author: MURPHY, Circuit Judge. BENTON, Circuit Judge,

text:
    Brittany R. TOVAR, Plaintiff-Appellant v. ESSENTIA HEALTH; Innovis Health, LLC, doing business as Essentia Health West; HealthPartners, Inc.; HealthPartners Administrators, Inc., Defendants-Appellees Transgender Legal Defense and Education Fund; Whitman Walker Health; World Professional Association for Transgender Health, Amici on Behalf of Appellant(s)
    No. 16-3186
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 7, 2017
    Filed: May 24, 2017

      Counsel who presented argument on behalf of the appellant was Jill Renee Gauld-ing, of Saint Paul, MN. The following attorneys also appeared on the appellant brief; Lisa C. Stratton, of Saint Paul, MN., Christy L. Hall, of Saint Paul, MN.
    Counsel who presented argument on behalf of the appellees HealthPartners, Inc. and HealthPartners Administrators, Inc. was David M. Wilk, of Saint Paul, MN. The following attorney also appeared on the appellee brief of HealthPartners, Inc. and HealthPartners Administrators, Inc.; Stephanie Chandler, of Saint Paul, MN.
    Counsel who presented argument on behalf of the appellees Essentia Health and Innovis Health, LLC, doing business as Essentia Health West was Lisa Kay Edison-Smith, of Fargo, ND. The following attorney also appeared on the appellee brief of Essentia Health and Innovis Health, LLC, doing business as Essentia Health West; Vanessa L. Anderson, of Fargo, ND.
    The following attorneys appeared on the amicus brief; Jean Marie Boler, of Minneapolis, MN., Ezra Young, of New York, NY., Anna Veit-Carter, of Minneapolis, MN.
    Before BENTON, BEAM, and MURPHY, Circuit Judges.
   MURPHY, Circuit Judge.

Brittany Tovar was employed by defendant Essentia Health or defendant Innovis Health, LLC, dba Essentia Health West (collectively, Essentia) from 2010 to 2016. One of the benefits of Tovar’s employment was enrollment in an employer provided health insurance plan which also covered her teenage son. In 2014 Tovar’s son was diagnosed with gender dysphoria. Tovar sought coverage for medications and surgery for her son, but her requests for coverage were denied on the basis of a categorical exclusion in the insurance plan for “[s]ervices and/or surgery for gender reassignment.” Tovar then filed this lawsuit against Essentia and the plan’s third party administrator for sex based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.01 et seq., and the Affordable Care Act (ACA), 42 U.S.C. § 18116. The defendants moved to dismiss Tovar’s claims, and the district court granted their motions. Tovar appeals. We affirm in part, reverse in part, and remand for further proceedings.

I.

Brittany Tovar is a nurse practitioner who was employed by Essentia from 2010 to 2016. Tovar’s benefits as an employee of Essentia included health insurance provided through the Essentia Health Employee Medical Plan (the plan). The plan corresponded to an insurance policy offered to employers by HealthPartners, Inc. and was administered either by HealthPart-ners, Inc. or by its subsidiary HealthPart-ners Administrators, Inc. (HPAI).

In 2014 Tovar’s teenage son became a beneficiary of the plan. Later that year Tovar’s son was diagnosed with gender dysphoria, a condition that arises when an individual’s gender identity differs from the gender assigned at birth. Health professionals decided that various treatments were necessary to treat her son’s condition, including medications and gender reassignment surgery. Tovar sought coverage under the plan, but because the plan at that time categorically excluded coverage of “[s]ervices and/or surgery for gender reassignment,” the defendants declined to pay for her son’s treatment. The coverage dispute caused Tovar “worry, anger, disappointment, and sleepless nights,” made it “more difficult for her to focus on her work,” and led her to suffer “a sharp increase in migraines.” Tovar also paid herself for at least one of her son’s prescribed medications although Essentia “later agreed to provide Tovar with coverage for [that medication] as a one-time exception” to its categorical bar on coverage. Tovar’s son was forced to forgo another prescribed medication that the family was unable to pay for and was unable to go forward with gender reassignment surgery.

Tovar filed this lawsuit in January 2016. Her complaint charged Essentia with sex discrimination in violation of Title VII and the MHRA and charged HealthPartners, Inc. with discrimination in violation of the ACA. The defendants moved to dismiss the complaint. The district court granted the defendants’ motions, concluding that To-var’s claims against Essentia failed for lack of statutory standing and that her claim against HealthPartners, Inc. failed for lack of Article III standing. Tovar appeals.

II.

A.

Tovar argues that the district court erred by dismissing her claims against Essentia under Title VII and the MHRA for lack of “statutory standing.” The Supreme Court has recently commented that it has observed confusion about the concept of standing and has suggested that the use of that term in conjunction with anything other than the “irreducible constitutional minimum of standing” provided by Article III should be disfavored. See Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S. - 134 S.Ct. 1377, 1386-87 & n.4, 188 L.Ed.2d 392 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Although the term “statutory standing” may be subject to some confusion, its purpose is clear: a plaintiff who seeks relief for violation of a statute must “fall[] within the class of plaintiffs whom Congress has authorized to sue” under that statute. See id. at 1387. Determining whether this requirement is satisfied is “a straightforward question of statutory interpretation.” Id. at 1388. If a court determines that Congress has not provided a statutory cause of action in a particular case, it may be subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See, e.g., Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 320 (3d Cir. 2015); Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997, 1001 (9th Cir. 2015).

We review a district court’s dismissal of a complaint under Rule 12(b)(6) “de novo, accepting as true the factual allegations contained in the complaint and granting [the plaintiff] the benefit of all reasonable inferences that can be drawn from those allegations.” Gomez v. Wells Fargo Bank, N.A., 676 F.3d 655, 660 (8th Cir. 2012). To avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). The requirement of facial plausibility is satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

In this case the district court concluded that Tovar’s complaint failed to state a claim for relief under Title VII and the MHRA because she does not fall within the class of plaintiffs these statutes protect. Specifically, Title VII prohibits an employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a) (emphasis added). The court concluded that because Tovar had not alleged her employer discriminated against her on the basis of her own sex, but rather alleged discrimination against her on the basis of her son’s sex, her complaint failed to state a claim for relief under Title VII. Similarly, the MHRA makes it illegal for an employer to discriminate against someone because of her sex with respect to her terms, conditions, or privileges of employment. Minn. Stat. § 363A.08, subd. 2(3). The MHRA further states that “[a]ny person aggrieved by a violation of this chapter may bring a civil action.” Id. § 363A.28, subd. 1. The district court concluded that Tovar’s son was the real “person aggrieved” by Essen-tia’s actions, not Tovar. The court therefore concluded that Tovar’s complaint failed to state a claim under the MHRA. Tovar contends that these determinations were in error.

We note two preliminary points before reaching the merits of Tovar’s argument. First, the district court applied the same analysis to Tovar’s claims under both Title VII and the MHRA. The parties have done the same in their briefing and arguments on appeal. The Minnesota Supreme Court has made clear that it “reliefs] on federal law interpreting Title VII in [its] interpretation of the MHRA,” Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 796 (Minn. 2013), and Tovar has not argued that the statutes are substantively different with respect to the issues presented in this ease, see United States v. Wearing, 837 F.3d 905, 910 n.6 (8th Cir. 2016) (per curiam) (arguments not sufficiently developed in opening brief are deemed waived). We will therefore also assume that the protections of Title VII and the MHRA are the same for purposes of this case. See Liles v. C.S. McCrossan, Inc„ 851 F.3d 810, 818 (8th Cir. 2017). Second, because the district court concluded that Tovar is not within the class of plaintiffs for whom Title VII and the MHRA create causes of action, we assume for purposes of this appeal that the prohibition on sex based discrimination under Title VII and the MHRA encompasses protection for transgender individuals. See Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 702 (8th Cir. 2012).

Beyond those initial points, we are left with a narrow question: does Tovar’s complaint on her own behalf about her employer’s refusal to cover treatment for her son fall within the protections of Title VII and the MHRA? We conclude that it does not.

As the district court noted, the plain text of Title VII contravenes Tovar’s argument that she is within the class of plaintiffs for whom Congress authorized that cause of action. The statute provides that “[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a) (emphasis added). In other words, the statute prohibits employers from discriminating against employees on the basis of their protected characteristics. Tovar has not alleged that she was discriminated against on the basis of her own sex; rather, she alleges that she .was discriminated against because of her son’s sex. By its terms the protections of Title VII do not extend to such discrimination.

This reading of the plain language of Title VII is supported by decades of case law. Even the cases cited by Tovar are largely consistent with this construction. For example, Tovar relies heavily on Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983), a case about pregnancy discrimination. In that case, an employer provided a health plan that covered both its employees and their spouses. Id. at 671, 103 S.Ct. 2622. The plan provided different pregnancy related benefits for female employees and the female spouses of male employees, however. Id. at 672, 103 S.Ct. 2622. The Supreme Court framed the question presented by the case as “whether petitioner’s plan discriminates against male employees because of their sex” and ultimately concluded that it did “because the protection [the plan] affords to married male employees is less comprehensive than the protection it affords to married female employees.” Id. at 676, 103 S.Ct. 2622.

As the parties point out, a central and explicit component of the reasoning in Newport News was a questionable assumption that the spouse of a man would always be a woman. 462 U.S. at 684, 103 S.Ct. 2622 (“[S]ince the sex of the spouse is always the opposite of the sex of the employee, it follows inexorably that discrimination against female spouses in the provision of fringe benefits is also discrimination against male employees”). Nonetheless, the Court clearly concluded that the discrimination at issue was against the male employees themselves because of their own sex since the employer’s health plan gave “married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees.” Id. This conclusion is consistent with our reading of the plain text of Title VII as requiring an employee who seeks relief under that statute to have suffered discrimination on the basis of her own protected characteristic.

The decisions from other courts of appeals on which Tovar relies also rest on the conclusion that the discrimination challenged in those cases was based on an employee’s own protected characteristic, even if the significance of that characteristic was defined in relation to the characteristics of a third party. See, e.g., Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999) (“A white employee who is discharged because his child is biracial is discriminated against on the basis of his race” because “the alleged discrimination ... was due to [the plaintiffs] race being different from his daughter’s.”); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (“Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.”). These cases therefore provide little support for Tovar’s argument that she may sue her employer under Title VII, because there is no plausible argument that Essentia’s failure to cover gender reassignment treatment for Tovar’s son amounted to discrimination against Tovar on the basis of her own sex.

Tovar also cites Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011). Thompson concerned a plaintiff (Eric Thompson) and his fiancé (Miriam Regalado) who were both employed by defendant North American Stainless (NAS). Id. at 172, 131 S.Ct. 863. After Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sex discrimination, Thompson was fired. Id. Thompson subsequently sued NAS and alleged that he had been fired “in order to retaliate against Regalado for filing her charge with the EEOC.” M. The Supreme Court concluded that (1) “if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII,” and (2) “Thompsqn falls within the zone of interests protected by Title VII.” Id. at 173, 178, 131 S.Ct. 863. Tovar characterizes Thompson as recognizing the right of an employee, who had not himself engaged in protected activity, to bring a claim under Title VII. She alleges Thompson supports her, right to bring a claim against her employer for discrimination on the basis of her son’s protected characteristics.

Thompson is distinguishable from the present case in several meaningful ways. First, Thompson involved Title VII’s an-tiretaliation provision, not its substantive antidiscrimination provisions. In its decision the Court noted that “Title VII’s an-tiretaliation provision must be construed to cover a broad range of employer conduct,” in contrast to the narrower construction given to Title VU’s substantive antidis-crimination provisions. Thompson, 562 U.S. at 173-74, 131 S.Ct. 863. The Court’s conclusion in Thompson that the “broad statutory text,” id. at 175, 131 S.Ct. 863, of Title VII’s antiretaliation provision covered the conduct at issue in that case does not help Tovar establish that her claim under the substantive antidiscrimination provisions of Title VII is permissible in this case. Second, in Thompson both the person who had engaged in protected activity (Regalado) and the person who was fired (Thompson) were employed by NAS. Thompson therefore fails to establish that the protections of Title VII extend to an employer’s discrimination against an employee’s beneficiary who does not have an independent relationship with the employer. See id. at 178, 131 S.Ct. 863 (“Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions.”).

For the foregoing reasons we agree with the district court that Title VII and the MHRA do not create causes of action for Tovar under the circumstances presented by this case. We therefore affirm the district court order dismissing these claims under Rule 12(b)(6).

B.

Tovar also contends that the district court erred in dismissing her claim against HealthPartners, Inc. and HPAI for lack of Article III standing. We review dismissal of a case for lack of Article III standing de novo. See Am. Civil Liberties Union of Minn, v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1092 (8th Cir. 2011). The requirements of Article III standing are well settled: a plaintiff must show “(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, — U.S.-, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (internal quotation marks and alterations omitted). In this ease, the district court concluded that Article III standing was lacking because Tovar had failed to show that the injuries of which she complained were traceable to or redressable by HealthPartners, Inc. and HPAI. For the following reasons, we disagree.

The primary reason the district court concluded that Tovar lacked Article III standing for her ACA claim was its determination that Tovar had sued the wrong defendant in her third count. The district court concluded that the plan document stated that HPAI was the plan’s administrator, not HealthPartners, Inc., and therefore concluded that HealthPart-ners, Inc. had neither caused Tovar’s alleged injuries nor could redress them. Tovar contends that the district court’s determination that HealthPartners, Inc. was improperly named as a defendant was in error, and we agree. The parties agree that the plan document was properly considered by the district court in ruling on the defendants’ motion to dismiss. See Minn. Majority v. Mansky, 708 F.3d 1051, 1056 (8th Cir. 2013). Although the plan document listed HPAI as the plan administrator, it did not provide that HealthPartners, Inc. “has no relation to this case,” as the district court concluded. The plan document stated that HPAI was “a related organization of HealthPartners, Inc.,” but it did not define the exact nature of the relationship between the two companies. Perhaps more importantly, the plan document directed beneficiaries to send claims, complaints, and appeals of claim denials to HealthPartners, Inc., not to HPAI. The plan document therefore does not definitively establish that HealthPartners, Inc. was wholly uninvolved in the administration of the plan. It thus appears that, at this stage in the litigation, both HealthPartners, Inc. and HPAI are properly named as defendants.

The district court concluded in the alternative that “[e]ven if HealthPartners was involved in administering the Plan, Tovar’s claims against it would still fail” for lack of Article III standing because “her alleged injury is not traceable to it or redressable by it.” The district court reasoned that because the plan was self funded by Essentia (meaning that Essen-tia rather than the plan’s administrator was responsible for the payment of claims) and the plan document reserved to Essentia “all powers and discretion necessary to administer the Plan,” including the power to change its terms, Tovar’s alleged injuries were not fairly traceable to or redressable by HealthPartners, Inc. or HPAI. We disagree because Tovar’s complaint alleges that the plan “corresponds to an insurance policy offered to employers by HealthPartners and known by Policy No. G008HPC-03.” Drawing all inferences in Tovar’s favor as we must at this stage in the proceedings, the latter allegation suggests that the plan and its allegedly discriminatory terms originated with HealthPartners, Inc. and/or HPAI— not with Essentia. If HealthPartners, Inc. or HPAI provided Essentia with a discriminatory plan document, Tovar’s alleged injuries could well be traceable to and redressable through damages by those defendants notwithstanding the fact that Essentia subsequently adopted the plan and maintained control over its terms.

Athough the district court did not analyze the third aspect of Article III standing—whether Tovar has suffered a concrete and particularized injury in fact—in their briefing on appeal the defendants also argue that Tovar has not been injured because she was not personally denied coverage under the plan. We reject the defendants’ assertion that Tovar has not suffered an injury in fact, however, because we distinguish the question of whether To-var suffered an injury sufficient to confer Article III standing from the question of whether Tovar is a proper plaintiff under the text of the ACA. See Lexmark Int’l, Inc., 134 S.Ct. at 1386. We conclude that Tovar has alleged an injury cognizable under Article III because she contends that the defendants’ discriminatory conduct denied her the benefits of her insurance policy and forced her to pay out of pocket for some of her son’s prescribed medication. The record is silent on whether Tovar has been fully reimbursed for these out of pocket payments, but the record at this point is sufficient to establish an injury in fact for purposes of Article III standing. See id. (“Lexmark does not deny that Static Control’s allegations of lost sales and damage to its business reputation give it standing under Article III to press its false-advertising claim, and we are satisfied that they do.”); see also Geissal v. Moore Med. Corp., 524 U.S. 74, 78 n.3, 118 S.Ct. 1869, 141 L.Ed.2d 64 (1998).

For the foregoing reasons we reverse the district court’s dismissal of To-var’s ACA claim under Rule 12(b)(1) for lack of Article III standing. The defendants argue that Tovar’s ACA claim could properly be dismissed on alternative grounds, including that Tovar does not “fall[ ] within the class of plaintiffs whom Congress has authorized to sue under” the ACA, see Lexmark Int’l Inc., 134 S.Ct. at 1387 & n.4, and that HealthPartners, Inc. and HPAI cannot be liable under that statute for administering a plan whose allegedly discriminatory terms were under the sole control of another organization. These grounds were not reached by the district court, however. While “we may affirm the district court’s judgment on any basis supported by the record, we are not required to do so.” Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 851 (8th Cir. 2014).

As we have often noted, “[w]hen it would be beneficial for the district court to consider an alternative argument in the first instance, we may remand the matter to the district court.” Id.; see also Schweiss v. Chrysler Motors Corp., 922 F.2d 473, 476 (8th Cir. 1990). We conclude that such is the situation here, and we therefore remand for the district court to determine in the first instance whether Tovar’s claim against HealthPartners, Inc. and HPAI should be dismissed for failure to state a claim under the ACA.

III.

Accordingly, we affirm the judgment of the district court in part and reverse in part. The case is therefore remanded for further proceedings consistent with this opinion.

BENTON, Circuit Judge,

concurring in part and dissenting in part.

I concur in Part 11(A) of the court’s opinion.

There is no need for a remand on whether Tovar states a claim against HPAI or HealthPartners, the third-party administrator, under Section 1557, 42 U.S.C. § 18116(a). Tovar’s statutory standing to sue HPAI or HealthPartners was thoroughly briefed and argued before this court. Cf. Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 851 (8th Cir. 2014) (remanding where the parties “did not comprehensively brief or argue” the alternative ground). Whether Tovar states a claim under § 1557 is “pure question of law that this Court can and should resolve without need for remand.” See Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm of Adjustment, 558 U.S. 67, 79, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009). See Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 936 (8th Cir. 2012) (‘Whether a complaint states a cause of action is a question of law which we review on appeal de novo.”).

The parties agree that the Office for Civil Rights’ regulations interpreting § 1557 deserve Chevron deference. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865-66, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). They also agree that OCR’s explanatory commentary to its regulations deserve deference. See Barnhart v. Walton, 535 U.S. 212, 221-222, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002) (“[T]he fact that the Agency previously reached its interpretation through means less formal than ‘notice and comment’ rulemaking ... does not automatically deprive that interpretation of the judicial deference otherwise its due.”); Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 467 (D.C. Cir. 2007) (where publication in the Federal Register “reflects a deliberating agency’s self-binding choice, as well as a declaration of policy, it is further evidence of Chevron-worthy interpretation”).

Assuming the OCR’s commentary applies, it states that “third party administrators are generally not responsible for the benefit design of the self-insured plans they administer and that ERISA (and likely the contracts into which third party administrators enter with the plan sponsors) requires plans to be administered consistent with their terms.” 81 Fed. Reg. 31432 (May 18, 2016). However, a TPA may be liable under § 1557 “when the alleged discrimination is in the administration of the plan”—that is, for example, where a TPA “denies a claim because the individual’s last name suggests that she is of a certain national origin or threatens to expose an employee’s transgender or disability status to the employee’s employer.” 81 Fed. Reg. 31433. Discrimination in administration is not the only way a TPA may be liable under § 1557. The OCR will “engage in a ease-by-case inquiry to evaluate whether a third party administrator is appropriately subject to Section 1557 as a recipient in situations in which the third party administrator is legally separate from an issuer that receives Federal financial assistance for its insurance plans.” Id.

The OCR lists two “principles developed in longstanding civil rights case law” that inform the case-by-case determination whether a TPA is appropriately subject to § 1557. First, “the degree of common ownership and control between the two entities.” Tovar did not allege that HPAI or HealthPartners share with Essentia any “degree of common ownership and control,” nor did she make any factual allegation that supports such an inference. Although Tovar’s brief makes arguments about common ownership and control, “an attempt to amend one’s pleadings in an appellate brief comes too late.” See Dorothy J. v. Little Rock Sch. Disk, 7 F.3d at 729, 734 (8th Cir. 1993).

Second, the case-by-case inquiry examines “whether the purpose of the legal separation is a subterfuge for discrimination—that is, intended to allow the entity to continue to administer discriminatory health-related insurance or other health-related coverage.” 81 Fed. Reg. 31433. To-var neither alleged nor made any factual allegations that support an inference that HPAI or HealthPartners is a subterfuge for discrimination “intended to allow [Es-sentia] to continue to administer discriminatory health-related insurance.” See id. Tovar’s factual allegations include that Es-sentia’s “plan corresponds to an insurance policy offered to employers by HealthPart-ners and known as Policy No. G008HPC-03.” This allegation, taking all inferences in Tovar’s favor, does not state a claim against HealthPartners or HPAI under § 1557. Alleging that the plan “corresponds to an insurance policy offered” by HPAI or HealthPartners does not allege anything about the administration of the plan. Nor does it state a claim against HPAI or HealthPartners under OCR’s guidelines for a “case-by-case inquiry”: It does not allege “common ownership or control between the two entities” or that the purpose of HPAI’s “legal separation is a subterfuge for discrimination.”

The complaint’s theory against HPAI or HealthPartners is that it “discriminated against Plaintiff in violation of Section 1557 ... by serving as the third party administrator for the Essentia Health Employee Medical plan and enforcing the Plan’s discriminatory exclusion of any ‘[s]ervices and/or surgery for gender reassignment.’ ” This claim alleges only “serving as the third party administrator,” and “enforcing the Plan.” There is no allegation that HPAI or HealthPart-ners: 1) discriminated in its administration of Essentia’s policy, 2) shared common ownership or control with Essentia, or 3) served as a “subterfuge for discrimination ... intended to allow [Essentia] to continue to administer discriminatory health-related insurance.” The allegations in Tovar’s complaint, drawing all inferences in her favor, do not allege a plausible theory of TPA liability under § 1557.

Tovar’s allegations against Essentia fit the “typical” scenario where OCR will pursue only the employer: “Where, by contrast, the alleged discrimination relates to the benefit design of a self-insured plan— for example, where a plan excludes coverage for all health services related to gender transition—and where OCR has jurisdiction over a claim against an employer under Section 1557 because the employer falls under one of the categories in § 92.208, OCR will typically address the complaint against the employer.” Id.

Because I would affirm the district court’s dismissal without prejudice of To-var’s claim against HPAI or HealthPart-ners, I dissent in part.

      . After judgment was entered, the district court granted a request by HealthPartners, Inc. that Tovar’s complaint be amended to include HPAI as a defendant. Both Health-Partners, Inc. and HPAI are thus parties in the case before us.

      . Tovar’s son is not a plaintiff in this lawsuit, nor has she brought a claim on his behalf.

      . For the same reason we reject the defendants’ contention that Tovar’s ACA claim is moot.

      . The commentary was published May 18, 2016, with an effective date of July 18, 2016— both after Tovar’s complaint was dismissed. An agency's “interpretive regulation that is substantially consistent with prior regulations or prior agency practices, and has been accepted by all Courts of Appeals to consider the issue, can be applied to cases pending at the time the regulation is promulgated.” Brandywine Explosives & Supply v. Dir., Office of Workers’ Comp. Programs, 790 F.3d 657, 662-63 (6th Cir. 2015). See Clay v. Johnson, 264 F.3d 744, 750 (7th Cir. 2001) ("A clarifying rule, therefore, can be applied to the case at hand just as a judicial determination construing a statute can be applied to the case at hand.”); Antelope Coal Co./Rio Tinto Energy America v. Goodin, 743 F.3d 1331, 1342 (10th Cir. 2014) (same).


source: Caselaw Access Project

author: BENTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Lazaro SOLIZ, Defendant-Appellant
    No. 16-2161
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 3, 2017
    Filed: May 25, 2017

      Jeffrey S. Paulsen, Assistant U.S. Attorney, U.S. Attorney’s Office, District of Minnesota, Minneapolis, MN, for Plaintiff-Appellee.
    Kevin W. DeVore, Larson & King, Saint Paul, MN, for Defendant-Appellant.
    Lazaro Soliz, Pro Se.
    Before COLLOTON, BEAM, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Lazaro Soliz pled guilty to possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He moved for a downward variance. The district court sentenced him to 235 months’ imprisonment, the guidelines minimum. Having jurisdiction under 18 U.S.C. § 1291, this court affirms.

Soliz has been heavily involved with drugs since his difficult childhood. In July 2015, police learned he was selling meth. With help of confidential informants, they arranged a traffic stop. Soliz gave permission to search the car. Police found 453 grams of meth. Soliz admitted he intended to resell it. The district court granted a downward departure, lowering the criminal history by one category. Soliz claims the district court abused its discretion by not considering his history and characteristics, just punishment for his specific offense, and the need to avoid unwarranted sentencing disparities.

This court reviews sentences for abuse of discretion. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This court reviews first, for significant procedural error and second, for substantive reasonableness. United States v. O’Connor, 567 F.3d 395, 397 (8th Cir. 2009). Because Soliz did not object about any procedural errors, they are reviewed for plain error. United States v. Cottrell, 853 F.3d 459, 462 (8th Cir. 2017).

Soliz argues that the district court failed to consider his history and characteristics and the need for just punishment. See 18 U.S.C. § 3553(a). A district court commits procedural error if it fails to consider the § 3553(a) factors. United States v. Barron, 557 F.3d 866, 868 (8th Cir. 2009). The district court here specifically addressed the § 3553(a) factors raised by Soliz. It committed no procedural error. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).

As for the substantive reasonableness, this court gives due deference to the district court’s sentence. Gall, 552 U.S. at 51, 128 S.Ct. 586. A district court abuses its discretion if it 1) fails to consider a significant factor it should have, 2) gives significant weight to an improper or irrelevant factor, or 3) considers the appropriate factors but commits a clear error of judgment in weighing them. Feemster, 572 F.3d at 461. The sentence here is within the guideline range, supported by the record, and is presumptively reasonable on appeal. Cottrell, 853 F.3d at 463.

Citing sentences by other judges, Soliz argues that his sentence creates sentencing disparities. He emphasizes the Supreme Court’s requirement that district courts “must take account of sentencing practices in other courts.” See Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Soliz ignores that the Court immediately adds that reaching an appropriate sentence requires weighing any unwarranted disparities against the other § 3553(a) factors. Id.

Soliz also relies on United States v. Lazenby, 439 F.3d 928, 934 (8th Cir. 2006). It addressed the unusual circumstances of extreme disparities between the sentences of co-conspirators, reviewed in a consolidated appeal. See United States v. Fry, 792 F.3d 884, 892-93 (8th Cir. 2015); United States v. McDowell, 676 F.3d 730, 733 (8th Cir. 2012). Soliz acted alone.

The sentencing practices of one district court are not a reference point for other courts. Barron, 557 F.3d at 869. An argument that non-conspirator defendants received shorter sentences for comparable offenses is at base a disagreement with the weighing of the § 3553(a) factors. United States v. Merrell, 842 F.3d 577, 585 (8th Cir. 2016). This disagreement does not demonstrate an abuse of discretion. Id. The district court did not abuse its discretion in sentencing Soliz.

⅜ ⅜ ⅜ ⅜ ⅜ ⅜ ⅜

The judgment is affirmed.

      . The Honorable David S. Doty, United States District Judge for the District of Minnesota.


text:
    FOOD MARKET MERCHANDISING, INC., a Minnesota corporation, Plaintiff-Appellant v. SCOTTSDALE INDEMNITY COMPANY, Defendant-Appellee
    No. 16-3427
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 9, 2017
    Filed: May 25, 2017
    Rehearing and Rehearing En Banc Denied July 18, 2017

      Carl Eric Christensen, Daniel Eaton, Cole W.R. Langsdorf, Christensen Law Office, Minneapolis, MN, for Plaintiff-Appellant.
    Tiffany M. Brown, Bradley Mitchell Jones, Meagher & Geer, Minneapolis, MN, for Defendant-Appellee.
    Before LOKEN, MURPHY, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Food Market Merchandising, Inc. sued Scottsdale Indemnity Company for coverage under a Business and Management Indemnity Policy. Both parties moved for summary judgment. The district court granted Scottsdale’s motion. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The policy covers “only claims first made against the insured during the policy period ... and reported to the insurer pursuant to the terms of the relevant coverage section.” The “Notification” provision of the coverage section at issue states:

The Insureds shall, as a condition precedent to their rights to payment under this Coverage Section only, give Insurer written notice of any Claim as soon as practicable, but in no event later than sixty (60) days after the end of the Policy Period.

Section E.l. (bolded words in original, defined in policy).

In January 2014, former employee Robert Spinner sued Food Market, seeking unpaid commissions. In June, a court granted partial summary judgment for Spinner, awarding twice the unpaid commissions and attorney’s fees. It did not reduce the award to judgment. (The parties settled two years later).

In August 2014—during the policy period—Food Market notified Scottsdale of the Spinner lawsuit. It sought defense and indemnification under the “Employee Insuring” provision of the Employment Practices coverage:

Insurer shall pay the Loss of the Insureds which the Insureds have become legally obligated to pay by reason of an Employment Practices Claim first made against the Insureds during the Policy Period or, if elected, the Extended Period, and reported to the Insurer pursuant to Section E.l. herein, for an Employment Practices Wrongful Act taking place prior to the end of the Policy Period.

In September, Scottsdale tentatively denied coverage.

In June 2015, Food Market sued Scottsdale for coverage, asserting claims for breach of contract, breach of the covenant of good faith and fair dealing, and declaratory judgment. A week later, Scottsdale formally denied coverage, stating Food Market’s notice was untimely and its claim outside the policy’s scope.

Both parties moved for summary judgment. The district court granted summary judgment to Scottsdale, finding “no genuine issue that [Food Market] failed to notify Scottsdale of the Spinner Litigation as soon as practicable. Because timely notice is a condition precedent to payment under the Policy, Scottsdale’s duty to defend/indemnify was never triggered, and Scottsdale is entitled to judgment as a matter of law.”

This court “reviewfs] de novo the district court’s interpretation of state law and its grant of summary judgment.” Babinski v. American Family Ins. Group, 569 F.3d 349, 351 (8th Cir. 2009). “Summary judgment is appropriate when ‘there is no genuine issue as to any material fact and [ ] the movant is entitled to judgment as a matter of law,’ ” Id. (alteration in original), quoting Fed. R. Civ. P. 56(c). “Because this case is in federal court based on diversity jurisdiction, Minnesota’s substantive law controls [the court’s] analysis of the insurance policy.” Id. at 351-52. This court may affirm summary judgment “on any grounds supported by the record.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009).

II.

Food Market argues the district court erred in finding it did not provide timely notice under the policy.

A.

Food Market believes its notice was timely because it had a “claims-made” policy and gave notice within the claims period. Under Minnesota law, “[a] claims-made policy requires the insured to give notice of the claim during the policy period.” Cargill, Inc. v. Evanston Ins. Co., 642 N.W.2d 80, 86 n.3 (Minn. Ct. App. 2002), review denied (Minn. June 26, 2002). Here, the “policy did not require notice to be given during the policy period, but instead only required that notice be given as soon as practicable,” id., but “in no event later than sixty (60) days after the end of the Policy Period.” “As such, it does not precisely fit the definition of a claims-made policy in Minnesota.” Id. “Ultimately, classification of the [ ] policy is irrelevant to an analysis of the issue needing decision: did [Food Market] give notice as soon as practicable?” Id.

B.

Food Market contends the district court erred in finding no genuine issue of material fact about the timeliness of notice. The policy required Food Market give Scottsdale written notice of any claim “as soon as practicable, but in no event later than sixty (60) days after the end of the Policy Period.” “Generally, whether the notice was given as soon as practicable is a fact-dependent question for a jury to determine.” Id. at 86, citing St. Paul Fire & Marine Ins. Co. v. Wabash Fire & Cas. Ins. Co., 264 F.Supp. 637, 642-43 (D. Minn. 1967). “A court may grant summary judgment, however, when there is no genuine issue of material fact.” Id. at 87, citing DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). “There is no genuine issue of material fact when the nonmoving party presents evidence creating only a metaphysical doubt as to a factual issue or the evidence is not sufficiently probative to permit reasonable persons to draw different conclusions.” Id., citing DLH, 566 N.W.2d at 71.

Food Market presented no evidence that providing notice over seven months after Spinner sued was “as soon as practicable.” As the district court found:

Here, Spinner sued [Food Market] on January 13, 2014, and [Food Market] did not tender the matter to Scottsdale until August 22, 2014—some seven months later. During that time, [Food Market] hired counsel, litigated the case, and negotiated with Spinner, all without seeking Scottsdale’s involvement. [Food Market] has failed to explain its delay, averring only that it “did not deliberately refrain from making an insurance claim at an earlier date. It retained representation to defend it in the Spinner litigation, and in the course of that representation, [Food Marker’s attorneys provided notice to Scottsdale.” Nowhere does it identify facts from which a reasonable factfinder could conclude it provided notice to Scottsdale “as soon as practicable.”

(citations omitted).

Food Market says the court failed to consider whether: (1) the insurer’s ability to investigate the claim was inhibited; (2) the underlying claim had yet been reduced to judgment; or (3) any facts in the underlying claim changed from when the insured knew of the claim until the insurer received notice. But these address whether the delay prejudiced Scottsdale, a showing both parties admit is not required where, as here, notice is a condition precedent to coverage. See id. (“Evanston should not be required to make a showing of prejudice. If the ‘notice of loss is a condition precedent of liability under the insurance contract, noncompliance with that provision is fatal to recovery.’ ”), quoting Sterling State Bank v. Virginia Sur. Co., 285 Minn. 348, 173 N.W.2d 342, 346 (1969). The policies in Food Market’s cases do not have the “condition precedent” notice language here, and thus do not control. See Cary v. National Sur. Co., 190 Minn. 185, 251 N.W. 123, 126 (1933); Hooper v. Zurich Am. Ins. Co., 552 N.W.2d 31, 36-37 (Minn. Ct. App. 1996). See also North Star Mut. Ins. Co. v. Midwest Family Mut. Ins. Co., 634 N.W.2d 216, 220 n.1 (Minn. Ct. App. 2001) (noting that the language “as soon as reasonably possible” alone “does not create a condition precedent”).

In Cargill, Inc. v. Evanston Insurance Co., the court of appeals addressed notice “as soon as practicable” as a condition precedent. That court reversed summary judgment for the insurer on the issue of timely notice, finding a question of fact:

In this case, Cargill claims - it waited as long as it did to notify Evanston due to the presence of a $1 million deductible provision in the Evanston policy. Cargill argues that it would have been pointless to notify Evanston at an earlier time because Cargill’s costs in relation to the cleanup had not exceeded the $1 million limit. This court makes no assessment regarding the ultimate success of this argument. We conclude, however, that it would not be wholly unreasonable for a fact-finder to determine that, under the circumstances, it was practical for Car-gill to wait until the $1 million deductible was exceeded. Cargill should have been permitted to make its argument to a fact-finder.

Cargill, 642 N.W.2d at 87.

The district court here cited Cargill, stating that “[a] fact issue may be present, for example, where an insured offers some plausible reason for its delay.” Unlike Car-gill, the court found Food Market offered no reasons for delay.

The district court properly found no genuine issue of material fact about the timeliness of notice.

C.

Food Market asserts the policy’s notification provision is ambiguous. “Whether a contract is ambiguous ■ is a question of law.” Babinski, 569 F.3d at 352. Deciding whether an ambiguity exists, the court must read the policy “as a whole.” Mutual Serv. Cas. Ins. Co. v. Wilson Twp., 603 N.W.2d 151, 153 (Minn. Ct. App. 1999). “Language in a policy is ambiguous if it is susceptible to two or more reasonable interpretations.” Carlson v. Allstate Ins. Co., 749 N.W.2d 41, 45 (Minn. 2008). While “any ambiguity in the insurance contract must be construed in favor of the insured,” a “court has no right to read an ambiguity into the plain language of an insurance policy.” State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn. 1992).

Citing Cargill, Food Market claims the phrase “as soon as practicable” is ambiguous. But, in Cargill, the court found the phrase unambiguous: the “policy unambiguously states that [a]s a condition precedent to his right to the protection afforded by this policy, the Insured shall, as soon as practicable, give the Company written notice of any claim made against him.” Cargill, 642 N.W.2d at 87. Applying the unambiguous condition precedent to the facts of that case, the court concluded that “it would not be wholly unreasonable for a fact-finder to determine that, under the circumstances, it was practical for Cargill to wait until the $1 million deductible was exceeded [before giving notice].” Id. Car-gill refutes Food Market’s proposition that “the phrase ‘as soon as practicable’ is inherently susceptible to more than one reasonable meaning.” Rather, it shows how an unambiguous provision creates a question of fact if the insured offers reasons for delay.

Food Market also relies on George K. Baum & Co. v. Twin City Fire Ins. Co., 760 F.3d 795 (8th Cir. 2014). Although Baum has similar language—“as soon as practicable, but in no event later than sixty (60) days after the POLICY EXPIRATION DATE”—it is distinguishable. Id. at 801. First, it is based on New York law. Id. at 797. Second, this court held the policy was “ambiguous regarding any timely notice requirement applicable to later liabilities arising from a timely original claim.” Id. at 801 (emphasis added). This court did not address the issue here: whether the phrase “as soon as practicable” is ambiguous regarding timely notice for an original ■claim. In fact, Baum found the insurer’s interpretation of the policy unreasonable because it ignored “in no event later than sixty (60) days after [the policy’s expiration],” a phrase the court found “textually applies to, and limits, the preceding ‘as soon as practicable.’ ” Id. at 802. Similarly, Food Market’s interpretation ignores the phrase “as soon as practicable.” As the district court concluded, Food Market’s interpretation of the condition precedent— requiring notice only within 60 days of the policy’s expiration—“renderfc] the phrase ‘as soon as practicable’ meaningless.”

The district court properly found the policy unambiguous.

D.

Food Market thinks Scottsdale waived its timeliness argument by failing to assert notice as a reason for denying coverage. See Minnesota Farm Bureau Serv. Co. v. American Cas. Co. of Reading, Pa., 167 F.Supp. 315, 319 (D. Minn. 1958), reversed on other grounds, 270 F.2d 686 (8th Cir. 1959) (“It is the law in Minnesota and many other jurisdictions that a refusal by an insurer to pay a claim or to defend an action on the grounds that the loss occurred in consequence of risk not covered by the policy is in itself a waiver of the policy provisions requiring notice.”). This argument is not supported by the record. Although Food Market says Scottsdale “tentatively denied coverage based on scope,” not notice, the district court found, and Food Market does not dispute, that “Scottsdale’s denial letter explicitly cited untimely notice as one of the reasons Scottsdale had denied coverage.” No precedent requires waiver based on tentative coverage conversations. The district court properly concluded “Scottsdale expressly relied upon the notice provision when denying coverage.” There is no waiver.

III.

For the first time in the reply brief, Food Market argues “the Policy’s condition precedent affects [its] rights to payment only” and not its duty to defend. It also argues, for the first time, that the district court erred in granting summary judgment to Scottsdale on Food Market’s good faith and fair dealing claim. “As a general rule, [this court] will not consider arguments raised for the first time in a reply brief,” and declines to do so here. Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006).

* ⅜ * ⅝ * * *

The judgment is affirmed.

      . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.


author: GRABER, Circuit Judge:

text:
    Clyde Raymond SPENCER, Plaintiff-Appellant/Cross-Appellee, v. James M. PETERS, Defendant, and Sharon Krause, Detective (Clark County); Michael Davidson, Sergeant (Clark County), Defendants-Appellees/Cross-Appellants.
    Nos. 14-35689
    14-35737
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 9, 2017, Seattle, Washington
    Filed May 18, 2017

      Kathleen Zellner (argued), Kathleen T. Zellner & Associates P.C., Downers Grove, Illinois, for Plaintiff-Appellant/Cross-Ap-pellee.
    Jeffrey A.O. Freimund (argued), Freim-und Jackson & Tardif PLLC, Olympia, Washington, for Defendant-Appel-lee/Cross-Appellant Michael Davidson.
    Guy M. Bogdanovich (argued), Law Lyman Daniel Kamerrer & Bogdanovich, Olympia, Washington, for Defendant-Ap-pellee/Cross-Appellant Sharon Krause.
    Before: SUSAN P. GRABER, SANDRA S. IKUTA, and ANDREW D. HURWITZ, Circuit Judges.
   OPINION

GRABER, Circuit Judge:

The Fourteenth Amendment prohibits the deliberate fabrication of evidence by a state official. Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc). Deliberate fabrication can be established by circumstantial evidence. For example, evidence that officials “continued their investigation of [a person] despite the fact that they knew or should have known that he was innocent,” id. at 1076, can raise the inference that the investigator has an “unlawful motivation” to frame an innocent person. Costanich v. Dep’t of Soe. & Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010). Or deliberate fabrication can be shown by direct evidence, for example, when “an interviewer ... deliberately mis-characterizes witness statements in her investigative report.” Id. In cases involving direct evidence, the investigator’s knowledge or reason to know of the plaintiffs innocence need not be proved. Id.

In this 42 U.S.C. § 1983 action, Plaintiff Clyde Raymond Spencer introduced direct evidence of deliberate fabrication, specifically, evidence that Clark County Sheriffs Office Detective Sharon Krause deliberately mischaracterized witnesses’ statements in her investigative reports. A jury found for Plaintiff and against Defendants Krause and Sergeant Michael Davidson, Krause’s supervisor. But the district court granted judgment as a matter of law to Defendants, on the ground that Plaintiff had failed to introduce evidence that Krause knew or should have known of Plaintiffs innocence. Because the district court misunderstood our precedent, and because Defendants’ other challenges to the jury’s verdict fail, we reverse and remand with instructions to enter judgment for Plaintiff consistent with the jury’s verdict.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff and his first wife, DeAnne Spencer, had two children, Matthew and Kathryn. After a divorce, DeAnne retained primary custody of the children in Sacramento, California, and the children visited Plaintiff several times a year near Vancouver, Washington.

After Plaintiff and DeAnne separated, Plaintiff lived with Karen Stone for about two years. Matthew and Kathryn visited Plaintiff for extended periods during that time, and they got to know Stone. In 1983, Plaintiff married his second wife, Shirley Spencer. Shirley’s son from a previous relationship, Matthew Hansen (“Hansen”), therefore became Plaintiffs stepson. Plaintiff, Shirley, and Hansen lived together in the Vancouver area. .

In the summer of 1984, Matthew and Kathryn visited Plaintiff for a six-week stay ending on Sunday, August 26, 1984. Matthew was 8; Kathryn was 5; and Hansen was 4. On the final weekend of the stay, Kathryn allegedly disclosed to Shirley that she had been sexually abused, including acts of vaginal and oral sex, by four people: her father (Plaintiff), her mother (DeAnne), her father’s previous girlfriend (Stone), and her eight-year-old brother (Matthew). Alarmed, Plaintiff and Shirley reported Kathryn’s statements to Child Protective Services. Investigations began in California and in Washington.

Sacramento Detective Pat Flood contacted Plaintiff and Shirley, who recounted Kathryn’s statements. Detective Flood then visited DeAnne, who denied any sexual abuse and any knowledge of the allegations against others. She later passed a polygraph examination, and Detective Flood terminated the investigation of DeAnne.

Detective Flood also talked with Matthew and Kathryn, who had recently returned from Vancouver. Matthew denied any knowledge of the allegations and denied any sexual abuse. Kathryn was “extremely shy,” according to Detective Flood’s contemporaneous report. (Detective Flood died before the trial in this case and therefore did not testify.) The report stated that Kathryn “indicated that she did tell Shirley everything that Shirley advised me of but then when asked to explain it or asked specific questions about it, she would say that she couldn’t remember the words so she couldn’t tell me.” Kathryn gave conflicting responses to questions asking whether anyone had touched her inappropriately. DeAnne took Kathryn for a medical exam; the examining doctor found no physical evidence of sexual abuse.

In Washington, Krause investigated Stone (Plaintiffs former girlfriend) and Plaintiff. Stone denied ever abusing Ka-thryn, and she agreed to take a polygraph test. Although Krause made eight attempts to schedule a polygraph test, Stone never took one. Krause nevertheless ended the investigation of Stone in December 1984.

Plaintiff, too, denied abusing Kathryn, and he also agreed to take a polygraph test. On September 21, 1984, Plaintiff— accompanied by Shirley—took a polygraph test at the Sheriffs Office. The results of the polygraph were inconclusive, so Plaintiff agreed to a second polygraph test a few days later. The examiner’s report of the results of the second test suggested deception, but not very strongly:

The subject demonstrated consistently greater physiologic responses on the three critical questions ... as compared to the control items. While this was sufficient to be indicative of deception, ... Spencer’s scores were not very high so that the examiner does not feel as certain about the validity of these findings as in most examinations. Hopefully, further corroboration of these results will be obtained.

In mid-October 1984, Krause traveled to Sacramento to continue the investigation. During that trip, she interviewed Matthew, DeAnne, two of DeAnne’s sisters, and DeAnne’s mother, all of whom denied any knowledge of sexual abuse of Kathryn by anyone. Krause prepared investigative reports of those interviews, including a report attributing many quotations to Matthew. During the trial in this case, Matthew testified that many of those quotations were fabricated—in particular, statements that incorrectly portrayed Matthew as comfortable with Krause and incorrectly portrayed Matthew as generally aware of the allegations of sexual abuse.

Krause also interviewed Kathryn twice. The interviews took place almost entirely in Krause’s motel room and her rental car, without anyone else present. Krause’s contemporaneous investigative reports claim that Kathryn described, in great detail, sexual abuse by Plaintiff. The reports contain scores of specific, explicit quotations attributed to Kathryn. At trial, however, Kathryn testified that, other than some trivial quotations unrelated to sexual abuse, all the quotations were fabrications. Kathryn testified that, in fact, she denied to Krause that anyone had sexually abused her.

In late November 1984, a prosecutor from King County, Washington, reviewed the investigative file at the request of the Clark County Sheriff’s Office. The prosecutor concluded that the case was “legally insufficient” for several reasons. First, Ka-thryn appeared to be “extremely reluctant to talk about facts,” and Kathryn’s failure to disclose the abuse to her counselor did “not bode well for testifying in court.” Second, the fact that Kathryn identified “multiple suspects is very disturbing,” because it suggested a lack of credibility. Third, there were inconsistencies “over all issues”: the number of times abuse occurred, what Plaintiff was wearing, and what Kathryn was wearing. Fourth, certain details commonly reported by victims of sexual abuse were lacking from Ka-thryn’s account.

In early December 1984, a Clark County prosecutor, Jim Peters, conducted a videotaped interview of Kathryn. According to Peters, the purpose was to find out “whether she could tell me the'Story of what happened and whether I thought she might be competent”; it was not an investigative interview. For that reason, Peters was not concerned about using techniques—such as coaching or suggestive questioning—that would be improper if used during an investigation.

On the videotape, which was played for the jury, Kathryn appeared very uncomfortable during the entire 45-minute initial interview. Very early on, she asked Krause to leave the room, even though Krause’s investigative reports portrayed Kathryn as extremely comfortable with her. Kathryn was unable to describe Plaintiffs alleged conduct—until after an hour-long break. After the break, in a 10-minute follow-up interview, Kathryn described various acts of sexual abuse by Plaintiff. Kathryn testified at trial in this case that, during the break, she had been coached about what to say and that she went along with describing acts of sexual abuse just so that the distressing interview would end.

Throughout the interview, Kathryn appeared eager to leave. Peters began the post-break interview by stating, “while the camera was off, [Kathryn] showed me something with the dolls, didn’t you?” After some coaxing, Kathryn demonstrated, using two anatomically correct dolls, two acts of sexual abuse. Peters then asked, “anything else?” to which Kathryn responded, “I forgot the last thing.” Peters later told his supervisor, in essence, that “I wouldn’t charge [the case] and I don’t want my name on the charging document.”

On January 2, 1985, the prosecutor’s office nevertheless charged Plaintiff with two counts of sexually abusing Kathryn. Plaintiff pleaded not guilty and was released.

By February 1985, Plaintiff and Shirley had separated, and Plaintiff was living at a motel. On February 16, Shirley dropped off four-year-old Hansen (Plaintiffs stepson) to spend the night with Plaintiff at the motel. Plaintiffs lawyer described this incident to the jury as a “set up.” Counsel argued that Shirley would not have dropped off her own four-year-old son had she believed that Plaintiff was a child rapist and that the incident gave Krause an opportunity to cure the defects in the case that the earlier prosecutors had noted. For example, Krause reported that Hansen described certain details that one of the prosecutors had identified as conspicuously missing from Kathryn’s account of sexual abuse.

After the night at the motel, Krause interviewed Hansen. According to the investigative report, Hansen told Krause that Plaintiff sexually abused him on that night, including having anal sex with him. Officers arrested Plaintiff. In a follow-up interview, Hansen recalled molestation by Plaintiff during the summer of 1984 of all three children—him, Matthew, and Ka-thryn. (Unlike Matthew and Kathryn, Hansen testified at trial that Plaintiff did, in fact, abuse him.)

Krause then re-interviewed Kathryn and Matthew separately and prepared further investigative reports. According to those reports, both children described, in detail, sexual abuse by Plaintiff of all three children. As with the earlier reports, both Kathryn and Matthew testified at trial that many of the quotations attributed to them were fabricated.

On May 3, 1985, the prosecutor charged Plaintiff with statutory rape of all three children. On May 16, 1985, Plaintiff pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An “Alford plea” allows a defendant to maintain his innocence but to plead guilty in the face of apparent evidence of his guilt. Plaintiffs theory at trial was that he entered an Alford plea because of the extensive fabricated evidence. Plaintiff has always maintained his innocence.

The state court sentenced Plaintiff to two life terms plus 171 months. In 2004, the Governor of Washington commuted his sentence to community supervision. In 2009, the state courts allowed Plaintiff to withdraw his Alford plea. In 2010, the prosecutor dismissed all charges against Plaintiff.

In 2011, Plaintiff brought this civil action, which was tried to a jury on three claims: (1) a violation of the Fourteenth Amendment by Defendant Krause for deliberate fabrication of evidence; (2) respon-deat superior liability for Defendant Davidson; and (3) conspiracy by Defendants Krause and Davidson to fabricate evidence deliberately. The district court instructed the jury that, in order to find for Plaintiff on the substantive deliberate-fabrication claim, the jury must find that:

1. Defendant Krause deliberately fabricated evidence against plaintiff;
2. Defendant Krause acted with deliberate indifference toward the constitutional right of plaintiff;
3. Defendant Krause continued her investigation of plaintiff despite the fact that she knew or should have known that plaintiff was innocent of the charges stemming from that evidence;
4. The criminal charges filed against plaintiff were based on that evidence;
5. Plaintiff suffered injury as a result of that evidence; and
6. That evidence was so closely related to the deprivation of plaintiffs right as to be the moving force that caused the ultimate injury.

The jury returned a verdict for Plaintiff on the two substantive claims and a verdict for Defendants on the conspiracy claim. The jury awarded $9 million in damages. After trial, the district court granted judgment as a matter of law to Defendants on the ground that Plaintiff had introduced insufficient evidence to prove that Krause knew or should have known that Plaintiff was innocent.

Plaintiff timely appeals. Defendants timely cross-appeal.

STANDARDS OF REVIEW

We review de novo a judgment as a matter of law. Velazquez v. City of Long Beach, 793 F.3d 1010, 1017 (9th Cir. 2015).

We review a district court’s formulation of civil jury instructions for an abuse of discretion, but we consider de novo whether the challenged instruction correctly states the law. “Jury instructions must be supported by the evidence, fairly and adequately cover the issues presented, correctly state the law, and not be misleading.” Peralta v. Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014) (en banc). But if any error relating to the jury instructions was harmless, we do not reverse. “In evaluating jury instructions, prejudicial error results when, looking to the instructions as a whole, the substance of the applicable law was not fairly and correctly covered. Harmless error review for a civil jury trial shifts the burden to the defendant to demonstrate that it is more probable than not that the jury would have reached the same verdict had it been properly instructed.” Gantt v. City of L.A., 717 F.3d 702, 707 (9th Cir. 2013).

Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir. 2014) (alterations omitted).

We review for abuse of discretion the district court’s admission of evidence. McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003).

DISCUSSION

To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiffs deprivation of liberty. Costanich, 627 F.3d at 1111. To establish the second element of causation, the plaintiff must show that (a) the act was the cause in fact of the deprivation of liberty, meaning that the injury would not have occurred in the absence of the conduct; and (b) the act was the “proximate cause” or “legal cause” of the injury, meaning that the injury is of a type that a reasonable person would see as a likely result of the conduct in question. Whitlock v. Brueggemann, 682 F.3d 567, 582-83 (7th Cir. 2012).

A. Deliberate Fabrication

Plaintiff argues that the district court incorrectly granted judgment as a matter of law to Defendants. “[W]hen reviewing a motion for judgment as a matter of law, we apply the law as it should be, rather than the law as it was read to the jury.” Pincay v. Andrews, 238 F.3d 1106, 1109 n.4 (9th Cir. 2001); accord Fisher v. City of San Jose, 558 F.3d 1069, 1074-(9th Cir. 2009) (en banc); cf. Musacchio v. United States, — U.S. -, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016) (“All that a [criminal] defendant is entitled to on a sufficiency challenge is for the court to make a ‘legal’ determination whether the evidence was strong enough to reach a jury at all.”).

As we explained in Costanich, 627 F.3d at 1111, “an interviewer who deliberately mischaracterizes witness statements in her investigative report ... commits a constitutional violation.” Here, Plaintiff introduced sufficient evidence for a reasonable juror to find that this standard was satisfied. Krause’s investigative reports contained scores of quotations attributed to Kathryn and Matthew, both of whom unequivocally testified at trial that they had never made those statements. For example, Krause reported that, in October 1984, Kathryn described detailed acts of sexual abuse by Plaintiff, and Krause’s report contained many specific quotations attributed to Kathryn. Kathryn testified at trial that, not only did she not make those statements to Krause, but she affirmatively told Krause that no abuse had occurred. The jury was permitted to credit Ka-thryn’s testimony rather than Krause’s contrary testimony. See, e.g., First Nat’l Mortg. Co. v. Fed. Realty Inv. Tr., 631 F.3d 1058, 1069 (9th Cir. 2011) (“[I]t was the jury’s province to make any credibility determinations and to resolve any factual disputes.”).

To be sure, not all inaccuracies in an investigative report give rise to a constitutional claim. See, e.g., Black v. Montgomery County, 835 F.3d 358, 372 (3d Cir. 2016) (noting the limitations on a fabricated-evidence claim), cert. denied, — U.S. ——, 137 S.Ct. 2093, 197 L.Ed.2d 895, 2017 WL 1540522 (2017); Whitlock, 682 F.3d at 586 (same). Mere “carelessness]” is insufficient, Gausvik v. Perez, 345 F.3d 813, 817 (9th Cir. 2003), as are mistakes of “tone,” Costanich, 627 F.3d at 1113. Errors concerning trivial matters cannot establish causation, a necessary element of any § 1983 claim. Black, 835 F.3d at 372. And fabricated evidence does not give rise to a claim if the plaintiff cannot “show the fabrication actually injured her in some way.” Whitlock, 682 F.3d at 585. But, if Kathryn’s testimony is credited, the misquotations here cannot be explained as carelessness or as a mistake of tone; nor are they trivial or without consequence. Kathryn told Krause that no abuse had occurred. Krause falsely reported, in quotations attributed to Kathryn, that Kathryn had made detailed, explicit statements of abuse. Plaintiff testified that, due to the fabricated evidence, he entered an Alford plea, causing him to spend nearly two decades in prison.

Because Plaintiff introduced direct evidence of deliberate fabrication, he did not have to prove that Krause knew or should have known that he was innocent. The district court’s contrary holding misapprehends our precedent.

In Devereaux, 263 F.3d at 1073-76, the plaintiff alleged that police officers used extremely aggressive interview techniques when questioning children, thus generating false evidence against him. In that context, we “assumed” that a plaintiff must

point to evidence that supports at least one of the following two propositions: (1) Defendants continued their investigation of Devereaux despite the fact that they knew or should have known that he was innocent; or (2) Defendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information.

Id. at 1076. We later applied that standard in cases involving allegedly aggressive interviewing tactics. E.g., Gantt, 717 F.3d at 707-08.

Those two prongs make sense in the absence of direct evidence of deliberate fabrication of evidence. If an investigator knows that a person is innocent, yet continues the investigation nevertheless, then the evidence suggests circumstantially that the investigator has an unlawful motivation to frame an innocent person, which supports a claim that the investigator deliberately fabricated evidence. Similarly, if an investigator knowingly uses coercive and abusive techniques that likely will generate false information, then that circumstantial evidence suggests that the investigator is deliberately fabricating evidence.

But, as we made clear in Costanich, 627 F.3d at 1111-14, those methods of proving deliberate fabrication are unnecessary in a case involving direct evidence of deliberate fabrication. In Costanich, there was direct evidence that the investigator had fabricated evidence—for example, direct misquotation of witnesses in investigative reports. Id. at 1111. The district court had granted summary judgment to the defendants on the ground that the record contained insufficient evidence of either of the two Dever-eaux prongs. Id. We reversed, with the following explanation:

The district court read the Devereaux standard too narrowly. Costanich alleges, and has produced evidence supporting her claim, that Duron deliberately misquoted and misrepresented witness statements, i.e., deliberately falsified statements in her investigative report and declaration. The Devereaux test envisions an investigator whose unlawful motivation is illustrated by her state of mind regarding the alleged perpetrator’s innocence, or one who surreptitiously fabricates evidence by using coercive investigative methods. These are circumstantial methods of proving deliberate falsification. Here, Costanich argues that the record directly reflects Duron’s false statements. If, under Devereaux, an interviewer who uses coercive interviewing techniques that are known to yield false evidence commits a constitutional violation, then an interviewer who deliberately mischaracterizes witness statements in her investigative report also commits a constitutional violation. Similarly, an investigator who purposefully reports that she has interviewed witnesses, when she has actually only attempted to make contact with them, deliberately fabricates evidence.

Id. Elsewhere in our opinion, we reiterated the point:

It is also true that, in the course of her investigation, Duron could have believed that Costanich was guilty of [a state-law crime].... If the only evidence of deliberate fabrication were inferences from Duron’s investigative methods, under Devereaux, Duron’s subjective and personal belief of Costanich’s guilt might have explained why Duron continued the investigation. 263 F.3d at 1076. That belief, however, does not permit or excuse deliberate falsification of evidence.

Id. at 1113.

In sum, the Constitution prohibits the deliberate fabrication of evidence whether or not the officer knows that the person is innocent. See Devereaux, 263 F.3d at 1074-75 (“[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.”); Halsey v. Pfeiffer, 750 F.3d 273, 292-93 (3d Cir. 2014) (“[N]o sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence.”); see also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (“No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an ar-restee.”). The district court erred by granting judgment as a matter of law to Defendants because, in this case involving direct evidence of fabrication, Plaintiff was not required to show that Krause actually or constructively knew that he was innocent.

B. Causation

Defendants challenge the jury instructions on causation, which required Plaintiff to prove that:

5. Plaintiff suffered injury as a result of that [fabricated] evidence; and
6. That evidence was so closely related to the deprivation of plaintiffs right as to be the moving force that caused the ultimate injury.

Defendants contend that the district court erred by not separately instructing the jury on “but for” causation and “proximate” causation, using those terms verbatim.

“In a § 1983 action, the plaintiff must ... demonstrate that the defendant’s conduct was the actionable cause of the claimed injury. To meet this causation requirement, the plaintiff must establish both causation-in-fact and proximate causation.” Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (citation omitted). The “moving force” formulation given in this case is most commonly used in cases involving municipal liability: “official policy must be ‘the moving force of the constitutional violation’ in order to establish the liability of a government body under § 1983.” Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). But we need not decide whether the district court erred or abused its discretion in using the “moving force” formulation in this individual liability case, because any error was harmless.

The jury affirmatively found both that “Plaintiff suffered injury as a result of’ the fabricated evidence and that the fabricated evidence was “the moving force that caused the ultimate injury.” (Emphases added.) See Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013) (holding that “moving force” in the Monell context includes “both causation-in-fact and proximate causation”). Nor were Defendants prevented from arguing their theory of the case. Defendants argued to the jury that the fabricated evidence was not the moving force because of intervening events—such as non-fabricated evidence and Plaintiffs Alford plea. But the jury necessarily rejected that argument.

Ample evidence in the record supports the jury’s findings on causation. If Ka-thryn’s testimony is credited, very little evidence of Plaintiffs guilt actually existed. Indeed, even with the fabricated evidence in the file, two prosecutors independently recommended that charges not be brought. Moreover, roughly the same amount of evidence implicated Stone as implicated Plaintiff—yet prosecutors declined to charge Stone, strongly suggesting that, had Krause not fabricated any evidence, prosecutors likewise would have declined to charge Plaintiff.

Given the jury’s findings on causation and all the other elements, we see no likelihood that the jury would have concluded that but-for causation or proximate causation was lacking. We therefore easily conclude that “it is more probable than not that the jury would have reached the same verdict,” Gantt, 717 F.3d at 707, had the district court given Defendants’ proffered instructions on causation.

C. Probable Came

Defendants next argue that the district court erred by declining to instruct the jury that Plaintiff was required to prove that, setting aside the fabricated evidence, probable cause was lacking. We disagree.

The only two sister circuits to have addressed this issue directly have held that the plaintiff need not prove a lack of probable cause for the prosecution. Halsey, 750 F.3d at 292-93; Ricciuti, 124 F.3d at 129-31. Although we have not addressed the question squarely, our cases strongly suggest that a lack of probable cause to prosecute a defendant is not an element of a deliberate-fabrication claim. See Gausvik, 345 F.3d at 817-18 (analyzing whether the allegations met the standard for deliberate fabrication, even though probable cause existed); see also Costanich, 627 F.3d at 1113 (holding that the investigator’s belief that a crime had been committed “does not permit or excuse deliberate fabrication of evidence”); Crowe v. County of San Diego, 608 F.3d 406, 432-37 (9th Cir. 2010) (upholding a Fourteenth Amendment coercive-interview claim while rejecting Fourth Amendment claims because of the existence of probable cause).

Defendants assert that, when probable cause exists, an investigator’s deliberate fabrication of evidence does not shock the conscience. See Gantt, 717 F.3d at 707 (“[D]ue process violations under the Fourteenth Amendment occur only when official conduct shocks the conscience.... ” (citation and internal quotation marks omitted)). We join our sister circuits in rejecting that assertion as inconsistent with the Fourteenth Amendment’s guarantee of due process: “Even if we agreed [that probable cause existed], we believe that no sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence.” Halsey, 750 F.3d at 292-93; see id. at 293 (“A rule of law foreclosing civil recovery against police officers who fabricate evidence, so long as they have other proof justifying the institution of the criminal proceedings against a defendant, would not follow the statute’s [§ 1983] command or serve its purpose.”); Ricciuti, 124 F.3d at 130 (“To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false confessions at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice.”); see also Black, 835 F.3d at 371 (“[DJeliberate framing by officials offends- the most strongly held values of our nation.” (internal quotation marks omitted)).

We have held that, to establish a Fourth Amendment .violation where officers allegedly have included false information in a warrant affidavit, “the plaintiff must establish that the remaining information in the affidavit is insufficient to establish probable cause.” Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995). But the reasoning of our Fourth Amendment cases does not apply here. Probable cause definitively resolves a Fourth Amendment claim for including false information in a warrant affidavit, because the Fourth Amendment mandates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const, amend. IV. If bona fide information in the warrant affidavit establishes probable cause, then the plaintiff necessarily cannot state a Fourth Amendment violation because the warrant was, in fact, issued upon probable cause, supported by oath or affirmation. The warrant would have issued regardless of the false information; the plaintiff cannot “establish that, but for the dishonesty, the challenged action would not have occurred.” Liston v. County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997). In other words, in the Fourth Amendment warrant-issuance context, the probable-cause inquiry collapses into the causation inquiry.

By contrast, the existence of probable cause does not resolve Plaintiffs Fourteenth Amendment claim for deliberate fabrication of evidence. Plaintiffs theory of the case—accepted by the jury—was that the fabricated evidence caused him to enter an Alford plea, which led to his serving nearly two decades in prison. Whether probable cause existed is entirely beside the point of that inquiry. The only causation question for the jury was whether the fabricated evidence did, in fact, cause his nearly two decades of imprisonment. See Part B, above. We therefore need not decide whether an instruction on probable cause would be proper in a case involving alleged damages stemming only from a prosecutor’s charging decision.

For those reasons, the district court properly declined to instruct the jury on the issue of probable cause.

D. Deliberate Indifference

1. Defendant Krause deliberately fabricated evidence against plaintiff;
2. Defendant Krause acted with deliberate indifference toward the constitutional right of plaintiff; [and four other elements.]
Deliberate indifference is the conscious or reckless disregard of the consequences of one’s acts or omissions. It entails something more than negligence but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.

Defendants argue that the district court erred by giving the instruction on deliberate indifference and the accompanying definition. Necessarily, requiring that Plaintiff prove an additional element—an added burden—cannot, by itself, have prejudiced Defendants.

Defendants further argue that, because the first and second elements used similar words—“deliberately fabricated” and “deliberate indifference”—the jury may have misunderstood the first element as encompassing a deliberate indifference standard. We find no reasonable likelihood of confusion here. “A jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). The first and second elements are plainly separate; the phrase “deliberately fabricated” is not a technical term likely to confuse the jury; and the definition in the paragraph at the end of the instruction clearly defines “deliberate indifference,” not “deliberately fabricated.” Nor does the jury’s question regarding the instruction establish a likelihood of confusion. Rather, the jury’s question concerned the relationship between deliberate indifference and negligence, not between deliberate indifference and deliberate fabrication.

E. Admission of Evidence

Finally, we hold that the district court did not abuse its discretion by permitting Plaintiff to introduce certain evidence. The district court identified the correct legal standard, Federal Rule of Evidence 403, and its application of that standard was not illogical, implausible, or without support in inferences that may be drawn from the facts in the record. United States v. Torres, 794 F.3d 1053, 1059 (9th Cir. 2015), cert. denied, — U.S.-, 136 S.Ct. 2005, 195 L.Ed.2d 220 (2016). The evidence was relevant on many grounds, including to show credibility and state of mind, and the court gave a proper limiting instruction that is unchallenged on appeal. The fact that the evidence was also relevant to claims that were dismissed before or during trial does not affect the- relevance of the evidence to the deliberate-fabrication claim that was presented to the jury. Evidence is often relevant to more than one claim.

REVERSED and REMANDED with instructions to reinstate the verdict.

      . Because we are reviewing the district court’s judgment as a matter of law following a verdict in favor of Plaintiff, we must view the evidence in the light most favorable to Plaintiff, and we must draw all reasonable inferences in his favor. Oracle Corp v. SAP AG, 765 F.3d 1081, 1086 (9th Cir. 2014).

      . Sergeant Davidson was present, and Shirley met him for the first time. Plaintiff's theoiy at trial was that Davidson was immediately attracted to Shirley, which may have motivated Davidson to be less than scrupulous—or outright unethical.—when it came to the investigation of Plaintiffs actions. For example, it was undisputed that Shirley and Plaintiff separated during the investigation; that Shirley and Davidson moved in together very shortly after Plaintiff was sentenced; and that Shirley and Davidson lived together for about five years. Similarly, Plaintiff introduced evidence that Davidson improperly visited Plaintiff while he was in jail pending trial and that, during those visits, Davidson pressured Plaintiff to sign a quitclaim deed to Shirley’s benefit.

      . The cross-appeal advances only alternative arguments in support of the judgment. Accordingly, a cross-appeal was unnecessary. See, e.g., El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999) (“Absent a cross-appeal, an appel-lee may urge in support of a decree any matter appearing in the record....” (internal quotation marks omitted)); Rivero v. City of San Francisco, 316 F.3d 857, 862 (9th Cir. 2002) (“Prevailing parties need not have filed cross-appeals in order to correct errors in the district court's reasoning nor to preserve alternative grounds for affirming the judgment.” (internal quotation marks and alterations omitted)). Nonetheless, "[a] protective cross-appeal is permissible once an initial appeal is filed.” Warfield v. Alaniz, 569 F.3d 1015, 1019 n.3 (9th Cir. 2009). We treat Defendants' arguments on cross-appeal as alternative arguments to affirm the judgment. See Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1085 (9th Cir. 2015) ("Because the cross-appeal requirement is a rule of practice and not a jurisdictional bar, an appellate court has broad power to make such dispositions as justice requires.” (internal quotation marks omitted)), cert. denied,-U.S.-, 136 S.Ct. 2433, 195 L.Ed.2d 870 (2016); see also Shepard v. Quillen, 840 F.3d 686, 693 (9th Cir. 2016) ("We can affirm on any ground supported by the record.” (internal quotation marks omitted)).

      . Our sister circuits have split on the closely related issue of whether a "deliberate fabrication of evidence” claim necessarily fails if the plaintiff was acquitted. See Black, 835 F.3d at 371 & n.12 (collecting cases). This case does not raise that issue because Plaintiff was not acquitted.


author: WATFORD, Circuit Judge:

text:
    U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MCLANE COMPANY, INC., Defendant-Appellee.
    No. 13-15126
    United States Court of Appeals, Ninth Circuit.
    Filed May 24, 2017

      James Tucker (argued), Attorney, P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Daniel T. Vail, Acting Assistant General Counsel, U.S. Equal Employment Opportunity-Commission, Washington, D.C., for Plaintiff-Appellant.
    Ronald E. Manthey (argued) and Ellen L. Perlioni, Morgan, Lewis & Bockius LLP, Dallas, Texas; Joshua R. Woodard and Ashley T. Kasarjian, Snell & Wilmer L.L.P., Phoenix, Arizona, for Defendant-Appellee.
    Before: J. CLIFFORD WALLACE, MILAN D. SMITH, JR., and PAUL J. WATFORD, Circuit Judges.
   OPINION

WATFORD, Circuit Judge:

This case returns to us on remand from the United States Supreme Court. In our earlier decision, we held that the district court erred by denying enforcement of an administrative subpoena issued by the Equal Employment Opportunity Commission (EEOC) to McLane Company. EEOC v. McLane Co., 804 F.3d 1051 (9th Cir. 2015), vacated, — U.S. -, 137 S.Ct. 1159, 197 L.Ed.2d 500 (2017). The EEOC issued the subpoena as part of its investigation into a charge filed by Damiana Ochoa, a former employee of a McLane subsidiary. Ochoa alleged that McLane discriminated against her on the basis of sex when it fired her after she failed to pass a physical capability strength test. As relevant here, the subpoena requests “pedigree information” (name, Social Security number, last known address, and telephone number) for employees or prospective employees who took the test. In accordance with prevailing circuit precedent at the time, we reviewed de novo the district court’s ruling that the pedigree information was not relevant to the EEOC’s investigation. Id. at 1056. The Supreme Court vacated pur judgment after concluding that a district court’s decision whether to enforce an EEOC subpoena should be reviewed for abuse of discretion. McLane Co. v. EEOC, — U.S. -, 137 S.Ct. 1159, 1164, 197 L.Ed.2d 500 (2017). The Court remanded the case so that we could reevaluate the district court’s ruling under the proper standard of review. Id. at 1170. Having done so, we conclude that the district court abused its discretion by denying enforcement of the subpoena.

The district court held that the pedigree information was not relevant “at this stage” of the EEOC’s investigation because the evidence McLane had already produced would “enable the E.E.O.C. to determine whether the [strength test] systematically discriminates on the basis of gender.” The court suggested that if the EEOC’s analysis of the information McLane had already produced during the investigation indicates systemic discrimination, the pedigree information might become relevant at that point, and its production to the EEOC might then be “necessary.”

The district court’s ruling was predicated on an erroneous view of the legal standard governing relevance in this context. We adopt below the portions of our earlier analysis that remain relevant to explaining why the district court committed legal error in this regard.

Under Title VII of the Civil Rights Act of 1964, the EEOC has the right to obtain evidence if it relates to employment practices made unlawful under Title VII and “is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). The relevance limitation imposed by § 2000e-8(a) “is not- especially constraining.” EEOC v. Shell Oil Co., 466 U.S. 54, 68, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984). The question is not whether the evidence sought would tend to prove a charge of unlawful discrimination. At the investigative stage, the EEOC is trying to determine only whether “reasonable cause” exists “to believe that the charge is true.” 42 U.S.C. § 2000e-5(b). So the relevance standard in this context sweeps more broadly than it would at trial. It encompasses “virtually any material that might cast light on the allegations against the employer.” Shell Oil, 466 U.S. at 68-69, 104 S.Ct. 1621.

Under this standard, the pedigree information is relevant to the EEOC’s investigation. Ochoa’s charge alleges that McLane’s use of the strength test discriminates on the basis of sex. To decide whether there is any truth to that allegation, the EEOC can of course speak to Ochoa about her experience with taking the test. But the EEOC also wants to contact other McLane employees and applicants for employment who have taken the test to learn more about their experiences. Speaking with those individuals “might cast light” on the allegations against McLane—whether positively or negatively. To take but one example, the EEOC might learn through such conversations that other female employees have been subjected to adverse employment actions after failing the test when similarly situated male employees have not. Or it might learn the opposite. Either way, the EEOC will be better able to assess whether use of the test has resulted in a pattern or practice of disparate treatment. To pursue that path, however, the EEOC must first learn the test takers’ identities and contact information, which is enough to render the pedigree information relevant to the EEOC’s investigation.

McLane contends that, given all of the other information it has produced, the EEOC cannot show that production of the pedigree information is “necessary” to complete its investigation. But the governing standard is not “necessity”; it is relevance. If the EEOC establishes that the evidence it seeks is relevant to the charge under investigation, we have no warrant to decide whether the EEOC could conduct the investigation just as well without it. The EEOC does not have to show a “particularized necessity of access, beyond a showing of mere relevance,” to obtain evidence. University of Pennsylvania v. EEOC, 493 U.S. 182, 188, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). Congress has not left it to employers accused of discrimination to decide what evidence may be necessary for the EEOC to complete its investigation. Id. at 193, 110 S.Ct. 577.

For similar reasons, the district court erred as a matter of law when it held that pedigree information is irrelevant “at this stage” of the investigation. The court reasoned that the evidence McLane had already produced would allow the EEOC to determine whether McLane’s use of the strength test discriminates on the basis of sex. The court suggested that if the EEOC’s analysis of that evidence indicates systemic discrimination, the pedigree information might become relevant and obtaining that information might then be “necessary.” The EEOC argues that the district court improperly required it to substantiate the allegation of systemic discrimination before it could obtain access to relevant evidence. We doubt that is what the district court meant, as the Supreme Court has made plain that courts may not condition enforcement of EEOC administrative subpoenas on a threshold evidentia-ry showing that the allegations under investigation have merit. Shell Oil, 466 U.S. at 71-72 & n.26, 104 S.Ct. 1621. Rather, the district court appeared to conclude that the EEOC did not really need pedigree information to make a. preliminary determination as to whether use of the strength test has resulted in systemic discrimination. As we have explained, however, that line of reasoning is invalid: The EEOC’s need for the evidence—or lack thereof—simply does not factor into the relevance determination.

McLane argues that the pedigree information is not relevant because Ochoa’s charge alleges only a “neutrally applied” strength test, which by definition cannot give rise to disparate treatment, systemic or otherwise. McLane’s argument misconstrues the charge. Ochoa alleges that McLane requires all employees returning from medical leave to take the strength test before they can return to work, but she does not allege that the test is neutrally applied. (She alleges just the opposite— that the test was discriminatorily applied as to her.) Even though McLane requires everyone to take the test, the test could still be applied in a discriminatory manner-—-if, for example, the company were to routinely excuse the failure of male employees to pass the test but grant no such exemptions to similarly situated female employees. The very purpose of the EEOC’s investigation is to determine whether the test is being neutrally applied; the EEOC does not have to take McLane’s word for it on that score. See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 296-99 (4th Cm. 2010).

Because the district court based its ruling on an incorrect view of the legal standard governing relevance, it necessarily abused its discretion when it held that the pedigree information is not relevant to the EEOC’s investigation. See McLane, 137 S.Ct. at 1168 n.3; id. at 1170 (Ginsburg, J., concurring in part and dissenting in part) (stating that “the District Court erred as a matter of law in demanding that the EEOC show more than relevance in order to gain enforcement of its subpoena”). We therefore vacate the district court’s judgment and remand for further proceedings. On remand, McLane is free to renew its argument that the EEOC’s request for pedigree information is unduly burdensome. McLane raised that argument in the district court during the first round of litigation, but the court had no occasion to reach it given the court’s ruling on relevance. We decline to address McLane’s undue burden argument in the first instance ourselves.

On remand, the district court should also resolve whether producing a second category of evidence—the reasons test takers were terminated—would be unduly burdensome to McLane. In our earlier decision, we noted that the district court had declined to enforce this portion of the EEOC’s subpoena, without stating its reasons for doing so. 804 F.3d at 1058-59. We vacated that aspect of the district court’s judgment, and McLane did not seek review of that ruling in the Supreme Court. McLane, 137 S.Ct. at 1166 n.2. That issue thus remains open for the district court to resolve in the first instance as well.

VACATED and REMANDED. Each party shall bear their own costs on appeal.