Chevalier’s sentence.\nWe remand for just such a hearing. The district court should entertain evidence on the nature of Chevalier’s relationship with the bank, in particular the timing and terms of the consolidated loan agreement, the usual accounting practices the bank uses in reducing consolidated loans (e.g., how would the bank have applied Chevalier’s payments to the $65,000 note if it was not the result of fraud?), and include in its calculations all payments made by Chevalier by the time of sentencing. The court may also add such losses as Chevalier intended to inflict, if that amount is higher than the actual loss. See Strozier, 981 F.2d at 284.\nB. Acceptance of Responsibility.\nAfter the jury convicted him of tax fraud, Chevalier pleaded guilty to one count of bank fraud. He asserts that as part of the plea, the government agreed to recommend a two point downward adjustment for acceptance of responsibility. The presentence report so recommended. By the time of the sentencing hearing, however, the government had changed its posture. The district court refused to reduce the offense level and Chevalier appeals.\nThe Sentencing Guidelines provide the district court with an opportunity to decrease the offense level by up to two points where “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). This determination involves questions of fact, United States v. McKenzie, 922 F.2d 1323, 1329 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991), entitled to “great deference and will not be disturbed unless ... without foundation.” United States v. McGuire, 957 F.2d 310, 317 (7th Cir.1992); see U.S.S.G. § 3E1.1, comment, (n. 5). We review the district court’s findings of fact for clear error. United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993); United States v. Skinner, 986 F.2d 1091, 1093 (7th Cir.1993).\nIn the plea agreement, the United States was “to recommend a two level decrease for acceptance of responsibility as authorized by § 3E1.1 of the Sentencing Guidelines Manual, but only if the defendant exhibits conduct consistent with the acceptance of responsibility.” This language is conditional. In essence, the plea agreement left open the ultimate question the district court had to decide: the degree to which the defendant accepted responsibility for his criminal conduct. So we will move directly to the pertinent evidence submitted at sentencing.\nAt Chevalier’s tax trial, he testified on redirect examination that on some occasions bank officials would have him sign blank loan renewal forms, which were later completed and mailed back. Although the district court did not make a specific finding on this issue, the government argues that this testimony exhibited an attempt by Chevalier to negate the necessary intent involved in bank fraud. The testimony does not demand such an interpretation. Chevalier testified that some blank forms were signed. He never specified whether this included the documents involved in the bank fraud. It is important that the district court make a finding on this testimony and its reliance on this testimony when declining to reduce the offense level. Chevalier pleaded guilty to bank fraud after the tax fraud case was over. If Chevalier’s testimony reflected non-acceptance of responsibility, as the government now insists, why would the government enter a plea agreement containing even a conditional recommendation otherwise? The district court still could have made a determination that Chevalier’s testimony reflected non-acceptance of responsibility. But without such reflection in the record, we cannot solely rely on the government’s present spin.\nThe initial presentence report recommended no downward adjustment for acceptance of responsibility. Apparently, in his interview, Chevalier was less than forthright with the author of the presentence report. Chevalier thereafter wrote a letter of remorse to the report’s author, who then changed his recommendation. The district court noted that it was primarily concerned about the timeliness of Chevalier’s asserted acceptance of responsibility. The court found that Chevalier did not manifest responsibility until the “11th hour,” after the tax and bank fraud counts were bifurcated and the tax fraud set for trial. In essence the court heard the parties’ separate arguments and concluded that Chevalier failed to “clearly demonstrate recognition and affirmative acceptance of responsibility,” tracking the language of U.S.S.G. § 3El.l(a).\nChevalier does not challenge the district court’s findings with regard to the timeliness of his actions. Rather, he argues that the district court erred in not considering the amount of money that he paid to the bank on the consolidated loan. The rule is not in dispute. The district court can consider Chevalier’s “voluntary payment of restitution prior to the adjudication of guilt.” U.S.S.G. § 3E1.1, comment, (n. 1(c)). The government responds that Chevalier’s consolidated loan payments cannot qualify as restitution under section 3E1.1, because they were made as part of a continuing business obligation that transcended the fraudulent loan at issue. By finding that Chevalier’s payments on the consolidated loan did not qualify to reduce the amount the bank lost as a result of the fraud, the court did not thereafter address whether Chevalier’s payments on the consolidated note qualified as evidence that he had accepted responsibility for the bank fraud.\nIn United States v. Escobar-Mejia, 915 F.2d 1152 (7th Cir.1990), we remanded a case for resentencing where the district court had refused to consider whether the defendant had accepted responsibility because he had not provided substantial assistance to the government. The district court had apparently confused acceptance of responsibility and substantial assistance to the government by merging the two standards into a single reason to reduce the defendant’s sentence. The Sentencing Guidelines, however, allow for either or both to contribute toward a reduced sentence. Id. at 1153. A similar possibility of confusion exists in this case.\nIn determining whether a defendant is entitled to a two point reduction for acceptance of responsibility, the district court can consider his “voluntary payment of restitution prior to adjudication of guilt.” U.S.S.G. § 3E1.1, comment, (n. 1(e)). But in focusing on whether Chevalier accepted responsibility, the court made no findings with respect to the amounts Chevalier paid on the consolidated loan prior to adjudication of guilt. And we cannot say that the district court could have otherwise considered the issue because the record does not show that the court properly applied Chevalier’s payments when determining the amount of loss under section 2F1.1. Thus, we remand for the court to consider Chevalier’s restitution prior to his adjudication of guilt, and whether such findings, together with all other evidence properly considered under section 3E1.1, should allow him a reduction for acceptance of responsibility.\nAgainst this anticipated ruling the government argues that Chevalier’s consolidated loan payments cannot qualify as restitution because they were made as part of a continuing business obligation. Not so. In United States v. Carey, 895 F.2d 318, 322-23 (7th Cir.1990), the defendant defrauded a bank by using a check kiting scheme, 18 U.S.C. § 1344. He had deposited checks totalling $220,000 in Bank One, knowing there were insufficient funds in Indiana National Bank to cover them. 895 F.2d at 320. By the time of sentencing the defendant had paid Bank One over $200,000. We found no error in the district court classifying this amount as restitution. In fact, we reversed the court’s attempt to consider the defendant’s payment as a reason to depart downward under section 2F1.1, and instructed the court to consider the defendant’s payments under sections 3E1.1 or 5K2.0. 895 F.2d at 322-23.\nIn United States v. Garlich, 951 F.2d 161 (8th Cir.1991), the defendant car dealer had pledged the same vehicles as collateral for loans from two separate banks. Over a year before the indictment, the defendant paid the banks approximately $1.4 million; the banks lost $253,000. The Eighth Circuit approved the district court’s two-level reduction for acceptance of responsibility because of the defendant’s voluntary payments, as restitution. Id. at 163. The government in this case distinguishes Garlich by arguing that Chevalier entered into the consolidated loan only after learning of the government’s general investigation. The timing of the restitution, however, is no reason to reject the reasoning in Garlich that payments made to a bank after fraudulently obtaining a loan constitute restitution under section 3E1.1. As to the question of timing, application note 1(c) to that section specifically states that the court should consider “voluntary payment of restitution prior to adjudication of guilt” (Emphasis added).\nWe make no comment whether Chevalier has clearly demonstrated a recognition and affirmative acceptance of responsibility, deserving of a two level reduction in his offense level. We remand only to give the district court an opportunity to better determine this question consistent with the foregoing opinion.\nIY. Conclusion\nThe government’s cross-examination was proper. Chevalier’s conviction for tax fraud is therefore Affirmed. We Remand to the district court for additional findings and for resentencing on the amount of the bank’s loss and whether Chevalier accepted responsibility for bank fraud.\n. Count five involved an alleged misrepresentation to the bank on May 8, 1990 involving a $70,000 loan. Again, the collateral securing the loan had been previously sold.\n. Chevalier also asserts in his brief that the district court allowed Exhibits 130 to 137 into evidence, which constitute extrinsic evidence in violation of Fed.R.Evid. 608(b). The record reflects the opposite. During cross-examination, the government sought to show that Chevalier made false statements to Stevenson National Bank. Exhibit 130 was a chattel security agreement dated August 30, 1988. The others were related to that agreement: exhibit 131, a business note; exhibits 132-135, renewals; and exhibit 136, an invoice. Exhibit 137 was not mentioned. Contrary to Chevalier's arguments, these exhibits were not admitted into evidence; they were shown to him only after he could not remember signing them and to merely refresh his recollection. When questioning Chevalier on the bank fraud allegations, the government had to take his answer and not get into cxtrinsics. The record supports just that. Chevalier’s arguments concerning the propriety of the government addressing the bank fraud during closing argument do not come close to the threshold of reversible error. See Moylan v. The Meadow Club, Inc., 979 F.2d 1246, 1250 (7th Cir.1992).\n. The superseding indictment and the plea agreement show that Chevalier committed bank fraud on February 27, 1989 when he renewed the $65,000 note. Chevalier was sentenced on February 27, 1992. As a general rule, courts apply the Guidelines in effect at the time of sentencing. United States v. Willey, 985 F.2d 1342, 1350 (7th Cir.1993); cf. United States v. Schnell, 982 F.2d 216, 218-19 (7th Cir.1992). But if the current Guidelines result in stiffer penalties, the courts must apply the earlier version in effect when the crime was committed. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). So Chevalier has a choice between the February 1989 version or the current one. The current version of U.S.S.G. § 2F1.1 indicates that a loss of more than forty thousand dollars, not fifty, calls for a five-level increase. U.S.S.G. § 2F 1.1 (b)(1)(F). So it is unlikely that he would chose the latest version. In any event, the Guidelines now give very specific commentary on determining the amount of loss in cases involving fraudulent loan applications.\nIn fraudulent loan application cases and contract procurement cases where the defendant’s capabilities are fraudulently represented, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss). For example, if a defendant fraudulently obtains a loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered, or can expect to recover, from any assets pledged to secure the loan.\nU.S.S.G. § 2F1.1, comment, (n. 7(b)). The court can also consider the risk of loss Chevalier created for the bank. Id. In this case the district court neither found with respect to the amount Chevalier had paid the bank by the time his fraud was discovered, nor how much the bank lost (actual or expected) or was at risk of losing.\n. Chevalier has made no argument that the court failed to comply with Fed.R.Crim.P. 11. See United States v. Price, 988 F.2d 712, 718-19 (7th Cir.1993); United States v. Bennett, 990 F.2d 998, 1004 (7th Cir.1993).\n. On appeal the government raises for the first time that Chevalier perpetrated the bank fraud by consolidating the $65,000 loan into the larger loan agreement. And that considering the consolidated loan, Chevalier’s bank debt far exceeds the $65,000 loan involved in the count four pica agreement. At oral argument the government questioned whether interest on the $65,000 debt should be considered in calculating the effect of any loan payments. We decline to address these arguments not made to nor considered by the district court. Textile Banking Co. v. Rentschler, 657 F.2d 844, 853 (7th Cir.1981).\n[END_CASE]", "role": "user" } ]
10,512,704	INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 103, AFL-CIO, Plaintiff-Appellant, v. BABCOCK & WILCOX, Defendant-Appellee	International Ass'n of Bridge, Structural & Ornamental Iron Workers, Local 103 v. Babcock & Wilcox	1993-08-04	No. 91-3406	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before FLAUM and KANNE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge."], "parties": ["INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 103, AFL-CIO, Plaintiff-Appellant, v. BABCOCK & WILCOX, Defendant-Appellee."], "opinions": [{"text": "FAIRCHILD, Senior Circuit Judge.\nThe International Association of Bridge, Structural and Ornamental Iron Workers, Local 103, AFL-CIO, (hereinafter “Iron Workers”) filed a suit asking for money damages for breach of a collective bargaining agreement by Babcock & Wilcox (hereinafter “B & W”) as authorized by Section 301 of the Labor-Management Relations Act, codified at 29 U.S.C. § 185. B & W filed a motion for summary judgment. The district court granted summary judgment for B & W and dismissed the action with prejudice.\nI. BACKGROUND\nOn September 28, 1982, a pre-job meeting was held concerning upcoming work. B & W, the Iron Workers, and several other unions had entered into a Project Agreement concerning B & W’s work on the D.B. Wilson Station in Centertown, Kentucky. Article IV of the Project Agreement provides for binding arbitration of disputes and grievances, except that jurisdictional disputes are to be resolved by the Impartial Jurisdictional Disputes Board (IJDB), as provided in Article V. (IJDB is an organization created by agreement of the Building and Construction Trades Department, AFL-CIO and several Employer Associations.) At the pre-job meeting, assignment of work was discussed, and the structural steel work was assigned to the Boiler Makers-Iron Workers Agreement, a 1926 agreement between the two unions, allocating types of work to the jurisdiction of each. On September 21, 1983, B & W assigned the structural steel work to the Boiler Makers, and that work commenced in October, 1983.\nThe Iron Workers contend that the 1982 assignment was a specific assignment of the structural steel work to their union. They believed that the Boiler Makers-Iron Workers Agreement (BM-IW Agreement) gave them jurisdiction over this type of work. B & W contends that the 1982 assignment was only a statement that the assignment would be in accordance with the BM-IW Agreement, and the work was not specifically assigned until 1983 when it was assigned to the Boiler Makers, per B & W’s interpretation of the BM-IW Agreement.\nThe Iron Workers objected to the 1983 assignment to the Boiler Makers, arguing that it was a change from the 1982 assignment, in violation of the Rules of the IJDB. On September 30, 1983, the Iron Workers wrote to the chairman of the IJDB claiming that B & W had improperly changed work assignments and requesting that the Board order B & W to honor the 1982 assignment. On October 3, the Board wrote to B & W informing it that “[i]t is a violation of the Procedural Rules for a contractor who has made a specific assignment of work to change such assignment unless there is agreement between the trades involved or a directive from the Board.” The Board ordered B & W to honor the original assignment and respond to the Iron Workers’ allegations by supplying a complete description of the facts and circumstances surrounding the original assignment of work. B & W responded on October 7 arguing to the Board that the 1982 assignment was not a specific assignment and submitting the meeting minutes and the assignment pages from the Pre-Job Booklet. On October 24, the Iron Workers again wrote to the Board arguing that the original assignment was to the Iron Workers, and on that same date, filed this action in the District Court. On October 26, the Board responded,\nAssignments such as the one involved in this matter — Structural support steel, BM/IW agreement — are not specific and are subject to interpretation by the parties.\nUnless specific work was performed under the above assignment and has now been reassigned by the contractor, this office has no way of determining the merits of the dispute. Accordingly, the involved International Unions have a responsibility to interpret the applicable agreements between them and so inform the responsible contractor.\nIf on the other hand, relying on the assignment, certain work was assigned and performed by the iron workers and then reassigned without agreement by the trades involved, this office will act upon receipt of such specific information.\nAlthough the Board invited further information, the Iron Workers did not supply any. Thus the Board decided on the only complaint made to it that B & W’s announcement at the 1982 meeting was not a specific assignment. The Iron Workers did not ask the Board to decide that the 1983 assignment to the Boilermakers was in violation of the 1926 BM-IW agreement or any other decision or agreement and the IJDB evidently did not interpret the Iron Workers’ complaint as calling for a decision on that point.\nB & W moved the district court for summary judgment. The district court noted that the Iron Workers had not exhausted the available contractual remedies and withheld judgment on the motion pending a showing by the Iron Workers that pursuing those remedies would be futile. The Iron Workers submitted the affidavit of Joseph Hunt, general organizer of the union, who averred that he had attempted to have the IJDB respond further and was advised that the Board could not be involved in further activity in the dispute, which was pending in federal court. (R. at 20.) The district court decided that the Iron Workers had not fully pursued their remedies under the Project Agreement and dismissed the action “on its merits.” The Iron Workers now appeal.\nII. DISCUSSION\nWe review a decision to grant summary judgment de novo and will affirm only if there is no genuine issue of material fact and the moving party, B & W, is entitled to judgment as a matter of law. Ooley v. Schwitzer Div. Household Mfg., Inc., 961 F.2d 1293, 1297 (7th Cir.), cert. denied, - U.S. -, 113 S.Ct. 208, 121 L.Ed.2d 148 (1992). We view the facts in the light most favorable to the non-moving party, the Iron Workers. Id.\nArticle IV of the Project Agreement provides for a grievance and binding arbitration procedure for all disputes and grievances except jurisdictional. Article V is entitled Jurisdictional Disputes. It provides in relevant part:\nThe assignment of work will be solely the responsibility of the Contractor performing the work involved, and such work assignments will be according to decisions and agreements of record....\n1. All jurisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow-down of any nature, and the Contractor assignment shall be adhered to until the dispute is resolved as follows:\n(a) Jurisdictional disputes will be resolved by the Impartial Jurisdictional Disputes Board....\nIron Workers appear, from the arguments in their brief, to view the issue whether B & W’s 1982 action at the meeting was an assignment of the work to the Iron Workers as an issue of fact which would prevent summary judgment. In so arguing, they fail to deal with the proposition that IJDB had already decided that issue against them.\nAs to that narrow issue, the Iron Workers have failed to show any reason why a court could appropriately reexamine the issue.\nWhen the parties include an arbitration clause in their collective-bargaining agreement, they choose to have disputes concerning constructions of the contract resolved by an arbitrator. Unless the arbi-tral decision does not “dra[w] its essence from the collective bargaining agreement,” [Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960) ] a court is bound to enforce the award and is not entitled to review the merits of the contract dispute.\nW.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983). Confining ourselves, for the moment, to the narrow issue, the impropriety of a court reexamining the IJDB’s decision is reason enough to affirm the judgment.\nThere is a broader issue, though scarcely hinted at by the Iron Workers. It is whether the work in question was allocated by the 1926 agreement to the Iron Workers, so that B & W’s 1983 assignment of the work to the Boiler Makers was, itself, a breach of the Project Agreement. The Iron Workers did not present the broader issue to the IJDB. Assuming, as we do, that it would be a jurisdictional dispute, that is where it should go. If any facet of the issue is other than a jurisdictional dispute, then that would have to go to arbitration under Article IV. In any event, resort to the contractual remedy is required. Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960).\nAt one point, Judge Brooks gave the Iron Workers an opportunity to make a showing that it would be futile to proceed before the IJDB. The Iron Workers made no presentation at that point of either the narrow nor the broader issue to the Board. The vague assertion of being “advised” by the IJDB that it could not be involved in further correspondence or activity does not show the futility of a proper presentation of a further claim and the Iron Workers have not really argued that it did.\nThe Iron Workers suggest in their reply brief that Article V, unlike Article IV, is not a provision for arbitration within the meaning of the Steelworkers Trilogy. We conclude, however, that Articles IV and V are both provisions for arbitration, the difference being that in Article V the parties have named a particular arbitrator to determine a class of disputes which are excluded from Article IV.\nIII. CONCLUSION\nThe district- court judgment dismissed the action on the merits, and the Iron Workers argue that it should have been without prejudice. This argument suggests the union may wish to pursue its claim through the IJDB, and that dismissal on the merits may prejudice that.\nThe judgment is modified to provide that dismissal is without prejudice to pursuit of plaintiffs claims by invocation of contractual remedies, and as so modified, it is Affirmed. Defendant may recover its costs on appeal.", "type": "majority", "author": "FAIRCHILD, Senior Circuit Judge."}], "attorneys": ["Charles L. Berger (argued), Andrew Ward, Berger & Berger, Evansville, IN, for plaintiff-appellant.", "K. Richard Hawley, Hawley, Hudson & Almon, Mt. Vernon, IN, William A. Ziegler (argued), Sullivan & Cromwell, New York City, for defendant-appellee."], "corrections": "", "head_matter": "INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 103, AFL-CIO, Plaintiff-Appellant, v. BABCOCK & WILCOX, Defendant-Appellee.\nNo. 91-3406.\nUnited States Court of Appeals, Seventh Circuit.\nArgued April 29, 1992.\nDecided Aug. 4, 1993.\nCharles L. Berger (argued), Andrew Ward, Berger & Berger, Evansville, IN, for plaintiff-appellant.\nK. Richard Hawley, Hawley, Hudson & Almon, Mt. Vernon, IN, William A. Ziegler (argued), Sullivan & Cromwell, New York City, for defendant-appellee.\nBefore FLAUM and KANNE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge."}	FLAUM	KANNE	FAIRCHILD	1	1	1	0	0	0	1 F.3d 589	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 103, AFL-CIO, Plaintiff-Appellant, v. BABCOCK & WILCOX, Defendant-Appellee\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-04\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nFAIRCHILD, Senior Circuit Judge.\nThe International Association of Bridge, Structural and Ornamental Iron Workers, Local 103, AFL-CIO, (hereinafter “Iron Workers”) filed a suit asking for money damages for breach of a collective bargaining agreement by Babcock & Wilcox (hereinafter “B & W”) as authorized by Section 301 of the Labor-Management Relations Act, codified at 29 U.S.C. § 185. B & W filed a motion for summary judgment. The district court granted summary judgment for B & W and dismissed the action with prejudice.\nI. BACKGROUND\nOn September 28, 1982, a pre-job meeting was held concerning upcoming work. B & W, the Iron Workers, and several other unions had entered into a Project Agreement concerning B & W’s work on the D.B. Wilson Station in Centertown, Kentucky. Article IV of the Project Agreement provides for binding arbitration of disputes and grievances, except that jurisdictional disputes are to be resolved by the Impartial Jurisdictional Disputes Board (IJDB), as provided in Article V. (IJDB is an organization created by agreement of the Building and Construction Trades Department, AFL-CIO and several Employer Associations.) At the pre-job meeting, assignment of work was discussed, and the structural steel work was assigned to the Boiler Makers-Iron Workers Agreement, a 1926 agreement between the two unions, allocating types of work to the jurisdiction of each. On September 21, 1983, B & W assigned the structural steel work to the Boiler Makers, and that work commenced in October, 1983.\nThe Iron Workers contend that the 1982 assignment was a specific assignment of the structural steel work to their union. They believed that the Boiler Makers-Iron Workers Agreement (BM-IW Agreement) gave them jurisdiction over this type of work. B & W contends that the 1982 assignment was only a statement that the assignment would be in accordance with the BM-IW Agreement, and the work was not specifically assigned until 1983 when it was assigned to the Boiler Makers, per B & W’s interpretation of the BM-IW Agreement.\nThe Iron Workers objected to the 1983 assignment to the Boiler Makers, arguing that it was a change from the 1982 assignment, in violation of the Rules of the IJDB. On September 30, 1983, the Iron Workers wrote to the chairman of the IJDB claiming that B & W had improperly changed work assignments and requesting that the Board order B & W to honor the 1982 assignment. On October 3, the Board wrote to B & W informing it that “[i]t is a violation of the Procedural Rules for a contractor who has made a specific assignment of work to change such assignment unless there is agreement between the trades involved or a directive from the Board.” The Board ordered B & W to honor the original assignment and respond to the Iron Workers’ allegations by supplying a complete description of the facts and circumstances surrounding the original assignment of work. B & W responded on October 7 arguing to the Board that the 1982 assignment was not a specific assignment and submitting the meeting minutes and the assignment pages from the Pre-Job Booklet. On October 24, the Iron Workers again wrote to the Board arguing that the original assignment was to the Iron Workers, and on that same date, filed this action in the District Court. On October 26, the Board responded,\nAssignments such as the one involved in this matter — Structural support steel, BM/IW agreement — are not specific and are subject to interpretation by the parties.\nUnless specific work was performed under the above assignment and has now been reassigned by the contractor, this office has no way of determining the merits of the dispute. Accordingly, the involved International Unions have a responsibility to interpret the applicable agreements between them and so inform the responsible contractor.\nIf on the other hand, relying on the assignment, certain work was assigned and performed by the iron workers and then reassigned without agreement by the trades involved, this office will act upon receipt of such specific information.\nAlthough the Board invited further information, the Iron Workers did not supply any. Thus the Board decided on the only complaint made to it that B & W’s announcement at the 1982 meeting was not a specific assignment. The Iron Workers did not ask the Board to decide that the 1983 assignment to the Boilermakers was in violation of the 1926 BM-IW agreement or any other decision or agreement and the IJDB evidently did not interpret the Iron Workers’ complaint as calling for a decision on that point.\nB & W moved the district court for summary judgment. The district court noted that the Iron Workers had not exhausted the available contractual remedies and withheld judgment on the motion pending a showing by the Iron Workers that pursuing those remedies would be futile. The Iron Workers submitted the affidavit of Joseph Hunt, general organizer of the union, who averred that he had attempted to have the IJDB respond further and was advised that the Board could not be involved in further activity in the dispute, which was pending in federal court. (R. at 20.) The district court decided that the Iron Workers had not fully pursued their remedies under the Project Agreement and dismissed the action “on its merits.” The Iron Workers now appeal.\nII. DISCUSSION\nWe review a decision to grant summary judgment de novo and will affirm only if there is no genuine issue of material fact and the moving party, B & W, is entitled to judgment as a matter of law. Ooley v. Schwitzer Div. Household Mfg., Inc., 961 F.2d 1293, 1297 (7th Cir.), cert. denied, - U.S. -, 113 S.Ct. 208, 121 L.Ed.2d 148 (1992). We view the facts in the light most favorable to the non-moving party, the Iron Workers. Id.\nArticle IV of the Project Agreement provides for a grievance and binding arbitration procedure for all disputes and grievances except jurisdictional. Article V is entitled Jurisdictional Disputes. It provides in relevant part:\nThe assignment of work will be solely the responsibility of the Contractor performing the work involved, and such work assignments will be according to decisions and agreements of record....\n1. All jurisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow-down of any nature, and the Contractor assignment shall be adhered to until the dispute is resolved as follows:\n(a) Jurisdictional disputes will be resolved by the Impartial Jurisdictional Disputes Board....\nIron Workers appear, from the arguments in their brief, to view the issue whether B & W’s 1982 action at the meeting was an assignment of the work to the Iron Workers as an issue of fact which would prevent summary judgment. In so arguing, they fail to deal with the proposition that IJDB had already decided that issue against them.\nAs to that narrow issue, the Iron Workers have failed to show any reason why a court could appropriately reexamine the issue.\nWhen the parties include an arbitration clause in their collective-bargaining agreement, they choose to have disputes concerning constructions of the contract resolved by an arbitrator. Unless the arbi-tral decision does not “dra[w] its essence from the collective bargaining agreement,” [Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960) ] a court is bound to enforce the award and is not entitled to review the merits of the contract dispute.\nW.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983). Confining ourselves, for the moment, to the narrow issue, the impropriety of a court reexamining the IJDB’s decision is reason enough to affirm the judgment.\nThere is a broader issue, though scarcely hinted at by the Iron Workers. It is whether the work in question was allocated by the 1926 agreement to the Iron Workers, so that B & W’s 1983 assignment of the work to the Boiler Makers was, itself, a breach of the Project Agreement. The Iron Workers did not present the broader issue to the IJDB. Assuming, as we do, that it would be a jurisdictional dispute, that is where it should go. If any facet of the issue is other than a jurisdictional dispute, then that would have to go to arbitration under Article IV. In any event, resort to the contractual remedy is required. Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960).\nAt one point, Judge Brooks gave the Iron Workers an opportunity to make a showing that it would be futile to proceed before the IJDB. The Iron Workers made no presentation at that point of either the narrow nor the broader issue to the Board. The vague assertion of being “advised” by the IJDB that it could not be involved in further correspondence or activity does not show the futility of a proper presentation of a further claim and the Iron Workers have not really argued that it did.\nThe Iron Workers suggest in their reply brief that Article V, unlike Article IV, is not a provision for arbitration within the meaning of the Steelworkers Trilogy. We conclude, however, that Articles IV and V are both provisions for arbitration, the difference being that in Article V the parties have named a particular arbitrator to determine a class of disputes which are excluded from Article IV.\nIII. CONCLUSION\nThe district- court judgment dismissed the action on the merits, and the Iron Workers argue that it should have been without prejudice. This argument suggests the union may wish to pursue its claim through the IJDB, and that dismissal on the merits may prejudice that.\nThe judgment is modified to provide that dismissal is without prejudice to pursuit of plaintiffs claims by invocation of contractual remedies, and as so modified, it is Affirmed. Defendant may recover its costs on appeal.\n[END_CASE]", "role": "user" } ]
10,512,741	Roberta WHITE, et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, et al., Defendants-Appellees	White v. General Motors Corp.	1993-08-04	No. 92-2505	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before FLAUM and KANNE, Circuit Judges, and ENGEL, Senior Circuit Judge."], "parties": ["Roberta WHITE, et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, et al., Defendants-Appellees."], "opinions": [{"text": "FLAUM, Circuit Judge.\nSeventy-one employees of General Motors Corporation (GM) brought suit under section 301 of the Labor Management Relations Act against GM and their union, the United Automobile Workers (UAW), alleging that they had been denied their full seniority rights. The employees were all hired at GM’s Allison Transmission Division.plants in Indianapolis, Indiana, between 1980 and 1981. Subsequently, they were all laid off during the first three months of 1985. Their seniority rights after layoff were governed by paragraph 64(e) of the 1982 GM-UAW National Agreement. Paragraph 64(e) provides:\nSeniority shall be broken for the following reasons: ... If the employee is laid off for a continuous period equal to the seniority he had acquired at the time of such layoff period or ... (36) months[,] whichever is longer; however, an employee whose seniority is so broken under this Agreement ... shall, for a period of sixty (60) months beginning with the employe[e]’s last scheduled work day prior to his layoff, retain a right to be rehired in accordance with the seniority date the employee had established at that plant as of such last day scheduled. An employee who is rehired, and who reacquires seniority at the same plant, ... within sixty (60) months following the last day worked prior to the layoff during which his seniority was broken by virtue of this Paragraph 64(e) shall have his new seniority date adjusted by adding an amount equal to the seniority he had acquired at that plant as of such last day worked.\nDuring their layoff from the Allison plants, many of the employees began working at other GM plants under the Area Hire Program. According to Appendix D-l of the National Agreement, some of those employees were entitled to adjusted seniority dates of January 7, 1985, when they were rehired at Allison. All of the employees were rehired between May and June of 1989.\nAccording to their complaint, all plaintiffs received adjusted seniority dates of January 7, 1985, or later. Before the district court, they contended that paragraph 64(e) entitled them to earlier dates. At first blush, the employees’ claim appears as if it might have merit. Consistent with the dates listed above, which were recited in both sides’ appellate briefs and in the district court’s opinion, an employee could have been hired on January 1, 1980 and laid off on March 31, 1985, thereby earning 5 years and 3 months of seniority. If he was rehired on May 1, 1989, then his layoff would have lasted only 4 years and 1 month. That employee would never have broken seniority because he would not have been “laid off for a continuous period equal to the seniority he had acquired at the time of such layoff period.” He would therefore be entitled to a seniority date of January 1, 1980 — a full seven years earlier than the date the plaintiffs were assigned.\nThe defendants, however, submitted to the district court as an undisputed fact the assertion that “[bjetween July 1988 and April 1989, plaintiffs all broke seniority due to the length of layoff under ¶ 64(e).” Defs.’ Prop. Findings of Undisp. Fact and Conclusions of Law at 4. The plaintiffs failed to submit a “Statement of Genuine Issues” to contest this claim. See S.D.Ind.L.R. 56.1. As a result, the district court, “searched in vain for a factual dispute” between the parties and eventually accepted the defendants’ proposed findings as true. White v. General Motors Corp., No. 91-C-548, slip op. at 10 n. 2, 1992 WL 521524 (S.D.Ind. May 29, 1992). If any of the plaintiffs truly deserved seniority dates before January 7, 1985, it would have been easy enough for them to prove so, as the example of the hypothetical employee above shows. But there are only two pieces of evidence in the record that even mention the hire and layoff dates of any individual plaintiff, and that evidence does not support the employees’ contention.\nFirst, according to lead plaintiff Roberta White’s personal “cardex” (the official summary of all employment actions involving her), she was hired on December 1,1980, laid off on January 7, 1985, and rehired on May 22, 1989. She thus accumulated 4 years and 1 month of seniority, and was laid off for 4 years and 4 months. Contrary to the employees’ position, she broke seniority. Because she was rehired within 60 months of her layoff, she was entitled to backdate her seniority by 4 years and 1 month from May 22, 1989, which produces a seniority date of April 16, 1985. She therefore suffered no harm. Second, Plaintiffs’ exhibit 1 is a letter from four employees to Owen Bieber, President of the UAW. In it, the four plaintiffs stated that they were hired between December 1, 1980 and March 15, 1981, laid off on January 7, 1985, and rehired on May 22, 1989. Since these dates are the same or later than Roberta White’s, these plaintiffs also deserve seniority dates of no earlier than April 16, 1985.\nWhen an employee’s underlying contractual claim lacks merit as a matter of law, the employee cannot complain that the union breached its duty of fair representation in faffing to process his or her grievance. Souter v. International Union, UAW, 993 F.2d 595, 598 (7th Cir.1993); Ooley v. Schwitzer Div., Household Mfg., 961 F.2d 1293, 1302-04 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 208, 121 L.Ed.2d 148 (1992). Nor can the employee’s suit against the employer succeed if the employee cannot demonstrate a breach by the union. See United Parcel Serv. v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1564, 67 L.Ed.2d 732 (1981); Solder, 993 F.2d at 599. In this case, the plaintiffs failed to present facts showing that there was any genuine issue about their entitlement to earlier seniority dates. Consequently, the defendants were entitled to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Wilson v. Williams, 997 F.2d 348, 350 (7th Cir.1993).\nOn appeal, the employees make three other arguments for their position. First, they claim that Roberta White and others should have been placed in GM’s Job Opportunity Bank Security (JOBS) Program. They claim that according to Appendix K of the 1984 GM-UAW National Agreement, laid-off employees do not lose seniority while they are enrolled in the JOBS program. The plaintiffs, however, did not raise this argument in the district court. Furthermore, Appendix K does not appear in the district court record. In fact, the excerpts from Appendix K reprinted in Appellants’ Brief are so incomplete that it is impossible to determine whether any of the employees were actually entitled to benefits under the JOBS program. Accordingly, this argument fails. Second, the employees cite Reed v. International Union, UAW, 945 F.2d 198 (7th Cir.1991), another case in which this court construed paragraph 64(e), for the proposition that each employee was entitled to be rehired without losing seniority. Reed said nothing of the sort. We held in Reed that employees who were laid off under the 1976 National Agreement but had not broken seniority as of the effective date of the 1979 National Agreement were still entitled to the 60-month rehire rights described in paragraph 64(e) of the 1982 National Agreement. That issue is completely irrelevant to this case. Third, the employees contend that the inconsistency between Appendix D-l, which provides a seniority date of January 7, 1985 for all employees temporarily hired at other plants, and paragraph 64(e), renders the entire contract ambiguous. But there is no inconsistency. Appendix D-l simply provides a minimum guarantee of seniority to one subset of laid-off employees who found jobs elsewhere; if those employees never broke seniority under paragraph 64(e), then they are entitled to the more generous seniority provisions specified there.\nThe UAW has requested sanctions against the employees for prosecuting a frivolous appeal. See Fed.R.App.P. 38. We have the power to impose sanctions when an appeal is frivolous, meaning that the “result is foreordained, by the lack of substance of appellant’s arguments.” City of East St. Louis v. Circuit Court for the Twentieth Judicial Circuit, 986 F.2d 1142, 1145 (7th Cir.1993) (quoting Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir.1989) (en banc)). The employees could have defeated the defendants’ motion for summary judgment by naming a single individual whose hire, layoff, and rehire dates entitled him or her to an earlier seniority date. That the employees have not done so in this court suggests that they know they are not entitled to relief. Nevertheless, it is possible that the employees believed in good faith, albeit too late, that they deserved to be enrolled in the JOBS program while laid-off. We therefore decline to impose sanctions.\nThe judgment is Affirmed. The request for sanctions is Denied.\n. The district court’s opinion misstated this figure as 4 years and 3 months.", "type": "majority", "author": "FLAUM, Circuit Judge."}], "attorneys": ["Thomas E. Hastings (argued), Brown & Hastings, Indianapolis, IN, for plaintiffs-appellants.", "Roderick D. Gillum, Drema M. Kopcak, General Motors Corp., Detroit, MI, Wendell R. Tucker, Baker & Daniels, Nora L. Macey (argued), Macey, Macey & Swanson, Indianapolis, IN, for defendants-appellees."], "corrections": "", "head_matter": "Roberta WHITE, et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, et al., Defendants-Appellees.\nNo. 92-2505.\nUnited States Court of Appeals, Seventh Circuit.\nArgued April 5, 1993.\nDecided Aug. 4, 1993.\nThomas E. Hastings (argued), Brown & Hastings, Indianapolis, IN, for plaintiffs-appellants.\nRoderick D. Gillum, Drema M. Kopcak, General Motors Corp., Detroit, MI, Wendell R. Tucker, Baker & Daniels, Nora L. Macey (argued), Macey, Macey & Swanson, Indianapolis, IN, for defendants-appellees.\nBefore FLAUM and KANNE, Circuit Judges, and ENGEL, Senior Circuit Judge.\nThe Honorable Albert J. Engel, Senior Circuit Judge of the Sixth Circuit Court of Appeals, sitting by designation."}	FLAUM	KANNE	ENGEL	1	1	1	0	0	0	1 F.3d 593	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Roberta WHITE, et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, et al., Defendants-Appellees\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-04\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nFLAUM, Circuit Judge.\nSeventy-one employees of General Motors Corporation (GM) brought suit under section 301 of the Labor Management Relations Act against GM and their union, the United Automobile Workers (UAW), alleging that they had been denied their full seniority rights. The employees were all hired at GM’s Allison Transmission Division.plants in Indianapolis, Indiana, between 1980 and 1981. Subsequently, they were all laid off during the first three months of 1985. Their seniority rights after layoff were governed by paragraph 64(e) of the 1982 GM-UAW National Agreement. Paragraph 64(e) provides:\nSeniority shall be broken for the following reasons: ... If the employee is laid off for a continuous period equal to the seniority he had acquired at the time of such layoff period or ... (36) months[,] whichever is longer; however, an employee whose seniority is so broken under this Agreement ... shall, for a period of sixty (60) months beginning with the employe[e]’s last scheduled work day prior to his layoff, retain a right to be rehired in accordance with the seniority date the employee had established at that plant as of such last day scheduled. An employee who is rehired, and who reacquires seniority at the same plant, ... within sixty (60) months following the last day worked prior to the layoff during which his seniority was broken by virtue of this Paragraph 64(e) shall have his new seniority date adjusted by adding an amount equal to the seniority he had acquired at that plant as of such last day worked.\nDuring their layoff from the Allison plants, many of the employees began working at other GM plants under the Area Hire Program. According to Appendix D-l of the National Agreement, some of those employees were entitled to adjusted seniority dates of January 7, 1985, when they were rehired at Allison. All of the employees were rehired between May and June of 1989.\nAccording to their complaint, all plaintiffs received adjusted seniority dates of January 7, 1985, or later. Before the district court, they contended that paragraph 64(e) entitled them to earlier dates. At first blush, the employees’ claim appears as if it might have merit. Consistent with the dates listed above, which were recited in both sides’ appellate briefs and in the district court’s opinion, an employee could have been hired on January 1, 1980 and laid off on March 31, 1985, thereby earning 5 years and 3 months of seniority. If he was rehired on May 1, 1989, then his layoff would have lasted only 4 years and 1 month. That employee would never have broken seniority because he would not have been “laid off for a continuous period equal to the seniority he had acquired at the time of such layoff period.” He would therefore be entitled to a seniority date of January 1, 1980 — a full seven years earlier than the date the plaintiffs were assigned.\nThe defendants, however, submitted to the district court as an undisputed fact the assertion that “[bjetween July 1988 and April 1989, plaintiffs all broke seniority due to the length of layoff under ¶ 64(e).” Defs.’ Prop. Findings of Undisp. Fact and Conclusions of Law at 4. The plaintiffs failed to submit a “Statement of Genuine Issues” to contest this claim. See S.D.Ind.L.R. 56.1. As a result, the district court, “searched in vain for a factual dispute” between the parties and eventually accepted the defendants’ proposed findings as true. White v. General Motors Corp., No. 91-C-548, slip op. at 10 n. 2, 1992 WL 521524 (S.D.Ind. May 29, 1992). If any of the plaintiffs truly deserved seniority dates before January 7, 1985, it would have been easy enough for them to prove so, as the example of the hypothetical employee above shows. But there are only two pieces of evidence in the record that even mention the hire and layoff dates of any individual plaintiff, and that evidence does not support the employees’ contention.\nFirst, according to lead plaintiff Roberta White’s personal “cardex” (the official summary of all employment actions involving her), she was hired on December 1,1980, laid off on January 7, 1985, and rehired on May 22, 1989. She thus accumulated 4 years and 1 month of seniority, and was laid off for 4 years and 4 months. Contrary to the employees’ position, she broke seniority. Because she was rehired within 60 months of her layoff, she was entitled to backdate her seniority by 4 years and 1 month from May 22, 1989, which produces a seniority date of April 16, 1985. She therefore suffered no harm. Second, Plaintiffs’ exhibit 1 is a letter from four employees to Owen Bieber, President of the UAW. In it, the four plaintiffs stated that they were hired between December 1, 1980 and March 15, 1981, laid off on January 7, 1985, and rehired on May 22, 1989. Since these dates are the same or later than Roberta White’s, these plaintiffs also deserve seniority dates of no earlier than April 16, 1985.\nWhen an employee’s underlying contractual claim lacks merit as a matter of law, the employee cannot complain that the union breached its duty of fair representation in faffing to process his or her grievance. Souter v. International Union, UAW, 993 F.2d 595, 598 (7th Cir.1993); Ooley v. Schwitzer Div., Household Mfg., 961 F.2d 1293, 1302-04 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 208, 121 L.Ed.2d 148 (1992). Nor can the employee’s suit against the employer succeed if the employee cannot demonstrate a breach by the union. See United Parcel Serv. v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1564, 67 L.Ed.2d 732 (1981); Solder, 993 F.2d at 599. In this case, the plaintiffs failed to present facts showing that there was any genuine issue about their entitlement to earlier seniority dates. Consequently, the defendants were entitled to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Wilson v. Williams, 997 F.2d 348, 350 (7th Cir.1993).\nOn appeal, the employees make three other arguments for their position. First, they claim that Roberta White and others should have been placed in GM’s Job Opportunity Bank Security (JOBS) Program. They claim that according to Appendix K of the 1984 GM-UAW National Agreement, laid-off employees do not lose seniority while they are enrolled in the JOBS program. The plaintiffs, however, did not raise this argument in the district court. Furthermore, Appendix K does not appear in the district court record. In fact, the excerpts from Appendix K reprinted in Appellants’ Brief are so incomplete that it is impossible to determine whether any of the employees were actually entitled to benefits under the JOBS program. Accordingly, this argument fails. Second, the employees cite Reed v. International Union, UAW, 945 F.2d 198 (7th Cir.1991), another case in which this court construed paragraph 64(e), for the proposition that each employee was entitled to be rehired without losing seniority. Reed said nothing of the sort. We held in Reed that employees who were laid off under the 1976 National Agreement but had not broken seniority as of the effective date of the 1979 National Agreement were still entitled to the 60-month rehire rights described in paragraph 64(e) of the 1982 National Agreement. That issue is completely irrelevant to this case. Third, the employees contend that the inconsistency between Appendix D-l, which provides a seniority date of January 7, 1985 for all employees temporarily hired at other plants, and paragraph 64(e), renders the entire contract ambiguous. But there is no inconsistency. Appendix D-l simply provides a minimum guarantee of seniority to one subset of laid-off employees who found jobs elsewhere; if those employees never broke seniority under paragraph 64(e), then they are entitled to the more generous seniority provisions specified there.\nThe UAW has requested sanctions against the employees for prosecuting a frivolous appeal. See Fed.R.App.P. 38. We have the power to impose sanctions when an appeal is frivolous, meaning that the “result is foreordained, by the lack of substance of appellant’s arguments.” City of East St. Louis v. Circuit Court for the Twentieth Judicial Circuit, 986 F.2d 1142, 1145 (7th Cir.1993) (quoting Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir.1989) (en banc)). The employees could have defeated the defendants’ motion for summary judgment by naming a single individual whose hire, layoff, and rehire dates entitled him or her to an earlier seniority date. That the employees have not done so in this court suggests that they know they are not entitled to relief. Nevertheless, it is possible that the employees believed in good faith, albeit too late, that they deserved to be enrolled in the JOBS program while laid-off. We therefore decline to impose sanctions.\nThe judgment is Affirmed. The request for sanctions is Denied.\n. The district court’s opinion misstated this figure as 4 years and 3 months.\n[END_CASE]", "role": "user" } ]
10,512,786	UNITED STATES of America, Plaintiff-Appellee, v. Grazino BAKER, Defendant-Appellant	United States v. Baker	1993-08-04	No. 92-3429	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Grazino BAKER, Defendant-Appellant."], "opinions": [{"text": "FLAUM, Circuit Judge.\nIn early September, 1990, Keith Davis and Benjamin “Buster” Awousa flew from New York to St. Louis to meet with Grazino Baker. Awousa wanted to evaluate the possibility of distributing cocaine through Baker in the St. Louis area. During this initial visit, Awousa obtained a CyberTel beeper for Baker. At Awousa’s behest, Davis returned to St. Louis a second time on September 29. He brought 10 to 14 ounces of cocaine along for Baker to distribute. Baker picked up Davis at the airport and drove him to the Drury Inn of Fairview Heights, Illinois, where Baker had reserved separate rooms on separate floors .for himself and Davis.\nBecause Baker had lined up customers in advance, he and Davis began to weigh and prepare ounce packets of cocaine in Davis’s room at the Drury Inn. Baker also took drug orders by beeper during this period. Once three or four orders had been prepared, Baker left to deliver the cocaine. After Baker left, Davis hid the remaining cocaine in the air conditioning unit in his room. According to Davis, he was expected to return $1200 per ounce of cocaine to Awousa in New York. The following morning, Baker turned over approximately $3900 to Davis.\nWhile the two men prepared to leave Davis’s room to get breakfast, Baker gave Davis a .38 caliber gun for protection. Baker himself was packing a 9 millimeter pistol. Having been tipped off, the police were staking out the Drury Inn. As the car carrying Baker and Davis left the motel and pulled onto the highway, the police signaled the car to stop. Baker, who was driving, took off, and a high-speed chase ensued. After Baker’s car suffered a blow out, Baker fled on foot while the police apprehended Davis. Although Baker escaped arrest at that time, the police did find his identification card, shirt and beeper about one block from the car. Subsequent to Davis’s arrest, the police searched the two rooms at the Drury Inn. They recovered $3900 in cash, 262.2 grams of cocaine in the air conditioner, and an additional 8.2 grams elsewhere in the room. At the time of this search, Baker’s companion Bernette Johnston was spotted leaving Baker’s room at the Drury Inn with a bag of his belongings. Among his possessions, the police recovered approximately $1000 that she had attempted to remove from Baker’s motel room.\nA jury found Baker guilty of conspiracy to possess with intent to distribute. Following the trial, Baker unsuccessfully moved for a new trial on the basis of newly discovered evidence. After being sentenced, he brought this appeal.\nIn his first argument, Baker maintains that at most the government proved a buyer-seller relationship, which falls short of showing a conspiracy to distribute. See United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir.1991). After wrestling with the question of what constitutes sufficient evidence of a conspiracy to distribute, this court has embraced a standard requiring “proof of an agreement to commit a crime other than the crime that consists of the sale itself,” United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.1993) (en banc) (plurality opinion). In other words, there must be facts in evidence in addition to a sale for resale from which proof of a conspiracy to distribute can be inferred. See generally United States v. Goines, 988 F.2d 750, 759 (7th Cir.1993) (evidence of cooperation and mutual benefit); United States v. Saunders, 973 F.2d 1354, 1360 (7th Cir.1992) (single consignment transaction is evidence of conspiracy), cert. denied, — U.S. -, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993); United States v. Blankenship, 970 F.2d 283, 286-89 (7th Cir.1992) (discussing “line of demarcation” between sale and conspiracy). A number of such facts are present here. As the circumstances surrounding this ease demonstrate, Baker contemplated more than a single buy-sell transaction with Davis (and his supplier Awousa). For example, after Baker received orders via his pager, Davis fronted the cocaine to Baker, who later returned with money from his customers. This sort of credit transaction is strong evidence of membership in a conspiracy. See Blankenship, 970 F.2d at 287. • Moreover, the fact that this deal happened to be their first does not undermine numerous. other indicia that further deals were contemplated by these men. Accordingly, viewing the abundant evidence in the light most favorable to the government reasonably leads to the inference that Baker had agreed to and prepared for ongoing cocaine distribution with Davis and Awousa.\nBaker also contends that the government failed to verify testimony of Davis regarding the actual registration of the pager. After the trial, defense counsel discovered that the pager Baker had been using at the Drury Inn was registered in the name of his father, not Awousa. Before sentencing, Baker moved unsuccessfully for a new trial on the basis of this newly discovered evidence. During its investigation, the government served a subpoena on CyberTel in order to obtain information regarding the pager police had seized. Because of conflicting identification and access numbers, CyberTel apparently never responded to the subpoena. Baker believes that the government was obliged to disclose the “failed” subpoena, apparently under the theory that anything the government comes upon in its investigation that is not inculpatory must be exculpatory. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Baker contends that the government knew or should have known that the ownership of the pager was in question when the subpoena went unanswered. Given this knowledge ostensibly imputed to the government, the argument would follow that allowing Davis to testify that Awousa had obtained a CyberTel beeper for Baker may have resulted in Baker’s being convicted on the basis of false testimony.\nUnder the circumstances, however, we cannot conclude that the government concealed exculpatory information; it merely did not seek to enforce an unanswered subpoena. Although the defendant would have us draw only negative inferences from this conduct, one perfectly plausible explanation is that the government elected not to pursue the Cyber-Tel registration records after it had Baker’s stipulation in hand that the pager belonged to him. Certainly, Brady does not require the government to conduct discovery on behalf of the defendant. See United States v. White, 970 F.2d 328, 337 (7th Cir.1992). In addition, characterizing this evidence as newly discovered belies one of the apparent strategies of Baker’s counsel. During closing argument, defense counsel asserted that the government could have presented evidence from CyberTel regarding ownership and usage of the pager. Closing Arg. at 16. Thus, Baker’s “discovery” of new evidence appears to be little more than an attempt to bootstrap a missed opportunity into a Brady claim.\nBaker has also raised a pair of challenges to his sentence. First, he argues that the district court sentenced him erroneously when it found that the conspiracy involved 300 to 400 grams of cocaine. Baker was sentenced on the basis of the 270 grams of cocaine seized in the room at the Drury Inn as well as the three to four ounces (approximately 84 to 114 grams) that Davis had given to Baker the night before. The sole question for our review is whether the amount applied by the district court was foreseeable. See United States v. Edwards, 945 F.2d 1387, 1392 (7th Cir.1991). In light of Baker’s anticipated role in distributing drugs in the area and his actual role in cutting, packaging, and selling the cocaine at the Drury Inn, the district court did not err in sentencing him for both the amount distributed and that recovered.\nFinally, Baker contends that the district judge did not make any finding in accordance with Fed.R.Crim.P. 32(c)(3)(D) on his request for a downward departure on the ground that this single crime represented aberrant behavior by the defendant. Baker points out that the district court expressly rejected his other arguments concerning “departures” for things such as acceptance of responsibility, reckless endangerment, and obstruction of justice. In fact, these considerations are more correctly characterized as adjustments rather than departures. And as far as Baker’s behavior being aberrant, the district court did explain: “I don’t think I stated before the sentence, the Court is not going to depart downward. There is absolutely no basis for doing that in this case. I have gone to the low end of the range because of the fact that this is the defendant’s first offense.” Sent.Tr. at 59. Since the district court did make a sufficient finding, we do not have jurisdiction to review its discretionary refusal to depart. United States v. Franz, 886 F.2d 973, 978 (7th Cir.1989).\nFor the foregoing reasons, the conviction of the defendant is Affirmed.\n. During the sentencing hearing, defense counsel contended that Baker should not be sentenced for the three to four ounces since Davis was sentenced for only 270 grams according to the terms of his plea agreement. On appeal, Baker is contesting instead the inclusion of the 270 grams in the sentencing calculation. Some of the confusion stems from an apparent error in the presentence report. Although the presen-tence report concluded that Baker was not rc-sponsible for the three to four ounces, both the defendant and the government agree that the probation officer made a mistake. According to the probation officer’s reasoning, he meant to state that Baker was not responsible for possession of the 270 grams. This mistake is of no consequence since both sides are now arguing the applicability of the 270 grams in the sentencing.", "type": "majority", "author": "FLAUM, Circuit Judge."}], "attorneys": ["Stephen B. Clark, Asst. U.S. Atty. (argued), Ranley R. Killian, Jr., Gerard B. Schneller, Crim. Div., Fairview Heights, IL, for plaintiff-appellee.", "Curtis L. Blood, Collinsville, IL (argued), for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Grazino BAKER, Defendant-Appellant.\nNo. 92-3429.\nUnited States Court of Appeals, Seventh Circuit.\nArgued June 4, 1993.\nDecided Aug. 4, 1993.\nStephen B. Clark, Asst. U.S. Atty. (argued), Ranley R. Killian, Jr., Gerard B. Schneller, Crim. Div., Fairview Heights, IL, for plaintiff-appellee.\nCurtis L. Blood, Collinsville, IL (argued), for defendant-appellant.\nBefore CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges."}	CUMMINGS	FLAUM	EASTERBROOK	1	1	1	0	0	0	1 F.3d 596	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Grazino BAKER, Defendant-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-04\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nFLAUM, Circuit Judge.\nIn early September, 1990, Keith Davis and Benjamin “Buster” Awousa flew from New York to St. Louis to meet with Grazino Baker. Awousa wanted to evaluate the possibility of distributing cocaine through Baker in the St. Louis area. During this initial visit, Awousa obtained a CyberTel beeper for Baker. At Awousa’s behest, Davis returned to St. Louis a second time on September 29. He brought 10 to 14 ounces of cocaine along for Baker to distribute. Baker picked up Davis at the airport and drove him to the Drury Inn of Fairview Heights, Illinois, where Baker had reserved separate rooms on separate floors .for himself and Davis.\nBecause Baker had lined up customers in advance, he and Davis began to weigh and prepare ounce packets of cocaine in Davis’s room at the Drury Inn. Baker also took drug orders by beeper during this period. Once three or four orders had been prepared, Baker left to deliver the cocaine. After Baker left, Davis hid the remaining cocaine in the air conditioning unit in his room. According to Davis, he was expected to return $1200 per ounce of cocaine to Awousa in New York. The following morning, Baker turned over approximately $3900 to Davis.\nWhile the two men prepared to leave Davis’s room to get breakfast, Baker gave Davis a .38 caliber gun for protection. Baker himself was packing a 9 millimeter pistol. Having been tipped off, the police were staking out the Drury Inn. As the car carrying Baker and Davis left the motel and pulled onto the highway, the police signaled the car to stop. Baker, who was driving, took off, and a high-speed chase ensued. After Baker’s car suffered a blow out, Baker fled on foot while the police apprehended Davis. Although Baker escaped arrest at that time, the police did find his identification card, shirt and beeper about one block from the car. Subsequent to Davis’s arrest, the police searched the two rooms at the Drury Inn. They recovered $3900 in cash, 262.2 grams of cocaine in the air conditioner, and an additional 8.2 grams elsewhere in the room. At the time of this search, Baker’s companion Bernette Johnston was spotted leaving Baker’s room at the Drury Inn with a bag of his belongings. Among his possessions, the police recovered approximately $1000 that she had attempted to remove from Baker’s motel room.\nA jury found Baker guilty of conspiracy to possess with intent to distribute. Following the trial, Baker unsuccessfully moved for a new trial on the basis of newly discovered evidence. After being sentenced, he brought this appeal.\nIn his first argument, Baker maintains that at most the government proved a buyer-seller relationship, which falls short of showing a conspiracy to distribute. See United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir.1991). After wrestling with the question of what constitutes sufficient evidence of a conspiracy to distribute, this court has embraced a standard requiring “proof of an agreement to commit a crime other than the crime that consists of the sale itself,” United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.1993) (en banc) (plurality opinion). In other words, there must be facts in evidence in addition to a sale for resale from which proof of a conspiracy to distribute can be inferred. See generally United States v. Goines, 988 F.2d 750, 759 (7th Cir.1993) (evidence of cooperation and mutual benefit); United States v. Saunders, 973 F.2d 1354, 1360 (7th Cir.1992) (single consignment transaction is evidence of conspiracy), cert. denied, — U.S. -, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993); United States v. Blankenship, 970 F.2d 283, 286-89 (7th Cir.1992) (discussing “line of demarcation” between sale and conspiracy). A number of such facts are present here. As the circumstances surrounding this ease demonstrate, Baker contemplated more than a single buy-sell transaction with Davis (and his supplier Awousa). For example, after Baker received orders via his pager, Davis fronted the cocaine to Baker, who later returned with money from his customers. This sort of credit transaction is strong evidence of membership in a conspiracy. See Blankenship, 970 F.2d at 287. • Moreover, the fact that this deal happened to be their first does not undermine numerous. other indicia that further deals were contemplated by these men. Accordingly, viewing the abundant evidence in the light most favorable to the government reasonably leads to the inference that Baker had agreed to and prepared for ongoing cocaine distribution with Davis and Awousa.\nBaker also contends that the government failed to verify testimony of Davis regarding the actual registration of the pager. After the trial, defense counsel discovered that the pager Baker had been using at the Drury Inn was registered in the name of his father, not Awousa. Before sentencing, Baker moved unsuccessfully for a new trial on the basis of this newly discovered evidence. During its investigation, the government served a subpoena on CyberTel in order to obtain information regarding the pager police had seized. Because of conflicting identification and access numbers, CyberTel apparently never responded to the subpoena. Baker believes that the government was obliged to disclose the “failed” subpoena, apparently under the theory that anything the government comes upon in its investigation that is not inculpatory must be exculpatory. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Baker contends that the government knew or should have known that the ownership of the pager was in question when the subpoena went unanswered. Given this knowledge ostensibly imputed to the government, the argument would follow that allowing Davis to testify that Awousa had obtained a CyberTel beeper for Baker may have resulted in Baker’s being convicted on the basis of false testimony.\nUnder the circumstances, however, we cannot conclude that the government concealed exculpatory information; it merely did not seek to enforce an unanswered subpoena. Although the defendant would have us draw only negative inferences from this conduct, one perfectly plausible explanation is that the government elected not to pursue the Cyber-Tel registration records after it had Baker’s stipulation in hand that the pager belonged to him. Certainly, Brady does not require the government to conduct discovery on behalf of the defendant. See United States v. White, 970 F.2d 328, 337 (7th Cir.1992). In addition, characterizing this evidence as newly discovered belies one of the apparent strategies of Baker’s counsel. During closing argument, defense counsel asserted that the government could have presented evidence from CyberTel regarding ownership and usage of the pager. Closing Arg. at 16. Thus, Baker’s “discovery” of new evidence appears to be little more than an attempt to bootstrap a missed opportunity into a Brady claim.\nBaker has also raised a pair of challenges to his sentence. First, he argues that the district court sentenced him erroneously when it found that the conspiracy involved 300 to 400 grams of cocaine. Baker was sentenced on the basis of the 270 grams of cocaine seized in the room at the Drury Inn as well as the three to four ounces (approximately 84 to 114 grams) that Davis had given to Baker the night before. The sole question for our review is whether the amount applied by the district court was foreseeable. See United States v. Edwards, 945 F.2d 1387, 1392 (7th Cir.1991). In light of Baker’s anticipated role in distributing drugs in the area and his actual role in cutting, packaging, and selling the cocaine at the Drury Inn, the district court did not err in sentencing him for both the amount distributed and that recovered.\nFinally, Baker contends that the district judge did not make any finding in accordance with Fed.R.Crim.P. 32(c)(3)(D) on his request for a downward departure on the ground that this single crime represented aberrant behavior by the defendant. Baker points out that the district court expressly rejected his other arguments concerning “departures” for things such as acceptance of responsibility, reckless endangerment, and obstruction of justice. In fact, these considerations are more correctly characterized as adjustments rather than departures. And as far as Baker’s behavior being aberrant, the district court did explain: “I don’t think I stated before the sentence, the Court is not going to depart downward. There is absolutely no basis for doing that in this case. I have gone to the low end of the range because of the fact that this is the defendant’s first offense.” Sent.Tr. at 59. Since the district court did make a sufficient finding, we do not have jurisdiction to review its discretionary refusal to depart. United States v. Franz, 886 F.2d 973, 978 (7th Cir.1989).\nFor the foregoing reasons, the conviction of the defendant is Affirmed.\n. During the sentencing hearing, defense counsel contended that Baker should not be sentenced for the three to four ounces since Davis was sentenced for only 270 grams according to the terms of his plea agreement. On appeal, Baker is contesting instead the inclusion of the 270 grams in the sentencing calculation. Some of the confusion stems from an apparent error in the presentence report. Although the presen-tence report concluded that Baker was not rc-sponsible for the three to four ounces, both the defendant and the government agree that the probation officer made a mistake. According to the probation officer’s reasoning, he meant to state that Baker was not responsible for possession of the 270 grams. This mistake is of no consequence since both sides are now arguing the applicability of the 270 grams in the sentencing.\n[END_CASE]", "role": "user" } ]
10,512,850	Ralph CONDO, Plaintiff-Appellant, v. SYSCO CORPORATION, Defendant-Appellee	Condo v. Sysco Corp.	1993-08-04	No. 92-3684	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before COFFEY, EASTERBROOK, and ROVNER, Circuit Judges."], "parties": ["Ralph CONDO, Plaintiff-Appellant, v. SYSCO CORPORATION, Defendant-Appellee."], "opinions": [{"text": "COFFEY, Circuit Judge.\nRalph Condo sued his employer, Sysco Corporation, claiming that Sysco’s practice of paying him a fixed salary for all hours worked and one-half of his hourly rate for each hour that he worked overtime violated § 7(a)(1) of the Fair Labor Standards Act (“FLSA” or “Act”), 29 U.S.C. § 207(a)(1) (1988), and its equivalent under Illinois law, 820 ILCS 105/4a(l) (1993). The district court entered summary judgment in favor of Sysco, and we affirm.\nI. BACKGROUND\nOn March 23, 1984, Condo entered into a written employment contract with Sysco Corporation. Under the terms of the contract, Condo’s duties were serving as chauffeur for Sysco’s chairman of the board and working in the company’s mail room. The job entailed significant overtime. In exchange for his services, Condo received a fixed salary of $400 per week for all hours worked plus overtime pay for all hours worked in excess of forty. The amount of overtime pay was calculated by dividing Condo’s fixed weekly salary of $400 by the total number of hours that he worked each week to yield an hourly rate of pay for the workweek. All hours that Condo worked in excess of forty were compensated at fifty percent of this hourly rate. For purposes of clarification, the employment contract included illustrations of how Condo’s overtime pay was to be calculated.\nCondo was paid for his services in accordance with the terms of this contract from March 23, 1984, until October 2, 1986. In March of 1991 Condo brought an action against Sysco, alleging that the system it had used to calculate his compensation violated § 7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1) (1988), and the parallel section of the Illinois Minimum Wage Law, 820 ILCS 105/4a(l) (1993). Section 7(a)(1) of the FLSA provides that an employee shall not be employed for more than forty hours in a given week unless the employee receives compensation for all hours in excess of forty “at a rate not less than one and one-half times the regular rate at which he is employed.” The language of the Illinois law is substantially the same. Condo argued that the system of payment for overtime in the contract violated the federal and state laws because under the system he was paid for his overtime hours not at a rate of one and one-half times his hourly rate of pay as is mandated by these laws, but rather at a rate of only one-half his hourly rate of pay. Each party moved for summary judgment, and the district court entered judgment in Sysco’s favor. The court found that the system of payment was consistent with § 7(a)(1) of the FLSA and its counterpart under Illinois law, and furthermore, that the system was explicitly authorized by 29 C.F.R. § 778.114 (1992), a regulation promulgated by the Department of Labor to help explain § 7(a), and by Illinois Administrative Code tit. 56, § 200.420(f) (1991), the corresponding state regulation. This appeal followed.\nII. DISCUSSION\nOn appeal, Condo contends that summary judgment in favor of Sysco was inappropriate because the district court incorrectly concluded that the system used by Sysco to compensate him for working overtime complied with § 7(a)(1) of the FLSA. We review issues decided on summary judgment de novo and resolve all reasonable inferences in favor of the nonmoving party. Kennedy v. United States, 965 F.2d 413, 417 (7th Cir.1992). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The parties agree that Condo was paid for working overtime in accordance with the employment contract and that the system of payment used by Sysco is the system enumerated in 29 C.F.R. § 778.114. The only points of contention are whether the district court correctly concluded that § 778.-114 applies to this ease and, if so, whether the regulation is lawful.\nA. Does section 778.114- apply to this case?\nSection 778.114 provides that a salaried employee whose hours of work fluctuate from week to week may reach a mutual understanding with his employer that he will receive a fixed amount as straight-time pay for whatever hours he is called upon to work in a workweek, whether few or many, and that he will be compensated for his overtime work at a rate of fifty percent of his regular hourly pay. 29 C.F.R. § 778.114(a). The regular hourly pay is calculated by dividing the employee’s regular, weekly pay by the total number of hours that he worked during the week. Id. The fixed amount must be sufficient to provide compensation at a regular rate of not less than the minimum hourly rate, 29 U.S.C. § 206(a)(1) (1988 & Supp. Ill 1991), and the overtime premium cannot be less than one-half the regular rate. 29 C.F.R. § 778.114(c).\nEach of the requirements of the regulation was satisfied in this case. Condo worked fluctuating hours (although Condo never worked fewer than forty hours each week, the amount of overtime that he worked varied) for a fixed salary. Condo and Sysco had a mutual understanding that Condo would be paid according to the system that is set forth in § 778.114 and the employment contract. Condo’s fixed salary of $400 per week was more than sufficient to provide compensation at a regular rate of not less than the minimum hourly rate. Finally, the overtime premium that Condo received was not less than one-half the regular hourly rate, for the contract states: “You will receive half Qk) of the weekly hourly rate on all hours worked in excess of 40 per week.”\nCondo argues that § 778.114 does not apply to this case because the regulation applies only to employment contracts that are authorized by § 7(f) of the FLSA, 29 U.S.C. § 207(f) (1988), and his contract was not of that type. Section 7(f) provides an exception to § 7(a)’s requirement that an employee who works more than forty hours in a week must receive compensation for working overtime at a rate of at least one and one-half times his regular hourly rate. Under § 7(f), if an employee’s hours of work are “irregular,” his employer can pay him a guaranteed salary of an amount that compensates overtime for up to sixty hours per week. The salary cannot fall below the statutory minimum hourly rate, and the employer must pay one and one-half times the employee’s weekly rate for hours in excess of the agreed-upon workweek. 29 U.S.C. § 207(f).\nThe parties (as well as the district court) agree that § 7(f) is irrelevant to this case because Condo’s duties did not necessitate “irregular hours of work” within the meaning of the provision. The regulations make it clear that an employee’s hours of work cannot be considered “irregular” for purposes of § 7(f) unless both his nonovertime hours and his overtime hours fluctuate. See 29 C.F.R. §§ 778.405, 776.405 (1992); see also Donovan v. Brown Equip. & Tools, Inc., 666 F.2d 148 (5th Cir.1982) (section 7(f) exception does not apply unless the employee’s hours fluctuate above and below forty hours per week); Foremost Dairies, Inc. v. Wirtz, 381 F.2d 653, 661 (5th Cir.1967) (same). Condo’s overtime hours fluctuated, but his regular hours did not: he always worked at least forty hours each week. As such, § 7(f) does not apply to Condo. Condo submits that because § 7(f) cannot apply, neither can § 787.114, because the regulation “does nothing more than demonstrate the necessary arithmetic to determine overtime pay under a § 7(f) contract, to explain the fact that the employee has already received his ‘straight time’ compensation for his overtime hours, and need only be paid the ‘half time’ to which he is additionally entitled.”\nWe disagree. Condo’s position was explicitly rejected by the Fifth Circuit in Yadav v. Coleman Oldsmobile, Inc., 538 F.2d 1206 (5th Cir.1976) (per curiam). There the court found that an employee who had worked a “fluctuating work week” within the meaning of § 787.114, but who had not worked “irregular hours” within the meaning of § 7(f), was entitled to back pay for 1500 overtime hours. Id. at 1208. The court stated that “[t]he application of the ‘fluctuating work week’ formula is not at all dependent upon a finding that the employer is entitled to the exception commonly referred to as the ‘Belo’ provision.” Id.\nThe Appellate Court of Illinois reached the same conclusion in Haynes v. Tru-Green Corp., 154 Ill.App.3d 967, 107 Ill.Dec. 792, 507 N.E.2d 945 (1987). Haynes, the employee, never worked fewer than forty hours per week, but worked up to forty hours of overtime per week. Tru-Green paid him by using the system that is described in § 778.114. Id., 107 Ill.Dec. at 793-94, 507 N.E.2d at 946-47. Haynes made substantially the same argument that Condo advances here: the “fluctuating-workweek” regulation should not be applied unless the “irregular hours” requirement of FLSA § 7(f) is satisfied. Id., 107 Ill.Dec. at 796, 507 N.E.2d at 949. The court rejected this argument and held that § 778.114 may be applied when an employer does not qualify for the § 7(f) exception. See also Triple “AAA” Co. v. Wirtz, 378 F.2d 884 (10th Cir.1967) (applying § 778.114 where § 7(f) did not apply because employees always worked at least forty hours per week). We find these decisions to be persuasive and reject Condo’s invitation to ignore the distinction between § 7(e) of the FLSA and § 787.411.\nIn sum, § 7(f) cannot apply unless an employee’s hours fluctuate both above and below forty hours per week. If § 7(f) does not apply, an employee must be compensated for working overtime in accordance with § 7(a). If § 7(a) applies and the employee’s hours fluctuate above but not below forty hours per week, an employer may choose to compensate the employee pursuant to the system that is set forth in § 778.114. The number of hours that Condo worked each week did not fluctuate below forty and, as such, was not “irregular” for purposes of § 7(f). Sysco therefore had to compensate Condo for working overtime in accordance with § 7(a). Because Condo worked varying amounts of overtime hours, the number of hours that he worked “fluctuated” for purposes of § 787.-114. Thus, as the district court concluded, § 787.114 applies in this case. We now address the second issue that Condo raises.\nB. Is section 778.114- a lawful regulation?\nAlthough § 778.114 applies in this case, Sysco cannot prevail unless the regulation complies with the FLSA. The Secretary of Labor administers the FLSA. 29 U.S.C. § 204 (1988). Section 778.114, the regulation at the crux of this appeal, is the Secretary’s interpretation of § 7(a)(1) of the Act. As we have seen, § 778.114 authorizes the system of compensation that was used by Sysco. Condo asserts, correctly, that a regulation cannot contravene the will of Congress as expressed in a statute. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981); SEC v. Sloan, 436 U.S. 103, 117-18, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148 (1978); FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965). We therefore must determine whether the Secretary’s regulation is a permissible interpretation of § 7(a)(1) of the FLSA.\nIn Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court established a three-step analysis for judicial review of an agency’s interpretation of a statute that it administers. The threshold inquiry is whether Congress clearly expressed its intent in the plain language of the statute. “If the intent of Congress is clear, that is the end of the matter; for the Court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2782. The first step in determining the intent of Congress is to examine the plain language of the statute. “The plain language of the statute should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1992) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)); see also Connecticut Nat’l Bank v. Germain, — U.S. -, -, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (When the words of a statute are unambiguous, “judicial inquiry is complete.”). In deciding whether the intent of Congress is clear, a court is to employ the traditional rules of statutory construction. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991).\nIf the language of the statute is determined to be either ambiguous or silent on the issue, however, the reviewing court is to proceed to a second inquiry: whether Congress delegated to the agency the authority to make the legal interpretation in issue. Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2782; see also Homemakers North Shore, Inc. v. Bowen, 832 F.2d 408, 411-12 (7th Cir.1987). If Congress intended no such delegation, the reviewing court must interpret the statute with little deference to the agency’s interpretation, for the judiciary is the final authority on issues of statutory construction. Chevron, 467 U.S. at 843 n. 9, 104 5.Ct. at 2782 n. 9. If, however, Congress intended to deputize the agency with the authority to interpret the statute, the reviewing court is to make a third inquiry: “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782. So long as the agency’s interpretation is reasonable, the court should defer to that interpretation and not impose its own construction on the statute. Id.\nThe language of the FLSA is our starting point. Section 7(a)(1) provides in relevant part that “no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1) (emphasis added). Congress has expressed unambiguously its intent that an employee receive 150% of his “regular rate” of pay for each hour that he works over forty during a given workweek. But Congress did not express its intent with respect to the precise issue in this ease, whether an employer can pay an employee whose hours of work fluctuate for working overtime using a different system of payment than he uses to pay an employee whose hours do not fluctuate. In fact, the Act does not even mention the notion of “fluctuating hours.” That is not surprising. It is impossible for Congress to consider every contingency that arises in the workplace. Indeed, as noted above, the “irregular hours” provision, 29 U.S.C. § 207(f), was not part of the FLSA until Congress enacted it in response to the Supreme Court’s decisions in Walling v. A.H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942) and Walling v. Halliburton Oil Well Cementing Co., 331 U.S. 17 (1947). Because Congress has not spoken to the precise issue in this case, we need to proceed further and determine whether Congress deputized the Secretary of Labor with the authority to interpret § 7(a)(1) of the FLSA.\nThis need not detain us long. In 29 U.S.C. § 204, Congress explicitly granted the Secretary of Labor the duty of administering the Act. See Skidmore v. Swift & Co., 323 U.S. 134, 137-38, 139-40, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944). “The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Motion v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974). By granting the Secretary of Labor the power to administer the FLSA, Congress implicitly granted him the power to interpret § 7(a)(1). See United States v. Storer Broadcasting Co., 351 U.S. 192, 203, 76 S.Ct. 763, 770, 100 L.Ed. 1081 (1956); Oceanair of Florida, Inc. v. United States Dep’t of Transp., 876 F.2d 1560, 1565 (11th Cir.1989). The Secretary could not, for example, fulfill his duty of evaluating and appraising the provision (see 29 U.S.C. § 204(d)(1)) without first reaching an informed conclusion as to the scope of its coverage. Nor could he enforce § 7(a)(1) without interpreting the meaning of “regular rate,” which Congress left undefined, or without determining whether systems of payment that Congress did not specifically áddress comply with the provision. The Secretary’s interpretations of the Act are, of course, subject to judicial review. See FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981). But the Secretary cannot be expected to abstain from enforcing § 7(a)(1) until a court has the opportunity to consider what systems of payment do and do not comply with § 7(a)(1).\nBecause we have concluded that Congress delegated to the Secretary of Labor the power to interpret § 7(a)(1) of the FLSA, we journey to the third inquiry of the Chevron analysis, whether the Secretary’s regulation, 29 C.F.R. § 778.114 (1992), is based on a permissible construction of § 7(a) of the FLSA. We hold that it is. The regulation provides that: 1) if the hours that an employee works fluctuate above forty hours per week, the employer can agree to pay the employee a fixed salary for all the hours that the employee works, and an additional one-half of the employee’s regular rate for each overtime hour that the employee works; and 2) the “regular rate” is computed by dividing the fixed salary by all the hours worked. As noted above, see supra footnote 6, the second point is not an issue in this case; it is the first point that Condo disputes. But it is clear that the regulation is entirely consistent with § 7(a)(1). The effect of § 7(a)(1) is to ensure that an employee who works over forty hours per week will receive 150% of his regular rate (which is his total remunerations — less the statutory exemptions in 29 U.S.C. § 207(e) — divided by the total number of hours that he worked during the week) for each hour of overtime. Under a system of payment like the one that is set forth in § .778.114 an employee who receives a fixed weekly salary for “all hours worked” receives the one and one-half times his regular rate for his overtime hours that is mandated by § 7(a)(1). The fixed salary compensates the employee for all his hours, the overtime ones included. He therefore receives 100% of his regular rate for each hour that he worked. As such, he is entitled only to an additional fifty percent of his regular rate for the hours that he worked in excess of forty. True, under the system that is enumerated in § 778.114 the greater number of hours an employee works, the lower his regular rate will be and the less he will receive per overtime hour. But, as the Supreme Court noted in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580, 62 S.Ct. 1216, 1221, 86 L.Ed. 1682 (1942), that does not cause the system to run afoul of the FLSA if, as in this case, the regular rate remains constant within each workweek and the employee receives one and one-half his regular rate for each overtime hour.\nIII. CONCLUSION\nThe district court properly concluded that the system used by Sysco to compensate Condo for his overtime hours complied with § 7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1). The district court’s grant of summary judgment in Sysco’s favor therefore is Affirmed.\n. For example, the chart illustrated how Condo's total salary for weeks during which he worked for fifty hours would be $440: For fifty-hour workweeks (as for all workweeks) Condo's base pay would be $400. Overtime pay would be one-half of the hourly rate (i.e., 'h of fifty hours divided into $400, or $4.00), multiplied by the ten hours of overtime worked, which results in a sum of $40.00. This overtime pay added to the base pay results in the total weekly salary of $440. For sixty-hour weeks, the chart explained that Condo’s total salary would be $400 + (J4 ($400/60 hours)) x 18 hours, or $466.60. The chart also provided examples for workweeks of fifty-eight hours, fifty-five hours, forty hours, and fifty-three hours.\n. On October 2, 1986, Sysco fixed Condo's hourly rate for regular time at $9.00 and his hourly rate for overtime at one and one-half of this figure, or $13.50.\n. The parties agree that § 7(a)(1) of the FLSA and § 4a(l) of the Illinois Minimum Wage Law are coextensive and, therefore, if the system used by Sysco to compensate Condo for working overtime complies with the FLSA, it also complies with Illinois law. The Illinois Administrative Code supports this proposition, see Ill.Admin.Code tit. 56, § 200.170 (1991), as does Illinois case law. See Haynes v. Tru-Green Corp., 154 Ill.App.3d 967, 977, 107 Ill.Dec. 792, 798, 507 N.E.2d 945, 951 (1987). Accordingly, we frame our analysis (as the parties have framed theirs) in terms of whether the system complies with the FLSA.\n. Condo argued in the district court that the manner in which his wages were calculated was never clear to him, but he has abandoned that argument on appeal. The district court concluded that Condo understood how he was to be compensated for working overtime. In reaching its conclusion, the court found undisputed facts indicating that Condo understood that his job required varying periods of overtime and that the more overtime he worked, the less he would be paid for it. The court found it significant that Condo had signed the written contract, and that the contract contained a chart illustrating precisely how Condo's overtime pay would vary in relation to the number of hours that he worked each week.\n. Section 7(f) is referred to as the \"Belo \" provision because Congress added the provision to the FLSA in 1949 in response to two decisions of the Supreme Court, Walling v. A.H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942), and Walling v. Halliburton Oil Well Cementing Co., 331 U.S. 17, 67 S.Ct. 1056, 91 L.Ed. 1312 (1947).\n. Although the \"regular rate” is at the heart of § 7(a)(1), the FLSA does not explain how it is computed. (Section 7(e) helps by telling us what remuneration is and is not included in the regular rate, but stops short of telling us how it is computed. See 29 U.S.C. § 207(e).) Nevertheless, how the regular rate is computed is not an issue in this case, for Condo concedes that the formula for computing the regular rate that is set forth in § 778.114 complies with § 7(a)(1) of the FLSA. In his complaint Condo alleged that, pursuant to his contract with Sysco, \"he was paid for working in excess of 40 hours per week at the rate of one-half his regular hourly rate instead of time-and-one-half.\" Thus the basis for his complaint was not that his regular rate of pay was incorrectly calculated but rather that he was not paid a high enough percentage of his regular rate for his overtime hours. Section 778.109 states that the regular rate under the FLSA is determined by \"dividing the employee’s total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek which such compensation was paid.” The examples in § 778.114(c), which illustrate the concept of a \"fixed salary for fluctuating hours,” use this same formula.\n. The fixed salary must, of course, be sufficiently large to ensure that no workweek will be worked in which the employee's average hourly earnings from the salary fall below the minimum hourly wage rate under the FLSA. 29 C.F.R. § 778.-114(c). That was not an issue in this case, for Condo never worked enough overtime hours to cause his regular hourly rate to fall below the minimum hourly wage rate, which, during the relevant time period was $3.35. 29 U.S.C. § 206(a)(1) (1988 & Supp. Ill 1991).", "type": "majority", "author": "COFFEY, Circuit Judge."}], "attorneys": ["Douglas W. Graham (argued), Chicago, IL, for plaintiff-appellant.", "Kathleen M. Paravola and Walter P. Loomis, Jr. (argued), Seyfarth, Shaw, Fair-weather & Geraldson, Chicago, IL, for defendant-appellee."], "corrections": "", "head_matter": "Ralph CONDO, Plaintiff-Appellant, v. SYSCO CORPORATION, Defendant-Appellee.\nNo. 92-3684.\nUnited States Court of Appeals, Seventh Circuit.\nArgued April 16, 1993.\nDecided Aug. 4, 1993.\nDouglas W. Graham (argued), Chicago, IL, for plaintiff-appellant.\nKathleen M. Paravola and Walter P. Loomis, Jr. (argued), Seyfarth, Shaw, Fair-weather & Geraldson, Chicago, IL, for defendant-appellee.\nBefore COFFEY, EASTERBROOK, and ROVNER, Circuit Judges."}	COFFEY	EASTERBROOK	ROVNER	1	1	1	0	0	0	1 F.3d 599	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ralph CONDO, Plaintiff-Appellant, v. SYSCO CORPORATION, Defendant-Appellee\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-04\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCOFFEY, Circuit Judge.\nRalph Condo sued his employer, Sysco Corporation, claiming that Sysco’s practice of paying him a fixed salary for all hours worked and one-half of his hourly rate for each hour that he worked overtime violated § 7(a)(1) of the Fair Labor Standards Act (“FLSA” or “Act”), 29 U.S.C. § 207(a)(1) (1988), and its equivalent under Illinois law, 820 ILCS 105/4a(l) (1993). The district court entered summary judgment in favor of Sysco, and we affirm.\nI. BACKGROUND\nOn March 23, 1984, Condo entered into a written employment contract with Sysco Corporation. Under the terms of the contract, Condo’s duties were serving as chauffeur for Sysco’s chairman of the board and working in the company’s mail room. The job entailed significant overtime. In exchange for his services, Condo received a fixed salary of $400 per week for all hours worked plus overtime pay for all hours worked in excess of forty. The amount of overtime pay was calculated by dividing Condo’s fixed weekly salary of $400 by the total number of hours that he worked each week to yield an hourly rate of pay for the workweek. All hours that Condo worked in excess of forty were compensated at fifty percent of this hourly rate. For purposes of clarification, the employment contract included illustrations of how Condo’s overtime pay was to be calculated.\nCondo was paid for his services in accordance with the terms of this contract from March 23, 1984, until October 2, 1986. In March of 1991 Condo brought an action against Sysco, alleging that the system it had used to calculate his compensation violated § 7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1) (1988), and the parallel section of the Illinois Minimum Wage Law, 820 ILCS 105/4a(l) (1993). Section 7(a)(1) of the FLSA provides that an employee shall not be employed for more than forty hours in a given week unless the employee receives compensation for all hours in excess of forty “at a rate not less than one and one-half times the regular rate at which he is employed.” The language of the Illinois law is substantially the same. Condo argued that the system of payment for overtime in the contract violated the federal and state laws because under the system he was paid for his overtime hours not at a rate of one and one-half times his hourly rate of pay as is mandated by these laws, but rather at a rate of only one-half his hourly rate of pay. Each party moved for summary judgment, and the district court entered judgment in Sysco’s favor. The court found that the system of payment was consistent with § 7(a)(1) of the FLSA and its counterpart under Illinois law, and furthermore, that the system was explicitly authorized by 29 C.F.R. § 778.114 (1992), a regulation promulgated by the Department of Labor to help explain § 7(a), and by Illinois Administrative Code tit. 56, § 200.420(f) (1991), the corresponding state regulation. This appeal followed.\nII. DISCUSSION\nOn appeal, Condo contends that summary judgment in favor of Sysco was inappropriate because the district court incorrectly concluded that the system used by Sysco to compensate him for working overtime complied with § 7(a)(1) of the FLSA. We review issues decided on summary judgment de novo and resolve all reasonable inferences in favor of the nonmoving party. Kennedy v. United States, 965 F.2d 413, 417 (7th Cir.1992). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The parties agree that Condo was paid for working overtime in accordance with the employment contract and that the system of payment used by Sysco is the system enumerated in 29 C.F.R. § 778.114. The only points of contention are whether the district court correctly concluded that § 778.-114 applies to this ease and, if so, whether the regulation is lawful.\nA. Does section 778.114- apply to this case?\nSection 778.114 provides that a salaried employee whose hours of work fluctuate from week to week may reach a mutual understanding with his employer that he will receive a fixed amount as straight-time pay for whatever hours he is called upon to work in a workweek, whether few or many, and that he will be compensated for his overtime work at a rate of fifty percent of his regular hourly pay. 29 C.F.R. § 778.114(a). The regular hourly pay is calculated by dividing the employee’s regular, weekly pay by the total number of hours that he worked during the week. Id. The fixed amount must be sufficient to provide compensation at a regular rate of not less than the minimum hourly rate, 29 U.S.C. § 206(a)(1) (1988 & Supp. Ill 1991), and the overtime premium cannot be less than one-half the regular rate. 29 C.F.R. § 778.114(c).\nEach of the requirements of the regulation was satisfied in this case. Condo worked fluctuating hours (although Condo never worked fewer than forty hours each week, the amount of overtime that he worked varied) for a fixed salary. Condo and Sysco had a mutual understanding that Condo would be paid according to the system that is set forth in § 778.114 and the employment contract. Condo’s fixed salary of $400 per week was more than sufficient to provide compensation at a regular rate of not less than the minimum hourly rate. Finally, the overtime premium that Condo received was not less than one-half the regular hourly rate, for the contract states: “You will receive half Qk) of the weekly hourly rate on all hours worked in excess of 40 per week.”\nCondo argues that § 778.114 does not apply to this case because the regulation applies only to employment contracts that are authorized by § 7(f) of the FLSA, 29 U.S.C. § 207(f) (1988), and his contract was not of that type. Section 7(f) provides an exception to § 7(a)’s requirement that an employee who works more than forty hours in a week must receive compensation for working overtime at a rate of at least one and one-half times his regular hourly rate. Under § 7(f), if an employee’s hours of work are “irregular,” his employer can pay him a guaranteed salary of an amount that compensates overtime for up to sixty hours per week. The salary cannot fall below the statutory minimum hourly rate, and the employer must pay one and one-half times the employee’s weekly rate for hours in excess of the agreed-upon workweek. 29 U.S.C. § 207(f).\nThe parties (as well as the district court) agree that § 7(f) is irrelevant to this case because Condo’s duties did not necessitate “irregular hours of work” within the meaning of the provision. The regulations make it clear that an employee’s hours of work cannot be considered “irregular” for purposes of § 7(f) unless both his nonovertime hours and his overtime hours fluctuate. See 29 C.F.R. §§ 778.405, 776.405 (1992); see also Donovan v. Brown Equip. & Tools, Inc., 666 F.2d 148 (5th Cir.1982) (section 7(f) exception does not apply unless the employee’s hours fluctuate above and below forty hours per week); Foremost Dairies, Inc. v. Wirtz, 381 F.2d 653, 661 (5th Cir.1967) (same). Condo’s overtime hours fluctuated, but his regular hours did not: he always worked at least forty hours each week. As such, § 7(f) does not apply to Condo. Condo submits that because § 7(f) cannot apply, neither can § 787.114, because the regulation “does nothing more than demonstrate the necessary arithmetic to determine overtime pay under a § 7(f) contract, to explain the fact that the employee has already received his ‘straight time’ compensation for his overtime hours, and need only be paid the ‘half time’ to which he is additionally entitled.”\nWe disagree. Condo’s position was explicitly rejected by the Fifth Circuit in Yadav v. Coleman Oldsmobile, Inc., 538 F.2d 1206 (5th Cir.1976) (per curiam). There the court found that an employee who had worked a “fluctuating work week” within the meaning of § 787.114, but who had not worked “irregular hours” within the meaning of § 7(f), was entitled to back pay for 1500 overtime hours. Id. at 1208. The court stated that “[t]he application of the ‘fluctuating work week’ formula is not at all dependent upon a finding that the employer is entitled to the exception commonly referred to as the ‘Belo’ provision.” Id.\nThe Appellate Court of Illinois reached the same conclusion in Haynes v. Tru-Green Corp., 154 Ill.App.3d 967, 107 Ill.Dec. 792, 507 N.E.2d 945 (1987). Haynes, the employee, never worked fewer than forty hours per week, but worked up to forty hours of overtime per week. Tru-Green paid him by using the system that is described in § 778.114. Id., 107 Ill.Dec. at 793-94, 507 N.E.2d at 946-47. Haynes made substantially the same argument that Condo advances here: the “fluctuating-workweek” regulation should not be applied unless the “irregular hours” requirement of FLSA § 7(f) is satisfied. Id., 107 Ill.Dec. at 796, 507 N.E.2d at 949. The court rejected this argument and held that § 778.114 may be applied when an employer does not qualify for the § 7(f) exception. See also Triple “AAA” Co. v. Wirtz, 378 F.2d 884 (10th Cir.1967) (applying § 778.114 where § 7(f) did not apply because employees always worked at least forty hours per week). We find these decisions to be persuasive and reject Condo’s invitation to ignore the distinction between § 7(e) of the FLSA and § 787.411.\nIn sum, § 7(f) cannot apply unless an employee’s hours fluctuate both above and below forty hours per week. If § 7(f) does not apply, an employee must be compensated for working overtime in accordance with § 7(a). If § 7(a) applies and the employee’s hours fluctuate above but not below forty hours per week, an employer may choose to compensate the employee pursuant to the system that is set forth in § 778.114. The number of hours that Condo worked each week did not fluctuate below forty and, as such, was not “irregular” for purposes of § 7(f). Sysco therefore had to compensate Condo for working overtime in accordance with § 7(a). Because Condo worked varying amounts of overtime hours, the number of hours that he worked “fluctuated” for purposes of § 787.-114. Thus, as the district court concluded, § 787.114 applies in this case. We now address the second issue that Condo raises.\nB. Is section 778.114- a lawful regulation?\nAlthough § 778.114 applies in this case, Sysco cannot prevail unless the regulation complies with the FLSA. The Secretary of Labor administers the FLSA. 29 U.S.C. § 204 (1988). Section 778.114, the regulation at the crux of this appeal, is the Secretary’s interpretation of § 7(a)(1) of the Act. As we have seen, § 778.114 authorizes the system of compensation that was used by Sysco. Condo asserts, correctly, that a regulation cannot contravene the will of Congress as expressed in a statute. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981); SEC v. Sloan, 436 U.S. 103, 117-18, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148 (1978); FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965). We therefore must determine whether the Secretary’s regulation is a permissible interpretation of § 7(a)(1) of the FLSA.\nIn Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court established a three-step analysis for judicial review of an agency’s interpretation of a statute that it administers. The threshold inquiry is whether Congress clearly expressed its intent in the plain language of the statute. “If the intent of Congress is clear, that is the end of the matter; for the Court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2782. The first step in determining the intent of Congress is to examine the plain language of the statute. “The plain language of the statute should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1992) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)); see also Connecticut Nat’l Bank v. Germain, — U.S. -, -, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (When the words of a statute are unambiguous, “judicial inquiry is complete.”). In deciding whether the intent of Congress is clear, a court is to employ the traditional rules of statutory construction. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991).\nIf the language of the statute is determined to be either ambiguous or silent on the issue, however, the reviewing court is to proceed to a second inquiry: whether Congress delegated to the agency the authority to make the legal interpretation in issue. Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2782; see also Homemakers North Shore, Inc. v. Bowen, 832 F.2d 408, 411-12 (7th Cir.1987). If Congress intended no such delegation, the reviewing court must interpret the statute with little deference to the agency’s interpretation, for the judiciary is the final authority on issues of statutory construction. Chevron, 467 U.S. at 843 n. 9, 104 5.Ct. at 2782 n. 9. If, however, Congress intended to deputize the agency with the authority to interpret the statute, the reviewing court is to make a third inquiry: “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782. So long as the agency’s interpretation is reasonable, the court should defer to that interpretation and not impose its own construction on the statute. Id.\nThe language of the FLSA is our starting point. Section 7(a)(1) provides in relevant part that “no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1) (emphasis added). Congress has expressed unambiguously its intent that an employee receive 150% of his “regular rate” of pay for each hour that he works over forty during a given workweek. But Congress did not express its intent with respect to the precise issue in this ease, whether an employer can pay an employee whose hours of work fluctuate for working overtime using a different system of payment than he uses to pay an employee whose hours do not fluctuate. In fact, the Act does not even mention the notion of “fluctuating hours.” That is not surprising. It is impossible for Congress to consider every contingency that arises in the workplace. Indeed, as noted above, the “irregular hours” provision, 29 U.S.C. § 207(f), was not part of the FLSA until Congress enacted it in response to the Supreme Court’s decisions in Walling v. A.H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942) and Walling v. Halliburton Oil Well Cementing Co., 331 U.S. 17 (1947). Because Congress has not spoken to the precise issue in this case, we need to proceed further and determine whether Congress deputized the Secretary of Labor with the authority to interpret § 7(a)(1) of the FLSA.\nThis need not detain us long. In 29 U.S.C. § 204, Congress explicitly granted the Secretary of Labor the duty of administering the Act. See Skidmore v. Swift & Co., 323 U.S. 134, 137-38, 139-40, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944). “The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Motion v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974). By granting the Secretary of Labor the power to administer the FLSA, Congress implicitly granted him the power to interpret § 7(a)(1). See United States v. Storer Broadcasting Co., 351 U.S. 192, 203, 76 S.Ct. 763, 770, 100 L.Ed. 1081 (1956); Oceanair of Florida, Inc. v. United States Dep’t of Transp., 876 F.2d 1560, 1565 (11th Cir.1989). The Secretary could not, for example, fulfill his duty of evaluating and appraising the provision (see 29 U.S.C. § 204(d)(1)) without first reaching an informed conclusion as to the scope of its coverage. Nor could he enforce § 7(a)(1) without interpreting the meaning of “regular rate,” which Congress left undefined, or without determining whether systems of payment that Congress did not specifically áddress comply with the provision. The Secretary’s interpretations of the Act are, of course, subject to judicial review. See FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981). But the Secretary cannot be expected to abstain from enforcing § 7(a)(1) until a court has the opportunity to consider what systems of payment do and do not comply with § 7(a)(1).\nBecause we have concluded that Congress delegated to the Secretary of Labor the power to interpret § 7(a)(1) of the FLSA, we journey to the third inquiry of the Chevron analysis, whether the Secretary’s regulation, 29 C.F.R. § 778.114 (1992), is based on a permissible construction of § 7(a) of the FLSA. We hold that it is. The regulation provides that: 1) if the hours that an employee works fluctuate above forty hours per week, the employer can agree to pay the employee a fixed salary for all the hours that the employee works, and an additional one-half of the employee’s regular rate for each overtime hour that the employee works; and 2) the “regular rate” is computed by dividing the fixed salary by all the hours worked. As noted above, see supra footnote 6, the second point is not an issue in this case; it is the first point that Condo disputes. But it is clear that the regulation is entirely consistent with § 7(a)(1). The effect of § 7(a)(1) is to ensure that an employee who works over forty hours per week will receive 150% of his regular rate (which is his total remunerations — less the statutory exemptions in 29 U.S.C. § 207(e) — divided by the total number of hours that he worked during the week) for each hour of overtime. Under a system of payment like the one that is set forth in § .778.114 an employee who receives a fixed weekly salary for “all hours worked” receives the one and one-half times his regular rate for his overtime hours that is mandated by § 7(a)(1). The fixed salary compensates the employee for all his hours, the overtime ones included. He therefore receives 100% of his regular rate for each hour that he worked. As such, he is entitled only to an additional fifty percent of his regular rate for the hours that he worked in excess of forty. True, under the system that is enumerated in § 778.114 the greater number of hours an employee works, the lower his regular rate will be and the less he will receive per overtime hour. But, as the Supreme Court noted in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580, 62 S.Ct. 1216, 1221, 86 L.Ed. 1682 (1942), that does not cause the system to run afoul of the FLSA if, as in this case, the regular rate remains constant within each workweek and the employee receives one and one-half his regular rate for each overtime hour.\nIII. CONCLUSION\nThe district court properly concluded that the system used by Sysco to compensate Condo for his overtime hours complied with § 7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1). The district court’s grant of summary judgment in Sysco’s favor therefore is Affirmed.\n. For example, the chart illustrated how Condo's total salary for weeks during which he worked for fifty hours would be $440: For fifty-hour workweeks (as for all workweeks) Condo's base pay would be $400. Overtime pay would be one-half of the hourly rate (i.e., 'h of fifty hours divided into $400, or $4.00), multiplied by the ten hours of overtime worked, which results in a sum of $40.00. This overtime pay added to the base pay results in the total weekly salary of $440. For sixty-hour weeks, the chart explained that Condo’s total salary would be $400 + (J4 ($400/60 hours)) x 18 hours, or $466.60. The chart also provided examples for workweeks of fifty-eight hours, fifty-five hours, forty hours, and fifty-three hours.\n. On October 2, 1986, Sysco fixed Condo's hourly rate for regular time at $9.00 and his hourly rate for overtime at one and one-half of this figure, or $13.50.\n. The parties agree that § 7(a)(1) of the FLSA and § 4a(l) of the Illinois Minimum Wage Law are coextensive and, therefore, if the system used by Sysco to compensate Condo for working overtime complies with the FLSA, it also complies with Illinois law. The Illinois Administrative Code supports this proposition, see Ill.Admin.Code tit. 56, § 200.170 (1991), as does Illinois case law. See Haynes v. Tru-Green Corp., 154 Ill.App.3d 967, 977, 107 Ill.Dec. 792, 798, 507 N.E.2d 945, 951 (1987). Accordingly, we frame our analysis (as the parties have framed theirs) in terms of whether the system complies with the FLSA.\n. Condo argued in the district court that the manner in which his wages were calculated was never clear to him, but he has abandoned that argument on appeal. The district court concluded that Condo understood how he was to be compensated for working overtime. In reaching its conclusion, the court found undisputed facts indicating that Condo understood that his job required varying periods of overtime and that the more overtime he worked, the less he would be paid for it. The court found it significant that Condo had signed the written contract, and that the contract contained a chart illustrating precisely how Condo's overtime pay would vary in relation to the number of hours that he worked each week.\n. Section 7(f) is referred to as the \"Belo \" provision because Congress added the provision to the FLSA in 1949 in response to two decisions of the Supreme Court, Walling v. A.H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942), and Walling v. Halliburton Oil Well Cementing Co., 331 U.S. 17, 67 S.Ct. 1056, 91 L.Ed. 1312 (1947).\n. Although the \"regular rate” is at the heart of § 7(a)(1), the FLSA does not explain how it is computed. (Section 7(e) helps by telling us what remuneration is and is not included in the regular rate, but stops short of telling us how it is computed. See 29 U.S.C. § 207(e).) Nevertheless, how the regular rate is computed is not an issue in this case, for Condo concedes that the formula for computing the regular rate that is set forth in § 778.114 complies with § 7(a)(1) of the FLSA. In his complaint Condo alleged that, pursuant to his contract with Sysco, \"he was paid for working in excess of 40 hours per week at the rate of one-half his regular hourly rate instead of time-and-one-half.\" Thus the basis for his complaint was not that his regular rate of pay was incorrectly calculated but rather that he was not paid a high enough percentage of his regular rate for his overtime hours. Section 778.109 states that the regular rate under the FLSA is determined by \"dividing the employee’s total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek which such compensation was paid.” The examples in § 778.114(c), which illustrate the concept of a \"fixed salary for fluctuating hours,” use this same formula.\n. The fixed salary must, of course, be sufficiently large to ensure that no workweek will be worked in which the employee's average hourly earnings from the salary fall below the minimum hourly wage rate under the FLSA. 29 C.F.R. § 778.-114(c). That was not an issue in this case, for Condo never worked enough overtime hours to cause his regular hourly rate to fall below the minimum hourly wage rate, which, during the relevant time period was $3.35. 29 U.S.C. § 206(a)(1) (1988 & Supp. Ill 1991).\n[END_CASE]", "role": "user" } ]
10,512,899	UNITED STATES of America, Plaintiff-Appellee, v. Daniel M. DAVIS, Defendant-Appellant	United States v. Davis	1993-08-05	Nos. 92-2822, 92-3153	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before CUDAHY and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Daniel M. DAVIS, Defendant-Appellant."], "opinions": [{"text": "CUDAHY, Circuit Judge.\nA grand jury returned an indictment against Daniel Davis charging him with obstruction of justice in violation of 18 U.S.C. § 1503. Specifically, the indictment alleges that Davis concealed a document during the course of a grand jury investigation. After the grand jury returned the indictment, the government sought and obtained leave from the district court to subpoena, for questioning at trial, Matthias Lydon, an attorney who had represented Davis during the portion of the grand jury’s investigation that he allegedly obstructed. After the subpoena was served, Davis filed a motion in limine to bar the proposed questioning on the theory that the testimony the government intended to elicit called for the divulgence of privileged information. The district court denied Davis’s motion, and he appeals.\nThe case against Davis is still pending in the district court. These appeals are interlocutory and, therefore, present significant questions as to our jurisdiction. The jurisdiction of the courts of appeals in criminal cases is, for the most part, limited to “final decisions of the district courts of the United States.” 28 U.S.C. § 1291. The requirement of finality reflects a strong policy against piecemeal review, a policy particularly important in the context of criminal actions where the delays and disruptions of interlocutory appeals are especially troublesome. In fact, it is well settled that, as a general rule, a defendant in a criminal case may not take an appeal from an order denying a motion to suppress evidence. See, e.g., DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962); United States v. Dorfman, 690 F.2d 1217, 1222 (7th Cir.1982). Ordinarily, when the validity of a subpoena is at issue, such as here, the final, appealable decision is an order holding the witness whose appearance is compelled in contempt. United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971).\nThe parties, however, rely on the judicially created exception to the finality rule first articulated in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), which permits the holder of a privilege to intervene in order to assert the privilege and to appeal from the rejection of the assertion. The Court reasoned that because the person called to testify may do so rather than be cited for contempt, the rejection of the claim of privilege is final as a practical matter and thus appealable. On the authority of Perl-man, we have repeatedly held, albeit with some soul-searching, that clients are entitled to appeal as soon as their attorneys are required, in the face of an assertion of attorney-client privilege, to testify or produce documents. See, e.g., In the Matter of Klein, 776 F.2d 628 (7th Cir.1985); In re November 1979 Grand Jury, 616 F.2d 1021, 1024-25 (7th Cir.1980); Velsicol Chem. Corp. v. Parsons, 561 F.2d 671, 674 (7th Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978).\nThe parties have apparently failed to apprehend, however, that Perlman, Klein and Velsicol, the cases cited to us in their jurisdictional statements, all involved pending grand jury proceedings. Because an indictment has already been returned against Davis, the jurisdictional inquiry that we must undertake here is considerably different. In fact, DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) and Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929) could be read to deny us jurisdiction here, because in those cases the Court refused to apply the Perlman exception when the intervening party seeking suppression was a defendant in the underlying criminal case. But neither DiBella nor Co-gen involved assertions of privilege. On the other hand, United States v. Calandra, 706 F.2d 225 (7th Cir.1983), our case most similar to the present one, did. Calandra was an appeal from a district court’s order denying three criminal defendants’ motion to suppress. The motion was based on the defendants’ assertion that an attorney-client privilege existed that would bar the testimony of lawyers whom the government intended to call at trial. The appeal was taken while the trial was still in progress. We stated that “[i]t is the possibility of disclosure of information which is thought to be confidential that is central to the Perlman exception,” and reasoned that, since the allegedly confidential information had already been disclosed to government agents, there was no need for immediate appellate review. Id. at 228. We thus dismissed the appeal for want of jurisdiction. The record here discloses no substantial breach of the claimed privilege that has already occurred. For this reason alone, we take jurisdiction over these appeals.\nSince we will reach the merits, we must more fully set forth the relevant facts. Davis allegedly obstructed a grand jury that was investigating official corruption in the administration of former Cook County Sheriff James O’Grady. Before taking office, O’Grady, along with his undersheriff, James Dvorak, served as an officer of Special Operations Associates, Inc. (SOA), a Chicago security firm. Upon taking office in 1986, O’Grady and Dvorak resigned as officers of SOA but continued to be shareholders in the company. Michael Caecitolo and the appellant, Davis, also owned shares of SOA and served as its corporate officers after O’Grady and Dvorak left for the sheriffs office.\nDuring O’Grady’s tenure as sheriff, the Cook County Board of Commissioners, upon the recommendation of O’Grady and Dvorak, awarded Home Incarceration Systems of Northern Illinois, Inc. (HISNI), whose sole shareholder was Audrey Tokarz, a contract to provide and service equipment used as part of the County’s home incarceration program. In late 1989, some people, including apparently some in the United States Attorney’s office, suspected that HISNI was actually a front for SOA and that O’Grady and Dvorak had impermissibly used their influence to steer the home incarceration contract to HISNI. A grand jury was convened to investigate, and, on January 3, 1990, Davis was served, as president of SOA, with a subpoena demanding the following:\nFor the period from January 1986 to the present, any and all ORIGINAL records and ORIGINAL received correspondence, and copies of any and all outgoing correspondence, involving business and/or financial transactions between Special Operations Associates and any of the following persons or entities: Audrey Tokarz; Home Incarceration Systems....\nGovernment’s App. at 5. Shortly after the subpoena was served, Lydon informed the government that he would be representing Davis during the grand jury’s investigation.\nOn January 8, 1990, Lydon met with an assistant United States attorney and an agent of the Federal Bureau of Investigation. He presented a completely innocent explanation of the relationship between SOA and HISNI. He further disclosed that Davis had made a series of personal loans to Tokarz to “start-up” HISNI. The assistant United States attorney responded that the grand jury was interested in Davis’s relevant personal records as well as the corporate records of SOA. He indicated that he would serve a “personal records” subpoena on Davis to supplement the first, corporate-records subpoena. This subpoena was issued on January 9, 1989 and commanded Davis to produce “[a]ny and all ORIGINAL documents, checks and other records of any kind relating to financial, loan, and/or business transactions between Daniel Davis and any of the following persons or entities: Audrey Tokarz; Home Incarceration Systems of Northern Illinois_” Government’s App. at 8.\nCaecitolo instructed Betty Ann Wasson, SOA’s office manager, to compile the documents demanded by the January 3 subpoena of SOA’s corporate records. On January 12, 1990, Lydon transmitted to the government the assembled documents under a cover letter stating that they were “all original documents which respond to the subpoena ... dated December 28, 1989.” Government’s App. at 10. On January 16 and February 1, Lydon sent to the government documents demanded by the January 9 personal records subpoena. On May 30,1990, the government learned of the existence of an unexecuted agreement pursuant to which Tokarz- would have been required to sell, upon demand, all of her HISNI shares to Davis and Gaccitolo at a pre-arranged, bargain price. The next day, Davis delivered to Lydon for the first time an unsigned copy of this proposed agreement. Lydon informed the government of this document’s existence on July 13,1990, more than five months after Davis ostensibly complied with both subpoenas.\nDavis himself then became the target of a grand jury probe. Lydon was subpoenaed to testify before the grand jury. In response to certain questions put to him about his dealings and conversations with Davis regarding Davis’s compliance with the subpoenas, Ly-don asserted the attorney-client privilege. Davis was nevertheless indicted. The government thereafter informed Lydon of its intention to call him as a witness at Davis’s trial. The government also informed Lydon of its position that Davis had waived his attorney-client privilege as to communications with Lydon under the so-called “crime/ fraud exception.” This prompted Davis to file a motion in limine, the denial of which is the subject of these appeals, seeking to bar. the government’s proposed questioning of Lydon.\nThe theory of the government’s case against Davis is best stated in the indictment returned against him: “Davis ... corruptly endeavored to influence, obstruct and impede the due administration of justice, in that [Davis] concealed and intentionally failed to produce ... in response to the grand juries’ subpoenas, a document in the form of an agreement or proposed agreement [between Davis and Tokarz].” Government’s App. at 211. The government’s theory that certain of Davis’s communications with Lydon fall outside the attorney-client privilege rests on the assertion that Davis used Lydon as his agent in perpetrating-this obstruction. The district court concluded that the government had established a “prima facie” case that Davis had “trick[ed] [Lydon] into providing false information to a. grand jury during an investigation” and that their conversations in the course of this conduct are “not protected by the attorney-client-privilege.” United States v. Davis, No. 91 CR 637, slip op. at 15 (N.D.Ill. July 1, 1992) (hereinafter Mem.Op & Ord.). We agree and thus affirm.\nOur decision in this regard is governed by Matter of Feldberg, 862 F.2d 622 (7th Cir. 1985). In that case, an attorney called before a grand jury invoked his client’s attorney-client privilege in response to certain questions. The government contended that the privilege had been waived under the crime/fraud exception, charging that in the course of the legal representation the client had used the attorney to obstruct the grand jury’s investigation. Id. at 624. We stated that to drive away the privilege under the fraud/crime exception “there must be ‘something to give colour to the charge;’ there must be ‘prima facie evidence that it has some foundation in fact.’ When that evidence is supplied, the seal of secrecy is broken.” Id. at 625 (quoting Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933)). We also noted that “pri-ma facie evidence” did not mean “enough to support a verdict in favor of the person making the claim.” Id. Instead, we held that a party has established a prima facie case whenever it presents evidence sufficient “to require the adverse party, the one with superior access to the evidence and in the best position to explain things, to come forward with that explanation.” Id. at 626. We also stated that if the district court finds such an explanation satisfactory “the privilege remains” and that the district court’s decisions regarding these matters may be disturbed only for an abuse of discretion. Id.\nThe linchpin of the district court’s conclusion that Davis has waived the attorney-client privilege under the crime/fraud exception is its finding that\nthe plain language of the [January 3] subpoena indicates that the unexecuted agreement could have fallen within its scope and lends support to the government’s charge that the defendant knew that the document was pertinent to the investigation of HISNI and SOA’s relationship. Therefore, the existence of the subpoena lends support to the government’s charge that the defendant used his attorney-client relationship to conceal this document from the government.\nMem.Op. & Ord. at 10. Davis concedes that these circumstances require an explanation. Along this line, Davis contends that the district court erred because the proposed agreement was not subject to the January 3 subpoena and that if anyone concealed the document it was Caccitolo not he. Davis might be right. To secure a conviction on the crime charged in the indictment, the government will presumably have to prove, beyond a reasonable doubt, that the unexecuted agreement was within the reach of one of the two subpoenas served on Davis and that he intentionally concealed it. But at this stage of the proceedings, the government need not prove its case. All that is needed is something “to give color to the charge” that Davis used Lydon as his agent in obstructing the grand jury’s investigation. Whether pale or rich or vivid, there is indubitably color here.\nThe district court explained that the proposed agreement might be included under, the description “original correspondence,” Mem.Op. & Ord. at 9, and, if the document was sent to Davis or Caccitolo in their official capacities, this is certainly a plausible conclusion. The district court also noted, quite reasonably we find, that the phrase “original records” could reach “all documents relating to SOA.” Id. Keeping in mind Davis’s and Caccitolo’s significant proprietary interests in SOA, as well as their positions as corporate officers, it does not defy reason to conclude that the document in question was somehow related to SOA. Wasson’s testimony to the grand jury that she prepared the proposed agreement while working as SOA’s office manager further supports this conclusion. Government’s App. at 55-57. Davis merely contends that the document could not have been a corporate record of SOA because “the document was kept in a file containing only Davis’ personal records.” Appellant’s Br. at 27. If this were true, corporate officers could remove any document from the reach of persons investigating the corporation itself merely by putting it in a file marked “personal.” We cannot credit an argument that would invite such patent abuse.\nDavis also argues that the document in Davis’s possession was not an “original” but a copy. The district court, however, concluded that “the word ‘original’ can also be used to describe more than one copy of a document as long as these copies are made at the same time as the first copy.” United States v. Davis, No. 91 CR 637, slip op. at 6 (N.D.Ill. July 22, 1992). And Wasson testified to the grand jury that she made three photocopies of the proposed agreement, including the one in Davis’s “personal file,” at the same time that she prepared the “original.” Government’s App. at 62. The district court essentially held that an “original” is the document itself and anything else the parties intend to treat as such. Photocopies made contemporaneously with the completion of the “primary” version of the document would readily satisfy this definition. This rationale is consistent with Federal Rule of Evidence 1001(3) and is not an abuse of discretion.\nIn sum, we conclude that the district court did not abuse its discretion in finding a prima facie case, which Davis did not adequately rebut, that Davis engaged his attorney in fraudulent or criminal activity. We have noted the district court’s primary reason for finding that Davis had waived the attorney-client privilege under the crime/fraud exception: Davis apparently represented through his attorney that he had complied with the January 3 subpoena when he knew that he had not. This reason seems adequate, and we conclude that it alone could support the court’s denial of Davis’s motion seeking to bar Lydon’s testimony. We have also reviewed the other justifications that the district court offered in support of its decision. See Mem.Op. & Ord. at 10-14. These other points also tend to show that Davis was attempting to conceal the existence of the proposed agreement and was using his attorney for that purpose. They buttress the conclusion that Davis has lost his right to assert the attorney-client privilege.\nThe attorney-client privilege is of crucial importance to our jurisprudence, and its derogation is not to be undertaken lightly. The privilege is waived, however, when the client uses the attorney-client relationship to engage in fraudulent or criminal activity rather than merely to defend against charges. The district court expressly limited the government’s inquiry to “asking Lydon whether, during the course of his representation of Davis, Davis admitted lying to him about the existence of the pertinent document and his compliance with the grand jury’s subpoena.” Mem.Op. & Ord. at 15-16. Compare Feldberg, 862 F.2d at 627 (a client’s inquiries of his attorney whether a document falls within the scope of a subpoena, and, if so, whether it must be produced, are privileged conversations). With this important restriction, the district court’s denial of Davis’s motion was well within its discretion.\nFor the foregoing reasons, the judgment of the district court is Affirmed.\n.Two appeals have been consolidated in the present case. Number 92-2822 challenges the district court's denial of Davis's initial motion in limine as well as his first motion for reconsideration. Number 92-3153 contests the district court’s denial of Davis's objections to certain material the government submitted to supplement the record. The district court construed these objections as yet another motion for reconsideration.\n. Lydon has not been held in contempt.\n. Davis's motion in limine is such an intervention.\n. The grand jury issued the SOA corporate records subpoena, served on Davis on January 3, 1990, on December 28, 1989.\n. Since Davis and Caccitolo were officers and shareholders of SOA, the existence of this proposed agreement was important evidence in the government’s continuing investigation of a link between HISNI and SOA.\n. We decline Davis's invitation to overrule Feld-berg.\n. The government argues that the same reasoning could be invoked with respect to the January 9 subpoena for Davis’s personal records. But the district court made no reference to the second subpoena. Since we are reviewing the district court’s decision for an abuse of discretion, we will limit our discussion to matters addressed by the district court.\n. Although the government may also be right that a person can violate 18 U.S.C. § 1503 in a host of ways, Davis is charged here only with concealing and failing to produce a document in response to certain grand jury subpoenas.", "type": "majority", "author": "CUDAHY, Circuit Judge."}], "attorneys": ["Thomas Scorza (argued), Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.", "Matthew F. Kennelly (argued), Robert M. Stephenson, Cotsirilos, Stephenson, Tighe & Streicker, Chicago, IL, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Daniel M. DAVIS, Defendant-Appellant.\nNos. 92-2822, 92-3153.\nUnited States Court of Appeals, Seventh Circuit.\nArgued April 6, 1993.\nDecided Aug. 5, 1993.\nRehearing and Suggestion for Rehearing En Banc Denied Oct. 12, 1993.\nThomas Scorza (argued), Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.\nMatthew F. Kennelly (argued), Robert M. Stephenson, Cotsirilos, Stephenson, Tighe & Streicker, Chicago, IL, for defendant-appellant.\nBefore CUDAHY and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge."}	CUDAHY	POSNER	ESCHBACH	1	1	1	0	0	0	1 F.3d 606	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Daniel M. DAVIS, Defendant-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-05\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCUDAHY, Circuit Judge.\nA grand jury returned an indictment against Daniel Davis charging him with obstruction of justice in violation of 18 U.S.C. § 1503. Specifically, the indictment alleges that Davis concealed a document during the course of a grand jury investigation. After the grand jury returned the indictment, the government sought and obtained leave from the district court to subpoena, for questioning at trial, Matthias Lydon, an attorney who had represented Davis during the portion of the grand jury’s investigation that he allegedly obstructed. After the subpoena was served, Davis filed a motion in limine to bar the proposed questioning on the theory that the testimony the government intended to elicit called for the divulgence of privileged information. The district court denied Davis’s motion, and he appeals.\nThe case against Davis is still pending in the district court. These appeals are interlocutory and, therefore, present significant questions as to our jurisdiction. The jurisdiction of the courts of appeals in criminal cases is, for the most part, limited to “final decisions of the district courts of the United States.” 28 U.S.C. § 1291. The requirement of finality reflects a strong policy against piecemeal review, a policy particularly important in the context of criminal actions where the delays and disruptions of interlocutory appeals are especially troublesome. In fact, it is well settled that, as a general rule, a defendant in a criminal case may not take an appeal from an order denying a motion to suppress evidence. See, e.g., DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962); United States v. Dorfman, 690 F.2d 1217, 1222 (7th Cir.1982). Ordinarily, when the validity of a subpoena is at issue, such as here, the final, appealable decision is an order holding the witness whose appearance is compelled in contempt. United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971).\nThe parties, however, rely on the judicially created exception to the finality rule first articulated in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), which permits the holder of a privilege to intervene in order to assert the privilege and to appeal from the rejection of the assertion. The Court reasoned that because the person called to testify may do so rather than be cited for contempt, the rejection of the claim of privilege is final as a practical matter and thus appealable. On the authority of Perl-man, we have repeatedly held, albeit with some soul-searching, that clients are entitled to appeal as soon as their attorneys are required, in the face of an assertion of attorney-client privilege, to testify or produce documents. See, e.g., In the Matter of Klein, 776 F.2d 628 (7th Cir.1985); In re November 1979 Grand Jury, 616 F.2d 1021, 1024-25 (7th Cir.1980); Velsicol Chem. Corp. v. Parsons, 561 F.2d 671, 674 (7th Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978).\nThe parties have apparently failed to apprehend, however, that Perlman, Klein and Velsicol, the cases cited to us in their jurisdictional statements, all involved pending grand jury proceedings. Because an indictment has already been returned against Davis, the jurisdictional inquiry that we must undertake here is considerably different. In fact, DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) and Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929) could be read to deny us jurisdiction here, because in those cases the Court refused to apply the Perlman exception when the intervening party seeking suppression was a defendant in the underlying criminal case. But neither DiBella nor Co-gen involved assertions of privilege. On the other hand, United States v. Calandra, 706 F.2d 225 (7th Cir.1983), our case most similar to the present one, did. Calandra was an appeal from a district court’s order denying three criminal defendants’ motion to suppress. The motion was based on the defendants’ assertion that an attorney-client privilege existed that would bar the testimony of lawyers whom the government intended to call at trial. The appeal was taken while the trial was still in progress. We stated that “[i]t is the possibility of disclosure of information which is thought to be confidential that is central to the Perlman exception,” and reasoned that, since the allegedly confidential information had already been disclosed to government agents, there was no need for immediate appellate review. Id. at 228. We thus dismissed the appeal for want of jurisdiction. The record here discloses no substantial breach of the claimed privilege that has already occurred. For this reason alone, we take jurisdiction over these appeals.\nSince we will reach the merits, we must more fully set forth the relevant facts. Davis allegedly obstructed a grand jury that was investigating official corruption in the administration of former Cook County Sheriff James O’Grady. Before taking office, O’Grady, along with his undersheriff, James Dvorak, served as an officer of Special Operations Associates, Inc. (SOA), a Chicago security firm. Upon taking office in 1986, O’Grady and Dvorak resigned as officers of SOA but continued to be shareholders in the company. Michael Caecitolo and the appellant, Davis, also owned shares of SOA and served as its corporate officers after O’Grady and Dvorak left for the sheriffs office.\nDuring O’Grady’s tenure as sheriff, the Cook County Board of Commissioners, upon the recommendation of O’Grady and Dvorak, awarded Home Incarceration Systems of Northern Illinois, Inc. (HISNI), whose sole shareholder was Audrey Tokarz, a contract to provide and service equipment used as part of the County’s home incarceration program. In late 1989, some people, including apparently some in the United States Attorney’s office, suspected that HISNI was actually a front for SOA and that O’Grady and Dvorak had impermissibly used their influence to steer the home incarceration contract to HISNI. A grand jury was convened to investigate, and, on January 3, 1990, Davis was served, as president of SOA, with a subpoena demanding the following:\nFor the period from January 1986 to the present, any and all ORIGINAL records and ORIGINAL received correspondence, and copies of any and all outgoing correspondence, involving business and/or financial transactions between Special Operations Associates and any of the following persons or entities: Audrey Tokarz; Home Incarceration Systems....\nGovernment’s App. at 5. Shortly after the subpoena was served, Lydon informed the government that he would be representing Davis during the grand jury’s investigation.\nOn January 8, 1990, Lydon met with an assistant United States attorney and an agent of the Federal Bureau of Investigation. He presented a completely innocent explanation of the relationship between SOA and HISNI. He further disclosed that Davis had made a series of personal loans to Tokarz to “start-up” HISNI. The assistant United States attorney responded that the grand jury was interested in Davis’s relevant personal records as well as the corporate records of SOA. He indicated that he would serve a “personal records” subpoena on Davis to supplement the first, corporate-records subpoena. This subpoena was issued on January 9, 1989 and commanded Davis to produce “[a]ny and all ORIGINAL documents, checks and other records of any kind relating to financial, loan, and/or business transactions between Daniel Davis and any of the following persons or entities: Audrey Tokarz; Home Incarceration Systems of Northern Illinois_” Government’s App. at 8.\nCaecitolo instructed Betty Ann Wasson, SOA’s office manager, to compile the documents demanded by the January 3 subpoena of SOA’s corporate records. On January 12, 1990, Lydon transmitted to the government the assembled documents under a cover letter stating that they were “all original documents which respond to the subpoena ... dated December 28, 1989.” Government’s App. at 10. On January 16 and February 1, Lydon sent to the government documents demanded by the January 9 personal records subpoena. On May 30,1990, the government learned of the existence of an unexecuted agreement pursuant to which Tokarz- would have been required to sell, upon demand, all of her HISNI shares to Davis and Gaccitolo at a pre-arranged, bargain price. The next day, Davis delivered to Lydon for the first time an unsigned copy of this proposed agreement. Lydon informed the government of this document’s existence on July 13,1990, more than five months after Davis ostensibly complied with both subpoenas.\nDavis himself then became the target of a grand jury probe. Lydon was subpoenaed to testify before the grand jury. In response to certain questions put to him about his dealings and conversations with Davis regarding Davis’s compliance with the subpoenas, Ly-don asserted the attorney-client privilege. Davis was nevertheless indicted. The government thereafter informed Lydon of its intention to call him as a witness at Davis’s trial. The government also informed Lydon of its position that Davis had waived his attorney-client privilege as to communications with Lydon under the so-called “crime/ fraud exception.” This prompted Davis to file a motion in limine, the denial of which is the subject of these appeals, seeking to bar. the government’s proposed questioning of Lydon.\nThe theory of the government’s case against Davis is best stated in the indictment returned against him: “Davis ... corruptly endeavored to influence, obstruct and impede the due administration of justice, in that [Davis] concealed and intentionally failed to produce ... in response to the grand juries’ subpoenas, a document in the form of an agreement or proposed agreement [between Davis and Tokarz].” Government’s App. at 211. The government’s theory that certain of Davis’s communications with Lydon fall outside the attorney-client privilege rests on the assertion that Davis used Lydon as his agent in perpetrating-this obstruction. The district court concluded that the government had established a “prima facie” case that Davis had “trick[ed] [Lydon] into providing false information to a. grand jury during an investigation” and that their conversations in the course of this conduct are “not protected by the attorney-client-privilege.” United States v. Davis, No. 91 CR 637, slip op. at 15 (N.D.Ill. July 1, 1992) (hereinafter Mem.Op & Ord.). We agree and thus affirm.\nOur decision in this regard is governed by Matter of Feldberg, 862 F.2d 622 (7th Cir. 1985). In that case, an attorney called before a grand jury invoked his client’s attorney-client privilege in response to certain questions. The government contended that the privilege had been waived under the crime/fraud exception, charging that in the course of the legal representation the client had used the attorney to obstruct the grand jury’s investigation. Id. at 624. We stated that to drive away the privilege under the fraud/crime exception “there must be ‘something to give colour to the charge;’ there must be ‘prima facie evidence that it has some foundation in fact.’ When that evidence is supplied, the seal of secrecy is broken.” Id. at 625 (quoting Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933)). We also noted that “pri-ma facie evidence” did not mean “enough to support a verdict in favor of the person making the claim.” Id. Instead, we held that a party has established a prima facie case whenever it presents evidence sufficient “to require the adverse party, the one with superior access to the evidence and in the best position to explain things, to come forward with that explanation.” Id. at 626. We also stated that if the district court finds such an explanation satisfactory “the privilege remains” and that the district court’s decisions regarding these matters may be disturbed only for an abuse of discretion. Id.\nThe linchpin of the district court’s conclusion that Davis has waived the attorney-client privilege under the crime/fraud exception is its finding that\nthe plain language of the [January 3] subpoena indicates that the unexecuted agreement could have fallen within its scope and lends support to the government’s charge that the defendant knew that the document was pertinent to the investigation of HISNI and SOA’s relationship. Therefore, the existence of the subpoena lends support to the government’s charge that the defendant used his attorney-client relationship to conceal this document from the government.\nMem.Op. & Ord. at 10. Davis concedes that these circumstances require an explanation. Along this line, Davis contends that the district court erred because the proposed agreement was not subject to the January 3 subpoena and that if anyone concealed the document it was Caccitolo not he. Davis might be right. To secure a conviction on the crime charged in the indictment, the government will presumably have to prove, beyond a reasonable doubt, that the unexecuted agreement was within the reach of one of the two subpoenas served on Davis and that he intentionally concealed it. But at this stage of the proceedings, the government need not prove its case. All that is needed is something “to give color to the charge” that Davis used Lydon as his agent in obstructing the grand jury’s investigation. Whether pale or rich or vivid, there is indubitably color here.\nThe district court explained that the proposed agreement might be included under, the description “original correspondence,” Mem.Op. & Ord. at 9, and, if the document was sent to Davis or Caccitolo in their official capacities, this is certainly a plausible conclusion. The district court also noted, quite reasonably we find, that the phrase “original records” could reach “all documents relating to SOA.” Id. Keeping in mind Davis’s and Caccitolo’s significant proprietary interests in SOA, as well as their positions as corporate officers, it does not defy reason to conclude that the document in question was somehow related to SOA. Wasson’s testimony to the grand jury that she prepared the proposed agreement while working as SOA’s office manager further supports this conclusion. Government’s App. at 55-57. Davis merely contends that the document could not have been a corporate record of SOA because “the document was kept in a file containing only Davis’ personal records.” Appellant’s Br. at 27. If this were true, corporate officers could remove any document from the reach of persons investigating the corporation itself merely by putting it in a file marked “personal.” We cannot credit an argument that would invite such patent abuse.\nDavis also argues that the document in Davis’s possession was not an “original” but a copy. The district court, however, concluded that “the word ‘original’ can also be used to describe more than one copy of a document as long as these copies are made at the same time as the first copy.” United States v. Davis, No. 91 CR 637, slip op. at 6 (N.D.Ill. July 22, 1992). And Wasson testified to the grand jury that she made three photocopies of the proposed agreement, including the one in Davis’s “personal file,” at the same time that she prepared the “original.” Government’s App. at 62. The district court essentially held that an “original” is the document itself and anything else the parties intend to treat as such. Photocopies made contemporaneously with the completion of the “primary” version of the document would readily satisfy this definition. This rationale is consistent with Federal Rule of Evidence 1001(3) and is not an abuse of discretion.\nIn sum, we conclude that the district court did not abuse its discretion in finding a prima facie case, which Davis did not adequately rebut, that Davis engaged his attorney in fraudulent or criminal activity. We have noted the district court’s primary reason for finding that Davis had waived the attorney-client privilege under the crime/fraud exception: Davis apparently represented through his attorney that he had complied with the January 3 subpoena when he knew that he had not. This reason seems adequate, and we conclude that it alone could support the court’s denial of Davis’s motion seeking to bar Lydon’s testimony. We have also reviewed the other justifications that the district court offered in support of its decision. See Mem.Op. & Ord. at 10-14. These other points also tend to show that Davis was attempting to conceal the existence of the proposed agreement and was using his attorney for that purpose. They buttress the conclusion that Davis has lost his right to assert the attorney-client privilege.\nThe attorney-client privilege is of crucial importance to our jurisprudence, and its derogation is not to be undertaken lightly. The privilege is waived, however, when the client uses the attorney-client relationship to engage in fraudulent or criminal activity rather than merely to defend against charges. The district court expressly limited the government’s inquiry to “asking Lydon whether, during the course of his representation of Davis, Davis admitted lying to him about the existence of the pertinent document and his compliance with the grand jury’s subpoena.” Mem.Op. & Ord. at 15-16. Compare Feldberg, 862 F.2d at 627 (a client’s inquiries of his attorney whether a document falls within the scope of a subpoena, and, if so, whether it must be produced, are privileged conversations). With this important restriction, the district court’s denial of Davis’s motion was well within its discretion.\nFor the foregoing reasons, the judgment of the district court is Affirmed.\n.Two appeals have been consolidated in the present case. Number 92-2822 challenges the district court's denial of Davis's initial motion in limine as well as his first motion for reconsideration. Number 92-3153 contests the district court’s denial of Davis's objections to certain material the government submitted to supplement the record. The district court construed these objections as yet another motion for reconsideration.\n. Lydon has not been held in contempt.\n. Davis's motion in limine is such an intervention.\n. The grand jury issued the SOA corporate records subpoena, served on Davis on January 3, 1990, on December 28, 1989.\n. Since Davis and Caccitolo were officers and shareholders of SOA, the existence of this proposed agreement was important evidence in the government’s continuing investigation of a link between HISNI and SOA.\n. We decline Davis's invitation to overrule Feld-berg.\n. The government argues that the same reasoning could be invoked with respect to the January 9 subpoena for Davis’s personal records. But the district court made no reference to the second subpoena. Since we are reviewing the district court’s decision for an abuse of discretion, we will limit our discussion to matters addressed by the district court.\n. Although the government may also be right that a person can violate 18 U.S.C. § 1503 in a host of ways, Davis is charged here only with concealing and failing to produce a document in response to certain grand jury subpoenas.\n[END_CASE]", "role": "user" } ]
10,512,961	AHP SUBSIDIARY HOLDING COMPANY, Successor in Interest to Boyle-Midway Household Products, Incorporated, a Delaware Corporation, Plaintiff-Appellant, Cross-Appellee, v. STUART HALE COMPANY, an Illinois Corporation, Defendant-Appellee, Cross-Appellant	AHP Subsidiary Holding Co. v. Stuart Hale Co.	1993-08-06	Nos. 92-1437, 92-1472	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before RIPPLE and ROVNER, Circuit Judges, and ENGEL, Senior Circuit Judge."], "parties": ["AHP SUBSIDIARY HOLDING COMPANY, Successor in Interest to Boyle-Midway Household Products, Incorporated, a Delaware Corporation, Plaintiff-Appellant, Cross-Appellee, v. STUART HALE COMPANY, an Illinois Corporation, Defendant-Appellee, Cross-Appellant."], "opinions": [{"text": "RIPPLE, Circuit Judge.\nThis is an appeal from a grant of summary judgment in favor of the defendant, Stuart Hale Company (Stuart Hale) in an action brought by American Home Products Subsidiary Holding Company (American) alleging federal trademark infringement, unfair competition, and dilution of trademark. Additionally, American sought a preliminary injunction, which the district court denied as moot. In the present appeal, American renews these claims, and Stuart Hale cross-appeals the denial of sanctions under Rule 37(a) of the Federal Rules of Civil Procedure. For the following reasons, the judgment of the district court is affirmed in part, reversed in part, vacated in part, and remanded for proceedings in accordance with this opinion.\nI\nBACKGROUND\nAppellant American owns the federally registered trademark to “PAM,” a nonstick cooking spray sold in nine-ounce aerosol cans in the consumer retail market. American has owned the PAM trademark since 1958 and, with a fifty to seventy-five percent market share, is currently the product leader in the cooking spray industry. Pl.Ex.D. PAM has no registered trademark rights to, and has never marketed, a “lite” or “light” version of its product.\nIn 1953, five years before American registered the mark “PAM,” Stuart Hale had introduced the name “Pan-Lite” to market a nonstick cooking oil. Prior to 1988, however, Stuart Hale had only used the name “Pan-Lite” to market its cooking oil in the wholesale market by the use of fifty-five gallon drums sold directly to bakers; it was not sold in the retail grocery market. Indeed, from 1953 to 1988, Stuart Hale sold the Pan-Lite product to only six customers. In April 1988, Stuart Hale applied for federal trademark registration for the name Pan-Lite to market its nonstick cooking oil as an aerosol spray. This product was a different formulation than the product it had marketed on a wholesale basis earlier. R.64, Plaintiffs Local Rule 12(m) Statement at 2. Prior to the 1988 introduction of the retail aerosol version of Pan-Lite, Stuart Hale had never sought trademark protection for the name Pan-Lite. It is undisputed that the PAM and Pan-Lite products are now in direct competition.\nShortly after Stuart Hale applied for protection of the Pan-Lite name, American initiated the present action as a five-count complaint against Stuart Hale. American alleged federal trademark infringement, federal and common law unfair competition, dilution, and deceptive trade practices. American argues that consumers are likely to mistake Pan-Lite for a light version of the PAM product. It notes that there are already three distinct versions of PAM in the market: original, butter-flavored, and olive oil. Additionally, American stresses the proliferation of market products that contain less fat and fewer calories, and submits that consumers have begun to expect light versions of their favorite brand name products. Specifically, American bases its factual claim on the following product similarities between PAM and Pan-Lite: (1) the brand names sound similar; (2) both are sold in predominantly red and yellow aerosol spray cans; (3) both picture fried eggs on their cans; and (4) both cans depict, in “bullet” lettering, claims that the product has “no cholesterol,” is “all natural,” and is “sodium free.”\nAmerican retained Dr. Hans Zeisel, now deceased, to survey consumers in order to determine the likelihood that consumers would confuse Pan-Lite with PAM. Dr. Zeisel supervised two surveys in which only primary shoppers over eighteen years of age were questioned. In the first survey, participants were shown photographs of six retail grocery items commonly sold in supermarkets. These items included Pan-Lite but not PAM. After seeing the photographs, participants were asked to recall the brand names they had seen. Forty-five percent of those recalling a brand name for the cooking spray identified Pan-Lite as PAM.\nThe second survey was performed as a control because PAM is the product leader in the market and might be identified by consumers for that reason. The control survey showed participants the same six grocery items, but substituted Mazóla or Wesson-Lite (also direct competitors of PAM) for Pan-Lite. Seven percent of the participants in the second survey identified the cooking spray as PAM. Dr. Zeisel then subtracted the seven percent figure from the forty-five percent figure to control for the likelihood of misidentifieation that could reasonably be considered a result of PAM’s status as market leader. The result was a net misidentifi-cation of thirty-eight percent attributable to the similarities between Pan-Lite and PAM. Dr. Zeisel also submitted by affidavit that it was his expert opinion that the similarities between the names PAM and Pan-Lite caused consumers to misidentify the Pan-Lite product as a PAM brand cooking spray. R.106, Attach, at 4, Zeisel Aff. In addition to the survey evidence compiled by Dr. Zeisel, American submitted to the district court an article in the April 19, 1990 Chicago Tribune stating:\nIn a red and yellow aerosol can, Pan Lite looks and acts like PAM, a close cousin that shares grocery space.\nR.102, Attach. A. American submits that this article further evidences a likelihood of consumer confusion between the two products.\nIn response, Stuart Hale argues that American offered no material, probative evidence that could establish a likelihood of consumer confusion between PAM and Pan-Lite. In fact, submits Stuart Hale, the real motivation behind American’s lawsuit is that it is considering marketing plans for a “light” version of PAM, for which it has yet to seek trademark protection. Appellee’s Br. at 2-3. Additionally, Stuart Hale filed a Rule 37 motion for attorney fees on the ground that American had deliberately frustrated the discovery process and should be sanctioned.\nII\nPROCEDURAL HISTORY\nAmerican’s motion for preliminary injunction and Stuart Hale’s motion for summary judgment were referred to a United States magistrate judge for an evidentiary hearing and a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B) (1988). Subsequently, the district court reviewed the magistrate’s report de novo and found it to be “thorough, accurate, and the decision proper.” R.122, Order at 1. Consequently, the district court adopted verbatim the recommendations of the magistrate judge and entered summary judgment for Stuart Hale. The district court applied the seven-factor “likelihood of confusion” test now common in this circuit. With respect to several of these factors, there was no dispute between the parties. As the district court noted, the products are indisputably direct competitors and are similarly advertised in the same market. The strength of the PAM mark was also uncon-tradicted. However, the court specifically rejected American’s theories on four of the likelihood of confusion factors.\nThe district court first considered the degree of similarity between the marks in appearance and suggestion. With respect to suggestion, the court determined that PAM was a completely fanciful mark, while Pan-Lite has a functional suggestion. Similarly, the court found that “Lljittle homogeneity exists in the products’ visual appearance.” Rep. and Rec. at 7. The court also rejected American’s argument that the fact that Pan-Lite’s dominant term “pan” sounds and appears like “PAM,” coupled with consumer expectation concerning “light” products, causes a likelihood of source confusion. The court emphasized the fact that American does not currently market a light version of PAM and has no trademark rights to a PAM “light” or “lite.” Accordingly, concluded the district court, American’s proposition is “nothing more than mere conjecture.” Id. at 8.\nThe district court also rejected American’s argument that consumers exercise little care in distinguishing between low-cost grocery items, concluding:\n[W]ith the prodigious advertising campaigns conducted by corporate America, consumers can not help but to be well aware of new and old products_ [G]iv-en that all grocery items are relatively inexpensive and sold in a multitude of brands, at the very least, some amount of careful discrimination must be exercised by consumers, if only in an effort to find them favorite brands.\nId. at 9.\nOn the issue of actual confusion, the district court found that American had submitted no probative evidence. Specifically, the court rejected American’s consumer survey proffer that thirty-eight percent of the persons who were shown pictures of Pan-Lite believed it to be PAM, on the grounds that it was “not fairly prepared and, therefore, does not accurately gauge actual confusion among consumers.” Id. at 12. Specifically, the court stated:\n[T]he survey’s major faffing is that it does not gather data of actual confusion based upon a showing of PAM and Pan-Lite as found in the marketplace — shelved together. A proper and fair analysis would more accurately simulate consumer perception by showing the products one next to the other, or amongst a group of cooking spray brands. American’s survey does not achieve proper marketplace reality.\nId. at 13.\nThe district court also rejected American’s contention that a triable issue of fact existed as to whether Stuart Hale intended to palm-off Pan-Lite as related to the successful PAM product. The court noted that the name Pan-Lite had been in existence five years prior to American’s PAM mark and that the Pan-Lite name describes the product’s function. The court disposed of the purported significance of the recent entry of Pan-Lite into the retail market as “tenuous support for the proposition that Stuart Hale intended to palm-off.” Id. at 14.\nThe district court also summarily rejected American’s state law claims because of the “absence of similarity between the marks.” Id. at 16. Finally, without separate analysis of the merits, the district court denied American’s motion for a preliminary injunction on the ground that it was moot.\nIll\nANALYSIS\nWe review a district court’s grant of summary judgment de novo, taking all inferences in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Anderson v. Stauffer Chem. Co., 965 F.2d 397, 400 (7th Cir.1992). Accordingly, if there is any genuine material issue of fact, we must remand. See Fed.R.Civ.P. 56.\nA. Federal Trademark Infringement Claim\nThe linchpin of both common law and federal statutory trademark infringement claims is whether consumers in the relevant market confuse the alleged infringer’s mark with the complainant’s mark. J. Thomas MoCarthy, Trademarks and Unfair Competition § 23:1, at 42-44 (2d ed. 1984). We evaluate the likelihood of confusion in trademark infringement claims by analysis of the following seven factors:\n(1) similarity between the marks in appearance and suggestion;\n(2) similarity of the products;\n(3) area and manner of concurrent use;\n(4) degree of care likely to be exercised by consumers;\n(5) strength of complainant’s mark;\n(6) actual confusion; and,\n(7) intent of defendant “to palm-off his product as that of another.”\nForum Corp. of North Am. v. Forum Ltd., 903 F.2d 434, 439 (7th Cir.1990).\nIn addressing the district court’s application of this test, American initially asserts that we must reverse unless Stuart Hale, as moving party in this motion for summary judgment, established that there were no material issues of fact on any of the seven elements of the “likelihood of confusion” test. Indeed, submits American, Stuart Hale only attempted to adduce evidence on four of these factors and therefore failed to meet its burden of proof. We cannot accept this argument. Stuart Hale actually conceded that the three factors it did not address favored American in the balance. There was no genuine dispute as to those factors. The district court’s ruling simply found that those three factors alone would not be sufficient for a reasonable factfinder to hold Stuart Hale liable. This conclusion was not legal error. None of the seven confusion factors alone is dispositive in a likelihood of confusion analysis:\n[T]he plaintiff need not prove each and every factor in order to prevail. However, the converse is also true; neither is it required that the defendant refute each and every factor. The weight and totality of the most important factors in each case will ultimately be determinative of the likelihood of confusion, not whether the majority of the factors tilt the scale in favor of one side or the other.\nSchwinn Bicycle Co. v. Ross Bicycles, Inc., 870 F.2d 1176, 1187 (7th Cir.1989).\nAlternatively, American argues that the district court impermissibly weighed and balanced the evidence, instead of taking all evidence presented in the light most favorable to American as the nonmovant. Summary judgment, submits American, should have been precluded because material issues of fact are in dispute. This submission requires extensive attention.\n“We have stated a number of times that the trial court’s ultimate conclusion on the likelihood of confusion is a finding of fact.” Forum Corp., 903 F.2d at 438. Accordingly, a motion for summary judgment in trademark infringement cases must be approached with great caution. Here, at the summary judgment phase, the parties disputed four of the seven factors in the likelihood of confusion analysis. Specifically, the parties disputed (1) the degree of care likely to be used by consumers, (2) the similarity between the marks in appearance and suggestion, (3) the probability of actual confusion, and (4) the intent of Stuart Hale to palm-off Pan-Lite as a PAM product. The only question now before us is whether the differences between the parties with respect to any of these factors create a genuine material issue of triable fact as to the likelihood of confusion. We shall examine these factors in turn.\n1. Degree of care likely to be used by consumers\nAmerican argues that the district court improperly concluded, on this record, that consumers exercise a high degree of care in purchasing cooking spray. We believe that the district court’s conclusion in this regard must be evaluated with some skepticism, especially at this summary judgment' stage. Indeed, American attempted to introduce evidence in the form of surveys to suggest that consumers exercise very little care in purchasing low-cost grocery items. This submission is relevant to the likelihood of confusion because presumably consumers take less time purchasing low-cost items, and haste increases the possibility of confusion. This court also has observed that\nwhere the product involved [is] a low value item, the risk of confusion is greater “because purchasers are unlikely to complain when dissatisfied, which would bring to light confusion; but rather they are likely simply to avoid all products produced by the company which they believe produced the product which caused the trouble.”\nMaxim’s Ltd. v. Badonsky, 772 F.2d 388, 393 (7th Cir.1985) (quoting Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366, 383 (7th Cir.), cert. denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976)).\nIt may be possible for Stuart Hale to establish that the “prodigious advertising campaigns” of corporate America have resulted in consumers’ exercising great care in the selection of their favorite brand of cooking spray. However, at this point, American has properly raised a genuine dispute by producing survey evidence tending to show that such care was not used. Accordingly, it was error for the district court to determine, as a matter of law, that consumers exercise some amount of care in choosing a cooking spray.\n2. Similarity between the marks in appearance and suggestion\nThe district court concluded that “the products differ in visual appearance” and that, with respect to suggestion, the “marks are clearly different.” Rep. and Rec. at 5. Specifically, the court noted: “In contrast to PAM, the Pan-Lite product has its name cursively written in white; the can’s body is virtually all red against a thin yellow plaid outline,[] its cap is white; and a caricature of a chef, also in white, adorns the cap.” Id. at 7. American invites our attention to several similarities in the two products’ appearance, including the common yellow and red color scheme, the similar depiction of eggs in a frying pan, and similar representations that the products have “no cholesterol” and are “all natural” and “sodium free.” Additionally, American emphasizes the phonic and visual similarity between the mark “PAM” and the dominant word “Pan” in the Pan-Lite name. Stuart Hale counters that the terms “Pan” and “Lite” and the depiction of a frying pan containing eggs are descriptive of the function of cooking sprays generally. Further, contends Stuart Hale, American has overplayed the similarity between the mark “PAM” and the prefix “Pan” because marks should be considered as a unit and not dissected into individual elements.\nSimilar arguments were presented to this court in Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423 (7th Cir.1985), cert. denied, 475 U.S. 1147, 106 S.Ct. 1801, 90 L.Ed.2d 346 (1986), a case involving two competitors in the bedding industry. On appeal, this court held that the factfinder was entitled to conclude that, although the elements of the mark were descriptive if taken in isolation, as a unit the mark was not merely descriptive:\nThe words and pictures surely are “descriptive” if taken one at a time. But that is not the right way to take them. The eye sees the combination of words, typeface, and goose as a unit.... The district court therefore must consider each mark as a unit.\nId. at 1430. See also Computer Care v. Serv. Sys. Enters., Inc., 982 F.2d 1063, 1069 (7th Cir.1992) (“Where the plaintiffs overall trade dress is distinctive, the fact that it uses descriptive (or generic) elements does not render it nonprotectable.”); Roulo v. Russ Berrie & Co., 886 F.2d 931, 936 (7th Cir.1989), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990) (same). In the present ease, we do not believe that an argument that the combination of the Pan-Lite name and packaging is confusingly similar to that of PAM should have been foreclosed as a matter of law.\nAmerican also submits that the name “Pan-Lite” creates a likelihood of source confusion because it may be considered a “light” version of the PAM product line. The district court rejected this argument on the ground that it was “mere conjecture.” Rep. and Rec. at 8. We believe that this conclusion is premature. American’s claim is not that it has some form of preemptive right to the potential trademark “PAM-Lite.” Rather, it simply argues that there is a likelihood of confusion as to the source of the product. “The ‘keystone’ of trademark infringement is ‘likelihood of confusion’ as to source, affiliation, connection or sponsorship of goods or services among the relevant class of customers and potential customers.” Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 957 (7th Cir.1992) (quoting 2 McCarthy § 23:1 at 42-43, 46-47); see also International Kennel Club, 846 F.2d at 1089 (fact that “parties’ products are the kind the public might very well attribute to the same source ... provides additional evidence of a likelihood of confusion”). American has raised a genuine issue of triable fact as to whether consumers are likely to mistakenly believe that there is an association or sponsorship connection between PAM and Pan-Lite.\n3. Evidence of actual confusion\nAmerican argues that the district court erred in excluding the Zeisel survey results, its principal evidence of actual confusion. The court stated that the survey’s “major failing is that it does not gather data of actual confusion.” Rep. and Rec. at 13. Yet, this circuit has repeatedly stated that actual confusion need not be demonstrated; the test is likelihood of confusion and actual confusion is only one element of the test. Computer Care, 982 F.2d at 1070; McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1172-73 (7th Cir.1986) (district court erred in rejecting survey evidence using photo comparisons to demonstrate thirty-five percent consumer confusion, method of testing went to weight not admissibility of evidence). Indeed, recently, in Sands, 978 F.2d at 960, this court held that the district court erred in rejecting survey results similar to those in the present case. In Sands, the survey purported to establish that twenty-four percent of those shown the label from the defendant’s product believed the product to be the plaintiffs. The court noted that the survey was “precisely the sort of study ... held to be the correct methodology for assessing consumer confusion.” Id. In McGraw-Edison, we also- reversed the district court’s rejection of survey evidence offered to show actual confusion. Specifically, we concluded that “the district court’s concern regarding the manner of presentation to the interviewee goes to weight to be accorded to the survey results rather than providing a reason to ignore the survey altogether.” 787 F.2d at 1171-73. Similarly, in the present case, we believe that the district court was premature in rejecting the survey evidence proffered by American. While there will be occasions when the proffered survey is so flawed as to be completely unhelpful to the trier of fact and therefore inadmissible, see Delavan, 975 F.2d at 394, such situations will be rare and the present case is not among them. We believe that any shortcomings in the survey results go to the proper weight of the survey and should be evaluated by the trier of fact.\nAmerican also asserts that the district court committed reversible error by concluding that the marks were dissimilar based upon its own side-by-side comparison. Although side-by-side comparison may be marginally helpful at times, see Computer Care, 982 F.2d at 1070; Roulo, 886 F.2d at 937, it must be remembered always that the ultimate focus is on “the purchasing public’s state of mind when confronted by somewhat similar trademarks singly presented.” International Kennel Club, 846 F.2d at 1088 (quoting James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 275 (7th Cir.1976)).\n4. Stuart Hale’s intent to palm-off the PAM mark\nAmerican challenges the district court’s conclusion that Stuart Hale did not intend to palm-off Pan-Lite as PAM because it had been using the Pan-Lite name five years prior to American’s registration of the PAM mark. Stuart Hale’s president also asserted that he did not intend to benefit from PAM’s market popularity. However, American correctly notes that the district court cannot weigh credibility issues at the summary judgment stage. Wilson v. Williams, 997 F.2d 348, 350 (7th Cir.1993) (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14). We believe that American did raise a genuine issue of triable fact.\nB.State Law Claims\nAmerican argues that the district court erred in dismissing its state law unfair competition and dilution claims based upon analysis of the federal trademark infringement claim. The state unfair competition claim is analyzed under the likelihood of confusion standard and thus mirrors our infringement analysis. See McGraw-Edison, 181 F.2d 1163. Accordingly, we shall not repeat that analysis here.\nUnder Illinois law, dilution is not dependent upon the likelihood of confusion but on a separate likelihood of dilution inquiry. See Ringling Bros. Bamum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 482 (7th Cir.1988) (The Illinois Anti-Dilution Act “grants protection to trademarks beyond that provided by the classic ‘likelihood of confusion’ test under the Lanham Act.... The additional protection prevents the gradual whittling away of trademarks’ distinctiveness through use by third parties on non-confusing, noncompeting products.”) (citations omitted). Nonetheless, Stuart Hale correctly asserts that, under modern state precedent, the protection of the Illinois Anti-Dilution statute is not available to competitors under Illinois case law. See EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d 375, 380 (7th Cir.1984); see also Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182, 214 (E.D.N.Y.1992) (same; applying Illinois law). Accordingly, the district court was correct in dismissing this claim.\nC. Denial of Preliminary Injunction\nAmerican argues that, if we remand for any reason, we should also hold that the district court erred in not entering a preliminary injunction. In reply, Stuart Hale emphasizes that Pan-Lite controls less than one percent of the relevant market, while PAM dominates the market. Accordingly, submits Stuart-Hale, the balance of hardships that guides a court’s preliminary injunction determination favors denying the motion. American responds that a market leader also has an interest in protecting its reputation as a quality product. Consumers may mistake other brands, which may not be held to the same quality standards, for American products and subsequently avoid purchasing American’s entire product line. This course of conduct could result regardless of the alleged infringer’s market share.\nThe district court never reached the merits of this issue; the court dismissed the preliminary injunction motion as moot after granting summary judgment for Stuart Hale. Consequently, we cannot now review it on appeal; instead, we must remand for the district court to make a fact-based determination. See Schwinn, 870 F.2d at 1176.\nD. Stuart Hale’s Cross-Appeal for Attorney Fees\nOn cross-appeal, Stuart Hale argues that the district court erred in failing to award it attorney fees because American “systematically obstructed [its] discovery to conceal [American’s] real motive behind [the] action, ... to market a new product, PAM-Lite, into a market [without] Pan-Lite.” Appellee’s Br. at 2-3.\nGenerally, we review a district court’s refusal to impose Rule 37 sanctions only for an abuse of discretion. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); Shine v. Owens-Illinois, Inc., 979 F.2d 93, 96 (7th Cir.1992). However, the denial of sanctions with no explanation may constitute an abuse of discretion. Wojan v. General Motors Corp., 851 F.2d 969, 974 (7th Cir.1988); Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1084 (7th Cir.1987) (If the reasons for denying a motion for sanctions are clear on the record “the judge need not belabor the obvious[;] ... [Otherwise, the parties] and this court are entitled to explanations.”). The district court noted:\n[T]he federal rules place the burden on the litigants to vigorously pursue appropriate motions to ensure that justice is served. In the instant case, if StuarMIale was dissatisfied with the actions of any party or the court, it had at its disposal an arsenal of weapons, including Rule 37, and Local Rule 12(k), to alter the course of the litigation. Stuart-Hale, the proponent of the motion, failed to do so effectively and will not now be heard to complain of the magistrate judge’s failure to rule.\nR.122, Order at 2 (emphasis added). A failure to pursue a Rule 37 motion more “vigorously” might well justify a district court’s decision not to award sanctions despite the merits of the motion and, as we have noted, such a decision is reviewed in this court under a deferential standard of review. However, deferential review does not mean no review at all. Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 936 (7th Cir.1989) (en banc) (citing In re Ronco, Inc., 838 F.2d 212, 217-18 (7th Cir.1988)). Here, the district court’s explanation is so concluso-ry that we cannot review the substance of its decision. Accordingly, its judgment shall be vacated and, on remand, the parties may again address the matter and obtain a more plenary explanation from the district court.\nWe must address one more issue. Because this case comes to us on summary judgment, a remand to the district court does not automatically invoke the provisions of Circuit Rule 36 that require reassignment for further proceedings in the district court. Here, however, we believe that it would be most compatible with the rationale underlying Rule 36 to require that the case be reassigned. As our discussion indicates, we believe that the district court did not limit itself to a determination of whether there was a genuine issue of fact requiring trial, but rather proceeded to evaluate the evidence as if the proceeding were a trial on the merits. Under the circumstances presented by this case, further proceedings ought to be conducted before a judicial officer not involved in the earlier proceedings.\nFinally, we emphasize that our analysis has been limited to whether it was appropriate to grant summary judgment for the ap-pellees. We stress emphatically that we intimate no opinion with respect to the merits of the dispute.\nConclusion\nFor the foregoing reasons, the judgment of the district court is affirmed with respect to the dismissal of the count under the Illinois Anti-Dilution Statute. It is vacated insofar as it denies the appellee’s motion for sanctions; it is reversed and remanded insofar as it granted summary judgment to the appel-lee. Circuit Rule 36 shall apply. The appellant may recover its costs in the appeal; no costs are awarded on the cross-appeal.\nIt Is So Ordered.\n. Stuart Hale brought a counterclaim seeking a judicial declaration that the name Pan-Lite does not infringe upon American’s registered trademark, PAM. In response, American filed a motion to strike Stuart Hale's counterclaim. This motion has not yet been resolved; however, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the district court determined that there was no reason to delay appeal of the summary judgment order.\n. More precisely, the survey showed that 47% of the participants shown the initial Pan-Lite packaging and 44% of those shown a newer version of the Pan-Lite packaging believed that the product was PAM. Dr. Zeisel averaged these results and obtained a 45% rate of confusion in the first survey.\n. Because the district court adopted the magistrate judge's conclusions without writing a decision that independently addressed the merits of the dispute, the decision to which we refer was, in the first instance, that of the magistrate judge. However, because it is the district court opinion that we are reviewing, we shall refer only to the district court to avoid confusion.\n. These factors are set forth in Forum Corp. of North America v. Forum, Ltd., 903 F.2d 434, 439 (7th Cir.1990), and arc discussed extensively in the analysis section of this opinion.\n.The court gave great weight to the deposition testimony of the president of Stuart Hale, who testified that the name suggested the case with which food could be removed from a pan treated with the product as well as the relatively small amount of the product needed to effect the desired result.\n. The district court and both parties have addressed the color scheme, print type, graphics, product size, and over-all packaging of the two cooking sprays. In this respect the claim resembles trade dress infringement. We have noted that trademark and trade dress protection both have the same purpose. Roulo v. Russ Berrie & Co., 886 F.2d 931, 935-36 (7th Cir.1989), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990).\n. Schwinn was not a summary judgment case; however, it is instructive on the general application of the likelihood of confusion analysis. See Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 390 (7th Cir.1992) (upholding summary judgment for defendant in trademark infringement case where defendant conceded goods were similar and shared with plaintiff essentially the same channels of trade and consumers); see also International Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1087 (7th Cir.1988) (none of the seven factors alone is dispositive and their appropriate weight will vary from case to case); McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1167 (7th Cir.1986) (\"[Different factors will weigh more heavily from case to case depending upon the particular facts and circumstances involved.”).\n. Both PAM and Pan-Lite \"are relatively inexpensive items ... [that] generally cost under $3.00 at retail.” R.65, Donnelly Aff. at ¶ 19.\n. See Rep. and Rec. at 9.\n. We note that the district court's visual comparison was based upon Stuart Hale’s initial packaging scheme which has been subsequently altered. The current packaging does not contain the yellow plaid outline and more closely resembles the PAM packaging. See R.65, Ex. SS at 4 and Ex. HH at 4.\n. American also asserts that the article describing Pan-Lite as looking and acting like PAM is evidence of actual confusion. While this article would certainly appear to have limited probative value in light of the fact that it appeared after this litigation was instigated, we cannot conclude, as did the district court, that the article was \"unpersuasive” as a matter of law. R.102, Pl.Ex. A.\n. The parties do not appear to dispute on appeal that the state law unfair competition claim turns upon the same analysis as the \"likelihood of confusion” analysis applied to federal law claims under the Lanham Act. Appellant’s Br. at 37; Appellee's Br. at 28.\n. American invites our attention to McDonald's Corp. v. Gunvill, 441 F.Supp. 71, 75 (N.D.Ill.1977), aff'd, 622 F.2d 592 (7th Cir.1980), and John Morrell & Co. v. Reliable Packing Co., 172 F.Supp. 276 (N.D.Ill.1959), rev’d on other grounds. 295 F.2d 314 (7th Cir.1961) as support for its contention that the Illinois Anti-Dilution Act may be applied between direct competitors. We note only that these cases both antedate EZ Loader Boat Trailers, Inc. and are against the clear weight of current Illinois authority. Accordingly, they are not controlling on American's standing to bring this claim.\n.The traditional preliminary injunction test used by this court requires: 1) no adequate remedy at law, 2) irreparable harm, 3) the harm to the movant if not granted outweighs the harm to the nonmovant if granted, and 4) consideration of the public interest. Schwinn, 870 F.2d at 1181.", "type": "majority", "author": "RIPPLE, Circuit Judge."}], "attorneys": ["Alan J. Mandel, Samuel Fifer (argued), Sonnenschein, Nath & Rosenthal, Chicago, IL, Steven J. Baron, American Home Products Corp., New York City, for AHP Subsidiary Holding Co.", "Scott A. Brainerd, Chicago, IL (argued), for Stuart Hale Co."], "corrections": "", "head_matter": "AHP SUBSIDIARY HOLDING COMPANY, Successor in Interest to Boyle-Midway Household Products, Incorporated, a Delaware Corporation, Plaintiff-Appellant, Cross-Appellee, v. STUART HALE COMPANY, an Illinois Corporation, Defendant-Appellee, Cross-Appellant.\nNos. 92-1437, 92-1472.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Nov. 2, 1992.\nDecided Aug. 6, 1993.\nAlan J. Mandel, Samuel Fifer (argued), Sonnenschein, Nath & Rosenthal, Chicago, IL, Steven J. Baron, American Home Products Corp., New York City, for AHP Subsidiary Holding Co.\nScott A. Brainerd, Chicago, IL (argued), for Stuart Hale Co.\nBefore RIPPLE and ROVNER, Circuit Judges, and ENGEL, Senior Circuit Judge.\nThe Honorable Albert J. Engel of the United States Court of Appeals for the Sixth Circuit is sitting by designation."}	RIPPLE	ROVNER	ENGEL	1	1	1	0	0	0	1 F.3d 611	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: AHP SUBSIDIARY HOLDING COMPANY, Successor in Interest to Boyle-Midway Household Products, Incorporated, a Delaware Corporation, Plaintiff-Appellant, Cross-Appellee, v. STUART HALE COMPANY, an Illinois Corporation, Defendant-Appellee, Cross-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-06\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nRIPPLE, Circuit Judge.\nThis is an appeal from a grant of summary judgment in favor of the defendant, Stuart Hale Company (Stuart Hale) in an action brought by American Home Products Subsidiary Holding Company (American) alleging federal trademark infringement, unfair competition, and dilution of trademark. Additionally, American sought a preliminary injunction, which the district court denied as moot. In the present appeal, American renews these claims, and Stuart Hale cross-appeals the denial of sanctions under Rule 37(a) of the Federal Rules of Civil Procedure. For the following reasons, the judgment of the district court is affirmed in part, reversed in part, vacated in part, and remanded for proceedings in accordance with this opinion.\nI\nBACKGROUND\nAppellant American owns the federally registered trademark to “PAM,” a nonstick cooking spray sold in nine-ounce aerosol cans in the consumer retail market. American has owned the PAM trademark since 1958 and, with a fifty to seventy-five percent market share, is currently the product leader in the cooking spray industry. Pl.Ex.D. PAM has no registered trademark rights to, and has never marketed, a “lite” or “light” version of its product.\nIn 1953, five years before American registered the mark “PAM,” Stuart Hale had introduced the name “Pan-Lite” to market a nonstick cooking oil. Prior to 1988, however, Stuart Hale had only used the name “Pan-Lite” to market its cooking oil in the wholesale market by the use of fifty-five gallon drums sold directly to bakers; it was not sold in the retail grocery market. Indeed, from 1953 to 1988, Stuart Hale sold the Pan-Lite product to only six customers. In April 1988, Stuart Hale applied for federal trademark registration for the name Pan-Lite to market its nonstick cooking oil as an aerosol spray. This product was a different formulation than the product it had marketed on a wholesale basis earlier. R.64, Plaintiffs Local Rule 12(m) Statement at 2. Prior to the 1988 introduction of the retail aerosol version of Pan-Lite, Stuart Hale had never sought trademark protection for the name Pan-Lite. It is undisputed that the PAM and Pan-Lite products are now in direct competition.\nShortly after Stuart Hale applied for protection of the Pan-Lite name, American initiated the present action as a five-count complaint against Stuart Hale. American alleged federal trademark infringement, federal and common law unfair competition, dilution, and deceptive trade practices. American argues that consumers are likely to mistake Pan-Lite for a light version of the PAM product. It notes that there are already three distinct versions of PAM in the market: original, butter-flavored, and olive oil. Additionally, American stresses the proliferation of market products that contain less fat and fewer calories, and submits that consumers have begun to expect light versions of their favorite brand name products. Specifically, American bases its factual claim on the following product similarities between PAM and Pan-Lite: (1) the brand names sound similar; (2) both are sold in predominantly red and yellow aerosol spray cans; (3) both picture fried eggs on their cans; and (4) both cans depict, in “bullet” lettering, claims that the product has “no cholesterol,” is “all natural,” and is “sodium free.”\nAmerican retained Dr. Hans Zeisel, now deceased, to survey consumers in order to determine the likelihood that consumers would confuse Pan-Lite with PAM. Dr. Zeisel supervised two surveys in which only primary shoppers over eighteen years of age were questioned. In the first survey, participants were shown photographs of six retail grocery items commonly sold in supermarkets. These items included Pan-Lite but not PAM. After seeing the photographs, participants were asked to recall the brand names they had seen. Forty-five percent of those recalling a brand name for the cooking spray identified Pan-Lite as PAM.\nThe second survey was performed as a control because PAM is the product leader in the market and might be identified by consumers for that reason. The control survey showed participants the same six grocery items, but substituted Mazóla or Wesson-Lite (also direct competitors of PAM) for Pan-Lite. Seven percent of the participants in the second survey identified the cooking spray as PAM. Dr. Zeisel then subtracted the seven percent figure from the forty-five percent figure to control for the likelihood of misidentifieation that could reasonably be considered a result of PAM’s status as market leader. The result was a net misidentifi-cation of thirty-eight percent attributable to the similarities between Pan-Lite and PAM. Dr. Zeisel also submitted by affidavit that it was his expert opinion that the similarities between the names PAM and Pan-Lite caused consumers to misidentify the Pan-Lite product as a PAM brand cooking spray. R.106, Attach, at 4, Zeisel Aff. In addition to the survey evidence compiled by Dr. Zeisel, American submitted to the district court an article in the April 19, 1990 Chicago Tribune stating:\nIn a red and yellow aerosol can, Pan Lite looks and acts like PAM, a close cousin that shares grocery space.\nR.102, Attach. A. American submits that this article further evidences a likelihood of consumer confusion between the two products.\nIn response, Stuart Hale argues that American offered no material, probative evidence that could establish a likelihood of consumer confusion between PAM and Pan-Lite. In fact, submits Stuart Hale, the real motivation behind American’s lawsuit is that it is considering marketing plans for a “light” version of PAM, for which it has yet to seek trademark protection. Appellee’s Br. at 2-3. Additionally, Stuart Hale filed a Rule 37 motion for attorney fees on the ground that American had deliberately frustrated the discovery process and should be sanctioned.\nII\nPROCEDURAL HISTORY\nAmerican’s motion for preliminary injunction and Stuart Hale’s motion for summary judgment were referred to a United States magistrate judge for an evidentiary hearing and a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B) (1988). Subsequently, the district court reviewed the magistrate’s report de novo and found it to be “thorough, accurate, and the decision proper.” R.122, Order at 1. Consequently, the district court adopted verbatim the recommendations of the magistrate judge and entered summary judgment for Stuart Hale. The district court applied the seven-factor “likelihood of confusion” test now common in this circuit. With respect to several of these factors, there was no dispute between the parties. As the district court noted, the products are indisputably direct competitors and are similarly advertised in the same market. The strength of the PAM mark was also uncon-tradicted. However, the court specifically rejected American’s theories on four of the likelihood of confusion factors.\nThe district court first considered the degree of similarity between the marks in appearance and suggestion. With respect to suggestion, the court determined that PAM was a completely fanciful mark, while Pan-Lite has a functional suggestion. Similarly, the court found that “Lljittle homogeneity exists in the products’ visual appearance.” Rep. and Rec. at 7. The court also rejected American’s argument that the fact that Pan-Lite’s dominant term “pan” sounds and appears like “PAM,” coupled with consumer expectation concerning “light” products, causes a likelihood of source confusion. The court emphasized the fact that American does not currently market a light version of PAM and has no trademark rights to a PAM “light” or “lite.” Accordingly, concluded the district court, American’s proposition is “nothing more than mere conjecture.” Id. at 8.\nThe district court also rejected American’s argument that consumers exercise little care in distinguishing between low-cost grocery items, concluding:\n[W]ith the prodigious advertising campaigns conducted by corporate America, consumers can not help but to be well aware of new and old products_ [G]iv-en that all grocery items are relatively inexpensive and sold in a multitude of brands, at the very least, some amount of careful discrimination must be exercised by consumers, if only in an effort to find them favorite brands.\nId. at 9.\nOn the issue of actual confusion, the district court found that American had submitted no probative evidence. Specifically, the court rejected American’s consumer survey proffer that thirty-eight percent of the persons who were shown pictures of Pan-Lite believed it to be PAM, on the grounds that it was “not fairly prepared and, therefore, does not accurately gauge actual confusion among consumers.” Id. at 12. Specifically, the court stated:\n[T]he survey’s major faffing is that it does not gather data of actual confusion based upon a showing of PAM and Pan-Lite as found in the marketplace — shelved together. A proper and fair analysis would more accurately simulate consumer perception by showing the products one next to the other, or amongst a group of cooking spray brands. American’s survey does not achieve proper marketplace reality.\nId. at 13.\nThe district court also rejected American’s contention that a triable issue of fact existed as to whether Stuart Hale intended to palm-off Pan-Lite as related to the successful PAM product. The court noted that the name Pan-Lite had been in existence five years prior to American’s PAM mark and that the Pan-Lite name describes the product’s function. The court disposed of the purported significance of the recent entry of Pan-Lite into the retail market as “tenuous support for the proposition that Stuart Hale intended to palm-off.” Id. at 14.\nThe district court also summarily rejected American’s state law claims because of the “absence of similarity between the marks.” Id. at 16. Finally, without separate analysis of the merits, the district court denied American’s motion for a preliminary injunction on the ground that it was moot.\nIll\nANALYSIS\nWe review a district court’s grant of summary judgment de novo, taking all inferences in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Anderson v. Stauffer Chem. Co., 965 F.2d 397, 400 (7th Cir.1992). Accordingly, if there is any genuine material issue of fact, we must remand. See Fed.R.Civ.P. 56.\nA. Federal Trademark Infringement Claim\nThe linchpin of both common law and federal statutory trademark infringement claims is whether consumers in the relevant market confuse the alleged infringer’s mark with the complainant’s mark. J. Thomas MoCarthy, Trademarks and Unfair Competition § 23:1, at 42-44 (2d ed. 1984). We evaluate the likelihood of confusion in trademark infringement claims by analysis of the following seven factors:\n(1) similarity between the marks in appearance and suggestion;\n(2) similarity of the products;\n(3) area and manner of concurrent use;\n(4) degree of care likely to be exercised by consumers;\n(5) strength of complainant’s mark;\n(6) actual confusion; and,\n(7) intent of defendant “to palm-off his product as that of another.”\nForum Corp. of North Am. v. Forum Ltd., 903 F.2d 434, 439 (7th Cir.1990).\nIn addressing the district court’s application of this test, American initially asserts that we must reverse unless Stuart Hale, as moving party in this motion for summary judgment, established that there were no material issues of fact on any of the seven elements of the “likelihood of confusion” test. Indeed, submits American, Stuart Hale only attempted to adduce evidence on four of these factors and therefore failed to meet its burden of proof. We cannot accept this argument. Stuart Hale actually conceded that the three factors it did not address favored American in the balance. There was no genuine dispute as to those factors. The district court’s ruling simply found that those three factors alone would not be sufficient for a reasonable factfinder to hold Stuart Hale liable. This conclusion was not legal error. None of the seven confusion factors alone is dispositive in a likelihood of confusion analysis:\n[T]he plaintiff need not prove each and every factor in order to prevail. However, the converse is also true; neither is it required that the defendant refute each and every factor. The weight and totality of the most important factors in each case will ultimately be determinative of the likelihood of confusion, not whether the majority of the factors tilt the scale in favor of one side or the other.\nSchwinn Bicycle Co. v. Ross Bicycles, Inc., 870 F.2d 1176, 1187 (7th Cir.1989).\nAlternatively, American argues that the district court impermissibly weighed and balanced the evidence, instead of taking all evidence presented in the light most favorable to American as the nonmovant. Summary judgment, submits American, should have been precluded because material issues of fact are in dispute. This submission requires extensive attention.\n“We have stated a number of times that the trial court’s ultimate conclusion on the likelihood of confusion is a finding of fact.” Forum Corp., 903 F.2d at 438. Accordingly, a motion for summary judgment in trademark infringement cases must be approached with great caution. Here, at the summary judgment phase, the parties disputed four of the seven factors in the likelihood of confusion analysis. Specifically, the parties disputed (1) the degree of care likely to be used by consumers, (2) the similarity between the marks in appearance and suggestion, (3) the probability of actual confusion, and (4) the intent of Stuart Hale to palm-off Pan-Lite as a PAM product. The only question now before us is whether the differences between the parties with respect to any of these factors create a genuine material issue of triable fact as to the likelihood of confusion. We shall examine these factors in turn.\n1. Degree of care likely to be used by consumers\nAmerican argues that the district court improperly concluded, on this record, that consumers exercise a high degree of care in purchasing cooking spray. We believe that the district court’s conclusion in this regard must be evaluated with some skepticism, especially at this summary judgment' stage. Indeed, American attempted to introduce evidence in the form of surveys to suggest that consumers exercise very little care in purchasing low-cost grocery items. This submission is relevant to the likelihood of confusion because presumably consumers take less time purchasing low-cost items, and haste increases the possibility of confusion. This court also has observed that\nwhere the product involved [is] a low value item, the risk of confusion is greater “because purchasers are unlikely to complain when dissatisfied, which would bring to light confusion; but rather they are likely simply to avoid all products produced by the company which they believe produced the product which caused the trouble.”\nMaxim’s Ltd. v. Badonsky, 772 F.2d 388, 393 (7th Cir.1985) (quoting Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366, 383 (7th Cir.), cert. denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976)).\nIt may be possible for Stuart Hale to establish that the “prodigious advertising campaigns” of corporate America have resulted in consumers’ exercising great care in the selection of their favorite brand of cooking spray. However, at this point, American has properly raised a genuine dispute by producing survey evidence tending to show that such care was not used. Accordingly, it was error for the district court to determine, as a matter of law, that consumers exercise some amount of care in choosing a cooking spray.\n2. Similarity between the marks in appearance and suggestion\nThe district court concluded that “the products differ in visual appearance” and that, with respect to suggestion, the “marks are clearly different.” Rep. and Rec. at 5. Specifically, the court noted: “In contrast to PAM, the Pan-Lite product has its name cursively written in white; the can’s body is virtually all red against a thin yellow plaid outline,[] its cap is white; and a caricature of a chef, also in white, adorns the cap.” Id. at 7. American invites our attention to several similarities in the two products’ appearance, including the common yellow and red color scheme, the similar depiction of eggs in a frying pan, and similar representations that the products have “no cholesterol” and are “all natural” and “sodium free.” Additionally, American emphasizes the phonic and visual similarity between the mark “PAM” and the dominant word “Pan” in the Pan-Lite name. Stuart Hale counters that the terms “Pan” and “Lite” and the depiction of a frying pan containing eggs are descriptive of the function of cooking sprays generally. Further, contends Stuart Hale, American has overplayed the similarity between the mark “PAM” and the prefix “Pan” because marks should be considered as a unit and not dissected into individual elements.\nSimilar arguments were presented to this court in Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423 (7th Cir.1985), cert. denied, 475 U.S. 1147, 106 S.Ct. 1801, 90 L.Ed.2d 346 (1986), a case involving two competitors in the bedding industry. On appeal, this court held that the factfinder was entitled to conclude that, although the elements of the mark were descriptive if taken in isolation, as a unit the mark was not merely descriptive:\nThe words and pictures surely are “descriptive” if taken one at a time. But that is not the right way to take them. The eye sees the combination of words, typeface, and goose as a unit.... The district court therefore must consider each mark as a unit.\nId. at 1430. See also Computer Care v. Serv. Sys. Enters., Inc., 982 F.2d 1063, 1069 (7th Cir.1992) (“Where the plaintiffs overall trade dress is distinctive, the fact that it uses descriptive (or generic) elements does not render it nonprotectable.”); Roulo v. Russ Berrie & Co., 886 F.2d 931, 936 (7th Cir.1989), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990) (same). In the present ease, we do not believe that an argument that the combination of the Pan-Lite name and packaging is confusingly similar to that of PAM should have been foreclosed as a matter of law.\nAmerican also submits that the name “Pan-Lite” creates a likelihood of source confusion because it may be considered a “light” version of the PAM product line. The district court rejected this argument on the ground that it was “mere conjecture.” Rep. and Rec. at 8. We believe that this conclusion is premature. American’s claim is not that it has some form of preemptive right to the potential trademark “PAM-Lite.” Rather, it simply argues that there is a likelihood of confusion as to the source of the product. “The ‘keystone’ of trademark infringement is ‘likelihood of confusion’ as to source, affiliation, connection or sponsorship of goods or services among the relevant class of customers and potential customers.” Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 957 (7th Cir.1992) (quoting 2 McCarthy § 23:1 at 42-43, 46-47); see also International Kennel Club, 846 F.2d at 1089 (fact that “parties’ products are the kind the public might very well attribute to the same source ... provides additional evidence of a likelihood of confusion”). American has raised a genuine issue of triable fact as to whether consumers are likely to mistakenly believe that there is an association or sponsorship connection between PAM and Pan-Lite.\n3. Evidence of actual confusion\nAmerican argues that the district court erred in excluding the Zeisel survey results, its principal evidence of actual confusion. The court stated that the survey’s “major failing is that it does not gather data of actual confusion.” Rep. and Rec. at 13. Yet, this circuit has repeatedly stated that actual confusion need not be demonstrated; the test is likelihood of confusion and actual confusion is only one element of the test. Computer Care, 982 F.2d at 1070; McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1172-73 (7th Cir.1986) (district court erred in rejecting survey evidence using photo comparisons to demonstrate thirty-five percent consumer confusion, method of testing went to weight not admissibility of evidence). Indeed, recently, in Sands, 978 F.2d at 960, this court held that the district court erred in rejecting survey results similar to those in the present case. In Sands, the survey purported to establish that twenty-four percent of those shown the label from the defendant’s product believed the product to be the plaintiffs. The court noted that the survey was “precisely the sort of study ... held to be the correct methodology for assessing consumer confusion.” Id. In McGraw-Edison, we also- reversed the district court’s rejection of survey evidence offered to show actual confusion. Specifically, we concluded that “the district court’s concern regarding the manner of presentation to the interviewee goes to weight to be accorded to the survey results rather than providing a reason to ignore the survey altogether.” 787 F.2d at 1171-73. Similarly, in the present case, we believe that the district court was premature in rejecting the survey evidence proffered by American. While there will be occasions when the proffered survey is so flawed as to be completely unhelpful to the trier of fact and therefore inadmissible, see Delavan, 975 F.2d at 394, such situations will be rare and the present case is not among them. We believe that any shortcomings in the survey results go to the proper weight of the survey and should be evaluated by the trier of fact.\nAmerican also asserts that the district court committed reversible error by concluding that the marks were dissimilar based upon its own side-by-side comparison. Although side-by-side comparison may be marginally helpful at times, see Computer Care, 982 F.2d at 1070; Roulo, 886 F.2d at 937, it must be remembered always that the ultimate focus is on “the purchasing public’s state of mind when confronted by somewhat similar trademarks singly presented.” International Kennel Club, 846 F.2d at 1088 (quoting James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 275 (7th Cir.1976)).\n4. Stuart Hale’s intent to palm-off the PAM mark\nAmerican challenges the district court’s conclusion that Stuart Hale did not intend to palm-off Pan-Lite as PAM because it had been using the Pan-Lite name five years prior to American’s registration of the PAM mark. Stuart Hale’s president also asserted that he did not intend to benefit from PAM’s market popularity. However, American correctly notes that the district court cannot weigh credibility issues at the summary judgment stage. Wilson v. Williams, 997 F.2d 348, 350 (7th Cir.1993) (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14). We believe that American did raise a genuine issue of triable fact.\nB.State Law Claims\nAmerican argues that the district court erred in dismissing its state law unfair competition and dilution claims based upon analysis of the federal trademark infringement claim. The state unfair competition claim is analyzed under the likelihood of confusion standard and thus mirrors our infringement analysis. See McGraw-Edison, 181 F.2d 1163. Accordingly, we shall not repeat that analysis here.\nUnder Illinois law, dilution is not dependent upon the likelihood of confusion but on a separate likelihood of dilution inquiry. See Ringling Bros. Bamum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 482 (7th Cir.1988) (The Illinois Anti-Dilution Act “grants protection to trademarks beyond that provided by the classic ‘likelihood of confusion’ test under the Lanham Act.... The additional protection prevents the gradual whittling away of trademarks’ distinctiveness through use by third parties on non-confusing, noncompeting products.”) (citations omitted). Nonetheless, Stuart Hale correctly asserts that, under modern state precedent, the protection of the Illinois Anti-Dilution statute is not available to competitors under Illinois case law. See EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d 375, 380 (7th Cir.1984); see also Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182, 214 (E.D.N.Y.1992) (same; applying Illinois law). Accordingly, the district court was correct in dismissing this claim.\nC. Denial of Preliminary Injunction\nAmerican argues that, if we remand for any reason, we should also hold that the district court erred in not entering a preliminary injunction. In reply, Stuart Hale emphasizes that Pan-Lite controls less than one percent of the relevant market, while PAM dominates the market. Accordingly, submits Stuart-Hale, the balance of hardships that guides a court’s preliminary injunction determination favors denying the motion. American responds that a market leader also has an interest in protecting its reputation as a quality product. Consumers may mistake other brands, which may not be held to the same quality standards, for American products and subsequently avoid purchasing American’s entire product line. This course of conduct could result regardless of the alleged infringer’s market share.\nThe district court never reached the merits of this issue; the court dismissed the preliminary injunction motion as moot after granting summary judgment for Stuart Hale. Consequently, we cannot now review it on appeal; instead, we must remand for the district court to make a fact-based determination. See Schwinn, 870 F.2d at 1176.\nD. Stuart Hale’s Cross-Appeal for Attorney Fees\nOn cross-appeal, Stuart Hale argues that the district court erred in failing to award it attorney fees because American “systematically obstructed [its] discovery to conceal [American’s] real motive behind [the] action, ... to market a new product, PAM-Lite, into a market [without] Pan-Lite.” Appellee’s Br. at 2-3.\nGenerally, we review a district court’s refusal to impose Rule 37 sanctions only for an abuse of discretion. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); Shine v. Owens-Illinois, Inc., 979 F.2d 93, 96 (7th Cir.1992). However, the denial of sanctions with no explanation may constitute an abuse of discretion. Wojan v. General Motors Corp., 851 F.2d 969, 974 (7th Cir.1988); Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1084 (7th Cir.1987) (If the reasons for denying a motion for sanctions are clear on the record “the judge need not belabor the obvious[;] ... [Otherwise, the parties] and this court are entitled to explanations.”). The district court noted:\n[T]he federal rules place the burden on the litigants to vigorously pursue appropriate motions to ensure that justice is served. In the instant case, if StuarMIale was dissatisfied with the actions of any party or the court, it had at its disposal an arsenal of weapons, including Rule 37, and Local Rule 12(k), to alter the course of the litigation. Stuart-Hale, the proponent of the motion, failed to do so effectively and will not now be heard to complain of the magistrate judge’s failure to rule.\nR.122, Order at 2 (emphasis added). A failure to pursue a Rule 37 motion more “vigorously” might well justify a district court’s decision not to award sanctions despite the merits of the motion and, as we have noted, such a decision is reviewed in this court under a deferential standard of review. However, deferential review does not mean no review at all. Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 936 (7th Cir.1989) (en banc) (citing In re Ronco, Inc., 838 F.2d 212, 217-18 (7th Cir.1988)). Here, the district court’s explanation is so concluso-ry that we cannot review the substance of its decision. Accordingly, its judgment shall be vacated and, on remand, the parties may again address the matter and obtain a more plenary explanation from the district court.\nWe must address one more issue. Because this case comes to us on summary judgment, a remand to the district court does not automatically invoke the provisions of Circuit Rule 36 that require reassignment for further proceedings in the district court. Here, however, we believe that it would be most compatible with the rationale underlying Rule 36 to require that the case be reassigned. As our discussion indicates, we believe that the district court did not limit itself to a determination of whether there was a genuine issue of fact requiring trial, but rather proceeded to evaluate the evidence as if the proceeding were a trial on the merits. Under the circumstances presented by this case, further proceedings ought to be conducted before a judicial officer not involved in the earlier proceedings.\nFinally, we emphasize that our analysis has been limited to whether it was appropriate to grant summary judgment for the ap-pellees. We stress emphatically that we intimate no opinion with respect to the merits of the dispute.\nConclusion\nFor the foregoing reasons, the judgment of the district court is affirmed with respect to the dismissal of the count under the Illinois Anti-Dilution Statute. It is vacated insofar as it denies the appellee’s motion for sanctions; it is reversed and remanded insofar as it granted summary judgment to the appel-lee. Circuit Rule 36 shall apply. The appellant may recover its costs in the appeal; no costs are awarded on the cross-appeal.\nIt Is So Ordered.\n. Stuart Hale brought a counterclaim seeking a judicial declaration that the name Pan-Lite does not infringe upon American’s registered trademark, PAM. In response, American filed a motion to strike Stuart Hale's counterclaim. This motion has not yet been resolved; however, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the district court determined that there was no reason to delay appeal of the summary judgment order.\n. More precisely, the survey showed that 47% of the participants shown the initial Pan-Lite packaging and 44% of those shown a newer version of the Pan-Lite packaging believed that the product was PAM. Dr. Zeisel averaged these results and obtained a 45% rate of confusion in the first survey.\n. Because the district court adopted the magistrate judge's conclusions without writing a decision that independently addressed the merits of the dispute, the decision to which we refer was, in the first instance, that of the magistrate judge. However, because it is the district court opinion that we are reviewing, we shall refer only to the district court to avoid confusion.\n. These factors are set forth in Forum Corp. of North America v. Forum, Ltd., 903 F.2d 434, 439 (7th Cir.1990), and arc discussed extensively in the analysis section of this opinion.\n.The court gave great weight to the deposition testimony of the president of Stuart Hale, who testified that the name suggested the case with which food could be removed from a pan treated with the product as well as the relatively small amount of the product needed to effect the desired result.\n. The district court and both parties have addressed the color scheme, print type, graphics, product size, and over-all packaging of the two cooking sprays. In this respect the claim resembles trade dress infringement. We have noted that trademark and trade dress protection both have the same purpose. Roulo v. Russ Berrie & Co., 886 F.2d 931, 935-36 (7th Cir.1989), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990).\n. Schwinn was not a summary judgment case; however, it is instructive on the general application of the likelihood of confusion analysis. See Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 390 (7th Cir.1992) (upholding summary judgment for defendant in trademark infringement case where defendant conceded goods were similar and shared with plaintiff essentially the same channels of trade and consumers); see also International Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1087 (7th Cir.1988) (none of the seven factors alone is dispositive and their appropriate weight will vary from case to case); McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1167 (7th Cir.1986) (\"[Different factors will weigh more heavily from case to case depending upon the particular facts and circumstances involved.”).\n. Both PAM and Pan-Lite \"are relatively inexpensive items ... [that] generally cost under $3.00 at retail.” R.65, Donnelly Aff. at ¶ 19.\n. See Rep. and Rec. at 9.\n. We note that the district court's visual comparison was based upon Stuart Hale’s initial packaging scheme which has been subsequently altered. The current packaging does not contain the yellow plaid outline and more closely resembles the PAM packaging. See R.65, Ex. SS at 4 and Ex. HH at 4.\n. American also asserts that the article describing Pan-Lite as looking and acting like PAM is evidence of actual confusion. While this article would certainly appear to have limited probative value in light of the fact that it appeared after this litigation was instigated, we cannot conclude, as did the district court, that the article was \"unpersuasive” as a matter of law. R.102, Pl.Ex. A.\n. The parties do not appear to dispute on appeal that the state law unfair competition claim turns upon the same analysis as the \"likelihood of confusion” analysis applied to federal law claims under the Lanham Act. Appellant’s Br. at 37; Appellee's Br. at 28.\n. American invites our attention to McDonald's Corp. v. Gunvill, 441 F.Supp. 71, 75 (N.D.Ill.1977), aff'd, 622 F.2d 592 (7th Cir.1980), and John Morrell & Co. v. Reliable Packing Co., 172 F.Supp. 276 (N.D.Ill.1959), rev’d on other grounds. 295 F.2d 314 (7th Cir.1961) as support for its contention that the Illinois Anti-Dilution Act may be applied between direct competitors. We note only that these cases both antedate EZ Loader Boat Trailers, Inc. and are against the clear weight of current Illinois authority. Accordingly, they are not controlling on American's standing to bring this claim.\n.The traditional preliminary injunction test used by this court requires: 1) no adequate remedy at law, 2) irreparable harm, 3) the harm to the movant if not granted outweighs the harm to the nonmovant if granted, and 4) consideration of the public interest. Schwinn, 870 F.2d at 1181.\n[END_CASE]", "role": "user" } ]
10,513,032	BADGER PHARMACAL, INC., d/b/a Wisconsin Pharmacal Company, Inc., Plaintiff-Appellant, v. COLGATE-PALMOLIVE COMPANY and SoftSoap Enterprises, Inc., Defendants-Appellees	Badger Pharmacal, Inc. v. Colgate-Palmolive Co.	1993-08-06	No. 92-2810	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge."], "parties": ["BADGER PHARMACAL, INC., d/b/a Wisconsin Pharmacal Company, Inc., Plaintiff-Appellant, v. COLGATE-PALMOLIVE COMPANY and SoftSoap Enterprises, Inc., Defendants-Appellees."], "opinions": [{"text": "KANNE, Circuit Judge.\nWisconsin Pharmacal Company (WPC) sued Colgate-Palmolive Company (Colgate) and its wholly owned subsidiary, SoftSoap Enterprises (SoftSoap), for breach of contract, claiming the defendants had failed to use their best efforts under an exclusive marketing agreement between the parties. Two other claims solely against Colgate alleged negligent and strict responsibility misrepresentation, also involving the marketing agreement.\nAfter the district court dismissed the misrepresentation counts against Colgate, WPC filed an amended complaint adding a second breach of contract claim, this one charging that both defendants had improperly terminated the agreement. Colgate and SoftSoap moved for summary judgment on both counts; WPC moved for summary judgment on the termination issue. The district court granted the defendants’ motion. On consideration of the merits, we agree that the plaintiff has failed to state viable claims for negligent and strict responsibility misrepresentation against Colgate, but find that Colgate and SoftSoap did not fulfill their obligations to WPC when they defaulted in their performance of the agreement.\nI.\nWPC, a Wisconsin corporation, is the inventor of “Disposer Care,” a cleaning powder for kitchen sink garbage disposers. In 1986, WPC entered into an exclusive marketing agreement with SGM Group, Inc. (SGM), under which SGM would market and sell Disposer Care. According to the agreement drafted by WPC, SGM agreed to purchase all of its requirements of Disposer Care from WPC, and to “utilize its very best efforts to advertise and promote” the product. WPC earned money under the agreement both from sales to SGM and from patent royalties. Royalties were based on net sales and paid to WPC annually. The payments were to continue until SGM had paid “an aggregate of $5 million,” after which SGM’s obligation to pay royalties, but not its obligation to continue marketing and distributing WPC’s product, would end (unless SGM opted to purchase all right, title, and interest in Disposer Care under a purchase option provision in the marketing agreement).\nOne provision of the agreement guaranteed payment of minimum royalties to WPC. Section 2(b)(ii) provides, in relevant part:\nSGM shall pay to WPC, and Twin Oak Products, Inc. guarantees such payment, of $1.5 million in royalties regardless of whether it continues to sell Product or utilize the Trademark unless SGM is prohibited from selling the Product. The unpaid portion of such guaranteed minimum royalties shall become immediately due and payable in the event of a default by SGM hereunder or termination of this\nAgreement.\nBy its terms, the marketing agreement would end upon the earlier of: (1) the patent’s expiration, (2) consummation of the aforementioned purchase option, whereby SGM would purchase Disposer Care from WPC for $5 million, less the amount of royalties previously paid, or (3) termination of the agreement under § 7. Section 7(a)(i) and (ii) provides that, in the event of a material breach or default in the performance of the agreement by either WPC or SGM, the non-breaching party “may terminate” the agreement upon notice to the breaching party, subject to that party’s right to remedy the breach or default within sixty days.\nIn December 1987, with WPC’s consent, SGM assigned its rights and obligations under the marketing agreement to Colgate, a Delaware corporation. Pursuant to the assignment, WPC, Colgate, and SGM signed a consent agreement, titled “WPC Consent to Assignment,” which contains a provision modifying the term of the marketing agreement by adding another termination event. According to § 4(c) of the consent to assignment, the term of the marketing agreement would “expire upon payment to WPC by [SGM] and [Colgate] of aggregate royalties payable under the Agreement in addition to the other circumstances referred to in the definition of the ‘Term’ in § 2(b)(iv) of the Agreement.” Section 2(b)(iv) is the option purchase provision, and the parties agree that “aggregate royalties” are $5 million. On January 18, 1988, Colgate entered into a distributorship agreement with its wholly owned subsidiary, SoftSoap Enterprises, a Minnesota Corporation, whereby SoftSoap assumed Colgate’s obligations under the marketing agreement.\nWPC filed suit against Colgate and Soft-Soap on January 24, 1991, alleging that both defendants had breached the marketing agreement by failing to use their best efforts to market and distribute Disposer Care (count I), and that Colgate had misrepresented its marketing plan to WPC and was liable under either a negligence (count II) or strict responsibility theory (count III). Colgate and SoftSoap answered the complaint, and Colgate moved to dismiss the misrepresentation counts for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). By order dated August 12, 1991, the district court granted the motion. Soft-Soap continued to market and distribute Disposer Care for the remainder of 1991. On December 11, when WPC had received just over $1.5 million in royalty payments under the agreement, SoftSoap gave WPC written notice of its intention to stop marketing Disposer Care as of December 31. On that date, SoftSoap ceased performance under the agreement and returned the product to WPC.\nBased on SoftSoap’s actions, WPC sought and was granted leave to file an amended complaint. WPC deleted the misrepresentation counts and replaced them with a second breach of contract claim. This new count II alleged that Colgate and SoftSoap had terminated the marketing agreement by refusing to market and distribute Disposer Care before WPC had received $5 million in royalties. The defendants answered the amended complaint and moved for summary judgment on both the breach of contract/best efforts and breach of contract/termination counts, arguing that they had fulfilled their obligations to WPC under the agreement by insuring that WPC had been paid $1.5 million in royalties. In March 1992, WPC filed a cross-motion for summary judgment on the breach of contract/termination claim. On July 27, the district granted the defendants’ motion; final judgment dismissing WPC’s complaint was entered the same day.\nII.\nWe turn first to our jurisdiction. Federal Rule of Appellate Procedure 3(c) provides:\nThe notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.... An appeal shall not be dismissed for informality of form or title of the notice of appeal.\nColgate and SoftSoap point out that WPC’s notice of appeal mentions only the district court’s order dated July 27, 1992, without mentioning the August 12, 1991 order that dismissed WPC’s misrepresentation claims. The defendants argue that WPC’s notice of appeal is defective and, as a result, this court lacks subject matter jurisdiction to review the August 12 order. They rely on Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), and certain of our decisions that have followed Torres. See Leahy v. Board of Trustees of Community College, 912 F.2d 917 (7th Cir.1990); Brandt v. Schal Associates, Inc., 854 F.2d 948 (7th Cir.1988).\nWe adhere to the general principle that the rules of procedure, including Federal Rule of Appellate Procedure 3, will be liberally construed. Smith v. Barry, — U.S. -, -, 112 S.Ct. 678, 681, 116 L.Ed.2d 678 (1992); Torres, 487 U.S. at 317, 108 S.Ct. at 2409; Leahy, 912 F.2d at 923. “Thus, if a litigant files papers in a fashion that is technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.” Torres, 487 U.S. at 316-17, 108 S.Ct. at 2408-09. We bear in mind, however, that “Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a prerequisite to appellate review”; thus noncompliance with the rule is fatal to an appeal. Smith, — U.S. at -, 112 S.Ct. at 682.\nTorres held that, under Rule 3’s provisions, an appellant’s inadvertent failure to include his own name on a notice of appeal deprives the court of jurisdiction over the appeal. 487 U.S. at 317, 108 S.Ct. at 2409. That case bears some resemblance to the case at hand, but we find that Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), is a better match. In Foman, the appellant failed to specify the precise judgment of the district court being appealed, designating in his notice of appeal an order denying the motion to amend the judgment rather than the judgment itself. The Court found that the defect could be overlooked so long as the faulty notice “did not mislead or prejudice” the appellee. Id. at 181, 83 S.Ct. at 229. Because the appellant’s “intention to seek review of [the final judgment] ... was manifest,” the Court concluded that the technicality could be disregarded. Id.\nAs we have previously recognized, Foman is still good law after Torres:\nAlthough [Torres] construed Foman as finding that the particular notice of appeal complied with the rules, not as excusing noncompliance, see [487 U.S. at 315] 108 S.Ct. [at] 2408, the two come to the same thing when dealing with the [judgment-designation] clause of Rule 3(c). Moreover, because there may be one or many appellees, but only one final judgment per ease, it makes sense to treat the first two clauses of the Rule differently.... Because the single final judgment incorporates earlier interlocutory decisions, any notice of appeal necessarily brings up the case in a way a notice of appeal need not present all parties.\nChaka v. Lane, 894 F.2d 923, 924-25 (7th Cir.1990).\nAccordingly, we have followed the reasoning of Foman on numerous occasions, Cook v. Navistar International Transportation Corp., 940 F.2d 207, 211 (7th Cir.1991); Chaka, 894 F.2d at 924-25; Cardoza v. CFTC, 768 F.2d 1542, 1546 (7th Cir.1985), none of which Colgate and SoftSoap cite. In Cardo-za, we held that “an error designating the judgment or a part thereof will not result in a loss of appeal if the intent to appeal from the judgment complained of may be inferred from the notice and if the appellee has not been misled by the defect.” 768 F.2d at 1546.\nWe find that WPC’s intent to appeal from the August 12 order may be inferred from its notice of appeal and, consequently, that the notice was “the functional equivalent of what the rule requires” under Torres, 487 U.S. at 317, 108 S.Ct. at 2409. After the August 12 order dismissing the misrepresentation claims, WPC amended its complaint to eliminate those claims, replacing them with the breach of eontract/termination claim. By amending the complaint, WPC did not waive any challenge to the district court’s dismissal of the misrepresentation claims for “[i]f a district court’s dismissal leaves a plaintiff free to file an amended complaint, the dismissal is not considered a final appealable order.” Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir.1987). See also Bastían v. Petren Resources Corp., 892 F.2d 680, 682 (7th Cir.), cert. denied, 496 U.S. 906, 110 S.Ct. 2590, 110 L.Ed.2d 270 (1990); Hatch v. Lane, 854 F.2d 981, 982 (7th Cir.1988) (per curiam). Moreover, despite the amendment, the factual allegations on which those claims were based remained in the complaint.\nWPC’s notice of appeal, while not referencing the August 1991 order, did state that appeal was being taken from the July-1992 order “granting defendants judgment dismissing plaintiffs complaint.” Ordinarily, an appeal from a final judgment brings up for review all previous orders entered in the case. Asset Allocation & Management Co. v. Western Employers Insurance Co., 892 F.2d 566, 569 (7th Cir.1989); United States v. Patel, 835 F.2d 708, 710 (7th Cir.1987). We conclude that, by appealing the order resulting in dismissal of the complaint and final judgment for the defendants, WPC sufficiently demonstrated its intention to appeal all orders previously issued by the district court.\nRule 3(c) is broad enough to permit “an effective, although inept, attempt to appeal from the judgment sought to be” reversed. Foman, 371 U.S. at 181, 83 S.Ct. at 229. This is especially true where WPC was not free to appeal the dismissal of its misrepresentation claims before final judgment was entered on the contract claims. More important, though, Colgate and SoftSoap do not, and cannot, argue that they were prejudiced by the defect in WPC’s notice of appeal. The defendants fully briefed and argued the merits of the August 1991 order; there is no hint of unfair surprise. See Foman, 371 U.S. at 181, 83 S.Ct. at 229-30; Cook, 940 F.2d at 211; Management Computer Services, Inc. v. Hawkins, Ash, Baptie & Co., 883 F.2d 48, 49 n. 1 (7th Cir.1989); Duran v. Elrod, 713 F.2d 292, 295 (7th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1615, 80 L.Ed.2d 143 (1984); Gooding v. Warner-Lambert Co., 744 F.2d 354, 357 n. 4 (3d Cir.1984). WPC’s notice of appeal effectively brings up both the August 1991 and July 1992 orders of the district court.\nIII.\nTurning to the August 1991 order, WPC argues that the district court erred in dismissing its negligent and strict responsibility misrepresentation claims. Before the district court, and in its brief to this court, WPC asserted that its “misrepresentation claims are straightforward examples of fraud in the inducement. Colgate misrepresented that it would launch a national advertising and marketing campaign and use its substantial financial resources and experience if Wisconsin Pharmacal consented” to the assignment of obligations from SGM to Colgate. According to WPC, no national campaign ever materialized; instead, soon after the assignment, Colgate turned the Disposer Care marketing program over to its underfinanced subsidiary, SoftSoap. WPC concludes from this that Colgate, at the time of the assignment, had no .intention of following through on the representations it made to WPC.\nWe review de novo the district court’s decision to dismiss the misrepresentation portions of WPC’s complaint, accepting the truth of all well-pleaded factual allegations and drawing all reasonable inferences in WPC’s favor. Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992). The district court determined that Wisconsin law applied to this case. The parties have briefed, and we will apply, the substantive law of that state. In so doing, we conclude that dismissal was proper.\nFirst, WPC’s choice of the phrase “fraud in the inducement” is misleading. Fraud requires an intentional misrepresentation; WPC’s original complaint pleaded only negligent and strict responsibility misrepresentation. Nevertheless, we agree with the district court’s conclusion that even under these theories WPC has failed to state a viable claim under Wisconsin law.\nTo state a claim for negligent misrepresentation, a party must establish five elements:\n(1) There must be a duty of care or a voluntary assumption of a duty; (2) The representation must be of a fact and made by the defendant; (3) The representation of fact must be untrue; (4) The plaintiff must believe such representation to be true and rely thereon to his damage; and (5) The defendant must have failed to exercise ordinary care in making the misrepresentation or in ascertaining the facts.\nSchweiger v. Loewi & Co., Inc., 65 Wis.2d 56, 221 N.W.2d 882, 887 (1974). See also Ollerman v. O’Rourke Co., Inc., 94 Wis.2d 17, 288 N.W.2d 95, 109 (1980); Whipp v. Iverson, 43 Wis.2d 166, 168 N.W.2d 201, 203-04 (1969).\nIn Wisconsin, strict responsibility for misrepresentation applies in situations where public opinion calls for placing the loss on the innocent defendant rather than on the innocent plaintiff. Gauerke v. Rozga, 112 Wis.2d 271, 332 N.W.2d 804, 808-09 (1983) (quoting Law Notes for Trial Judges in Wis. Jury Instructions — No. 2400, Misrepresentation: Bases for Liability and Damages). A claim under this theory has elements (2), (3), and (4) in common with negligent misrepresentation, but also requires that the misrepresentation be made on the defendant’s personal knowledge or under circumstances in which he necessarily ought to have known the truth or untruth of the statement, and that the defendant have an economic interest in the transaction. Whipp, 168 N.W.2d at 203.\nWe agree with the district court that Wisconsin courts would not recognize a claim for negligent misrepresentation in this case. When two corporations, with the benefit of counsel, negotiate a commercial transaction at arms length, neither owes nor assumes a duty to disclose information to the other. Cf. Kanack v. Kremski, 96 Wis.2d 426, 291 N.W.2d 864, 866-68 (1980); Ollerman, 288 N.W.2d at 101; Kamuchey v. Trzesniewski, 8 Wis.2d 94, 98 N.W.2d 403, 405 (1959). The parties were not in a special relationship, and WPC does not claim that Colgate gave false or misleading responses to questions posed by WPC about the marketing agreement. See Kanack, 291 N.W.2d at 867-68. WPC has not persuaded us that, in the context of business dealings between sophisticated parties, Wisconsin law would impose a duty on each not to utter words negligently.\nEven if we were to find that WPC had satisfied the duty element of negligent misrepresentation, its claim under that theory, as well as under a strict responsibility theory, would founder on the requirement that the alleged misrepresentation be one of fact. As WPC concedes, statements of fact ordinarily must relate to present or preexisting facts, not future ones. Hartwig v. Bitter, 29 Wis.2d 653, 139 N.W.2d 644, 646 (1966); Consolidated Papers, Inc. v. Dorr-Oliver, Inc., 153 Wis.2d 589, 451 N.W.2d 456, 459 (Ct.App.1989), rev. denied, 457 N.W.2d 323 (Wis.1990); United States Oil Co. v. Midwest Auto Care Services, Inc., 150 Wis.2d 80, 440 N.W.2d 825, 827 (Ct.App.1989). An unfulfilled promise or statement of future events cannot provide the basis of a misrepresentation claim, Dresser Industries v. Gradall Co., 702 F.Supp. 726, 736 (E.D.Wis.1988) (applying Wisconsin law), aff'd, 965 F.2d 1442 (7th Cir.1992); expressions of judgment relating to quality are opinions that are likewise not actionable. Consolidated Papers, 451 N.W.2d at 459.\nNothing said by Colgate during its negotiations with WPC constituted a preexisting or present fact; rather, the alleged misrepresentations were promissory in nature, reflecting Colgate’s future intent. In addition, we conclude that any statement by Colgate that its advertising and marketing campaign would be national in scope was a statement of opinion. Because negligent and strict responsibility misrepresentation both require a representation of present or pre-existing fact, see Gauerke v. Rozga, 332 N.W.2d at 807 n. 3; Whipp, 168 N.W.2d at 203; Redo, 426 N.W.2d at 102, and cannot be based on expressions of opinion, WPC’s attempt to state a claim under either theory must fail.\nFinally, we are chary of finding that WPC has stated either a negligent or strict responsibility misrepresentation claim for another, more fundamental, reason. This court recently recognized that\nthere is now substantial evidence that Wisconsin would decline in all circumstances to allow a negligence suit for the recovery of only economic damages, even when there is no contractual relationship between the parties. “An increasing number of jurisdictions hold that tort law provides no remedy in a case in which the plaintiff is seeking to recover for a commercial loss rather than damage to person, property, or reputation.”\nMidwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1300 (7th Cir.1991) (footnote and citations omitted). In Midwest Knitting, a review of our cases construing Wisconsin case law led us to conclude that\nwhatever ambiguity might remain about the existence of a tort cause of action for economic injury alone in the total absence of a contractual relationship, it is clear that Wisconsin would not permit such a cause of action when the parties have a contractual relationship and the injury is based on that relationship.\nId. at 1300-01.\nWe perceive no reason to deviate from this conclusion in the case before us, nor do we believe that Wisconsin courts would do so. WPC’s dispute with Colgate is a commercial one arising from a contractual relationship. “[T]ort law is a superfluous and inapt tool for resolving purely commercial disputes. We have a body of law designed for such disputes. It is called contract law.” Miller v. United States Steel Corp., 902 F.2d 573, 574 (7th Cir.1990). The district court properly dismissed WPC’s claims for negligent and strict responsibility misrepresentation under Fed.R.Civ.P. 12(b)(6).\nIV.\nWe next consider WPC’s breach of contract claims. The district court found that Colgate’s default in performance terminated the marketing agreement but that, according to the unambiguous terms of the agreement, “in the event of a default Colgate was required to pay at least $1.5 million in royalties.” Because Colgate had already paid slightly more than that amount to WPC, the court concluded that Colgate had fulfilled its obligations under the agreement. This ruling necessarily rejected WPC’s cross-motion for summary judgment on the breach of contract/termination claim, and disposed of the breach of contract/best efforts issue inasmuch as any breach resulting from Colgate’s and SoftSoap’s failure to use their best efforts to market and sell Disposer Care would presumably trigger the same provision requiring payment of at least $1.5 million to WPC.\nThe parties agree that the marketing agreement’s provisions are clear and unambiguous, but attach vastly different meanings to the same contractual terms. WPC challenges the district court’s decision, arguing that the court misconstrued the contract by reading into it a limitation on damages that did not exist. On the other hand, of course, Colgate and SoftSoap believe, the district court got it right. They contend that the marketing agreement allows for termination once $1.5 million in royalties has been paid to WPC. They admit they defaulted in their performance and thus terminated the agreement, but insist that any and all damages due have been paid to WPC. We review de novo the district court’s grant of summary judgment for the defendants, viewing the record and all reasonable inferences drawn from it in the light most favorable to WPC. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370 (7th Cir.1992). Under this familiar standard, we conclude that the district court should not have granted summary judgment for the defendants.\nAs the district court recognized, the marketing agreement’s original term was defined by three possible events: expiration of the patent, purchase of the product by Colgate for $5 million less royalties previously paid, or termination under § 7. At the time SGM assigned its obligations under the agreement to Colgate, SGM, WPC, and Colgate entered into the consent to assignment that modified the marketing agreement’s term. The district court found, and the parties agree, that the consent to assignment added a fourth termination event. Under the consent to assignment, the marketing agreement would end upon WPC’s receipt of “aggregate royalties” payable under the agreement. The district court found, and the parties agree, that aggregate royalties are $5 million.\nThe consent to assignment altered the original term of the marketing agreement in an important respect. Prior to the consent to assignment, the agreement provided that royalty payments would continue until WPC received $5 million from SGM. Once the $5 million figure was reached, royalty payments would cease, but, unless SGM purchased Disposer Care, the marketing agreement would otherwise remain in effect. After the consent to assignment, Colgate had no further obligations once $5 million in royalties had been paid to WPC.\nThe district court held that, notwithstanding the consent to assignment, the marketing agreement “also has a provision in Section 2(b)(ii) setting forth a guaranty of the minimum royalties which must be paid under all circumstances.” The court treated this section as a liquidated damages provision; Colgate and SoftSoap ask us to do the same.\nThe construction of a written contract is a question of law. Jones v. Jenkins, 88 Wis.2d 712, 277 N.W.2d 815, 819 (1979); Ford Motor Co. v. Lyons, 137 Wis.2d 397, 405 N.W.2d 354, 379 (Ct.App.1987). In Wisconsin, “[t]he established rule is that the objective in interpreting and construing a contract is to ascertain the true intention of the parties.” Stradinger v. City of Whitewater, 89 Wis.2d 19, 277 N.W.2d 827, 831 (1979). “[T]he purpose of judicial construction is to determine what the parties contracted to do as evidenced by the language they saw fit to use.” State ex rel. Journal/Sentinel v. Pleva, 155 Wis.2d 704, 456 N.W.2d 359, 362 (1990). See also Koenings v. Joseph Schlitz Brewing Co., 126 Wis.2d 349, 377 N.W.2d 593, 602 (1985). Thus, where the terms of a contract are plain and unambiguous, it is our duty to construe the contract as its stands, even though the parties may have placed a different construction on it. Algrem v. Nowlan, 37 Wis.2d 70, 154 N.W.2d 217, 221 (1967); Dykstra v. Arthur G. McKee & Co., 92 Wis.2d 17, 284 N.W.2d 692, 702-03 (Ct.App.1979), aff'd, 100 Wis.2d 120, 301 N.W.2d 201 (1981).\nSection 2(b)(ii), the provision of the marketing agreement relied upon by the district court, provides that Colgate shall pay WPC, and Twin Oak shall guarantee, $1.5 million in royalties “regardless of whether [Colgate] continues to sell Product or utilize the Trademark unless Colgate is prohibited from selling the Product. The unpaid portion of such guaranteed minimum royalties shall become immediately due and payable in the event of a default by [Colgate] hereunder or termination of this Agreement.”\nAccording to WPC, § 2(b)(ii) was drafted as a third-party guarantee clause, intended to secure for WPC both an immediate return on its investment in developing a new product and a portion of expected royalties from sales of that product. Colgate and SoftSoap do not dispute this explanation of the provision; rather, they contend that the provision plainly limits WPC’s damages to $1.5 million in the event of default or termination of the marketing agreement. They are wrong.\nBy its terms, § 2(b)(ii) requires Twin Oak to guarantee Colgate’s payment of “minimum royalties” of $1.5 million to WPC upon Colgate’s default (emphasis added). This section, however, says nothing about the maximum amount of money to which WPC would be entitled, or that Colgate would be required to pay, in the event of Colgate’s breach. It may be, as counsel for Colgate and SoftSoap suggested at oral argument, that a liquidated damages clause need not be denominated as such, but the defendants have presented no evidence, other than the provision itself, either to support their position or to controvert WPC’s claim that § 2(b)(ii) was intended to guarantee payment of the first $1.5 million in royalties by a third party, Twin Oak.\nBecause we interpret contracts according to their unambiguous terms, we must give the adjective “minimum” its plain and ordinary meaning rather than read it out of § 2(b)(ii) altogether. Thus we find not, as Colgate and SoftSoap would have it, that § 2(b)(ii) places an express limitation on WPC’s damages upon default and termination of the marketing agreement, but that this provision unambiguously guarantees WPC at least $1.5 million in such an event. The provision contains no language to the effect that $1.5 million is the full measure of damages available to WPC under the circumstances, and we will not import such a limitation into the agreement.\nThis interpretation of § 2(b)(ii) is consistent with the marketing agreement as a whole, including the terms added by the consent to assignment. Section 2(b)(ii) appears under “Royalties” (itself a subheading under “Grant of License”), rather than under “Termination,” which is covered in § 7. The only provision in § 7 specifically addressing the issue of damages in the event of breach is § 7(d), “Remedies,” which states that “[tjer-mination of this Agreement shall not preclude either party from seeking damages for breach or default under this Agreement.” Interpreting § 2(b)(ii) as the parties’ attempt to predetermine the limit on WPC’s damages in the event of a breach by Colgate and SoftSoap would render § 7(d) largely superfluous.\nIndeed, if § 2(b)(ii) was intended by the parties to settle all questions as to WPC’s damages as the non-breaching party, a subsequent provision reserving WPC’s right to seek damages in the event of default would make little sense. Mindful of the maxim that an agreement must be interpreted as a whole and all parts harmonized as far as possible so that no part is rendered surplusage, Pleva, 456 N.W.2d at 362; Koenings, 377 N.W.2d at 602; Peiffer v. Allstate Insurance Co., 51 Wis.2d 329, 187 N.W.2d 182, 185 (1971); Marion v. Orson’s Camera Centers, Inc., 29 Wis.2d 339, 138 N.W.2d 733, 735 (1966), we conclude that § 2(b)(ii) does not evidence an intent to liquidate, or otherwise set a contractual ceiling on, WPC’s damages.\nFinally, the terms of the consent to assignment belie Colgate’s claim that the amount stipulated in § 2(b)(ii) was intended by the parties as the sole remedy in the event Colgate defaulted on and terminated the agreement. At the time of the assignment from SGM to Colgate, Colgate specifically negotiated to have the marketing agreement end once $5 million in royalties were paid to WPC. A provision to this effect, § 4(c), was included in the consent to assignment drafted by Colgate. If, as Colgate and SoftSoap now claim, § 2(b)(ii) permitted them all along to terminate the marketing agreement with impunity after $1.5 million had been paid to WPC, the inclusion of a provision requiring termination once $5 million had been paid would appeal’ to serve no purpose. Colgate’s efforts to escape the implications of its own draftsmanship are unavailing.\nAs they concede, SoftSoap and Colgate terminated the marketing agreement on December 31, 1991 when they ceased to sell Disposer Care and returned the product to WPC. WPC did not consent to the termination; it brought suit pursuant to § 7(d). In its cross-motion for summary judgment, WPC argued that Colgate and SoftSoap had improperly terminated the marketing agreement and asked the district court to award damages equal to the difference between the amount of royalties WPC had received and $5 million.\nWisconsin courts follow the general rule that\n[tjhe fundamental basis for an award of damages for breach of contract is just compensation for losses necessarily flowing from the breach. It is a corollary of this rule that a party whose contract has been breached is not entitled to be placed in a better position because of the breach than he would have been had the contract been performed.\nDehnart v. Waukesha Brewing Co., 21 Wis.2d 583, 124 N.W.2d 664, 670 (1963) (citations omitted). See also Handicapped Children’s Education Board v. Lukaszewski, 112 Wis.2d 197, 332 N.W.2d 774, 778 (1983); Pleasure Time, Inc. v. Kuss, 78 Wis.2d 373, 254 N.W.2d 463, 469 (1977); Hanz Trucking, Inc. v. Harris Bros. Co., Crestline Div., 29 Wis.2d 254, 138 N.W.2d 238, 246 (1965).\nThe amount of royalties WPC would have received had Colgate and SoftSoap performed under the marketing agreement cannot be determined from the record before us. It is possible that, absent default by the defendants, the term of the agreement could have ended with the expiration of the patent even though WPC had not received aggregate royalties of $5 million. Consequently, while we find that § 2(b)(ii) is not a liquidated damages clause and thus does not necessarily limit WPC’s damages to the $1.5 million in royalties already paid by Colgate, the amount of those damages is a factual issue which must be determined on remand.\nV.\nThe August 12, 1991 order of the district court dismissing WPC’s claims for negligent and strict responsibility is Affirmed. That portion of the July 27, 1992 order granting Colgate’s and SoftSoap’s motion for summary judgment on the breach of contract/termination claim is REVERSED. WPC’s cross-motion for summary judgment is Remanded with directions to the district court to enter judgment in favor of WPC on the issue of wrongful termination, and to determine the amount of damages due WPC on that claim. Because of its disposition of the breach of contract/termination claim, the district court did not address WPC’s breach of contract/best efforts claim. We therefore express no opinion on that issue except to say that WPC may renew it on remand.\n. Wisconsin courts generally do not distinguish between what they call \"strict responsibility misrepresentation\" and strict liability misrepresentation. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Boeck, 127 Wis.2d 127, 377 N.W.2d 605, 611 (1985); Stevenson v. Barwineck, 8 Wis.2d 557, 99 N.W.2d 690, 693 (1959). However, one court has indicated these concepts, while closely related, are not identical. In Reda v. Sincaban, the Wisconsin Court of Appeals stated:\nUnlike strict responsibility, strict liability does not \"impose absolute liability,” but is more like negligence per se....\nAn action for strict responsibility for misrepresentation is more akin to an absolute liability case than a strict liability case. As in an absolute liability case, contributory negligence is not a defense to a strict responsibility claim.\n145 Wis.2d 266, 426 N.W.2d 100, 103 (Ct.App. 1988) (citations omitted), rev. denied, 146 Wis.2d 875, 430 N.W.2d 918 (1988).\n. In addition to the presidents of WPC and SGM, the president of Twin Oak Products, Inc., the third-party guarantor under § 2(b)(ii), signed the marketing agreement.\n. The district court did not specifically address WPC’s cross-motion for summary judgment. However, the effect of its decision was to deny the motion.\n. The notice states that WPC \"appeals ... from the Order granting defendants judgment dismissing plaintiffs complaint, entered in this action on the 27th day of July, 1992.\"\n. Because we find that WPC’s notice was the functional equivalent of what Rule 3 literally requires, this case is distinct from our decisions in Leahy, 912 F.2d at 923-24, and Brandt, 854 F.2d at 954, both of which involved noncompliance with the Rule. In Leahy, the plaintiff filed a notice of appeal from the district court’s final order dismissing his case on the merits. At the time of filing, a defendant’s motion for attorney’s fees and costs under Fed.R.Civ.P. 11 was pending before the district court. Although the motion was subsequently granted in part, the plaintiff never filed an amended or second notice of appeal from the Rule 11 order. Id. at 920-21, 923. We held that the plaintiff, whose counsel \"ha[d] demonstrated a propensity for procedural error both at the district court level and on appeal,’’ had failed to comply with the prerequisites of Rule 3(c) and had not \"taken any steps which might be considered the functional equivalent of what Rule 3 requires.\" Id. at 923.\nIn Brandt, we found that neither the plaintiff's notice of appeal nor his statement of issues to be raised on appeal, filed with the district court pursuant to Fed.Rule App.P. 10(b)(3), “mentioned] any intention to appeal from the district court's order of voluntary dismissal” of certain defendants. 854 F.2d at 954. We concluded that \"[t]his is hardly a case where the appellant merely failed to comply with the technicalities of compliance.” Id.\n. In its original complaint, WPC averred that [t]o gain WPC's consent [to the assignment], representatives of WPC met with representatives of Colgate in the fall of 1987 and Colgate represented to WPC that if WPC consented to the assignment of the Marketing Agreement to Colgate, then Colgate would launch a national advertising and marketing campaign using Colgate’s substantial financial resources and experience.\nThe negligent misrepresentation count alleged that \"Colgate negligently misrepresented to WPC that it intended to conduct a national advertising and marketing campaign.\"\nThe strict responsibility misrepresentation count alleged that\nColgate misrepresented that it intended to conduct a national advertising and marketing campaign for Disposer Care, and Colgate made this representation from its personal knowledge and was so situated that Colgate had particular means of ascertaining its true advertising and marketing plans for Disposer Care and Colgate's position made possible complete knowledge of its advertising and marketing plans for Disposer Care and Colgate's statements fairly implied that it had complete knowledge.\n. In Wisconsin law, an exception to the \"preexisting” fact rule exists where the promisor, at the time the promise or representation was made, had a present intention not to perform. Hartwig, 139 N.W.2d at 647. While some cases have touched upon this exception in the context of claims for negligent and strict responsibility misrepresentation, see, e.g., Consolidated Papers, 451 N.W.2d at 459; United States Oil Co., 440 N.W.2d at 827-28, it would appear that if one making representations had a present intention not to perform them, the aggrieved party's claim would properly and logically be one for intentional misrepresentation. See Lundin v. Shiman-ski, 124 Wis.2d 175, 368 N.W.2d 676, 679, 684-85 (1985); Hartwig, 139 N.W.2d at 646; Zingale v. Mills Novelty Co., 244 Wis. 144, 11 N.W.2d 644, 646-47 (1943); Alropa Cotp. v. Flatley, 226 Wis. 561, 277 N.W. 108, 110 (1938).\nAccordingly, if, as WPC attempts to argue, Colgate had no intention of launching a national advertising campaign or putting its full financial resources behind Disposer Care at the time of its statements to WPC, this would support a claim for intentional misrepresentation, not one based on negligence.\n. The district court’s July 1992 order does not specifically address WPC's breach of contract/best efforts claim, focusing instead on the issue of termination. However, our interpretation of that court’s disposition of the best efforts issue is consistent with the arguments advanced by Colgate and SoftSoap in this case. In its Reply Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, Colgate and SoftSoap argued that ”[d]efault includes failure to use best efforts. Therefore!,] even if defendants did not use their best efforts, that failure would constitute a default under the Agreement, and $1.5 million would be the measure of damages.” The same argument is made to this court.\n. Another provision of the marketing agreement indirectly references WPC’s right to seek damages in the event of Colgate's default, reinforcing the view that § 2(b)(ii) was not intended as a liquidated damages provision. Section 7(a)(ii) states, in part:\n[I]n the event that [Colgate's] breach is for nonpayment of any amounts due WPC and such nonpayment continues for a period of 30 days after notice by WPC to [Colgate) that such payment has not been received, WPC may, at its option, ... immediately terminate this Agreement.\nAs noted, § 7(d) expressly reserves WPC's right to seek damages when termination is the result of Colgate’s default.", "type": "majority", "author": "KANNE, Circuit Judge."}], "attorneys": ["John R. Stoffer, Stephen T. Jacobs (argued), David J. Sisson, Reinhart, Boerner, Vandeuren, Norris & Rieselbach, Milwaukee, WI, for plaintiff-appellant.", "Reuben W. Peterson, Jr., James M. Fred-ericks, Borgelt, Powell, Peterson & Frauen, Milwaukee, WI, Charles A. Gilman (argued), Laura Mezey, Cahill, Gordon & Reindel, New York City, for defendants-appellees."], "corrections": "", "head_matter": "BADGER PHARMACAL, INC., d/b/a Wisconsin Pharmacal Company, Inc., Plaintiff-Appellant, v. COLGATE-PALMOLIVE COMPANY and SoftSoap Enterprises, Inc., Defendants-Appellees.\nNo. 92-2810.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Jan. 14, 1993.\nDecided Aug. 6, 1993.\nJohn R. Stoffer, Stephen T. Jacobs (argued), David J. Sisson, Reinhart, Boerner, Vandeuren, Norris & Rieselbach, Milwaukee, WI, for plaintiff-appellant.\nReuben W. Peterson, Jr., James M. Fred-ericks, Borgelt, Powell, Peterson & Frauen, Milwaukee, WI, Charles A. Gilman (argued), Laura Mezey, Cahill, Gordon & Reindel, New York City, for defendants-appellees.\nBefore COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge."}	COFFEY	KANNE	ESCHBACH	1	1	1	0	0	0	1 F.3d 621	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: BADGER PHARMACAL, INC., d/b/a Wisconsin Pharmacal Company, Inc., Plaintiff-Appellant, v. COLGATE-PALMOLIVE COMPANY and SoftSoap Enterprises, Inc., Defendants-Appellees\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-06\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nKANNE, Circuit Judge.\nWisconsin Pharmacal Company (WPC) sued Colgate-Palmolive Company (Colgate) and its wholly owned subsidiary, SoftSoap Enterprises (SoftSoap), for breach of contract, claiming the defendants had failed to use their best efforts under an exclusive marketing agreement between the parties. Two other claims solely against Colgate alleged negligent and strict responsibility misrepresentation, also involving the marketing agreement.\nAfter the district court dismissed the misrepresentation counts against Colgate, WPC filed an amended complaint adding a second breach of contract claim, this one charging that both defendants had improperly terminated the agreement. Colgate and SoftSoap moved for summary judgment on both counts; WPC moved for summary judgment on the termination issue. The district court granted the defendants’ motion. On consideration of the merits, we agree that the plaintiff has failed to state viable claims for negligent and strict responsibility misrepresentation against Colgate, but find that Colgate and SoftSoap did not fulfill their obligations to WPC when they defaulted in their performance of the agreement.\nI.\nWPC, a Wisconsin corporation, is the inventor of “Disposer Care,” a cleaning powder for kitchen sink garbage disposers. In 1986, WPC entered into an exclusive marketing agreement with SGM Group, Inc. (SGM), under which SGM would market and sell Disposer Care. According to the agreement drafted by WPC, SGM agreed to purchase all of its requirements of Disposer Care from WPC, and to “utilize its very best efforts to advertise and promote” the product. WPC earned money under the agreement both from sales to SGM and from patent royalties. Royalties were based on net sales and paid to WPC annually. The payments were to continue until SGM had paid “an aggregate of $5 million,” after which SGM’s obligation to pay royalties, but not its obligation to continue marketing and distributing WPC’s product, would end (unless SGM opted to purchase all right, title, and interest in Disposer Care under a purchase option provision in the marketing agreement).\nOne provision of the agreement guaranteed payment of minimum royalties to WPC. Section 2(b)(ii) provides, in relevant part:\nSGM shall pay to WPC, and Twin Oak Products, Inc. guarantees such payment, of $1.5 million in royalties regardless of whether it continues to sell Product or utilize the Trademark unless SGM is prohibited from selling the Product. The unpaid portion of such guaranteed minimum royalties shall become immediately due and payable in the event of a default by SGM hereunder or termination of this\nAgreement.\nBy its terms, the marketing agreement would end upon the earlier of: (1) the patent’s expiration, (2) consummation of the aforementioned purchase option, whereby SGM would purchase Disposer Care from WPC for $5 million, less the amount of royalties previously paid, or (3) termination of the agreement under § 7. Section 7(a)(i) and (ii) provides that, in the event of a material breach or default in the performance of the agreement by either WPC or SGM, the non-breaching party “may terminate” the agreement upon notice to the breaching party, subject to that party’s right to remedy the breach or default within sixty days.\nIn December 1987, with WPC’s consent, SGM assigned its rights and obligations under the marketing agreement to Colgate, a Delaware corporation. Pursuant to the assignment, WPC, Colgate, and SGM signed a consent agreement, titled “WPC Consent to Assignment,” which contains a provision modifying the term of the marketing agreement by adding another termination event. According to § 4(c) of the consent to assignment, the term of the marketing agreement would “expire upon payment to WPC by [SGM] and [Colgate] of aggregate royalties payable under the Agreement in addition to the other circumstances referred to in the definition of the ‘Term’ in § 2(b)(iv) of the Agreement.” Section 2(b)(iv) is the option purchase provision, and the parties agree that “aggregate royalties” are $5 million. On January 18, 1988, Colgate entered into a distributorship agreement with its wholly owned subsidiary, SoftSoap Enterprises, a Minnesota Corporation, whereby SoftSoap assumed Colgate’s obligations under the marketing agreement.\nWPC filed suit against Colgate and Soft-Soap on January 24, 1991, alleging that both defendants had breached the marketing agreement by failing to use their best efforts to market and distribute Disposer Care (count I), and that Colgate had misrepresented its marketing plan to WPC and was liable under either a negligence (count II) or strict responsibility theory (count III). Colgate and SoftSoap answered the complaint, and Colgate moved to dismiss the misrepresentation counts for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). By order dated August 12, 1991, the district court granted the motion. Soft-Soap continued to market and distribute Disposer Care for the remainder of 1991. On December 11, when WPC had received just over $1.5 million in royalty payments under the agreement, SoftSoap gave WPC written notice of its intention to stop marketing Disposer Care as of December 31. On that date, SoftSoap ceased performance under the agreement and returned the product to WPC.\nBased on SoftSoap’s actions, WPC sought and was granted leave to file an amended complaint. WPC deleted the misrepresentation counts and replaced them with a second breach of contract claim. This new count II alleged that Colgate and SoftSoap had terminated the marketing agreement by refusing to market and distribute Disposer Care before WPC had received $5 million in royalties. The defendants answered the amended complaint and moved for summary judgment on both the breach of contract/best efforts and breach of contract/termination counts, arguing that they had fulfilled their obligations to WPC under the agreement by insuring that WPC had been paid $1.5 million in royalties. In March 1992, WPC filed a cross-motion for summary judgment on the breach of contract/termination claim. On July 27, the district granted the defendants’ motion; final judgment dismissing WPC’s complaint was entered the same day.\nII.\nWe turn first to our jurisdiction. Federal Rule of Appellate Procedure 3(c) provides:\nThe notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.... An appeal shall not be dismissed for informality of form or title of the notice of appeal.\nColgate and SoftSoap point out that WPC’s notice of appeal mentions only the district court’s order dated July 27, 1992, without mentioning the August 12, 1991 order that dismissed WPC’s misrepresentation claims. The defendants argue that WPC’s notice of appeal is defective and, as a result, this court lacks subject matter jurisdiction to review the August 12 order. They rely on Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), and certain of our decisions that have followed Torres. See Leahy v. Board of Trustees of Community College, 912 F.2d 917 (7th Cir.1990); Brandt v. Schal Associates, Inc., 854 F.2d 948 (7th Cir.1988).\nWe adhere to the general principle that the rules of procedure, including Federal Rule of Appellate Procedure 3, will be liberally construed. Smith v. Barry, — U.S. -, -, 112 S.Ct. 678, 681, 116 L.Ed.2d 678 (1992); Torres, 487 U.S. at 317, 108 S.Ct. at 2409; Leahy, 912 F.2d at 923. “Thus, if a litigant files papers in a fashion that is technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.” Torres, 487 U.S. at 316-17, 108 S.Ct. at 2408-09. We bear in mind, however, that “Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a prerequisite to appellate review”; thus noncompliance with the rule is fatal to an appeal. Smith, — U.S. at -, 112 S.Ct. at 682.\nTorres held that, under Rule 3’s provisions, an appellant’s inadvertent failure to include his own name on a notice of appeal deprives the court of jurisdiction over the appeal. 487 U.S. at 317, 108 S.Ct. at 2409. That case bears some resemblance to the case at hand, but we find that Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), is a better match. In Foman, the appellant failed to specify the precise judgment of the district court being appealed, designating in his notice of appeal an order denying the motion to amend the judgment rather than the judgment itself. The Court found that the defect could be overlooked so long as the faulty notice “did not mislead or prejudice” the appellee. Id. at 181, 83 S.Ct. at 229. Because the appellant’s “intention to seek review of [the final judgment] ... was manifest,” the Court concluded that the technicality could be disregarded. Id.\nAs we have previously recognized, Foman is still good law after Torres:\nAlthough [Torres] construed Foman as finding that the particular notice of appeal complied with the rules, not as excusing noncompliance, see [487 U.S. at 315] 108 S.Ct. [at] 2408, the two come to the same thing when dealing with the [judgment-designation] clause of Rule 3(c). Moreover, because there may be one or many appellees, but only one final judgment per ease, it makes sense to treat the first two clauses of the Rule differently.... Because the single final judgment incorporates earlier interlocutory decisions, any notice of appeal necessarily brings up the case in a way a notice of appeal need not present all parties.\nChaka v. Lane, 894 F.2d 923, 924-25 (7th Cir.1990).\nAccordingly, we have followed the reasoning of Foman on numerous occasions, Cook v. Navistar International Transportation Corp., 940 F.2d 207, 211 (7th Cir.1991); Chaka, 894 F.2d at 924-25; Cardoza v. CFTC, 768 F.2d 1542, 1546 (7th Cir.1985), none of which Colgate and SoftSoap cite. In Cardo-za, we held that “an error designating the judgment or a part thereof will not result in a loss of appeal if the intent to appeal from the judgment complained of may be inferred from the notice and if the appellee has not been misled by the defect.” 768 F.2d at 1546.\nWe find that WPC’s intent to appeal from the August 12 order may be inferred from its notice of appeal and, consequently, that the notice was “the functional equivalent of what the rule requires” under Torres, 487 U.S. at 317, 108 S.Ct. at 2409. After the August 12 order dismissing the misrepresentation claims, WPC amended its complaint to eliminate those claims, replacing them with the breach of eontract/termination claim. By amending the complaint, WPC did not waive any challenge to the district court’s dismissal of the misrepresentation claims for “[i]f a district court’s dismissal leaves a plaintiff free to file an amended complaint, the dismissal is not considered a final appealable order.” Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir.1987). See also Bastían v. Petren Resources Corp., 892 F.2d 680, 682 (7th Cir.), cert. denied, 496 U.S. 906, 110 S.Ct. 2590, 110 L.Ed.2d 270 (1990); Hatch v. Lane, 854 F.2d 981, 982 (7th Cir.1988) (per curiam). Moreover, despite the amendment, the factual allegations on which those claims were based remained in the complaint.\nWPC’s notice of appeal, while not referencing the August 1991 order, did state that appeal was being taken from the July-1992 order “granting defendants judgment dismissing plaintiffs complaint.” Ordinarily, an appeal from a final judgment brings up for review all previous orders entered in the case. Asset Allocation & Management Co. v. Western Employers Insurance Co., 892 F.2d 566, 569 (7th Cir.1989); United States v. Patel, 835 F.2d 708, 710 (7th Cir.1987). We conclude that, by appealing the order resulting in dismissal of the complaint and final judgment for the defendants, WPC sufficiently demonstrated its intention to appeal all orders previously issued by the district court.\nRule 3(c) is broad enough to permit “an effective, although inept, attempt to appeal from the judgment sought to be” reversed. Foman, 371 U.S. at 181, 83 S.Ct. at 229. This is especially true where WPC was not free to appeal the dismissal of its misrepresentation claims before final judgment was entered on the contract claims. More important, though, Colgate and SoftSoap do not, and cannot, argue that they were prejudiced by the defect in WPC’s notice of appeal. The defendants fully briefed and argued the merits of the August 1991 order; there is no hint of unfair surprise. See Foman, 371 U.S. at 181, 83 S.Ct. at 229-30; Cook, 940 F.2d at 211; Management Computer Services, Inc. v. Hawkins, Ash, Baptie & Co., 883 F.2d 48, 49 n. 1 (7th Cir.1989); Duran v. Elrod, 713 F.2d 292, 295 (7th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1615, 80 L.Ed.2d 143 (1984); Gooding v. Warner-Lambert Co., 744 F.2d 354, 357 n. 4 (3d Cir.1984). WPC’s notice of appeal effectively brings up both the August 1991 and July 1992 orders of the district court.\nIII.\nTurning to the August 1991 order, WPC argues that the district court erred in dismissing its negligent and strict responsibility misrepresentation claims. Before the district court, and in its brief to this court, WPC asserted that its “misrepresentation claims are straightforward examples of fraud in the inducement. Colgate misrepresented that it would launch a national advertising and marketing campaign and use its substantial financial resources and experience if Wisconsin Pharmacal consented” to the assignment of obligations from SGM to Colgate. According to WPC, no national campaign ever materialized; instead, soon after the assignment, Colgate turned the Disposer Care marketing program over to its underfinanced subsidiary, SoftSoap. WPC concludes from this that Colgate, at the time of the assignment, had no .intention of following through on the representations it made to WPC.\nWe review de novo the district court’s decision to dismiss the misrepresentation portions of WPC’s complaint, accepting the truth of all well-pleaded factual allegations and drawing all reasonable inferences in WPC’s favor. Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992). The district court determined that Wisconsin law applied to this case. The parties have briefed, and we will apply, the substantive law of that state. In so doing, we conclude that dismissal was proper.\nFirst, WPC’s choice of the phrase “fraud in the inducement” is misleading. Fraud requires an intentional misrepresentation; WPC’s original complaint pleaded only negligent and strict responsibility misrepresentation. Nevertheless, we agree with the district court’s conclusion that even under these theories WPC has failed to state a viable claim under Wisconsin law.\nTo state a claim for negligent misrepresentation, a party must establish five elements:\n(1) There must be a duty of care or a voluntary assumption of a duty; (2) The representation must be of a fact and made by the defendant; (3) The representation of fact must be untrue; (4) The plaintiff must believe such representation to be true and rely thereon to his damage; and (5) The defendant must have failed to exercise ordinary care in making the misrepresentation or in ascertaining the facts.\nSchweiger v. Loewi & Co., Inc., 65 Wis.2d 56, 221 N.W.2d 882, 887 (1974). See also Ollerman v. O’Rourke Co., Inc., 94 Wis.2d 17, 288 N.W.2d 95, 109 (1980); Whipp v. Iverson, 43 Wis.2d 166, 168 N.W.2d 201, 203-04 (1969).\nIn Wisconsin, strict responsibility for misrepresentation applies in situations where public opinion calls for placing the loss on the innocent defendant rather than on the innocent plaintiff. Gauerke v. Rozga, 112 Wis.2d 271, 332 N.W.2d 804, 808-09 (1983) (quoting Law Notes for Trial Judges in Wis. Jury Instructions — No. 2400, Misrepresentation: Bases for Liability and Damages). A claim under this theory has elements (2), (3), and (4) in common with negligent misrepresentation, but also requires that the misrepresentation be made on the defendant’s personal knowledge or under circumstances in which he necessarily ought to have known the truth or untruth of the statement, and that the defendant have an economic interest in the transaction. Whipp, 168 N.W.2d at 203.\nWe agree with the district court that Wisconsin courts would not recognize a claim for negligent misrepresentation in this case. When two corporations, with the benefit of counsel, negotiate a commercial transaction at arms length, neither owes nor assumes a duty to disclose information to the other. Cf. Kanack v. Kremski, 96 Wis.2d 426, 291 N.W.2d 864, 866-68 (1980); Ollerman, 288 N.W.2d at 101; Kamuchey v. Trzesniewski, 8 Wis.2d 94, 98 N.W.2d 403, 405 (1959). The parties were not in a special relationship, and WPC does not claim that Colgate gave false or misleading responses to questions posed by WPC about the marketing agreement. See Kanack, 291 N.W.2d at 867-68. WPC has not persuaded us that, in the context of business dealings between sophisticated parties, Wisconsin law would impose a duty on each not to utter words negligently.\nEven if we were to find that WPC had satisfied the duty element of negligent misrepresentation, its claim under that theory, as well as under a strict responsibility theory, would founder on the requirement that the alleged misrepresentation be one of fact. As WPC concedes, statements of fact ordinarily must relate to present or preexisting facts, not future ones. Hartwig v. Bitter, 29 Wis.2d 653, 139 N.W.2d 644, 646 (1966); Consolidated Papers, Inc. v. Dorr-Oliver, Inc., 153 Wis.2d 589, 451 N.W.2d 456, 459 (Ct.App.1989), rev. denied, 457 N.W.2d 323 (Wis.1990); United States Oil Co. v. Midwest Auto Care Services, Inc., 150 Wis.2d 80, 440 N.W.2d 825, 827 (Ct.App.1989). An unfulfilled promise or statement of future events cannot provide the basis of a misrepresentation claim, Dresser Industries v. Gradall Co., 702 F.Supp. 726, 736 (E.D.Wis.1988) (applying Wisconsin law), aff'd, 965 F.2d 1442 (7th Cir.1992); expressions of judgment relating to quality are opinions that are likewise not actionable. Consolidated Papers, 451 N.W.2d at 459.\nNothing said by Colgate during its negotiations with WPC constituted a preexisting or present fact; rather, the alleged misrepresentations were promissory in nature, reflecting Colgate’s future intent. In addition, we conclude that any statement by Colgate that its advertising and marketing campaign would be national in scope was a statement of opinion. Because negligent and strict responsibility misrepresentation both require a representation of present or pre-existing fact, see Gauerke v. Rozga, 332 N.W.2d at 807 n. 3; Whipp, 168 N.W.2d at 203; Redo, 426 N.W.2d at 102, and cannot be based on expressions of opinion, WPC’s attempt to state a claim under either theory must fail.\nFinally, we are chary of finding that WPC has stated either a negligent or strict responsibility misrepresentation claim for another, more fundamental, reason. This court recently recognized that\nthere is now substantial evidence that Wisconsin would decline in all circumstances to allow a negligence suit for the recovery of only economic damages, even when there is no contractual relationship between the parties. “An increasing number of jurisdictions hold that tort law provides no remedy in a case in which the plaintiff is seeking to recover for a commercial loss rather than damage to person, property, or reputation.”\nMidwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1300 (7th Cir.1991) (footnote and citations omitted). In Midwest Knitting, a review of our cases construing Wisconsin case law led us to conclude that\nwhatever ambiguity might remain about the existence of a tort cause of action for economic injury alone in the total absence of a contractual relationship, it is clear that Wisconsin would not permit such a cause of action when the parties have a contractual relationship and the injury is based on that relationship.\nId. at 1300-01.\nWe perceive no reason to deviate from this conclusion in the case before us, nor do we believe that Wisconsin courts would do so. WPC’s dispute with Colgate is a commercial one arising from a contractual relationship. “[T]ort law is a superfluous and inapt tool for resolving purely commercial disputes. We have a body of law designed for such disputes. It is called contract law.” Miller v. United States Steel Corp., 902 F.2d 573, 574 (7th Cir.1990). The district court properly dismissed WPC’s claims for negligent and strict responsibility misrepresentation under Fed.R.Civ.P. 12(b)(6).\nIV.\nWe next consider WPC’s breach of contract claims. The district court found that Colgate’s default in performance terminated the marketing agreement but that, according to the unambiguous terms of the agreement, “in the event of a default Colgate was required to pay at least $1.5 million in royalties.” Because Colgate had already paid slightly more than that amount to WPC, the court concluded that Colgate had fulfilled its obligations under the agreement. This ruling necessarily rejected WPC’s cross-motion for summary judgment on the breach of contract/termination claim, and disposed of the breach of contract/best efforts issue inasmuch as any breach resulting from Colgate’s and SoftSoap’s failure to use their best efforts to market and sell Disposer Care would presumably trigger the same provision requiring payment of at least $1.5 million to WPC.\nThe parties agree that the marketing agreement’s provisions are clear and unambiguous, but attach vastly different meanings to the same contractual terms. WPC challenges the district court’s decision, arguing that the court misconstrued the contract by reading into it a limitation on damages that did not exist. On the other hand, of course, Colgate and SoftSoap believe, the district court got it right. They contend that the marketing agreement allows for termination once $1.5 million in royalties has been paid to WPC. They admit they defaulted in their performance and thus terminated the agreement, but insist that any and all damages due have been paid to WPC. We review de novo the district court’s grant of summary judgment for the defendants, viewing the record and all reasonable inferences drawn from it in the light most favorable to WPC. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370 (7th Cir.1992). Under this familiar standard, we conclude that the district court should not have granted summary judgment for the defendants.\nAs the district court recognized, the marketing agreement’s original term was defined by three possible events: expiration of the patent, purchase of the product by Colgate for $5 million less royalties previously paid, or termination under § 7. At the time SGM assigned its obligations under the agreement to Colgate, SGM, WPC, and Colgate entered into the consent to assignment that modified the marketing agreement’s term. The district court found, and the parties agree, that the consent to assignment added a fourth termination event. Under the consent to assignment, the marketing agreement would end upon WPC’s receipt of “aggregate royalties” payable under the agreement. The district court found, and the parties agree, that aggregate royalties are $5 million.\nThe consent to assignment altered the original term of the marketing agreement in an important respect. Prior to the consent to assignment, the agreement provided that royalty payments would continue until WPC received $5 million from SGM. Once the $5 million figure was reached, royalty payments would cease, but, unless SGM purchased Disposer Care, the marketing agreement would otherwise remain in effect. After the consent to assignment, Colgate had no further obligations once $5 million in royalties had been paid to WPC.\nThe district court held that, notwithstanding the consent to assignment, the marketing agreement “also has a provision in Section 2(b)(ii) setting forth a guaranty of the minimum royalties which must be paid under all circumstances.” The court treated this section as a liquidated damages provision; Colgate and SoftSoap ask us to do the same.\nThe construction of a written contract is a question of law. Jones v. Jenkins, 88 Wis.2d 712, 277 N.W.2d 815, 819 (1979); Ford Motor Co. v. Lyons, 137 Wis.2d 397, 405 N.W.2d 354, 379 (Ct.App.1987). In Wisconsin, “[t]he established rule is that the objective in interpreting and construing a contract is to ascertain the true intention of the parties.” Stradinger v. City of Whitewater, 89 Wis.2d 19, 277 N.W.2d 827, 831 (1979). “[T]he purpose of judicial construction is to determine what the parties contracted to do as evidenced by the language they saw fit to use.” State ex rel. Journal/Sentinel v. Pleva, 155 Wis.2d 704, 456 N.W.2d 359, 362 (1990). See also Koenings v. Joseph Schlitz Brewing Co., 126 Wis.2d 349, 377 N.W.2d 593, 602 (1985). Thus, where the terms of a contract are plain and unambiguous, it is our duty to construe the contract as its stands, even though the parties may have placed a different construction on it. Algrem v. Nowlan, 37 Wis.2d 70, 154 N.W.2d 217, 221 (1967); Dykstra v. Arthur G. McKee & Co., 92 Wis.2d 17, 284 N.W.2d 692, 702-03 (Ct.App.1979), aff'd, 100 Wis.2d 120, 301 N.W.2d 201 (1981).\nSection 2(b)(ii), the provision of the marketing agreement relied upon by the district court, provides that Colgate shall pay WPC, and Twin Oak shall guarantee, $1.5 million in royalties “regardless of whether [Colgate] continues to sell Product or utilize the Trademark unless Colgate is prohibited from selling the Product. The unpaid portion of such guaranteed minimum royalties shall become immediately due and payable in the event of a default by [Colgate] hereunder or termination of this Agreement.”\nAccording to WPC, § 2(b)(ii) was drafted as a third-party guarantee clause, intended to secure for WPC both an immediate return on its investment in developing a new product and a portion of expected royalties from sales of that product. Colgate and SoftSoap do not dispute this explanation of the provision; rather, they contend that the provision plainly limits WPC’s damages to $1.5 million in the event of default or termination of the marketing agreement. They are wrong.\nBy its terms, § 2(b)(ii) requires Twin Oak to guarantee Colgate’s payment of “minimum royalties” of $1.5 million to WPC upon Colgate’s default (emphasis added). This section, however, says nothing about the maximum amount of money to which WPC would be entitled, or that Colgate would be required to pay, in the event of Colgate’s breach. It may be, as counsel for Colgate and SoftSoap suggested at oral argument, that a liquidated damages clause need not be denominated as such, but the defendants have presented no evidence, other than the provision itself, either to support their position or to controvert WPC’s claim that § 2(b)(ii) was intended to guarantee payment of the first $1.5 million in royalties by a third party, Twin Oak.\nBecause we interpret contracts according to their unambiguous terms, we must give the adjective “minimum” its plain and ordinary meaning rather than read it out of § 2(b)(ii) altogether. Thus we find not, as Colgate and SoftSoap would have it, that § 2(b)(ii) places an express limitation on WPC’s damages upon default and termination of the marketing agreement, but that this provision unambiguously guarantees WPC at least $1.5 million in such an event. The provision contains no language to the effect that $1.5 million is the full measure of damages available to WPC under the circumstances, and we will not import such a limitation into the agreement.\nThis interpretation of § 2(b)(ii) is consistent with the marketing agreement as a whole, including the terms added by the consent to assignment. Section 2(b)(ii) appears under “Royalties” (itself a subheading under “Grant of License”), rather than under “Termination,” which is covered in § 7. The only provision in § 7 specifically addressing the issue of damages in the event of breach is § 7(d), “Remedies,” which states that “[tjer-mination of this Agreement shall not preclude either party from seeking damages for breach or default under this Agreement.” Interpreting § 2(b)(ii) as the parties’ attempt to predetermine the limit on WPC’s damages in the event of a breach by Colgate and SoftSoap would render § 7(d) largely superfluous.\nIndeed, if § 2(b)(ii) was intended by the parties to settle all questions as to WPC’s damages as the non-breaching party, a subsequent provision reserving WPC’s right to seek damages in the event of default would make little sense. Mindful of the maxim that an agreement must be interpreted as a whole and all parts harmonized as far as possible so that no part is rendered surplusage, Pleva, 456 N.W.2d at 362; Koenings, 377 N.W.2d at 602; Peiffer v. Allstate Insurance Co., 51 Wis.2d 329, 187 N.W.2d 182, 185 (1971); Marion v. Orson’s Camera Centers, Inc., 29 Wis.2d 339, 138 N.W.2d 733, 735 (1966), we conclude that § 2(b)(ii) does not evidence an intent to liquidate, or otherwise set a contractual ceiling on, WPC’s damages.\nFinally, the terms of the consent to assignment belie Colgate’s claim that the amount stipulated in § 2(b)(ii) was intended by the parties as the sole remedy in the event Colgate defaulted on and terminated the agreement. At the time of the assignment from SGM to Colgate, Colgate specifically negotiated to have the marketing agreement end once $5 million in royalties were paid to WPC. A provision to this effect, § 4(c), was included in the consent to assignment drafted by Colgate. If, as Colgate and SoftSoap now claim, § 2(b)(ii) permitted them all along to terminate the marketing agreement with impunity after $1.5 million had been paid to WPC, the inclusion of a provision requiring termination once $5 million had been paid would appeal’ to serve no purpose. Colgate’s efforts to escape the implications of its own draftsmanship are unavailing.\nAs they concede, SoftSoap and Colgate terminated the marketing agreement on December 31, 1991 when they ceased to sell Disposer Care and returned the product to WPC. WPC did not consent to the termination; it brought suit pursuant to § 7(d). In its cross-motion for summary judgment, WPC argued that Colgate and SoftSoap had improperly terminated the marketing agreement and asked the district court to award damages equal to the difference between the amount of royalties WPC had received and $5 million.\nWisconsin courts follow the general rule that\n[tjhe fundamental basis for an award of damages for breach of contract is just compensation for losses necessarily flowing from the breach. It is a corollary of this rule that a party whose contract has been breached is not entitled to be placed in a better position because of the breach than he would have been had the contract been performed.\nDehnart v. Waukesha Brewing Co., 21 Wis.2d 583, 124 N.W.2d 664, 670 (1963) (citations omitted). See also Handicapped Children’s Education Board v. Lukaszewski, 112 Wis.2d 197, 332 N.W.2d 774, 778 (1983); Pleasure Time, Inc. v. Kuss, 78 Wis.2d 373, 254 N.W.2d 463, 469 (1977); Hanz Trucking, Inc. v. Harris Bros. Co., Crestline Div., 29 Wis.2d 254, 138 N.W.2d 238, 246 (1965).\nThe amount of royalties WPC would have received had Colgate and SoftSoap performed under the marketing agreement cannot be determined from the record before us. It is possible that, absent default by the defendants, the term of the agreement could have ended with the expiration of the patent even though WPC had not received aggregate royalties of $5 million. Consequently, while we find that § 2(b)(ii) is not a liquidated damages clause and thus does not necessarily limit WPC’s damages to the $1.5 million in royalties already paid by Colgate, the amount of those damages is a factual issue which must be determined on remand.\nV.\nThe August 12, 1991 order of the district court dismissing WPC’s claims for negligent and strict responsibility is Affirmed. That portion of the July 27, 1992 order granting Colgate’s and SoftSoap’s motion for summary judgment on the breach of contract/termination claim is REVERSED. WPC’s cross-motion for summary judgment is Remanded with directions to the district court to enter judgment in favor of WPC on the issue of wrongful termination, and to determine the amount of damages due WPC on that claim. Because of its disposition of the breach of contract/termination claim, the district court did not address WPC’s breach of contract/best efforts claim. We therefore express no opinion on that issue except to say that WPC may renew it on remand.\n. Wisconsin courts generally do not distinguish between what they call \"strict responsibility misrepresentation\" and strict liability misrepresentation. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Boeck, 127 Wis.2d 127, 377 N.W.2d 605, 611 (1985); Stevenson v. Barwineck, 8 Wis.2d 557, 99 N.W.2d 690, 693 (1959). However, one court has indicated these concepts, while closely related, are not identical. In Reda v. Sincaban, the Wisconsin Court of Appeals stated:\nUnlike strict responsibility, strict liability does not \"impose absolute liability,” but is more like negligence per se....\nAn action for strict responsibility for misrepresentation is more akin to an absolute liability case than a strict liability case. As in an absolute liability case, contributory negligence is not a defense to a strict responsibility claim.\n145 Wis.2d 266, 426 N.W.2d 100, 103 (Ct.App. 1988) (citations omitted), rev. denied, 146 Wis.2d 875, 430 N.W.2d 918 (1988).\n. In addition to the presidents of WPC and SGM, the president of Twin Oak Products, Inc., the third-party guarantor under § 2(b)(ii), signed the marketing agreement.\n. The district court did not specifically address WPC’s cross-motion for summary judgment. However, the effect of its decision was to deny the motion.\n. The notice states that WPC \"appeals ... from the Order granting defendants judgment dismissing plaintiffs complaint, entered in this action on the 27th day of July, 1992.\"\n. Because we find that WPC’s notice was the functional equivalent of what Rule 3 literally requires, this case is distinct from our decisions in Leahy, 912 F.2d at 923-24, and Brandt, 854 F.2d at 954, both of which involved noncompliance with the Rule. In Leahy, the plaintiff filed a notice of appeal from the district court’s final order dismissing his case on the merits. At the time of filing, a defendant’s motion for attorney’s fees and costs under Fed.R.Civ.P. 11 was pending before the district court. Although the motion was subsequently granted in part, the plaintiff never filed an amended or second notice of appeal from the Rule 11 order. Id. at 920-21, 923. We held that the plaintiff, whose counsel \"ha[d] demonstrated a propensity for procedural error both at the district court level and on appeal,’’ had failed to comply with the prerequisites of Rule 3(c) and had not \"taken any steps which might be considered the functional equivalent of what Rule 3 requires.\" Id. at 923.\nIn Brandt, we found that neither the plaintiff's notice of appeal nor his statement of issues to be raised on appeal, filed with the district court pursuant to Fed.Rule App.P. 10(b)(3), “mentioned] any intention to appeal from the district court's order of voluntary dismissal” of certain defendants. 854 F.2d at 954. We concluded that \"[t]his is hardly a case where the appellant merely failed to comply with the technicalities of compliance.” Id.\n. In its original complaint, WPC averred that [t]o gain WPC's consent [to the assignment], representatives of WPC met with representatives of Colgate in the fall of 1987 and Colgate represented to WPC that if WPC consented to the assignment of the Marketing Agreement to Colgate, then Colgate would launch a national advertising and marketing campaign using Colgate’s substantial financial resources and experience.\nThe negligent misrepresentation count alleged that \"Colgate negligently misrepresented to WPC that it intended to conduct a national advertising and marketing campaign.\"\nThe strict responsibility misrepresentation count alleged that\nColgate misrepresented that it intended to conduct a national advertising and marketing campaign for Disposer Care, and Colgate made this representation from its personal knowledge and was so situated that Colgate had particular means of ascertaining its true advertising and marketing plans for Disposer Care and Colgate's position made possible complete knowledge of its advertising and marketing plans for Disposer Care and Colgate's statements fairly implied that it had complete knowledge.\n. In Wisconsin law, an exception to the \"preexisting” fact rule exists where the promisor, at the time the promise or representation was made, had a present intention not to perform. Hartwig, 139 N.W.2d at 647. While some cases have touched upon this exception in the context of claims for negligent and strict responsibility misrepresentation, see, e.g., Consolidated Papers, 451 N.W.2d at 459; United States Oil Co., 440 N.W.2d at 827-28, it would appear that if one making representations had a present intention not to perform them, the aggrieved party's claim would properly and logically be one for intentional misrepresentation. See Lundin v. Shiman-ski, 124 Wis.2d 175, 368 N.W.2d 676, 679, 684-85 (1985); Hartwig, 139 N.W.2d at 646; Zingale v. Mills Novelty Co., 244 Wis. 144, 11 N.W.2d 644, 646-47 (1943); Alropa Cotp. v. Flatley, 226 Wis. 561, 277 N.W. 108, 110 (1938).\nAccordingly, if, as WPC attempts to argue, Colgate had no intention of launching a national advertising campaign or putting its full financial resources behind Disposer Care at the time of its statements to WPC, this would support a claim for intentional misrepresentation, not one based on negligence.\n. The district court’s July 1992 order does not specifically address WPC's breach of contract/best efforts claim, focusing instead on the issue of termination. However, our interpretation of that court’s disposition of the best efforts issue is consistent with the arguments advanced by Colgate and SoftSoap in this case. In its Reply Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, Colgate and SoftSoap argued that ”[d]efault includes failure to use best efforts. Therefore!,] even if defendants did not use their best efforts, that failure would constitute a default under the Agreement, and $1.5 million would be the measure of damages.” The same argument is made to this court.\n. Another provision of the marketing agreement indirectly references WPC’s right to seek damages in the event of Colgate's default, reinforcing the view that § 2(b)(ii) was not intended as a liquidated damages provision. Section 7(a)(ii) states, in part:\n[I]n the event that [Colgate's] breach is for nonpayment of any amounts due WPC and such nonpayment continues for a period of 30 days after notice by WPC to [Colgate) that such payment has not been received, WPC may, at its option, ... immediately terminate this Agreement.\nAs noted, § 7(d) expressly reserves WPC's right to seek damages when termination is the result of Colgate’s default.\n[END_CASE]", "role": "user" } ]
10,513,092	Earl Dean BOND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee	Bond v. United States	1993-08-06	No. 92-3289	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before RIPPLE, KANNE, and ROVNER, Circuit Judges."], "parties": ["Earl Dean BOND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee."], "opinions": [{"text": "ILANA DIAMOND ROVNER, Circuit Judge.\nEarl Dean Bond appeals from the denial of his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence. Because we conclude that the district court erred in barring Bond’s ineffective assistance of counsel claim, we reverse its judgment and remand for further proceedings.\nI. FACTS\nA jury convicted Bond of engaging in a continuing criminal enterprise (CCE); conspiring to distribute cocaine and more than fifty kilograms of marijuana; and attempting to possess with the intent to distribute more than fifty kilograms of marijuana. He appealed, and we affirmed. See United States v. Bond, 847 F.2d 1233 (7th Cir.1988). As a result of his conviction and sentence, Bond forfeited approximately $128,000 discovered in a brown suitcase that was seized by drug enforcement agents from a hotel room in Chesterfield, Missouri. That seizure and the admission of the money into evidence at his trial are the focal points of Bond’s section 2255 motion and this appeal. Bond contends that agents seized the suitcase pursuant to an invalid search warrant, which was subsequently quashed by a state court judge. Conceding that the warrant was invalid, the government maintained at Bond’s trial that the search and seizure were nonetheless justified under the exigent circumstances exception to the warrant requirement. See, e.g., Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978); United States v. Hughes, 993 F.2d 1313, 1315 (7th Cir.1993).\nBond’s section 2255 motion focuses primarily on the fact that his trial counsel did not move to suppress the allegedly improper evidence until the trial was well under way. The district court found the motion untimely and admitted the money into evidence. Bond also claims that his trial counsel should have made an offer of proof as to why suppression would have been appropriate.\nAt a hearing on the section 2255 motion, Robert Ciuffa, an attorney who represented Bond in Missouri state court, testified that he had convinced a state court judge to quash the warrant pursuant to which Bond’s bag had been seized and to order that the suitcase and money be returned to Bond. Ciuffa recalled that at the state hearing, an Assistant United States Attorney had not disputed Bond’s contention that the suitcase had been seized pursuant to the search warrant alone. After the state judge quashed the warrant, Ciuffa obtained the suitcase and money from the St. Louis County Police Department. But before long, federal drug enforcement agents seized the items from Ciuffa without a warrant and without arresting Bond. Bond had not yet been indicted on federal charges at that time.\nBond also testified at the section 2255 hearing. Bond said that two months prior to trial, he had told his trial attorney about the seizure of the suitcase from the hotel room, explaining that he “felt that the Government was going to use that as part of [its] evidence .... ” (Dec. 19, 1991 Tr. at 19.) He had informed his new counsel that Ciuffa had been successful in quashing the warrant and that Ciuffa “had all the records and that he should be contacted to help us on a suppression motion.” (Id.) According to Bond, he and his trial counsel had discussed the filing of a motion to suppress “on numerous occasions,” and his attorney had “said that he would contact Mr. Ciuffa and get all the records and make arrangements to file a motion to suppress.” (Id. at 19-20.) Finally, Bond testified that he had asked his counsel about the motion to suppress on the first day of his trial, and counsel had told him “that it had been filed but it had been denied.” (Id.)\nIn fact, Bond’s attorney had never filed a motion to suppress. Instead, he raised the issue for the first time during the third week of trial, when he told the district court that the money had been seized by drug enforcement agents and that it should be excluded from evidence because its admission would violate both the Missouri and United States Constitutions. The exchange that then took place between the district court, Bond’s trial attorney, and the government attorney seemingly contradicts Bond’s account inasmuch as it suggests that his trial counsel had been unaware until, at the earliest, the week before Bond’s trial that the search warrant had been quashed:\n[Bond’s Counsel]: That document [the order quashing the search warrant] wasn’t given to me. It was laying out here in the courtroom Monday when we started to pick the jury. Quite frankly, I didn’t catch it. I don’t see much problem with stopping the evidence now regarding it, but I do think that as long as it’s been declared, the search and seizure were declared unconstitutional by a recognized Court, that it shouldn’t proceed.\nMe. Meekel; ... [I]n regards to the material that [counsel] has, we talked the week before trial about that material, and I told him about the suppression of it over in St. Louis, and we met in my office, and he didn’t have enough time to stay, and I said I would get it to him as quickly as I could, the additional copies of documents that had not been provided, as far as I could tell, up to that time. We copied those and I laid them out here for everybody the morning that we picked the jury, Monday, and that’s correct, but there was discussion about it before that time. As to, and there is a search warrant involved in what happened with DEA that was never in fact executed as far as I can tell, but which was returned and the money listed as what was seized.... There was a state court judge that ordered that money returned. It was returned to Mr. Bond’s attorney at that time, and reseized immediately by DEA pursuant to the arrest that they effected, and that’s what they did, as my evidence would show, they arrested them on that date, went down, printed them, and everything else and then they were released, per our instructions, for future indictment. Our theory is that that was, that was seized pursuant to the arrest.\nThe Court: The second arrest.\nMr. Merkel: The arrest occurred at the time that they were armed with a certain warrant. They had a search warrant in them back pocket which they did not use, but they made a return on it....\nThe Court: They seized the money after they had given it back to them.\nMr. . Merkel: It has been suppressed. I don’t think that that’s binding on this Court. Number one, I think that’s a question that can still be answered here. Number two, this is in the form, I think, of a motion to suppress, and I think it’s awfully late in the game to be raising that question. I mean, that’s a pretrial motion, as I understand it, under Rule 12. [Bond’s Counsel]: It would be awful tough to have done that when you get the document in and of itself on the day that the trial begins. As far as the discussion the week before that, he may have mentioned it.... There was an awful lot of talking going on with a lot of people. But at the same time, but I think that once a court of competent jurisdiction has found that evidence to be suppressed and that was it was illegally seized—\nThe Court: Here is what I have a problem with, they seized it, and it was suppressed, then they seized it again. Well, the second seizure has never been suppressed.\n* * * * * *\nThe Court: I am going to leave it like it is. Let’s go.\n(Trial Tr. at 449-51, Bond App. at 11-13.)\nBond ultimately was convicted, and he retained new counsel on appeal. Bond testified at the section 2255 hearing that he discussed with appellate counsel the possibility of raising the suppression issue on appeal and that he never instructed counsel to abandon the issue. (Dec. 19, 1991 Tr. at 22.) Nonetheless, his appellate counsel did not raise the ineffectiveness of counsel claim Bond now pursues or the related claims that follow from it. Instead, Bond’s direct appeal challenged only the CCE conviction, the sufficiency of the evidence supporting it, and the sufficiency of the CCE count in the indictment. We rejected these arguments and affirmed Bond’s conviction. See Bond, 847 F.2d at 1236-40.\nBond’s section 2255 motion advances essentially the same arguments he raised on direct appeal, but on different factual grounds that focus on the cocaine charges. The linchpin of his motion is the new claim that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to keep from the jury evidence purportedly seized in violation of the Fourth Amendment.\nII. ANALYSIS\nA defendant may challenge his conviction under section 2255 on a ground not raised on direct appeal only by showing: (1) both good cause for his failure to raise the issue on direct appeal and actual prejudice from the newly-asserted errors (see United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982)); or (2) that the district court’s refusal to consider the issue on procedural grounds would lead to a fundamental miscarriage of justice. See Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 2667-68, 91 L.Ed.2d 434 (1986). The district court dismissed Bond’s motion, finding no cause for his failure to raise the issues on direct appeal.\nOne possible cause for a movant’s failure to raise the ineffectiveness issue on direct appeal may be that appellate counsel were themselves ineffective. See Velarde v. United States, 972 F.2d 826, 827 (7th Cir.1992). For instance, appellate counsel may be “constitutionally deficient in omitting a dead-bang winner even while zealously pressing other strong (but unsuccessful) claims.” Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989). That “dead-bang winner” could be the argument that trial counsel made errors so serious that his representation fell “outside the wide range of professionally competent assistance.” Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); see also Evitts v. Lucey, 469 U.S. 387, 397, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). Ineffectiveness compounded by ineffectiveness in this way would leave a section 2255 motion as the only viable means for a defendant to seek relief from the errors of his trial lawyer.\nTo be sure, omitting a claim of ineffective assistance on direct appeal might be foolhardy — and possibly itself ineffective — if the argument is a “dead-bang winner.” But raising the issue on direct appeal presents its own perils because the argument must rest solely on the trial court record, which often offers little insight into counsel’s decision-making process. See United States v. Penass, 997 F.2d 1227, 1229 (7th Cir.1993); United States v. Taglia, 922 F.2d 413, 417 (7th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). Thus, as we observed in United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993), “a defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose.” Ineffective assistance claims almost always fail on direct appeal because we grant every indulgence “to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight.” Taglia, 922 F.2d at 417-18; see also Penass, 997 F.2d at 1229. In order to overcome this presumption of effective assistance, a criminal defendant often must supplement the record with extrinsic evidence that illuminates the attorney’s errors. Otherwise, “counsel’s apparent pratfalls [are] presumed to be failed stratagems rather than professional malpractice.” Taglia, 922 F.2d at 418. For that reason, a defendant who must supplement the trial record to support his ineffectiveness claim “will be well advised to wait till the postconviction stage and will be safe in doing so.” Id. at 419; see also Davenport, 986 F.2d at 1050. If the defendant has no extrinsic evidence that would support his claim, however, then Taglia requires that he raise the claim on direct appeal or lose it, for a defendant “must make his ineffective assistance claim at the earliest feasible opportunity.” Taglia, 922 F.2d at 418-19. Only if there is a need to embellish the picture of trial counsel’s performance with extrinsic evidence will we excuse the failure to raise the claim on direct appeal. Id.; see also Davenport, 986 F.2d at 1050.\nHere, the district court found that Bond’s ineffectiveness of trial counsel claim was barred because it was not raised on direct appeal: “Because the petitioner’s attorney on his direct appeal was not his trial counsel, he is barred from raising his ineffective assistance of trial counsel claim for the first time on post-conviction review.” United States v. Bond, No. 91 C 637, slip op. at 5 (S.D.Ill. Aug. 27,1992). As support for its conclusion, the district court relied on Velarde, where we observed that “[b]ecause Velarde’s attorney on direct appeal was also his trial counsel, he is not barred from raising his ineffectiveness of trial counsel claim for the first time on post-conviction review.” 972 F.2d at 827; see also Taglia, 922 F.2d at 418. Yet it does not follow from Velarde and Taglia that if trial and appellate counsel were different, an ineffectiveness of trial counsel claim is necessarily barred if not raised on direct review. In that circumstance, we look instead to whether the claim is based on evidence outside the trial record or whether the ineffectiveness is apparent from the trial record or from evidence that is a matter of public record. See Taglia, 922 F.2d at 418.\nBond argues that he failed to advance his ineffectiveness claim on direct appeal because he needed to supplement the trial record. At the hearing, the district court heard evidence on two matters that are beyond the scope of the trial record: (1) that Bond’s trial attorney was being investigated for possible disciplinary violations at the time of Bond’s trial; and (2) that Bond had notified his counsel before trial of the search warrant issue (which was itself further developed at the section 2255 hearing) and that Bond’s counsel had lied to him about filing the motion to suppress. The district court apparently believed that this evidence was not relevant to Bond’s claims because it found that “[t]he trial record reveals all of the grounds currently alleged by the petitioner in his 2255 motion, including the alleged ineffectiveness of trial counsel.” Bond, No. 91 CV 637, slip op. at 5. We disagree and therefore find that Bond did not lose his ineffective assistance claim by failing to raise it on direct appeal.\nA. Disciplinary Proceedings\nBond contends that an investigation of his trial attorney by the Illinois Attorney Registration and Disciplinary Commission (“ARDC”) distracted his counsel so profoundly that he “prepared and tried [the] case beneath a Sword of Damocles.” (Bond’s Br. at 15.) Bond maintains that his counsel was scheduled for an ARDC interview on disciplinary charges at the same time that he was defending Bond at trial and that the coincidence of the preliminary disciplinary proceeding with Bond’s trial led to substandard representation. The fact of the disciplinary proceeding was not disclosed by the trial record and could be brought to the district court’s attention only through the submission of supplemental evidence. Because we find that investigation possibly relevant to the ineffectiveness claim, Bond was justified in waiting until the postconviction stage to raise the issue. Yet, because Bond presented no evidence at the section 2255 hearing to establish in what way the incipient disciplinary action affected his counsel so as to deprive Bond of effective representation under the Sixth Amendment, the extrinsic evidence relating to the ARDC investigation adds nothing to his claim.\nCourts consistently have declined to adopt a per se rule that ineffective assistance always results when a disciplinary action is pending against the defendant’s attorney. The Supreme Court has cautioned that a per se rule should be applied only when it “will achieve the correct result in almost all cases” and not “when application of the presumption will not reach the correct result most of the time.” Coleman v. Thompson, - U.S. -, -, 111 S.Ct. 2546, 2558, 115 L.Ed.2d 640 (1991). More to the point, the Court has held that the “breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel” under Strickland. Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 993, 89 L.Ed.2d 123 (1986). Of course, Nix involved an alleged breach of ethics in the course of counsel’s representation of the defendant himself, whereas the ARDC investigation of Bond’s trial counsel related to a separate matter. But we previously have rejected a per se rule in that context as well. In United States v. Williams, 934 F.2d 847, 851-52 (7th Cir.1991), for example, we declined to adopt a per se rule of ineffectiveness when an attorney’s license was suspended after a defendant’s trial due to his neglect of other clients’ legal matters. We instead required the defendant to show “actual errors and omissions by counsel that prejudiced the defense.” Id. at 852. We similarly have found that representation by an attorney suspended from the state bar for nonpayment of dues at the time of a defendant’s trial did not necessarily violate the Sixth Amendment. Reese v. Peters, 926 F.2d 668, 670 (7th Cir.1991).\nOther circuits similarly have refused to find per se ineffectiveness when an attorney has been suspended or disbarred, or when he has performed under other professional or personal duress. The sole exception that has been recognized is when a representative, unbeknownst to his client, has never been admitted to the practice of law in any state, either because he has never applied for admission or because he has been denied admission for a reason related to legal ability. See, e.g., Solina v. United States, 709 F.2d 160, 167 (2d Cir.1983); see also Reese, 926 F.2d at 670; United States v. Hoffman, 733 F.2d 596, 599-600 (9th Cir.) (collecting cases), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). Because Bond’s attorney was a member of the Illinois bar before and during Bond’s trial, this case is not akin to those in which courts have applied a per se rule of ineffective assistance, and we decline to do so here. Rather, to make out an ineffectiveness claim, Bond must demonstrate that he was prejudiced by an actual error or omission that fell below the range of reasonable, professional, and conscientious representation. See Williams, 934 F.2d at 852. The ARDC investigation is only relevant to that claim if Bond could link an error or omission of his trial counsel to the pending investigation. He made no attempt to do so here. Thus, although Bond established cause for failing to raise on direct appeal an ineffectiveness claim based in part on the disciplinary investigation, he established no actual prejudice from the ARDC investigation of his trial counsel. See Frady, 456 U.S.-at 168, 102 S.Ct. at 1594; see also supra, at 634-35. On remand, the district court need not provide Bond another opportunity to establish prejudice, and it therefore need not consider the ARDC matter further. That aspect of Bond’s ineffectiveness claim fails.\nB. Motion to Suppress\nThe extrinsic evidence pertaining to the suppression issue, however, provides a stronger basis for Bond’s ineffective assistance claim. Bond argues that appellate counsel could not have raised this issue in the earlier appeal because the record of trial counsel’s ineffectiveness was not fully developed. Although the district court disagreed, we find that Bond was justified in bypassing the issue on direct appeal in order to supplement the record for post-conviction review. In other words, we think Bond’s extrinsic evidence was relevant to whether his Sixth Amendment rights were violated and that the district court should have considered the claim on its merits.\nConsidered in isolation, the colloquy about whether the money should be suppressed that occurred during the third week of trial (see supra, at 633-34) might suggest that Bond’s counsel was unprepared, disorganized, and ultimately ineffective in failing to either pursue the matter earlier or make an offer of proof as to why suppression was appropriate. Despite the government’s rather charitable characterization, trial counsel’s belated attempt to exclude the evidence hardly seems an intentional trial tactic enabling him to argue later that the suitcase did not belong to Bond. That aside, it is unlikely that we would have found that counsel’s performance was unreasonable from the trial transcript alone. The district court’s finding to the contrary notwithstanding, more was needed for Bond to attempt to establish ineffective assistance. For example, without Ciuffa’s testimony relating to the circumstances of the state court hearing and Bond’s representation that he had made trial counsel aware of those circumstances and that counsel himself recognized the need for a suppression motion, we might presume a tactical decision or failed strategy rather than professional malpractice. See Taglia, 922 F.2d at 417-18. Bond’s extrinsic evidence is aimed at rebutting that presumption.\nWe do not decide today whether the supplemental evidence Bond offered establishes that his trial counsel was ineffective. We hold only that Bond did not default this claim by failing to raise it on direct appeal. The evidence adduced at the section 2255 hearing adds to Bond’s claim the possibility that his counsel had knowledge of but failed to investigate the warrant issue and that he may have lied to Bond about having filed a motion to suppress. Of course, this is only Bond’s take on events, and because the district court found a procedural default, it never assessed his credibility. Moreover, Bond’s trial counsel did not testify at the hearing and did not submit an affidavit to either confirm or deny Bond’s testimony. Yet that testimony can hardly be ignored as irrelevant to Bond’s claim. Bond established cause for his failure to raise the ineffectiveness issue on direct review — the record required the kind of elaboration that is possible only in a postconviction proceeding. See Taglia, 922 F.2d at 418-19. The district court therefore erred in barring Bond’s claim.\nFinally, we must decide whether we or the district court are best situated to consider Bond’s claim at this juncture. Our decisions make clear that ineffective assistance claims are best handled in the first instance by the district court, which has had the opportunity to observe and interact with counsel. See, e.g., United States v. Booker, 981 F.2d 289, 292 (7th Cir.1992). At the same time, we have been willing to resolve such claims “even without benefit of the district court’s views ‘if the issue is sufficiently clear-cut.’ ” United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991) (quoting Johnson v. United States, 805 F.2d 1284, 1290 (7th Cir.1986)), cert. denied, — U.S. -, 112 S.Ct. 1962, 118 L.Ed.2d 563 (1992). We think the district court is in the better position here, for Judge Beatty observed trial counsel’s representation in the course of Bond’s trial and heard Bond’s testimony in this supplemental proceeding. The district court should therefore consider Bond’s claims on remand in accordance with Lockhart v. Fretwell, — U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), to determine whether Bond’s counsel was ineffective and whether that ineffectiveness deprived Bond of a fair trial — that is, a trial whose result is reliable. See also Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. A supplemental hearing may aid the resolution of Bond’s claims.\nIII. CONCLUSION\nFor the foregoing reasons, we find that Bond’s ineffective assistance of counsel claim is not barred by his failure to raise it on direct review. We reverse the district court’s judgment and remand for further proceedings consistent with this opinion.\nReversed and Remakded.\n. At trial, however, the government asserted that the seizure occurred pursuant to an arrest. The government makes the same argument here.\n. By the same token, counsel's strategy decisions — including the decision not to pursue a plethora of issues on appeal — ordinarily do not violate the Sixth Amendment’s guarantee of effective assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); Rogers-Bey v. Lane, 896 F.2d 279, 282 n. 2 (7th Cir.), cert. denied, 498 U.S. 831, 111 S.Ct. 93, 112 L.Ed.2d 65 (1990). Lawyers, after all, \"need not pursue every conceivable avenue; they are entitled to be selective.” United States v. Davenport, 986 F.2d 1047, 1049 (7th Cir.1993) (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). Indeed, selectivity is imperative because \"[d]efendants need dedicated, skillful appellate counsel, not routineers who present every non-frivolous claim.” Page, 884 F.2d at 302.\n. In addition to proving that counsel's performance was deficient (the “performance prong”), a defendant claiming ineffective assistance also must show that his attorney's deficient performance prejudiced him (the \"prejudice prong”) by causing an unreliable result at trial, ,or a fundamentally unfair proceeding. See Lockhart v. Fretwell, - U.S. -, -, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).\n. We explained in Davenport that\n[t]he best the defendant can hope for is a remand, with instructions to explore explanations for conduct that appears questionable. We have not found any case in this circuit reversing a judgment without such a remand. If all the defendant can get is an opportunity to enlarge the record — something he could obtain with less fuss by a proceeding under § 2255— then raising ineffective assistance on appeal does the defendant no favors. For a defendant assuredly can lose such an argument. 986 F.2d at 1050 (emphasis in Davenport); see also Taglia, 922 F.2d at 418 (a defendant \"is unlikely to get to first base [on a section 2255 motion] if he already has presented a claim of ineffective assistance of counsel to the court of appeals unsuccessfully.”).\n. In a close case, we must err on the side of permitting the extrinsic evidence and entertain the claim so as to avoid punishing a defendant who waited to supplement the record with evidence that we later find irrelevant.\n. The Court explained:\nWhen examining attorney conduct, a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state’s proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts.\nId.\n. The order of suspension had been entered in the course of the defendant’s trial but did not take effect until the trial had been completed. Id. at 851.\n. See, e.g., Bellamy v. Cogdell, 974 F.2d 302, 308 (2d Cir.1992) (en banc) (\"[Tjhere is simply nothing inherent in an attorney's illness that necessarily will impede a spirited defense 'most of the time’ to justify finding the attorney’s representation per se ineffective”), cert. denied, — U.S. -, 113 S.Ct. 1383, 122 L.Ed.2d 759 (1993); United States v. Stevens, 978 F.2d 565, 567 (10th Cir.1992) (no per se ineffective assistance when counsel is disbarred at time of proceedings and no one, himself included, is aware of his status); Waterhouse v. Rodriguez, 848 F.2d 375, 382-83 (2d Cir.1988) (rejecting per se rule of ineffectiveness when licensed attorney is unknowingly disbarred immediately before or during trial); United States v. Mouzin, 785 F.2d 682, 698 (9th Cir.)' (\"Neither suspension nor disbarment invites a per se rule that continued representation in an ongoing trial is constitutionally ineffective”), cert. denied, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 577 (1986); United States v. Hoffman, 733 F.2d 596, 599-601 (9th Cir.) (eschewing per se rule that attorney’s suspension by state bar automatically results in the denial of effective counsel in federal district court in another state), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984).", "type": "majority", "author": "ILANA DIAMOND ROVNER, Circuit Judge."}], "attorneys": ["Alan G. Kimbrell (argued), St. Louis, MO, for petitioner-appellant.", "Robert T. Coleman, Asst. U.S. Atty., Thomas Edward Leggans (argued), Crim. Div., Fairview Heights, IL, for respondent-appellee."], "corrections": "", "head_matter": "Earl Dean BOND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nNo. 92-3289.\nUnited States Court of Appeals, Seventh Circuit.\nArgued March 2, 1993.\nDecided Aug. 6, 1993.\nAlan G. Kimbrell (argued), St. Louis, MO, for petitioner-appellant.\nRobert T. Coleman, Asst. U.S. Atty., Thomas Edward Leggans (argued), Crim. Div., Fairview Heights, IL, for respondent-appellee.\nBefore RIPPLE, KANNE, and ROVNER, Circuit Judges."}	RIPPLE	KANNE	ROVNER	1	1	1	0	0	0	1 F.3d 631	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Earl Dean BOND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-06\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nILANA DIAMOND ROVNER, Circuit Judge.\nEarl Dean Bond appeals from the denial of his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence. Because we conclude that the district court erred in barring Bond’s ineffective assistance of counsel claim, we reverse its judgment and remand for further proceedings.\nI. FACTS\nA jury convicted Bond of engaging in a continuing criminal enterprise (CCE); conspiring to distribute cocaine and more than fifty kilograms of marijuana; and attempting to possess with the intent to distribute more than fifty kilograms of marijuana. He appealed, and we affirmed. See United States v. Bond, 847 F.2d 1233 (7th Cir.1988). As a result of his conviction and sentence, Bond forfeited approximately $128,000 discovered in a brown suitcase that was seized by drug enforcement agents from a hotel room in Chesterfield, Missouri. That seizure and the admission of the money into evidence at his trial are the focal points of Bond’s section 2255 motion and this appeal. Bond contends that agents seized the suitcase pursuant to an invalid search warrant, which was subsequently quashed by a state court judge. Conceding that the warrant was invalid, the government maintained at Bond’s trial that the search and seizure were nonetheless justified under the exigent circumstances exception to the warrant requirement. See, e.g., Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978); United States v. Hughes, 993 F.2d 1313, 1315 (7th Cir.1993).\nBond’s section 2255 motion focuses primarily on the fact that his trial counsel did not move to suppress the allegedly improper evidence until the trial was well under way. The district court found the motion untimely and admitted the money into evidence. Bond also claims that his trial counsel should have made an offer of proof as to why suppression would have been appropriate.\nAt a hearing on the section 2255 motion, Robert Ciuffa, an attorney who represented Bond in Missouri state court, testified that he had convinced a state court judge to quash the warrant pursuant to which Bond’s bag had been seized and to order that the suitcase and money be returned to Bond. Ciuffa recalled that at the state hearing, an Assistant United States Attorney had not disputed Bond’s contention that the suitcase had been seized pursuant to the search warrant alone. After the state judge quashed the warrant, Ciuffa obtained the suitcase and money from the St. Louis County Police Department. But before long, federal drug enforcement agents seized the items from Ciuffa without a warrant and without arresting Bond. Bond had not yet been indicted on federal charges at that time.\nBond also testified at the section 2255 hearing. Bond said that two months prior to trial, he had told his trial attorney about the seizure of the suitcase from the hotel room, explaining that he “felt that the Government was going to use that as part of [its] evidence .... ” (Dec. 19, 1991 Tr. at 19.) He had informed his new counsel that Ciuffa had been successful in quashing the warrant and that Ciuffa “had all the records and that he should be contacted to help us on a suppression motion.” (Id.) According to Bond, he and his trial counsel had discussed the filing of a motion to suppress “on numerous occasions,” and his attorney had “said that he would contact Mr. Ciuffa and get all the records and make arrangements to file a motion to suppress.” (Id. at 19-20.) Finally, Bond testified that he had asked his counsel about the motion to suppress on the first day of his trial, and counsel had told him “that it had been filed but it had been denied.” (Id.)\nIn fact, Bond’s attorney had never filed a motion to suppress. Instead, he raised the issue for the first time during the third week of trial, when he told the district court that the money had been seized by drug enforcement agents and that it should be excluded from evidence because its admission would violate both the Missouri and United States Constitutions. The exchange that then took place between the district court, Bond’s trial attorney, and the government attorney seemingly contradicts Bond’s account inasmuch as it suggests that his trial counsel had been unaware until, at the earliest, the week before Bond’s trial that the search warrant had been quashed:\n[Bond’s Counsel]: That document [the order quashing the search warrant] wasn’t given to me. It was laying out here in the courtroom Monday when we started to pick the jury. Quite frankly, I didn’t catch it. I don’t see much problem with stopping the evidence now regarding it, but I do think that as long as it’s been declared, the search and seizure were declared unconstitutional by a recognized Court, that it shouldn’t proceed.\nMe. Meekel; ... [I]n regards to the material that [counsel] has, we talked the week before trial about that material, and I told him about the suppression of it over in St. Louis, and we met in my office, and he didn’t have enough time to stay, and I said I would get it to him as quickly as I could, the additional copies of documents that had not been provided, as far as I could tell, up to that time. We copied those and I laid them out here for everybody the morning that we picked the jury, Monday, and that’s correct, but there was discussion about it before that time. As to, and there is a search warrant involved in what happened with DEA that was never in fact executed as far as I can tell, but which was returned and the money listed as what was seized.... There was a state court judge that ordered that money returned. It was returned to Mr. Bond’s attorney at that time, and reseized immediately by DEA pursuant to the arrest that they effected, and that’s what they did, as my evidence would show, they arrested them on that date, went down, printed them, and everything else and then they were released, per our instructions, for future indictment. Our theory is that that was, that was seized pursuant to the arrest.\nThe Court: The second arrest.\nMr. Merkel: The arrest occurred at the time that they were armed with a certain warrant. They had a search warrant in them back pocket which they did not use, but they made a return on it....\nThe Court: They seized the money after they had given it back to them.\nMr. . Merkel: It has been suppressed. I don’t think that that’s binding on this Court. Number one, I think that’s a question that can still be answered here. Number two, this is in the form, I think, of a motion to suppress, and I think it’s awfully late in the game to be raising that question. I mean, that’s a pretrial motion, as I understand it, under Rule 12. [Bond’s Counsel]: It would be awful tough to have done that when you get the document in and of itself on the day that the trial begins. As far as the discussion the week before that, he may have mentioned it.... There was an awful lot of talking going on with a lot of people. But at the same time, but I think that once a court of competent jurisdiction has found that evidence to be suppressed and that was it was illegally seized—\nThe Court: Here is what I have a problem with, they seized it, and it was suppressed, then they seized it again. Well, the second seizure has never been suppressed.\n* * * * * *\nThe Court: I am going to leave it like it is. Let’s go.\n(Trial Tr. at 449-51, Bond App. at 11-13.)\nBond ultimately was convicted, and he retained new counsel on appeal. Bond testified at the section 2255 hearing that he discussed with appellate counsel the possibility of raising the suppression issue on appeal and that he never instructed counsel to abandon the issue. (Dec. 19, 1991 Tr. at 22.) Nonetheless, his appellate counsel did not raise the ineffectiveness of counsel claim Bond now pursues or the related claims that follow from it. Instead, Bond’s direct appeal challenged only the CCE conviction, the sufficiency of the evidence supporting it, and the sufficiency of the CCE count in the indictment. We rejected these arguments and affirmed Bond’s conviction. See Bond, 847 F.2d at 1236-40.\nBond’s section 2255 motion advances essentially the same arguments he raised on direct appeal, but on different factual grounds that focus on the cocaine charges. The linchpin of his motion is the new claim that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to keep from the jury evidence purportedly seized in violation of the Fourth Amendment.\nII. ANALYSIS\nA defendant may challenge his conviction under section 2255 on a ground not raised on direct appeal only by showing: (1) both good cause for his failure to raise the issue on direct appeal and actual prejudice from the newly-asserted errors (see United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982)); or (2) that the district court’s refusal to consider the issue on procedural grounds would lead to a fundamental miscarriage of justice. See Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 2667-68, 91 L.Ed.2d 434 (1986). The district court dismissed Bond’s motion, finding no cause for his failure to raise the issues on direct appeal.\nOne possible cause for a movant’s failure to raise the ineffectiveness issue on direct appeal may be that appellate counsel were themselves ineffective. See Velarde v. United States, 972 F.2d 826, 827 (7th Cir.1992). For instance, appellate counsel may be “constitutionally deficient in omitting a dead-bang winner even while zealously pressing other strong (but unsuccessful) claims.” Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989). That “dead-bang winner” could be the argument that trial counsel made errors so serious that his representation fell “outside the wide range of professionally competent assistance.” Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); see also Evitts v. Lucey, 469 U.S. 387, 397, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). Ineffectiveness compounded by ineffectiveness in this way would leave a section 2255 motion as the only viable means for a defendant to seek relief from the errors of his trial lawyer.\nTo be sure, omitting a claim of ineffective assistance on direct appeal might be foolhardy — and possibly itself ineffective — if the argument is a “dead-bang winner.” But raising the issue on direct appeal presents its own perils because the argument must rest solely on the trial court record, which often offers little insight into counsel’s decision-making process. See United States v. Penass, 997 F.2d 1227, 1229 (7th Cir.1993); United States v. Taglia, 922 F.2d 413, 417 (7th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). Thus, as we observed in United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993), “a defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose.” Ineffective assistance claims almost always fail on direct appeal because we grant every indulgence “to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight.” Taglia, 922 F.2d at 417-18; see also Penass, 997 F.2d at 1229. In order to overcome this presumption of effective assistance, a criminal defendant often must supplement the record with extrinsic evidence that illuminates the attorney’s errors. Otherwise, “counsel’s apparent pratfalls [are] presumed to be failed stratagems rather than professional malpractice.” Taglia, 922 F.2d at 418. For that reason, a defendant who must supplement the trial record to support his ineffectiveness claim “will be well advised to wait till the postconviction stage and will be safe in doing so.” Id. at 419; see also Davenport, 986 F.2d at 1050. If the defendant has no extrinsic evidence that would support his claim, however, then Taglia requires that he raise the claim on direct appeal or lose it, for a defendant “must make his ineffective assistance claim at the earliest feasible opportunity.” Taglia, 922 F.2d at 418-19. Only if there is a need to embellish the picture of trial counsel’s performance with extrinsic evidence will we excuse the failure to raise the claim on direct appeal. Id.; see also Davenport, 986 F.2d at 1050.\nHere, the district court found that Bond’s ineffectiveness of trial counsel claim was barred because it was not raised on direct appeal: “Because the petitioner’s attorney on his direct appeal was not his trial counsel, he is barred from raising his ineffective assistance of trial counsel claim for the first time on post-conviction review.” United States v. Bond, No. 91 C 637, slip op. at 5 (S.D.Ill. Aug. 27,1992). As support for its conclusion, the district court relied on Velarde, where we observed that “[b]ecause Velarde’s attorney on direct appeal was also his trial counsel, he is not barred from raising his ineffectiveness of trial counsel claim for the first time on post-conviction review.” 972 F.2d at 827; see also Taglia, 922 F.2d at 418. Yet it does not follow from Velarde and Taglia that if trial and appellate counsel were different, an ineffectiveness of trial counsel claim is necessarily barred if not raised on direct review. In that circumstance, we look instead to whether the claim is based on evidence outside the trial record or whether the ineffectiveness is apparent from the trial record or from evidence that is a matter of public record. See Taglia, 922 F.2d at 418.\nBond argues that he failed to advance his ineffectiveness claim on direct appeal because he needed to supplement the trial record. At the hearing, the district court heard evidence on two matters that are beyond the scope of the trial record: (1) that Bond’s trial attorney was being investigated for possible disciplinary violations at the time of Bond’s trial; and (2) that Bond had notified his counsel before trial of the search warrant issue (which was itself further developed at the section 2255 hearing) and that Bond’s counsel had lied to him about filing the motion to suppress. The district court apparently believed that this evidence was not relevant to Bond’s claims because it found that “[t]he trial record reveals all of the grounds currently alleged by the petitioner in his 2255 motion, including the alleged ineffectiveness of trial counsel.” Bond, No. 91 CV 637, slip op. at 5. We disagree and therefore find that Bond did not lose his ineffective assistance claim by failing to raise it on direct appeal.\nA. Disciplinary Proceedings\nBond contends that an investigation of his trial attorney by the Illinois Attorney Registration and Disciplinary Commission (“ARDC”) distracted his counsel so profoundly that he “prepared and tried [the] case beneath a Sword of Damocles.” (Bond’s Br. at 15.) Bond maintains that his counsel was scheduled for an ARDC interview on disciplinary charges at the same time that he was defending Bond at trial and that the coincidence of the preliminary disciplinary proceeding with Bond’s trial led to substandard representation. The fact of the disciplinary proceeding was not disclosed by the trial record and could be brought to the district court’s attention only through the submission of supplemental evidence. Because we find that investigation possibly relevant to the ineffectiveness claim, Bond was justified in waiting until the postconviction stage to raise the issue. Yet, because Bond presented no evidence at the section 2255 hearing to establish in what way the incipient disciplinary action affected his counsel so as to deprive Bond of effective representation under the Sixth Amendment, the extrinsic evidence relating to the ARDC investigation adds nothing to his claim.\nCourts consistently have declined to adopt a per se rule that ineffective assistance always results when a disciplinary action is pending against the defendant’s attorney. The Supreme Court has cautioned that a per se rule should be applied only when it “will achieve the correct result in almost all cases” and not “when application of the presumption will not reach the correct result most of the time.” Coleman v. Thompson, - U.S. -, -, 111 S.Ct. 2546, 2558, 115 L.Ed.2d 640 (1991). More to the point, the Court has held that the “breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel” under Strickland. Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 993, 89 L.Ed.2d 123 (1986). Of course, Nix involved an alleged breach of ethics in the course of counsel’s representation of the defendant himself, whereas the ARDC investigation of Bond’s trial counsel related to a separate matter. But we previously have rejected a per se rule in that context as well. In United States v. Williams, 934 F.2d 847, 851-52 (7th Cir.1991), for example, we declined to adopt a per se rule of ineffectiveness when an attorney’s license was suspended after a defendant’s trial due to his neglect of other clients’ legal matters. We instead required the defendant to show “actual errors and omissions by counsel that prejudiced the defense.” Id. at 852. We similarly have found that representation by an attorney suspended from the state bar for nonpayment of dues at the time of a defendant’s trial did not necessarily violate the Sixth Amendment. Reese v. Peters, 926 F.2d 668, 670 (7th Cir.1991).\nOther circuits similarly have refused to find per se ineffectiveness when an attorney has been suspended or disbarred, or when he has performed under other professional or personal duress. The sole exception that has been recognized is when a representative, unbeknownst to his client, has never been admitted to the practice of law in any state, either because he has never applied for admission or because he has been denied admission for a reason related to legal ability. See, e.g., Solina v. United States, 709 F.2d 160, 167 (2d Cir.1983); see also Reese, 926 F.2d at 670; United States v. Hoffman, 733 F.2d 596, 599-600 (9th Cir.) (collecting cases), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). Because Bond’s attorney was a member of the Illinois bar before and during Bond’s trial, this case is not akin to those in which courts have applied a per se rule of ineffective assistance, and we decline to do so here. Rather, to make out an ineffectiveness claim, Bond must demonstrate that he was prejudiced by an actual error or omission that fell below the range of reasonable, professional, and conscientious representation. See Williams, 934 F.2d at 852. The ARDC investigation is only relevant to that claim if Bond could link an error or omission of his trial counsel to the pending investigation. He made no attempt to do so here. Thus, although Bond established cause for failing to raise on direct appeal an ineffectiveness claim based in part on the disciplinary investigation, he established no actual prejudice from the ARDC investigation of his trial counsel. See Frady, 456 U.S.-at 168, 102 S.Ct. at 1594; see also supra, at 634-35. On remand, the district court need not provide Bond another opportunity to establish prejudice, and it therefore need not consider the ARDC matter further. That aspect of Bond’s ineffectiveness claim fails.\nB. Motion to Suppress\nThe extrinsic evidence pertaining to the suppression issue, however, provides a stronger basis for Bond’s ineffective assistance claim. Bond argues that appellate counsel could not have raised this issue in the earlier appeal because the record of trial counsel’s ineffectiveness was not fully developed. Although the district court disagreed, we find that Bond was justified in bypassing the issue on direct appeal in order to supplement the record for post-conviction review. In other words, we think Bond’s extrinsic evidence was relevant to whether his Sixth Amendment rights were violated and that the district court should have considered the claim on its merits.\nConsidered in isolation, the colloquy about whether the money should be suppressed that occurred during the third week of trial (see supra, at 633-34) might suggest that Bond’s counsel was unprepared, disorganized, and ultimately ineffective in failing to either pursue the matter earlier or make an offer of proof as to why suppression was appropriate. Despite the government’s rather charitable characterization, trial counsel’s belated attempt to exclude the evidence hardly seems an intentional trial tactic enabling him to argue later that the suitcase did not belong to Bond. That aside, it is unlikely that we would have found that counsel’s performance was unreasonable from the trial transcript alone. The district court’s finding to the contrary notwithstanding, more was needed for Bond to attempt to establish ineffective assistance. For example, without Ciuffa’s testimony relating to the circumstances of the state court hearing and Bond’s representation that he had made trial counsel aware of those circumstances and that counsel himself recognized the need for a suppression motion, we might presume a tactical decision or failed strategy rather than professional malpractice. See Taglia, 922 F.2d at 417-18. Bond’s extrinsic evidence is aimed at rebutting that presumption.\nWe do not decide today whether the supplemental evidence Bond offered establishes that his trial counsel was ineffective. We hold only that Bond did not default this claim by failing to raise it on direct appeal. The evidence adduced at the section 2255 hearing adds to Bond’s claim the possibility that his counsel had knowledge of but failed to investigate the warrant issue and that he may have lied to Bond about having filed a motion to suppress. Of course, this is only Bond’s take on events, and because the district court found a procedural default, it never assessed his credibility. Moreover, Bond’s trial counsel did not testify at the hearing and did not submit an affidavit to either confirm or deny Bond’s testimony. Yet that testimony can hardly be ignored as irrelevant to Bond’s claim. Bond established cause for his failure to raise the ineffectiveness issue on direct review — the record required the kind of elaboration that is possible only in a postconviction proceeding. See Taglia, 922 F.2d at 418-19. The district court therefore erred in barring Bond’s claim.\nFinally, we must decide whether we or the district court are best situated to consider Bond’s claim at this juncture. Our decisions make clear that ineffective assistance claims are best handled in the first instance by the district court, which has had the opportunity to observe and interact with counsel. See, e.g., United States v. Booker, 981 F.2d 289, 292 (7th Cir.1992). At the same time, we have been willing to resolve such claims “even without benefit of the district court’s views ‘if the issue is sufficiently clear-cut.’ ” United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991) (quoting Johnson v. United States, 805 F.2d 1284, 1290 (7th Cir.1986)), cert. denied, — U.S. -, 112 S.Ct. 1962, 118 L.Ed.2d 563 (1992). We think the district court is in the better position here, for Judge Beatty observed trial counsel’s representation in the course of Bond’s trial and heard Bond’s testimony in this supplemental proceeding. The district court should therefore consider Bond’s claims on remand in accordance with Lockhart v. Fretwell, — U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), to determine whether Bond’s counsel was ineffective and whether that ineffectiveness deprived Bond of a fair trial — that is, a trial whose result is reliable. See also Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. A supplemental hearing may aid the resolution of Bond’s claims.\nIII. CONCLUSION\nFor the foregoing reasons, we find that Bond’s ineffective assistance of counsel claim is not barred by his failure to raise it on direct review. We reverse the district court’s judgment and remand for further proceedings consistent with this opinion.\nReversed and Remakded.\n. At trial, however, the government asserted that the seizure occurred pursuant to an arrest. The government makes the same argument here.\n. By the same token, counsel's strategy decisions — including the decision not to pursue a plethora of issues on appeal — ordinarily do not violate the Sixth Amendment’s guarantee of effective assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); Rogers-Bey v. Lane, 896 F.2d 279, 282 n. 2 (7th Cir.), cert. denied, 498 U.S. 831, 111 S.Ct. 93, 112 L.Ed.2d 65 (1990). Lawyers, after all, \"need not pursue every conceivable avenue; they are entitled to be selective.” United States v. Davenport, 986 F.2d 1047, 1049 (7th Cir.1993) (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). Indeed, selectivity is imperative because \"[d]efendants need dedicated, skillful appellate counsel, not routineers who present every non-frivolous claim.” Page, 884 F.2d at 302.\n. In addition to proving that counsel's performance was deficient (the “performance prong”), a defendant claiming ineffective assistance also must show that his attorney's deficient performance prejudiced him (the \"prejudice prong”) by causing an unreliable result at trial, ,or a fundamentally unfair proceeding. See Lockhart v. Fretwell, - U.S. -, -, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).\n. We explained in Davenport that\n[t]he best the defendant can hope for is a remand, with instructions to explore explanations for conduct that appears questionable. We have not found any case in this circuit reversing a judgment without such a remand. If all the defendant can get is an opportunity to enlarge the record — something he could obtain with less fuss by a proceeding under § 2255— then raising ineffective assistance on appeal does the defendant no favors. For a defendant assuredly can lose such an argument. 986 F.2d at 1050 (emphasis in Davenport); see also Taglia, 922 F.2d at 418 (a defendant \"is unlikely to get to first base [on a section 2255 motion] if he already has presented a claim of ineffective assistance of counsel to the court of appeals unsuccessfully.”).\n. In a close case, we must err on the side of permitting the extrinsic evidence and entertain the claim so as to avoid punishing a defendant who waited to supplement the record with evidence that we later find irrelevant.\n. The Court explained:\nWhen examining attorney conduct, a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state’s proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts.\nId.\n. The order of suspension had been entered in the course of the defendant’s trial but did not take effect until the trial had been completed. Id. at 851.\n. See, e.g., Bellamy v. Cogdell, 974 F.2d 302, 308 (2d Cir.1992) (en banc) (\"[Tjhere is simply nothing inherent in an attorney's illness that necessarily will impede a spirited defense 'most of the time’ to justify finding the attorney’s representation per se ineffective”), cert. denied, — U.S. -, 113 S.Ct. 1383, 122 L.Ed.2d 759 (1993); United States v. Stevens, 978 F.2d 565, 567 (10th Cir.1992) (no per se ineffective assistance when counsel is disbarred at time of proceedings and no one, himself included, is aware of his status); Waterhouse v. Rodriguez, 848 F.2d 375, 382-83 (2d Cir.1988) (rejecting per se rule of ineffectiveness when licensed attorney is unknowingly disbarred immediately before or during trial); United States v. Mouzin, 785 F.2d 682, 698 (9th Cir.)' (\"Neither suspension nor disbarment invites a per se rule that continued representation in an ongoing trial is constitutionally ineffective”), cert. denied, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 577 (1986); United States v. Hoffman, 733 F.2d 596, 599-601 (9th Cir.) (eschewing per se rule that attorney’s suspension by state bar automatically results in the denial of effective counsel in federal district court in another state), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984).\n[END_CASE]", "role": "user" } ]
10,513,127	SWEET DREAMS UNLIMITED, INC., an Illinois Corporation, Plaintiff-Appellee, v. DIAL-A-MATTRESS INTERNATIONAL, LTD., a Delaware Corporation, Dial-A-Mattress Operating Corporation, a New York Corporation, Napoleon Barragan, Luis Barragan and Joseph Vicens, Defendants-Appellants	Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress International, Ltd.	1993-08-06	No. 92-3506	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before CUMMINGS, CUDAHY and ROVNER, Circuit Judges."], "parties": ["SWEET DREAMS UNLIMITED, INC., an Illinois Corporation, Plaintiff-Appellee, v. DIAL-A-MATTRESS INTERNATIONAL, LTD., a Delaware Corporation, Dial-A-Mattress Operating Corporation, a New York Corporation, Napoleon Barragan, Luis Barragan and Joseph Vicens, Defendants-Appellants."], "opinions": [{"text": "CUDAHY, Circuit Judge.\nDial-A-Mattress International, Ltd. and Sweet Dreams Unlimited, Inc. were joint venturers engaged in the business of telemarketing bedding products and accessories. The parties memorialized their relationship in an agreement signed March 8, 1991 (the Agreement). The Agreement provided that Sweet Dreams, in exchange for the right to use certain of Dial-A-Mattress’ trademarks, trade names and telephone numbers in the Chicago metropolitan area, would devise and implement a marketing campaign and operate a product delivery system for the parties’ mutual benefit. They were to divide the revenues generated by the venture, ninety percent to Sweet Dreams and ten percent to Dial-A-Mattress. The Agreement expired in four months, according to its own terms, but Sweet Dreams was given an option to purchase a Dial-A-Mattress franchise.\nSweet Dreams continued to market products under the Dial-A-Mattress trademark even after the Agreement expired. Dial-A-Mattress apparently did not object to this, and, to induce Sweet Dreams to continue its marketing efforts, offered to expand Sweet Dreams’ territory to include, first, the City of Los Angeles and, later, the entire continental United States (except for the State of New York). Sweet Dreams promptly accepted in both instances. Following substantial urging by Sweet Dreams, Dial-A-Mattress prepared a franchise agreement. This agreement was never executed and Dial-A-Mattress has, according to Sweet Dreams, “unreasonably and vexatiously refused to perform” according to it. Complaint, count II, ¶ 23. Dial-A-Mattress severed entirely the parties business relationship in 1992. Moreover, Sweet Dreams charges, Dial-A-Mattress interfered with Sweet Dreams’ arrangements with its suppliers in an attempt to force Sweet Dreams out of business and to usurp the successful marketing and distribution network that it had established.\nSweet Dreams filed a four-count complaint against Dial-A-Mattress in Illinois state court. Count I alleges that the Agreement violated Illinois law and that Sweet Dreams is, as a result, entitled to rescind it. In Count II, Sweet Dreams asserts that Dial-A-Mattress fraudulently induced it to continue making expenditures in developing the Chicago market after the Agreement had expired. Count III alleges the same with regard to the Los Angeles and national markets. Finally, Count IV alleges that Dial-A-Mattress intentionally interfered with certain of Sweet Dreams’ business relationships. Dial-A-Mattress removed the case to the district court, jurisdiction being properly predicated upon a diversity of citizenship, and promptly moved the court to dismiss or stay the litigation pending arbitration of the parties’ disputes.\nDial-A-Mattress argued that the Agreement relegated all of Sweet Dreams’ charges to arbitration and that, as a result, the litigation must be stayed pending completion of the arbitration proceedings. The district court, in a careful opinion, concluded that the arbitration provision at issue did not encompass the parties’ disputes and, consistent with this conclusion, denied Dial-A-Mattress’ motion. Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress International, Ltd., 803 F.Supp. 1358 (N.D.Ill.1992). Dial-A-Mattress appeals from this decision. In resolving this puzzling matter, the district court placed great emphasis on certain decisions of other circuits, which denied arbitration based on assertedly relevant differences in wording of the respective arbitration clauses. Although these cases are instructive, we believe that they are subtly, but nonetheless materially, distinguishable from the present one. We also note that one of these opinions has been so limited by the court that issued it that it appears no longer to support the proposition for which the district court cited it. As a result, we are left to rely upon the clear thrust of our own arbitration cases and, of course, upon binding instruction from the Supreme Court. Because we find that these authorities compel arbitration of the parties’ disputes, we reverse.\nIt is beyond peradventure that the Federal Arbitration Act embodies a strong federal policy in favor of arbitration. See, e.g., Moses H. Cone Mem. Hosp. v. Mercury Constr., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). But the duty to arbitrate remains one assumed by contract, and we will not compel parties to arbitrate disputes unless they have agreed to do so. National R.R. Passenger Corp. v. Chesapeake & Ohio Ry. Co., 551 F.2d 136, 140 (7th Cir.1977). Our analysis thus begins with the language of the Agreement’s arbitration provision itself: “Any disputes arising out of the agreement shall be settled and determined by the American Arbitration Association of the City of New York and their finding shall be binding and conclusive upon the parties hereto and judgment may be entered thereon in any court of record.” Agreement ¶4.\nIn deciding whether any or all of the counts of Sweet Dreams’ complaint are subject to arbitration, we must bear in mind that, “[a]n order to arbitrate [a] particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Id. (quoting United Steelworkers of America v. Wanior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960)). Turning to Count I of the complaint, we observe that Sweet Dreams has requested rescission of the Agreement pursuant to the Illinois Franchise Disclosure Act, 815 ILCS 705/1-705/42 (1993). This act prohibits offering for sale any franchise that has not been properly registered, 815 ILCS 705/5(1) (1993), and authorizes a franchisee that has purchased an unregistered franchise (which Sweet Dreams claims to be) to sue for rescission. 815 ILCS 705/26 (1993). A successful rescission action annuls the contract and returns the parties to the status quo ante. Howard O. Hunter, Modern Law of Contracts ¶ 3.02[4] (1986). We are thus confronted with an interesting, if not somewhat metaphysical, question: Does a dispute, which has as its object the nullification of a contract, “arise out of’ that same contract?\nThe Supreme Court has, we believe, answered this question in the affirmative, at least insofar as arbitration is concerned. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 1805-06, 18 L.Ed.2d 1270 (1967), the Court held, over a vigorous three-justice dissent, that a federal court may adjudicate issues going to the “ ‘making’ of the agreement to arbitrate” (in that case allegations of fraudulent inducement) but that the Federal Arbitration Act “does not permit [a] federal court to consider claims of fraud in the inducement of the contract generally.” The Prima Paint rule applies though only if the dispute falls within the scope of the particular arbitration clause in question. The Supreme Court had no trouble with this threshold issue, stating that the parties “contractual language is easily broad enough to encompass Prima Paint’s claim that both execution and acceleration of the ... agreement were procured by fraud.” Id. at 406, 87 S.Ct. at 1807. Seizing upon a difference in language in the Agreement’s arbitration provision and that involved in Prima Paint, the district court distinguished what it admitted would otherwise be binding authority compelling arbitration. We find the district court’s reasoning to be challenging, but do not believe that in the end it can stand.\nThe arbitration clause in Prima Paint provided that “[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbi-tration_” 388 U.S. at 398, 87 S.Ct. at 1803 (emphasis supplied). The district court reasoned that, because the phrase “relating to” appears in Prima Paint but not in the Agreement, the arbitration provision in the Agreement is narrower than that at issue in Prima Paint. The Agreement’s clause is so much narrower, the district court found, that “it would be anomalous to hold that a challenge to the very existence” of the Agreement is arbitrable pursuant to it. 803 F.Supp. at 1361. In reaching this conclusion, the district court relied principally upon Mediterranean Ent., Inc. v. Ssagyong, 708 F.2d 1458, 1464 (9th Cir.1983), which in turn relied upon In re Kinoshita & Co., 287 F.2d 951 (2d Cir.1961), both of which denied arbitration. The district court commented that the arbitration provisions in these cases were “essentially on all fours” with that in the Agreement. 803 F.Supp. at 1360. But we find the clauses to be different in one key respect.\nThe arbitration provision in Mediterranean Ent. stated: “Any disputes arising hereunder ... shall be settled through binding arbitration_” 708 F.2d at 1461 (emphasis supplied). The analogous clause in Kinoshita required arbitration of “any dispute or difference [that] should arise under [the agreement].” 287 F.2d at 952. Both courts accepted the argument that such clauses encompass only those disputes that relate to the interpretation and performance of the contract itself. 708 F.2d at 1464; 287 F.2d at 953. Here, of course, the arbitration provision reaches all disputes “arising out of” the Agreement. The district court did not comment on this difference, but we believe that it may be important. There is no need to disagree with the Second and Ninth Circuits that “arising under” may denote a dispute somehow limited to the interpretation and performance of the contract itself. We find, however, that “arising out of” reaches all disputes having their origin or genesis in the contract, whether or not they implicate interpretation or performance of the contract per se. We are not persuaded by Judge Medina’s dicta in Kinoshita that suggests an equation between “arising under” and “arising out of.” 287 F.2d at 953 (“The agreement to arbitrate is limited to [matters involving contract interpretation or performance] when it refers to controversies ‘under’ or ‘arising out of the contract_”) (emphasis supplied). We have indicated how our own analysis rejects such an equation. In addition, the authority of Kinoshita has been narrowed “to its precise facts.” S.A Mineracao da Trindade-Samitri v. Utah Int’l, Inc., 745 F.2d 190, 194 (2d Cir.1984). As a matter of “precise fact,” Kinoshita deals with the effect of “arising under” language.\nBearing in mind the Supreme Court’s instruction that “any doubt concerning the scope of arbitrable issues should be resolved in favor of arbitration,” Moses H. Cone Mem. Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1985), we conclude that Count I is subject to arbitration. The cases cited by the district court to the contrary are either, as we have suggested, distinguishable or are of less than compelling authority. Unlike the district court, we do not believe that adding “relating to” to “arising out of’ substantially broadens the scope of the clause as applied to the present complaint.\nAlthough Count I seeks to cancel the Agreement, it is nonetheless a result of the Agreement and has its origins in it. In that sense it “arises out of’ the Agreement and is subject to arbitration. In fact, any dispute between contracting parties that is in any way connected with their contract could be said to “arise out of’ their agreement and thus be subject to arbitration under a provision employing this language. At the very least, an “arising out of’ arbitration clause would “arguably eoverf ]” such disputes, and, under our cases, this is all that is needed to trigger arbitration. See Sehacht v. Beacon Ins. Co., 742 F.2d 386, 391 (7th Cir.1984).\nWe note that contracting parties control their own fate when it comes to deciding which disputes to consign to arbitration. On the one hand, they may delineate precisely those claims that are subject to arbitration or, on the other, they may employ general— even vague — language in their arbitration provisions. They may also combine these techniques by using general language to authorize arbitration together with specific language to identify the types of disputes that are not subject to arbitration, thereby limiting the reach of phrases such as “arising out of,” “arising under” or “arising out of or relating to.” See S.A. Mineracao Da Trindade-Samitri, 745 F.2d at 194. The parties here, however, have not taken any steps to narrow the reach of the Agreement’s arbitration clause, and, in the light of the heavy presumption in favor of arbitration, we are left to conclude that Count I is arbitrable.\nCounts II, III and IV, for the most part, relate to events occurring after the Agreement expired. Although somewhat difficult to decipher, Counts II and III seem to allege some species of the torts of fraud or misrepresentation. See Fowler V. Harper, Fleming James, Jr., & Oscar S. Gray, The Law of Torts §§ 7.1-7.15 (2d ed. 1986). Count IV more clearly alleges the tort of intentional interference with contractual advantage. See id. at §§ 6.5-6.9. Sweet Dreams contends that these counts are not arbitrable under the Agreement’s arbitration clause because they sound in tort. We have routinely held that a party may not avoid a contractual arbitration clause merely by “casting its complaint in tort.” See, e.g., In re Oil Spill by the “Amoco Cadiz” etc., 659 F.2d 789, 794 (7th Cir.1981) (quoting Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158, 159 (2d Cir.1967)). The touchstone of arbitrability in these circumstances is “the relationship of the claim to the subject matter of the arbitration clause.” Id.\nCounts II, III and IV do not raise issues of contract interpretation or performance. Nor are they connected to the contract in the sense that they challenge the validity of the contract. But they clearly have their genesis in the Agreement. Counts II and III allege that Dial-A-Mattress fraudulently induced Sweet Dreams to continue marketing efforts that were started pursuant to the Agreement. Complaint, Count II, ¶¶ 10-13 & Count III, ¶¶ 23-26. Similarly, Count IV alleges that Dial-A-Mattress interfered with business relations that developed “[f]rom March 8, 1991,” the date of the Agreement. Complaint, Count IV, ¶ 10. Keeping in mind the federal presumption in favor of arbitration, we conclude that these counts are related to the subject matter of the arbitration clause and subject to arbitration under it.\nSweet Dreams raises one last point that need not detain us long. It argues that the arbitration provision is inapposite because the Agreement has expired. The Supreme Court, however, has stated that “the failure to exclude from .arbitrability contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship.” Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 255, 97 S.Ct. 1067, 1074, 51 L.Ed.2d 300 (1977). Although Nolde Bros, involved a collectively bargained labor agreement and thus is arguably not dispositive here, we find its reasoning persuasive in this context as well. If the parties had wished to limit the duty to arbitrate to the term of the Agreement itself they could have said so explicitly. Instead, they used language that evinces an intent to commit to arbitration any dispute connected with the contract irrespective of when it occurs. We would be presented with a different and more difficult question if the disputes had arisen a significant time after the expiration of the Agreement. See, e.g., Local 703, Int’l Bhd. of Teamsters v. Kennicott, 771 F.2d 300 (7th Cir.1985) (holding that dispute arising six months after expiration of collective bargaining agreement was not arbitrable). But following as they did on the heels of the Agreement, we readily find that they are subject to arbitration.\nFor the foregoing reasons, the judgment of the district court is Reversed and the case Remanded with instructions to enter an order staying litigation pending resolution of the arbitration proceedings.\n. The Federal Arbitration Act authorizes a district court to enforce written arbitration provisions and to stay litigation pending arbitration. 9 U.S.C. §§ 2-4.\n. Jurisdiction is conferred on this court by 9 U.S.C. § 16(a)(1)(A) (authorizing interlocutory appeals from orders refusing to stay litigation pending arbitration).\n. Sweet Dreams suggests that ordering arbitration of Count I would “usurp Illinois’ right to interpret its own Franchise laws.” Appellee's Br. at 14-15. We reject this argument for two reasons. First, it is nonsense. The arbitrator will be bound by the Illinois Franchise Disclosure Act and any court decisions interpreting it. And it should go without saying that no Illinois court will be bound by the arbitrator’s interpretation of the statute. Second, the Supreme Court has held that the Federal Arbitration Act supersedes any state provision that might attempt to insulate certain causes of action from arbitration. Southland Corp. v. Keating, 465 U.S. 1, 10-16, 104 S.Ct. 852, 858-61, 79 L.Ed.2d 1 (1984).\n. In other words, a court may consider a claim that a contracting party was fraudulently induced to include an arbitration provision in the agreement but not claims that the entire contract was the product of fraud.\n. The Ninth Circuit interpreted \"arising hereunder” as synonymous with \"arising under the agreement.\" 708 F.2d at 1464. Thus, the arbitration provisions in Meditetranean Ent. and Ki-noshita are, for our purposes, identical.\n. Count III also could be construed to allege that the Agreement was fraudulently induced. Complaint, Count III, ¶ 23. To this extent, it is subject to arbitration for the same reasons as Count I.", "type": "majority", "author": "CUDAHY, Circuit Judge."}], "attorneys": ["Gerald A. Goldman, Arthur R. Ehrlich (argued), Ira Marcus, Goldman & Marcus, Chicago, IL, for plaintiff-appellee.", "Jonathan G. Bunge, Angela Marsh, Mary B. Snyder, Keck, Mahin & Cate, Chicago, IL, Jeffrey J. Keyes (argued), James J. Long, Briggs & Morgan, Saint Paul, MN, for defendants-appellants."], "corrections": "", "head_matter": "SWEET DREAMS UNLIMITED, INC., an Illinois Corporation, Plaintiff-Appellee, v. DIAL-A-MATTRESS INTERNATIONAL, LTD., a Delaware Corporation, Dial-A-Mattress Operating Corporation, a New York Corporation, Napoleon Barragan, Luis Barragan and Joseph Vicens, Defendants-Appellants.\nNo. 92-3506.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Feb. 22, 1993.\nDecided Aug. 6, 1993.\nGerald A. Goldman, Arthur R. Ehrlich (argued), Ira Marcus, Goldman & Marcus, Chicago, IL, for plaintiff-appellee.\nJonathan G. Bunge, Angela Marsh, Mary B. Snyder, Keck, Mahin & Cate, Chicago, IL, Jeffrey J. Keyes (argued), James J. Long, Briggs & Morgan, Saint Paul, MN, for defendants-appellants.\nBefore CUMMINGS, CUDAHY and ROVNER, Circuit Judges."}	CUMMINGS	CUDAHY	ROVNER	1	1	1	0	0	0	1 F.3d 639	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: SWEET DREAMS UNLIMITED, INC., an Illinois Corporation, Plaintiff-Appellee, v. DIAL-A-MATTRESS INTERNATIONAL, LTD., a Delaware Corporation, Dial-A-Mattress Operating Corporation, a New York Corporation, Napoleon Barragan, Luis Barragan and Joseph Vicens, Defendants-Appellants\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-06\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCUDAHY, Circuit Judge.\nDial-A-Mattress International, Ltd. and Sweet Dreams Unlimited, Inc. were joint venturers engaged in the business of telemarketing bedding products and accessories. The parties memorialized their relationship in an agreement signed March 8, 1991 (the Agreement). The Agreement provided that Sweet Dreams, in exchange for the right to use certain of Dial-A-Mattress’ trademarks, trade names and telephone numbers in the Chicago metropolitan area, would devise and implement a marketing campaign and operate a product delivery system for the parties’ mutual benefit. They were to divide the revenues generated by the venture, ninety percent to Sweet Dreams and ten percent to Dial-A-Mattress. The Agreement expired in four months, according to its own terms, but Sweet Dreams was given an option to purchase a Dial-A-Mattress franchise.\nSweet Dreams continued to market products under the Dial-A-Mattress trademark even after the Agreement expired. Dial-A-Mattress apparently did not object to this, and, to induce Sweet Dreams to continue its marketing efforts, offered to expand Sweet Dreams’ territory to include, first, the City of Los Angeles and, later, the entire continental United States (except for the State of New York). Sweet Dreams promptly accepted in both instances. Following substantial urging by Sweet Dreams, Dial-A-Mattress prepared a franchise agreement. This agreement was never executed and Dial-A-Mattress has, according to Sweet Dreams, “unreasonably and vexatiously refused to perform” according to it. Complaint, count II, ¶ 23. Dial-A-Mattress severed entirely the parties business relationship in 1992. Moreover, Sweet Dreams charges, Dial-A-Mattress interfered with Sweet Dreams’ arrangements with its suppliers in an attempt to force Sweet Dreams out of business and to usurp the successful marketing and distribution network that it had established.\nSweet Dreams filed a four-count complaint against Dial-A-Mattress in Illinois state court. Count I alleges that the Agreement violated Illinois law and that Sweet Dreams is, as a result, entitled to rescind it. In Count II, Sweet Dreams asserts that Dial-A-Mattress fraudulently induced it to continue making expenditures in developing the Chicago market after the Agreement had expired. Count III alleges the same with regard to the Los Angeles and national markets. Finally, Count IV alleges that Dial-A-Mattress intentionally interfered with certain of Sweet Dreams’ business relationships. Dial-A-Mattress removed the case to the district court, jurisdiction being properly predicated upon a diversity of citizenship, and promptly moved the court to dismiss or stay the litigation pending arbitration of the parties’ disputes.\nDial-A-Mattress argued that the Agreement relegated all of Sweet Dreams’ charges to arbitration and that, as a result, the litigation must be stayed pending completion of the arbitration proceedings. The district court, in a careful opinion, concluded that the arbitration provision at issue did not encompass the parties’ disputes and, consistent with this conclusion, denied Dial-A-Mattress’ motion. Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress International, Ltd., 803 F.Supp. 1358 (N.D.Ill.1992). Dial-A-Mattress appeals from this decision. In resolving this puzzling matter, the district court placed great emphasis on certain decisions of other circuits, which denied arbitration based on assertedly relevant differences in wording of the respective arbitration clauses. Although these cases are instructive, we believe that they are subtly, but nonetheless materially, distinguishable from the present one. We also note that one of these opinions has been so limited by the court that issued it that it appears no longer to support the proposition for which the district court cited it. As a result, we are left to rely upon the clear thrust of our own arbitration cases and, of course, upon binding instruction from the Supreme Court. Because we find that these authorities compel arbitration of the parties’ disputes, we reverse.\nIt is beyond peradventure that the Federal Arbitration Act embodies a strong federal policy in favor of arbitration. See, e.g., Moses H. Cone Mem. Hosp. v. Mercury Constr., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). But the duty to arbitrate remains one assumed by contract, and we will not compel parties to arbitrate disputes unless they have agreed to do so. National R.R. Passenger Corp. v. Chesapeake & Ohio Ry. Co., 551 F.2d 136, 140 (7th Cir.1977). Our analysis thus begins with the language of the Agreement’s arbitration provision itself: “Any disputes arising out of the agreement shall be settled and determined by the American Arbitration Association of the City of New York and their finding shall be binding and conclusive upon the parties hereto and judgment may be entered thereon in any court of record.” Agreement ¶4.\nIn deciding whether any or all of the counts of Sweet Dreams’ complaint are subject to arbitration, we must bear in mind that, “[a]n order to arbitrate [a] particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Id. (quoting United Steelworkers of America v. Wanior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960)). Turning to Count I of the complaint, we observe that Sweet Dreams has requested rescission of the Agreement pursuant to the Illinois Franchise Disclosure Act, 815 ILCS 705/1-705/42 (1993). This act prohibits offering for sale any franchise that has not been properly registered, 815 ILCS 705/5(1) (1993), and authorizes a franchisee that has purchased an unregistered franchise (which Sweet Dreams claims to be) to sue for rescission. 815 ILCS 705/26 (1993). A successful rescission action annuls the contract and returns the parties to the status quo ante. Howard O. Hunter, Modern Law of Contracts ¶ 3.02[4] (1986). We are thus confronted with an interesting, if not somewhat metaphysical, question: Does a dispute, which has as its object the nullification of a contract, “arise out of’ that same contract?\nThe Supreme Court has, we believe, answered this question in the affirmative, at least insofar as arbitration is concerned. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 1805-06, 18 L.Ed.2d 1270 (1967), the Court held, over a vigorous three-justice dissent, that a federal court may adjudicate issues going to the “ ‘making’ of the agreement to arbitrate” (in that case allegations of fraudulent inducement) but that the Federal Arbitration Act “does not permit [a] federal court to consider claims of fraud in the inducement of the contract generally.” The Prima Paint rule applies though only if the dispute falls within the scope of the particular arbitration clause in question. The Supreme Court had no trouble with this threshold issue, stating that the parties “contractual language is easily broad enough to encompass Prima Paint’s claim that both execution and acceleration of the ... agreement were procured by fraud.” Id. at 406, 87 S.Ct. at 1807. Seizing upon a difference in language in the Agreement’s arbitration provision and that involved in Prima Paint, the district court distinguished what it admitted would otherwise be binding authority compelling arbitration. We find the district court’s reasoning to be challenging, but do not believe that in the end it can stand.\nThe arbitration clause in Prima Paint provided that “[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbi-tration_” 388 U.S. at 398, 87 S.Ct. at 1803 (emphasis supplied). The district court reasoned that, because the phrase “relating to” appears in Prima Paint but not in the Agreement, the arbitration provision in the Agreement is narrower than that at issue in Prima Paint. The Agreement’s clause is so much narrower, the district court found, that “it would be anomalous to hold that a challenge to the very existence” of the Agreement is arbitrable pursuant to it. 803 F.Supp. at 1361. In reaching this conclusion, the district court relied principally upon Mediterranean Ent., Inc. v. Ssagyong, 708 F.2d 1458, 1464 (9th Cir.1983), which in turn relied upon In re Kinoshita & Co., 287 F.2d 951 (2d Cir.1961), both of which denied arbitration. The district court commented that the arbitration provisions in these cases were “essentially on all fours” with that in the Agreement. 803 F.Supp. at 1360. But we find the clauses to be different in one key respect.\nThe arbitration provision in Mediterranean Ent. stated: “Any disputes arising hereunder ... shall be settled through binding arbitration_” 708 F.2d at 1461 (emphasis supplied). The analogous clause in Kinoshita required arbitration of “any dispute or difference [that] should arise under [the agreement].” 287 F.2d at 952. Both courts accepted the argument that such clauses encompass only those disputes that relate to the interpretation and performance of the contract itself. 708 F.2d at 1464; 287 F.2d at 953. Here, of course, the arbitration provision reaches all disputes “arising out of” the Agreement. The district court did not comment on this difference, but we believe that it may be important. There is no need to disagree with the Second and Ninth Circuits that “arising under” may denote a dispute somehow limited to the interpretation and performance of the contract itself. We find, however, that “arising out of” reaches all disputes having their origin or genesis in the contract, whether or not they implicate interpretation or performance of the contract per se. We are not persuaded by Judge Medina’s dicta in Kinoshita that suggests an equation between “arising under” and “arising out of.” 287 F.2d at 953 (“The agreement to arbitrate is limited to [matters involving contract interpretation or performance] when it refers to controversies ‘under’ or ‘arising out of the contract_”) (emphasis supplied). We have indicated how our own analysis rejects such an equation. In addition, the authority of Kinoshita has been narrowed “to its precise facts.” S.A Mineracao da Trindade-Samitri v. Utah Int’l, Inc., 745 F.2d 190, 194 (2d Cir.1984). As a matter of “precise fact,” Kinoshita deals with the effect of “arising under” language.\nBearing in mind the Supreme Court’s instruction that “any doubt concerning the scope of arbitrable issues should be resolved in favor of arbitration,” Moses H. Cone Mem. Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1985), we conclude that Count I is subject to arbitration. The cases cited by the district court to the contrary are either, as we have suggested, distinguishable or are of less than compelling authority. Unlike the district court, we do not believe that adding “relating to” to “arising out of’ substantially broadens the scope of the clause as applied to the present complaint.\nAlthough Count I seeks to cancel the Agreement, it is nonetheless a result of the Agreement and has its origins in it. In that sense it “arises out of’ the Agreement and is subject to arbitration. In fact, any dispute between contracting parties that is in any way connected with their contract could be said to “arise out of’ their agreement and thus be subject to arbitration under a provision employing this language. At the very least, an “arising out of’ arbitration clause would “arguably eoverf ]” such disputes, and, under our cases, this is all that is needed to trigger arbitration. See Sehacht v. Beacon Ins. Co., 742 F.2d 386, 391 (7th Cir.1984).\nWe note that contracting parties control their own fate when it comes to deciding which disputes to consign to arbitration. On the one hand, they may delineate precisely those claims that are subject to arbitration or, on the other, they may employ general— even vague — language in their arbitration provisions. They may also combine these techniques by using general language to authorize arbitration together with specific language to identify the types of disputes that are not subject to arbitration, thereby limiting the reach of phrases such as “arising out of,” “arising under” or “arising out of or relating to.” See S.A. Mineracao Da Trindade-Samitri, 745 F.2d at 194. The parties here, however, have not taken any steps to narrow the reach of the Agreement’s arbitration clause, and, in the light of the heavy presumption in favor of arbitration, we are left to conclude that Count I is arbitrable.\nCounts II, III and IV, for the most part, relate to events occurring after the Agreement expired. Although somewhat difficult to decipher, Counts II and III seem to allege some species of the torts of fraud or misrepresentation. See Fowler V. Harper, Fleming James, Jr., & Oscar S. Gray, The Law of Torts §§ 7.1-7.15 (2d ed. 1986). Count IV more clearly alleges the tort of intentional interference with contractual advantage. See id. at §§ 6.5-6.9. Sweet Dreams contends that these counts are not arbitrable under the Agreement’s arbitration clause because they sound in tort. We have routinely held that a party may not avoid a contractual arbitration clause merely by “casting its complaint in tort.” See, e.g., In re Oil Spill by the “Amoco Cadiz” etc., 659 F.2d 789, 794 (7th Cir.1981) (quoting Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158, 159 (2d Cir.1967)). The touchstone of arbitrability in these circumstances is “the relationship of the claim to the subject matter of the arbitration clause.” Id.\nCounts II, III and IV do not raise issues of contract interpretation or performance. Nor are they connected to the contract in the sense that they challenge the validity of the contract. But they clearly have their genesis in the Agreement. Counts II and III allege that Dial-A-Mattress fraudulently induced Sweet Dreams to continue marketing efforts that were started pursuant to the Agreement. Complaint, Count II, ¶¶ 10-13 & Count III, ¶¶ 23-26. Similarly, Count IV alleges that Dial-A-Mattress interfered with business relations that developed “[f]rom March 8, 1991,” the date of the Agreement. Complaint, Count IV, ¶ 10. Keeping in mind the federal presumption in favor of arbitration, we conclude that these counts are related to the subject matter of the arbitration clause and subject to arbitration under it.\nSweet Dreams raises one last point that need not detain us long. It argues that the arbitration provision is inapposite because the Agreement has expired. The Supreme Court, however, has stated that “the failure to exclude from .arbitrability contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship.” Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 255, 97 S.Ct. 1067, 1074, 51 L.Ed.2d 300 (1977). Although Nolde Bros, involved a collectively bargained labor agreement and thus is arguably not dispositive here, we find its reasoning persuasive in this context as well. If the parties had wished to limit the duty to arbitrate to the term of the Agreement itself they could have said so explicitly. Instead, they used language that evinces an intent to commit to arbitration any dispute connected with the contract irrespective of when it occurs. We would be presented with a different and more difficult question if the disputes had arisen a significant time after the expiration of the Agreement. See, e.g., Local 703, Int’l Bhd. of Teamsters v. Kennicott, 771 F.2d 300 (7th Cir.1985) (holding that dispute arising six months after expiration of collective bargaining agreement was not arbitrable). But following as they did on the heels of the Agreement, we readily find that they are subject to arbitration.\nFor the foregoing reasons, the judgment of the district court is Reversed and the case Remanded with instructions to enter an order staying litigation pending resolution of the arbitration proceedings.\n. The Federal Arbitration Act authorizes a district court to enforce written arbitration provisions and to stay litigation pending arbitration. 9 U.S.C. §§ 2-4.\n. Jurisdiction is conferred on this court by 9 U.S.C. § 16(a)(1)(A) (authorizing interlocutory appeals from orders refusing to stay litigation pending arbitration).\n. Sweet Dreams suggests that ordering arbitration of Count I would “usurp Illinois’ right to interpret its own Franchise laws.” Appellee's Br. at 14-15. We reject this argument for two reasons. First, it is nonsense. The arbitrator will be bound by the Illinois Franchise Disclosure Act and any court decisions interpreting it. And it should go without saying that no Illinois court will be bound by the arbitrator’s interpretation of the statute. Second, the Supreme Court has held that the Federal Arbitration Act supersedes any state provision that might attempt to insulate certain causes of action from arbitration. Southland Corp. v. Keating, 465 U.S. 1, 10-16, 104 S.Ct. 852, 858-61, 79 L.Ed.2d 1 (1984).\n. In other words, a court may consider a claim that a contracting party was fraudulently induced to include an arbitration provision in the agreement but not claims that the entire contract was the product of fraud.\n. The Ninth Circuit interpreted \"arising hereunder” as synonymous with \"arising under the agreement.\" 708 F.2d at 1464. Thus, the arbitration provisions in Meditetranean Ent. and Ki-noshita are, for our purposes, identical.\n. Count III also could be construed to allege that the Agreement was fraudulently induced. Complaint, Count III, ¶ 23. To this extent, it is subject to arbitration for the same reasons as Count I.\n[END_CASE]", "role": "user" } ]
10,513,177	UNITED STATES of America, Plaintiff-Appellee, v. Bienvenido DUARTE, Defendant-Appellant	United States v. Duarte	1993-08-09	No. 92-3417	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before COFFEY and RIPPLE, Circuit Judges, and RONEY, Senior Circuit Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Bienvenido DUARTE, Defendant-Appellant."], "opinions": [{"text": "COFFEY, Circuit Judge.\nBienvenido Duarte was charged with conspiracy to distribute more than 1 kilogram of cocaine in violation of 21 U.S.C. § 846, and with possession with intent to distribute more than 1 kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1). A jury convicted him on both counts, and the U.S. district court sentenced him to two concurrent terms of 180 months in prison pursuant to the United States Sentencing Guidelines. On appeal, we affirmed his convictions but remanded for resentencing. United States v. Duarte, 950 F.2d 1255 (7th Cir.1991), cert. denied, - U.S. -, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992) (“Duarte I”). On remand, the district court conducted a new sentencing hearing and resentenced the defendant to two concurrent 180-month terms in prison.\nDuarte appeals the resentencing. We affirm.\nI. The Conspiracy\nWe summarize the facts discussed in more detail in Duarte I (see 950 F.2d at 1257-58). On June 22, 1990, Milwaukee police received a tip from a reliable informant that the appellant and several eo-eonspirators had arrived in Milwaukee, Wisconsin, from New York City with a kilogram of cocaine. The informant advised that these individuals were staying in Room 234 of the Howard Johnson’s motel at 1716 W. Layton Avenue in Milwaukee. Upon investigation, officers from the Milwaukee police department were able to uncover facts corroborating the informant’s tip. They discovered that Room 234 had been rented five days earlier under the name of Maria Gonzales, who had given as her residence an address of a vacant, boarded-up home. Furthermore, a car parked immediately outside her motel room (234) bore New York license plates that were registered to another vehicle.\nAfter placing Room 234 in the Howard Johnson’s motel under surveillance, Milwaukee detectives Thomas Górecki and Alan Wilke observed a man (later identified as Modesto Arroyo) leave the room and drive to a nearby Exel Inn at 1201 W. College Avenue, where he remained for about two hours before returning to the room in the Howard Johnson’s motel.\nWhen the Milwaukee police arrested Arroyo, they found a key to Room 207 of the Exel Inn lying on the floor of his car. Uniformed officers entered this room to make sure no suspects were inside. Although detectives Górecki and Wilke waited in the hallway, they could see a large brick of cocaine inside the room. The detectives then stationed officers outside this Exel motel room until they could obtain a search warrant. A search of the room pursuant to the warrant later uncovered drug paraphernalia and 1.177 kilograms of cocaine.\nMeanwhile, Detectives Górecki and Wilke returned to the Howard Johnson’s motel, knocked on the door of Room 234, and were admitted by a man who identified himself as Antonio De La Cruz. Duarte was also present in Room 234 and gave the police permission to search the room. This consent search uncovered a pager with a New York phone number and a wallet containing notes written in Spanish that appeared to the officers to reflect large drug transactions. Duarte claimed ownership of the wallet and pager, but was both untruthful and evasive when questioned about his presence in Milwaukee.\nDuarte was arrested with Arroyo and charged with one count of conspiracy to distribute more than 1 kilogram of cocaine and with one count of possession with intent to distribute more than 1 kilogram.\nAt Duarte’s trial, the government introduced expert testimony by DEA Special Agent William C. Hehr that the notes found in the defendant’s wallet were drug ledgers that provided evidence of his responsibility for $117,000 worth of cocaine. See Duarte I, 950 F.2d at 1258. The case was submitted to a jury on November 16, 1990, and guilty verdicts were returned the same day.\nII. Issues\nOn January 22, 1991, the trial judge sentenced Duarte to two concurrent 180-month terms in prison on the basis of his responsibility for more than 5 kilograms of cocaine. On remand for resentencing on August 13, 1992, the court reimposed this sentence after again finding Duarte responsible for more than 5 kilograms.\nIn this appeal from resentencing, the defendant’s brief concedes that his drug notes record transactions involving more than 5 kilograms of cocaine. The remaining issue is whether the sentencing judge erred in finding that the defendant trafficked in this cocaine as part of the same course of conduct as the Milwaukee drug conspiracy for which he was convicted.\nIII. The First Sentencing Hearing\nDuarte’s first sentencing hearing was conducted on January 22, 1991. The government’s expert witness testified that Duarte’s drug ledgers established his responsibility for $117,000 worth of cocaine in June 1990, when the going price in New York for a kilo of cocaine was approximately $20,000. The government divided the value of the defendant’s cocaine ($117,000) by the kilo price he paid ($20,000) and determined that he was responsible for more than 5 kilograms during the time frame of the conspiracy. See Duarte I, 950 F.2d at 1262. The sentencing court disagreed with Duarte’s claim that the evidence was insufficient to hold him responsible for any drugs other than the 1.177 kilograms of cocaine seized at the Exel Inn, and it proceeded to sentence him on the basis of more than 5 kilograms of cocaine.\nPursuant to Guidelines §§ lB1.3(a)(2) and 3D1.2(d), the sentencing courts are directed to “increase a defendant’s base offense level to account for ‘relevant conduct,’ which includes drugs from any acts that ‘were part of the same course of conduct or common scheme or plan’ as the convicted offense, regardless of whether the defendant was charged with or convicted of carrying out those acts.” Duarte I, 950 F.2d at 1263 (quoting United States v. Franklin, 902 F.2d 501, 504 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274,112 L.Ed.2d 229 (1990)). This so-called “aggregation rule” exposed Duarte to significantly harsher penalties than would otherwise have been applicable. Because the government’s conspiracy evidence concerning Duarte convinced the court that he was involved in more than 5 kilograms of cocaine, the Sentencing Guidelines assigned him a base offense level of 32 and a total offense level of 34 for a sentencing range of 151-188 months. See U.S.S.G. § 2Dl.l(c).\nIV. Duarte I\nThis court remanded this case for resen-tencing on December 10, 1991, because it believed that the trial judge conceivably might have erred in calculating Duarte’s base offense level on the basis of his responsibility for more than 5 kilograms of cocaine.\nThe Duarte I panel stated that it would reserve judgment on 1) whether Duarte was responsible for more than 5 kilograms of cocaine, and 2) whether the transactions recorded in his drug notes were part of the same course of conduct as the Milwaukee conspiracy. See Duarte I, 950 F.2d at 1266.\nV. Resentencing\nAt his resentencing hearing on August 13, 1992, the defendant argued that because the government failed to establish that his drug notes did not reflect hypothetical past drug deals in New York or other cities, it could not prove that his notes were connected to the Milwaukee drug conspiracy.\nThe government once again called upon its expert witness, DEA Agent Hehr, to interpret Duarte’s drug notes. Testifying from the notes, Hehr initially described how the defendant had listed his income (from reselling cocaine in single-ounce and multi-ounce quantities) against his expenses (incurred in buying cocaine at wholesale prices). Hehr testified that these notations in the defendant’s drug ledgers demonstrated transactions involving 291 ounces of cocaine, or 6.5 kilograms.\nThe government also had Agent Hehr give a more detailed explanation of the basis for his opinion that the drug sales recorded in Duarte’s notes were part of the same course of conduct as the crimes for which he had been convicted.\nAgent Hehr testified that, based on his twenty years of experience in the infamous world of drugs, drug notes found in a dealer’s wallet usually reflect current and local drug deals rather than old or distant ones, and the drug notes in Duarte’s wallet at the time of his arrest thus relate to the Milwaukee drug conspiracy. According to Hehr, it would have been foolish for the defendant, an experienced drug dealer, to travel from city to city with old drug ledgers in his wallet due to the risk that his past dealings would be discovered if he were arrested. While drug traffickers in certain instances might keep ledgers of their current drug operations on their person in order to keep track of their drug debtors, an experienced dealer keeps records of past transactions in a secure hiding place, not on his person, and destroys them at the earliest possible moment.\nAgent Hehr also testified and explained that, based on his research and knowledge of the going price of cocaine in Milwaukee and New York during the time frame of the Milwaukee conspiracy, it was clear that the drug prices listed in Duarte’s notes were consistent with the then-current Milwaukee price of cocaine, but inconsistent with the then-current New York price.\nFor example, Agent Hehr interpreted an entry in Duarte’s notes, “70 sinta A 850 Hacen $59500,” as recording a single $59,500 sale of 70 ounces of cocaine priced at $850 per ounce. He then went on to testify that this $850 figure in the notes was consistent with Milwaukee multi-ounce prices at the time of the charged conspiracy in June 1990 but inconsistent with the lower cocaine prices prevalent in New York. In the context of all the circumstances in this case, Hehr explained, these facts are convincing proof that the notes reflect cocaine sales made in the course of the defendant’s June 1990 Milwaukee drug conspiracy.\nThe defendant’s only challenge and response to this evidence was merely to dispute the credibility of Hehr’s testimony.\nDuarte argued, for example, that although the $850 figure in his notation “70 sinta A 850 Hacen $59500” might be consistent with Milwaukee multi-ounce prices, it was also consistent with New York single-ounce prices, and that in fact it would make better economic sense to construe this entry as referring to 70 unrelated New York single-ounce sales. The defendant, in his attempt to undermine Agent Hehr’s testimony, pointed to the trial testimony of Detective Górecki of the Milwaukee police, whose estimate of Milwaukee kilo prices was lower than the figure provided by Agent Hehr.\nAfter listening to the testimony and arguments of counsel, the district court once again concluded that the defendant’s drug notes reflected transactions that 1) involved 5 or more kilograms of cocaine, and 2) were part of the same drug conspiracy for which the defendant had been convicted.\nThe court initially found that Duarte’s drug notes, together with the expert testimony of Agent Hehr, demonstrated by a preponderance of the evidence that Duarte was responsible for 6.5 kilograms of cocaine.\nThe sentencing judge next turned to the question of whether there was enough evidence to find that the transactions involving these 6.5 kilograms were part of the same course of conduct as the conspiracy for which Duarte was convicted. Here the court indicated that it was less impressed with Hehr’s testimony that drug dealers do not keep old drug notes on their person when traveling than it was with his testimony that the prices in Duarte’s notes reflected the cost of cocaine in Milwaukee during the same time period as the crimes for which the defendant was-convicted. The court explained:\n“Well, I know that I don’t clear my wallet out every month, and I don’t think you can draw any time conclusions really from what a guy carries in his wallet ... [but] ... I think that the difference in the market or going price of cocaine in either ounce quantities or multi-ounce quantities between New York and Milwaukee gives us a very strong indication that the transactions occurred in Milwaukee or in this geographical area and hence were a part of the conspiracy of conviction here rather than a conspiracy in New York or Boston or anywhere else Mr. Duarte may have been carrying on his business.”\nDuring his comments combined with his findings of fact, the district court stressed the credibility of the testimony offered by the government’s expert witness. It stated that:\n“Let the record show that the Court having studied carefully the mandate of the 7th Circuit and their concerns with reference to the calculation of the amount of cocaine that Mr. Duarte is responsible for and having the benefit of further testimony this day plus a good deal of clarification from both counsel and the witness, the Court is satisfied that Mr. Duarte was, in fact, a heavy cocaine dealer.”\nThe district court also stated that it believed Agent Hehr’s testimony regarding the known practices of sophisticated drug dealers, and that it found the defendant to fit that profile. In the district court’s words:\n“I was struck as I went over the notes and the history of the case again with the fact that this must have been a very sophisticated arrangement because Mr. Arroyo, who was the fellow that was actually in the actual presence of the cocaine, was totally separate from the man who brought it here — the different rooms and in different motels, and there was nothing that was particularly on its face incriminating except the notes in Mr. Duarte’s hotel room.\n“He consented to a search all of which is consistent in the Court’s mind with a very — I hate to use the word professional in terms of cocaine distribution, but a sophisticated, experienced distributor of cocaine.\n“I have no problem with the two-point enhancement that was assessed at the time of the original sentence for Mr. Duarte being a leader in the conspiracy.”\nThus, based upon the totality of the evidence, the trial court again assigned Duarte a base offense level of 32 and a total offense level of 34, and resentenced him to 180-month concurrent terms in prison.\nVI. Discussion\nWe will not upset a trial court’s application of the Sentencing Guidelines so long as the court has correctly applied them to findings of fact that were not clearly erroneous. Duarte I, 950 F.2d at 1262. Moreover, the factual finding at issue in this case — that Duarte’s drug notes were part of the same conspiracy for which he was convicted — is resolved in the first instance by the district court’s application of the preponderance of the evidence standard rather than the beyond-a-reasonable-doubt standard applicable to all elements of the crime itself. Duarte I, 950 F.2d at 1263.\nHere the defendant offered no contrary evidence against which Agent Hehr’s testimony might have been weighed. Yet Duarte’s sole argument, at sentencing and on appeal, is that it would be clear error to give credence to Agent Hehr’s testimony regarding the going prices of drugs in June 1990 and the factual inferences that may be made therefrom. According to the defendant, not only did Hehr have no reason to believe that the drug notes concerned the defendant’s Milwaukee drug conspiracy rather than similar but unrelated drug conspiracies he may have been operating in New York, there was no reason to limit the possibilities to just those two cities. For example, Duarte argued that because he maintains a home in Lawrence, Massachusetts, and has recently visited Chicago, his notes might well refer to his separate drug operations in one of those cities. Such self-serving speculation seems designed to raise doubts in the mind of the trier of fact. But we are a court of appeals, and not a trier of fact, and we have held that “[t]he district court, as the trier of fact, not only has the authority but is in the best position to determine the amount of narcotics attributable to the conspiracy or any member of it.” United States v. Tolson, 988 F.2d 1494, 1502 (7th Cir.1993).\nIn fact, we doubt that the appellant’s tactic of challenging the prosecution to rebut each and every one of his speculative and hypothetical theories would succeed even if we were to apply the reasonable doubt standard at sentencing hearings rather than the preponderance of the evidence standard.\nWe have held that “[t]he view that the prosecution must answer all questions and remove all doubts ... of course is not the law because that would be impossible; the proof need only satisfy reasonable doubt.” United States v. Nesbitt, 852 F.2d 1502, 1511 (7th Cir.1988) (quoting Borum v. United States, 380 F.2d 595, 599 (D.C.Cir.1967) (former Chief Justice Burger dissenting)).\nSimilarly, “[i]f the government proves its case by circumstantial evidence, ‘it need not exclude every reasonable hypothesis of inno^ cence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.’ ... The trier of fact is free to choose among various reasonable constructions of the evidence.” Nesbitt, 852 F.2d at 1510 (quoting United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986)).\nNevertheless, in arguing that we must overturn the sentencing court’s fact-finding in the present case, Duarte has adopted a strategy remarkably similar to that rejected by the former Chief Justice in Borum:\n“[T]he mere existence of other possible hypotheses is not enough to remove the case from the jury:\n‘If the judge were to direct acquittal whenever in his opinion the evidence failed to exclude every hypothesis but that of guilt, he would preempt the functions of the jury. Under such a rule, the judge would have to be convinced of guilt beyond peradventure of doubt before the jury would be permitted to consider the case. That is not the place of the jury in criminal procedure. They are the judges of facts and ... not merely a device for checking upon the conclusions of the judge.’ ”\nBorum, 380 F.2d at 599 (former Chief Justice Burger, dissenting) (quoting Curley v. United States, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947)).\nOf course, in the sentencing aspect of the case before us, the government is not required to satisfy the reasonable doubt standard of proof; rather, it only must meet the preponderance of the evidence standard.\nWe hold that the district court addressed the concerns the panel expressed in Duarte I. First, it is undisputed that Agent Hehr has 20 years of experience investigating, analyzing, and testifying concerning drug operations such as the one directed by Duarte. An educated professional, Hehr’s formal training with the DEA has been supplemented, if not exceeded, by his training and experience on the streets during the course of hundreds of undercover assignments and thousands of interviews of drug suspects. His record, as far as we can discern, is unblemished. He testified in this case solely in his capacity as an expert witness who had had no involvement whatsoever in the particular investigations that led to the defendant’s arrest.\nSecond, Hehr’s testimony is entirely plausible. Certainly the district court was acting within the core of its fact-finding powers when it found this veteran agent’s testimony regarding Milwaukee and New York drug sales data to be more credible than the alternative, speculative and self-serving theories put forth by the defense, theories asserted without a thread of supporting testimony or evidence. A sentencing judge’s determinations of credibility are entitled to great deference on review. United States v. Beal, 960 F.2d 629, 634 (7th Cir.1992).\nFinally, as we noted earlier, the defendant finds it highly significant that Detective Go-recki’s trial testimony regarding Milwaukee drug prices differed from Agent Hehr’s testimony. But we see nothing unusual in the trial court’s finding that Hehr’s expert testimony was entitled to more weight than Detective Gorecki’s good faith, but non-expert, estimate of Milwaukee drug prices. Agent Hehr’s testimony (that Milwaukee drug prices during the relevant time period were consistent with those in Duarte’s drug notes) was based not only upon his broad experience and knowledge, but also upon his detailed research. Detective Górecki, on the other hand, did not claim to have undertaken any such research. Moreover, while the conspiracy at issue in this case took place on the south side of a large metropolitan city, the detective’s expertise, according to Hehr’s un-contradicted testimony at resentencing, was limited to the drug prices charged in one small section of the City of Milwaukee — the north side:\nQ: Now you know Detective Górecki, right?\nHehr: Yes, I do.\nQ: He’s pretty knowledgeable about the drug trade, isn’t he?\nHehr: Detective Gorecki’s expertise lies on the north side of Milwaukee, yes, but he’s very, very knowledgeable.\nThe trial judge, after hearing the testimony of both officers, obviously found Agent Hehr’s testimony to be more convincing and more credible and thus relied on it. We have stated before that the sentencing judge “has the best ‘opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subject’s reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements,’ as well as confused or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record.” United States v. Tolson, 988 F.2d at 1497 (quoting Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir. 1992)).\nIn applying the clearly erroneous standard, we will not reverse a sentencing judge’s factual determination unless it is “without foundation.” United States v. Bias, 947 F.2d 1320, 1328 (7th Cir.1991) (quoting United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989)). In the case before us, a rational fact-finder could well have been persuaded by Agent Hehr’s testimony that Duarte’s drug notes reflected June 1990 Milwaukee cocaine prices and therefore were part of the same course of conduct that led to his June 1990 Milwaukee arrest for trafficking in 1.177 kilograms.\nIn summary, mindful that in reviewing the factual findings of a sentencing court we apply the clearly erroneous standard, we conclude that the district court has satisfactorily addressed the Duarte I panel’s concerns on remand. The sentencing judge determined (and the appellant’s brief concedes) that there was sufficient evidence before the court to find by a preponderance of the evidence that Duarte’s drug notes reflected transactions involving more than 5 kilograms of cocaine. The court also found that the testimony of the government’s expert witness established by a preponderance of the evidence that these transactions were part of the Milwaukee conspiracy for which the defendant was convicted. Neither factual finding was clearly erroneous.\nFor the foregoing reasons, Duarte’s sentence is\nAffirmed.\n. Detectives Górecki and Wilke had Arroyo under surveillance during four such round-trips.\n. Among other things, although Duarte claimed to be in Milwaukee to book singing acts, he knew of only one Milwaukee nightclub, was unable to name any Milwaukee singing acts, and gave .police a false home address.\n.The defendant’s brief states that, \"for purposes of this appeal, Duarte does not challenge the [district court’s finding that the transactions reflected in his notes totalled over 5 kilograms]. Nor does he dispute ... that the drug notes reflect drug transactions.” Appellant’s Brief at 10 n. 3.\n.Duarte has filed a pro se “Motion to Object to Brief of Appeal” in which he objects to his attorney's failure to make several attacks on the validity of his conviction in this sentencing appeal. We rendered a final judgment affirming the defendant’s conviction in United States v. Duarte, 950 F.2d 1255 (7th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992), and the defendant is therefore foreclosed by principles of res judicata from raising such issues now. See United States Secretary of Labor v. Cerro Copper Products Co., 795 F.2d 25, 26 (7th Cir.1986).\nDuarte also objects to his attorney’s concession (found at 10 n. 3 of his brief) that his drug notes reflect more than 5 kilograms of cocaine. This concession was proper because Agent Hehr’s testimony at resentencing on the amount of drugs attributable to Duarte’s notes is uncontradicted.\nFinally, Duarte's motion also asserts that the trial court failed to address his \"Motion in Opposition to Presentence Report” alerting the trial court to generalized \"misinformation” allegedly within the report. The record discloses that this allegation is without merit. The transcript from the defendant’s first sentencing hearing reflects that the sentencing court went over each of the defendant’s objections to the presentence report individually and concluded by stating \"I would adopt the factual statements contained in the presentence report as to which there are no objections. And to those which have been raised, the Court has resolved them [against the defendant].” In addition, a reading of the transcript makes clear that the trial court permitted the defendant to raise his objections again on resentencing. Thus, the record is clear that the defendant’s objections to the presentence report have been addressed, not once, but twice, and that in each instance the trial court found them to be without merit.\n. In the Sentencing Commission's Commentary to the Guidelines, two or more offenses are said to constitute part of a common scheme or plan if they are \"substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.\" U.S.S.G. § 1B1.3, comment, (n. 9(A)) Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are \"sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” U.S.S.G. § IB 1.3, comment, (n. 9(B)) Factors relevant to whether offenses are sufficiently connected or related to each other include \"the degree of similarity of the offenses and the time interval between the offenses.” Id.\n. Had the sentencing judge held the appellant responsible for only the 1.177 kilograms of cocaine that the police seized at the time of his arrest and the count he was charged and convicted of, he would have been assigned a base offense level of 26. Increasing the offense level by two points to reflect Duarte's supervision of the underlying conspiracy would have produced a total offense level of 28 for a sentencing range of 78-97 months. See U.S.S.G. § 2D 1.1(c).\n. The district court found that Duarte had supervised the conspiracy and thus imposed a two-point upward adjustment pursuant to U.S.S.G. § 3Bl.l(c). Duarte does not challenge this upward adjustment.\n. Because the Duarte I panel had some doubts about the government’s calculations at the first sentencing hearing, the government decided to use a different approach at resentencing. The results are similar, and, as we will discuss later in this opinion, the quantity of cocaine reflected in the drug notes is no longer at issue.\n.Agent Hehr explained that a far greater supply of cocaine is available in New York because it is a \"source city” for cocaine smuggled from abroad.\n. Hehr also testified that drug dealers typically offer customers a volume discount. Thus the per-ounce price of cocaine paid by a purchaser of a single ounce would be higher than the per-ounce price paid by a purchaser of 70 ounces, and, given the lower New York cocaine prices, a single, undiscounted ounce of cocaine in New York could be priced as low as the discount price offered to multi-ounce purchasers in Milwaukee.\n. Duarte argued that 70 ounces is slightly less than 2 kilograms of cocaine, and that, according to Hehr’s own trial testimony, 2 kilos would sell in Milwaukee for between $48,000-$58,000. No one, Duarte argued, would purchase 70 ounces for $59,500 when they could purchase 2 kilos for $48,000-$58,000. Therefore, he concluded, in order to make economic sense, the entry \"70 sinta A 850 Hacen $59500” must refer to 70 New York single-ounce transactions unrelated to the Milwaukee conspiracy.\nThis argument, raised for the first time at re-sentencing, proved to be unpersuasive not only to the sentencing judge, but also to us. For it is pure speculation to argue that no mid-level Milwaukee drug dealer would be willing to purchase cocaine from Duarte for $850 per ounce in order to resell it for $1,000 per ounce (the single-ounce price in Milwaukee during the time frame of the conspiracy according to Hehr’s uncontradicted testimony at resentencing).\n.Whereas Agent Hehr testified at trial that his research showed kilos were selling for $24,000-$29,000 in Milwaukee in June 1990, Detective Górecki had estimated at trial that a kilo would have sold for $15,000-$20,000. As we discuss later, this apparent disagreement is understandable given the fact that Górecki was only familiar with drug prices in but one section of the city of Milwaukee.\n. As already discussed, Agent Hehr also testified on resentencing that drug notes found on experienced drug dealers are virtually certain to reflect current and local sales rather than old or distant ones. Although not necessary to our decision to affirm in this case, we think this expert testimony, when combined with the other evidence in this case, provides further support for the district judge's finding that the drug transactions reflected in Duarte's notes were part of his ongoing conspiracy to distribute cocaine in the Milwaukee area. Evidence that might be insufficient when considered in isolation may become quite relevant when considered in light of all the other evidence. As we cautioned last term, \"Although ... each piece of evidence alone may not support a finding, [we must] consider the aggregate effect of the evidence presented to the district court.\" United States v. Villarreal, 977 F.2d 1077, 1080 (7th Cir.1992) (emphasis added).", "type": "majority", "author": "COFFEY, Circuit Judge."}], "attorneys": ["Stephen J. Liecione, Asst. U.S. Atty., Office of U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.", "Thomas L. Shriner, Jr., Jeffrey N. Costa-kos (argued), Foley & Lardner, Milwaukee, WI, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Bienvenido DUARTE, Defendant-Appellant.\nNo. 92-3417.\nUnited States Court of Appeals, Seventh Circuit.\nArgued April 14, 1993.\nDecided Aug. 9, 1993.\nStephen J. Liecione, Asst. U.S. Atty., Office of U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.\nThomas L. Shriner, Jr., Jeffrey N. Costa-kos (argued), Foley & Lardner, Milwaukee, WI, for defendant-appellant.\nBefore COFFEY and RIPPLE, Circuit Judges, and RONEY, Senior Circuit Judge.\nHon. Paul H. Roney, Senior Circuit Judge for the United States Court of Appeals, Eleventh Circuit, sitting by designation."}	COFFEY	RIPPLE	RONEY	1	1	1	0	0	0	1 F.3d 644	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Bienvenido DUARTE, Defendant-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-09\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCOFFEY, Circuit Judge.\nBienvenido Duarte was charged with conspiracy to distribute more than 1 kilogram of cocaine in violation of 21 U.S.C. § 846, and with possession with intent to distribute more than 1 kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1). A jury convicted him on both counts, and the U.S. district court sentenced him to two concurrent terms of 180 months in prison pursuant to the United States Sentencing Guidelines. On appeal, we affirmed his convictions but remanded for resentencing. United States v. Duarte, 950 F.2d 1255 (7th Cir.1991), cert. denied, - U.S. -, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992) (“Duarte I”). On remand, the district court conducted a new sentencing hearing and resentenced the defendant to two concurrent 180-month terms in prison.\nDuarte appeals the resentencing. We affirm.\nI. The Conspiracy\nWe summarize the facts discussed in more detail in Duarte I (see 950 F.2d at 1257-58). On June 22, 1990, Milwaukee police received a tip from a reliable informant that the appellant and several eo-eonspirators had arrived in Milwaukee, Wisconsin, from New York City with a kilogram of cocaine. The informant advised that these individuals were staying in Room 234 of the Howard Johnson’s motel at 1716 W. Layton Avenue in Milwaukee. Upon investigation, officers from the Milwaukee police department were able to uncover facts corroborating the informant’s tip. They discovered that Room 234 had been rented five days earlier under the name of Maria Gonzales, who had given as her residence an address of a vacant, boarded-up home. Furthermore, a car parked immediately outside her motel room (234) bore New York license plates that were registered to another vehicle.\nAfter placing Room 234 in the Howard Johnson’s motel under surveillance, Milwaukee detectives Thomas Górecki and Alan Wilke observed a man (later identified as Modesto Arroyo) leave the room and drive to a nearby Exel Inn at 1201 W. College Avenue, where he remained for about two hours before returning to the room in the Howard Johnson’s motel.\nWhen the Milwaukee police arrested Arroyo, they found a key to Room 207 of the Exel Inn lying on the floor of his car. Uniformed officers entered this room to make sure no suspects were inside. Although detectives Górecki and Wilke waited in the hallway, they could see a large brick of cocaine inside the room. The detectives then stationed officers outside this Exel motel room until they could obtain a search warrant. A search of the room pursuant to the warrant later uncovered drug paraphernalia and 1.177 kilograms of cocaine.\nMeanwhile, Detectives Górecki and Wilke returned to the Howard Johnson’s motel, knocked on the door of Room 234, and were admitted by a man who identified himself as Antonio De La Cruz. Duarte was also present in Room 234 and gave the police permission to search the room. This consent search uncovered a pager with a New York phone number and a wallet containing notes written in Spanish that appeared to the officers to reflect large drug transactions. Duarte claimed ownership of the wallet and pager, but was both untruthful and evasive when questioned about his presence in Milwaukee.\nDuarte was arrested with Arroyo and charged with one count of conspiracy to distribute more than 1 kilogram of cocaine and with one count of possession with intent to distribute more than 1 kilogram.\nAt Duarte’s trial, the government introduced expert testimony by DEA Special Agent William C. Hehr that the notes found in the defendant’s wallet were drug ledgers that provided evidence of his responsibility for $117,000 worth of cocaine. See Duarte I, 950 F.2d at 1258. The case was submitted to a jury on November 16, 1990, and guilty verdicts were returned the same day.\nII. Issues\nOn January 22, 1991, the trial judge sentenced Duarte to two concurrent 180-month terms in prison on the basis of his responsibility for more than 5 kilograms of cocaine. On remand for resentencing on August 13, 1992, the court reimposed this sentence after again finding Duarte responsible for more than 5 kilograms.\nIn this appeal from resentencing, the defendant’s brief concedes that his drug notes record transactions involving more than 5 kilograms of cocaine. The remaining issue is whether the sentencing judge erred in finding that the defendant trafficked in this cocaine as part of the same course of conduct as the Milwaukee drug conspiracy for which he was convicted.\nIII. The First Sentencing Hearing\nDuarte’s first sentencing hearing was conducted on January 22, 1991. The government’s expert witness testified that Duarte’s drug ledgers established his responsibility for $117,000 worth of cocaine in June 1990, when the going price in New York for a kilo of cocaine was approximately $20,000. The government divided the value of the defendant’s cocaine ($117,000) by the kilo price he paid ($20,000) and determined that he was responsible for more than 5 kilograms during the time frame of the conspiracy. See Duarte I, 950 F.2d at 1262. The sentencing court disagreed with Duarte’s claim that the evidence was insufficient to hold him responsible for any drugs other than the 1.177 kilograms of cocaine seized at the Exel Inn, and it proceeded to sentence him on the basis of more than 5 kilograms of cocaine.\nPursuant to Guidelines §§ lB1.3(a)(2) and 3D1.2(d), the sentencing courts are directed to “increase a defendant’s base offense level to account for ‘relevant conduct,’ which includes drugs from any acts that ‘were part of the same course of conduct or common scheme or plan’ as the convicted offense, regardless of whether the defendant was charged with or convicted of carrying out those acts.” Duarte I, 950 F.2d at 1263 (quoting United States v. Franklin, 902 F.2d 501, 504 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274,112 L.Ed.2d 229 (1990)). This so-called “aggregation rule” exposed Duarte to significantly harsher penalties than would otherwise have been applicable. Because the government’s conspiracy evidence concerning Duarte convinced the court that he was involved in more than 5 kilograms of cocaine, the Sentencing Guidelines assigned him a base offense level of 32 and a total offense level of 34 for a sentencing range of 151-188 months. See U.S.S.G. § 2Dl.l(c).\nIV. Duarte I\nThis court remanded this case for resen-tencing on December 10, 1991, because it believed that the trial judge conceivably might have erred in calculating Duarte’s base offense level on the basis of his responsibility for more than 5 kilograms of cocaine.\nThe Duarte I panel stated that it would reserve judgment on 1) whether Duarte was responsible for more than 5 kilograms of cocaine, and 2) whether the transactions recorded in his drug notes were part of the same course of conduct as the Milwaukee conspiracy. See Duarte I, 950 F.2d at 1266.\nV. Resentencing\nAt his resentencing hearing on August 13, 1992, the defendant argued that because the government failed to establish that his drug notes did not reflect hypothetical past drug deals in New York or other cities, it could not prove that his notes were connected to the Milwaukee drug conspiracy.\nThe government once again called upon its expert witness, DEA Agent Hehr, to interpret Duarte’s drug notes. Testifying from the notes, Hehr initially described how the defendant had listed his income (from reselling cocaine in single-ounce and multi-ounce quantities) against his expenses (incurred in buying cocaine at wholesale prices). Hehr testified that these notations in the defendant’s drug ledgers demonstrated transactions involving 291 ounces of cocaine, or 6.5 kilograms.\nThe government also had Agent Hehr give a more detailed explanation of the basis for his opinion that the drug sales recorded in Duarte’s notes were part of the same course of conduct as the crimes for which he had been convicted.\nAgent Hehr testified that, based on his twenty years of experience in the infamous world of drugs, drug notes found in a dealer’s wallet usually reflect current and local drug deals rather than old or distant ones, and the drug notes in Duarte’s wallet at the time of his arrest thus relate to the Milwaukee drug conspiracy. According to Hehr, it would have been foolish for the defendant, an experienced drug dealer, to travel from city to city with old drug ledgers in his wallet due to the risk that his past dealings would be discovered if he were arrested. While drug traffickers in certain instances might keep ledgers of their current drug operations on their person in order to keep track of their drug debtors, an experienced dealer keeps records of past transactions in a secure hiding place, not on his person, and destroys them at the earliest possible moment.\nAgent Hehr also testified and explained that, based on his research and knowledge of the going price of cocaine in Milwaukee and New York during the time frame of the Milwaukee conspiracy, it was clear that the drug prices listed in Duarte’s notes were consistent with the then-current Milwaukee price of cocaine, but inconsistent with the then-current New York price.\nFor example, Agent Hehr interpreted an entry in Duarte’s notes, “70 sinta A 850 Hacen $59500,” as recording a single $59,500 sale of 70 ounces of cocaine priced at $850 per ounce. He then went on to testify that this $850 figure in the notes was consistent with Milwaukee multi-ounce prices at the time of the charged conspiracy in June 1990 but inconsistent with the lower cocaine prices prevalent in New York. In the context of all the circumstances in this case, Hehr explained, these facts are convincing proof that the notes reflect cocaine sales made in the course of the defendant’s June 1990 Milwaukee drug conspiracy.\nThe defendant’s only challenge and response to this evidence was merely to dispute the credibility of Hehr’s testimony.\nDuarte argued, for example, that although the $850 figure in his notation “70 sinta A 850 Hacen $59500” might be consistent with Milwaukee multi-ounce prices, it was also consistent with New York single-ounce prices, and that in fact it would make better economic sense to construe this entry as referring to 70 unrelated New York single-ounce sales. The defendant, in his attempt to undermine Agent Hehr’s testimony, pointed to the trial testimony of Detective Górecki of the Milwaukee police, whose estimate of Milwaukee kilo prices was lower than the figure provided by Agent Hehr.\nAfter listening to the testimony and arguments of counsel, the district court once again concluded that the defendant’s drug notes reflected transactions that 1) involved 5 or more kilograms of cocaine, and 2) were part of the same drug conspiracy for which the defendant had been convicted.\nThe court initially found that Duarte’s drug notes, together with the expert testimony of Agent Hehr, demonstrated by a preponderance of the evidence that Duarte was responsible for 6.5 kilograms of cocaine.\nThe sentencing judge next turned to the question of whether there was enough evidence to find that the transactions involving these 6.5 kilograms were part of the same course of conduct as the conspiracy for which Duarte was convicted. Here the court indicated that it was less impressed with Hehr’s testimony that drug dealers do not keep old drug notes on their person when traveling than it was with his testimony that the prices in Duarte’s notes reflected the cost of cocaine in Milwaukee during the same time period as the crimes for which the defendant was-convicted. The court explained:\n“Well, I know that I don’t clear my wallet out every month, and I don’t think you can draw any time conclusions really from what a guy carries in his wallet ... [but] ... I think that the difference in the market or going price of cocaine in either ounce quantities or multi-ounce quantities between New York and Milwaukee gives us a very strong indication that the transactions occurred in Milwaukee or in this geographical area and hence were a part of the conspiracy of conviction here rather than a conspiracy in New York or Boston or anywhere else Mr. Duarte may have been carrying on his business.”\nDuring his comments combined with his findings of fact, the district court stressed the credibility of the testimony offered by the government’s expert witness. It stated that:\n“Let the record show that the Court having studied carefully the mandate of the 7th Circuit and their concerns with reference to the calculation of the amount of cocaine that Mr. Duarte is responsible for and having the benefit of further testimony this day plus a good deal of clarification from both counsel and the witness, the Court is satisfied that Mr. Duarte was, in fact, a heavy cocaine dealer.”\nThe district court also stated that it believed Agent Hehr’s testimony regarding the known practices of sophisticated drug dealers, and that it found the defendant to fit that profile. In the district court’s words:\n“I was struck as I went over the notes and the history of the case again with the fact that this must have been a very sophisticated arrangement because Mr. Arroyo, who was the fellow that was actually in the actual presence of the cocaine, was totally separate from the man who brought it here — the different rooms and in different motels, and there was nothing that was particularly on its face incriminating except the notes in Mr. Duarte’s hotel room.\n“He consented to a search all of which is consistent in the Court’s mind with a very — I hate to use the word professional in terms of cocaine distribution, but a sophisticated, experienced distributor of cocaine.\n“I have no problem with the two-point enhancement that was assessed at the time of the original sentence for Mr. Duarte being a leader in the conspiracy.”\nThus, based upon the totality of the evidence, the trial court again assigned Duarte a base offense level of 32 and a total offense level of 34, and resentenced him to 180-month concurrent terms in prison.\nVI. Discussion\nWe will not upset a trial court’s application of the Sentencing Guidelines so long as the court has correctly applied them to findings of fact that were not clearly erroneous. Duarte I, 950 F.2d at 1262. Moreover, the factual finding at issue in this case — that Duarte’s drug notes were part of the same conspiracy for which he was convicted — is resolved in the first instance by the district court’s application of the preponderance of the evidence standard rather than the beyond-a-reasonable-doubt standard applicable to all elements of the crime itself. Duarte I, 950 F.2d at 1263.\nHere the defendant offered no contrary evidence against which Agent Hehr’s testimony might have been weighed. Yet Duarte’s sole argument, at sentencing and on appeal, is that it would be clear error to give credence to Agent Hehr’s testimony regarding the going prices of drugs in June 1990 and the factual inferences that may be made therefrom. According to the defendant, not only did Hehr have no reason to believe that the drug notes concerned the defendant’s Milwaukee drug conspiracy rather than similar but unrelated drug conspiracies he may have been operating in New York, there was no reason to limit the possibilities to just those two cities. For example, Duarte argued that because he maintains a home in Lawrence, Massachusetts, and has recently visited Chicago, his notes might well refer to his separate drug operations in one of those cities. Such self-serving speculation seems designed to raise doubts in the mind of the trier of fact. But we are a court of appeals, and not a trier of fact, and we have held that “[t]he district court, as the trier of fact, not only has the authority but is in the best position to determine the amount of narcotics attributable to the conspiracy or any member of it.” United States v. Tolson, 988 F.2d 1494, 1502 (7th Cir.1993).\nIn fact, we doubt that the appellant’s tactic of challenging the prosecution to rebut each and every one of his speculative and hypothetical theories would succeed even if we were to apply the reasonable doubt standard at sentencing hearings rather than the preponderance of the evidence standard.\nWe have held that “[t]he view that the prosecution must answer all questions and remove all doubts ... of course is not the law because that would be impossible; the proof need only satisfy reasonable doubt.” United States v. Nesbitt, 852 F.2d 1502, 1511 (7th Cir.1988) (quoting Borum v. United States, 380 F.2d 595, 599 (D.C.Cir.1967) (former Chief Justice Burger dissenting)).\nSimilarly, “[i]f the government proves its case by circumstantial evidence, ‘it need not exclude every reasonable hypothesis of inno^ cence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.’ ... The trier of fact is free to choose among various reasonable constructions of the evidence.” Nesbitt, 852 F.2d at 1510 (quoting United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986)).\nNevertheless, in arguing that we must overturn the sentencing court’s fact-finding in the present case, Duarte has adopted a strategy remarkably similar to that rejected by the former Chief Justice in Borum:\n“[T]he mere existence of other possible hypotheses is not enough to remove the case from the jury:\n‘If the judge were to direct acquittal whenever in his opinion the evidence failed to exclude every hypothesis but that of guilt, he would preempt the functions of the jury. Under such a rule, the judge would have to be convinced of guilt beyond peradventure of doubt before the jury would be permitted to consider the case. That is not the place of the jury in criminal procedure. They are the judges of facts and ... not merely a device for checking upon the conclusions of the judge.’ ”\nBorum, 380 F.2d at 599 (former Chief Justice Burger, dissenting) (quoting Curley v. United States, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947)).\nOf course, in the sentencing aspect of the case before us, the government is not required to satisfy the reasonable doubt standard of proof; rather, it only must meet the preponderance of the evidence standard.\nWe hold that the district court addressed the concerns the panel expressed in Duarte I. First, it is undisputed that Agent Hehr has 20 years of experience investigating, analyzing, and testifying concerning drug operations such as the one directed by Duarte. An educated professional, Hehr’s formal training with the DEA has been supplemented, if not exceeded, by his training and experience on the streets during the course of hundreds of undercover assignments and thousands of interviews of drug suspects. His record, as far as we can discern, is unblemished. He testified in this case solely in his capacity as an expert witness who had had no involvement whatsoever in the particular investigations that led to the defendant’s arrest.\nSecond, Hehr’s testimony is entirely plausible. Certainly the district court was acting within the core of its fact-finding powers when it found this veteran agent’s testimony regarding Milwaukee and New York drug sales data to be more credible than the alternative, speculative and self-serving theories put forth by the defense, theories asserted without a thread of supporting testimony or evidence. A sentencing judge’s determinations of credibility are entitled to great deference on review. United States v. Beal, 960 F.2d 629, 634 (7th Cir.1992).\nFinally, as we noted earlier, the defendant finds it highly significant that Detective Go-recki’s trial testimony regarding Milwaukee drug prices differed from Agent Hehr’s testimony. But we see nothing unusual in the trial court’s finding that Hehr’s expert testimony was entitled to more weight than Detective Gorecki’s good faith, but non-expert, estimate of Milwaukee drug prices. Agent Hehr’s testimony (that Milwaukee drug prices during the relevant time period were consistent with those in Duarte’s drug notes) was based not only upon his broad experience and knowledge, but also upon his detailed research. Detective Górecki, on the other hand, did not claim to have undertaken any such research. Moreover, while the conspiracy at issue in this case took place on the south side of a large metropolitan city, the detective’s expertise, according to Hehr’s un-contradicted testimony at resentencing, was limited to the drug prices charged in one small section of the City of Milwaukee — the north side:\nQ: Now you know Detective Górecki, right?\nHehr: Yes, I do.\nQ: He’s pretty knowledgeable about the drug trade, isn’t he?\nHehr: Detective Gorecki’s expertise lies on the north side of Milwaukee, yes, but he’s very, very knowledgeable.\nThe trial judge, after hearing the testimony of both officers, obviously found Agent Hehr’s testimony to be more convincing and more credible and thus relied on it. We have stated before that the sentencing judge “has the best ‘opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subject’s reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements,’ as well as confused or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record.” United States v. Tolson, 988 F.2d at 1497 (quoting Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir. 1992)).\nIn applying the clearly erroneous standard, we will not reverse a sentencing judge’s factual determination unless it is “without foundation.” United States v. Bias, 947 F.2d 1320, 1328 (7th Cir.1991) (quoting United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989)). In the case before us, a rational fact-finder could well have been persuaded by Agent Hehr’s testimony that Duarte’s drug notes reflected June 1990 Milwaukee cocaine prices and therefore were part of the same course of conduct that led to his June 1990 Milwaukee arrest for trafficking in 1.177 kilograms.\nIn summary, mindful that in reviewing the factual findings of a sentencing court we apply the clearly erroneous standard, we conclude that the district court has satisfactorily addressed the Duarte I panel’s concerns on remand. The sentencing judge determined (and the appellant’s brief concedes) that there was sufficient evidence before the court to find by a preponderance of the evidence that Duarte’s drug notes reflected transactions involving more than 5 kilograms of cocaine. The court also found that the testimony of the government’s expert witness established by a preponderance of the evidence that these transactions were part of the Milwaukee conspiracy for which the defendant was convicted. Neither factual finding was clearly erroneous.\nFor the foregoing reasons, Duarte’s sentence is\nAffirmed.\n. Detectives Górecki and Wilke had Arroyo under surveillance during four such round-trips.\n. Among other things, although Duarte claimed to be in Milwaukee to book singing acts, he knew of only one Milwaukee nightclub, was unable to name any Milwaukee singing acts, and gave .police a false home address.\n.The defendant’s brief states that, \"for purposes of this appeal, Duarte does not challenge the [district court’s finding that the transactions reflected in his notes totalled over 5 kilograms]. Nor does he dispute ... that the drug notes reflect drug transactions.” Appellant’s Brief at 10 n. 3.\n.Duarte has filed a pro se “Motion to Object to Brief of Appeal” in which he objects to his attorney's failure to make several attacks on the validity of his conviction in this sentencing appeal. We rendered a final judgment affirming the defendant’s conviction in United States v. Duarte, 950 F.2d 1255 (7th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992), and the defendant is therefore foreclosed by principles of res judicata from raising such issues now. See United States Secretary of Labor v. Cerro Copper Products Co., 795 F.2d 25, 26 (7th Cir.1986).\nDuarte also objects to his attorney’s concession (found at 10 n. 3 of his brief) that his drug notes reflect more than 5 kilograms of cocaine. This concession was proper because Agent Hehr’s testimony at resentencing on the amount of drugs attributable to Duarte’s notes is uncontradicted.\nFinally, Duarte's motion also asserts that the trial court failed to address his \"Motion in Opposition to Presentence Report” alerting the trial court to generalized \"misinformation” allegedly within the report. The record discloses that this allegation is without merit. The transcript from the defendant’s first sentencing hearing reflects that the sentencing court went over each of the defendant’s objections to the presentence report individually and concluded by stating \"I would adopt the factual statements contained in the presentence report as to which there are no objections. And to those which have been raised, the Court has resolved them [against the defendant].” In addition, a reading of the transcript makes clear that the trial court permitted the defendant to raise his objections again on resentencing. Thus, the record is clear that the defendant’s objections to the presentence report have been addressed, not once, but twice, and that in each instance the trial court found them to be without merit.\n. In the Sentencing Commission's Commentary to the Guidelines, two or more offenses are said to constitute part of a common scheme or plan if they are \"substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.\" U.S.S.G. § 1B1.3, comment, (n. 9(A)) Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are \"sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” U.S.S.G. § IB 1.3, comment, (n. 9(B)) Factors relevant to whether offenses are sufficiently connected or related to each other include \"the degree of similarity of the offenses and the time interval between the offenses.” Id.\n. Had the sentencing judge held the appellant responsible for only the 1.177 kilograms of cocaine that the police seized at the time of his arrest and the count he was charged and convicted of, he would have been assigned a base offense level of 26. Increasing the offense level by two points to reflect Duarte's supervision of the underlying conspiracy would have produced a total offense level of 28 for a sentencing range of 78-97 months. See U.S.S.G. § 2D 1.1(c).\n. The district court found that Duarte had supervised the conspiracy and thus imposed a two-point upward adjustment pursuant to U.S.S.G. § 3Bl.l(c). Duarte does not challenge this upward adjustment.\n. Because the Duarte I panel had some doubts about the government’s calculations at the first sentencing hearing, the government decided to use a different approach at resentencing. The results are similar, and, as we will discuss later in this opinion, the quantity of cocaine reflected in the drug notes is no longer at issue.\n.Agent Hehr explained that a far greater supply of cocaine is available in New York because it is a \"source city” for cocaine smuggled from abroad.\n. Hehr also testified that drug dealers typically offer customers a volume discount. Thus the per-ounce price of cocaine paid by a purchaser of a single ounce would be higher than the per-ounce price paid by a purchaser of 70 ounces, and, given the lower New York cocaine prices, a single, undiscounted ounce of cocaine in New York could be priced as low as the discount price offered to multi-ounce purchasers in Milwaukee.\n. Duarte argued that 70 ounces is slightly less than 2 kilograms of cocaine, and that, according to Hehr’s own trial testimony, 2 kilos would sell in Milwaukee for between $48,000-$58,000. No one, Duarte argued, would purchase 70 ounces for $59,500 when they could purchase 2 kilos for $48,000-$58,000. Therefore, he concluded, in order to make economic sense, the entry \"70 sinta A 850 Hacen $59500” must refer to 70 New York single-ounce transactions unrelated to the Milwaukee conspiracy.\nThis argument, raised for the first time at re-sentencing, proved to be unpersuasive not only to the sentencing judge, but also to us. For it is pure speculation to argue that no mid-level Milwaukee drug dealer would be willing to purchase cocaine from Duarte for $850 per ounce in order to resell it for $1,000 per ounce (the single-ounce price in Milwaukee during the time frame of the conspiracy according to Hehr’s uncontradicted testimony at resentencing).\n.Whereas Agent Hehr testified at trial that his research showed kilos were selling for $24,000-$29,000 in Milwaukee in June 1990, Detective Górecki had estimated at trial that a kilo would have sold for $15,000-$20,000. As we discuss later, this apparent disagreement is understandable given the fact that Górecki was only familiar with drug prices in but one section of the city of Milwaukee.\n. As already discussed, Agent Hehr also testified on resentencing that drug notes found on experienced drug dealers are virtually certain to reflect current and local sales rather than old or distant ones. Although not necessary to our decision to affirm in this case, we think this expert testimony, when combined with the other evidence in this case, provides further support for the district judge's finding that the drug transactions reflected in Duarte's notes were part of his ongoing conspiracy to distribute cocaine in the Milwaukee area. Evidence that might be insufficient when considered in isolation may become quite relevant when considered in light of all the other evidence. As we cautioned last term, \"Although ... each piece of evidence alone may not support a finding, [we must] consider the aggregate effect of the evidence presented to the district court.\" United States v. Villarreal, 977 F.2d 1077, 1080 (7th Cir.1992) (emphasis added).\n[END_CASE]", "role": "user" } ]
10,513,220	Chad M. KOPPIE, Plaintiff-Appellant, v. UNITED STATES of America and Ligon "Air", an Indiana partnership, Defendants-Appellees	Koppie v. United States	1993-08-11	No. 92-3125	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before BAUER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges."], "parties": ["Chad M. KOPPIE, Plaintiff-Appellant, v. UNITED STATES of America and Ligon “Air”, an Indiana partnership, Defendants-Appellees."], "opinions": [{"text": "CUMMINGS, Circuit Judge.\nPlaintiff Chad M. Koppie sued Ligón “Air”, an Indiana partnership, and the Federal Aviation Administration (“FAA”), over the ownership of a plane. Koppie claims that Ligón “Air” is in control of the aircraft, a Convair 880, which he rightly owns, and that the FAA took the wrong side in the dispute by issuing a Certificate of Registration to Ligón “Air” rather than to him. Plaintiff claims that these misdeeds by Ligón “Air” and the federal government cost him $667,-000, but the district judge was not convinced and neither are we. Koppie’s case against Ligón “Air” is based on diversity jurisdiction and his claim against the government is a federal question stemming from the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680.\nKoppie purchased, or thought he purchased, the Convair from Hudson General Corporation in 1987 for a mere $5,000, a strikingly good deal for an aircraft that originally cost $10 million. Hudson had obtained title through satisfaction of a garnishment lien against Ligón “Air”, which owed it money for storing and maintaining the plane. But unbeknownst to Koppie, the aircraft had made its way back into the hands of Ligón “Air” through a circuitous route. Koppie took ownership subject to the recorded interest of Cromwell State Bank, the original lienholder, and Cromwell assigned its interest to something called the “880 Partnership”, which then resold the plane to Ligón “Air”. Both the “880 Partnership” and Li-gón “Air” are owned by the same two people, Susan and Cliff Pettit. Koppie knew something was amiss when in June or July of 1987 he went to the airport to look after his plane and discovered Michael Potter, whom he thought was an agent for Ligón “Air”, working on the aircraft.\nIn the meantime, Koppie had applied for a Certificate of Aircraft Registration from the FAA. On June 23,1987, he received a letter denying his request because of the conflicting claims over ownership. The letter said in part:\nReview of the aircraft file indicates it was repossessed May 23, 1987, premised upon a security agreement, which was recorded by the FAA on July 9, 1982, and subsequently sold to Ligón Air, 105 West 2nd St., Ligonier, IN 46767. In view of the repossession and subsequent sale, we are unable to issue a certificate of aircraft registration in your name at this time. Having learned that his ownership of the plane was in serious dispute, Koppie signed two documents releasing whatever interests he might have had in the Convair in return for consideration of $36,000 from Michael Potter. Koppie eventually received and accepted the money, and the plane was flown to South Africa, where it remains.\nThe district court granted Ligón “Air”’s motion for summary judgment in December 1991, but judgment was not officially rendered until August of 1992 (plaintiffs app. at 29). At that time the district judge also handed down an order and judgment granting the FAA’s motion for summary judgment. Koppie now claims that the release of his interests in the Convair was nullified by a subsequent document between him and Michael Potter and Western Continental Holdings, Ltd. But in that document Potter and Western Continental Holdings acknowledged that they have no interest of any kind in the plane. The document is thus meaningless. Clearly, it is impossible for a person who owns no interest in a piece of property to execute an agreement for consideration transferring ownership of the property to another. This is akin to the proverbial selling of the Brooklyn Bridge. Since the subsequent document has no validity, Koppie’s earlier decision to accept $36,000 for the relinquishment of all claims to the Convair prevents him from now complaining that he, not Ligón “Air”, owns the aircraft.\nAs for the FAA, Koppie alleged in his first amended complaint under the Federal Tort Claims Act that the agency wrongfully denied him a Certificate of Aircraft Registration and tortiously converted Koppie’s property. The major flaw in this argument is that merely registering an aircraft with the FAA does not determine ownership and has no legal effect. Under 49 U.S.C. § 1401(f), the purpose of registering a plane is to define its nationality for international travel, and the statute states explicitly: “Such certificate shall be conclusive evidence of nationality for international purposes, but not in any proceeding under the laws of the United States. Registration shall not be evidence of ownership of aircraft in any proceeding [such as here] in which ownership by a particular person is, or may be an issue.” See Northwestern Flyers, Inc. v. Olson Bros. Mfg. Co., Inc., 679 F.2d 1264, 1270 n. 13 (8th Cir.1982) (registration does not control questions of title). Since the registration does not even have effect in American courts, and the statute expressly forbids the kind of ownership claim made here based on certification, Kop-pie is clearly stretching credulity in arguing that the FAA harmed him with regard to ownership by failing to grant him, rather than Ligón “Air”, a certificate. In essence, such a certificate is worthless as far as proving ownership, and thus Koppie could not by definition have lost anything by its denial.\nThe district court also held that Koppie’s claims against the FAA were barred by the Federal Tort Claims Act’s exception for government officials performing discretionary functions, 28 U.S.C. § 2680, and by the doctrine of collateral estoppel because a summary judgment order had already been issued against Koppie in favor of Ligón “Air”. Having decided that the federal government is simply not liable in these circumstances for rendering an opinion about ownership, we need not reach these two issues. The judgments for both defendants are affirmed, but Ligón “Air” ’s motion for sanctions is denied because, although unsuccessful, plaintiffs appeal was not frivolous within the meaning of Rule 38 of the Federal Rules of Appellate Procedure.\nThe United States was named as a defendant in the amended complaint while the original complaint incorrectly named the Federal Aviation Administration as a defendant. The government docs not challenge this error and indeed consented to the amendment (R. 11 reproduced in government's supplemental brief).", "type": "majority", "author": "CUMMINGS, Circuit Judge."}], "attorneys": ["Dean E. Richards, Indianapolis, IN (argued), Vincent J. Backs, Beers, Mailers, Backs & Salin, Fort Wayne, IN, for Chad Koppie.", "Richard E. Steinbronn (argued), Deborah A. Lawrence, Barnes & Thornburg, Fort Wayne, IN, for Ligón “Air”.", "Robert A. Doehl, U.S. Dept, of Justice, Torts Branch, Civ. Div., Washington, DC, for U.S. ."], "corrections": "", "head_matter": "Chad M. KOPPIE, Plaintiff-Appellant, v. UNITED STATES of America and Ligon “Air”, an Indiana partnership, Defendants-Appellees.\nNo. 92-3125.\nUnited States Court of Appeals, Seventh Circuit.\nArgued May 7, 1993.\nDecided Aug. 11, 1993.\nDean E. Richards, Indianapolis, IN (argued), Vincent J. Backs, Beers, Mailers, Backs & Salin, Fort Wayne, IN, for Chad Koppie.\nRichard E. Steinbronn (argued), Deborah A. Lawrence, Barnes & Thornburg, Fort Wayne, IN, for Ligón “Air”.\nRobert A. Doehl, U.S. Dept, of Justice, Torts Branch, Civ. Div., Washington, DC, for U.S. .\nBefore BAUER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges."}	BAUER	CUMMINGS	EASTERBROOK	1	1	1	0	0	0	1 F.3d 651	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Chad M. KOPPIE, Plaintiff-Appellant, v. UNITED STATES of America and Ligon \"Air\", an Indiana partnership, Defendants-Appellees\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-11\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCUMMINGS, Circuit Judge.\nPlaintiff Chad M. Koppie sued Ligón “Air”, an Indiana partnership, and the Federal Aviation Administration (“FAA”), over the ownership of a plane. Koppie claims that Ligón “Air” is in control of the aircraft, a Convair 880, which he rightly owns, and that the FAA took the wrong side in the dispute by issuing a Certificate of Registration to Ligón “Air” rather than to him. Plaintiff claims that these misdeeds by Ligón “Air” and the federal government cost him $667,-000, but the district judge was not convinced and neither are we. Koppie’s case against Ligón “Air” is based on diversity jurisdiction and his claim against the government is a federal question stemming from the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680.\nKoppie purchased, or thought he purchased, the Convair from Hudson General Corporation in 1987 for a mere $5,000, a strikingly good deal for an aircraft that originally cost $10 million. Hudson had obtained title through satisfaction of a garnishment lien against Ligón “Air”, which owed it money for storing and maintaining the plane. But unbeknownst to Koppie, the aircraft had made its way back into the hands of Ligón “Air” through a circuitous route. Koppie took ownership subject to the recorded interest of Cromwell State Bank, the original lienholder, and Cromwell assigned its interest to something called the “880 Partnership”, which then resold the plane to Ligón “Air”. Both the “880 Partnership” and Li-gón “Air” are owned by the same two people, Susan and Cliff Pettit. Koppie knew something was amiss when in June or July of 1987 he went to the airport to look after his plane and discovered Michael Potter, whom he thought was an agent for Ligón “Air”, working on the aircraft.\nIn the meantime, Koppie had applied for a Certificate of Aircraft Registration from the FAA. On June 23,1987, he received a letter denying his request because of the conflicting claims over ownership. The letter said in part:\nReview of the aircraft file indicates it was repossessed May 23, 1987, premised upon a security agreement, which was recorded by the FAA on July 9, 1982, and subsequently sold to Ligón Air, 105 West 2nd St., Ligonier, IN 46767. In view of the repossession and subsequent sale, we are unable to issue a certificate of aircraft registration in your name at this time. Having learned that his ownership of the plane was in serious dispute, Koppie signed two documents releasing whatever interests he might have had in the Convair in return for consideration of $36,000 from Michael Potter. Koppie eventually received and accepted the money, and the plane was flown to South Africa, where it remains.\nThe district court granted Ligón “Air”’s motion for summary judgment in December 1991, but judgment was not officially rendered until August of 1992 (plaintiffs app. at 29). At that time the district judge also handed down an order and judgment granting the FAA’s motion for summary judgment. Koppie now claims that the release of his interests in the Convair was nullified by a subsequent document between him and Michael Potter and Western Continental Holdings, Ltd. But in that document Potter and Western Continental Holdings acknowledged that they have no interest of any kind in the plane. The document is thus meaningless. Clearly, it is impossible for a person who owns no interest in a piece of property to execute an agreement for consideration transferring ownership of the property to another. This is akin to the proverbial selling of the Brooklyn Bridge. Since the subsequent document has no validity, Koppie’s earlier decision to accept $36,000 for the relinquishment of all claims to the Convair prevents him from now complaining that he, not Ligón “Air”, owns the aircraft.\nAs for the FAA, Koppie alleged in his first amended complaint under the Federal Tort Claims Act that the agency wrongfully denied him a Certificate of Aircraft Registration and tortiously converted Koppie’s property. The major flaw in this argument is that merely registering an aircraft with the FAA does not determine ownership and has no legal effect. Under 49 U.S.C. § 1401(f), the purpose of registering a plane is to define its nationality for international travel, and the statute states explicitly: “Such certificate shall be conclusive evidence of nationality for international purposes, but not in any proceeding under the laws of the United States. Registration shall not be evidence of ownership of aircraft in any proceeding [such as here] in which ownership by a particular person is, or may be an issue.” See Northwestern Flyers, Inc. v. Olson Bros. Mfg. Co., Inc., 679 F.2d 1264, 1270 n. 13 (8th Cir.1982) (registration does not control questions of title). Since the registration does not even have effect in American courts, and the statute expressly forbids the kind of ownership claim made here based on certification, Kop-pie is clearly stretching credulity in arguing that the FAA harmed him with regard to ownership by failing to grant him, rather than Ligón “Air”, a certificate. In essence, such a certificate is worthless as far as proving ownership, and thus Koppie could not by definition have lost anything by its denial.\nThe district court also held that Koppie’s claims against the FAA were barred by the Federal Tort Claims Act’s exception for government officials performing discretionary functions, 28 U.S.C. § 2680, and by the doctrine of collateral estoppel because a summary judgment order had already been issued against Koppie in favor of Ligón “Air”. Having decided that the federal government is simply not liable in these circumstances for rendering an opinion about ownership, we need not reach these two issues. The judgments for both defendants are affirmed, but Ligón “Air” ’s motion for sanctions is denied because, although unsuccessful, plaintiffs appeal was not frivolous within the meaning of Rule 38 of the Federal Rules of Appellate Procedure.\nThe United States was named as a defendant in the amended complaint while the original complaint incorrectly named the Federal Aviation Administration as a defendant. The government docs not challenge this error and indeed consented to the amendment (R. 11 reproduced in government's supplemental brief).\n[END_CASE]", "role": "user" } ]
10,513,251	UNITED STATES of America, Plaintiff-Appellee, v. Ricky EVANS, Defendant-Appellant	United States v. Evans	1993-08-11	No. 92-3147	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before CUMMINGS, COFFEY and RIPPLE, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Ricky EVANS, Defendant-Appellant."], "opinions": [{"text": "PER CURIAM.\nIn a state prosecution Ricky Evans was found guilty of participating in a criminal drug conspiracy, a Class X felony under Illinois law. He was sentenced to serve ten years in an Illinois prison. A year later Evans was indicted on federal drug conspiracy charges relating to the same conduct, to which he pleaded guilty. Under the Sentencing Guidelines Evans was eligible for a term of 121-151 months. Since he had already served twenty-three months in state prison for conduct taken into account when arriving at this range, the court subtracted twenty-three months from the bottom of the range and sentenced Evans to serve ninety-eight months, concurrent with his state sentence. See U.S.S.G. § 5G1.3(b). On appeal, Evans contends that he should have received good time credit against his federal sentence for the time he had already spent in state custody.\nGuideline section 5G1.3(b) provides that when a defendant is serving “an undischarged term of imprisonment [that] resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.” The sentencing court applied section 5G1.3(b) correctly, following the example set forth in application note 2 to that section. That application note does not refer to good time at all, and there is no need for it to do so. The federal good time statute, 18 U.S.C. § 3624, makes it clear that it is the Bureau of Prisons, not the court, that determines whether a federal prisoner should receive good time credit. Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (“Courts have original jurisdiction over imposition of a sentence. The Bureau of Prisons is, however, responsible for computing that sentence and applying appropriate good time credit.”); see 28 C.F.R. § 0.96(v). Cf. United States v. Wilson, — U.S. -, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (Attorney General, not sentencing court, determines credit given for time spent in custody prior to commencement of the sentence); United States v. Dennis, 926 F.2d 768 (8th Cir.1991) (same); United States v. Lucas, 898 F.2d 1554 (11th Cir.1990) (same). Thus Evans must ask the Bureau of Prisons for the credit he seeks, and the district court did not err in refusing to award good time credit against his federal sentence for time spent in state custody.\nAFFIRMED.", "type": "majority", "author": "PER CURIAM."}], "attorneys": ["K. Tate Chambers, Asst. U.S. Atty., Office of the U.S. Atty., Peoria, IL, for plaintiff-appellee.", "Daniel G. O’Day, Cusack & Fleming, Peoria, IL, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Ricky EVANS, Defendant-Appellant.\nNo. 92-3147.\nUnited States Court of Appeals, Seventh Circuit.\nSubmitted July 7, 1993.\nDecided Aug. 11, 1993.\nK. Tate Chambers, Asst. U.S. Atty., Office of the U.S. Atty., Peoria, IL, for plaintiff-appellee.\nDaniel G. O’Day, Cusack & Fleming, Peoria, IL, for defendant-appellant.\nBefore CUMMINGS, COFFEY and RIPPLE, Circuit Judges.\nAfter preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a \"Statement as to Need of Oral Argument.” See Fed.R.App.P. 43(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record."}	CUMMINGS	COFFEY	RIPPLE	1	1	1	0	0	0	1 F.3d 654	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Ricky EVANS, Defendant-Appellant\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-11\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nPER CURIAM.\nIn a state prosecution Ricky Evans was found guilty of participating in a criminal drug conspiracy, a Class X felony under Illinois law. He was sentenced to serve ten years in an Illinois prison. A year later Evans was indicted on federal drug conspiracy charges relating to the same conduct, to which he pleaded guilty. Under the Sentencing Guidelines Evans was eligible for a term of 121-151 months. Since he had already served twenty-three months in state prison for conduct taken into account when arriving at this range, the court subtracted twenty-three months from the bottom of the range and sentenced Evans to serve ninety-eight months, concurrent with his state sentence. See U.S.S.G. § 5G1.3(b). On appeal, Evans contends that he should have received good time credit against his federal sentence for the time he had already spent in state custody.\nGuideline section 5G1.3(b) provides that when a defendant is serving “an undischarged term of imprisonment [that] resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.” The sentencing court applied section 5G1.3(b) correctly, following the example set forth in application note 2 to that section. That application note does not refer to good time at all, and there is no need for it to do so. The federal good time statute, 18 U.S.C. § 3624, makes it clear that it is the Bureau of Prisons, not the court, that determines whether a federal prisoner should receive good time credit. Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (“Courts have original jurisdiction over imposition of a sentence. The Bureau of Prisons is, however, responsible for computing that sentence and applying appropriate good time credit.”); see 28 C.F.R. § 0.96(v). Cf. United States v. Wilson, — U.S. -, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (Attorney General, not sentencing court, determines credit given for time spent in custody prior to commencement of the sentence); United States v. Dennis, 926 F.2d 768 (8th Cir.1991) (same); United States v. Lucas, 898 F.2d 1554 (11th Cir.1990) (same). Thus Evans must ask the Bureau of Prisons for the credit he seeks, and the district court did not err in refusing to award good time credit against his federal sentence for time spent in state custody.\nAFFIRMED.\n[END_CASE]", "role": "user" } ]
10,513,299	Brenda K. SCHAMEL, Administratrix of the Estate of Jerry Brent Schamel, deceased, Plaintiff-Appellant, v. TEXTRON-LYCOMING, A DIVISION OF AVCO CORPORATION, Defendant-Appellee	Schamel v. Textron-Lycoming	1993-08-12	No. 92-2336	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before CUDAHY and MANION, Circuit Judges, and HOLDERMAN, District Judge."], "parties": ["Brenda K. SCHAMEL, Administratrix of the Estate of Jerry Brent Schamel, deceased, Plaintiff-Appellant, v. TEXTRON-LYCOMING, A DIVISION OF AVCO CORPORATION, Defendant-Appellee."], "opinions": [{"text": "CUDAHY, Circuit Judge.\nThe plaintiff, the administratrix of her husband’s estate, brought this wrongful death action against a manufacturer of aircraft engines and parts, alleging that the company was liable for the plane crash resulting in her husband’s death. The district court granted summary judgment against the plaintiff on the ground that the action sounded in product liability and was barred by the statute of repose in the Indiana Product Liability Act. We affirm.\nI.\nThe facts relevant to this appeal and taken in the light most favorable to the plaintiff are straightforward. On January 5, 1988, the plane which Jerry Brent Schamel was piloting crashed as a result of a fatigue failure in the number five connecting rod in the plane’s engine. Schamel died as a result of, the crash. The plane was a 1959 Piper Comanche, in which Schamel, his brother and a mechanic had installed a rebuilt, but previously damaged, 1959 Lycoming 540-A-1A5 engine. The connecting rods used in this engine were each designated Lycoming part # 71987.\nOn December 11, 1989, Brenda Schamel, the wife of the deceased, in her capacity as administratrix of her husband’s estate, brought this action in Indiana circuit coui’t for wrongful death. Brenda alleged that Textron-Lycoming, a manufacturer of reciprocating (piston-driven) engines and the manufacturer of the connecting rod in question, was liable for her husband’s death because (1) Textron-Lycoming manufactured and sold defective and unreasonably dangerous connecting rods, (2) it was negligent in the manufacture and design of the rods and (3) Textron-Lycoming failed to exercise due care in discharging its obligations with respect to the proper procedures for overhauling the engine.\nThe defendant removed this action to federal court on diversity grounds, and subsequently filed a motion for summary judgment. The uncontradicted evidence submitted by Textron-Lycoming showed that Ly-coming discontinued manufacturing connecting rods having part #71987 in February 1964; that Lycoming connecting rods were sold exclusively by Lycoming distributors; that connecting rod part # 71987 was last sold by Lycoming to its distributors in March, 1970; that part # 71987 was not included in Lycoming’s 1974 Parts List and thus was not available for purchase from Lycoming distributors after 1974; and that a substitute rod assembly design with a different part number was provided to users and consumers after 1973. Therefore, the latest that the part could have been sold was 1973- — sixteen years before the commencement of the present action. Consequently, according to the defendant, the plaintiffs wrongful death action was barred by Indiana’s statute of repose, which precludes product liability claims not brought within ten years of the time the product was initially delivered or sold.\nThe district court granted the defendant’s motion for summary judgment and the plaintiff appeals. She alleges that one count of her complaint was not a product liability claim, but rather a claim under § 324A of the Restatement (Second) of Torts, and thus, not barred by the Indiana statute of repose. Alternatively, the plaintiff argues that the evidence did not sufficiently establish that part # 71987 could not have been sold after 1973. The plaintiff suggests that a part could have stayed on one of the distributor’s shelves to be sold after 1979 — bringing the present action within the ten-year window provided by the Indiana statute of repose.\nII.\nThe Indiana Product Liability Act provides that\nany product liability action must be commenced within two years after the cause of action accrues or within ten years after the delivery of the product to the initial user or consumer; except that, if the cause of action accrues more than eight years but not more than ten years after the initial delivery, the action may be commenced at any time within two years after the cause of action accrues.\nInd.Code § 33-1-1.5-5. The “or” in the first clause of the passage quoted above has been interpreted in the conjunctive, barring all actions occurring more than ten years after initial delivery of a product. Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207, 210 (1981).\nThe plaintiff first contends that one of her claims was not a product liability claim but an action based on § 324A of the Restatement (Second) of Torts and, thus, that the statute of repose did not apply to this claim. Section 324A provides, in sum, that, when a person either gratuitously or for consideration provides services to another, he must exercise reasonable care or risk liability. See Perry v. Northern Ind. Pub. Serv. Co., 433 N.E.2d 44, 50 (Ind.App.1982). As evidence of her § 324A claim, the plaintiff points to the amended complaint, which alleges that the defendant failed to exercise reasonable care in providing adequate information to individuals overhauling its engines. This post-sale negligence — specifically, the failure to develop and to provide service or fatigue limits for its connecting rods in its overhaul and service manuals — she urges, is not within the scope of the Products Liability Act.\nIt may be that a § 324A action is not a products liability suit for purposes of the Indiana Products Liability Act, since it may be that, under Indiana Law, the injury does not result from the manufacture, construction or design of a product, but rather from the voluntarily undertaken post-sale negligent acts. See Baker v. Midland-Ross Corp., 508 N.E.2d 32 (Ind.App.1987) (permitting suit against manufacturer for post-sale negligence pursuant to § 324A even though accident occurred sixteen years after sale). We need not address that issue, however, because the plaintiff has not alleged a § 324A action. The provision of service manuals and other sources of service information is not a separate and discrete, post-sale undertaking pursuant to § 324A; rather, such information is generally necessary to satisfy the manufacturer’s duty to warn. See Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1219-20 (10th Cir.1991); Windle Turley, Aviation Litigation § 2.09, at 70 (1986) (“Aircraft manufacturers ordinarily satisfy their postsale duty to warn through the issuance of service bulletins or service letters.” (emphasis in original)).\nIn her amended complaint and in her brief, the plaintiff acknowledges that the defendant had a duty to provide the service information and, thus, the provision of such information was not a voluntary undertaking distinct from the obligations inherent in the initial sale of the product. Accordingly, the plaintiff merely alleges that the defendant breached its continuing duty to warn by not establishing a safe fatigue life for the connecting rods. As Dague makes clear, however, “an action for damages resulting from the alleged failure of a manufacturer or seller to warn a user of its product’s latently defective nature is certainly a product liability action [and covered by the Product Liability Act and its statute of repose].” Dague, 418 N.E.2d at 212. Consequently, the district court was correct in holding this claim barred.\nFinally, we reject the plaintiffs contention that the evidence does not support the award of summary judgment because the defendant did not establish that a part was not left on a distributor’s shelf even after Lycoming discontinued part #71987. A defendant need not rebut any and every possible factual scenario in order to obtain summary judgment. Rather, once the defendant had shown that it stopped distributing the part in 1973, it became incumbent upon the plaintiff to create an issue of fact by making an evidentiary showing to the contrary. She did not. Her belated, unsupported hypothesis of parts in the pipeline is, in short, too little, too late.\nIII.\nFor the foregoing reasons, the judgment of the district court is\nAffirmed.\n. § 324A states:\nOne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if\n(a) his failure to exercise reasonable care increases the risk of such harm, or\n(b) he has undertaken to perform a duty owed by the other to the third person, or\n(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.\nRestatement (Second) of Torts § 324A (1977).\n. For example, count III of the Amended Complaint alleged \"That the defendants are required to adequately inform mechanics in the field as to the procedures to be followed to safely overhaul its engines.” Moreover, paragraph 6 of the Plaintiff's Amended Contentions provided:\n6. That the defendant has an obligation to provide adequate information in an accessible and usable form concerning the guidelines to be followed in overhauling and servicing its engines, and that obligation is continuing as to all engines the defendant has manufactured that continue in service.\nFinally, in her brief, the plaintiff summarized, \"[i]n short, the defendant has not met its obligation to mechanics who service its engines to determine the safe service life of its connecting rods.”", "type": "majority", "author": "CUDAHY, Circuit Judge."}], "attorneys": ["David V. Scott (argued), New Albany, IN, for plaintiff-appellant.", "Ann E. Fulks, J. Bissell Roberts (argued), Stites & Harbison, Louisville, KY, Cecile A. Blau, Jeffersonville, IN, for defendant-appel-lee."], "corrections": "", "head_matter": "Brenda K. SCHAMEL, Administratrix of the Estate of Jerry Brent Schamel, deceased, Plaintiff-Appellant, v. TEXTRON-LYCOMING, A DIVISION OF AVCO CORPORATION, Defendant-Appellee.\nNo. 92-2336.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Jan. 19, 1993.\nDecided Aug. 12, 1993.\nDavid V. Scott (argued), New Albany, IN, for plaintiff-appellant.\nAnn E. Fulks, J. Bissell Roberts (argued), Stites & Harbison, Louisville, KY, Cecile A. Blau, Jeffersonville, IN, for defendant-appel-lee.\nBefore CUDAHY and MANION, Circuit Judges, and HOLDERMAN, District Judge.\nThe Honorable James F. Holderman, District Judge for the Northern District of Illinois, is sitting by designation."}	CUDAHY	MANION	HOLDERMAN	1	1	1	0	0	0	1 F.3d 655	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Brenda K. SCHAMEL, Administratrix of the Estate of Jerry Brent Schamel, deceased, Plaintiff-Appellant, v. TEXTRON-LYCOMING, A DIVISION OF AVCO CORPORATION, Defendant-Appellee\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-12\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nCUDAHY, Circuit Judge.\nThe plaintiff, the administratrix of her husband’s estate, brought this wrongful death action against a manufacturer of aircraft engines and parts, alleging that the company was liable for the plane crash resulting in her husband’s death. The district court granted summary judgment against the plaintiff on the ground that the action sounded in product liability and was barred by the statute of repose in the Indiana Product Liability Act. We affirm.\nI.\nThe facts relevant to this appeal and taken in the light most favorable to the plaintiff are straightforward. On January 5, 1988, the plane which Jerry Brent Schamel was piloting crashed as a result of a fatigue failure in the number five connecting rod in the plane’s engine. Schamel died as a result of, the crash. The plane was a 1959 Piper Comanche, in which Schamel, his brother and a mechanic had installed a rebuilt, but previously damaged, 1959 Lycoming 540-A-1A5 engine. The connecting rods used in this engine were each designated Lycoming part # 71987.\nOn December 11, 1989, Brenda Schamel, the wife of the deceased, in her capacity as administratrix of her husband’s estate, brought this action in Indiana circuit coui’t for wrongful death. Brenda alleged that Textron-Lycoming, a manufacturer of reciprocating (piston-driven) engines and the manufacturer of the connecting rod in question, was liable for her husband’s death because (1) Textron-Lycoming manufactured and sold defective and unreasonably dangerous connecting rods, (2) it was negligent in the manufacture and design of the rods and (3) Textron-Lycoming failed to exercise due care in discharging its obligations with respect to the proper procedures for overhauling the engine.\nThe defendant removed this action to federal court on diversity grounds, and subsequently filed a motion for summary judgment. The uncontradicted evidence submitted by Textron-Lycoming showed that Ly-coming discontinued manufacturing connecting rods having part #71987 in February 1964; that Lycoming connecting rods were sold exclusively by Lycoming distributors; that connecting rod part # 71987 was last sold by Lycoming to its distributors in March, 1970; that part # 71987 was not included in Lycoming’s 1974 Parts List and thus was not available for purchase from Lycoming distributors after 1974; and that a substitute rod assembly design with a different part number was provided to users and consumers after 1973. Therefore, the latest that the part could have been sold was 1973- — sixteen years before the commencement of the present action. Consequently, according to the defendant, the plaintiffs wrongful death action was barred by Indiana’s statute of repose, which precludes product liability claims not brought within ten years of the time the product was initially delivered or sold.\nThe district court granted the defendant’s motion for summary judgment and the plaintiff appeals. She alleges that one count of her complaint was not a product liability claim, but rather a claim under § 324A of the Restatement (Second) of Torts, and thus, not barred by the Indiana statute of repose. Alternatively, the plaintiff argues that the evidence did not sufficiently establish that part # 71987 could not have been sold after 1973. The plaintiff suggests that a part could have stayed on one of the distributor’s shelves to be sold after 1979 — bringing the present action within the ten-year window provided by the Indiana statute of repose.\nII.\nThe Indiana Product Liability Act provides that\nany product liability action must be commenced within two years after the cause of action accrues or within ten years after the delivery of the product to the initial user or consumer; except that, if the cause of action accrues more than eight years but not more than ten years after the initial delivery, the action may be commenced at any time within two years after the cause of action accrues.\nInd.Code § 33-1-1.5-5. The “or” in the first clause of the passage quoted above has been interpreted in the conjunctive, barring all actions occurring more than ten years after initial delivery of a product. Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207, 210 (1981).\nThe plaintiff first contends that one of her claims was not a product liability claim but an action based on § 324A of the Restatement (Second) of Torts and, thus, that the statute of repose did not apply to this claim. Section 324A provides, in sum, that, when a person either gratuitously or for consideration provides services to another, he must exercise reasonable care or risk liability. See Perry v. Northern Ind. Pub. Serv. Co., 433 N.E.2d 44, 50 (Ind.App.1982). As evidence of her § 324A claim, the plaintiff points to the amended complaint, which alleges that the defendant failed to exercise reasonable care in providing adequate information to individuals overhauling its engines. This post-sale negligence — specifically, the failure to develop and to provide service or fatigue limits for its connecting rods in its overhaul and service manuals — she urges, is not within the scope of the Products Liability Act.\nIt may be that a § 324A action is not a products liability suit for purposes of the Indiana Products Liability Act, since it may be that, under Indiana Law, the injury does not result from the manufacture, construction or design of a product, but rather from the voluntarily undertaken post-sale negligent acts. See Baker v. Midland-Ross Corp., 508 N.E.2d 32 (Ind.App.1987) (permitting suit against manufacturer for post-sale negligence pursuant to § 324A even though accident occurred sixteen years after sale). We need not address that issue, however, because the plaintiff has not alleged a § 324A action. The provision of service manuals and other sources of service information is not a separate and discrete, post-sale undertaking pursuant to § 324A; rather, such information is generally necessary to satisfy the manufacturer’s duty to warn. See Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1219-20 (10th Cir.1991); Windle Turley, Aviation Litigation § 2.09, at 70 (1986) (“Aircraft manufacturers ordinarily satisfy their postsale duty to warn through the issuance of service bulletins or service letters.” (emphasis in original)).\nIn her amended complaint and in her brief, the plaintiff acknowledges that the defendant had a duty to provide the service information and, thus, the provision of such information was not a voluntary undertaking distinct from the obligations inherent in the initial sale of the product. Accordingly, the plaintiff merely alleges that the defendant breached its continuing duty to warn by not establishing a safe fatigue life for the connecting rods. As Dague makes clear, however, “an action for damages resulting from the alleged failure of a manufacturer or seller to warn a user of its product’s latently defective nature is certainly a product liability action [and covered by the Product Liability Act and its statute of repose].” Dague, 418 N.E.2d at 212. Consequently, the district court was correct in holding this claim barred.\nFinally, we reject the plaintiffs contention that the evidence does not support the award of summary judgment because the defendant did not establish that a part was not left on a distributor’s shelf even after Lycoming discontinued part #71987. A defendant need not rebut any and every possible factual scenario in order to obtain summary judgment. Rather, once the defendant had shown that it stopped distributing the part in 1973, it became incumbent upon the plaintiff to create an issue of fact by making an evidentiary showing to the contrary. She did not. Her belated, unsupported hypothesis of parts in the pipeline is, in short, too little, too late.\nIII.\nFor the foregoing reasons, the judgment of the district court is\nAffirmed.\n. § 324A states:\nOne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if\n(a) his failure to exercise reasonable care increases the risk of such harm, or\n(b) he has undertaken to perform a duty owed by the other to the third person, or\n(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.\nRestatement (Second) of Torts § 324A (1977).\n. For example, count III of the Amended Complaint alleged \"That the defendants are required to adequately inform mechanics in the field as to the procedures to be followed to safely overhaul its engines.” Moreover, paragraph 6 of the Plaintiff's Amended Contentions provided:\n6. That the defendant has an obligation to provide adequate information in an accessible and usable form concerning the guidelines to be followed in overhauling and servicing its engines, and that obligation is continuing as to all engines the defendant has manufactured that continue in service.\nFinally, in her brief, the plaintiff summarized, \"[i]n short, the defendant has not met its obligation to mechanics who service its engines to determine the safe service life of its connecting rods.”\n[END_CASE]", "role": "user" } ]
10,513,346	Ralph MONACO, Plaintiff-Appellant, v. FUDDRUCKERS, INC., Defendant-Appellee	Monaco v. Fuddruckers, Inc.	1993-08-13	No. 92-2165	United States Court of Appeals for the Seventh Circuit	{"judges": ["Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and GRANT, Senior District Judge."], "parties": ["Ralph MONACO, Plaintiff-Appellant, v. FUDDRUCKERS, INC., Defendant-Appellee."], "opinions": [{"text": "GRANT, Senior District Judge.\nI. BACKGROUND\nRalph Monaco was 38 years old in June 1985 when he began working for Fuddruck-ers, Inc., a national restaurant chain. As a “skilled butcher,” he was one of Fuddruck-ers’ top-paid hourly employees, with a starting wage of $6.00 an hour. That Monaco performed his job to the satisfaction of his employer throughout his tenure is evidenced by numerous performance evaluations, regular wage increases and increased supervisory responsibilities. By June 1986 Monaco was earning $8.00 an hour and his job responsibilities had expanded to include the training and scheduling of other butchers.\nIn early 1987, Monaco became interested in becoming a shift supervisor. He asked an assistant manager, Marc Mackiewicz, and even a district manager about the job on “several occasions,” but never got around to filing an application or asking the one person who had the authority to promote him to shift supervisor, Thomas Hlady, the restaurant’s general manager. In February and March 1987, Hlady promoted two other employees to shift supervisor, Mary Dwyer and Kirby Dorsey. When Monaco asked Mack-iewicz why he had not been promoted over Dwyer, Mackiewicz allegedly told him he was getting too old. When he asked about the Dorsey promotion, Mackiewicz made no response.\nThings went steadily downhill for Monaco from that point. In June 1987, Fuddruckers changed its vacation policy reducing the number of weeks its hourly employees could take from two to one. In December 1987, central corporate management decided that it was economically more feasible for its restaurants to use boxed beef in place of hanging forequarters' thus eliminating the need for skilled butchers. Fuddruckers’ Vice President and General Counsel, Charles Re-depenning, Jr., accordingly issued a directive to all district managers to reduce the wages and hours for their skilled butchers. As an hourly employee and skilled butcher, Monaco suffered the adverse consequences of Fud-druckers’ actions.\nWhen Monaco was subsequently asked by Mackiewicz to train a younger hourly employee, Tom Bertram, he objected and questioned Mackiewicz’ reasons. Mackiewicz allegedly responded by telling Monaco he was getting too old and suggested that he quit.\nThings came to a head on February 19, 1988, when Monaco demanded a second week of vacation. Mackiewicz, now general manager, told Monaco he was no longer entitled to a second week and allegedly said “you’re getting kind of old, why don’t you quit.” When Monaco returned to work three days later, he reiterated his demand for additional time off. Mackiewicz once again refused, and Monaco walked off the job.\nOn June 21,1988, Monaco filed a charge of discrimination with the Illinois Department of Human Rights (IDHR) alleging that he was constructively discharged as a result of the loss in wages, hours and vacation time in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. What disposition IDHR may have made of his claim is unknown.\nOn December 7, 1989, Monaco filed suit in federal district court alleging among other things that Fuddruckers had discriminated against him because of his age when it constructively forced him to resign his position and replaced him with a younger employee. Monaco amended his complaint to include more detailed factual allegations on January 24, 1990, and, on August 22, 1991, Fuddruck-ers moved for summary judgment. The district court, Judge Moran, granted the motion and this appeal followed.\nII. DISCUSSION\nOur review is, of course, de novo. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Crady v. Liberty National Bank and Trust Co. of Indiana, 993 F.2d 132, 134 (7th Cir.1993). Like the district court, we have reviewed the record in its entirety, drawing all reasonable inferences in the light which was most favorable to Monaco, the non-moving party, and have concluded that a rational trier of fact could not have found for Monaco on his claim of age discrimination.\nTo establish an ADEA violation, Monaco must be able to demonstrate that he suffered a materially adverse change in the terms or conditions of his employment because of his age. Crady, 993 F.2d at 134; Spring v. Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir.1989). He may do so under either the direct method set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1794-95, 104 L.Ed.2d 268 (1989), or the indirect burden-shifting method described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981) and Hazen Paper Co. v. Biggins, — U.S. -, -, 113 S.Ct. 1701, 1708, 123 L.Ed.2d 338 (1993). Monaco attempted both, and satisfied neither.\nA. The Direct Method\nThe only direct evidence of age discrimination offered by Monaco were the age-related remarks allegedly made by Marc Mackiewicz between February 1987 and February 1988. The district court found that Monaco failed to show a sufficient causal connection between those remarks and the actions taken by Fuddruckers. Monaco v. Fuddruckers, Inc., 789 F.Supp. 944, 948-50 (N.D.Ill.1992). We agree. “Unless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of a discriminatory discharge.” McCarthy v. Kemper Life Ins. Companies, 924 F.2d 683, 686-87 (7th Cir.1991). Monaco did not attempt to connect Mackiewicz’ remarks to the reductions in wages, hours and vacation time, nor could he. The record clearly shows that those decisions were made by Fuddruckers’ central corporate management and that they applied to all of its “skilled butchers” and/or hourly employees.\nWhether Monaco could prove a discriminatory failure to promote based on Mackiewicz’ remarks is an issue we need not decide. The administrative charge which Monaco filed on June 21, 1988 made no reference to a failure to promote, and the allegations contained in the charge cannot reasonably be read to encompass such a claim. Under the circumstances, Monaco was barred from raising any claim premised on a failure to promote in his complaint. See Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993); O’Rourke v. Continental Casualty Co., 983 F.2d 94, 97-98 (7th Cir.1993); Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir.1985); Jenkins v. Blue Cross Mutual Hospital Ins., Inc., 538 F.2d 164, 167 (7th Cir.), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976); Monaco, 789 F.Supp. at 949 n. 8.\nB. The Indirect Method\nMonaco fares no better under the indirect method. To establish a prima facie case of discriminatory discharge under the indirect method of proof, Monaco must show that: 1) he was more than forty years old; 2) he performed his job satisfactorily; 3) he was discharged (either actually or constructively); and 4) the discharge occurred under circumstances which gave rise to an inference of age discrimination. Stetson v. NYNEX Service Co., 995 F.2d 355, 359-60 (2d Cir.1993). See also Crady, 993 F.2d at 134; Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir.1992). That Monaco satisfies the first two steps is undisputed. He was 41 when he quit his job, and all performance evaluations through December 1986 showed that his work was consistently satisfactory. Although Fuddruekers disagrees, the district court also was willing to assume that Monaco had satisfied the third. Monaco’s stumbling block is at step four.\nMonaco contends that he was forced to resign due to the “economic hardship” imposed upon him by the reduction in his wages, hours, and other benefits. He contends that it is reasonable to infer from the comments made by Mackiewicz and from the fact that he was replaced by a younger man that the changes in his working conditions were motivated by his age. While the district court found Mackiewicz’ statements insufficient evidence of discrimination, it was willing to assume for the sake of argument that Monaco had indeed been replaced by a younger individual and that he had therefore presented a prima facie case of discrimination. The burden therefore shifted to Fuddruckers to present legitimate non-diseriminatory reasons for its actions. Judge Moran found that it met that burden when it produced evidence showing that the wage, hour and vacation cuts were all made by upper level corporate management, not at the local level, and for business reasons unrelated to the age of its employees. Having successfully rebutted any presumption of discrimination, the burden shifted back to Monaco to show that Fuddruekers’ stated reasons were really a pretext for the employment action. Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 847 (7th Cir.1992). The district court found that Monaco “ha[d] clearly failed to meet this burden.” Monaco, 789 F.Supp. at 952. We agree.\nWhile there are numerous ways to prove pretext, see Gustovich, 972 F.2d at 848-49; La Montague v. American Convenience Products, Inc., 750 F.2d 1405, 1414-15 (7th Cir.1984), Monaco simply relied on the evidence he used to establish his prima facie case, i.e., the fact that Mackiewicz made ageist remarks and that he was replaced by a younger individual. This he may not do. La Montague, 750 F.2d at 1414.\n[The mere fact that the employer may have hired a younger replacement is] too insubstantial to support an inference of age discrimination. It is not a violation of the Act to replace an employee in the protected class with a younger person, as long as the protected employee is not replaced because of his age. Because younger people often succeed to the jobs of older people for perfectly legitimate reasons, the mere fact that an older employee is replaced by a younger one does not permit an inference that the replacement was motivated by age discrimination.\nId. at 1412-13. While there were as many as three butchers working at Fuddruekers’ Matteson, Illinois restaurant at one point, by January 1988 the number had diminished to one, Monaco. The record shows that Bertram was trained as a back-up for Monaco on his day off, and that he only worked in the butcher shop when Monaco was not there. The job Bertram performed therefore had no impact on the number of hours Monaco worked, the wage he was paid, his title or his job responsibilities.\nThere is no evidence whatsoever to suggest that Fuddruckers intended to fire Monaco if he had not quit, that Bertram was hired to, or did in fact, replace him when he quit, or that similarly situated younger employees were treated more favorably than Monaco with respect to wages, hours, vacation or any other benefit Fuddruckers may have provided. To the extent Monaco relies on the remarks made by Mackiewicz to fill the gap, his reliance is misplaced. As previously discussed, those remarks standing-alone were insufficient as a matter of law to support an inference of age discrimination. See McCarthy, 924 F.2d at 686-87; Smith v. Firestone Tire and Rubber Co., 875 F.2d 1325, 1330 (7th Cir.1989); La Montague, 750 F.2d at 1412.\nIII. CONCLUSION\nFor the foregoing reasons, we now Affirm the judgment of the district court.\n. The decision was made on the basis of a Beef Study conducted by Fuddruckers' Purchasing Department in response to a decrease in the availability of forequarters of hanging beef in the meat processing industry. The Study was dated November 25, 1987.\n. While Monaco made a general reference to a \"loss of benefits” in his administrative charge, the only benefit which he specifically identified, and allegedly lost, was vacation time. He alleged a failure to promote and miscellaneous and sundry other grievances for the first time in his amended complaint, all of which are time barred.\n. To prove a constructive discharge, Monaco must show that Fuddruekers deliberately made his \"working conditions so onerous or demeaning that he [w]as effectively ... fired in place and compelled to leave.” Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 314 (7th Cir.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1304, 94 L.Ed.2d 160 (1987); see also Henn v. National Geographic Society, 819 F.2d 824, 826, 829 (7th Cir.), cert. denied, 484 U.S. 964, 108 S.Ct. 454, 98 L.Ed.2d 394 (1987). The district court assumed for the sake of argument that Monaco met that burden.\n. Although Monaco now contends that \"loss of benefits” included loss of vacation time, loss of medical insurance and loss of a promotion, the only \"benefit” mentioned in his administrative charge was the loss of vacation.\n.The district court inferred from the mere fact that Bertram had been trained to work in the butcher shop and was doing so on Monaco’s days off that he was the one who replaced Monaco when he quit. The court thus concluded that Monaco had satisfied the fourth element of a prima facie case by showing that Fuddruekers sought a younger replacement. The reasonableness of such an inference is subject to some speculation. While it was a seemingly easy matter to prove, there is nothing in the record which tells us whom Fuddruekers actually hired to replace Monaco, or what that person’s age was.\n. Under the circumstances, we would be hard-pressed to find that Fuddruckers' decision was in any way \"materially adverse” to Monaco. See Crady v. Liberty Nat'l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.1993) (materially adverse change may be indicated by termination of employment, demotion, less distinguished title, material loss of benefits, or significantly diminished material responsibilities).", "type": "majority", "author": "GRANT, Senior District Judge."}], "attorneys": ["James B. Koch (argued), Gardiner, Koch & Hines, Chicago, IL, for plaintiff-appellant.", "Keith A. Dorman (argued), Ross & Har-dies, Chicago, IL, for defendant-appellee."], "corrections": "", "head_matter": "Ralph MONACO, Plaintiff-Appellant, v. FUDDRUCKERS, INC., Defendant-Appellee.\nNo. 92-2165.\nUnited States Court of Appeals, Seventh Circuit.\nArgued Dec. 11, 1992.\nDecided Aug. 13, 1993.\nJames B. Koch (argued), Gardiner, Koch & Hines, Chicago, IL, for plaintiff-appellant.\nKeith A. Dorman (argued), Ross & Har-dies, Chicago, IL, for defendant-appellee.\nBefore BAUER, Chief Judge, CUMMINGS, Circuit Judge, and GRANT, Senior District Judge.\n. The Honorable Robert A. Grant, Senior District Judge, United States District Court for the Northern District of Indiana, is sitting by designation."}	BAUER	CUMMINGS	GRANT	1	1	1	0	0	0	1 F.3d 658	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ralph MONACO, Plaintiff-Appellant, v. FUDDRUCKERS, INC., Defendant-Appellee\nCourt: United States Court of Appeals for the Seventh Circuit\nDate decided: 1993-08-13\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nGRANT, Senior District Judge.\nI. BACKGROUND\nRalph Monaco was 38 years old in June 1985 when he began working for Fuddruck-ers, Inc., a national restaurant chain. As a “skilled butcher,” he was one of Fuddruck-ers’ top-paid hourly employees, with a starting wage of $6.00 an hour. That Monaco performed his job to the satisfaction of his employer throughout his tenure is evidenced by numerous performance evaluations, regular wage increases and increased supervisory responsibilities. By June 1986 Monaco was earning $8.00 an hour and his job responsibilities had expanded to include the training and scheduling of other butchers.\nIn early 1987, Monaco became interested in becoming a shift supervisor. He asked an assistant manager, Marc Mackiewicz, and even a district manager about the job on “several occasions,” but never got around to filing an application or asking the one person who had the authority to promote him to shift supervisor, Thomas Hlady, the restaurant’s general manager. In February and March 1987, Hlady promoted two other employees to shift supervisor, Mary Dwyer and Kirby Dorsey. When Monaco asked Mack-iewicz why he had not been promoted over Dwyer, Mackiewicz allegedly told him he was getting too old. When he asked about the Dorsey promotion, Mackiewicz made no response.\nThings went steadily downhill for Monaco from that point. In June 1987, Fuddruckers changed its vacation policy reducing the number of weeks its hourly employees could take from two to one. In December 1987, central corporate management decided that it was economically more feasible for its restaurants to use boxed beef in place of hanging forequarters' thus eliminating the need for skilled butchers. Fuddruckers’ Vice President and General Counsel, Charles Re-depenning, Jr., accordingly issued a directive to all district managers to reduce the wages and hours for their skilled butchers. As an hourly employee and skilled butcher, Monaco suffered the adverse consequences of Fud-druckers’ actions.\nWhen Monaco was subsequently asked by Mackiewicz to train a younger hourly employee, Tom Bertram, he objected and questioned Mackiewicz’ reasons. Mackiewicz allegedly responded by telling Monaco he was getting too old and suggested that he quit.\nThings came to a head on February 19, 1988, when Monaco demanded a second week of vacation. Mackiewicz, now general manager, told Monaco he was no longer entitled to a second week and allegedly said “you’re getting kind of old, why don’t you quit.” When Monaco returned to work three days later, he reiterated his demand for additional time off. Mackiewicz once again refused, and Monaco walked off the job.\nOn June 21,1988, Monaco filed a charge of discrimination with the Illinois Department of Human Rights (IDHR) alleging that he was constructively discharged as a result of the loss in wages, hours and vacation time in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. What disposition IDHR may have made of his claim is unknown.\nOn December 7, 1989, Monaco filed suit in federal district court alleging among other things that Fuddruckers had discriminated against him because of his age when it constructively forced him to resign his position and replaced him with a younger employee. Monaco amended his complaint to include more detailed factual allegations on January 24, 1990, and, on August 22, 1991, Fuddruck-ers moved for summary judgment. The district court, Judge Moran, granted the motion and this appeal followed.\nII. DISCUSSION\nOur review is, of course, de novo. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Crady v. Liberty National Bank and Trust Co. of Indiana, 993 F.2d 132, 134 (7th Cir.1993). Like the district court, we have reviewed the record in its entirety, drawing all reasonable inferences in the light which was most favorable to Monaco, the non-moving party, and have concluded that a rational trier of fact could not have found for Monaco on his claim of age discrimination.\nTo establish an ADEA violation, Monaco must be able to demonstrate that he suffered a materially adverse change in the terms or conditions of his employment because of his age. Crady, 993 F.2d at 134; Spring v. Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir.1989). He may do so under either the direct method set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1794-95, 104 L.Ed.2d 268 (1989), or the indirect burden-shifting method described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981) and Hazen Paper Co. v. Biggins, — U.S. -, -, 113 S.Ct. 1701, 1708, 123 L.Ed.2d 338 (1993). Monaco attempted both, and satisfied neither.\nA. The Direct Method\nThe only direct evidence of age discrimination offered by Monaco were the age-related remarks allegedly made by Marc Mackiewicz between February 1987 and February 1988. The district court found that Monaco failed to show a sufficient causal connection between those remarks and the actions taken by Fuddruckers. Monaco v. Fuddruckers, Inc., 789 F.Supp. 944, 948-50 (N.D.Ill.1992). We agree. “Unless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of a discriminatory discharge.” McCarthy v. Kemper Life Ins. Companies, 924 F.2d 683, 686-87 (7th Cir.1991). Monaco did not attempt to connect Mackiewicz’ remarks to the reductions in wages, hours and vacation time, nor could he. The record clearly shows that those decisions were made by Fuddruckers’ central corporate management and that they applied to all of its “skilled butchers” and/or hourly employees.\nWhether Monaco could prove a discriminatory failure to promote based on Mackiewicz’ remarks is an issue we need not decide. The administrative charge which Monaco filed on June 21, 1988 made no reference to a failure to promote, and the allegations contained in the charge cannot reasonably be read to encompass such a claim. Under the circumstances, Monaco was barred from raising any claim premised on a failure to promote in his complaint. See Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993); O’Rourke v. Continental Casualty Co., 983 F.2d 94, 97-98 (7th Cir.1993); Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir.1985); Jenkins v. Blue Cross Mutual Hospital Ins., Inc., 538 F.2d 164, 167 (7th Cir.), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976); Monaco, 789 F.Supp. at 949 n. 8.\nB. The Indirect Method\nMonaco fares no better under the indirect method. To establish a prima facie case of discriminatory discharge under the indirect method of proof, Monaco must show that: 1) he was more than forty years old; 2) he performed his job satisfactorily; 3) he was discharged (either actually or constructively); and 4) the discharge occurred under circumstances which gave rise to an inference of age discrimination. Stetson v. NYNEX Service Co., 995 F.2d 355, 359-60 (2d Cir.1993). See also Crady, 993 F.2d at 134; Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir.1992). That Monaco satisfies the first two steps is undisputed. He was 41 when he quit his job, and all performance evaluations through December 1986 showed that his work was consistently satisfactory. Although Fuddruekers disagrees, the district court also was willing to assume that Monaco had satisfied the third. Monaco’s stumbling block is at step four.\nMonaco contends that he was forced to resign due to the “economic hardship” imposed upon him by the reduction in his wages, hours, and other benefits. He contends that it is reasonable to infer from the comments made by Mackiewicz and from the fact that he was replaced by a younger man that the changes in his working conditions were motivated by his age. While the district court found Mackiewicz’ statements insufficient evidence of discrimination, it was willing to assume for the sake of argument that Monaco had indeed been replaced by a younger individual and that he had therefore presented a prima facie case of discrimination. The burden therefore shifted to Fuddruckers to present legitimate non-diseriminatory reasons for its actions. Judge Moran found that it met that burden when it produced evidence showing that the wage, hour and vacation cuts were all made by upper level corporate management, not at the local level, and for business reasons unrelated to the age of its employees. Having successfully rebutted any presumption of discrimination, the burden shifted back to Monaco to show that Fuddruekers’ stated reasons were really a pretext for the employment action. Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 847 (7th Cir.1992). The district court found that Monaco “ha[d] clearly failed to meet this burden.” Monaco, 789 F.Supp. at 952. We agree.\nWhile there are numerous ways to prove pretext, see Gustovich, 972 F.2d at 848-49; La Montague v. American Convenience Products, Inc., 750 F.2d 1405, 1414-15 (7th Cir.1984), Monaco simply relied on the evidence he used to establish his prima facie case, i.e., the fact that Mackiewicz made ageist remarks and that he was replaced by a younger individual. This he may not do. La Montague, 750 F.2d at 1414.\n[The mere fact that the employer may have hired a younger replacement is] too insubstantial to support an inference of age discrimination. It is not a violation of the Act to replace an employee in the protected class with a younger person, as long as the protected employee is not replaced because of his age. Because younger people often succeed to the jobs of older people for perfectly legitimate reasons, the mere fact that an older employee is replaced by a younger one does not permit an inference that the replacement was motivated by age discrimination.\nId. at 1412-13. While there were as many as three butchers working at Fuddruekers’ Matteson, Illinois restaurant at one point, by January 1988 the number had diminished to one, Monaco. The record shows that Bertram was trained as a back-up for Monaco on his day off, and that he only worked in the butcher shop when Monaco was not there. The job Bertram performed therefore had no impact on the number of hours Monaco worked, the wage he was paid, his title or his job responsibilities.\nThere is no evidence whatsoever to suggest that Fuddruckers intended to fire Monaco if he had not quit, that Bertram was hired to, or did in fact, replace him when he quit, or that similarly situated younger employees were treated more favorably than Monaco with respect to wages, hours, vacation or any other benefit Fuddruckers may have provided. To the extent Monaco relies on the remarks made by Mackiewicz to fill the gap, his reliance is misplaced. As previously discussed, those remarks standing-alone were insufficient as a matter of law to support an inference of age discrimination. See McCarthy, 924 F.2d at 686-87; Smith v. Firestone Tire and Rubber Co., 875 F.2d 1325, 1330 (7th Cir.1989); La Montague, 750 F.2d at 1412.\nIII. CONCLUSION\nFor the foregoing reasons, we now Affirm the judgment of the district court.\n. The decision was made on the basis of a Beef Study conducted by Fuddruckers' Purchasing Department in response to a decrease in the availability of forequarters of hanging beef in the meat processing industry. The Study was dated November 25, 1987.\n. While Monaco made a general reference to a \"loss of benefits” in his administrative charge, the only benefit which he specifically identified, and allegedly lost, was vacation time. He alleged a failure to promote and miscellaneous and sundry other grievances for the first time in his amended complaint, all of which are time barred.\n. To prove a constructive discharge, Monaco must show that Fuddruekers deliberately made his \"working conditions so onerous or demeaning that he [w]as effectively ... fired in place and compelled to leave.” Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 314 (7th Cir.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1304, 94 L.Ed.2d 160 (1987); see also Henn v. National Geographic Society, 819 F.2d 824, 826, 829 (7th Cir.), cert. denied, 484 U.S. 964, 108 S.Ct. 454, 98 L.Ed.2d 394 (1987). The district court assumed for the sake of argument that Monaco met that burden.\n. Although Monaco now contends that \"loss of benefits” included loss of vacation time, loss of medical insurance and loss of a promotion, the only \"benefit” mentioned in his administrative charge was the loss of vacation.\n.The district court inferred from the mere fact that Bertram had been trained to work in the butcher shop and was doing so on Monaco’s days off that he was the one who replaced Monaco when he quit. The court thus concluded that Monaco had satisfied the fourth element of a prima facie case by showing that Fuddruekers sought a younger replacement. The reasonableness of such an inference is subject to some speculation. While it was a seemingly easy matter to prove, there is nothing in the record which tells us whom Fuddruekers actually hired to replace Monaco, or what that person’s age was.\n. Under the circumstances, we would be hard-pressed to find that Fuddruckers' decision was in any way \"materially adverse” to Monaco. See Crady v. Liberty Nat'l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.1993) (materially adverse change may be indicated by termination of employment, demotion, less distinguished title, material loss of benefits, or significantly diminished material responsibilities).\n[END_CASE]", "role": "user" } ]
10,513,403	UNITED STATES of America, Appellee, v. Candido ORTIZ-MARTINEZ, Appellant; UNITED STATES of America, Appellee, v. Gabriel Jaime RAMIREZ-NAZAR, Appellant; UNITED STATES of America, Appellee, v. Carlos FUENTEZ, also known as Carlos Fuentes, also known as Pupo, also known as Pupoo, Appellant; UNITED STATES of America, Appellee, v. Stanley PRUITT, Appellant; UNITED STATES of America, Appellee, v. Jorge RODRIGUEZ-CALDERON, also known as Koki, Appellant; UNITED STATES of America, Appellee, v. Francisco SANTANA, Appellant	United States v. Ortiz-Martinez	1993-07-23	Nos. 91-3856, 91-3858, 91-3866, 91-3872, 91-3873, 91-3875	United States Court of Appeals for the Eighth Circuit	{"judges": ["Before WOLLMAN, Circuit Judge, BRIGHT and HENLEY, Senior Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Candido ORTIZ-MARTINEZ, Appellant. UNITED STATES of America, Appellee, v. Gabriel Jaime RAMIREZ-NAZAR, Appellant. UNITED STATES of America, Appellee, v. Carlos FUENTEZ, also known as Carlos Fuentes, also known as Pupo, also known as Pupoo, Appellant. UNITED STATES of America, Appellee, v. Stanley PRUITT, Appellant. UNITED STATES of America, Appellee, v. Jorge RODRIGUEZ-CALDERON, also known as Koki, Appellant. UNITED STATES of America, Appellee, v. Francisco SANTANA, Appellant."], "opinions": [{"text": "WOLLMAN, Circuit Judge.\nCandido Ortiz-Martinez, Gabriel Ramirez-Nazar, Carlos Fuentez, Jorge Rodriguez-Calderon, Stanley Pruitt, and Francisco Santana appeal from their convictions and sentences for drug-related offenses. We affirm.\nI.\nIn May 1989, following a series of events related to drug trafficking, the government began a multi-jurisdictional investigation of an extensive cocaine distribution network. The investigation involved cooperative efforts by the federal Drug Enforcement Administration (DEA), the St. Louis Metropolitan Police Department, the Internal Revenue Service, and various state and municipal police authorities throughout the United States.\nThe cocaine distribution network began in January 1988 and lasted until February 1990. The network was headquartered in Passaic and Patterson, New Jersey, and was managed and staffed by a closely-knit group of individuals, most of whom had immigrated from the Dominican Republic or were of Hispanic origin.\nThe government’s investigation led to the conclusion that the conspiracy’s “kingpin” was Francisco Santana. Santana, along with John Yazbek of Miami, was the primary organizer, manager and cocaine supplier of the network. Beginning in 1988, Santana began shipping cocaine from his base of operations in New Jersey to St. Louis, Missouri through a distribution network of couriers and middlemen, including appellants Gabriel Ramirez-Nazar and Jorge Rodriguez-Calderon. Ramirez, Rodriguez, and seven other middlemen in turn sold to twelve wholesale buyers in St. Louis, including Candido Ortiz-Martinez and Carlos Fuentez. The wholesale buyers in turn sold to a series of retail buyers, including Stanley Pruitt, who ultimately distributed the drugs to local purchasers and addicts in the St. Louis area. Santana’s organization was responsible for the distribution of more than 100 kilograms of cocaine in the St. Louis area.\nOn February 9, 1990, a grand jury in the Eastern District of Missouri returned an indictment charging twenty-two individuals with various offenses related to the conspiracy to distribute cocaine. The conspiracy had included many other participants who had not been indicted at the time of trial, some of whom served as witnesses against their former colleagues. Of the twenty-two defendants, four remained fugitives at the time of the trial, one (Jose Hernandez) died awaiting trial, and eleven pled guilty before or during trial; the remaining six defendants, appellants herein, were tried and convicted of a variety of narcotics-related crimes.\nThe government’s evidence at trial consisted of the testimony of law enforcement officials and numerous unindicted co-conspirators. In addition, the government provided the following physical evidence: the seizure of drug quantities; currency from drug proceeds; personal property obtained with drug proceeds; weapons; telephone toll records; bank records; and transcripts of undercover surveillance operations. The jury found each of the defendants guilty of conspiring to distribute and possess with the intent to distribute five or more kilograms of cocaine between January 1988 and February 1990. In addition, the jury found each defendant guilty on all additional counts charged. The district court sentenced the defendants to terms of imprisonment ranging from 188 months to 900 months.\nII.\nWe first examine issues raised by the individual appellants, followed by the two issues that are raised by more than one appellant, and conclude with sentencing issues.\nA. Francisco Santana\nSantana was convicted of two offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; and (2) attempted interstate travel to distribute drug proceeds in violation of 18 U.S.C. § 1952. The district court sentenced Santana to a total term of 600 months’ imprisonment, to be followed by five years of supervised release.\nSantana argues that the district court abused its discretion in denying his motion for a continuance based upon the illness of one of his attorneys, Worsham Caldwell. Santana also argues that the district court violated his Sixth Amendment right to effective assistance of counsel by requiring Caldwell’s replacement, Richard Hughes, to complete the trial. We address these contentions in turn.\nWe have noted that “[a] trial judge has broad discretion in deciding whether to grant or deny a motion for a trial continuance.” United States v. Heine, 920 F.2d 552, 555 (8th Cir.1990). “ ‘To determine whether the trial court has abused its discretion, the reviewing court will consider factors including counsel’s time for preparation, conduct of counsel at trial and presence of prejudice in the record.’ ” United States v. Bayless, 940 F.2d 300, 302 (8th Cir.1991) (quoting Nerison v. Solem, 715 F.2d 415, 418 (8th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 220 (1984) and 465 U.S. 1026, 104 S.Ct. 1283, 79 L.Ed.2d 686 (1984)).\nSantana was represented by the law firm of Shaw, Howlett and Knappenberger from February 1990 until November 9, 1990, when the Shaw firm withdrew and Santana replaced it with the law firm of Caldwell, Hughes, McHugh and Singleton. The entry of appearance was signed by Richard G. Hughes, and the District Court Clerk’s Office directed all of its mailings to his attention during the case. Hughes also participated in lengthy and ultimately futile plea negotiations with the U.S. Attorney’s office on Santana’s behalf.\nThe trial began on August 12, 1991, with Caldwell acting as Santana’s trial counsel. On Friday, August 23, Hughes informed the court that Caldwell had been forced to undergo surgery and requested a continuance of a week for him to prepare to substitute as Santana’s trial counsel. The district court denied Hughes’ motion and ruled that it would hold trial from August 26 through August 28, but agreed to continue the case from August 29, to resume five days later on September 3, 1991. On August 26, Madelyn Torres delivered testimony potentially damaging to Santana; however, the trial transcript demonstrates that Hughes skillfully cross-examined her. Moreover, Caldwell was in fact present and assisted Hughes on August 26. Caldwell was not present on August 28, but no testimony was offered on that date directly pertinent to Santana. When the trial resumed on September 3, both Hughes and Caldwell were present, as they were on every day thereafter. Indeed, with the exception of two days, Caldwell was present and available to assist Hughes in Santana’s defense.\nBy requesting a continuance of one week, Hughes presumably believed that seven days would suffice to bring him up to speed on the case. Between August 23, when Hughes requested the continuance, and September 3, when he was rejoined by Caldwell, Hughes had, in fact, a total of seven days off. The only testimony during the intervening time period that directly incriminated Santana came from Marilyn Torres, and the record demonstrates that Hughes’s cross-examination was skilled and thorough.\nSantana next argues that the district court violated his Sixth Amendment right to effective assistance of counsel by requiring him to go forward with Hughes as counsel. To establish an ineffective assistance claim, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is deficient if “counsel’s representation [falls] below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Counsel’s performance prejudices an individual’s defense if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Having reviewed the record, we find that Hughes’ performance was not deficient within the meaning of the Strickland test.\nSantana’s arguments concerning his sentence are addressed below. We have considered Santana’s remaining arguments, and we find that they are without merit.\nB.Candido Ortiz-Martinez\nCandido Ortiz-Martinez was convicted of four offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; (2) distributing cocaine in violation of 21 U.S.C. § 841; (3) using and carrying a firearm during a drug-trafficking crime (conspiracy) on October 7, 1989, in violation of 18 U.S.C. § 924(c); and (4) using and carrying a firearm during a drug trafficking crime (conspiracy) on February 13, 1990, also in violation of 18 U.S.C. § 924(c). Ortiz was sentenced to a total term of 592 months’ imprisonment, to be followed by five years of supervised release.\nOrtiz initially argues that the district court erred in failing to grant his motion for a judgment of acquittal, because the evidence was insufficient to prove beyond a reasonable doubt that he committed the offense of conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine.\nIn evaluating the sufficiency of the evidence supporting a jury verdict against a defendant, we review the evidence in the light most favorable to the government and give the government the benefit of all inferences that reasonably may be drawn from the evidence. United States v. Drews, 877 F.2d 10, 13 (8th Cir.1989).\nDirect testimony by four witnesses, namely, Lisa Neeally, Larry Smith, Patricia Oliver, and Larry Birdsong implicated Ortiz in the sale and distribution of cocaine with co-defendants and other customers in the St. Louis area. One witness, Birdsong, even obtained tape-recorded conversations between himself and Ortiz, in which Ortiz candidly discussed the sale of a quarter kilogram of cocaine, eventually delivered by Jose Hernandez and Carlos Fuentez on Ortiz’s behalf. In addition, the St. Louis police detained Ortiz at the St. Louis airport, where they seized $26,974 in cash from him. Last, he supplied the cocaine for purchases by Larry Birdsong on more than one occasion. Given this evidence, we cannot say that the verdict is unsupported by substantial evidence. See United States v. Bonadonna, 775 F.2d 949, 958 (8th Cir.1985).\nOrtiz does not challenge any aspect of his sentence in this appeal. We have considered Ortiz’s remaining arguments, and we find that they are without merit.\nC. Gabriel Jaime Ramirez-Nazar\nGabriel Jaime Ramirez-Nazar was convicted of two offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; and (2) distribution of more than 5 kilograms of cocaine on July 11, 1989, in violation of 21 U.S.C. § 841. Ramirez was sentenced to a total term of 188 months’ imprisonment, to be followed by five years of supervised release.\nStanley Pruitt, Jorge Rodriguez, Larry Smith, and Carlos Fuentez wired $5,000 from St. Louis to Gabriel Ramirez in New Jersey in June 1989. Shortly thereafter, Smith was informed of the imminent arrival of ten kilograms of cocaine from Miami. On July 11, 1989, Ramirez arrived in St. Louis and distributed nine kilograms to Larry Smith, John Yazbek, and others. That night, police seized Ramirez’s car and most of the cocaine and arrested both Yazbek and Ramirez in the motel room they were sharing.\nRamirez’s sentencing claims are discussed below. We have considered Ramirez’s other arguments, and we find that they are without merit.\nD. Carlos Fuentez\nCarlos Fuentez was convicted of three offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; (2) distributing cocaine on November 6, 1989, in violation of 21 U.S.C. § 841; and (3) using and carrying firearms during a drug trafficking crime (conspiracy) on May 18, 1989, in violation of 18 U.S.C. § 924(c). He was sentenced to a total term of 295 months’ imprisonment, to be followed by five years of supervised release.\nFuentez served as a courier for the drug distribution network, transporting drugs and cash between New Jersey and St. Louis. The government seized large amounts of currency from, Fuentez on two occasions at the St. Louis airport.\nFuentez argues that district court abused its discretion when it refused (1) to permit him to conduct an in-court demonstration of a narcotics detection dog examining U.S. currency; (2) to present expert testimony by a toxicologist concerning the percentage of U.S. currency that is contaminated by the odor of illegal narcotics, and (3) to authorize government payment for the toxicologist’s services under 18 U.S.C. § 3006A(e)(l).\nWe have noted that the admissibility of experimental evidence is within the discretion of the trial court, and we will not overturn that decision absent a showing of an abuse of discretion. Patterson v. F.W. Woolworth Co., 786 F.2d 874, 880 (8th Cir.1986); Randall v. Warnaco, Inc., 677 F.2d 1226, 1233 (8th Cir.1982).\nIn refusing to allow the in-court demonstration with the narcotics detection dog, the court noted that the testimony would be irrelevant because the government had based its seizure of the currency on numerous factors other than the positive canine reaction. These had included the following facts: (1) Fuentez had paid for his ticket in cash; (2) he had appeared nervous; (3) he had purchased a one-way ticket; (4) he had one carry-on duffel bag and (5) he had given a thoroughly implausible explanation for having such a large amount of cash on his person. Consequently, we cannot say that the district court abused its discretion in refusing to allow the demonstration.\nThese arguments apply with equal force to Fuentez’s request to present expert testimony concerning the level of drug contamination of currency. Fuentez’s expert was prepared to testify that a Substantial percentage of bills in the Miami area contain cocaine residue. Fuentez did not include in his offer of proof that the expert would testify (1) that a similar percentage of currency in St. Louis would be so contaminated; or (2) that the expert’s analysis applied to all denominations. As before, a number of other factors went into the currency seizures that would render such testimony, even if true, irrelevant.\nLast, we address Fuentez’s argument that the district court committed reversible error by failing to authorize payment of his expert toxicologist under 18 U.S.C. § 3006A(e)(l). Because the district court did not err in refusing to permit the toxicologist to testify, it clearly did not err in refusing to authorize payment for such a witness. Moreover, the two cases cited by appellant in support of his position on this issue are distinguishable and involved a far greater showing of need on the defendant’s part. See United States v. Schultz, 431 F.2d 907, 908-909 (8th Cir.1970) (need for medical experts to determine if defendant was competent to stand trial); Brinkley v. United States, 498 F.2d 505, 509-12 (8th Cir.1974) (need for independent psychiatrist to determine effects of LSD on defendant’s brain to present insanity defense). As we noted in Schultz, “a trial court need not authorize an expenditure under subdivision (e) for a mere ‘fishing expedition’.” Id., 431 F.2d at 911.\nWe address Fuentez’ sentencing challenge below. We have considered Fuentez’s remaining arguments, and we find that they are without merit.\nE. Jorge Rodriguez-Calderon\nJorge Rodriguez-Calderon was convicted of two offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; and (2) engaging in financial transactions involving drag proceeds on June 8, 1989, in violation of 18 U.S.C. § 1956. Rodriguez was sentenced to a total term of 262 months’ imprisonment, to be followed by five years of supervised release.\nAll of Rodriguez’ arguments pertain to sentencing and are discussed below.\nF. Stanley Pruitt\nStanley Pruitt was convicted of seven offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; (2) carrying and using firearms during a drug trafficking crime (conspiracy) on June 16, 1989, in violation of 18 U.S.C. § 924(c); (3) carrying and using firearms during a drug trafficking crime (conspiracy) on June 16, 1989, in violation of 18 U.S.C. § 924(c); (4) possession with intent to distribute more than 5 kilograms of cocaine on July 11, 1989, in violation of 21 U.S.C. § 841; (5) distribution of cocaine on November 17, 1989, in violation of 21 U.S.C. § 841; (6) possession with intent to distribute more than 500 grams of cocaine on November 17, 1989, in violation of 21 U.S.C. § 841; and (7) carrying and using a firearm during a drug trafficking crime (distribution and possession with intent to distribute more than 500 grams of cocaine) on November 17, 1989, in violation of 18 U.S.C. § 924(c).\nTitle 18, United States Code, § 924(c)(1) provides, in pertinent part:\nWhoever, during and in relation to ... any drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years.... Notwithstanding any other provision of law, ... the term of imprisonment imposed under this subsection [shall not] run concurrently with any other term of imprisonment^]\nPruitt argues that he was improperly convicted of three separate violations of 18 U.S.C. § 924(c) and that he was improperly sentenced consecutively for each violation.\nBeginning in March 1989, Stanley Pruitt became the primary retail dealer/customer in the conspiracy, in addition to directing the activities of various other dealers, including Larry Smith. Pruitt conducted his transactions at numerous locations in St. Louis.\nOn June 16,1989, law enforcement authorities searched Pruitt’s residence at 2201 Angelica. Pruitt and an associate, Frank Day, were present during the search. The authorities recovered automobile records, telephone numbers for members of the conspiracy, and $6,190 in U.S. currency from the residence. The authorities also seized numerous weapons from the first floor of the residence: (1) a .12 gauge shotgun; (2) a second .12 gauge shotgun with a sawed-off barrel; (3) an Arisaka bolt-action rifle; (4) a Marlin .35 caliber lever action rifle; (5) a .22 caliber revolver; and (6) a .25 caliber semiautomatic pistol.\nOn June 16,1989, law enforcement authorities also searched the house at 5275 Beacon. The authorities recovered the following weapons from the front bedroom of the residence: (1) a .30 caliber semi-automatic machine pistol; and (2) a .22 caliber AR-7 rifle. The agents also seized various documents connecting Pruitt to the residence, including his driver’s license permit, a number of pieces of mail addressed to him; and cash receipts in Pruitt’s name.\nThe section 924(c) “use and carry” charge for November 17, 1989, originated in a separate incident. The St. Louis police department arrested one Donnie Davis late in the evening of November 16, 1989, in possession of a small quantity of cocaine. After his arrest, Davis identified his source of cocaine as Stanley Pruitt and agreed to arrange an additional purchase of cocaine from Pruitt. The police recorded a conversation between Davis and Pruitt in which Pruitt agreed to sell four ounces of cocaine to Davis and scheduled the transfer to occur at one of Pruitt’s apartments at 9921B Sloane Square. After Davis had purchased five ounces of cocaine from Pruitt, the police arrested Pruitt as he exited the apartment building. During a search of 9921B Sloane Square, police recovered a total of more than 600 grams of cocaine, assorted drug paraphernalia, and a .22 caliber rifle. A subsequent search by officers of Pruitt’s residence at 4223 Marlin uncovered a .22 caliber revolver hidden in a hidden safe in a closet, along with other documentary evidence linking Pruitt to the conspiracy.\nThe principal witness to testify concerning Pruitt was Larry Smith, a lifetime acquaintance of Pruitt, who is currently in the Witness Protection Program. Smith testified that he was aware of weapons Pruitt kept at an apartment on Nor stead Walk, at a house at 5275 Beacon, and at the Angelica Street residence. Smith explained that Pruitt used the weapons for protection in his narcotics dealings. On one occasion, Smith was present when Pruitt showed Smith, Ortiz, and Fuentez a weapon at 5275 Beacon and stated that “if somebody ran in there and wasn’t supposed to be there, [Pruitt] was prepared for that.”\nAs stated earlier, Pruitt was convicted of the following section 924(c) “use and carry” charges: (1) carrying and using firearms during a drug trafficking crime (conspiracy) on June 16, 1989; (2) carrying and using firearms during a drug trafficking crime (conspiracy) on June 16, 1989; (3) carrying and using a firearm during a drug trafficking crime (distribution and possession with intent to distribute more than 500 grams of cocaine) on November 17, 1989. Due to a number of previous offenses, Pruitt had a criminal history score of 11. The district court sentenced Pruitt to a total of 360 months’ imprisonment for the drug offenses. With respect to the section 924(c) charges, the district court sentenced Pruitt to 60 months on the first charge, and 240 months consecutively on each of the second and third charges, for a total of 540 months.\nPruitt’s appeal presents the following questions: (1) may a defendant be convicted of more than one violation of section 924(e) based upon the same predicate offense and, if so; (2) can a second violation of section 924(c) based upon the same predicate offense be considered a “second or subsequent” offense, allowing the court to impose consecutive sentences for each offense and an enhanced twenty-year penalty for the second offense.\nPruitt first argues that he cannot be convicted of more than one offense within the meaning of 18 U.S.C. § 924(c) based upon the same predicate offense (conspiracy) for the two stashes of weapons that were found, respectively, in the first floor of his residence at 2201 Angelica and in the front bedroom of 5275 Beacon. We resolved this issue in United States v. Freisinger, 937 F.2d 383, 390 (8th Cir.1991), where we noted that “[w]e see no implication of the double jeopardy clause in multiple convictions for each separate possession of a firearm during and in relation to a single drug trafficking crime.” Id. Accord, United States v. Edwards, 994 F.2d 417, 423 (8th Cir.1993). Accordingly, the district court properly convicted Pruitt on two section 924(c) charges based upon the two stashes of weapons recovered from 2201 Angelica and 5275 Beacon.\nHaving resolved that under Freisinger Pruitt may be convicted of three separate section 924(c) violations, we must now address a second question: once a defendant has properly been convicted of two section 924(c) violations based upon a single drug trafficking offense, is the second conviction a “second or subsequent” offense, permitting an enhanced and consecutively imposed twenty-year sentence?\nIn United States v. Lucas, 932 F.2d 1210 (8th Cir.1991), cert. denied, — U.S. -, -, -, -, 112 S.Ct. 199, 349, 399, 609, 116 L.Ed.2d 159, 288, 348, 632 (1991) and — U.S. -, 112 S.Ct. 1186, 117 L.Ed.2d 429 (1992), where the defendant had been convicted of the two section 924(c) charges based upon the same predicate offense, but entailing different uses, we found that “consecutive sentences on these counts do not violate the constitutional prohibition against double jeopardy.” Id. at 1223. Although we reached a seemingly different result in Freis-inger, the facts of that case distinguish it from Pruitt’s situation. The defendant in Freisinger had been convicted of four separate section 924(c) violations based upon his carrying four weapons at the time police arrested him in possession of cocaine. 937 F.2d at 385. We upheld the defendant’s convictions on four separate section 924(c) violations based upon the same predicate offense. Id. at 390. In Freisinger, the district court had treated defendant’s second, third, and fourth section 924(c) violation as “second or subsequent offenses” for the purposes of the statute, and imposed consecutive sentences for each count. Id. at 385. We concluded that “when a defendant has been convicted of more than one violation of section 924(c) because he was carrying more than one firearm during a single drug trafficking offense, the convictions after the first one are not ‘second or subsequent’ convictions within the meaning of the statute.” Id. at 391. Thus, in Freisinger we reasoned that the proper solution involved: (1) sentencing the defendant to a term corresponding to a first offense under section 924(e) for each violation based upon the same predicate offense; and (2) imposing those sentences to run concurrently.\nThere is, however, a crucial difference between Freisinger and Lucas. In Lucas, the defendant was sentenced to consecutive terms based upon the two separate stashes of weapons. In Freisinger, by contrast, concur- ' rent sentences were appropriate because the defendant had been convicted separately for each of the four weapons found in a single stash.\nMoreover, the Supreme Court’s recent opinion in Deal v. United States, — U.S. -, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), confirms that the district court may sentence a defendant to a consecutive twenty-year term under 18 U.S.C. § 924(c) for “a second or subsequent conviction” where both the first and any subsequent convictions arise in the same proceeding.\nAccordingly, the district court properly sentenced Pruitt to five years on the first section 924(e) conviction, and to consecutive twenty-year terms for his second and third section 924(c) convictions.\nIII.\nA number of the appellants argue the following two issues on appeal: (1) that the government improperly used a peremptory challenge to strike the only black juror from the jury panel in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (2) that the district court erroneously admitted the hearsay testimony of four witnesses as co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(E).\nA. Batson Issue\nAppellants Santana, Ortiz, Ramirez, Fuen-tez, and Pruitt argue that the government’s exercise of one of its peremptory strikes against juror # 1 was racially discriminatory and violated their equal protection rights under Batson.\nIn Batson, the Supreme Court held that the Equal Protection clause' forbids the government from challenging potential jurors solely on account of their race. Id. at 89, 106 S.Ct. at 1719. See United States v. Thomas, 914 F.2d 139, 142 (8th Cir.1990). Under Batson, once a defendant makes a prima facie case of the prosecution’s purposefully discriminatory use of peremptory challenges, the burden shifts to the government to come forward with a neutral explanation, particular to the case, for striking jurors of the defendant’s race. Thomas, 914 F.2d at 142. We review a district court’s finding that the government has exercised its peremptory challenges in a nondiscriminatory manner under the clearly erroneous standard. Id.\nSix jurors (numbered respectively 1, 12, 17, 36, 39, and 49) were black and juror #47 was Hispanic. The eventual jury of twelve persons was chosen from the first thirty-one members, thus automatically eliminating jurors numbered 36, 39, 47, and 49. The district court struck jurors numbered 12 and 17 for cause, leaving juror # 1 as the only black or Hispanic juror available to sit on this case. The government used one of its peremptories to strike juror # 1. The defense made a proper Batson exception. In response to the district court’s request for a statement of reasons, the government stated that juror # 1 had testified as a witness in a case in which her sister had been a criminal defendant. Moreover, when asked whether that experience would affect her impartiality in the upcoming trial, juror # 1 replied equivocally, “No, I don’t think so.” Accordingly, the district court found that the government’s reason was a valid, race-neutral justification.\nAppellants argue that the inclusion of juror # 14, who was white and who admitted during voir dire to having a friend who had recently been prosecuted for bribery in federal court, supports their Batson claim. Significant differences exist, however, between the experiences of juror # 1 and juror # 14. Juror # 14 had not been a witness at his friend’s trial, the trial did not involve a close family member, and juror # 14 admitted that he did not know the details of the bribery case. Moreover, when asked if that experience would affect his ability to impartially hear this trial, he replied unequivocally, “No.”\nConsequently, we find no clear error here. The prosecution’s reasons for striking the black juror were unique to the facts of the case and were racially neutral, and thus constitutionally permissible. See Thomas, 914 F.2d at 142.\nB. Co-Conspirator Hearsay Issue\nSantana, Ramirez-Nazar, Fuentez, and Pruitt jointly argue that the district court erred in admitting the hearsay testimony of four witnesses as co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(E).\nUnder the federal rules, a statement is not hearsay if made “by a co-conspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). To satisfy the requirements of Rule 801(d)(2)(E), “ ‘the government must demonstrate that (1) a conspiracy existed; (2) that the defendant and declarant were part of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy.’ ” United States v. Kocher, 948 F.2d 483, 485 (8th Cir.1991) (quoting United States v. Eisenberg, 807 F.2d 1446, 1453 (8th Cir.1986)).\nUnder the approach used in this circuit, first set forth in United States v. Bell, 573 F.2d 1040 (8th Cir.1978), a district court is required to admit conditionally the statements of alleged co-conspirators, subject to an on-the-record ruling that the statement is admissible under the co-conspirator exception to the rule against hearsay. United States v. Coco, 926 F.2d 759, 761 (8th Cir. 1991). Where the record indicates that the defendant failed to request a Bell ruling but made a motion for acquittal, we treat the district judge’s denial of the acquittal motion as substantial compliance with the Bell requirements, infer the requisite Bell findings, and employ a plain-error standard of review. See Id.\nAppellants first challenge the admissibility of the testimony of Daniel Perkins concerning Perkins’s contact with Stanley Pruitt during November 1989, when Perkins installed several hidden safes in Pruitt’s residence at 4223 Marlin Court. Contrary to the appellants’ contention, Perkins related no hearsay statements in the course of his testimony, but testified only as to his first-hand observations. Perkins testified that, while at that address, he personally observed Pruitt consummate several transactions that involved measuring white powder on a triple beam scale. Although Perkins testified that these visitors had spoken- to Pruitt, he did not relate the substance of any of these conversations. Consequently, Perkins provided no testimony that would offend Fed.R.Evid. 801(d)(2)(E).\nNext, appellants challenge two portions of Madelyn Torres’s testimony concerning events that occurred in her apartment during the spring of 1989, when she was dating Frank Santana. Torres testified that on at least two occasions Santana had. received Ruben Santana, Francisco Herrera, Jose Hernandez, and Candido Polanco in her apartment. Torres testified that on both occasions the visitors delivered shoe boxes full of currency to Frank Santana and had stated that “... this is the money from the one eighth, or, you know, whatever material they had sold,” using terms associated with fractional amounts of cocaine.\nWe find that Torres’ statements satisfy the requirements set forth in Kocher for admissibility under Fed.R.Evid. 801(d)(2)(E). Independent evidence demonstrated that Ruben Santana, Herrera, Hernandez and Polanco were all involved in the conspiracy. Moreover, as the visitors were primarily involved in handling the financial aspects of the venture, the statements concerning the shoebox-es described the source of the money, and thus were in furtherance of the conspiracy.\nNext, the appellants challenge several aspects of Felix Gil’s testimony. Felix Gil was an illegal alien from the Dominican Republic who served as one of Santana’s money couriers and testified for the prosecution. Gil is currently in the Witness Security Program. First, the appellants challenge Gil’s testimony concerning conversations he had with Jose Hernandez, Candido Polanco, Eduardo Cedeno, and Francisco Herrera concerning the operation of the conspiracy. The majority of this testimony concerned conversations between Gil and Herrera concerning Santana’s operation in St. Louis, its members, and its activities. Herrera, Frank Santana’s nephew, was a central player in the conspiracy. Gil’s conversations with Herrera satisfy the requirements of Fed. Rule Evid. 801(d)(2)(E) because Herrera was a member of the conspiracy and entered into the conversations in furtherance of the conspiracy to successfully recruit Gil to become one of Santana’s money couriers.\nThe appellants also challenge Gil’s testimony regarding Santana’s source of income. In his direct examination, Gil testified that he had learned that Santana’s primary source of income was drugs from “the guys that used to sell” for Santana. The government admits on appeal that such testimony was probably inadmissible due to a lack of specificity concerning the identity of the speaker. Gil backed this statement up, however, by noting that his own observation had led him to the same conclusion, namely, that Santana’s principal source of income was drug-related. Because counsel failed to request a Bell finding, we infer the Bell finding from the judge’s denial of Santana’s motion for acquittal on September 17, 1991, and review for plain error. Given this subsequent additional testimony, we find that any error in admitting the earlier testimony was harmless.\nAppellants also challenge Gil’s testimony concerning Santana’s alleged ownership of two New Jersey bars. Gil testified that various persons had told him that Santana owned two bars, but could not be more specific about the identity of these persons. Any error in admitting this testimony, however, was harmless, given its corroboration from independent sources. Moreover, Madelyn Torres testified that Santana personally told her that he owned two New Jersey bars, the “Copacabana” and “The Colombia House.” Indeed, a search of the Copacabana by authorities on September 9, 1988 recovered Santana’s personal identification documents, including his social security card, from a safe under the bar of the club. In addition, the ownership of these bars was a peripheral issue in the case.\nLast, the appellants object to Sergeant Mario Recino’s testimony in which he related a conversation with a female identified as Brenda, who gave him Santana’s nickname and beeper number. Reciño used the beeper number to contact Santana, discussed with him the purchase of multiple kilograms of cocaine, and also learned directly from Santana that Santana was selling kilogram quantities of cocaine in both New Jersey and St. Louis. Brenda’s statements incriminate no one other than Santana, and the statements clearly had the purpose of furthering Santana’s drug distribution enterprise by putting him in contact with a potential customer. Moreover, other evidence established that the nickname and beeper number belonged to Santana. Last, because the record reveals that counsel failed to request a Bell finding, we infer the Bell finding from the judge’s denial of Santana’s motion for acquittal on September 17, 1991, and review for plain error. Given this subsequent additional testimony, any error in admitting the earlier testimony was harmless.\nIV.\nLast, appellants make the following arguments with respect to the sentences imposed by the district court..\nA. Attribution of Cocaine Amounts to Rodriguez, Ramirez & Fuentez under U.S.S.G. § IB 1.3(a)(1).\nAppellants Fuentez, Ramirez-Nazar, and Rodriguez-Calderon argue that the district court erroneously attributed an excessive amount of cocaine to them in determining their base offense levels. The court computed the base offense level for these three defendants to be 36, based on a finding that the conspiracy involved between 50 and 150 kilograms of cocaine.\nWe set forth the standards for determining drug quantities attributable to individual defendants in a conspiracy in United States v. Olderbak, 961 F.2d 756 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 422, 121 L.Ed.2d 344 (1992). We noted that:\nUnder subsection (a) of Section 1B1.3 of the Sentencing Guidelines, each conspirator is responsible for all criminal acts committed in furtherance of the conspiracy. ‘[S]uch conduct is not included in establishing the defendant’s offense level,’ however, if it ‘was neither within the scope of the defendant’s agreement nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake.’ ”\nId. at 764 (citations omitted) (emphasis in original). A district court’s determination of the quantity attributable to an individual defendant for sentencing purposes “is a factual determination subject to review under the clearly erroneous standard.” Id. at 763.\nIn ascertaining the amount of drugs involved in the conspiracy, the district court adopted the conclusion of the presentence investigation reports that “[i]n total, the drug distribution organization headed by Santana was responsible for the distribution of over 105 kilograms of cocaine in the St. Louis area.” The U.S. Probation Office obtained an amount of greater than 50 kilograms by two independent methods. First, the authorities arrived at the 105 kilogram figure by totalling amounts derived from the testimony of witnesses and corroborating evidence in the case. Second, U.S. law enforcement officers seized approximately 13.5 kilograms of cocaine. Additionally, officers seized $545,-552.00 in U.S. currency and checks. Last, the organization transferred approximately $400,000 by wire. The amount of drug proceeds totaled roughly $945,000, which, when divided by an average cost of $23,000 per kilogram, represents 41 kilograms of cocaine, which, when added in turn to the 13.5 kilograms actually seized, totals over 50 kilograms. We have previously endorsed the extrapolation of drug quantities from similar financial information. See United States v. Carper, 942 F.2d 1298, 1303 (8th Cir.), cert. denied, —— U.S. -, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). We do not find the calculation of drug quantities to be clearly erroneous here.\nThe district court found that the entire amount of cocaine distributed by the conspiracy in this case was reasonably foreseeable to Fuentez. We agree. Substantial evidence showed that he was personally involved in the conspiracy from beginning to end. Fuentez began working as a worker and money courier for co-defendant Taurino Gonzalez-Felix during the summer and fall of 1988, which included the attempted delivery of $40,000 to Frank Santana in August 1988. Fuentez was directly implicated in the conspiracy by the testimony of Lisa Neeally, Patricia Oliver, Lissette Jacquez, Larry Smith, and Larry Birdsong.\nMoreover, Fuentez figured prominently in several of the law enforcement events involved in the conspiracy. As discussed earlier, law enforcement officers seized a total of $22,680 in currency from Fuentez on two separate occasions at the St. Louis airport in the summer and fall of 1988. Fuentez was also present in an apartment on October 7, 1989, where police arrested Candido Ortiz and recovered a bag containing cocaine. Likewise, Fuentez was arrested after he, along with Ortiz and Jose Hernandez, sold an undercover officer and a police informant a quarter kilogram of cocaine for $7,000 on November 6, 1989. Last, when law enforcement officials stopped Fuentez at the St. Louis airport for a third time on December 21, 1989, papers confiscated from Fuentez contained the beeper number of Frank Santana.\nThe district court found that the entire amount of cocaine in the conspiracy was also attributable to Gabriel Ramirez-Nazar. As with Fuentez, the evidence demonstrated that Ramirez played an important role in the conspiracy. Ramirez worked as a courier/middleman for Santana, and worked closely with co-defendant Rodriguez. On June 8, 1989, Ramirez received $5000 from Larry Smith, wired to him at the direction of Rodriguez-Calderon. One month later, Ramirez delivered a vehicle containing nine kilograms of cocaine to Stanley Pruitt in St. Louis. Authorities arrested Ramirez shortly thereafter, at which time he was sharing a room with ringleader John Yazbek. Ramirez made a false exculpatory statement to police shortly after his arrest on July 11, 1989. At that time, police recovered from Ramirez a document indicating that he was the joint owner of an automobile with Yazbek. Additionally, testimony by both Felix Gil and Madelyn Torres linked Ramirez to Frank Santana, John Yazbek, and other members of the conspiracy. Last, at the time of Santana’s arrest, authorities recovered from him an address book containing the name and telephone number of Gabriel Ramirez under his nickname, “pela cuca.” The evidence showed that Ramirez and Rodriguez worked closely together.\nAlthough Ramirez is not directly implicated in any law enforcement events other than those surrounding the delivery of nine kilograms of cocaine, strong circumstantial evidence, both documentary and testimonial, indicate his willing participation in the full extent of the conspiracy. The conspiracy’s leaders plainly believed Ramirez worthy of sufficient trust to handle nine kilograms of cocaine, which, at a value of approximately $23,000 per kilogram, is worth $207,000, an amount that contradicts Ramirez’s assertion that he was a minor participant. Given the district’s opportunity to hear the testimony and ascertain the credibility of the numerous witnesses in this case, we cannot say that it clearly erred in attributing to Ramirez the total amount of the cocaine involved in the conspiracy.\nJorge Rodriguez-Calderon also argues that the district court erred in attributing to him the entire amount of cocaine distributed over the course of the conspiracy.\nThe government presented substantial evidence establishing that Rodriguez played an important role in the conspiracy. Rodriguez directed Larry Smith to wire Ramirez $5,000 to pay off cocaine debts to the New Jersey operation, thereby opening the door to future shipments to the St. Louis area. The government introduced evidence that, as a result of this wire, Ramirez drove a car containing nine kilograms of cocaine. to St. Louis. When Rodriguez came to St. Louis in June 1989, he came in a supervisory capacity to, as one of the witnesses put it, “straighten everything up.” As the government later explained, “straightening everything up” consisted of collecting money to correct prior losses in the trans-continental drug enterprise. While in St. Louis, Rodriguez managed the dealing and distribution aspects of many members of the conspiracy, including Carlos Clausen and Jose Cintron. In addition, Madelyn Torres testified that Rodriguez had given instructions to both her and Delisa Cordero to deliver three kilograms of cocaine to St. Louis in mid-July 1989. In conversations with Larry Smith, Carlos Clausen referred to Rodriguez as the “big boss.” As with Ramirez, Rodriguez’s involvement in personally arranging the delivery of nine kilograms of cocaine and acting in a managerial capacity with respect to the enterprise’s St. Louis contacts demonstrates his central role in the conspiracy. In the iight of this evidence, we cannot say that the district court clearly erred in attributing to Rodriguez the amount of cocaine that it did. See Bonadonna, 775 F.2d at 958.\nB. Santana and Rodriguez’s Challenge to the Enhancement of their Sentences under U.S.S.G. § 3B1.1.\nSantana and Rodriguez also challenge the district court’s enhancement of their offense levels pursuant to U.S.S.G. § 3B1.1 for their aggravating roles in the offense. The district court enhanced Santana’s offense level by foui’ levels because he was as an organizer or leader of a criminal activity involving five or more participants or that was otherwise extensive. Similarly, the district court enhanced Rodriguez’ offense level by three levels for being a manager or supervisor in a criminal activity involving five or more participants or that was otherwise extensive.\nIn making a determination under U.S.S.G. § 3B1.1, the sentencing court should consider such factors as the nature of defendant’s role in the offense, the recruitment of accomplices, the degree of participation in planning or organizing the offense. U.S.S.G. § 3B1.1, comment, (n. 3); United States v. Roberts, 953 F.2d 351, 354 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 3008, 120 L.Ed.2d 882 (1992). A finding by the district court under U.S.S.G. § 3B1.1 is a factual determination that we review under the clearly erroneous standard. United States v. Wiegers, 919 F.2d 76, 77 (8th Cir.1990).\nWe have broadly defined the term “organizer” or “leader.” United States v. Manuel, 912 F.2d 204, 207 (8th Cir.1990). In addition, we have noted that an individual can occupy a leadership role without having directly controlled his co-conspirators. United States v. Grady, 972 F.2d 889, 889 (8th Cir.1992).\nThe district court’s decision to increase Santana’s offense level by four was not clearly erroneous. Santana was the leader of this entire conspiracy. He was the conspiracy’s principal supplier, and he was involved in the conspiracy from August 1988 until his arrest in February 1990. For the duration of the conspiracy, a vast amount of money, estimated by law enforcement authorities to be nearly $1,000,000, was sent by other conspirators directly to Santana or via his relatives. Santana’s beeper served as the common link among all the conspirators. The evidence supported the inference that Santana directed the activities of Jose Hernandez, Candido Polanco, Eduardo Cedeno, and Felix Gil. Gil testified that Santana had recruited him into the conspiracy and had directed him to transport $56,000 in cash to St. Louis in December 1989. Gil and Madelyn Torres both confirmed during their testimony that Santana was the ringleader of this conspiracy. Moreover, in July 1989, Santana represented himself to Sergeant Reciño as the leader of the conspiracy and boasted about the profit opportunities present in St. Louis. Given the facts recounted during testimony, the district court’s enhancement of Santana’s offense level by four was not clearly erroneous.\nLikewise, we cannot say the district court clearly erred in enhancing the offense level of Jorge Rodriguez-Calderon. Rodriguez, as recounted earlier, played a significant role in the management of the conspiracy. He was referred to as the “big boss” and was dispatched to St. Louis to “straighten everything up” and await Ramirez’ nine kilogram cocaine shipment. Thus, the evidence supports the district court’s finding that Rodriguez was a manager or supervisor within the meaning of U.S.S.G. § 3Bl.l(b).\nC. Fuentez, Ramirez, and Rodriguez’s Challenge to the District Court’s Refusal to Reduce their Offense Levels under U.S.S.G. § 3B1.2(b).\nFuentez, Ramirez, and Rodriguez claim that the district court erred in refusing to reduce their offense levels as minor or minimal participants under U.S.S.G. § 3B1.2(b). A district court’s refusal to grant such a reduction is a finding of fact that we review under the clearly erroneous standard. United States u Regan, 940 F.2d 1134, 1136 (8th Cir.1991).\nTo be a minimal participant, the particular defendant must have been “plainly among the least culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2, comment, (n. 1). The Application Notes to section 3B1.2 state that courts should use the “minimal participant” exception “infrequently,” possibly in cases where “an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment, (n. 2). Given their extensive participation in the enterprise, any argument that Fuentez, Ramirez, or Rodriguez qualify for this exception is without merit.\nTo be a minor participant, the particular defendant must have been “less culpable than most other participants.” U.S.S.G. § 3B1.2, comment (n. 3). Fuentez’s extensive participation in the conspiracy was discussed earlier and precludes serious consideration of his request. Likewise, Rodriguez’s role as a manager and one who directed the activities of other conspirators precludes his success in this argument. Finally, we cannot say the district court’s refusal to grant Ramirez a reduction under section 3B1.2 was clearly erroneous.\nWe have examined appellants’ other arguments and we find them to be without merit.\nAccordingly, we affirm the convictions and sentences of the appellants.\n. On June 27, 1988, DEA Agents seized a total of • $13,490 in U.S. currency from Fuentez at the St. Louis airport. Fuentez was travelling on a one-way ticket to Newark, New Jersey, under an assumed name. Fuentez told agents that a friend who owned a grocery store in New York had given him the cash to buy vegetables in St. Louis. A narcotics detection dog reacted positively to the currency.\nOn October 22, 1988, DEA Agents seized a total of $9,190 in U.S. currency from Fuentez at the St. Louis airport. The cash was sewn into the lining of a leather jacket. Fuentez again claimed that the currency had been given to him by his mysterious friend in New York, this time to buy a car which he, Fuentez, had been unable to locate. No claim was ever made for the return of the currency.\n. Section 3B1.1 provides, in pertinent part: Based on the defendant's role in the offense, increase the offense level as follows:\n(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.\n(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.", "type": "majority", "author": "WOLLMAN, Circuit Judge."}, {"text": "BRIGHT, Senior Circuit Judge,\nconcurring separately.\nI write separately to comment on the forty-five-year addition to Stanley Pruitt’s sentence, premised upon an interpretation of 18 U.S.C. § 924(c)(1).\nPruitt, a retail buyer of drugs in the conspiracy, received a sentence of seventy-five years (900 months), twenty-five years longer than the sentence of Frank Santana, the supplier of the drugs and leader of the conspiracy. Under the 18 U.S.C. § 924(c)(1) provision for “second or subsequent” firearm offenses, the sentencing court added forty-five years to Pruitt’s sentence of thirty years; an additional five years for the first firearm offense, and an additional twenty years for each “second or subsequent” offense.\nThe majority relies on United States v. Lucas, 932 F.2d 1210 (8th Cir.1991), cert. denied, — U.S. -, -, -, -, 112 S.Ct. 199, 349, 399, 609, 116 L.Ed.2d 159, 288, 348, 632 (1991) and - U.S. -, 112 S.Ct. 1186, 117 L.Ed.2d 429 (1992), to support imposing consecutive sentences. Lucas holds that defendants may receive consecutive sentences under § 924(c) for the same predicate offense when the firearms are used for different purposes. Id. at 1223. The opinion states that the policy behind this interpretation is to “persuade the man who is tempted to commit a federal felony to leave his gun at home.” Id. (citing United States v. Rawlings, 821 F.2d 1543, 1546 (11th Cir.1987) (quoting Representative Poff at 114 Cong.Rec. 22231 (1968))). It fails to explain how draconian sentences for repeat offenders will deter a previously unconvicted, and perhaps uncharged, firearm offender.\nI disagree with the rationale authorizing pyramiding of sentences for firearm violations without prior convictions underlying Lucas and the earlier case of United States v. Foote, 898 F.2d 659, 668 (8th Cir.), cert. denied, 498 U.S. 838, 938, 111 S.Ct. 112, 342, 112 L.Ed.2d 81, 307 (1990), and believe those cases misinterpret § 924(c). I will not reiterate my position, which is elaborated in United States v. Jones, 965 F.2d 1507, 1519—21 (8th Cir.), cert. denied, - U.S. -, -, 113 S.Ct. 346, 439, 121 L.Ed.2d 261, 358 (1992).\nRecently, the majority of the Supreme Court rejected the reasoning expounded in Jones. Deal v. United States, — U.S. -, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). I am bound to accept its ruling as binding legal precedent in sentencing Pruitt. Nevertheless, the Court’s interpretation of § 924(c) leads to draconian sentences perhaps unintended by the lawmakers. Congress should review and reconsider the language of the statute. It may conclude, as does the dissent in Deal, that the language of the statute relating to enhancement of sentences should be “applied to defendants who, having once been convicted under § 924(c), ‘failed to learn their lessons from the initial punishment’ and committed a repeat offense.” Id. at -, 113 S.Ct. at 2003 (quoting United States v. Neal, 976 F.2d 601, 603 (9th Cir.1992) (Fletcher, J., dissenting)). I urge Congress to ponder the following comment from Jones, echoed by Justice Stevens in his dissent:\n‘However, punishing first offenders with twenty-five-year sentences does not deter crime as much as it ruins lives. If, after arrest and conviction, a first offender is warned that he will face a mandatory twenty-year sentence' if he commits the same crime again, then the offender will know of the penalty. Having already served at least five years in prison, he will have a strong incentive to stay out of trouble. Discouraging recidivism by people who have already been in prison and been released serves a far more valuable purpose than deterring offenders who have yet to be arrested and have no knowledge of the law’s penalties.’\nDeal, —— U.S. at -, 113 S.Ct. at 2003 n. 10 (quoting United States v. Jones, 965 F.2d 1507, 1521 (8th Cir.1992) (internal citation omitted)).", "type": "concurrence", "author": "BRIGHT, Senior Circuit Judge,"}], "attorneys": ["Counsel who presented argument on behalf of the appellant Henry Robertson, St. Louis, MO, argued, for appellant Ramirez-Nazar.", "John F. Medler, St. Louis, MO, argued, for appellant Fuentez.", "Jane C. Hogan, St. Louis, MO, argued, for appellant Pruitt.", "Rodolfo Rivera, St. Louis, MO, argued, for appellant Calderon.", "Gloria Reno, St. Louis, MO, argued, for appellant Santana.", "Daniel P. Reardon, Jr., Clayton, MO, on brief, for appellants.", "Steven Holthousen, Asst. U.S. Atty.,’ St. Louis, MO, argued, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Candido ORTIZ-MARTINEZ, Appellant. UNITED STATES of America, Appellee, v. Gabriel Jaime RAMIREZ-NAZAR, Appellant. UNITED STATES of America, Appellee, v. Carlos FUENTEZ, also known as Carlos Fuentes, also known as Pupo, also known as Pupoo, Appellant. UNITED STATES of America, Appellee, v. Stanley PRUITT, Appellant. UNITED STATES of America, Appellee, v. Jorge RODRIGUEZ-CALDERON, also known as Koki, Appellant. UNITED STATES of America, Appellee, v. Francisco SANTANA, Appellant.\nNos. 91-3856, 91-3858, 91-3866, 91-3872, 91-3873, 91-3875.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted Nov. 9, 1992.\nDecided July 23, 1993.\nRehearing and Suggestion for Rehearing En Banc Denied Sept. 7, 1993 in No. 91-3866.\nRehearing Denied Sept. 8, 1993 in No. 91-3858.\nRehearing and Suggestion for Rehearing En Banc Denied Sept. 8, 1993 in No. 91-3872.\nCounsel who presented argument on behalf of the appellant Henry Robertson, St. Louis, MO, argued, for appellant Ramirez-Nazar.\nJohn F. Medler, St. Louis, MO, argued, for appellant Fuentez.\nJane C. Hogan, St. Louis, MO, argued, for appellant Pruitt.\nRodolfo Rivera, St. Louis, MO, argued, for appellant Calderon.\nGloria Reno, St. Louis, MO, argued, for appellant Santana.\nDaniel P. Reardon, Jr., Clayton, MO, on brief, for appellants.\nSteven Holthousen, Asst. U.S. Atty.,’ St. Louis, MO, argued, for appellee.\nBefore WOLLMAN, Circuit Judge, BRIGHT and HENLEY, Senior Circuit Judges."}	WOLLMAN	BRIGHT	HENLEY	1	2	1	0	1	0	1 F.3d 662	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Candido ORTIZ-MARTINEZ, Appellant; UNITED STATES of America, Appellee, v. Gabriel Jaime RAMIREZ-NAZAR, Appellant; UNITED STATES of America, Appellee, v. Carlos FUENTEZ, also known as Carlos Fuentes, also known as Pupo, also known as Pupoo, Appellant; UNITED STATES of America, Appellee, v. Stanley PRUITT, Appellant; UNITED STATES of America, Appellee, v. Jorge RODRIGUEZ-CALDERON, also known as Koki, Appellant; UNITED STATES of America, Appellee, v. Francisco SANTANA, Appellant\nCourt: United States Court of Appeals for the Eighth Circuit\nDate decided: 1993-07-23\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nWOLLMAN, Circuit Judge.\nCandido Ortiz-Martinez, Gabriel Ramirez-Nazar, Carlos Fuentez, Jorge Rodriguez-Calderon, Stanley Pruitt, and Francisco Santana appeal from their convictions and sentences for drug-related offenses. We affirm.\nI.\nIn May 1989, following a series of events related to drug trafficking, the government began a multi-jurisdictional investigation of an extensive cocaine distribution network. The investigation involved cooperative efforts by the federal Drug Enforcement Administration (DEA), the St. Louis Metropolitan Police Department, the Internal Revenue Service, and various state and municipal police authorities throughout the United States.\nThe cocaine distribution network began in January 1988 and lasted until February 1990. The network was headquartered in Passaic and Patterson, New Jersey, and was managed and staffed by a closely-knit group of individuals, most of whom had immigrated from the Dominican Republic or were of Hispanic origin.\nThe government’s investigation led to the conclusion that the conspiracy’s “kingpin” was Francisco Santana. Santana, along with John Yazbek of Miami, was the primary organizer, manager and cocaine supplier of the network. Beginning in 1988, Santana began shipping cocaine from his base of operations in New Jersey to St. Louis, Missouri through a distribution network of couriers and middlemen, including appellants Gabriel Ramirez-Nazar and Jorge Rodriguez-Calderon. Ramirez, Rodriguez, and seven other middlemen in turn sold to twelve wholesale buyers in St. Louis, including Candido Ortiz-Martinez and Carlos Fuentez. The wholesale buyers in turn sold to a series of retail buyers, including Stanley Pruitt, who ultimately distributed the drugs to local purchasers and addicts in the St. Louis area. Santana’s organization was responsible for the distribution of more than 100 kilograms of cocaine in the St. Louis area.\nOn February 9, 1990, a grand jury in the Eastern District of Missouri returned an indictment charging twenty-two individuals with various offenses related to the conspiracy to distribute cocaine. The conspiracy had included many other participants who had not been indicted at the time of trial, some of whom served as witnesses against their former colleagues. Of the twenty-two defendants, four remained fugitives at the time of the trial, one (Jose Hernandez) died awaiting trial, and eleven pled guilty before or during trial; the remaining six defendants, appellants herein, were tried and convicted of a variety of narcotics-related crimes.\nThe government’s evidence at trial consisted of the testimony of law enforcement officials and numerous unindicted co-conspirators. In addition, the government provided the following physical evidence: the seizure of drug quantities; currency from drug proceeds; personal property obtained with drug proceeds; weapons; telephone toll records; bank records; and transcripts of undercover surveillance operations. The jury found each of the defendants guilty of conspiring to distribute and possess with the intent to distribute five or more kilograms of cocaine between January 1988 and February 1990. In addition, the jury found each defendant guilty on all additional counts charged. The district court sentenced the defendants to terms of imprisonment ranging from 188 months to 900 months.\nII.\nWe first examine issues raised by the individual appellants, followed by the two issues that are raised by more than one appellant, and conclude with sentencing issues.\nA. Francisco Santana\nSantana was convicted of two offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; and (2) attempted interstate travel to distribute drug proceeds in violation of 18 U.S.C. § 1952. The district court sentenced Santana to a total term of 600 months’ imprisonment, to be followed by five years of supervised release.\nSantana argues that the district court abused its discretion in denying his motion for a continuance based upon the illness of one of his attorneys, Worsham Caldwell. Santana also argues that the district court violated his Sixth Amendment right to effective assistance of counsel by requiring Caldwell’s replacement, Richard Hughes, to complete the trial. We address these contentions in turn.\nWe have noted that “[a] trial judge has broad discretion in deciding whether to grant or deny a motion for a trial continuance.” United States v. Heine, 920 F.2d 552, 555 (8th Cir.1990). “ ‘To determine whether the trial court has abused its discretion, the reviewing court will consider factors including counsel’s time for preparation, conduct of counsel at trial and presence of prejudice in the record.’ ” United States v. Bayless, 940 F.2d 300, 302 (8th Cir.1991) (quoting Nerison v. Solem, 715 F.2d 415, 418 (8th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 220 (1984) and 465 U.S. 1026, 104 S.Ct. 1283, 79 L.Ed.2d 686 (1984)).\nSantana was represented by the law firm of Shaw, Howlett and Knappenberger from February 1990 until November 9, 1990, when the Shaw firm withdrew and Santana replaced it with the law firm of Caldwell, Hughes, McHugh and Singleton. The entry of appearance was signed by Richard G. Hughes, and the District Court Clerk’s Office directed all of its mailings to his attention during the case. Hughes also participated in lengthy and ultimately futile plea negotiations with the U.S. Attorney’s office on Santana’s behalf.\nThe trial began on August 12, 1991, with Caldwell acting as Santana’s trial counsel. On Friday, August 23, Hughes informed the court that Caldwell had been forced to undergo surgery and requested a continuance of a week for him to prepare to substitute as Santana’s trial counsel. The district court denied Hughes’ motion and ruled that it would hold trial from August 26 through August 28, but agreed to continue the case from August 29, to resume five days later on September 3, 1991. On August 26, Madelyn Torres delivered testimony potentially damaging to Santana; however, the trial transcript demonstrates that Hughes skillfully cross-examined her. Moreover, Caldwell was in fact present and assisted Hughes on August 26. Caldwell was not present on August 28, but no testimony was offered on that date directly pertinent to Santana. When the trial resumed on September 3, both Hughes and Caldwell were present, as they were on every day thereafter. Indeed, with the exception of two days, Caldwell was present and available to assist Hughes in Santana’s defense.\nBy requesting a continuance of one week, Hughes presumably believed that seven days would suffice to bring him up to speed on the case. Between August 23, when Hughes requested the continuance, and September 3, when he was rejoined by Caldwell, Hughes had, in fact, a total of seven days off. The only testimony during the intervening time period that directly incriminated Santana came from Marilyn Torres, and the record demonstrates that Hughes’s cross-examination was skilled and thorough.\nSantana next argues that the district court violated his Sixth Amendment right to effective assistance of counsel by requiring him to go forward with Hughes as counsel. To establish an ineffective assistance claim, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is deficient if “counsel’s representation [falls] below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Counsel’s performance prejudices an individual’s defense if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Having reviewed the record, we find that Hughes’ performance was not deficient within the meaning of the Strickland test.\nSantana’s arguments concerning his sentence are addressed below. We have considered Santana’s remaining arguments, and we find that they are without merit.\nB.Candido Ortiz-Martinez\nCandido Ortiz-Martinez was convicted of four offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; (2) distributing cocaine in violation of 21 U.S.C. § 841; (3) using and carrying a firearm during a drug-trafficking crime (conspiracy) on October 7, 1989, in violation of 18 U.S.C. § 924(c); and (4) using and carrying a firearm during a drug trafficking crime (conspiracy) on February 13, 1990, also in violation of 18 U.S.C. § 924(c). Ortiz was sentenced to a total term of 592 months’ imprisonment, to be followed by five years of supervised release.\nOrtiz initially argues that the district court erred in failing to grant his motion for a judgment of acquittal, because the evidence was insufficient to prove beyond a reasonable doubt that he committed the offense of conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine.\nIn evaluating the sufficiency of the evidence supporting a jury verdict against a defendant, we review the evidence in the light most favorable to the government and give the government the benefit of all inferences that reasonably may be drawn from the evidence. United States v. Drews, 877 F.2d 10, 13 (8th Cir.1989).\nDirect testimony by four witnesses, namely, Lisa Neeally, Larry Smith, Patricia Oliver, and Larry Birdsong implicated Ortiz in the sale and distribution of cocaine with co-defendants and other customers in the St. Louis area. One witness, Birdsong, even obtained tape-recorded conversations between himself and Ortiz, in which Ortiz candidly discussed the sale of a quarter kilogram of cocaine, eventually delivered by Jose Hernandez and Carlos Fuentez on Ortiz’s behalf. In addition, the St. Louis police detained Ortiz at the St. Louis airport, where they seized $26,974 in cash from him. Last, he supplied the cocaine for purchases by Larry Birdsong on more than one occasion. Given this evidence, we cannot say that the verdict is unsupported by substantial evidence. See United States v. Bonadonna, 775 F.2d 949, 958 (8th Cir.1985).\nOrtiz does not challenge any aspect of his sentence in this appeal. We have considered Ortiz’s remaining arguments, and we find that they are without merit.\nC. Gabriel Jaime Ramirez-Nazar\nGabriel Jaime Ramirez-Nazar was convicted of two offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; and (2) distribution of more than 5 kilograms of cocaine on July 11, 1989, in violation of 21 U.S.C. § 841. Ramirez was sentenced to a total term of 188 months’ imprisonment, to be followed by five years of supervised release.\nStanley Pruitt, Jorge Rodriguez, Larry Smith, and Carlos Fuentez wired $5,000 from St. Louis to Gabriel Ramirez in New Jersey in June 1989. Shortly thereafter, Smith was informed of the imminent arrival of ten kilograms of cocaine from Miami. On July 11, 1989, Ramirez arrived in St. Louis and distributed nine kilograms to Larry Smith, John Yazbek, and others. That night, police seized Ramirez’s car and most of the cocaine and arrested both Yazbek and Ramirez in the motel room they were sharing.\nRamirez’s sentencing claims are discussed below. We have considered Ramirez’s other arguments, and we find that they are without merit.\nD. Carlos Fuentez\nCarlos Fuentez was convicted of three offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; (2) distributing cocaine on November 6, 1989, in violation of 21 U.S.C. § 841; and (3) using and carrying firearms during a drug trafficking crime (conspiracy) on May 18, 1989, in violation of 18 U.S.C. § 924(c). He was sentenced to a total term of 295 months’ imprisonment, to be followed by five years of supervised release.\nFuentez served as a courier for the drug distribution network, transporting drugs and cash between New Jersey and St. Louis. The government seized large amounts of currency from, Fuentez on two occasions at the St. Louis airport.\nFuentez argues that district court abused its discretion when it refused (1) to permit him to conduct an in-court demonstration of a narcotics detection dog examining U.S. currency; (2) to present expert testimony by a toxicologist concerning the percentage of U.S. currency that is contaminated by the odor of illegal narcotics, and (3) to authorize government payment for the toxicologist’s services under 18 U.S.C. § 3006A(e)(l).\nWe have noted that the admissibility of experimental evidence is within the discretion of the trial court, and we will not overturn that decision absent a showing of an abuse of discretion. Patterson v. F.W. Woolworth Co., 786 F.2d 874, 880 (8th Cir.1986); Randall v. Warnaco, Inc., 677 F.2d 1226, 1233 (8th Cir.1982).\nIn refusing to allow the in-court demonstration with the narcotics detection dog, the court noted that the testimony would be irrelevant because the government had based its seizure of the currency on numerous factors other than the positive canine reaction. These had included the following facts: (1) Fuentez had paid for his ticket in cash; (2) he had appeared nervous; (3) he had purchased a one-way ticket; (4) he had one carry-on duffel bag and (5) he had given a thoroughly implausible explanation for having such a large amount of cash on his person. Consequently, we cannot say that the district court abused its discretion in refusing to allow the demonstration.\nThese arguments apply with equal force to Fuentez’s request to present expert testimony concerning the level of drug contamination of currency. Fuentez’s expert was prepared to testify that a Substantial percentage of bills in the Miami area contain cocaine residue. Fuentez did not include in his offer of proof that the expert would testify (1) that a similar percentage of currency in St. Louis would be so contaminated; or (2) that the expert’s analysis applied to all denominations. As before, a number of other factors went into the currency seizures that would render such testimony, even if true, irrelevant.\nLast, we address Fuentez’s argument that the district court committed reversible error by failing to authorize payment of his expert toxicologist under 18 U.S.C. § 3006A(e)(l). Because the district court did not err in refusing to permit the toxicologist to testify, it clearly did not err in refusing to authorize payment for such a witness. Moreover, the two cases cited by appellant in support of his position on this issue are distinguishable and involved a far greater showing of need on the defendant’s part. See United States v. Schultz, 431 F.2d 907, 908-909 (8th Cir.1970) (need for medical experts to determine if defendant was competent to stand trial); Brinkley v. United States, 498 F.2d 505, 509-12 (8th Cir.1974) (need for independent psychiatrist to determine effects of LSD on defendant’s brain to present insanity defense). As we noted in Schultz, “a trial court need not authorize an expenditure under subdivision (e) for a mere ‘fishing expedition’.” Id., 431 F.2d at 911.\nWe address Fuentez’ sentencing challenge below. We have considered Fuentez’s remaining arguments, and we find that they are without merit.\nE. Jorge Rodriguez-Calderon\nJorge Rodriguez-Calderon was convicted of two offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; and (2) engaging in financial transactions involving drag proceeds on June 8, 1989, in violation of 18 U.S.C. § 1956. Rodriguez was sentenced to a total term of 262 months’ imprisonment, to be followed by five years of supervised release.\nAll of Rodriguez’ arguments pertain to sentencing and are discussed below.\nF. Stanley Pruitt\nStanley Pruitt was convicted of seven offenses: (1) conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine between January 1988 and February 1990; (2) carrying and using firearms during a drug trafficking crime (conspiracy) on June 16, 1989, in violation of 18 U.S.C. § 924(c); (3) carrying and using firearms during a drug trafficking crime (conspiracy) on June 16, 1989, in violation of 18 U.S.C. § 924(c); (4) possession with intent to distribute more than 5 kilograms of cocaine on July 11, 1989, in violation of 21 U.S.C. § 841; (5) distribution of cocaine on November 17, 1989, in violation of 21 U.S.C. § 841; (6) possession with intent to distribute more than 500 grams of cocaine on November 17, 1989, in violation of 21 U.S.C. § 841; and (7) carrying and using a firearm during a drug trafficking crime (distribution and possession with intent to distribute more than 500 grams of cocaine) on November 17, 1989, in violation of 18 U.S.C. § 924(c).\nTitle 18, United States Code, § 924(c)(1) provides, in pertinent part:\nWhoever, during and in relation to ... any drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years.... Notwithstanding any other provision of law, ... the term of imprisonment imposed under this subsection [shall not] run concurrently with any other term of imprisonment^]\nPruitt argues that he was improperly convicted of three separate violations of 18 U.S.C. § 924(c) and that he was improperly sentenced consecutively for each violation.\nBeginning in March 1989, Stanley Pruitt became the primary retail dealer/customer in the conspiracy, in addition to directing the activities of various other dealers, including Larry Smith. Pruitt conducted his transactions at numerous locations in St. Louis.\nOn June 16,1989, law enforcement authorities searched Pruitt’s residence at 2201 Angelica. Pruitt and an associate, Frank Day, were present during the search. The authorities recovered automobile records, telephone numbers for members of the conspiracy, and $6,190 in U.S. currency from the residence. The authorities also seized numerous weapons from the first floor of the residence: (1) a .12 gauge shotgun; (2) a second .12 gauge shotgun with a sawed-off barrel; (3) an Arisaka bolt-action rifle; (4) a Marlin .35 caliber lever action rifle; (5) a .22 caliber revolver; and (6) a .25 caliber semiautomatic pistol.\nOn June 16,1989, law enforcement authorities also searched the house at 5275 Beacon. The authorities recovered the following weapons from the front bedroom of the residence: (1) a .30 caliber semi-automatic machine pistol; and (2) a .22 caliber AR-7 rifle. The agents also seized various documents connecting Pruitt to the residence, including his driver’s license permit, a number of pieces of mail addressed to him; and cash receipts in Pruitt’s name.\nThe section 924(c) “use and carry” charge for November 17, 1989, originated in a separate incident. The St. Louis police department arrested one Donnie Davis late in the evening of November 16, 1989, in possession of a small quantity of cocaine. After his arrest, Davis identified his source of cocaine as Stanley Pruitt and agreed to arrange an additional purchase of cocaine from Pruitt. The police recorded a conversation between Davis and Pruitt in which Pruitt agreed to sell four ounces of cocaine to Davis and scheduled the transfer to occur at one of Pruitt’s apartments at 9921B Sloane Square. After Davis had purchased five ounces of cocaine from Pruitt, the police arrested Pruitt as he exited the apartment building. During a search of 9921B Sloane Square, police recovered a total of more than 600 grams of cocaine, assorted drug paraphernalia, and a .22 caliber rifle. A subsequent search by officers of Pruitt’s residence at 4223 Marlin uncovered a .22 caliber revolver hidden in a hidden safe in a closet, along with other documentary evidence linking Pruitt to the conspiracy.\nThe principal witness to testify concerning Pruitt was Larry Smith, a lifetime acquaintance of Pruitt, who is currently in the Witness Protection Program. Smith testified that he was aware of weapons Pruitt kept at an apartment on Nor stead Walk, at a house at 5275 Beacon, and at the Angelica Street residence. Smith explained that Pruitt used the weapons for protection in his narcotics dealings. On one occasion, Smith was present when Pruitt showed Smith, Ortiz, and Fuentez a weapon at 5275 Beacon and stated that “if somebody ran in there and wasn’t supposed to be there, [Pruitt] was prepared for that.”\nAs stated earlier, Pruitt was convicted of the following section 924(c) “use and carry” charges: (1) carrying and using firearms during a drug trafficking crime (conspiracy) on June 16, 1989; (2) carrying and using firearms during a drug trafficking crime (conspiracy) on June 16, 1989; (3) carrying and using a firearm during a drug trafficking crime (distribution and possession with intent to distribute more than 500 grams of cocaine) on November 17, 1989. Due to a number of previous offenses, Pruitt had a criminal history score of 11. The district court sentenced Pruitt to a total of 360 months’ imprisonment for the drug offenses. With respect to the section 924(c) charges, the district court sentenced Pruitt to 60 months on the first charge, and 240 months consecutively on each of the second and third charges, for a total of 540 months.\nPruitt’s appeal presents the following questions: (1) may a defendant be convicted of more than one violation of section 924(e) based upon the same predicate offense and, if so; (2) can a second violation of section 924(c) based upon the same predicate offense be considered a “second or subsequent” offense, allowing the court to impose consecutive sentences for each offense and an enhanced twenty-year penalty for the second offense.\nPruitt first argues that he cannot be convicted of more than one offense within the meaning of 18 U.S.C. § 924(c) based upon the same predicate offense (conspiracy) for the two stashes of weapons that were found, respectively, in the first floor of his residence at 2201 Angelica and in the front bedroom of 5275 Beacon. We resolved this issue in United States v. Freisinger, 937 F.2d 383, 390 (8th Cir.1991), where we noted that “[w]e see no implication of the double jeopardy clause in multiple convictions for each separate possession of a firearm during and in relation to a single drug trafficking crime.” Id. Accord, United States v. Edwards, 994 F.2d 417, 423 (8th Cir.1993). Accordingly, the district court properly convicted Pruitt on two section 924(c) charges based upon the two stashes of weapons recovered from 2201 Angelica and 5275 Beacon.\nHaving resolved that under Freisinger Pruitt may be convicted of three separate section 924(c) violations, we must now address a second question: once a defendant has properly been convicted of two section 924(c) violations based upon a single drug trafficking offense, is the second conviction a “second or subsequent” offense, permitting an enhanced and consecutively imposed twenty-year sentence?\nIn United States v. Lucas, 932 F.2d 1210 (8th Cir.1991), cert. denied, — U.S. -, -, -, -, 112 S.Ct. 199, 349, 399, 609, 116 L.Ed.2d 159, 288, 348, 632 (1991) and — U.S. -, 112 S.Ct. 1186, 117 L.Ed.2d 429 (1992), where the defendant had been convicted of the two section 924(c) charges based upon the same predicate offense, but entailing different uses, we found that “consecutive sentences on these counts do not violate the constitutional prohibition against double jeopardy.” Id. at 1223. Although we reached a seemingly different result in Freis-inger, the facts of that case distinguish it from Pruitt’s situation. The defendant in Freisinger had been convicted of four separate section 924(c) violations based upon his carrying four weapons at the time police arrested him in possession of cocaine. 937 F.2d at 385. We upheld the defendant’s convictions on four separate section 924(c) violations based upon the same predicate offense. Id. at 390. In Freisinger, the district court had treated defendant’s second, third, and fourth section 924(c) violation as “second or subsequent offenses” for the purposes of the statute, and imposed consecutive sentences for each count. Id. at 385. We concluded that “when a defendant has been convicted of more than one violation of section 924(c) because he was carrying more than one firearm during a single drug trafficking offense, the convictions after the first one are not ‘second or subsequent’ convictions within the meaning of the statute.” Id. at 391. Thus, in Freisinger we reasoned that the proper solution involved: (1) sentencing the defendant to a term corresponding to a first offense under section 924(e) for each violation based upon the same predicate offense; and (2) imposing those sentences to run concurrently.\nThere is, however, a crucial difference between Freisinger and Lucas. In Lucas, the defendant was sentenced to consecutive terms based upon the two separate stashes of weapons. In Freisinger, by contrast, concur- ' rent sentences were appropriate because the defendant had been convicted separately for each of the four weapons found in a single stash.\nMoreover, the Supreme Court’s recent opinion in Deal v. United States, — U.S. -, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), confirms that the district court may sentence a defendant to a consecutive twenty-year term under 18 U.S.C. § 924(c) for “a second or subsequent conviction” where both the first and any subsequent convictions arise in the same proceeding.\nAccordingly, the district court properly sentenced Pruitt to five years on the first section 924(e) conviction, and to consecutive twenty-year terms for his second and third section 924(c) convictions.\nIII.\nA number of the appellants argue the following two issues on appeal: (1) that the government improperly used a peremptory challenge to strike the only black juror from the jury panel in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (2) that the district court erroneously admitted the hearsay testimony of four witnesses as co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(E).\nA. Batson Issue\nAppellants Santana, Ortiz, Ramirez, Fuen-tez, and Pruitt argue that the government’s exercise of one of its peremptory strikes against juror # 1 was racially discriminatory and violated their equal protection rights under Batson.\nIn Batson, the Supreme Court held that the Equal Protection clause' forbids the government from challenging potential jurors solely on account of their race. Id. at 89, 106 S.Ct. at 1719. See United States v. Thomas, 914 F.2d 139, 142 (8th Cir.1990). Under Batson, once a defendant makes a prima facie case of the prosecution’s purposefully discriminatory use of peremptory challenges, the burden shifts to the government to come forward with a neutral explanation, particular to the case, for striking jurors of the defendant’s race. Thomas, 914 F.2d at 142. We review a district court’s finding that the government has exercised its peremptory challenges in a nondiscriminatory manner under the clearly erroneous standard. Id.\nSix jurors (numbered respectively 1, 12, 17, 36, 39, and 49) were black and juror #47 was Hispanic. The eventual jury of twelve persons was chosen from the first thirty-one members, thus automatically eliminating jurors numbered 36, 39, 47, and 49. The district court struck jurors numbered 12 and 17 for cause, leaving juror # 1 as the only black or Hispanic juror available to sit on this case. The government used one of its peremptories to strike juror # 1. The defense made a proper Batson exception. In response to the district court’s request for a statement of reasons, the government stated that juror # 1 had testified as a witness in a case in which her sister had been a criminal defendant. Moreover, when asked whether that experience would affect her impartiality in the upcoming trial, juror # 1 replied equivocally, “No, I don’t think so.” Accordingly, the district court found that the government’s reason was a valid, race-neutral justification.\nAppellants argue that the inclusion of juror # 14, who was white and who admitted during voir dire to having a friend who had recently been prosecuted for bribery in federal court, supports their Batson claim. Significant differences exist, however, between the experiences of juror # 1 and juror # 14. Juror # 14 had not been a witness at his friend’s trial, the trial did not involve a close family member, and juror # 14 admitted that he did not know the details of the bribery case. Moreover, when asked if that experience would affect his ability to impartially hear this trial, he replied unequivocally, “No.”\nConsequently, we find no clear error here. The prosecution’s reasons for striking the black juror were unique to the facts of the case and were racially neutral, and thus constitutionally permissible. See Thomas, 914 F.2d at 142.\nB. Co-Conspirator Hearsay Issue\nSantana, Ramirez-Nazar, Fuentez, and Pruitt jointly argue that the district court erred in admitting the hearsay testimony of four witnesses as co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(E).\nUnder the federal rules, a statement is not hearsay if made “by a co-conspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). To satisfy the requirements of Rule 801(d)(2)(E), “ ‘the government must demonstrate that (1) a conspiracy existed; (2) that the defendant and declarant were part of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy.’ ” United States v. Kocher, 948 F.2d 483, 485 (8th Cir.1991) (quoting United States v. Eisenberg, 807 F.2d 1446, 1453 (8th Cir.1986)).\nUnder the approach used in this circuit, first set forth in United States v. Bell, 573 F.2d 1040 (8th Cir.1978), a district court is required to admit conditionally the statements of alleged co-conspirators, subject to an on-the-record ruling that the statement is admissible under the co-conspirator exception to the rule against hearsay. United States v. Coco, 926 F.2d 759, 761 (8th Cir. 1991). Where the record indicates that the defendant failed to request a Bell ruling but made a motion for acquittal, we treat the district judge’s denial of the acquittal motion as substantial compliance with the Bell requirements, infer the requisite Bell findings, and employ a plain-error standard of review. See Id.\nAppellants first challenge the admissibility of the testimony of Daniel Perkins concerning Perkins’s contact with Stanley Pruitt during November 1989, when Perkins installed several hidden safes in Pruitt’s residence at 4223 Marlin Court. Contrary to the appellants’ contention, Perkins related no hearsay statements in the course of his testimony, but testified only as to his first-hand observations. Perkins testified that, while at that address, he personally observed Pruitt consummate several transactions that involved measuring white powder on a triple beam scale. Although Perkins testified that these visitors had spoken- to Pruitt, he did not relate the substance of any of these conversations. Consequently, Perkins provided no testimony that would offend Fed.R.Evid. 801(d)(2)(E).\nNext, appellants challenge two portions of Madelyn Torres’s testimony concerning events that occurred in her apartment during the spring of 1989, when she was dating Frank Santana. Torres testified that on at least two occasions Santana had. received Ruben Santana, Francisco Herrera, Jose Hernandez, and Candido Polanco in her apartment. Torres testified that on both occasions the visitors delivered shoe boxes full of currency to Frank Santana and had stated that “... this is the money from the one eighth, or, you know, whatever material they had sold,” using terms associated with fractional amounts of cocaine.\nWe find that Torres’ statements satisfy the requirements set forth in Kocher for admissibility under Fed.R.Evid. 801(d)(2)(E). Independent evidence demonstrated that Ruben Santana, Herrera, Hernandez and Polanco were all involved in the conspiracy. Moreover, as the visitors were primarily involved in handling the financial aspects of the venture, the statements concerning the shoebox-es described the source of the money, and thus were in furtherance of the conspiracy.\nNext, the appellants challenge several aspects of Felix Gil’s testimony. Felix Gil was an illegal alien from the Dominican Republic who served as one of Santana’s money couriers and testified for the prosecution. Gil is currently in the Witness Security Program. First, the appellants challenge Gil’s testimony concerning conversations he had with Jose Hernandez, Candido Polanco, Eduardo Cedeno, and Francisco Herrera concerning the operation of the conspiracy. The majority of this testimony concerned conversations between Gil and Herrera concerning Santana’s operation in St. Louis, its members, and its activities. Herrera, Frank Santana’s nephew, was a central player in the conspiracy. Gil’s conversations with Herrera satisfy the requirements of Fed. Rule Evid. 801(d)(2)(E) because Herrera was a member of the conspiracy and entered into the conversations in furtherance of the conspiracy to successfully recruit Gil to become one of Santana’s money couriers.\nThe appellants also challenge Gil’s testimony regarding Santana’s source of income. In his direct examination, Gil testified that he had learned that Santana’s primary source of income was drugs from “the guys that used to sell” for Santana. The government admits on appeal that such testimony was probably inadmissible due to a lack of specificity concerning the identity of the speaker. Gil backed this statement up, however, by noting that his own observation had led him to the same conclusion, namely, that Santana’s principal source of income was drug-related. Because counsel failed to request a Bell finding, we infer the Bell finding from the judge’s denial of Santana’s motion for acquittal on September 17, 1991, and review for plain error. Given this subsequent additional testimony, we find that any error in admitting the earlier testimony was harmless.\nAppellants also challenge Gil’s testimony concerning Santana’s alleged ownership of two New Jersey bars. Gil testified that various persons had told him that Santana owned two bars, but could not be more specific about the identity of these persons. Any error in admitting this testimony, however, was harmless, given its corroboration from independent sources. Moreover, Madelyn Torres testified that Santana personally told her that he owned two New Jersey bars, the “Copacabana” and “The Colombia House.” Indeed, a search of the Copacabana by authorities on September 9, 1988 recovered Santana’s personal identification documents, including his social security card, from a safe under the bar of the club. In addition, the ownership of these bars was a peripheral issue in the case.\nLast, the appellants object to Sergeant Mario Recino’s testimony in which he related a conversation with a female identified as Brenda, who gave him Santana’s nickname and beeper number. Reciño used the beeper number to contact Santana, discussed with him the purchase of multiple kilograms of cocaine, and also learned directly from Santana that Santana was selling kilogram quantities of cocaine in both New Jersey and St. Louis. Brenda’s statements incriminate no one other than Santana, and the statements clearly had the purpose of furthering Santana’s drug distribution enterprise by putting him in contact with a potential customer. Moreover, other evidence established that the nickname and beeper number belonged to Santana. Last, because the record reveals that counsel failed to request a Bell finding, we infer the Bell finding from the judge’s denial of Santana’s motion for acquittal on September 17, 1991, and review for plain error. Given this subsequent additional testimony, any error in admitting the earlier testimony was harmless.\nIV.\nLast, appellants make the following arguments with respect to the sentences imposed by the district court..\nA. Attribution of Cocaine Amounts to Rodriguez, Ramirez & Fuentez under U.S.S.G. § IB 1.3(a)(1).\nAppellants Fuentez, Ramirez-Nazar, and Rodriguez-Calderon argue that the district court erroneously attributed an excessive amount of cocaine to them in determining their base offense levels. The court computed the base offense level for these three defendants to be 36, based on a finding that the conspiracy involved between 50 and 150 kilograms of cocaine.\nWe set forth the standards for determining drug quantities attributable to individual defendants in a conspiracy in United States v. Olderbak, 961 F.2d 756 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 422, 121 L.Ed.2d 344 (1992). We noted that:\nUnder subsection (a) of Section 1B1.3 of the Sentencing Guidelines, each conspirator is responsible for all criminal acts committed in furtherance of the conspiracy. ‘[S]uch conduct is not included in establishing the defendant’s offense level,’ however, if it ‘was neither within the scope of the defendant’s agreement nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake.’ ”\nId. at 764 (citations omitted) (emphasis in original). A district court’s determination of the quantity attributable to an individual defendant for sentencing purposes “is a factual determination subject to review under the clearly erroneous standard.” Id. at 763.\nIn ascertaining the amount of drugs involved in the conspiracy, the district court adopted the conclusion of the presentence investigation reports that “[i]n total, the drug distribution organization headed by Santana was responsible for the distribution of over 105 kilograms of cocaine in the St. Louis area.” The U.S. Probation Office obtained an amount of greater than 50 kilograms by two independent methods. First, the authorities arrived at the 105 kilogram figure by totalling amounts derived from the testimony of witnesses and corroborating evidence in the case. Second, U.S. law enforcement officers seized approximately 13.5 kilograms of cocaine. Additionally, officers seized $545,-552.00 in U.S. currency and checks. Last, the organization transferred approximately $400,000 by wire. The amount of drug proceeds totaled roughly $945,000, which, when divided by an average cost of $23,000 per kilogram, represents 41 kilograms of cocaine, which, when added in turn to the 13.5 kilograms actually seized, totals over 50 kilograms. We have previously endorsed the extrapolation of drug quantities from similar financial information. See United States v. Carper, 942 F.2d 1298, 1303 (8th Cir.), cert. denied, —— U.S. -, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). We do not find the calculation of drug quantities to be clearly erroneous here.\nThe district court found that the entire amount of cocaine distributed by the conspiracy in this case was reasonably foreseeable to Fuentez. We agree. Substantial evidence showed that he was personally involved in the conspiracy from beginning to end. Fuentez began working as a worker and money courier for co-defendant Taurino Gonzalez-Felix during the summer and fall of 1988, which included the attempted delivery of $40,000 to Frank Santana in August 1988. Fuentez was directly implicated in the conspiracy by the testimony of Lisa Neeally, Patricia Oliver, Lissette Jacquez, Larry Smith, and Larry Birdsong.\nMoreover, Fuentez figured prominently in several of the law enforcement events involved in the conspiracy. As discussed earlier, law enforcement officers seized a total of $22,680 in currency from Fuentez on two separate occasions at the St. Louis airport in the summer and fall of 1988. Fuentez was also present in an apartment on October 7, 1989, where police arrested Candido Ortiz and recovered a bag containing cocaine. Likewise, Fuentez was arrested after he, along with Ortiz and Jose Hernandez, sold an undercover officer and a police informant a quarter kilogram of cocaine for $7,000 on November 6, 1989. Last, when law enforcement officials stopped Fuentez at the St. Louis airport for a third time on December 21, 1989, papers confiscated from Fuentez contained the beeper number of Frank Santana.\nThe district court found that the entire amount of cocaine in the conspiracy was also attributable to Gabriel Ramirez-Nazar. As with Fuentez, the evidence demonstrated that Ramirez played an important role in the conspiracy. Ramirez worked as a courier/middleman for Santana, and worked closely with co-defendant Rodriguez. On June 8, 1989, Ramirez received $5000 from Larry Smith, wired to him at the direction of Rodriguez-Calderon. One month later, Ramirez delivered a vehicle containing nine kilograms of cocaine to Stanley Pruitt in St. Louis. Authorities arrested Ramirez shortly thereafter, at which time he was sharing a room with ringleader John Yazbek. Ramirez made a false exculpatory statement to police shortly after his arrest on July 11, 1989. At that time, police recovered from Ramirez a document indicating that he was the joint owner of an automobile with Yazbek. Additionally, testimony by both Felix Gil and Madelyn Torres linked Ramirez to Frank Santana, John Yazbek, and other members of the conspiracy. Last, at the time of Santana’s arrest, authorities recovered from him an address book containing the name and telephone number of Gabriel Ramirez under his nickname, “pela cuca.” The evidence showed that Ramirez and Rodriguez worked closely together.\nAlthough Ramirez is not directly implicated in any law enforcement events other than those surrounding the delivery of nine kilograms of cocaine, strong circumstantial evidence, both documentary and testimonial, indicate his willing participation in the full extent of the conspiracy. The conspiracy’s leaders plainly believed Ramirez worthy of sufficient trust to handle nine kilograms of cocaine, which, at a value of approximately $23,000 per kilogram, is worth $207,000, an amount that contradicts Ramirez’s assertion that he was a minor participant. Given the district’s opportunity to hear the testimony and ascertain the credibility of the numerous witnesses in this case, we cannot say that it clearly erred in attributing to Ramirez the total amount of the cocaine involved in the conspiracy.\nJorge Rodriguez-Calderon also argues that the district court erred in attributing to him the entire amount of cocaine distributed over the course of the conspiracy.\nThe government presented substantial evidence establishing that Rodriguez played an important role in the conspiracy. Rodriguez directed Larry Smith to wire Ramirez $5,000 to pay off cocaine debts to the New Jersey operation, thereby opening the door to future shipments to the St. Louis area. The government introduced evidence that, as a result of this wire, Ramirez drove a car containing nine kilograms of cocaine. to St. Louis. When Rodriguez came to St. Louis in June 1989, he came in a supervisory capacity to, as one of the witnesses put it, “straighten everything up.” As the government later explained, “straightening everything up” consisted of collecting money to correct prior losses in the trans-continental drug enterprise. While in St. Louis, Rodriguez managed the dealing and distribution aspects of many members of the conspiracy, including Carlos Clausen and Jose Cintron. In addition, Madelyn Torres testified that Rodriguez had given instructions to both her and Delisa Cordero to deliver three kilograms of cocaine to St. Louis in mid-July 1989. In conversations with Larry Smith, Carlos Clausen referred to Rodriguez as the “big boss.” As with Ramirez, Rodriguez’s involvement in personally arranging the delivery of nine kilograms of cocaine and acting in a managerial capacity with respect to the enterprise’s St. Louis contacts demonstrates his central role in the conspiracy. In the iight of this evidence, we cannot say that the district court clearly erred in attributing to Rodriguez the amount of cocaine that it did. See Bonadonna, 775 F.2d at 958.\nB. Santana and Rodriguez’s Challenge to the Enhancement of their Sentences under U.S.S.G. § 3B1.1.\nSantana and Rodriguez also challenge the district court’s enhancement of their offense levels pursuant to U.S.S.G. § 3B1.1 for their aggravating roles in the offense. The district court enhanced Santana’s offense level by foui’ levels because he was as an organizer or leader of a criminal activity involving five or more participants or that was otherwise extensive. Similarly, the district court enhanced Rodriguez’ offense level by three levels for being a manager or supervisor in a criminal activity involving five or more participants or that was otherwise extensive.\nIn making a determination under U.S.S.G. § 3B1.1, the sentencing court should consider such factors as the nature of defendant’s role in the offense, the recruitment of accomplices, the degree of participation in planning or organizing the offense. U.S.S.G. § 3B1.1, comment, (n. 3); United States v. Roberts, 953 F.2d 351, 354 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 3008, 120 L.Ed.2d 882 (1992). A finding by the district court under U.S.S.G. § 3B1.1 is a factual determination that we review under the clearly erroneous standard. United States v. Wiegers, 919 F.2d 76, 77 (8th Cir.1990).\nWe have broadly defined the term “organizer” or “leader.” United States v. Manuel, 912 F.2d 204, 207 (8th Cir.1990). In addition, we have noted that an individual can occupy a leadership role without having directly controlled his co-conspirators. United States v. Grady, 972 F.2d 889, 889 (8th Cir.1992).\nThe district court’s decision to increase Santana’s offense level by four was not clearly erroneous. Santana was the leader of this entire conspiracy. He was the conspiracy’s principal supplier, and he was involved in the conspiracy from August 1988 until his arrest in February 1990. For the duration of the conspiracy, a vast amount of money, estimated by law enforcement authorities to be nearly $1,000,000, was sent by other conspirators directly to Santana or via his relatives. Santana’s beeper served as the common link among all the conspirators. The evidence supported the inference that Santana directed the activities of Jose Hernandez, Candido Polanco, Eduardo Cedeno, and Felix Gil. Gil testified that Santana had recruited him into the conspiracy and had directed him to transport $56,000 in cash to St. Louis in December 1989. Gil and Madelyn Torres both confirmed during their testimony that Santana was the ringleader of this conspiracy. Moreover, in July 1989, Santana represented himself to Sergeant Reciño as the leader of the conspiracy and boasted about the profit opportunities present in St. Louis. Given the facts recounted during testimony, the district court’s enhancement of Santana’s offense level by four was not clearly erroneous.\nLikewise, we cannot say the district court clearly erred in enhancing the offense level of Jorge Rodriguez-Calderon. Rodriguez, as recounted earlier, played a significant role in the management of the conspiracy. He was referred to as the “big boss” and was dispatched to St. Louis to “straighten everything up” and await Ramirez’ nine kilogram cocaine shipment. Thus, the evidence supports the district court’s finding that Rodriguez was a manager or supervisor within the meaning of U.S.S.G. § 3Bl.l(b).\nC. Fuentez, Ramirez, and Rodriguez’s Challenge to the District Court’s Refusal to Reduce their Offense Levels under U.S.S.G. § 3B1.2(b).\nFuentez, Ramirez, and Rodriguez claim that the district court erred in refusing to reduce their offense levels as minor or minimal participants under U.S.S.G. § 3B1.2(b). A district court’s refusal to grant such a reduction is a finding of fact that we review under the clearly erroneous standard. United States u Regan, 940 F.2d 1134, 1136 (8th Cir.1991).\nTo be a minimal participant, the particular defendant must have been “plainly among the least culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2, comment, (n. 1). The Application Notes to section 3B1.2 state that courts should use the “minimal participant” exception “infrequently,” possibly in cases where “an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment, (n. 2). Given their extensive participation in the enterprise, any argument that Fuentez, Ramirez, or Rodriguez qualify for this exception is without merit.\nTo be a minor participant, the particular defendant must have been “less culpable than most other participants.” U.S.S.G. § 3B1.2, comment (n. 3). Fuentez’s extensive participation in the conspiracy was discussed earlier and precludes serious consideration of his request. Likewise, Rodriguez’s role as a manager and one who directed the activities of other conspirators precludes his success in this argument. Finally, we cannot say the district court’s refusal to grant Ramirez a reduction under section 3B1.2 was clearly erroneous.\nWe have examined appellants’ other arguments and we find them to be without merit.\nAccordingly, we affirm the convictions and sentences of the appellants.\n. On June 27, 1988, DEA Agents seized a total of • $13,490 in U.S. currency from Fuentez at the St. Louis airport. Fuentez was travelling on a one-way ticket to Newark, New Jersey, under an assumed name. Fuentez told agents that a friend who owned a grocery store in New York had given him the cash to buy vegetables in St. Louis. A narcotics detection dog reacted positively to the currency.\nOn October 22, 1988, DEA Agents seized a total of $9,190 in U.S. currency from Fuentez at the St. Louis airport. The cash was sewn into the lining of a leather jacket. Fuentez again claimed that the currency had been given to him by his mysterious friend in New York, this time to buy a car which he, Fuentez, had been unable to locate. No claim was ever made for the return of the currency.\n. Section 3B1.1 provides, in pertinent part: Based on the defendant's role in the offense, increase the offense level as follows:\n(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.\n(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.\n[END_CASE]", "role": "user" } ]
10,513,440	UNITED STATES of America, Appellee, v. Robert E. SUPPENBACH, also known as Decoder Bob, Appellant	United States v. Suppenbach	1993-07-26	No. 92-3698	United States Court of Appeals for the Eighth Circuit	{"judges": ["Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and STOHR, District Judge."], "parties": ["UNITED STATES of America, Appellee, v. Robert E. SUPPENBACH, also known as Decoder Bob, Appellant."], "opinions": [{"text": "WOLLMAN, Circuit Judge.\nRobert E. Suppenbach appeals from his conviction for conspiring to unlawfully modify and distribute electronic devices to be used for the unauthorized decryption of satellite cable television programming, in violation of 18 U.S.C. § 371 and 47 U.S.C. § 605(e)(4). He argues that his conviction is not supported by sufficient evidence and that the district court’s supplemental jury instructions denied him a fair trial. We affirm.\nI.\nIn 1986, major cable television programmers began scrambling their satellite transmissions in order to thwart unauthorized reception of their programming. Consequently, to receive scrambled programming, satellite dish owners must now purchase a transmission descrambler, or decoder, and then pay a subscription fee to have descrambled transmissions sent to their decoders. Since the introduction of program scrambling, pirates have begun to illegally modify decoders so that dish owners can receive scrambled programming without paying a subscription fee.\nIn 1989, the FBI began investigating allegations that satellite dish vendors in the Kansas City, Missouri, area were selling illegally modified decoders. The investigation focused on John Weber, owner of Future Vision Satellite, and Larry Kueser, owner of Centek. The FBI learned that Bob Suppen-bach, also known as Decoder Bob, Computer Bob, and Chip Bob, was the individual illegally modifying decoders for Weber and Kueser.\nSuppenbach was indicted pursuant to a three-count indictment. Count I charged that Suppenbach had conspired to unlawfully modify and distribute decoders to be used for the unauthorized decryption of satellite cable television programming, in violation of 18 U.S.C. § 371 and 47 U.S.C. § 605(e)(4); Count II charged that Suppenbach had modified a Panasonic 4500 Descrambler, in violation of 47 U.S.C. § 605(e)(4); Count III charged that Suppenbach had modified a Channel Master Module, in violation of 47 U.S.C. § 605(e)(4).\nAt trial, the government presented evidence that Suppenbach had illegally modified decoders for John Weber and his company, Future Vision. More specifically, the government presented evidence that Suppen-bach had illegally modified a Panasonic 4500 Descrambler, which Future Vision sold to James Saunders in November 1989, and that he had modified a Channel Master Module, which Future Vision sold to Jim Stubbs in March 1989. The modification of these two decoders constituted the basis for the substantive offenses charged in Counts II and III, respectively. Additionally, the government presented evidence that Suppenbach had also modified decoders for Larry Kueser and his company, Centek.\nThe jury found Suppenbach guilty on Count I, the conspiracy charge, and not guilty on Counts II and III, the substantive offense charges. The district court sentenced Suppenbach to four months’ imprisonment, to be followed by three years of supervised release, and ordered him to pay $5,000 in restitution.\nII.\nSuppenbach first argues that his conspiracy conviction is not supported by sufficient evidence. The district court instructed the jury that to convict Suppenbach of conspiracy, the jury had to find that he had voluntarily agreed with a person or persons to commit a criminal offense (to illegally modify decoders) and that a person who had joined the agreement knowingly did one or more of the acts charged in the indictment. See Jury Instruction E. The only acts charged in the indictment were the acts alleged in Counts II and III. As stated above, these counts charged that Suppenbach had modified a Panasonic 4500 Descrambler and a Channel Master Module. Accordingly, Suppenbach argues, and the government agrees, that to convict Suppenbach of conspiracy the jury had to find that he had modified one of the decoders charged in Counts II and III. Sup-penbach argues that because the jury acquitted him on Counts II and III, it found that he had not modified either of the decoders and therefore could not have properly convicted him of conspiracy.\nAlthough Suppenbach attempts to characterize his argument as a sufficiency of the evidence claim, his argument is actually an inconsistent verdict claim. It is understandable that Suppenbach would attempt to characterize his claim as other than an inconsistent verdict claim, because it is well settled that “[cjonsistency in the verdict is not necessary.” Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). A defendant convicted by a jury on one count cannot attack that conviction because it is inconsistent with the jury’s verdict of acquittal on another count. United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 473, 83 L.Ed.2d 461 (1984) (citing Dunn).\nIndeed, in United States v. Toumsley, we rejected substantially the same argument that Suppenbach makes here. 843 F.2d 1070, 1086 (8th Cir.1988), cert. dismissed, — U.S. -, 111 S.Ct. 1406, 113 L.Ed.2d 461 (1991). We refused to overturn a conviction for conspiracy to obstruct justice even though the defendant had been acquitted of obstruction of justice. Id. (citing United States v. Shigemura, 682 F.2d 699, 705 n. 11 (8th Cir.1982), cert. denied, 459 U.S. 1111, 103 S.Ct. 741, 74 L.Ed.2d 962 (1983)). See also United States v. Williams, 923 F.2d 115, 116 (8th Cir.1991) (refusing to set aside inconsistent verdicts where the defendants were convicted of attempt to manufacture methamphetamine but acquitted of conspiracy to manufacture methamphetamine).\nAs the Supreme Court recognized in Powell, where a jury has reached inconsistent verdicts, “it is unclear whose ox has been gored.” Powell, 469 U.S. at 65, 105 S.Ct. at 476. It is possible that the jury found that Suppenbach had modified one or both of the decoders and thus properly convicted him of conspiracy, and then “through mistake, compromise, or lenity,” arrived at inconsistent conclusions on the substantive charges. Id. As Justice Holmes succinctly stated in Dunn:\nThe most that can be said in [inconsistent verdict] cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.\nThat the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.\nDunn, 284 U.S. at 393-94, 52 S.Ct. at 190-91 (citation omitted).\nAlthough we will not overturn Sup-penbach’s conspiracy conviction because it is inconsistent with his acquittals, he is entitled to an independent review of the sufficiency of the evidence supporting his conviction. Powell, 469 U.S. at 67, 105 S.Ct. at 477. Sufficiency-of-the-evidence review is independent of the jury’s determination that evidence on other counts was insufficient. Id. In reviewing the sufficiency of the evidence to support a conviction, “we examine the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences that may logically be drawn from the evidence.” United States v. Fuller, 942 F.2d 454, 458 (8th Cir.1991) (citing United States v. Yerks, 918 F.2d 1371, 1374 (8th Cir.1990)), cert. denied, — U.S. —, 112 S.Ct. 315, 116 L.Ed.2d 257 (1991) and — U.S. -, 112 S.Ct. 890, 116 L.Ed.2d 793 (1992). We will reverse the jury’s verdict “ ‘only if the evidence so viewed is such that a reasonable-minded jury must have entertained a reasonable doubt as to the government’s proof of one of the essential elements of the offense.’” Id. (quoting Yerks, 918 F.2d at 1374).\nTo convict Suppenbach of conspiracy, the jury had to find that he had agreed with a person or persons to illegally modify decoders, and that in furtherance of this agreement he had modified one of the decoders charged in Counts II and III. The evidence clearly established that the decoders charged in Counts II and III had been modified for and sold by Weber through Future Vision. Thus, to convict Suppenbach of conspiracy, it was necessary for the jury to find that Suppenbach had agreed with Weber to modify decoders and that he had modified one of the decoders charged in the indictment. After reviewing the record, we find ample evidence supporting both propositions.\nThe evidence established that Suppenbach had agreed with Weber to illegally modify decoders. Weber testified that he sold illegally modified satellite decoders through Future Vision from 1988 to 1989. According to Weber, Suppenbach did all of the illegal modifications for Future Vision. Suppenbach modified thirty to fifty decoders, receiving between $125 to $250 per modification. Whenever Weber needed decoders modified, he would contact Suppenbach. Weber would then take the unmodified decoders to Sup-penbach’s home, or Suppenbach would pick them up at Weber’s office. After the decoders had been modified, Suppenbach either delivered them to Weber, or Weber would pick them up at Suppenbaeh’s home. Two Future Vision employees corroborated Weber’s testimony, stating that Suppenbach was the only person who had modified decoders for Future Vision.\nThe evidence also established that Suppen-bach had modified one of the decoders charged in Counts II and III. As recounted above, Weber and two Future Vision employees testified that Suppenbach was the only person who modified decoders for Future Vision. The evidence established that Future Vision sold the illegally modified Channel Master Module to Jim Stubbs in March 1989 and the modified Panasonic 4500 De-scrambler to James Saunders in November 1989. Stubbs and Saunders confirmed that they had purchased decoders that allowed them to receive cable programming for which they had not paid. Additionally, Brant Candelore, an electrical engineer, testified that Stubbs’ and Saunders’ decoders had in fact been illegally modified.\nAdditionally, Kueser’s testimony corroborated that Suppenbach had conspired with Weber. According to Kueser, he sold illegally modified decoders through Centek in 1988 and 1989, and he too had hired Suppenbach to do illegal modifications. When he needed decoders modified, Kueser would contact Suppenbach; then, Centek would either deliver the decoders to Suppenbach, or Suppen-bach would pick them up.\nHaving found that the record contains sufficient evidence to support Suppenbach’s conspiracy conviction, we turn to his argument that the district court’s supplemental instructions denied him a fair trial.\nIn its closing argument, the government argued that to prove the conspiracy charge it had to show that Suppenbach had conspired with Weber. The government stated that the conspiracy at issue was between Suppen-bach and Weber and did not involve Kueser. It argued that evidence that Suppenbach had conspired with Kueser merely added to the government’s case.\nDuring its deliberations, the jury sent two notes to the district court. In the first note, the jury asked, among other things, “Is anything having to do with Syntex [sic] actually involved in the charges against Mr. Suppen-bach?” The court responded that “[t]he government does not contend that Syntex [sic] was involved in the charges in Counts 2 and 3.” The court stated further that “[t]he jury should deal with Count 1 in accordance with the evidence, the instructions, and the argument.” In the second note, the jury asked, “Is Count 1 the conspiracy between John Webber [sic] and Bob Suppenbach only or is Syntech [sic] involved also on Count 1?” The court answered that “[t]he conspiracy charge does not name co-conspirators and the instructions do not confine jury consideration to particular companies or individuals. It will be the jury’s responsibility to determine from the evidence if there was a conspiracy and, if so, what companies or individuals were involved.”\nSuppenbach argues that the court’s supplemental instructions were improper because they implied that Centek could have been involved in the conspiracy. He contends that this implication was improper in the light of the government’s argument that the conspiracy at issue was between Suppenbach and Weber and did not involve Kueser and his company Centek.\n“ ‘The response to a jury request for supplemental instructions is a matter within the sound discretion of the district court.’ ” United States v. Bartley, 855 F.2d 547, 551 (1988) (quoting United States v. White, 794 F.2d 367, 370 (8th Cir.1986)). “A trial judge must be painstakingly impartial any time he communicates with the jury during deliberations. He must insure that any supplemental instructions are accurate, clear, neutral, and non-prejudicial.” Id.\nWe find that the court’s supplemental instructions were accurate and appropriate. The court properly told the jury that Centek was not involved in Counts II and III. As noted above, the government’s evidence clearly established that Counts II and III involved only decoders that Suppenbach had modified for Future Vision and which Future Vision had sold. Under no view of the evidence could Centek have been involved in Counts II or III.\nLikewise, the court properly instructed the jury that it would have to be guided by the evidence, instructions, and arguments in determining whether Centek was involved in Count I. The court appropriately refused to tell the jury that Centek was not involved in the conspiracy. As discussed earlier, taken together, the indictment, the evidence, and the instructions required the government to prove that Suppenbach had conspired with Weber to modify decoders. Although the indictment and the instructions required the jury to find that Suppenbach and Weber had conspired, they did not foreclose a finding that Kueser and Centek were also involved in the conspiracy. As the court told the jury, the indictment did not name coconspirators and the instructions did not limit the jury’s consideration only to certain individuals or companies. The court properly told the jury that it would have to determine from the evidence if there was a conspiracy and, if so, who was involved.\nAs Suppenbach emphasizes, the government argued that Kueser and Centek were not involved in the conspiracy. The government’s closing argument, however, did not render the court’s supplemental instructions improper, for the argument merely reflected the government’s interpretation of the evidence. Certainly, a district court need not tell the jury to interpret the evidence in the manner urged by the government. Instead, the court’s instruction must be neutral, which it was in this case. Rather than telling the jury that Centek was not involved in the conspiracy, the court impartially instructed the jury to determine for itself from the evidence what companies and individuals were involved.\nThe conviction is affirmed.\n. The Honorable Howard F. Sachs, Senior United States District Judge for the Western District of Missouri.", "type": "majority", "author": "WOLLMAN, Circuit Judge."}], "attorneys": ["Robert G. Duncan, Kansas City, MO, argued, for appellant.", "Carla B. Oppenheimer, Kansas City, MO, argued (Jean Paul Bradshaw II and Carla B. Oppenheimer, on the brief), for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Robert E. SUPPENBACH, also known as Decoder Bob, Appellant.\nNo. 92-3698.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted April 12, 1993.\nDecided July 26, 1993.\nRehearing Denied Aug. 25, 1993.\nRobert G. Duncan, Kansas City, MO, argued, for appellant.\nCarla B. Oppenheimer, Kansas City, MO, argued (Jean Paul Bradshaw II and Carla B. Oppenheimer, on the brief), for appellee.\nBefore WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and STOHR, District Judge.\nThe HONORABLE DONALD J. STOHR, United States District Judge for the Eastern District of Missouri, sitting by designation."}	WOLLMAN	MORRIS SHEPPARD ARNOLD	STOHR	1	1	1	0	0	0	1 F.3d 679	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Robert E. SUPPENBACH, also known as Decoder Bob, Appellant\nCourt: United States Court of Appeals for the Eighth Circuit\nDate decided: 1993-07-26\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nWOLLMAN, Circuit Judge.\nRobert E. Suppenbach appeals from his conviction for conspiring to unlawfully modify and distribute electronic devices to be used for the unauthorized decryption of satellite cable television programming, in violation of 18 U.S.C. § 371 and 47 U.S.C. § 605(e)(4). He argues that his conviction is not supported by sufficient evidence and that the district court’s supplemental jury instructions denied him a fair trial. We affirm.\nI.\nIn 1986, major cable television programmers began scrambling their satellite transmissions in order to thwart unauthorized reception of their programming. Consequently, to receive scrambled programming, satellite dish owners must now purchase a transmission descrambler, or decoder, and then pay a subscription fee to have descrambled transmissions sent to their decoders. Since the introduction of program scrambling, pirates have begun to illegally modify decoders so that dish owners can receive scrambled programming without paying a subscription fee.\nIn 1989, the FBI began investigating allegations that satellite dish vendors in the Kansas City, Missouri, area were selling illegally modified decoders. The investigation focused on John Weber, owner of Future Vision Satellite, and Larry Kueser, owner of Centek. The FBI learned that Bob Suppen-bach, also known as Decoder Bob, Computer Bob, and Chip Bob, was the individual illegally modifying decoders for Weber and Kueser.\nSuppenbach was indicted pursuant to a three-count indictment. Count I charged that Suppenbach had conspired to unlawfully modify and distribute decoders to be used for the unauthorized decryption of satellite cable television programming, in violation of 18 U.S.C. § 371 and 47 U.S.C. § 605(e)(4); Count II charged that Suppenbach had modified a Panasonic 4500 Descrambler, in violation of 47 U.S.C. § 605(e)(4); Count III charged that Suppenbach had modified a Channel Master Module, in violation of 47 U.S.C. § 605(e)(4).\nAt trial, the government presented evidence that Suppenbach had illegally modified decoders for John Weber and his company, Future Vision. More specifically, the government presented evidence that Suppen-bach had illegally modified a Panasonic 4500 Descrambler, which Future Vision sold to James Saunders in November 1989, and that he had modified a Channel Master Module, which Future Vision sold to Jim Stubbs in March 1989. The modification of these two decoders constituted the basis for the substantive offenses charged in Counts II and III, respectively. Additionally, the government presented evidence that Suppenbach had also modified decoders for Larry Kueser and his company, Centek.\nThe jury found Suppenbach guilty on Count I, the conspiracy charge, and not guilty on Counts II and III, the substantive offense charges. The district court sentenced Suppenbach to four months’ imprisonment, to be followed by three years of supervised release, and ordered him to pay $5,000 in restitution.\nII.\nSuppenbach first argues that his conspiracy conviction is not supported by sufficient evidence. The district court instructed the jury that to convict Suppenbach of conspiracy, the jury had to find that he had voluntarily agreed with a person or persons to commit a criminal offense (to illegally modify decoders) and that a person who had joined the agreement knowingly did one or more of the acts charged in the indictment. See Jury Instruction E. The only acts charged in the indictment were the acts alleged in Counts II and III. As stated above, these counts charged that Suppenbach had modified a Panasonic 4500 Descrambler and a Channel Master Module. Accordingly, Suppenbach argues, and the government agrees, that to convict Suppenbach of conspiracy the jury had to find that he had modified one of the decoders charged in Counts II and III. Sup-penbach argues that because the jury acquitted him on Counts II and III, it found that he had not modified either of the decoders and therefore could not have properly convicted him of conspiracy.\nAlthough Suppenbach attempts to characterize his argument as a sufficiency of the evidence claim, his argument is actually an inconsistent verdict claim. It is understandable that Suppenbach would attempt to characterize his claim as other than an inconsistent verdict claim, because it is well settled that “[cjonsistency in the verdict is not necessary.” Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). A defendant convicted by a jury on one count cannot attack that conviction because it is inconsistent with the jury’s verdict of acquittal on another count. United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 473, 83 L.Ed.2d 461 (1984) (citing Dunn).\nIndeed, in United States v. Toumsley, we rejected substantially the same argument that Suppenbach makes here. 843 F.2d 1070, 1086 (8th Cir.1988), cert. dismissed, — U.S. -, 111 S.Ct. 1406, 113 L.Ed.2d 461 (1991). We refused to overturn a conviction for conspiracy to obstruct justice even though the defendant had been acquitted of obstruction of justice. Id. (citing United States v. Shigemura, 682 F.2d 699, 705 n. 11 (8th Cir.1982), cert. denied, 459 U.S. 1111, 103 S.Ct. 741, 74 L.Ed.2d 962 (1983)). See also United States v. Williams, 923 F.2d 115, 116 (8th Cir.1991) (refusing to set aside inconsistent verdicts where the defendants were convicted of attempt to manufacture methamphetamine but acquitted of conspiracy to manufacture methamphetamine).\nAs the Supreme Court recognized in Powell, where a jury has reached inconsistent verdicts, “it is unclear whose ox has been gored.” Powell, 469 U.S. at 65, 105 S.Ct. at 476. It is possible that the jury found that Suppenbach had modified one or both of the decoders and thus properly convicted him of conspiracy, and then “through mistake, compromise, or lenity,” arrived at inconsistent conclusions on the substantive charges. Id. As Justice Holmes succinctly stated in Dunn:\nThe most that can be said in [inconsistent verdict] cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.\nThat the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.\nDunn, 284 U.S. at 393-94, 52 S.Ct. at 190-91 (citation omitted).\nAlthough we will not overturn Sup-penbach’s conspiracy conviction because it is inconsistent with his acquittals, he is entitled to an independent review of the sufficiency of the evidence supporting his conviction. Powell, 469 U.S. at 67, 105 S.Ct. at 477. Sufficiency-of-the-evidence review is independent of the jury’s determination that evidence on other counts was insufficient. Id. In reviewing the sufficiency of the evidence to support a conviction, “we examine the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences that may logically be drawn from the evidence.” United States v. Fuller, 942 F.2d 454, 458 (8th Cir.1991) (citing United States v. Yerks, 918 F.2d 1371, 1374 (8th Cir.1990)), cert. denied, — U.S. —, 112 S.Ct. 315, 116 L.Ed.2d 257 (1991) and — U.S. -, 112 S.Ct. 890, 116 L.Ed.2d 793 (1992). We will reverse the jury’s verdict “ ‘only if the evidence so viewed is such that a reasonable-minded jury must have entertained a reasonable doubt as to the government’s proof of one of the essential elements of the offense.’” Id. (quoting Yerks, 918 F.2d at 1374).\nTo convict Suppenbach of conspiracy, the jury had to find that he had agreed with a person or persons to illegally modify decoders, and that in furtherance of this agreement he had modified one of the decoders charged in Counts II and III. The evidence clearly established that the decoders charged in Counts II and III had been modified for and sold by Weber through Future Vision. Thus, to convict Suppenbach of conspiracy, it was necessary for the jury to find that Suppenbach had agreed with Weber to modify decoders and that he had modified one of the decoders charged in the indictment. After reviewing the record, we find ample evidence supporting both propositions.\nThe evidence established that Suppenbach had agreed with Weber to illegally modify decoders. Weber testified that he sold illegally modified satellite decoders through Future Vision from 1988 to 1989. According to Weber, Suppenbach did all of the illegal modifications for Future Vision. Suppenbach modified thirty to fifty decoders, receiving between $125 to $250 per modification. Whenever Weber needed decoders modified, he would contact Suppenbach. Weber would then take the unmodified decoders to Sup-penbach’s home, or Suppenbach would pick them up at Weber’s office. After the decoders had been modified, Suppenbach either delivered them to Weber, or Weber would pick them up at Suppenbaeh’s home. Two Future Vision employees corroborated Weber’s testimony, stating that Suppenbach was the only person who had modified decoders for Future Vision.\nThe evidence also established that Suppen-bach had modified one of the decoders charged in Counts II and III. As recounted above, Weber and two Future Vision employees testified that Suppenbach was the only person who modified decoders for Future Vision. The evidence established that Future Vision sold the illegally modified Channel Master Module to Jim Stubbs in March 1989 and the modified Panasonic 4500 De-scrambler to James Saunders in November 1989. Stubbs and Saunders confirmed that they had purchased decoders that allowed them to receive cable programming for which they had not paid. Additionally, Brant Candelore, an electrical engineer, testified that Stubbs’ and Saunders’ decoders had in fact been illegally modified.\nAdditionally, Kueser’s testimony corroborated that Suppenbach had conspired with Weber. According to Kueser, he sold illegally modified decoders through Centek in 1988 and 1989, and he too had hired Suppenbach to do illegal modifications. When he needed decoders modified, Kueser would contact Suppenbach; then, Centek would either deliver the decoders to Suppenbach, or Suppen-bach would pick them up.\nHaving found that the record contains sufficient evidence to support Suppenbach’s conspiracy conviction, we turn to his argument that the district court’s supplemental instructions denied him a fair trial.\nIn its closing argument, the government argued that to prove the conspiracy charge it had to show that Suppenbach had conspired with Weber. The government stated that the conspiracy at issue was between Suppen-bach and Weber and did not involve Kueser. It argued that evidence that Suppenbach had conspired with Kueser merely added to the government’s case.\nDuring its deliberations, the jury sent two notes to the district court. In the first note, the jury asked, among other things, “Is anything having to do with Syntex [sic] actually involved in the charges against Mr. Suppen-bach?” The court responded that “[t]he government does not contend that Syntex [sic] was involved in the charges in Counts 2 and 3.” The court stated further that “[t]he jury should deal with Count 1 in accordance with the evidence, the instructions, and the argument.” In the second note, the jury asked, “Is Count 1 the conspiracy between John Webber [sic] and Bob Suppenbach only or is Syntech [sic] involved also on Count 1?” The court answered that “[t]he conspiracy charge does not name co-conspirators and the instructions do not confine jury consideration to particular companies or individuals. It will be the jury’s responsibility to determine from the evidence if there was a conspiracy and, if so, what companies or individuals were involved.”\nSuppenbach argues that the court’s supplemental instructions were improper because they implied that Centek could have been involved in the conspiracy. He contends that this implication was improper in the light of the government’s argument that the conspiracy at issue was between Suppenbach and Weber and did not involve Kueser and his company Centek.\n“ ‘The response to a jury request for supplemental instructions is a matter within the sound discretion of the district court.’ ” United States v. Bartley, 855 F.2d 547, 551 (1988) (quoting United States v. White, 794 F.2d 367, 370 (8th Cir.1986)). “A trial judge must be painstakingly impartial any time he communicates with the jury during deliberations. He must insure that any supplemental instructions are accurate, clear, neutral, and non-prejudicial.” Id.\nWe find that the court’s supplemental instructions were accurate and appropriate. The court properly told the jury that Centek was not involved in Counts II and III. As noted above, the government’s evidence clearly established that Counts II and III involved only decoders that Suppenbach had modified for Future Vision and which Future Vision had sold. Under no view of the evidence could Centek have been involved in Counts II or III.\nLikewise, the court properly instructed the jury that it would have to be guided by the evidence, instructions, and arguments in determining whether Centek was involved in Count I. The court appropriately refused to tell the jury that Centek was not involved in the conspiracy. As discussed earlier, taken together, the indictment, the evidence, and the instructions required the government to prove that Suppenbach had conspired with Weber to modify decoders. Although the indictment and the instructions required the jury to find that Suppenbach and Weber had conspired, they did not foreclose a finding that Kueser and Centek were also involved in the conspiracy. As the court told the jury, the indictment did not name coconspirators and the instructions did not limit the jury’s consideration only to certain individuals or companies. The court properly told the jury that it would have to determine from the evidence if there was a conspiracy and, if so, who was involved.\nAs Suppenbach emphasizes, the government argued that Kueser and Centek were not involved in the conspiracy. The government’s closing argument, however, did not render the court’s supplemental instructions improper, for the argument merely reflected the government’s interpretation of the evidence. Certainly, a district court need not tell the jury to interpret the evidence in the manner urged by the government. Instead, the court’s instruction must be neutral, which it was in this case. Rather than telling the jury that Centek was not involved in the conspiracy, the court impartially instructed the jury to determine for itself from the evidence what companies and individuals were involved.\nThe conviction is affirmed.\n. The Honorable Howard F. Sachs, Senior United States District Judge for the Western District of Missouri.\n[END_CASE]", "role": "user" } ]
10,513,472	Michal K. GARLAND, Appellant, v. Samuel W. PEEBLES, M.D., Appellee	Garland v. Peebles	1993-07-29	No. 92-3899	United States Court of Appeals for the Eighth Circuit	{"judges": ["Before WOLLMAN and LOKEN, Circuit Judges, and HUNTER, Senior District Judge."], "parties": ["Michal K. GARLAND, Appellant, v. Samuel W. PEEBLES, M.D., Appellee."], "opinions": [{"text": "WOLLMAN, Circuit Judge.\nMichal Kay Garland appeals from the district court’s dismissal under Federal Rule of Civil Procedure 41(b) of her medical malpractice suit against Samuel W. Peebles, M.D., for failure to prosecute. We affirm.\nI.\nGarland, represented by Charles Hicks and Charla Tindall, filed this diversity action on March 21, 1991, alleging that Dr. Peebles had negligently failed to diagnose and treat her breast cancer. Garland’s complaint stated that she visited Dr. Peebles in Nashville, Arkansas, for a routine gynecological and breast examination in October 1985. At that time, Dr. Peebles detected a lump in Garland’s left breast. In December 1985, Garland underwent a mammogram to determine the presence of cancerous tissue. Garland alleged that Dr. Peebles advised her that the mammogram indicated that she had fibrocystic disease of the breast, a non-cancerous condition. She fui’ther alleged that Dr. Pee-bles told her that the lump represented no real danger and could be reduced by her reducing her intake of caffeine. She stated that she continued to consult Dr. Peebles about the lump until April or May 1986 and that he continued to tell her not to be concerned.\nUpon moving to Dallas, Texas, Garland consulted Dr. David Bookout in February 1987. Garland alleged that Dr. Bookout noticed the same lump that Dr. Peebles had detected. Dr. Bookout referred Garland to Linda Frame, R.N., director of the Griffiths Hale Breast Center at the Presbyterian Hospital in Dallas, for a mammogram. The mammogram indicated that the lump was cancerous. In April 1987, Garland underwent surgery to remove the cancer. In December 1990, however, Garland learned that her breast cancer had reoccurred, and in January 1991 she underwent a mastectomy. Following her mastectomy, Garland’s physicians informed her that the cancer had spread and was incurable.\nThis case was initially set for trial on March 23, 1992. On February 7, 1992, Garland moved for a continuance. The court granted the motion and reset the trial for June 22, 1992. Upon request by both parties, the court once again continued the case and rescheduled the trial for August 17,1992. Again upon the request of both parties, the court continued the case for a third time on August 14 and reset the trial for the week of November 2, 1992.\nOn September 28, 1992, Garland’s attorney Hicks filed a motion to withdraw his firm from the case. On September 30, Hicks filed a supplemental motion to withdraw, which stated that his firm could not present Garland’s case consistent with her desires or understanding of the underlying facts. Additionally, the motion stated that this conflict had created a dilemma, making it impossible for Hicks’s firm to go forward without creating further conflicting circumstances.\nOn September 30, the district court initiated a telephone conference call with Hicks and counsel for Dr. Peebles. Hicks informed the court that he had been aware of the facts constituting his asserted conflict since June 1992. He further stated that discovery was far from complete and that if he was to continue as counsel, he could not be ready for trial by November 2.\nIn an order filed October 9,1992, the court first refused to grant a continuance. The court noted that the case had been filed more than eighteen months earlier and already had been set for trial several times. The court also denied Hicks’s motion to withdraw as counsel of record. . Based on Hicks’s comments, the court was unpersuaded that Hicks had an insurmountable conflict that would prevent him from proceeding with the trial on November 2. Nonetheless, the court stated that if and when Hicks or Garland secured new counsel who could assure the court that the case would be ready for trial within ninety days of the court’s order, the court would reconsider Hicks’s motion to withdraw and address a motion for continuance.\nOn October 27, 1992, Garland moved to add William Wilson and Gary Corum as additional counsel of record. The motion stated that Wilson and Corum had accepted representation knowing that the trial had been scheduled for the week of November 2. The court took no formal action on this motion, and Hicks did not renew his motion to withdraw.\nThe trial was ultimately scheduled to begin November 4, 1992. On the morning of November 4, Garland’s attorneys Corum, Wilson, Tindall, and Wayne Dowd requested a hearing to present a motion to withdraw as counsel for Garland. At the hearing, they stated that certain evidence, discovered only the previous night, made it impossible for them, as a matter of professional ethics, to proceed with the case as counsel for Garland. Based on the attorney-client privilege, all counsel declined to divulge the precise reason for their motion. They further stated that Garland had objected to their decision and had requested that they ask the court to allow her to speak privately with the court. Dr. Peebles responded with a motion to dismiss for failure to prosecute.\nThe court granted the attorneys’ motion to withdraw. Considering the peculiar circumstances of the case, the court also decided to honor Garland’s request for an ex parte conference with the court. Dr. Peebles renewed his motion to dismiss for failure to prosecute. The court took the motion under advisement pending the interview with Garland.\nBecause Hicks was still an attorney of record for Garland, the court notified Hicks that it intended to confer with Garland. Hicks then renewed his motion to withdraw. The court denied the motion because its preconditions for consideration of such a motion had not been fulfilled.\nThe court met with Garland in the afternoon on November 4. The court began the conference by explaining certain ground rules. It informed Garland that she would be placed under oath, that the proceeding would be recorded by the court reporter, and that the court reserved the right to reveal the contents of the conference to Dr. Peebles, his attorneys, and all other attorneys involved in the case. Garland agreed to proceed under these rules.\nDuring her conversation with the court, Garland disclosed the nature of the ethical conflict that had first developed with Hicks and then with her new attorneys. She explained that Hicks’s motion to withdraw was prompted by her refusal to admit that she had lied to Dr. Bookout, whose office notes reflected that Garland told him that the lump in her breast had been present for two months when she visited him in February 1987. In Hicks’ opinion, these notes either contradicted Garland’s allegations that the lump had been present since she saw Dr. Peebles eighteen months earlier or indicated that she lied to Dr. Bookout about how long the lump had been there. To present Garland’s case in an ethical manner and to have a chance of winning, Hicks had advised Garland that she would have to admit that she lied to Dr. Bookout because she was worried about her medical expenses being covered by insurance.\nFurther, Garland told the court that two nights before trial was to begin her new attorneys had been presented with additional evidence regarding the same ethical conflict that had confronted Hicks. This evidence consisted of a report from Ms. Frame that indicated that the lump had been present for two months when Ms. Frame interviewed Garland in March 1987. Garland’s new attorneys informed her that the report either corroborated Dr. Peebles’s defense that Garland had told him the lump had disappeared or indicated that Garland had lied for insurance purposes.\nIn an order filed November 18, 1992, the district court found that Garland had revealed no information in the ex parte conference that cast doubt upon the propriety of her attorneys’ request to withdraw. The court also found that Garland had not revealed anything to persuade the court to continue the case. Considering the case’s history, the court determined that a continuance would not ensure that Garland would be ready for trial in the foreseeable future. The court stated that any further delay would work an unduly prejudicial hardship on Dr. Peebles. Accordingly, the court granted Dr. Peebles’s motion to dismiss Garland’s complaint with prejudice for failure to prosecute.\nII.\nOn appeal, Garland, still represented by the Hicks law firm, argues that the district court erred in dismissing her case for failure to prosecute. She contends that she did not engage in conduct that warranted such a dismissal. She argues that once the district court permitted her attorneys to withdraw, the court should have either called the case for trial, allowing her to proceed pro se, or continued the case.\nA dismissal for failure to prosecute is proper when there has been “a clear record of delay or contumacious conduct by the plaintiff.” Brown v. Frey, 806 F.2d 801, 803 (8th Cir.1986). We review a district court’s dismissal for failure to prosecute under the abuse of discretion standard. See, e.g., Du-Bose v. Minnesota, 893 F.2d 169, 171 (8th Cir.1990). In reviewing a district court’s decision, we balance the court’s need to advance a crowded docket versus the consequences of denying a plaintiff his day in court. See, e.g., Brown, 806 F.2d at 804 (citing Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir.1976)). We consider the nature of the conduct that prompted the dismissal and the adverse impact of such conduct upon both the defendant and the administration of justice in the district court. Id. We also consider the availability of other less severe options. See, e.g., Pardee v. Stock, 712 F.2d 1290, 1292 (8th Cir.1983) (citing St. Louis Music Supply, 539 F.2d at 1193).\nGiven the unusual circumstances of this case, we hold that the district court did not abuse its discretion by dismissing Garland’s complaint. Garland engaged in conduct that prevented this case from going to trial. She created an ethical conflict that forced her attorneys to request to withdraw from her case. Against the advice of her attorneys, she refused to admit that she had lied to Dr. Bookout and Ms. Frame. By insisting that her case be tried in a manner that five attorneys found unethical, Garland was directly responsible for her case not going to trial on its scheduled trial date.\nThe court did not err by not allowing Garland to try her case pro se. Garland was extremely ill on the day trial was to begin (indeed, too ill to come to the courtroom that morning), so permitting her to proceed pro se was not a realistic option.\nLikewise, the court did not err by not continuing the case. This action had been filed more than eighteen months earlier and had been continued several times. Even if the district court had granted another continuance, it is far from certain that the case would ever have gone to trial. During her conference with the court, Garland indicated that she was unwilling to change her mind concerning what she had told Dr. Bookout and Ms. Frame. A continuance would merely have given Garland more time to seek an attorney who would present her ease in the manner she desired. Because five attorneys had found that they could not ethically present the case as Garland wanted it presented, it is highly unlikely that Garland could have found an attorney to present her case as she wanted it tried. Even if Garland could have succeeded in this task, her new attorney would not have been ready for trial for at least several months. As the district court properly recognized, another continuance would have prolonged Dr. Peebles’s hardship after he and his attorneys had worked diligently to be ready for trial.\nAccordingly, the dismissal with prejudice for failure to prosecute is affirmed.\n. The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas.", "type": "majority", "author": "WOLLMAN, Circuit Judge."}], "attorneys": ["George R. Wise, Jr., Little Rock, AR, argued, for appellant.", "Calvin J. Hall, Little Rock, AR, argued (Laura Hensley Smith, on the brief), for ap-pellee."], "corrections": "", "head_matter": "Michal K. GARLAND, Appellant, v. Samuel W. PEEBLES, M.D., Appellee.\nNo. 92-3899.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted June 17, 1993.\nDecided July 29, 1993.\nRehearing Denied Sept. 1, 1993.\nGeorge R. Wise, Jr., Little Rock, AR, argued, for appellant.\nCalvin J. Hall, Little Rock, AR, argued (Laura Hensley Smith, on the brief), for ap-pellee.\nBefore WOLLMAN and LOKEN, Circuit Judges, and HUNTER, Senior District Judge.\nThe HONORABLE ELMO B. HUNTER, Senior United States District Judge for the Western District of Missouri, sitting by designation."}	WOLLMAN	LOKEN	HUNTER	1	1	1	0	0	0	1 F.3d 683	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Michal K. GARLAND, Appellant, v. Samuel W. PEEBLES, M.D., Appellee\nCourt: United States Court of Appeals for the Eighth Circuit\nDate decided: 1993-07-29\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nWOLLMAN, Circuit Judge.\nMichal Kay Garland appeals from the district court’s dismissal under Federal Rule of Civil Procedure 41(b) of her medical malpractice suit against Samuel W. Peebles, M.D., for failure to prosecute. We affirm.\nI.\nGarland, represented by Charles Hicks and Charla Tindall, filed this diversity action on March 21, 1991, alleging that Dr. Peebles had negligently failed to diagnose and treat her breast cancer. Garland’s complaint stated that she visited Dr. Peebles in Nashville, Arkansas, for a routine gynecological and breast examination in October 1985. At that time, Dr. Peebles detected a lump in Garland’s left breast. In December 1985, Garland underwent a mammogram to determine the presence of cancerous tissue. Garland alleged that Dr. Peebles advised her that the mammogram indicated that she had fibrocystic disease of the breast, a non-cancerous condition. She fui’ther alleged that Dr. Pee-bles told her that the lump represented no real danger and could be reduced by her reducing her intake of caffeine. She stated that she continued to consult Dr. Peebles about the lump until April or May 1986 and that he continued to tell her not to be concerned.\nUpon moving to Dallas, Texas, Garland consulted Dr. David Bookout in February 1987. Garland alleged that Dr. Bookout noticed the same lump that Dr. Peebles had detected. Dr. Bookout referred Garland to Linda Frame, R.N., director of the Griffiths Hale Breast Center at the Presbyterian Hospital in Dallas, for a mammogram. The mammogram indicated that the lump was cancerous. In April 1987, Garland underwent surgery to remove the cancer. In December 1990, however, Garland learned that her breast cancer had reoccurred, and in January 1991 she underwent a mastectomy. Following her mastectomy, Garland’s physicians informed her that the cancer had spread and was incurable.\nThis case was initially set for trial on March 23, 1992. On February 7, 1992, Garland moved for a continuance. The court granted the motion and reset the trial for June 22, 1992. Upon request by both parties, the court once again continued the case and rescheduled the trial for August 17,1992. Again upon the request of both parties, the court continued the case for a third time on August 14 and reset the trial for the week of November 2, 1992.\nOn September 28, 1992, Garland’s attorney Hicks filed a motion to withdraw his firm from the case. On September 30, Hicks filed a supplemental motion to withdraw, which stated that his firm could not present Garland’s case consistent with her desires or understanding of the underlying facts. Additionally, the motion stated that this conflict had created a dilemma, making it impossible for Hicks’s firm to go forward without creating further conflicting circumstances.\nOn September 30, the district court initiated a telephone conference call with Hicks and counsel for Dr. Peebles. Hicks informed the court that he had been aware of the facts constituting his asserted conflict since June 1992. He further stated that discovery was far from complete and that if he was to continue as counsel, he could not be ready for trial by November 2.\nIn an order filed October 9,1992, the court first refused to grant a continuance. The court noted that the case had been filed more than eighteen months earlier and already had been set for trial several times. The court also denied Hicks’s motion to withdraw as counsel of record. . Based on Hicks’s comments, the court was unpersuaded that Hicks had an insurmountable conflict that would prevent him from proceeding with the trial on November 2. Nonetheless, the court stated that if and when Hicks or Garland secured new counsel who could assure the court that the case would be ready for trial within ninety days of the court’s order, the court would reconsider Hicks’s motion to withdraw and address a motion for continuance.\nOn October 27, 1992, Garland moved to add William Wilson and Gary Corum as additional counsel of record. The motion stated that Wilson and Corum had accepted representation knowing that the trial had been scheduled for the week of November 2. The court took no formal action on this motion, and Hicks did not renew his motion to withdraw.\nThe trial was ultimately scheduled to begin November 4, 1992. On the morning of November 4, Garland’s attorneys Corum, Wilson, Tindall, and Wayne Dowd requested a hearing to present a motion to withdraw as counsel for Garland. At the hearing, they stated that certain evidence, discovered only the previous night, made it impossible for them, as a matter of professional ethics, to proceed with the case as counsel for Garland. Based on the attorney-client privilege, all counsel declined to divulge the precise reason for their motion. They further stated that Garland had objected to their decision and had requested that they ask the court to allow her to speak privately with the court. Dr. Peebles responded with a motion to dismiss for failure to prosecute.\nThe court granted the attorneys’ motion to withdraw. Considering the peculiar circumstances of the case, the court also decided to honor Garland’s request for an ex parte conference with the court. Dr. Peebles renewed his motion to dismiss for failure to prosecute. The court took the motion under advisement pending the interview with Garland.\nBecause Hicks was still an attorney of record for Garland, the court notified Hicks that it intended to confer with Garland. Hicks then renewed his motion to withdraw. The court denied the motion because its preconditions for consideration of such a motion had not been fulfilled.\nThe court met with Garland in the afternoon on November 4. The court began the conference by explaining certain ground rules. It informed Garland that she would be placed under oath, that the proceeding would be recorded by the court reporter, and that the court reserved the right to reveal the contents of the conference to Dr. Peebles, his attorneys, and all other attorneys involved in the case. Garland agreed to proceed under these rules.\nDuring her conversation with the court, Garland disclosed the nature of the ethical conflict that had first developed with Hicks and then with her new attorneys. She explained that Hicks’s motion to withdraw was prompted by her refusal to admit that she had lied to Dr. Bookout, whose office notes reflected that Garland told him that the lump in her breast had been present for two months when she visited him in February 1987. In Hicks’ opinion, these notes either contradicted Garland’s allegations that the lump had been present since she saw Dr. Peebles eighteen months earlier or indicated that she lied to Dr. Bookout about how long the lump had been there. To present Garland’s case in an ethical manner and to have a chance of winning, Hicks had advised Garland that she would have to admit that she lied to Dr. Bookout because she was worried about her medical expenses being covered by insurance.\nFurther, Garland told the court that two nights before trial was to begin her new attorneys had been presented with additional evidence regarding the same ethical conflict that had confronted Hicks. This evidence consisted of a report from Ms. Frame that indicated that the lump had been present for two months when Ms. Frame interviewed Garland in March 1987. Garland’s new attorneys informed her that the report either corroborated Dr. Peebles’s defense that Garland had told him the lump had disappeared or indicated that Garland had lied for insurance purposes.\nIn an order filed November 18, 1992, the district court found that Garland had revealed no information in the ex parte conference that cast doubt upon the propriety of her attorneys’ request to withdraw. The court also found that Garland had not revealed anything to persuade the court to continue the case. Considering the case’s history, the court determined that a continuance would not ensure that Garland would be ready for trial in the foreseeable future. The court stated that any further delay would work an unduly prejudicial hardship on Dr. Peebles. Accordingly, the court granted Dr. Peebles’s motion to dismiss Garland’s complaint with prejudice for failure to prosecute.\nII.\nOn appeal, Garland, still represented by the Hicks law firm, argues that the district court erred in dismissing her case for failure to prosecute. She contends that she did not engage in conduct that warranted such a dismissal. She argues that once the district court permitted her attorneys to withdraw, the court should have either called the case for trial, allowing her to proceed pro se, or continued the case.\nA dismissal for failure to prosecute is proper when there has been “a clear record of delay or contumacious conduct by the plaintiff.” Brown v. Frey, 806 F.2d 801, 803 (8th Cir.1986). We review a district court’s dismissal for failure to prosecute under the abuse of discretion standard. See, e.g., Du-Bose v. Minnesota, 893 F.2d 169, 171 (8th Cir.1990). In reviewing a district court’s decision, we balance the court’s need to advance a crowded docket versus the consequences of denying a plaintiff his day in court. See, e.g., Brown, 806 F.2d at 804 (citing Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir.1976)). We consider the nature of the conduct that prompted the dismissal and the adverse impact of such conduct upon both the defendant and the administration of justice in the district court. Id. We also consider the availability of other less severe options. See, e.g., Pardee v. Stock, 712 F.2d 1290, 1292 (8th Cir.1983) (citing St. Louis Music Supply, 539 F.2d at 1193).\nGiven the unusual circumstances of this case, we hold that the district court did not abuse its discretion by dismissing Garland’s complaint. Garland engaged in conduct that prevented this case from going to trial. She created an ethical conflict that forced her attorneys to request to withdraw from her case. Against the advice of her attorneys, she refused to admit that she had lied to Dr. Bookout and Ms. Frame. By insisting that her case be tried in a manner that five attorneys found unethical, Garland was directly responsible for her case not going to trial on its scheduled trial date.\nThe court did not err by not allowing Garland to try her case pro se. Garland was extremely ill on the day trial was to begin (indeed, too ill to come to the courtroom that morning), so permitting her to proceed pro se was not a realistic option.\nLikewise, the court did not err by not continuing the case. This action had been filed more than eighteen months earlier and had been continued several times. Even if the district court had granted another continuance, it is far from certain that the case would ever have gone to trial. During her conference with the court, Garland indicated that she was unwilling to change her mind concerning what she had told Dr. Bookout and Ms. Frame. A continuance would merely have given Garland more time to seek an attorney who would present her ease in the manner she desired. Because five attorneys had found that they could not ethically present the case as Garland wanted it presented, it is highly unlikely that Garland could have found an attorney to present her case as she wanted it tried. Even if Garland could have succeeded in this task, her new attorney would not have been ready for trial for at least several months. As the district court properly recognized, another continuance would have prolonged Dr. Peebles’s hardship after he and his attorneys had worked diligently to be ready for trial.\nAccordingly, the dismissal with prejudice for failure to prosecute is affirmed.\n. The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas.\n[END_CASE]", "role": "user" } ]
10,513,515	The SECURITY BANK OF MARSHALLTOWN, IOWA, a Creditor of Robert V. Brown and Sue A. Brown, Debtors, Appellant, v. Donald F. NEIMAN, Appellee	Security Bank of Marshalltown v. Newman	1993-08-02	No. 92-3443	United States Court of Appeals for the Eighth Circuit	{"judges": ["Before McMILLIAN and BEAM, Circuit Judges, and SACHS, Senior District Judge."], "parties": ["The SECURITY BANK OF MARSHALLTOWN, IOWA, a Creditor of Robert V. Brown and Sue A. Brown, Debtors, Appellant, v. Donald F. NEIMAN, Appellee."], "opinions": [{"text": "McMILLIAN, Circuit Judge.\nThis is an appeal from a final order entered in the United States District Court for the Southern District of Iowa affirming an order entered in the United States Bankruptcy Court for the Southern District of Iowa overruling appellant’s objection to the trustee’s distribution of funds. Security Bank of Marshalltown, Iowa (appellant), objected to the trustee’s decision to treat certain post-petition debts as Chapter 13 administrative fees and expenses, thereby giving those debts a higher priority than the debt owed to appellant. For reversal, appellant argues the post-petition debts are not entitled to administrative claim status and that the bankruptcy court erred in refusing to subordinate the post-petition debts to that owed to appellant. We affirm the order of the district court.\nI.\nThe underlying facts are not disputed. Robert V. and Susan A. Brown (debtors), were farmers engaged in raising and selling hogs. On December 27, 1982, they filed a Chapter 13 bankruptcy petition. At that time their debt owed to appellant was $323,-645.52; however, the collateral securing the debt, primarily their hog herd and various notes, was valued at only $151,745.60. Debtors’ Chapter 13 plan divided appellant’s claim into secured and unsecured portions and was confirmed in August 1983. The allowed secured portion of appellant’s claim, $168,-840.01, was originally to be paid over 5 years, but the period was later shortened to 3 years. The remaining unsecured portion of appellant’s claim, $154,805.51, was to be paid off at the same rate as other unsecured creditors — 44.5<f per dollar.\nThe secured portion of appellant’s claim was fully paid off under the Chapter 13 plan and appellant was directed by the bankruptcy court to release its lien on debtors’ assets which primarily consisted of their hog herd. In re Brown, No. 82-1857-C, slip op. at 3 (Bankr.S.D.Iowa Oct. 7, 1986) (Brown). Appellant objected, but the bankruptcy court ordered the release of the lien in order to protect all the unsecured creditors in the event debtors converted their Chapter 13 bankruptcy proceeding to Chapter 7. Id. at 6. The bankruptcy court provided that any new lien placed on the property formerly securing appellant’s claim was to be “subordinated to a claim in favor of the estate” pursuant to 11 U.S.C. § 510(c) (1988) in the event the case was converted from Chapter 13 to Chapter 7. Id.\nDuring the pendency of their Chapter 13 proceedings, debtors were allowed to continue farming and as a result incurred more debts. When appellant’s lien was removed from the herd of hogs, debtors sold the hogs for fair market value and used the proceeds to pay some of their post-petition creditors. Debtors then converted to a Chapter 7 bankruptcy proceeding. The Chapter 7 trustee brought adversary proceedings against these post-petition creditors to recover the payments they received as preferential transfers under 11 U.S.C. § 547(b). The bankruptcy court employed § 547(c)(2), to allow a preference exception for payments made in the ordinary course of business within 45 days before the date of conversion to Chapter 7.\nThe adversary proceedings were settled by allowing the post-petition creditors to retain any monies received in the ordinary course of business within the 45-day exception. As a result, the trustee holds some $43,000.00, which he proposed to distribute by paying first the Chapter 7 administrative fees and expenses and then the Chapter 13 administrative fees and expenses, including the payments to the post-petition creditors as costs of preserving the estate under 11 U.S.C. § 503(b)(1)(A). Because of the limited assets, this meant appellant and other unsecured creditors would receive nothing because the administrative expense claims would be accorded a higher priority than appellant’s unsecured claim pursuant to 11 U.S.C. § 507. Appellant filed an objection to the trustee’s proposal.\nThe bankruptcy cohrt decided that the claims were entitled to administrative claim status under 11 U.S.C. § 503(b)(1)(A). Brown, slip op. at 6. The bankruptcy court noted that appellant’s only argument was that the costs and expenses at issue were not necessary to preserve the estate because the estate ceased to exist upon confirmation of the Chapter 13 plan. Id. Appellant did not address whether the costs and expenses were necessary to the preservation of the estate should the bankruptcy court hold the estate continued to exist after confirmation of the plan. Id. at 7.\nThe bankruptcy court decided that the Chapter 13 estate continued to exist after confirmation of the plan. The bankruptcy court thus allowed payment to the post-petition creditors as Chapter 13 administrative expense claims. Id. Appellant appealed to the district court, which affirmed the decision of the bankruptcy court. This appeal followed.\nII.\nThe only issue before this court is whether the Chapter 13 estate existed after confirmation of the Chapter 13 plan, which is when the debts were incurred. A survey of the cases addressing this issue reveals that there is a split in authority about whether a bankruptcy estate continues to exist after confirmation of a Chapter 13 plan. We start by agreeing with In re Clark, 71 B.R. 747, 749 (Bankr.E.D.Pa.1987), that “[w]e must confess that we find neither § 1327(b) or § 1306 to be models of clarity.”\nThere is a tension between these two sections. Section 1306 provides that property of the estate includes all property the debtor acquires after commencement of the case but before the case is closed, dismissed, or converted. Section 1327(b) provides that upon confirmation of a plan under Chapter 13, all property of the estate is vested in the debtor. Courts differ based on their interpretation of 11 U.S.C. § 1306 and 11 U.S.C. § 1327. One line of cases holds that the Chapter 13 estate exists after confirmation and includes the debtor’s property and earnings dedicated to the fulfillment of the Chapter 13 plan. E.g.; In re Price, 130 B.R. 259, 269 (N.D.Ill.1991); In re Root, 61 B.R. 984, 985 (Bankr.D.Colo. 1986). A second line of cases, however, holds that unless the Chapter 13 plan provides otherwise, confirmation of the Chapter 13 plan vests all property of the Chapter 13 estate in the debtor, ending the estate at that time. E.g., In re Petruccelli, 113 B.R. 5, 16 (Bankr.S.D.Cal.1990); In re Mason, 45 B.R. 498, 500 (Bankr.D.Or.1984), aff'd, 51 B.R. 548, 550 (D.Or.1985).\nAppellant argues the better-reasoned position is that the Chapter 13 estate ceases to exist following confirmation of the plan. Appellant contends that, according to 11 U.S.C. § 1327(b), confirmation of the Chapter 13 plan vests property of the Chapter 13 estate in the debtor making such property “property of the debtor” and terminating the estate, unless the order of confirmation provides otherwise. Appellant argues that any other interpretation would make 11 U.S.C. § 1327(b) meaningless. Therefore, appellant argues that because no estate existed, the post-petition debts cannot be entitled to priority as Chapter 13 administrative expenses.\nThe trustee argues the bankruptcy court recognized the existence of'a split of authorities and properly sided with the line of cases holding that the bankruptcy estate continues to exist following confirmation of the plan. The trustee contends that so long as the estate continued to exist, the claims in question were administrative expenses of preserving the estate, and are entitled to administrative priority. In addition, the trustee argues there would be no equity in failing to pay the post-petition creditors, who extended credit to debtors to further their attempts to keep their business going.\nMost of the cases in this area have addressed either whether a debtor’s earnings can be reached by creditors after confirmation or whether the automatic stay of 11 U.S.C. § 362 remains in effect post-confirmation. E.g., In re Clark, 71 B.R. 747, 749 (Bankr.E.D.Pa.1987); In re Adams, 12 B.R. 540, 541-42 (Bankr.D.Utah 1981). In an effort to balance the effect of § 1327(b) against the interests of the debtor, the court in In re Adams classified post-confirmation assets as “property of the estate” or “property of the debtor” depending on whether the assets were dedicated to fulfilling the Chapter 13 plan. 12 B.R. at 541. In re Adams presumed the Chapter 13 estate survived after confirmation, and the only issue was what the estate included and what was protected by the stay. That is not the issue in the present case — we must determine if an estate exists post-confirmation.\nAlthough this issue was presented to this court in Laughlin v. United States IRS, 912 F.2d 197 (8th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991), the court resolved that case without addressing the issue. Judge Magill in dissent noted that the majority declined to “consider this issue, reasoning that the precise terms Congress used in § 362(a) are irrelevant because ... the IRS levy does not interfere with the general purpose of the stay.” Id. at 200. The dissent outlined the precedent addressing this issue and found the cases holding the estate continues to exist following confirmation to be “more persuasive.” Id. at 202. We agree.\nWe join the line of cases holding the estate continues to exist after confirmation of the Chapter 13 plan. Upon reviewing § 1327 regarding the effect of confirmation, even if property of the estate vests in the debtor at confirmation, that does not necessarily mean that the estate no longer exists. The estate can continue to exist as a legal entity after confirmation even if it holds no property. Several sections of the bankruptcy code support our view that the estate continues to exist after confirmation. Section 1322(a)(1) provides for “supervision and control” by the trustee over monies and property of the estate committed to the plan. In addition, the trustee is authorized to deposit or invest money of the estate pursuant to 11 U.S.C. § 345, and 11 U.S.C. § 347(a) provides that the trustee shall stop payment on any unpaid cheeks 90 days after the final distribution and the remaining property of the estate is to be paid into the court. Section 704(9), made applicable to Chapter 13 by 11 U.S.C. § 1302(b)(1), requires the trustee to make a final report and file a final account of the “administration of the estate.” Finally, 11 U.S.C. § 349(b)(3) states that ■ unless the court orders otherwise, dismissal of a Chapter 13 case “revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case.” These sections support the position that the estate continues to exist after confirmation of a Chapter 13 plan.\nAs noted by the court in In re Root:\n[i]f there is no existing estate upon confirmation, then what does the Chapter 13 Trustee administer? If there is no estate over which the Chapter 13 Trustee has control, then that Trustee is nothing more than an officious intermeddler. Even 11 U.S.C. § 704(9) ... provides that the Trustee shall “... make a final report and file a final account of the administration of the estate with the court.” There must be an “estate” upon and after confirmation, and that estate consists of the property and future earnings of the debtor dedicated to fulfillment of the Chapter 13 plan.\n61 B.R. at 985.\nWe think that the opposing line of cases is “premised upon the mistaken belief that re-vesting under § 1327(b) transforms property of the estate into property of the debtor.” In re Aneiro, 72 B.R. 424, 428-29 (Bankr.S.D.Cal.1987). The Aneiro court further stated:\nthe clear language of § 1306 demonstrates that confirmation of a Chapter 13 plan is not relevant to determining whether property is or is not property of the estate. The relevant events in this determination are commencement of the ease and either dismissal, closing or conversion of the case. If Congress had intended for confirmation to so dramatically affect the expansive definition of property of the estate found in § 1306, it knew how to draft such a provision.\nId. at 429. We agree.\nFor example, Congress did intend for confirmation to so affect property of the estate in Chapter 11 bankruptcy proceedings. Confirmation of a plan under Chapter 11 vests all property of the estate in the debtor under 11 U.S.C. § 1141(b). However, confirmation of a plan in Chapter 11 also acts as a discharge of the case, thus ending the automatic stay provided for in 11 U.S.C. § 362. 11 U.S.C. § 1141(d). That is not the effect of confirmation in a Chapter 13 case.\nIII.\nThe-post-petition debts in the present case were incurred for feed and veterinary services for debtors’ hog herd and should be considered administrative expenses necessary to preserve the estate pursuant to § 503(b)(1)(A). These post-petition debts were not unauthorized borrowing by debtors; rather, these transactions were in the ordinary course of business and were necessary to preserve debtors’ principal asset, their hog herd. Therefore, we hold the bankruptcy court was correct in finding the Chapter 13 estate continued post-confirmation and in classifying the post-petition debts as administrative expenses entitled to priority under § 507(a)(1).\nAccordingly, the order of the district court is affirmed.\n.Honorable Harold D. Victor, District Judge, United States District Court for the Southern District of Iowa.\n. Honorable Russell J. Hill, Bankruptcy Judge, United States Bankruptcy Court for the Southern District of Iowa.\n. All statutory references to 11 U.S.C. are from the 1988 edition.\n. Neiman v. Brown, Adversary Proceeding No. 87-0109 (Bankr.S.D.Iowa, filed Nov. 7, 1988).\n. This court addressed similar issues in In re Lindberg, 735 F.2d 1087 (8th Cir.1984) (Lindberg), and Resendez v. Lindquist, 691 F.2d 397 (8th Cir.1982) (Resendez). Lindberg dealt with a conversion from Chapter 13 to Chapter 7, but the sole issue in that case was whether the debtors could claim a different homestead exemption at the time of conversion than the one they originally designated at the commencement of their Chapter 13 proceedings. Resendez addressed whether a debtor could exempt undistributed funds turned over by the Chapter 13 trustee to the Chapter 7 trustee upon conversion.\nThe court in Lindberg held the debtors could change their homestead because in Chapter 13 there are no true exemptions because the debtor remains in possession of his property. The “Chapter 13 statement” filed by the debtors listed their assets and liabilities and designated what exemptions they would claim if they had to liquidate their estate. The purpose of making such a statement is only to permit creditors to determine whether the Chapter 13 plan should be accepted, and for the court to determine in confirming the plan if the creditors are receiving more under the plan than they would in a Chapter 7 liquidation. Id. 735 F.2d at 1089.\nFollowing this discussion the court in Lindberg made the statement that \"when there is confirmation, ... of a chapter 13 plan, the confirmation of the plan vests all of the property of the estate in the debtor free and clear of any claim or interest of any creditor provided for by the plan unless the plan provides otherwise.” Id. This statement was not made as part of the holding of the case; rather, its purpose was to explain that in Chapter 13 there are no exemptions, in contrast to Chapter 7 where the debtor may exempt from the property of the estate.\nThe court in Lindberg was not attempting to address the larger issue with which we are faced, because the court did not refer to Resendez which supports our holding in the present case. The court in Resendez held that undistributed funds in the possession of a Chapter 13 trustee after confirmation of the plan are property of the Chapter 13 estate; therefore, the funds would become part of the Chapter 7 estate upon conversion and could not be exempted. Id. 691 F.2d at 399. The court found the funds were voluntarily paid to the Chapter 13 trustee; therefore, \"[tjhese funds no longer belonged to the debtor, but became part of their estate.” Id. This result is consistent with the holding of In re Nash, 765 F.2d 1410, 1412, 1414 (9th Cir.1985), and supports our present holding that an estate continues to exist after confirmation of a Chapter 13 plan.", "type": "majority", "author": "McMILLIAN, Circuit Judge."}], "attorneys": ["James L. Goodman, Marshalltown, IA, argued, for appellant.", "David J. Lynch, Des Moines, IA, argued, for appellee."], "corrections": "", "head_matter": "The SECURITY BANK OF MARSHALLTOWN, IOWA, a Creditor of Robert V. Brown and Sue A. Brown, Debtors, Appellant, v. Donald F. NEIMAN, Appellee.\nNo. 92-3443.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted April 15, 1993.\nDecided Aug. 2, 1993.\nJames L. Goodman, Marshalltown, IA, argued, for appellant.\nDavid J. Lynch, Des Moines, IA, argued, for appellee.\nBefore McMILLIAN and BEAM, Circuit Judges, and SACHS, Senior District Judge.\nThe Honorable Howard F. Sachs, Senior United States District Judge for the Western District of Missouri, sitting by designation."}	McMILLIAN	BEAM	SACHS	1	1	1	0	0	0	1 F.3d 687	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: The SECURITY BANK OF MARSHALLTOWN, IOWA, a Creditor of Robert V. Brown and Sue A. Brown, Debtors, Appellant, v. Donald F. NEIMAN, Appellee\nCourt: United States Court of Appeals for the Eighth Circuit\nDate decided: 1993-08-02\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nMcMILLIAN, Circuit Judge.\nThis is an appeal from a final order entered in the United States District Court for the Southern District of Iowa affirming an order entered in the United States Bankruptcy Court for the Southern District of Iowa overruling appellant’s objection to the trustee’s distribution of funds. Security Bank of Marshalltown, Iowa (appellant), objected to the trustee’s decision to treat certain post-petition debts as Chapter 13 administrative fees and expenses, thereby giving those debts a higher priority than the debt owed to appellant. For reversal, appellant argues the post-petition debts are not entitled to administrative claim status and that the bankruptcy court erred in refusing to subordinate the post-petition debts to that owed to appellant. We affirm the order of the district court.\nI.\nThe underlying facts are not disputed. Robert V. and Susan A. Brown (debtors), were farmers engaged in raising and selling hogs. On December 27, 1982, they filed a Chapter 13 bankruptcy petition. At that time their debt owed to appellant was $323,-645.52; however, the collateral securing the debt, primarily their hog herd and various notes, was valued at only $151,745.60. Debtors’ Chapter 13 plan divided appellant’s claim into secured and unsecured portions and was confirmed in August 1983. The allowed secured portion of appellant’s claim, $168,-840.01, was originally to be paid over 5 years, but the period was later shortened to 3 years. The remaining unsecured portion of appellant’s claim, $154,805.51, was to be paid off at the same rate as other unsecured creditors — 44.5<f per dollar.\nThe secured portion of appellant’s claim was fully paid off under the Chapter 13 plan and appellant was directed by the bankruptcy court to release its lien on debtors’ assets which primarily consisted of their hog herd. In re Brown, No. 82-1857-C, slip op. at 3 (Bankr.S.D.Iowa Oct. 7, 1986) (Brown). Appellant objected, but the bankruptcy court ordered the release of the lien in order to protect all the unsecured creditors in the event debtors converted their Chapter 13 bankruptcy proceeding to Chapter 7. Id. at 6. The bankruptcy court provided that any new lien placed on the property formerly securing appellant’s claim was to be “subordinated to a claim in favor of the estate” pursuant to 11 U.S.C. § 510(c) (1988) in the event the case was converted from Chapter 13 to Chapter 7. Id.\nDuring the pendency of their Chapter 13 proceedings, debtors were allowed to continue farming and as a result incurred more debts. When appellant’s lien was removed from the herd of hogs, debtors sold the hogs for fair market value and used the proceeds to pay some of their post-petition creditors. Debtors then converted to a Chapter 7 bankruptcy proceeding. The Chapter 7 trustee brought adversary proceedings against these post-petition creditors to recover the payments they received as preferential transfers under 11 U.S.C. § 547(b). The bankruptcy court employed § 547(c)(2), to allow a preference exception for payments made in the ordinary course of business within 45 days before the date of conversion to Chapter 7.\nThe adversary proceedings were settled by allowing the post-petition creditors to retain any monies received in the ordinary course of business within the 45-day exception. As a result, the trustee holds some $43,000.00, which he proposed to distribute by paying first the Chapter 7 administrative fees and expenses and then the Chapter 13 administrative fees and expenses, including the payments to the post-petition creditors as costs of preserving the estate under 11 U.S.C. § 503(b)(1)(A). Because of the limited assets, this meant appellant and other unsecured creditors would receive nothing because the administrative expense claims would be accorded a higher priority than appellant’s unsecured claim pursuant to 11 U.S.C. § 507. Appellant filed an objection to the trustee’s proposal.\nThe bankruptcy cohrt decided that the claims were entitled to administrative claim status under 11 U.S.C. § 503(b)(1)(A). Brown, slip op. at 6. The bankruptcy court noted that appellant’s only argument was that the costs and expenses at issue were not necessary to preserve the estate because the estate ceased to exist upon confirmation of the Chapter 13 plan. Id. Appellant did not address whether the costs and expenses were necessary to the preservation of the estate should the bankruptcy court hold the estate continued to exist after confirmation of the plan. Id. at 7.\nThe bankruptcy court decided that the Chapter 13 estate continued to exist after confirmation of the plan. The bankruptcy court thus allowed payment to the post-petition creditors as Chapter 13 administrative expense claims. Id. Appellant appealed to the district court, which affirmed the decision of the bankruptcy court. This appeal followed.\nII.\nThe only issue before this court is whether the Chapter 13 estate existed after confirmation of the Chapter 13 plan, which is when the debts were incurred. A survey of the cases addressing this issue reveals that there is a split in authority about whether a bankruptcy estate continues to exist after confirmation of a Chapter 13 plan. We start by agreeing with In re Clark, 71 B.R. 747, 749 (Bankr.E.D.Pa.1987), that “[w]e must confess that we find neither § 1327(b) or § 1306 to be models of clarity.”\nThere is a tension between these two sections. Section 1306 provides that property of the estate includes all property the debtor acquires after commencement of the case but before the case is closed, dismissed, or converted. Section 1327(b) provides that upon confirmation of a plan under Chapter 13, all property of the estate is vested in the debtor. Courts differ based on their interpretation of 11 U.S.C. § 1306 and 11 U.S.C. § 1327. One line of cases holds that the Chapter 13 estate exists after confirmation and includes the debtor’s property and earnings dedicated to the fulfillment of the Chapter 13 plan. E.g.; In re Price, 130 B.R. 259, 269 (N.D.Ill.1991); In re Root, 61 B.R. 984, 985 (Bankr.D.Colo. 1986). A second line of cases, however, holds that unless the Chapter 13 plan provides otherwise, confirmation of the Chapter 13 plan vests all property of the Chapter 13 estate in the debtor, ending the estate at that time. E.g., In re Petruccelli, 113 B.R. 5, 16 (Bankr.S.D.Cal.1990); In re Mason, 45 B.R. 498, 500 (Bankr.D.Or.1984), aff'd, 51 B.R. 548, 550 (D.Or.1985).\nAppellant argues the better-reasoned position is that the Chapter 13 estate ceases to exist following confirmation of the plan. Appellant contends that, according to 11 U.S.C. § 1327(b), confirmation of the Chapter 13 plan vests property of the Chapter 13 estate in the debtor making such property “property of the debtor” and terminating the estate, unless the order of confirmation provides otherwise. Appellant argues that any other interpretation would make 11 U.S.C. § 1327(b) meaningless. Therefore, appellant argues that because no estate existed, the post-petition debts cannot be entitled to priority as Chapter 13 administrative expenses.\nThe trustee argues the bankruptcy court recognized the existence of'a split of authorities and properly sided with the line of cases holding that the bankruptcy estate continues to exist following confirmation of the plan. The trustee contends that so long as the estate continued to exist, the claims in question were administrative expenses of preserving the estate, and are entitled to administrative priority. In addition, the trustee argues there would be no equity in failing to pay the post-petition creditors, who extended credit to debtors to further their attempts to keep their business going.\nMost of the cases in this area have addressed either whether a debtor’s earnings can be reached by creditors after confirmation or whether the automatic stay of 11 U.S.C. § 362 remains in effect post-confirmation. E.g., In re Clark, 71 B.R. 747, 749 (Bankr.E.D.Pa.1987); In re Adams, 12 B.R. 540, 541-42 (Bankr.D.Utah 1981). In an effort to balance the effect of § 1327(b) against the interests of the debtor, the court in In re Adams classified post-confirmation assets as “property of the estate” or “property of the debtor” depending on whether the assets were dedicated to fulfilling the Chapter 13 plan. 12 B.R. at 541. In re Adams presumed the Chapter 13 estate survived after confirmation, and the only issue was what the estate included and what was protected by the stay. That is not the issue in the present case — we must determine if an estate exists post-confirmation.\nAlthough this issue was presented to this court in Laughlin v. United States IRS, 912 F.2d 197 (8th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991), the court resolved that case without addressing the issue. Judge Magill in dissent noted that the majority declined to “consider this issue, reasoning that the precise terms Congress used in § 362(a) are irrelevant because ... the IRS levy does not interfere with the general purpose of the stay.” Id. at 200. The dissent outlined the precedent addressing this issue and found the cases holding the estate continues to exist following confirmation to be “more persuasive.” Id. at 202. We agree.\nWe join the line of cases holding the estate continues to exist after confirmation of the Chapter 13 plan. Upon reviewing § 1327 regarding the effect of confirmation, even if property of the estate vests in the debtor at confirmation, that does not necessarily mean that the estate no longer exists. The estate can continue to exist as a legal entity after confirmation even if it holds no property. Several sections of the bankruptcy code support our view that the estate continues to exist after confirmation. Section 1322(a)(1) provides for “supervision and control” by the trustee over monies and property of the estate committed to the plan. In addition, the trustee is authorized to deposit or invest money of the estate pursuant to 11 U.S.C. § 345, and 11 U.S.C. § 347(a) provides that the trustee shall stop payment on any unpaid cheeks 90 days after the final distribution and the remaining property of the estate is to be paid into the court. Section 704(9), made applicable to Chapter 13 by 11 U.S.C. § 1302(b)(1), requires the trustee to make a final report and file a final account of the “administration of the estate.” Finally, 11 U.S.C. § 349(b)(3) states that ■ unless the court orders otherwise, dismissal of a Chapter 13 case “revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case.” These sections support the position that the estate continues to exist after confirmation of a Chapter 13 plan.\nAs noted by the court in In re Root:\n[i]f there is no existing estate upon confirmation, then what does the Chapter 13 Trustee administer? If there is no estate over which the Chapter 13 Trustee has control, then that Trustee is nothing more than an officious intermeddler. Even 11 U.S.C. § 704(9) ... provides that the Trustee shall “... make a final report and file a final account of the administration of the estate with the court.” There must be an “estate” upon and after confirmation, and that estate consists of the property and future earnings of the debtor dedicated to fulfillment of the Chapter 13 plan.\n61 B.R. at 985.\nWe think that the opposing line of cases is “premised upon the mistaken belief that re-vesting under § 1327(b) transforms property of the estate into property of the debtor.” In re Aneiro, 72 B.R. 424, 428-29 (Bankr.S.D.Cal.1987). The Aneiro court further stated:\nthe clear language of § 1306 demonstrates that confirmation of a Chapter 13 plan is not relevant to determining whether property is or is not property of the estate. The relevant events in this determination are commencement of the ease and either dismissal, closing or conversion of the case. If Congress had intended for confirmation to so dramatically affect the expansive definition of property of the estate found in § 1306, it knew how to draft such a provision.\nId. at 429. We agree.\nFor example, Congress did intend for confirmation to so affect property of the estate in Chapter 11 bankruptcy proceedings. Confirmation of a plan under Chapter 11 vests all property of the estate in the debtor under 11 U.S.C. § 1141(b). However, confirmation of a plan in Chapter 11 also acts as a discharge of the case, thus ending the automatic stay provided for in 11 U.S.C. § 362. 11 U.S.C. § 1141(d). That is not the effect of confirmation in a Chapter 13 case.\nIII.\nThe-post-petition debts in the present case were incurred for feed and veterinary services for debtors’ hog herd and should be considered administrative expenses necessary to preserve the estate pursuant to § 503(b)(1)(A). These post-petition debts were not unauthorized borrowing by debtors; rather, these transactions were in the ordinary course of business and were necessary to preserve debtors’ principal asset, their hog herd. Therefore, we hold the bankruptcy court was correct in finding the Chapter 13 estate continued post-confirmation and in classifying the post-petition debts as administrative expenses entitled to priority under § 507(a)(1).\nAccordingly, the order of the district court is affirmed.\n.Honorable Harold D. Victor, District Judge, United States District Court for the Southern District of Iowa.\n. Honorable Russell J. Hill, Bankruptcy Judge, United States Bankruptcy Court for the Southern District of Iowa.\n. All statutory references to 11 U.S.C. are from the 1988 edition.\n. Neiman v. Brown, Adversary Proceeding No. 87-0109 (Bankr.S.D.Iowa, filed Nov. 7, 1988).\n. This court addressed similar issues in In re Lindberg, 735 F.2d 1087 (8th Cir.1984) (Lindberg), and Resendez v. Lindquist, 691 F.2d 397 (8th Cir.1982) (Resendez). Lindberg dealt with a conversion from Chapter 13 to Chapter 7, but the sole issue in that case was whether the debtors could claim a different homestead exemption at the time of conversion than the one they originally designated at the commencement of their Chapter 13 proceedings. Resendez addressed whether a debtor could exempt undistributed funds turned over by the Chapter 13 trustee to the Chapter 7 trustee upon conversion.\nThe court in Lindberg held the debtors could change their homestead because in Chapter 13 there are no true exemptions because the debtor remains in possession of his property. The “Chapter 13 statement” filed by the debtors listed their assets and liabilities and designated what exemptions they would claim if they had to liquidate their estate. The purpose of making such a statement is only to permit creditors to determine whether the Chapter 13 plan should be accepted, and for the court to determine in confirming the plan if the creditors are receiving more under the plan than they would in a Chapter 7 liquidation. Id. 735 F.2d at 1089.\nFollowing this discussion the court in Lindberg made the statement that \"when there is confirmation, ... of a chapter 13 plan, the confirmation of the plan vests all of the property of the estate in the debtor free and clear of any claim or interest of any creditor provided for by the plan unless the plan provides otherwise.” Id. This statement was not made as part of the holding of the case; rather, its purpose was to explain that in Chapter 13 there are no exemptions, in contrast to Chapter 7 where the debtor may exempt from the property of the estate.\nThe court in Lindberg was not attempting to address the larger issue with which we are faced, because the court did not refer to Resendez which supports our holding in the present case. The court in Resendez held that undistributed funds in the possession of a Chapter 13 trustee after confirmation of the plan are property of the Chapter 13 estate; therefore, the funds would become part of the Chapter 7 estate upon conversion and could not be exempted. Id. 691 F.2d at 399. The court found the funds were voluntarily paid to the Chapter 13 trustee; therefore, \"[tjhese funds no longer belonged to the debtor, but became part of their estate.” Id. This result is consistent with the holding of In re Nash, 765 F.2d 1410, 1412, 1414 (9th Cir.1985), and supports our present holding that an estate continues to exist after confirmation of a Chapter 13 plan.\n[END_CASE]", "role": "user" } ]
10,513,602	UNITED STATES of America, Appellee, v. Jesse L. HALE, Appellant; UNITED STATES of America, Appellee, v. Adrian Cedrick WALLER, Appellant	United States v. Hale	1993-08-03	Nos. 93-1008, 93-1230	United States Court of Appeals for the Eighth Circuit	{"judges": ["Before WOLLMAN and LOKEN, Circuit Judges, and HUNTER, Senior District Judge."], "parties": ["UNITED STATES of America, Appellee, v. Jesse L. HALE, Appellant. UNITED STATES of America, Appellee, v. Adrian Cedrick WALLER, Appellant."], "opinions": [{"text": "WOLLMAN, Circuit Judge.\nJesse L. Hale appeals from his conviction in district court for carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Adrian C. Waller appeals from his sentence for distributing cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2. We affirm.\nI.\nOn the evening of March 30, 1992, St. Louis County police were investigating complaints of drug dealing in the Meacham Park area of St. Louis County. Detective Tommy Marr was the designated undercover buyer that night. Marr was backed up by a surveillance officer, Detective Kirk Lloyd, and an arrest team, which included Sergeant James Vollmar, Detective Robert Bayes, and Detective Michael Hutcherson.\nWhile driving an unmarked ear, Marr stopped alongside a curb and spoke with Waller about purchasing crack cocaine. After a brief conversation, Waller entered the car and directed Marr to a town house apartment. Upon arriving at the apartment, Waller waved over Hale and Junius Rucker, II, who were standing in front of the apartment. When Hale and Rucker arrived at the car, Rucker asked Marr what he wanted. Marr responded that he wanted to purchase two “twenty pieces.” (A twenty piece is a piece of crack cocaine that sells for twenty dollars.) Rucker then nodded to Hale, who exchanged with Marr two pieces of crack cocaine for forty dollars. Marr and Waller then left.\nDetective Lloyd observed the transaction from his surveillance position and listened to it through the body microphone worn by Marr. When the transaction had been completed, Lloyd directed Vollmar, Bayes, and Hutcherson to arrest Hale and Rucker. As the three officers moved in and identified themselves, Hale and Rucker began sprinting toward the apartment. Hale pulled a revolver from his waistband as he ran. The three officers followed Rucker and Hale into the apartment, which was occupied by several individuals. Upon entering the apartment, Hale threw the revolver onto a table, from which it fell to the floor. Officer Bayes tackled Hale and subdued him. After Hale had been controlled, Bayes picked up the gun, a loaded .38 caliber revolver. In the meantime, Vollmar followed Rucker to the upstairs area of the apartment and arrested him there.\nCount I of the grand jury’s indictment charged Hale, Waller, and Rucker with having distributed cocaine base; Count II charged that Hale had carried a firearm during a drug trafficking crime. Hale and Waller pled guilty to Count I. Hale and Rucker were then tried jointly before a jury, Rucker on Count I and Hale on Count II.\nTestifying on behalf of Hale and Rucker, the individuals present in the apartment when the police arrived related a somewhat different version of the events. According to them, Hale and Rucker were inside the apartment when Waller came to the apartment looking for Hale. Hale left the apartment for several minutes and then returned, followed by a police officer giving chase. The defense witnesses testified that they had not seen the gun in the apartment before Hale re-entered the apartment.\nThe jury acquitted Rucker and convicted Hale. The district court sentenced Hale to a twenty-four month prison term on the distribution charge and to a consecutive sixty month prison term on the firearms charge, to be followed by three years of supervised release.\nII.\nHale moved for a mistrial in response to the prosecutor’s statement during closing argument that two of the defense witnesses had lied about not speaking with other witnesses concerning their testimony. Contending that the prosecutor improperly stated his personal belief concerning the witnesses’ credibility, Hale argues that the district court erred in denying the motion for mistrial.\nWe review the district court’s denial of a motion for a mistrial under the abuse of discretion standard. See, e.g., United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985). To reverse a conviction for prosecutorial misconduct, we must find both that the prosecutor’s remarks were in fact improper and that they were so offensive as to deprive the defendant of a fair trial. Id. at 458, 460. In determining the effect of alleged prosecutorial misconduct, we typically examine three factors: (1) the cumulative effect of the misconduct; (2) the strength of the evidence against the defendant; and (3) the curative actions taken by the trial court. Id. at 460.\nApplying the foregoing factors, we conclude that the prosecutor’s remarks did not have a significant effect on the fairness of Hale’s trial. The challenged remarks were brief and relatively innocuous and concerned a collateral matter rather than the witnesses’ substantive testimony. The government’s evidence against Hale was substantial, if indeed not overwhelming. The district court’s jury instructions helped alleviate any potential prejudice from the prosecutor’s remarks by informing the jury that the evidence consisted only of the witnesses’ testimony and documents received into evidence and that attorney comments during closing argument were not evidence. The court also informed the jurors that they were the sole judges of witness credibility.\nHale also argues that the prosecutor improperly misstated the burden of proof during his closing argument. Because Hale did not object at trial to this portion of the prosecutor’s argument, we review only for plain error, Fed.R.Crim.P. 52(b); United States v. Burk, 912 F.2d 225, 229 (8th Cir.1990), and we find that the prosecutor’s argument did not rise to that level, if indeed it constituted error at all.\nIII.\nWe turn next to Waller’s appeal. On the basis of .33 grams of crack cocaine (the amount that Hale sold to Marr), Waller’s base offense level was 14. The district court granted Waller a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a). Based on a total offense level of 12 and a criminal history category of I, the court sentenced Waller to five months’ imprisonment, to be followed by five months in a community corrections center and three years of supervised release.\nWaller argues that the court erred by not granting him a two-level downward adjustment pursuant to section 3B1.2(b) for being a minor participant in the drug transaction. Waller contends that he was a minor participant because he acted merely as a “steerer,” an individual who directs a potential drug purchaser to a seller.\nThe commentary to the guidelines provides that a minor participant is “any participant who is less culpable than most other participants” in the criminal activity. § 3B1.2 comment. (n.3). Under the stipulated facts, the district court found that Waller was not less culpable than most other participants in the crime, Hale being the most culpable, Waller the next most culpable, and Rucker the least culpable. The court noted that the crime would not have occurred had Waller not directed Marr to Hale, the ultimate seller.\nWhether a defendant qualifies for a minor participant reduction is a question of fact, the determination of which we review for clear error. See, e.g., United States v. Harris, 974 F.2d 84, 86 (8th Cir.1992). Steerers play an important and critical role in the street-level drug trade, directing prospective buyers to sellers who wish to remain hidden from public view. See United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.1989) (discussing the role that steerers play in the drug market). Indeed, absent Waller’s role as a steerer in this case, the transaction between Marr and Hale would not have occurred. Waller brought a purchaser with a specific demand to a furtive seller who could fulfill that demand. Additionally, we note that Waller did more than inform Marr where he could purchase drugs. He entered Marr’s car, accompanied him to the apartment, and signaled for Hale and Rucker. Cf. United States v. Sostre, 967 F.2d 728, 732 (1st Cir.1992) (holding that the district court did not err in denying a minor participant reduction under similar facts). Last, we note that Waller’s sentence was calculated on the basis of the relatively small quantity of drugs sold in the transaction that he facilitated. Thus, this case is not one in which the defendant played a small role in a transaction involving a large amount of drugs. Under these facts, we find that the district court did not err in denying Waller a minor participant reduction.\nAccordingly, Hale’s conviction and Waller’s sentence are affirmed.\n. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.", "type": "majority", "author": "WOLLMAN, Circuit Judge."}], "attorneys": ["R. Thomas Day, St. Louis, MO, argued for appellant Hale.", "Joseph Cordell, St. Louis, MO, argued for appellant Waller.", "Richard Poehling, Asst. U.S. Atty., St. Louis, MO, argued, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Jesse L. HALE, Appellant. UNITED STATES of America, Appellee, v. Adrian Cedrick WALLER, Appellant.\nNos. 93-1008, 93-1230.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted June 16, 1993.\nDecided Aug. 3, 1993.\nR. Thomas Day, St. Louis, MO, argued for appellant Hale.\nJoseph Cordell, St. Louis, MO, argued for appellant Waller.\nRichard Poehling, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.\nBefore WOLLMAN and LOKEN, Circuit Judges, and HUNTER, Senior District Judge.\nThe HONORABLE ELMO B. HUNTER, Senior United States District Judge for the Western De-trict of Missouri, sitting by designation."}	WOLLMAN	LOKEN	HUNTER	1	1	1	0	0	0	1 F.3d 691	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as “the Court” and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- Due Process, Privacy (issue_area.code = 4 OR 5)\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- Unions, Economic Activity (issue_area.code = 7 OR 8)\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- Judicial Power (issue_area.code = 9)\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- Federalism (issue_area.code = 10)\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- Federal Taxation (issue_area.code = 12)\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe lower court’s outcome. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Jesse L. HALE, Appellant; UNITED STATES of America, Appellee, v. Adrian Cedrick WALLER, Appellant\nCourt: United States Court of Appeals for the Eighth Circuit\nDate decided: 1993-08-03\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nWOLLMAN, Circuit Judge.\nJesse L. Hale appeals from his conviction in district court for carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Adrian C. Waller appeals from his sentence for distributing cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2. We affirm.\nI.\nOn the evening of March 30, 1992, St. Louis County police were investigating complaints of drug dealing in the Meacham Park area of St. Louis County. Detective Tommy Marr was the designated undercover buyer that night. Marr was backed up by a surveillance officer, Detective Kirk Lloyd, and an arrest team, which included Sergeant James Vollmar, Detective Robert Bayes, and Detective Michael Hutcherson.\nWhile driving an unmarked ear, Marr stopped alongside a curb and spoke with Waller about purchasing crack cocaine. After a brief conversation, Waller entered the car and directed Marr to a town house apartment. Upon arriving at the apartment, Waller waved over Hale and Junius Rucker, II, who were standing in front of the apartment. When Hale and Rucker arrived at the car, Rucker asked Marr what he wanted. Marr responded that he wanted to purchase two “twenty pieces.” (A twenty piece is a piece of crack cocaine that sells for twenty dollars.) Rucker then nodded to Hale, who exchanged with Marr two pieces of crack cocaine for forty dollars. Marr and Waller then left.\nDetective Lloyd observed the transaction from his surveillance position and listened to it through the body microphone worn by Marr. When the transaction had been completed, Lloyd directed Vollmar, Bayes, and Hutcherson to arrest Hale and Rucker. As the three officers moved in and identified themselves, Hale and Rucker began sprinting toward the apartment. Hale pulled a revolver from his waistband as he ran. The three officers followed Rucker and Hale into the apartment, which was occupied by several individuals. Upon entering the apartment, Hale threw the revolver onto a table, from which it fell to the floor. Officer Bayes tackled Hale and subdued him. After Hale had been controlled, Bayes picked up the gun, a loaded .38 caliber revolver. In the meantime, Vollmar followed Rucker to the upstairs area of the apartment and arrested him there.\nCount I of the grand jury’s indictment charged Hale, Waller, and Rucker with having distributed cocaine base; Count II charged that Hale had carried a firearm during a drug trafficking crime. Hale and Waller pled guilty to Count I. Hale and Rucker were then tried jointly before a jury, Rucker on Count I and Hale on Count II.\nTestifying on behalf of Hale and Rucker, the individuals present in the apartment when the police arrived related a somewhat different version of the events. According to them, Hale and Rucker were inside the apartment when Waller came to the apartment looking for Hale. Hale left the apartment for several minutes and then returned, followed by a police officer giving chase. The defense witnesses testified that they had not seen the gun in the apartment before Hale re-entered the apartment.\nThe jury acquitted Rucker and convicted Hale. The district court sentenced Hale to a twenty-four month prison term on the distribution charge and to a consecutive sixty month prison term on the firearms charge, to be followed by three years of supervised release.\nII.\nHale moved for a mistrial in response to the prosecutor’s statement during closing argument that two of the defense witnesses had lied about not speaking with other witnesses concerning their testimony. Contending that the prosecutor improperly stated his personal belief concerning the witnesses’ credibility, Hale argues that the district court erred in denying the motion for mistrial.\nWe review the district court’s denial of a motion for a mistrial under the abuse of discretion standard. See, e.g., United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985). To reverse a conviction for prosecutorial misconduct, we must find both that the prosecutor’s remarks were in fact improper and that they were so offensive as to deprive the defendant of a fair trial. Id. at 458, 460. In determining the effect of alleged prosecutorial misconduct, we typically examine three factors: (1) the cumulative effect of the misconduct; (2) the strength of the evidence against the defendant; and (3) the curative actions taken by the trial court. Id. at 460.\nApplying the foregoing factors, we conclude that the prosecutor’s remarks did not have a significant effect on the fairness of Hale’s trial. The challenged remarks were brief and relatively innocuous and concerned a collateral matter rather than the witnesses’ substantive testimony. The government’s evidence against Hale was substantial, if indeed not overwhelming. The district court’s jury instructions helped alleviate any potential prejudice from the prosecutor’s remarks by informing the jury that the evidence consisted only of the witnesses’ testimony and documents received into evidence and that attorney comments during closing argument were not evidence. The court also informed the jurors that they were the sole judges of witness credibility.\nHale also argues that the prosecutor improperly misstated the burden of proof during his closing argument. Because Hale did not object at trial to this portion of the prosecutor’s argument, we review only for plain error, Fed.R.Crim.P. 52(b); United States v. Burk, 912 F.2d 225, 229 (8th Cir.1990), and we find that the prosecutor’s argument did not rise to that level, if indeed it constituted error at all.\nIII.\nWe turn next to Waller’s appeal. On the basis of .33 grams of crack cocaine (the amount that Hale sold to Marr), Waller’s base offense level was 14. The district court granted Waller a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a). Based on a total offense level of 12 and a criminal history category of I, the court sentenced Waller to five months’ imprisonment, to be followed by five months in a community corrections center and three years of supervised release.\nWaller argues that the court erred by not granting him a two-level downward adjustment pursuant to section 3B1.2(b) for being a minor participant in the drug transaction. Waller contends that he was a minor participant because he acted merely as a “steerer,” an individual who directs a potential drug purchaser to a seller.\nThe commentary to the guidelines provides that a minor participant is “any participant who is less culpable than most other participants” in the criminal activity. § 3B1.2 comment. (n.3). Under the stipulated facts, the district court found that Waller was not less culpable than most other participants in the crime, Hale being the most culpable, Waller the next most culpable, and Rucker the least culpable. The court noted that the crime would not have occurred had Waller not directed Marr to Hale, the ultimate seller.\nWhether a defendant qualifies for a minor participant reduction is a question of fact, the determination of which we review for clear error. See, e.g., United States v. Harris, 974 F.2d 84, 86 (8th Cir.1992). Steerers play an important and critical role in the street-level drug trade, directing prospective buyers to sellers who wish to remain hidden from public view. See United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.1989) (discussing the role that steerers play in the drug market). Indeed, absent Waller’s role as a steerer in this case, the transaction between Marr and Hale would not have occurred. Waller brought a purchaser with a specific demand to a furtive seller who could fulfill that demand. Additionally, we note that Waller did more than inform Marr where he could purchase drugs. He entered Marr’s car, accompanied him to the apartment, and signaled for Hale and Rucker. Cf. United States v. Sostre, 967 F.2d 728, 732 (1st Cir.1992) (holding that the district court did not err in denying a minor participant reduction under similar facts). Last, we note that Waller’s sentence was calculated on the basis of the relatively small quantity of drugs sold in the transaction that he facilitated. Thus, this case is not one in which the defendant played a small role in a transaction involving a large amount of drugs. Under these facts, we find that the district court did not err in denying Waller a minor participant reduction.\nAccordingly, Hale’s conviction and Waller’s sentence are affirmed.\n. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.\n[END_CASE]", "role": "user" } ]

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