author: PERRY, District Judge.

text:
    Stephanie JENKINS, Plaintiff-Appellee v. The UNIVERSITY OF MINNESOTA, Defendant Ted Swem, in his personal capacity, Defendant-Appellant David E. Andersen, in his personal capacity, Defendant
    No. 15-3273
    United States Court of Appeals, Eighth Circuit.
    Submitted: June 15, 2016
    Filed: October 3, 2016

      Joseph A. Larson, Joseph A. Larson Law Firm, Mendota Heights, MN, Brent Schafer, Schafer Law Firm, Lilydale, MN, David E. Schlesinger, Nichols & Raster, Minneapolis, MN, for Plaintiff-Appellee.
    Gregory G. Brooker, Ana H. Voss, Assistant U.S. Attorneys, U.S. Attorney’s Of~ fice, District of Minnesota, Thomas Harold Shiah, Minneapolis, MN, Thomas E. Hayes, -Law Offices of Thomas E. Hayes, Milwaukee, WI, for Defendant-Appellant.
    Before MURPHY and SHEPHERD, Circuit Judges, and PERRY, District Judge.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri, sitting by designation.

   PERRY, District Judge.

Stephanie Jenkins brought this sexual harassment suit under 42 U.S.C. § 1983 against the University of Minnesota, David Andersen, and Ted Swem. After the district court denied Swem’s motion for summary judgment based on qualified immunity, he appealed. This Court has jurisdiction over this interlocutory appeal. We affirm the district court’s denial of qualified immunity.

I. Background

Stephanie Jenkins entered the University of' Minnesota in the fall of 2011 to pursue a Ph.D. in Natural Resources and Science Management. The summer before she began her studies, Jenkins was offered a unique and professionally advantageous opportunity to work as a graduate researcher collecting field data- on peregrine falcons on the Colville River in Alaska. The project, a joint collaboration between the U.S. Geological Survey, the Bureau of Land Management, and the University, aligned with her exact academic interests.

Ted Swem, a scientist from the United States Fish and Wildlife Services stationed in Fairbanks, Alaska, is the leading authority in the field of peregrine falcons. He has been monitoring the birds in Northern Alaska for approximately thirty years. Swem’s role in the project was to be mentor and guide to Jenkins, teaching her how to collect and sort the data, as well as how to survive in the remote region.

In June and July of 2011, Jenkins and Swem embarked on two 17-day research trips to the isolated Colville River, a remote field location in arctic,Alaska almost completely uninhabited by humans. Almost immediately, Swem began telling sexually explicit jokes, asking Jenkins personal questions about her dating life, and telling stories of prior sexual encounters and relationships with previous graduate students. He took a photograph of her buttocks, which he later deleted, and made a comment about “the scenery.” He bathed in the river in front of her, and encouraged her to do the same, telling her she was too modest. He also made reference to her needing a “pool boy” to accompany her on research trips.

Between and after the trips, Jenkins stayed in Fairbanks for a couple of weeks to organize and analyze the collected data. In Fairbanks between the two trips, Swem invited Jenkins on social outings, including offering to take her rappelling and kestrel banding, because she would need those skills on her second trip. On the day of this particular outing, and once they were fairly far outside of Fairbanks, Swem claimed he forgot the rappelling equipment. Instead they banded kestrels and had dinner together at a, restaurant. He offered to be her pool boy and give her a “horse bite” while they were in the car together. When they arrived back at his house later that evening, Jenkins went inside to retrieve her computer. Swem left the lights off in the house and stared at her.

Another time, Swem invited Jenkins to lunch under the pretense of discussing logistics of the upcoming trip, even though it quickly became apparent that the trip was already planned. He complimented her physical appearance and told her he was interested in a romantic relationship with her. He joked that they should bring only one tent for the next trip and that she was welcome in his tent anytime. He also told her that she could just sit in his lap and kiss him if she ever wanted a relationship with him. He acknowledged that his behavior could be construed as sexual harassment because of the power dynamic, but suggested that his role could be changed if she was interested in pursuing a relationship. Jenkins informed Swem that she wished to keep their relationship professional.

. During the second trip, Dr. Andersen— Jenkins’ academic advisor at UM and a collaborator on the research project—was present for the first seven days of the trip. Swem did not tell any sexual jokes or otherwise act inappropriately during that time, but as soon as Andersen left, Swem resumed his aggressive sexual advances. On one occasion, as they rappelled down to a nest site, Swem described what he thought it would be like to kiss her. Jenkins could not physically distance herself from him at this point, so she did not respond at all. Swem also brought alcohol on the trip and encouraged Jenkins to drink every night. He suggested they celebrate their last night of the trip by finishing an entire bottle of whiskey together, but Jenkins declined.

Swem continued to pressure Jenkins on the question of why she wasn’t interested in a romantic relationship. She repeated that they worked together and offered several other reasons as well.

When they returned to Fairbanks after the second trip, Swem invited Jenkins to dinner at his house on multiple occasions, always offering her alcohol. She also went there on occasion to shower, and to use his laundry facilities, because she did not have running water in her cabin. Swem continued to discuss his desire for a relationship with her, explaining that all the reasons she gave for not dating him were logistical and could be overcome. Jenkins again explained that she had no interest in a romantic relationship with him.

When she arrived at UM for the beginning of the fall semester,. Jenkins learned that she and Swem were assigned to share an office space. He was to be there for one academic year, analyzing his Colville river data, among other duties. Swem continued to invite Jenkins out on social outings, including dinner and hockey games, though he did not make any further sexual comments. Jenkins eventually started studying and doing her graduate work in coffee shops or libraries to avoid Swem. She states that he was “always” in their shared office with the door closed. After failing a statistics exam, Jenkins sought counseling.

The counselor suggested that she was suffering from anxiety and stress related to the situation with Swem, and that she should talk to her advisor about relocating to a new office. On Friday, November 4, 2011, Jenkins discussed Swem’s behavior with Dr. Andersen for the first time. Andersen made a new office space available to Jenkins the following Monday, but it took some time to arrange for internet access in the new space, meaning it was not immediately useful. In January of 2012, Jenkins resigned from the University. She has since been diagnosed with PTSD, depression, and anxiety.

Jenkins brought suit against UM, Dr. Andersen, and Swem, alleging that Swem sexually harassed her and created a hostile work environment in violation of her Fourteenth Amendment rights. Swem filed a motion to dismiss the claim against him in his individual capacity, arguing that he was entitled to qualified immunity, which the district court denied. Swem later moved for summary judgment on the same grounds, and the district court again denied the motion. The court concluded that Jenkins’ constitutional right to be free from sexual harassment by a state actor was clearly established .under the Fourteenth Amendment. Next, the district court concluded that genuine questions of material fact existed as to whether Swem violated Jenkins’ constitutional rights, including: whether Swem’s conduct was unwelcome and whether Jenkins made that fact known; whether Swem was able to take action- that affected a term, condition or privilege of Jenkins’ employment; and, whether Swem’s behavior interfered with Jenkins’ performance on the job. The district court concluded that the facts, when construed in the light most favorable to Jenkins, demonstrated a constitutional violation, and so the Court denied qualified immunity. This interlocutory appeal followed.

II. Analysis

On appeal, Swem argues that he was entitled to qualified immunity, and the district court should have granted him summary judgment on Jenkins’. hostile work environment claim. As an initial matter, we must address whether this Court has jurisdiction over Swem’s interlocutory appeal. If we find jurisdiction is proper, we will then discuss whether Swem possessed qualified immunity.

A. Jurisdiction

Ordinarily, this Court lacks jurisdiction to “hear an immediate appeal from a district court’s order denying summary judgment, because such an order is not a final decision.” Shannon v. Koehler, 616 F.3d 865, 860 (8th Cir. 2010) (quoting Langford v. Norris, 614 F.3d 445, 455 (8th Cir. 2010)). We have limited authority to review the denial of qualified immunity through an interlocutory appeal under the collateral order doctrine. Id. at 861. Jurisdiction over an interlocutory appeal from the denial of qualified immunity extends only to “abstract issues of law,” not to “determinations that the evidence is sufficient to permit a particular finding of fact after trial.” Id. (quoting Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)). When an appellant challenges .issues of fact, we apply de novo review, but “must take as true those facts the district court found or likely assumed as true,” so long as they are not blatantly contradicted by the- record. Williams v. Herron, 687 F.3d 971, 974 (8th Cir. 2012). “As to any unresolved factual questions, we make all reasonable inferences in favor of the plaintiff.” Id. (citing Brown v. Fortner, 518 F.3d 552, 558 (8th Cir. 2008)).

Although Jenkins argues that we do not have jurisdiction to review the claims raised in this interlocutory appeal because they are fact-based, not every denial of summary judgment is nonappealable simply because it includes a determination that there are controverted issues of material fact. Shannon, 616 F.3d at 861 (citing Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). Jurisdiction extends to the “purely legal” issue of whether the facts, taken most favorably -to the plaintiff, support a finding that the defendant violated her clearly established constitutional rights. Reeves v. King, 774 F.3d 430, 431 (8th Cir. 2014). We may properly review this appeal under these standards.

B. Qualified Immunity

“ ‘Qualified immunity protects government officials performing discretionary functions from liability for damages so long as ‘their conduct does not violate clearly established statutory, or constitutional rights of which a reasonable person would have known.’ ” Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

When considering qualified immunity, we must answer a two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory'right; and '(2) whether that right was clearly established at the time of the defendant’s alleged misconduct. Santiago v. Blair, 707 F.3d 984, 989 (8th Cir. 2013). Defendants “are entitled to qualified immunity unless the answer to both of these questions is yes.” McCaster v. Clausen, 684 F.3d 740, 746 (8th Cir. 2012). We review a district court’s qualified immunity determination on summary judgment de novo, viewing the record in the light most favorable to the plaintiff and drawing all reasonable inferences in her favor. Shannon, 616 F.3d at 861-62.

1. Did Swem Violate a Constitutional Right?

Sexual harassment by state actors violates the Fourteenth Amendment and can form the basis for a § 1983 action. Wright v. Rolette Cty., 417 F.3d 879, 884 (8th Cir. 2005) (citing Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003)). To establish a prima facie case of sexual harassment, Jenkins must show: 1) that she was a member of a protected group; 2) she was subjected to unwelcome sexual harassment; 3) the harassment was based on her gender; and 4) that the harassment affected a term, condition, or privilege of employment, Herron, 687 F.3d at 975. “‘To be actionable, harassment must be both objectively and subjectively offensive, such that a reasonable person would consider it to be hostile or abusive — ’ ” Id. (quoting. Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004)). On appeal, Swem challenges the second and fourth elements of the claim.

As to the second element, harassing conduct is considered unwelcome if it was “uninvited and offensive.” Quick v. Donaldson, 90 F.3d 1372, 1378 (8th Cir. 1996). The proper inquiry is whether the plaintiff indicated by her conduct that the alleged harassment was unwelcome. Id. (citing Meritor Savings' Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Swem relies on the fact that Jenkins did not immediately report his conduct to demonstrate that it was not Unwelcome. We are not persuaded that this fact precludes Jenkins’ claim. Here, Jenkins told Swem multiple times during, between, and after the trips, that she was not interested in him romantically. She gáve Swem several different explanations when pressed, including that he was a supervisor and colleague, and that he was much older than her. She also did not respond to his many advances. She never took him up on his offer to “sit in his lap and kiss him,” never entered his tent, and did not kiss him when they were rappelling. Swem also admits that he “apologized if his expressing interest in Jenkins made her uncomfortable.” .This suggests that he was aware that Jenkins found his advances unwelcome.

Swem cites Hocevar v. Purdue Frederick Co., 223 F.3d 721, 736 (8th Cir. 2000) to support his argument that Jenkins did not indicate by her conduct that Swem’s actions were unwelcome. In Hocevar, the Court found the plaintiff had not demonstrated that the defendant’s use of offensive language was unwelcome because the plaintiff admitted to using the very same language herself. Id. at 737. There is no analogy to the present case, where Jenkins did nothing to reciprocate Swem’s expressed sexual and romantic interest in her. We conclude that Jenkins presented sufficient evidence to show that she adequately communicated to Swem that his conduct was unwelcome.

As to the fourth element, Jenkins must show that Swem’s conduct was “severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive— ” Harris v. Forklift, 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Likewise, the victim must subjectively perceive the environment to be abusive. Id. Whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. Id. at 23, 114 S.Ct. 367. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Id.-, see also, Wright, 417 F.3d at 885. Whether the conduct caused economic injury or affected the plaintiffs psychological well-being may also be considered. See Quick, 90 F.3d at 1379.

Looking to the totality of the circumstances, we believe Jenkins showed she considered Swem’s conduct to be “severe enough to alter the terms, conditions, or privileges of her employment, and that a reasonable person would consider it the same.” Herron, 687 F.3d at 976. Here, the geographic isolation of the conduct is of paramount importance. Actions that might not rise to the level of severe or pervasive in an office setting take on a different character when the two people involved are stuck together for twenty-four hours a day with no other people—or means of escape—for miles around. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (“Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing ... and conduct which a reasonable person in the plaintiffs position would find, severely hostile or abusive.”). Swem made repeated advances, including jokes, comments, innuendos, and suggestions of contact throughout the duration of their association in Alaska, when Jenkins was isolated and reliant upon Swem not only for academic instruction, but also for survival in a remote location.

Swem cites to sevei-al cases wherein we did not find the conduct rose to the level of “severe or pervasive,” and argues that the conduct there was far worse than his own. See, e.g., Rester v. Stephens Media, LLC, 739 F.3d 1127, 1131 (8th Cir. 2014) (confrontation with a supervisor over a workplace disagreement not actionable because it did not denote a sexist connotation); McMiller v. Metro, 738 F.3d 185, 188 (8th Cir. 2013) (no, hostile work environment found where defendant kissed plaintiffs face twice, placed his arms around her, and requested that she remove an ingrown hair from his chin). These cases are easily distinguishable based on the location of the harassing conduct (an office or traditional workplace setting), which is unlike the geographically isolated setting in which Swem’s harassing conduct occurred. As the facts before the district court established, Swem and Jenkins were dropped by plane in an extremely remote region. They slept in tents with a shotgun close at hand, to protect themselves from bears. Jenkins, who had never been to the region before, was dependent on Swem for her survival in the harsh Alaskan conditions. She had no reasonable way to physically distance herself from Swem for the length of the trips, during which he kept up a continuous stream of unwanted harassing conduct.

Not only was Swem an expert in the necessary skills for navigating a journey along the river, he was also the premiere expert in the area of study that Jenkins’ hoped to pursue. Just as her physical well-being was dependent upon Swem, her academic future was dependent upon him as well. Her Ph.D. research was to analyze and build upon the data he had collected for the past thirty years. Swem was there to teach her how to track, find, and record nest sites, band the birds for later tracking, and other vital skills. If she chose to call for a plane to leave the site early, or refused to go on the second excursion, she would have been forfeiting her research pursuits. She could not go alone, and she could not stay behind.

Jenkins also suffered psychological harm, in the form of post-traumatic stress disorder, depression, and anxiety. She failed an exam and fell behind in her research and dissertation goals. Finally, she resigned her position at the university as a result of these events, losing the opportunity to obtain her Ph.D., which inevitably affects her economic prospects.

Under these circumstances, Jenkins has provided evidence that Swem’s conduct was sufficiently frequent, severe, and an unreasonable interference' with her work performance. She also provided evidence that she suffered psychological and economic injury. Therefore, Jenkins has sufficiently shown the fourth element of her hostile-work-environment claim.

2. Was the Right Swem Violated Clearly Established?

The second prong of the qualified immunity analysis requires us to determine whether the right that Swem allegedly violated was “clearly established” at the time of the challenged conduct. Whether an official eligible for qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (quoting Harlow, 457 U.S. at 819, 102 S.Ct. 2727), assessed in light of the legal rules that were “clearly established” at the time it was taken. Id. To be clearly established, the contours of the right must be sufficiently clear such that every “reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Anderson, 483 U.S. at 640,107 S.Ct. 3034). Existing precedent must have placed the statutory or constitutional question beyond debate. Id. “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Nord v. Walsh Cnty., 757 F.3d 734, 739 (8th Cir. 2014) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034).

Swem does not dispute that the right to be free of sexual harassment in the workplace is clearly established, but asks us to take a very narrow view of the contours of that right here. He insists that a reasonable public official would not have known that his comments, “void of any physical conduct,” could amount to sexual harassment. We find this ¿rgumént unavailing. Our case law clearly establishes that physical contact is not required to make out a hostile-work-environment claim. See Wright, 417 F.3d at 885 (8th Cir. 2005) (“verbal harassment of a sexual nature which creates an offensive working environment fits the regulation’s definition of sexual harassment”); Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 964 (8th Cir. 1993) (sexual harassment “can obviously result from conduct other than sexual advances” and the employee need not be “touched offensively”) (citation omitted); Smith v. St. Louis Univ., 109 F.3d 1261, 1267 (8th Cir. 1997) (summary judgment for employer reversed when plaintiff pled harasser made sexist comments on marriage, pregnancy, and plaintiffs appearance, , and called her a “babe,” but alleged no physical conduct nor sexual advances). We find that the right Swem violated was clearly established.

Swem then argues that a reasonable official in his position would not have known the conduct was unlawful because he did not receive any sexual harassment training from UM and lacked specific knowledge of UM’s sexual harassment policy. “A reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727. A person such as Swem, who has had prior experience working with and supervising students, should be aware that sexual harassment violates a student’s clearly established rights, even in the absence of specific training.

3. Swem Was Not Entitled to Qualified Immunity

Because we find that Jenkins has satisfied both prongs of the qualified immunity analysis, we agree with the district court that Swem was not entitled to qualified immunity or ■ summary judgment on that basis.

C. Color of State Law

Swem finally argues that, because any pursuit of a relationship with Jenkins was “purely personal” he was not acting under of color of state law, and therefore the case is not actionable. Swem urges that we have pendent jurisdiction to consider this issue is because it is coterminous with the qualified immunity analysis. We disagree.

We have held that we may only exercise pendent jurisdiction where the issue is “inextricably intertwined” with a properly presented issue such that “appellate -resolution of the collateral appeal necessarily resolves the pendent claim as well.” See Kincade v. City of Blue Springs, Missouri, 64 F.3d 389, 394 (8th Cir. 1995). It is true that, to find Swem is entitled to qualified immunity, we would necessarily have to decide that he was acting within his capacity as a government official. See Edwards v. Baer, 863 F.2d 606, 607 (8th Cir. 1988) (qualified immunity protects government officials “who make a reasonable mistake in the exercise of his official duties.”). However, we need not reach this issue. Where, as here, a defendant fails to establish that he did not violate a right or that the right in question was not clearly established, then he is not entitled to qualified immunity, regardless of whether he acted under color of state law. Accordingly, we find that, this question is'not coterminous with the issue properly on appeal, and we have no jurisdiction to consider it.

III. Conclusion

We agree with the district court that Swem is not entitled to qualified immunity and that summary judgment should be denied. Although disputes of facts remain, when the facts relied on by the district court are considered in the light most favorable to Jenkins, she sufficiently showed that Swem’s conduct toward her was unwelcome harassment, and that it was serious enough to alter a term or condition of h,er employment. She also showed that Swem’s conduct violated a clearly established right, based on the particular facts of this .case. Accordingly, we affirm. .

      . The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota.

      . For the purposes of this appeal, we take as true those facts the district court found or likely assumed as true—so long as they are not blatantly contradicted by the record—and make all reasonable inferences in favor of the plaintiff regarding any unresolved factual questions. Brown v. Fortner, 518 F.3d 552, 557-58 (8th Cir. 2008).


source: Caselaw Access Project

author: LOKEN, Circuit Judge.

license: Public Domain

text:
    Neil STOKES; Craig Felzien, Plaintiffs-Appellees, v. DISH NETWORK, L.L.C., Defendant-Appellant.
    No. 15-2901
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 14, 2016
    Filed: October 4, 2016

      Richard R. Patch, Coblenz Patch Duffy & Bass LLP,' Sari Francisco, CA, argued (Rees F. Morgan, Coblentz Patch Duffy & Bass LLP, San Francisco, CA, J. Kent Lowry, Matthew D. Turner, Armstrong Teasdale LLP, Jefferson City, MO, Eric J. Magnuson, Robins Kaplan LLP, Minneapolis, MN, on the brief), for appellant.
    Edward D. Robertson, Jr., Bartimus, Frickleton, Robertson & Goza, P.C., Jefferson City, MO, argued (Mary D. Winter, Bartimus, Frickleton, Robertson & Goza, P.C., Jefferson City, MO, Matthew A. Clement, Kari A. Schulte, Cook, Vetter, Doerhoff & Landwehr, P.C., Jefferson City, MO, John F. Medler, Jr., The Medler Law Firm, LLC, St. Louis, MO, Thomas P. Rosenfeld, Kevin P. Green, Goldenberg Heller Antognoli & Rowland, P.C., Ed-wardsville, IL, Robert A. Horn, Joseph A. Kronawitter, Horn Aylward <& Bandy, LLC, Kansas City, MO, on the brief), for appellees.
    Before LOKEN, BEAM, and SMITH, Circuit Judges.
   LOKEN, Circuit Judge.

DISH Network, L.L.C. (“DISH”), is a Colorado corporation that sells satellite television access packages nationwide. DISH’s “carriage” agreement with Turner Network Sales, Inc., expired on October 21, 2014, and was not renewed until November 20, 2014. DISH’s carriage agreement with FOX News Network L.L.C. expired on December 21, 2014, and was not renewed until January 15, 2015. DISH subscribers who had selected programming packages that included popular Turner and FOX News channels did not have access to those channels during these interruptions. Though DISH continued to provide hundreds of other channels, it did not provide complaining, subscribers any form of monetary relief for the Turner and FOX News interruptions.

Neil Stokes and Craig Felzien, DISH subscribers since 2008 and 2000, respectively, commenced this action on behalf of themselves and a putative nationwide class of DISH subscribers (collectively, “Plaintiffs”) seeking monetary relief for the Turner and FOX News services interruptions. Applying Colorado law, as the DISH Subscription Agreements expressly provide, the district court denied DISH’s motion to dismiss Plaintiffs’ claims for breach of contract and breach of the covenant of good faith and fair dealing. The court certified two questions for immediate interlocutory appeal under 28 U.S.C. § 1292(b). We granted a timely request to appeal the certified questions and now review de novo the district court’s interpretation of the Subscription Agreements under Colorado law, Matrix Grp. Ltd, v. Rawlings Sporting Goods Co., 477 F.3d 583, 590 (8th Cir. 2007), and the court’s denial of DISH’s motion to dismiss these claims for failure to state a claim upon which relief can be granted, Prescott v. Little Six, Inc., 387 F.3d 753, 756 (8th Cir. 2004), cert. denied, 544 U.S. 1032, 125 S.Ct. 2257,161 L.Ed.2d 1059 (2005). We answer each certified question in the negative, reverse the district court’s order denying DISH’s motion to dismiss, and remand for further proceedings not inconsistent with this opinion.

I. Relevant Contract Terms.

Plaintiffs subscribed to specific DISH access packages, paying in advance. They received Subscription Agreements after DISH installed satellite equipment in their homes, comprised of a Digital Home Advantage Plan Agreement (“Plan Agreement”) and a Residential Customer Agreement (“RCA”). The certified questions on appeal turn on the following contract provisions. The Plan Agreement provides in relevant part:

BY SIGNING BELOW YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RECEIVED, READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ... THE RESIDENTIAL CUSTOMER AGREEMENT ... AND THAT THE FOLLOWING TERMS WERE DISCLOSED TO YOU PRIOR TO LEASE:
WE RESERVE THE RIGHT TO CHANGE PRICES, PACKAGES, AND PROGRAMMING AT ANY TIME, INCLUDING WITHOUT LIMITATION, DURING ANY TERM AGREEMENT PERIOD TO WHICH YOU HAVE AGREED.

The RCA provides in relevant part:

1. THE DISH NETWORK SERVICE
I. Changes in Services Offered. We may add, delete, rearrange and/or change any and all programming, programming packages and other Services that we offer, as well as the prices and fees related to such programming, programming packages and Services, at any time, including ... during any term commitment period to which you have agreed. If a change affects you, we will notify you of such change and its effective date. In the event that we delete, rearrange or change any programming, programming packages or other Services, we have no obligation to replace or supplement such programming, programming packages or other Services. You are not entitled to any refund because of deletion, rearrangement or change of any programming, programming packages or other Services.
7. LIMITATION OF OUR LIABILITY
A. INTERRUPTIONS AND DELAYS. NEITHER WE NOR OUR THIRD-PARTY BILLING AGENTS ... WILL BE LIABLE FOR ANY INTERRUPTION IN ANY SERVICE OR FOR ANY DELAY OR FAILURE TO PERFORM, INCLUDING WITHOUT LIMITATION: IF SUCH INTERRUPTION, DELAY OR FAILURE TO PERFORM ARISES IN CONNECTION WITH THE TERMINATION OR SUSPENSION OF DISH NETWORKS ACCESS TO ALL OR ANY PORTION OF SERVICES; THE RELOCATION OF ALL OR ANY PORTION OF THE SERVICES TO DIFFERENT SATELLITE(S); A CHANGE IN THE FEATURES AVAILABLE WITH YOUR EQUIPMENT; ANY SOFTWARE OR OTHER DOWNLOADS INITIATED BY US; OR ANY ACTS OF GOD, FIRES, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, SATELLITE OR UPLINK FAILURE, ACTS OF ANY GOVERNMENTAL BODY OR ANY OTHER CAUSE BEYOND OUR REASONABLE CONTROL.

II. The First Certified Question.

1. Under Colorado law, is the Subscription Agreement between Stokes and DISH, which is comprised of both a Digital Home Advantage Plan Agreement and a Residential Customer Agreement, illusory?

In our view, this issue is a classic red herring. The phrase' “illusory promise” means “words in promissory form that promise nothing.” 2 Corbin on Contracts § 5.28, at 142 (rev. ed. 1995). In most cases, the purported contract fails for lack of consideration because, “[w]here the apparent assurance of performance is illusory, it is not consideration for a return promise.” Restatement (Second) of Contracts § 77 cmt. a. For example, in Bernhardt v. Hemphill, 878 P.2d 107, 111 (Colo. App. 1994), plaintiffs entered into timeshare contracts with a motel they owned and operated; the court concluded that “the contracts were wholly illusory” because “no rights were created that the plaintiffs did not already possess.”

In this case, the district court concluded that, if the Subscription Agreements provided “that DISH cannot be held liable for any interruption or delay of any or all programs for any period of time ... such an interpretation would of course render the contract illusory.” We disagree. An illusory contract is unenforceable from its inception. Here, the Subscription Agreement between Stokes and DISH had been in effect for years when the Turner and FOX News service interruptions occurred. Both parties had provided substantial performance of their respective contractual promises, and DISH continued to provide many uninterrupted channels to its subscribers. Under Colorado law, a contract is not illusory for lack of consideration where a party with seemingly unlimited discretion in performing has at least partially performed and thereby “incurred a sufficient detriment to provide consideration.” O’Hara Grp. Denver, Ltd, v. Marcor Housing Sys„ Inc., 197 Colo. 530, 595 P.2d 679, 683-84 (1979); see United Press Int’l, Inc, v. Sentinel Publ’g Co., 166 Colo. 47, 441 P.2d 316, 318-19 (1968). The answer to the first certified question is no.

III. The Second Certified Question.

2. Under Colorado Law, if the Subscription Agreement between Stokes and DISH, which is comprised of both a Digital Home Advantage Plan Agreement and a Residential Customer Agreement, is not illusory, may, in light of the express terms of the Subscription Agreement, the duty of good faith and fair dealing be applied to require DISH to provide any monetary relief when it deletes or changes programming for which subscribers have already paid?

Under Colorado law, all contracts are subject to an implied duty of good faith and fair dealing, as DISH concedes on appeal. The Plan Agreement, and Section 1.1. of the RCA, entitled “Changes in Services Offered,” granted DISH discretion to change “programming, programming packages and other Services that we offer, as well as the prices and fees related to such ... Services, at any time.” Under Colorado law (as elsewhere), the “implied duty of good faith and fair dealing ‘requires that a party vested with contractual discretion exercise that discretion reasonably.’ ” Bloom v. Nat’l Collegiate Ass’n, 93 P.3d 621, 624 (Colo. App. 2004). As the Colorado Supreme Court has explained:

The good faith performance doctrine is generally used to effectuate the intentions of the parties or to honor their reasonable expectations. Good faith performance of a contract involves faithfulness to an agreed common purpose and consistency with the justified expects tions of the other party.,.. [AJdherence to this principle promotes the central policy underlying contract law, that of construing contracts so as to effectuate the parties’ intentions.
The duty of good faith and fair dealing applies when one party has discretionary authority to determine certain terms of the contract, such as quantity, price, or time. The covenant may be relied upon only when the manner of performance under a specific contract term allows for discretion on the part of either party. However, it will not contradict terms or conditions for which a party has bargained.

Amoco Oil Co. v. Ervin, 908 P.2d 498, 498 (Colo. 1995) (quotations omitted).

The duty of good faith and fair dealing “will not contradict terms or conditions for which a party has bargained.” Id. The duty “does not obligate a party ... to assume obligations that vary or contradict the contract’s express provisions, nor does it permit a party to inject substantive terms into the contract.” APT Sec. Servs., Inc. v. Premier Home Prot., Inc., 181 P.3d 288, 293 (Colo. App. 2007). Rather, “the doctrine of good faith performance is a means of finding within a contract an implied obligation not to engage in the particular form of conduct which, in the casé at hand, constitutes ‘bad faith.’” Tymshare, Inc, v. Covell, 727 F.2d 1145, 1152 (D.C. Cir. 1984). The covenant is not about establishing new, independent rights or duties; it is about “securing to the parties the sort of good faith performance that ... they reasonably thought they were securing at the time they entered the bargain." Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110, 1122 (10th Cir. 2010); see Tymshare, 727 F.2d at 1153-54.

Count II of Plaintiffs’ First Amended Complaint pleaded a claim for breach of the covenant of good faith and fair dealing. But Plaintiffs did not allege that DISH interrupted their access to Turner and FOX News channels in bad faith. They instead alleged that DISH breached its duty of good faith and fair dealing “by unfairly charging and collecting monies ... for satellite television programming that DISH did not provide ... without providing a credit or other monetary relief ... for the failure to provide the programming.” Consistent with the contractual claims as pleaded, the district court in denying DISH’s motion to dismiss concluded that “[t]he operative question is whether it was reasonable for DISH to stop providing Turner and FOX News Programming, keep the payments it would have been paying previously to the providers for those channels, and provide no recompense to its customers.”

DISH argues that the covenant of good faith and fair dealing, while applicable to its Subscription Agreement, cannot support Plaintiffs’ claim for monetary relief for the two programming interruptions, because the Subscription Agreement expressly provides that customers are not entitled to monetary relief for interruptions and performance delays resulting from the loss of DISH’s access to the programming services it provides. We agree, and therefore answer this second question in the negative. The covenant “will not contradict terms or conditions for which a party has bargained.” Amoco, 908 P.2d at 498. Therefore, DISH’s duty to exercise its discretion to change programming in good faith cannot be the legal basis for a claim to monetary relief that is precluded by unambiguous terms of the Subscription Agreement. In applying the covenant to specific contractual relationships, courts must “take care to ensure that we don’t use the covenant as another means for substituting a different deal from the one the parties contemplated.” Flood, 618 F.3d at 1121. The Supreme Court of Colorado has repeatedly recognized this principle. “It is axiomatic that in construing a document courts should not rewrite the provisions of an unambiguous document, but must enforce an unambiguous contract in accordance with the plain and ordinary meaning of its terms.” USI Props. E., Inc. v. Simpson, 938 P.2d 168, 173. (Colo. 1997).

Section 1.1.' of the RCA provides that subscribers “are not entitled to any refund because of a deletion ... or change of any programming, programming packages or other Services.” Section 7.A. unequivocally provides that DISH “will [not] be liable for any interruption in any service or for any delay or failure to perform ... without limitation.” The district court cited various textual reasons why it declined to construe these provisions in accordance with their plain meaning. First, the court limited Section 7.A. to interruptions, delays, and failures that are “beyond [DISH’s] reasonable control.” This interpretation ignored the use of semicolons in Section 7A, which serve to signify that modifying phrases in one clause do not apply to other clauses. See Greater E. Transp. LLC v. Waste Mgmt. of Conn., Inc., 211 F.Supp.2d 499, 504 (S.D.N.Y. 2002). Giving effect to the provision’s punctuation, the phrase “beyond our reasonable control” applies only to the final force majeure clause, which disclaims liability for “any acts of god, fires, earthquakes, floods, power or technical failure, satellite or uplink failure, acts of any governmental body or any other cause beyond our reasonable control.” For service interruptions and delays that may occur for many other reasons, and may entail loss of service ranging from momentary to extensive, Section 7.A. precludes monetary liability “without limitation.”

The district court further reasoned that, if Section 7.A. were to disclaim monetary liability for all failures to perform, consistent with its plain meaning, then Section 7.F. of the RCA would be meaningless surplusage. Section 7.F. provides:

F. DAMAGES LIMITATION. NEITHER WE NOR OUR THIRD-PARTY BILLING AGENTS ... SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO: DISH NETWORK EQUIPMENT OR ANY OTHER EQUIPMENT; OUR FURNISHING OR FAILURE TO FURNISH ANY SERVICES OR EQUIPMENT TO YOU; OR ANY FAULT, FAILURE, DEFICIENCY OR DEFECT IN SERVICES OR EQUIPMENT FURNISHED TO YOU.

This section disclaims liability for consequential damages arising out of equipment failures and service deficiencies, whereas Section 7.A. disclaims liability for an “interruption in any Service or for any delay or failure to perform” in connection with problems such as loss of access to pro: gramming, relocation of services to different satellites, and software downloads. The difference in the disclaimers is not surprising. For example, if a satellite dish becomes detached from a subscriber’s home, falls, and damages the subscriber’s property, Section 7.F. disclaims “any special, indirect, incidental or consequential damages” caused by “DISH Network’s equipment” (ie., the satellite dish). Section 7.A. does not apply because it is limited to interruptions, delays, and failures to perform relating to “Services.” Thus, giving effect to Section 7.A.’s plain meaning does not render Section 7.F. meaningless.

Section 1.1. of the RCA states that a subscriber is “not entitled to any refund because of a deletion, rearrangement or change of any programming, programming packages or other Services.” The district court declined to interpret this provision in accordance with its plain meaning by drawing a distinction between a “refund” and a “credit.” Noting that Section 3.D. of the RCA prohibits both credits and refunds, the court concluded that Section 1.1. allows for monetary relief in the form of a credit for service interruptions because Section 1.1. explicitly prohibits only refunds. We disagree. Section 3 of the RCA contains multiple provisions dealing with Cancellation of Service. Sections 3.A.-C. provide that a customer’s subscription will continue until the customer cancels or DISH disconnects Services; that the customer may cancel at any time, but some plans include early termination or cancellation fees; and the circumstances that permit DISH to disconnect Services. Section 3.D. then provides that, if Services are cancelled or disconnected for any reason, “charges for Services, once charged to your account, are non-refundable, and no refunds or credits will be provided in connection with the cancellation of Services.” The addition of a reference to “credits” in the context of Section 3 is understandable. It in no way suggests that the language in Section 1.1—“You are not entitled to any refund”—intended anything less than the total preclusion of monetary relief for Services interruptions, as the total disclaimer of liability in Section 7.A. confirms.

We conclude that the district court’s interpretation of Section 1.1. and Section 7.A. of the RCA improperly converted the covenant of good faith and fair dealing into an additional contract term. It allowed Plaintiffs to recover monetary relief for Services interruptions, a remedy that is unambiguously precluded by the express terms of the parties’ contractual bargain. Accordingly, the answer to the second certified question is no. As pleaded, Plaintiffs’ claims for class-wide monetary relief in this case and in the related case of Pad-berg v. DISH Network LLC failed to state a claim upon which relief can be granted. Our jurisdiction over this interlocutory appeal extends no further.

The order of the district court dated July 15, 2015 is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . Pending this appeal, the district court stayed this case and a case presenting similar issues, Padberg v. DISH Network LLC, 11-04035-CV, 2012 WL 2120765 (W.D. Mo. June 11, 2012).

      . Defined in Webster’s Third New International Dictionary as "a diversion intended to distract attention from the real issue.”

      . Section l.A. of the RCA states: “Services Defined. 'Services’ shall mean all video, audio, data, interactive and other programming services and all other services that are currently available from DISH Network (whether subscription, pay-per-view or otherwise) and that we may provide to customers in the future.”


author: MURPHY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Rafael MCDANIEL, also known as Raf, Defendant-Appellant
    No. 15-3734
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: October 4, 2016

      Cameron C. McCree, Julie Peters, Assistant U.S. Attorneys, Beneciá Betton Moore, U.S. Attorney’s Office, Eastern District of Arkansas, Little Rock, AR, for Plaintiff-Appellee.
    John Wesley Hall, Jr., John Wesley Hall, Jr., P.C., Little Rock, AR, Rafael McDaniel, Pro Se, for Defendant-Appellant.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   MURPHY, Circuit Judge.

Rafael McDaniel was convicted of conspiring to distribute cocaine and crack cocaine, possessing with the intent to distribute cocaine and' crack cocaine, and possessing a firearm in furtherance of a drug trafficking crime. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846; 18 U.S.C. § 924(c)(1)(A). The district court sentenced McDaniel to 240 months imprisonment. McDaniel 'appeals, arguing that there was insufficient evidence to support his firearm conviction.

From January 2012 through November 2013 McDaniel was cooking crack cocaine and distributing drugs from his home. On November. 18, 2013 government agents arrested McDaniel and searched his home. In a utility room in his house they found a cabinet containing cocaine, crack cocaine, and cash. On shelves next to the cabinet were digital scales with powder residue and baking soda. McDaniel admitted during trial that he had used the scales to weigh drugs. Two loaded firearms were also found on top of the cabinet in the utility room. The agents additionally recovered. a loaded pistol in a desk drawer in McDaniel’s home office, a pistol with two magazines in a cabinet above his washer and dryer, and a revolver with two rounds in his attic. During trial an expert witness testified that firearms are tools of the drug trade used to protect drugs and drug proceeds. McDaniel testified that he was a gun collector and stored some of them on top of cabinets because he had “no use” for them, but he nevertheless kept them loaded “[i]n case something did happen to [his] house if [he] was there.” ■

The jury found McDaniel guilty of conspiring to distribute cocaine and crack cocaine, possessing with the intent to distribute cocaine and crack cocaine, and possessing a firearm in furtherance of a drug trafficking crime. The district court sentenced him to 240 months imprisonment—180 months for the drug charges and 60 months for the firearm charge. McDaniel appeals, arguing' that there was insufficient evidence to convict him Of the firearm charge because the guns found in his home were not readily-accessible.

We review de novo questions of sufficiency of the evidence. See United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000). We- affirm a conviction if “the record, viewed most favorably to the government, contains substantial evidence supporting the jury’s verdict.” United States, v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (en banc). To convict McDaniel of possession of a firearm, in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) the government had to “present evidence from which a reasonable juror could find a nexus between the defendant’s possession of the charged firearm and the drug crime [which] ... had the effect of furthering, advancing or helping forward the drug crime.” United States v. Sanchez-Garcia, 461 F.3d 939, 946 (8th Cir. 2006) (internal quotation marks , omitted). A jury may infer the requisite nexus if “the firearm is kept in close proximity to the drugs, it is quickly accessible, and there is expert testimony regarding the use of firearms in connection with drug trafficking.” United States v. Shaw, 761 F.3d 918, 922 (8th Cir. 2014) (internal quotation marks omitted).

Here, the evidence at trial established that McDaniel kept loaded firearms in the same room as cocaine, crack cocaine, and a scale he used to measure drugs. See id. An expert witness also testified that firearms can be tools in the drug trade. See id. McDaniel claims that the firearms located on the top of the cabinet in the utility room were not readily -accessible because he is only 5'7" and the cabinet was more than a foot taller. He could nevertheless have- reached the guns by standing on a chair or ladder. Moreover, the nexus requirement may be satisfied if firearms are found in a room adjacent to a room containing drugs and scales. See Sanchez-Garcia, 461 F.3d at 947. In this case, three other firearms were located in McDaniel’s house. The jury therefore reasonably inferred that McDaniel’s possession of firearms advanced his drug crimes because he kept them close to the drugs and admitted that he kept them loaded “[i]n case something did happen to [his] house if [he] was there.” Viewing the evidence in the light most favorable to the government, the required nexus exists between the loaded firearms and McDaniel’s drug trafficking offenses. = ■

For these reasons we affirm the district court’s judgment.

      . The Honorable Brian S. Miller, Chief Judge, United States District Court for the Eastern District of Arkansas.


author: TASHIMA, Circuit Judge:

text:
    Angela EBNER, Plaintiff-Appellant, v. FRESH, INC., a Delaware Corporation, Defendant-Appellee.
    No. 13-56644
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 11, 2016—Pasadena, California
    Filed March 17, 2016
    Amended September 27, 2016

      Henry Alexander Iliff (argued), Dorsey & Whitney LLP, New York, New York; James E. Howard, Dorsey & Whitney LLP, Seattle, Washington; Adam H. Springel, Springel & Fink LLP, Irvine, California, for Plaintiff-Appellant.
    Stephen R. Smerek (argued), Drew A. Robertson, and Shawn Rieko Obi, Winston & Strawn LLP, Los Angeles, California, for Defendant-Appellee.
    Before: JEROME FARRIS, A. WALLACE TASHIMA, and JAY S. . BYBEE, Circuit Judges.
   ORDER

The Opinion , filed March 17, 2016, and reported at 818 F.3d 799, is withdrawn and replaced by the Amended , Opinion filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel rehearing. Judge Bybee votes to deny the petition for rehearing en banc and Judges Farris and Tashima so recommend. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. See Fed. R. App. P. 35(f). The petition for panel rehearing and the petition for rehearing en banc are denied.

No further petitions for panel rehearing or rehearing en banc-will be entertained.

OPINION

TASHIMA, Circuit Judge:

Angela Ebner (“Plaintiff’) alleges that cosmetics and skin care products manufacturer Fresh, Inc. (“Fresh”) deceived consumers about the quantity of lip balm in its Sugar ■ Lip Treatment (“Sugar”) product line. Although Sugar’s label accurately indicates the net weight of included lip product, the tube design uses a screw mechanism that allows only 75% of the product to advance up the tube. A plastic stop device prevents the remaining 25% from advancing past the tube opening. Each Sugar , tube contains a weighted-metallic bottom and is wrapped in oversized packaging. Plaintiff brought a putative consumer class action against Fresh, alleging that Fresh’s label, tube, design, and packaging are deceptive and misleading. The district court granted Fresh’s Rule 12(b)(6) motion to dismiss Plaintiffs First Amended Complaint (“FAC”) with prejudice. We affirm.

I.

We accept as true the well-pleaded factual allegations in the complaint. Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). According to the FAC, Sugar is a lip treatment that comes in a variety of flavors and tints and sells in retail stores and on the internet for approximately $22.50 to $25.00 per unit. Over the past four years, Plaintiff, a California resident, has purchased Sugar at various locations in Southern California.

Sugar comes in an oversized dispenser tube that uses a screw mechanism to push the lip product to the top of the tube. The tube is packaged and sold in a large cardboard box. Both the tube and the cardboard box have labels indicating the net weight of the included lip product. For an “original” size tube, the indicated product weight is “4.3g e 0.15 oz.”; for the “mini” size, the label reads “2.2.g e 0.08 oz.” The FAC does not allege that the Sugar tube contains less than the stated quantity of product. Rather, it alleges that the stated product quantity is false and misleading because only a portion of that product is reasonably accessible to the consumer. Specifically, the tube’s screw mechanism permits only 75% of the total lip product to advance past the top of the tube. A plastic stop device prevents the remaining 25% of the product “from being accessible to the consumer in its intended manner or any other reasonable manner.” Plaintiff alleges that the “intended manner” of application is to apply the product from the tube directly to the lips. By contrast, other lip balms using a dispenser tube, such as Burt’s Bees, make “all or more” of the advertised product weight accessible to the consumer.

Plaintiff alleges that Sugar’s “vastly oversized tubes and boxes” create the misleading impression that each unit has a larger quantity of lip product than it actually contains. Each Sugar tube also contains a 5.35 gram metallic weight that is concealed at the base of the tube. Collectively, the tube, cardboard box, weighted bottom, and 4.3 grams of lip product in an original tube of Sugar weigh approximately 29 grams. Plaintiff contends that as a result of Fresh’s labeling, design, and packaging practices, she was misled as to the amount of lip product actually accessible in a tube of Sugar and was deprived of the value of her purchases.

The FAC asserts four state-law causes of action: (1) violation of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq.; (2) violation of the California Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §1750 et seq.; (3) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §17200seq.; and (4) unjust enrichment. Fresh moved to dismiss the FAC under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion and denied leave to amend. This timely appeal followed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6), accepting all factual allegations in the complaint as true and construing them in the light most favorable to the nonmoving party.” Skilstaf Inc., 669 F.3d at 1014. We may “affirm the district court’s dismissal on any ground supported by the record.” ASARCO, LLC v. Union Pac. R.R., 765 F.3d 999, 1004 (9th Cir. 2014) (citations omitted). Dismissal is appropriate if the plaintiff has not “allege[d] enough facts to state a claim to relief that is plausible on its face.” Turner v. City & Cty. of S.F., 788 F.3d 1206, 1210 (9th Cir. 2015) (quoting Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008)). Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). .

A court’s denial of leave to amend is reviewed for an abuse of discretion. Alvarez v. Chevron Corp., 656 F.3d 925, 931 (9th Cir. 2011). “In dismissing for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citation omitted).

III.

The district court divided Plaintiffs claims into two categories: (1) claims based on Sugar’s labeling; and (2) claims based on Sugar’s tube design and packaging. In dismissing the label-based claims, the district court concluded that both California’s safe harbor doctrine and federal preemption under the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §301 et seq., were independently fatal to Plaintiffs claims. As for the -design and packaging claims, the district court concluded that neither Sugar’s tube design nor packaging were deceptive or misleading to the reasonable consumer. Additionally, the district court concluded that the FAC failed to plead a violation of the California Fair Packaging and Labeling Act’s- (“FPLA”) prohibition of nonfunctional slack fill, Cal. Bus & Prof. Code § 12606. We discuss each of these in turn.

A.

1. California’s Safe Harbor Doctrine

The UCL, CLRA, and FAL, under which Plaintiffs deceptive labeling claims are' brought, all prohibit unlawful, unfair, or fraudulent business practices. See Cal. Bus. & Prof. Code §§ 17200, 17500; see also Cal. Civ. Code § 1770, In California, unfair competition claims are subject to the safe harbor doctrine, which precludes plaintiffs from bringing claims based on “actions the Legislature permits.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 83 Cal. Rptr.2d 548, 973 P.2d 527, 542 (1999). To fall within the safe harbor, the challenged conduct must be affirmatively permitted by statute—the doctrine does not immunize from liability conduct that is merely not unlawful. As the California Supreme Court explained:

- There is a difference between (1) not making an activity unlawful, and (2) making that activity lawful.... Acts that the Legislature has determined to be lawful may not form the basis for an action under the unfair competition law, but acts may, if otherwise unfair, be challenged under the unfair competition law even if the Legislature failed to proscribe them in some other provision.

Id., 83 Cal.Rptr.2d 548, 973 P.2d at 541-42.

The FAC alleges that, although the Sugar label accurately states the net weight of lip product in the tube, only 75% of.that product is reasonably accessible. To the extent the FAC challenges the Sugar label’s accurate net weight statement, this claim is barred by the safe harbor doctrine. Both -federal and California law affirmatively require cosmetics 'manufacturers to include an accurate statement of the net weight of included cosmetic product. 21 C.F.R. § 701.13(g) (“The declaration shall accurately reveal the quantity of cosmetic in the package exclusive of wrappers and other material packed therewith[.]”); Cal, Bus. & Prof. Code § 12603(b) (“The net quantity of contents [ ]in terms of weight or mass ... shall be separately and accurately stated ... upon the principal display panel of that label[.]”). Because Fresh complied with federal and state law requiring a net weight statement on Sugar’s label, this conduct cannot form the basis of an unfair competition claim. Cal-Tech Commc’ns, Inc., 83 Cal.Rptr.2d 548, 973 P.2d at 541-42.

Plaintiffs other label claim is based on Fresh’s omission of any supplemental or clarifying statément about product' accessibility. This omission, Plaintiff argues, renders the existing net weight label deceptive and misleading. Unlike a claim seeking to alter the net weight declaration itself, this claim does not fall within the safe harbor because there is no law expressly permitting the omission of supplemental statements. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1167 (9th Cir. 2012) (“[T]o fall under a safe harbor, the omission of the annual [fee] disclosure from Defendants’ advertisements must be expressly permitted by some other provision. It is not enough if [federal law] merely fail[s] to prohibit such an omission.”). For that matter, federal regulations governing cosmetic labeling expressly permit “supplemental statements at locations other than the principal display panel(s) describing in nondeceptive terms the net quantity of contents.-..-.” 21 C.F.R. § 701.13(q). Likewise; the FPLA, Cal. Bus. & Prof. Code §12601 et seq.,. permits supplemental statements “describing in -non-deceptive terms the- net quantity of contents[.]” - Cal. Bus. & Prof. Code § 12605. Because the omission of supplemental statements is not expressly and affirmatively permitted by law, Plaintiffs claim that the net weight label is nonetheless deceptive due to the lack of a supplemental statement explaining product accessibility is not precluded by the safe harbor doctrine.

2. Federal Preemption Under the FDCA

As an additional ground for dismissing the label-based claims, the district court held that Plaintiffs claim that Fresh was required to include supplemental statements regarding product accessibility was preempted by the FDCA. We disagree.

The relevant FDCA provision states:

[N]o State ... may establish or continue in effect any requirement for labeling or packaging of a cosmetic that is different from or in addition to, or that is otherwise not identical with, a requirement specifically applicable to a particular cosmetic or class of cosmetics under this chapter.

21 U.S.C. § 379s(a). Importantly, § 379s “does not preempt state laws that allow consumers to sue cosmetics manufacturers that label or package their products in violation of federal standards.” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 757 (9th Cir. 2015) (emphasis added).

Fresh argues that any state-law claim requiring it to include supplemental statements about product accessibility is preempted by the FDCA because federal law does not impose any such requirement on cosmetics manufacturers. This argument misconstrues Plaintiffs claim. In challenging Fresh’s omission of supplemental statements about product weight, Plaintiff seeks to enforce § 111730 of California’s Sherman Food, Drug, and Cosmetic Law (“Sherman Law”), Cal. Health & Safety Code § 109875 et seq. Section 111730 states that “[a]ny cosmetic is mis-branded if its labeling is false or misleading in any particular.” Cal. Health & Safety Code § 111730. The language in the Sherman Law is virtually identical to the language in the FDCA, which states that a “cosmetic shall be deemed to be misbrand-ed if its labeling is false or misleading in any particular.” 21 U.S.C. § 362(a). In other words, both the federal FDCA and California’s Sherman Law prohibit the false or misleading labeling of a cosmetic. Viewed in this light, Plaintiff “is not asking [Fresh] to modify or enhance any aspect of its cosmetics labels that are required by federal law.” Astiana, 783 F.3d at 758. Rather, the state-law duty that Plaintiff seeks to enforce under the Sherman Law is identical to Fresh’s federal duty under the FDCA: the duty to avoid false or misleading labeling. Whether or not the lack of a supplemental statement rendered the accurate net weight label deceptive goes to the merits of the claim, not the question of federal preemption. See id. at 758 n.3 (“To the extent [the defendant] claims that no consumer would be deceived ... this argument goes to the merits of [plaintiffs] assertion that she was deceived by the allegedly false or misleading label, not the question of federal preemption.”). Because the Sherman Law does not amount to something “different from or in addition to” what federal law already requires, under 21 U.S.C. § 379s, preemption does not bar Plaintiffs claim.

3. Reasonable Consumer Standard

Although we conclude that neither the safe harbor doctrine nor FDCA preemption bars Plaintiffs supplemental statement claim, this label claim ultimately fails on the merits because Plaintiff cannot plausibly allege that the omission of supplemental disclosures about product weight rendered Sugar’s label “false or misleading” to the reasonable consumer. Plaintiffs claims under the California consumer protection statutes are governed by the “reasonable consumer” test. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Under this standard, Plaintiff must “show that ‘members of the public are likely to be deceived.’ ” Id. (citation omitted); Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995). This requires more than a mere possibility that Sugar’s label “might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 129 Cal.Rptr.2d 486, 495 (2003). Rather, the reasonable consumer standard requires a probability “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Id.

Plaintiffs claim that the reasonable consumer would be deceived as to the amount of lip product in a tube of Sugar is not plausible. It is undisputed that the Sugar label discloses the correct weight of included lip product. Dispenser tubes that use a screw mechanism to push up a solid bullet of lip product are commonplace in the market. The reasonable consumer understands the general mechanics of these dispenser tubes and further understands that some product may be left in the tube to anchor the bullet in place. Moreover, the allegations of the FAC make clear that even after the plastic stop device prevents more product from advancing up the tube, the consumer can still see the surface of the remaining bullet. Although the consumer may not know precisely how much product remains, the consumer’s knowledge that some additional product lies below the tube’s opening is sufficient to dispel any deception; at that point, it is up to the consumer to decide whether it is worth the effort to extract any remaining product with a finger or a small tool. A rational consumer would not simply assume that the tube contains no further product when he or she can plainly see the surface of the bullet. And even if “some consumers might hazard such an assumption,” the Sugar tube is not false and deceptive merely because the remaining product quantity may be “ ‘unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons ... that may purchase the product. Davis, 691 F.3d at 1162 (quoting Lavie, 129 Cal.Rptr.2d at 494).

Plaintiffs reliance on Williams is unpersuasive. In Williams, parents of small children brought a class action against Gerber based on the allegedly deceptive packaging of its Fruit Juice Snacks, a food product for toddlers. 552 F.3d at 936. The two most prominent ingredients of Fruit Juice Snacks were sugar and corn syrup, and the only fruit or juice content was white grape juice from concentrate. Id. Nevertheless, the product: (1) was named “Fruit Juice Snacks”; (2) had images of fruits such as oranges, peaches, strawberries, and cherries on the box; (3) stated that it was made with “fruit juice and other natural ingredients”; and (4) stated that it was “one of a variety of nutritious Gerber Graduates foods and juices that have been specifically designed to help toddlers grow up strong and healthy.” Id. at 936, 939. We concluded that these features on the packaging would lead a reasonable consumer to believe falsely that the product contained the pictured fruits and that all the ingredients were natural. Id. In light of such deceptive packaging, we rejected the use of the ingredient list as a “shield for liability for the deception[,]” explaining that a reasonable consumer is not “expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.” Id. Stated straightforwardly, Williams stands for the proposition that if the defendant commits an act of deception, the presence of fine print revealing the truth is insufficient to dispel that deception.

But here, unlike in Williams, there is no deceptive act to be dispelled. As explained above, Sugar’s weight label complies with both federal and California law. Further, the weight label does not contradict other representations or inferences on Sugar’s packaging. Apart from the accurate weight label, there are no other words, pictures, or diagrams adorning the packaging, as there were in Williams, from which any inference could be drawn or on which any reasonable belief could be based about how much of the total lip product can be accessed by using the screw mechanism. In the absence of any statement or other depiction anywhere on the package about lip product accessibility, we conclude that it is not plausible that “a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled” into thinking the entire lip bullet will clear the tube’s opening. See Lavie, 129 Cal.Rptr.2d at 495.

Plaintiff has not alleged, and cannot allege, facts to state a plausible claim that the Sugar label is false, deceptive, or misleading. Thus, the district court did not err in dismissing the label-based claims.

B.

Next, Plaintiff alleges that Sugar’s oversized and weighty packaging and tube design are unfair, deceptive, and misleading under the FAL, CLRA, and UCL. As part of her UCL claim, Plaintiff also alleges unlawful acts in violation of the Sherman Law, which proscribes “misleading” cosmetics containers, Cal. Health & Safety Code § 111750, and the FPLA, which provides that no container shall have a false bottom that “facilitate^] the perpetration of deception or fraud,” Cal. Bus. & Prof. Code § 12606(a).

Like the label-based claims, Plaintiffs design and packaging claims under these statutes are governed by the reasonable consumer test. Williams, 552 F.3d at 938 (citing Freeman, 68 F.3d at 289). Plaintiff alleges that the tube’s screw mechanism, the 5.35 gram metallic bottom, and the oversized tube and cardboard packaging all contribute to the misleading impression of a larger quantity of lip product than is actually included. These claims fail for largely the same reasons that the label-based claims fail. As explained above, an accurate net weight label is affixed to every Sugar tube and its accompanying cardboard box. Just as the reasonable consumer understands that additional product may remain in the dispenser tube after the screw mechanism prevents further advancement of the lip bullet, the reasonable consumer also understands that some additional weight at the bottom of the tube— not consisting of product—may be required to keep the tube upright.

Sugar sells for approximately $22.50 to $25.00 a unit. When viewed in the proper context of the high-end cosmetics market, Sugar’s elaborate packaging and the weighty feel of the tube is commonplace and even expected by a significant portion of Fresh’s “targeted consumers.” Lame, 129 Cal.Rptr.2d at 495. Because of the widespread nature of this practice, no reasonable consumer expects the weight or overall size of the packaging to reflect directly the quantity of product contained therein. Because Plaintiff cannot plausibly allege that Sugar’s design and packaging is deceptive, the district court did not err in dismissing the packaging-based claims.

C.

Finally, Plaintiff claims that the Sugar tube violates § 12606(b) of the FPLA, which deems a container misleading if it contains nonfunctional slack fill. Cal. Bus. <& Prof. Code § 12606(b). Slack fill is defined as “the difference between the actual capacity of a container and the volume of product contained therein.” Id. “Nonfunctional slack fill is the empty space in a package that is filled to substantially less than its capacity for reasons other than” one or more of the 15 enumerated reasons listed in the statute. Id.

The FAC alleges that “the significant portion of product falling below the mechanical stop device constitutes nonfunctional slack fill.” This cannot constitute “slack fill” because under the plain language of the statute, slack fill means the portion of the container without product, ie., empty space. Thus, the lip product falling below the stop device does not meet the definition of actionable slack fill. The district court correctly concluded that the FAC fails to . allege a violation of § 12606(b).

IV.

Plaintiff also contends that she should- have been given leave to amend her FAC. Although, under Federal Rule of Civil Procedure 15(a)(2), leave to amend should be “freely” given, that liberality does not apply when amendment would be futile. See Doe, 58 F.3d at 497 (leave to amend should be freely given, “unless [the court] determines that the pleading could not possibly be cured by the allegation of other facts”). Such is the case here. As the above analysis in Part III demonstrates, any further amendment would be futile.

Finally, Plaintiff also pleads a cause of action for unjust enrichment. The FAC recognizes, however, that “[ujnjust enrichment is a component of recovery under the statutes [UCL, CLRA, FAL, and FPLA] cited above.” Thus, here, unjust enrichment is asserted as a remedy for the statutory violations alleged in the FAC. Because we have concluded that the FAC fails to state a claim under any of these statutes, the unjust enrichment cause of action has been mooted.

• • •

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . We use the term "bullet of lip product” to describe the cylindrical mass of lip product that is dispensed from, the top of the tube.

      . Having dismissed Plaintiff's label-based FAL claim on safe harbor and preemption grounds, the district court dismissed any remaining part of the FAL claim on the ground that Sugar’s packaging does not constitute an untrue or misleading "statement” prohibited by the FAL. This ruling was in error. The FAL prohibits unfair, deceptive, untrue, or misleading advertising, and this Court has previously concluded that a product’s packaging may form the basis of an FAL claim. See Williams, 552 F.3d at 938-40 (reversing district court's dismissal of an FAL claim where defendant’s packaging for its fruit juice snack product included pictures of different fruits “potentially suggesting (falsely) that those fruits or their juices are contained in the product”). However, as explained below, the FAL claim ultimately fails because Plaintiff has not alleged a plausible claim for relief.


author: BYBEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Oliva DIAZ, AKA Chaparro, AKA Gilberto Oliva, Defendant-Appellant United States of America, Plaintiff-Appellee, v. Arturo Cruz, AKA Art, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Alberto Hernandez, AKA Cruiser, AKA Sugar, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jose Gonzalez, AKA Black, AKA Negro, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Noe Gonzalez, AKA Lil Black, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Manuel Hernandez, AKA Frog, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jesse Vasquez, AKA Pelon, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Francisco Flores, AKA Lil Frank, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Luis A. Aguilar, AKA Woody, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Cesar Dela Cruz, AKA Thumper, Defendant-Appellant.
    No. 10-50029, No. 10-50052, No. 10-50058, No. 10-50059, No. 10-50062, No. 10-50064, No. 10-50072, No. 10-50076, No. 10-50113, No. 10-50115
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 2, 2015, Pasadena, California
    Filed April 20, 2016
    Amended September 21, 2016

      Karen Landau (argued), Oakland, California, for Defendant-Appellant Manuel Hernandez.
    Ethan Balogh (argued) and Jay Nelson, Coleman, Balogh & Scott LLP, San Francisco, California, for Defendant-Appellant Jesse Vasquez.
    Kenneth Reed, Santa Ana, California, for Defendant-Appellant Gilbert Oliva Diaz.
    Verna Wefald, Pasadena, California, for Defendant-Appellant Arturo Cruz.
    Wayne Young, Santa Monica, California, for Defendant-Appellant Alberto Hernandez.
    David Philips, Riverside, California, for Defendant-Appellant Jose Gonzalez.
    Thomas Wolfsen, Orange, California, for Defendant-Appellant Noe Gonzalez.
    Holly Sullivan, San Diego, California, for Defendant-Appellant Francisco Flores.
    Michael Khouri, Khouri Law Firm, Irvine, California, for Defendant-Appellant Luis A. Aguilar.
    Robison Harley, Santa Ana, California, for Defendant-Appellant Cesar Déla Cruz.
    Elana Shavit Artson (argued), Allison Westfahl Kong, and Robert Dugdale, Assistant United States Attorneys; Stephanie Yonekura, Acting United States Attorney; United States Attorney’s Office, Los Ange-les, California, for Plaintiff-Appellee.
    Donald M. Falk, Mayer Brown LLP, Palo Alto, California; Travis Crum, Mayer Brown LLP, Washington, D.C.; Michael Romano, Stanford Law School Justice Advocacy Project, Stanford, California; David M. Porter, Co-Chair, NACDL Amicus Curiae Committee, Sacramento, California; for Amici Curiae National Association of Criminal Defense Lawyers and Stanford Law School Justice Advocacy Project.
    Before: JEROME FARRIS, JAY S. BYBEE, and N. RANDY SMITH, Circuit Judges.
   ORDER

The court’s opinion filed April 20, 2016, appearing at 821 F.3d 1051 (9th Cir. 2016), is hereby amended. An amended opinion is filed herewith.

With this amended opinion, the panel has voted to deny the petitions for panel rehearing.

The full court has been advised of the petitions for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petitions for rehearing and the petitions for rehearing en banc, filed June 2, 2016, June 3, 2016 and July 1, 2016 are DENIED. No subsequent petitions for rehearing or rehearing en banc may be filed.

OPINION

BYBEE, Circuit Judge:

Jesse Vasquez was a mid-level leader in the Florencia Trece gang who was convicted of drug-related crimes for his part in the gang’s drug trafficking operations. The district court sentenced Vasquez to life imprisonment because his two prior California felonies qualified him for a mandatory sentence enhancement under 21 U.S.C. § 841.

Four years after Vasquez’s sentencing, California adopted Proposition 47, which allowed California courts to reclassify certain felony convictions as misdemeanor convictions. Vasquez successfully petitioned a California court to reclassify one of his prior California felonies—on which his federal enhancement was based—as a misdemeanor. Vasquez now argues that his federal enhancement should be invalidated because he no longer stands convicted of one of the two prior felonies as § 841 requires.

We hold that Proposition 47 does not change the historical fact that Vasquez violated § 841 “after two or more prior convictions for a felony drug offense [had] become final.” 21 U.S.C. § 841(b)(1)(A). We therefore affirm.

I

In 2007, Vasquez was charged with multiple counts of racketeering and drug related crimes. Shortly after, -the United States filed an information alleging that Vasquez qualified for a sentence enhancement under the Controlled Substances Act, 21 U.S.C. § 841, because of his two prior felony drug convictions—one of which was a 1996 conviction under California Health and Safety Code section 11350(a) for possession of a controlled substance. In 2009, Vasquez was convicted. At sentencing in 2010, the district court imposed life imprisonment, a sentence mandated under 21 U.S.C. § 841(b)(1)(A) because of Vasquez’s “prior [California] convictions for a felony drug offense.”

In November 2014, California voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act.” Cal. Penal Code § 1170.18 (codifying Proposition 47); see People v. Rivera, 233 Cal.App.4th 1085, 183 Cal.Rptr.3d 362, 363 (2015). Among other things, Proposition 47 reduced future convictions under § 11350(a) from a felony to a misdemeanor. Proposition 47 also permits previously-convicted defendants to petition the court for a “recall of sentence,” which, if granted, would effectively reclassify their qualifying felonies as misdemeanors. See Cal. Penal Code § 1170.18(a). In February 2015 Vasquez did just, that: He successfully petitioned the Los Angeles .County Superior Court to recall his 1996 felony conviction, and the court resentenced him to a misdemeanor.

Proposition 47’s new statutory changes provide that “[a]ny felony conviction that is recalled and resentenced ... or designated as a misdemeanor ... shall be considered a misdemeanor for all purposes.” Cal. Penal Code § 1170.18(k). However, the. court need not recall a felony sentence if it finds, in its discretion, that re-classifying the defendant would pose an unreasonable danger to the community. Cal. Penal Code § 1170.18(b). The statute also provides that “[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any ease not falling within the purview of this act.” Cal. Penal Code § 1170.18(n).

II

Section 841 imposes a mandatory life sentence if a defendant “commits [a violation of § 841] after two or more prior convictions for a felony drug offense have become final.” 21 U.S.C. § 841(b)(1)(A). A “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.” 21 U.S.C. §' 802(44). Vasquez argues that because he successfully petitioned in 2014 to have his 1996 conviction re-designated as a misdemeanor, that conviction no longer counts as a prior felony conviction for purposes of § 841. We disagree. California’s actio'ns—taken long after Vasquez’s state conviction became- “final”—have no bearing on whether § 841’s requirements are satisfied.

A

Federal law, not state law, governs our interpretation of federal statutes. See United States v. Norbury, 492 F.3d 1012, 1014 (9th Cir. 2007) (“Whether a defendant’s prior state conviction was a ‘conviction’ [within the meaning of § 841] is a question of federal, not state, law.”); see also Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) (noting that consulting federal law to determine the meaning of “convicted” “makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions”), holding superseded by statute, as stated in Logan v. United States, 552 U.S. 23, 128 S.Ct. 475, 479-80, 169 L.Ed.2d 432 (2007). As we explained when analyzing a defendant’s “convicted felon status” under the Omnibus Crime Control and Safe Streets Act: “Although the [state’s] statute [can] determine the status-of the conviction for purposes of state law, it [can]not rewrite history for the purposes of the administration of the federal criminal law or the interpretation of federal criminal statutes.” United States v. Bergéman, 592 F.2d 533, 536 (9th Cir. 1979) (quotation and citation omitted); see also United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir. 1997) (“[W]e are not bound by [state law’s] treatment of a felony conviction when we apply the federal sentence-enhancement provisions.” (quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988))). We therefore apply federal law, not California law, to determine the effect of California’s reclassification on Vasquez’s federal sentence enhancement under § 841.

When a state grants post-conviction relief to a defendant with respect to his state felony conviction, we do not generally apply those changes retroactively for purposes of determining whether a federal sentencing statute’s requirements are met. See, e.g., Norbury, 492 F.3d at 1015; see also United States v. Salazar-Mojica, 634 F.3d 1070, 1072-74 (9th Cir. 2011) (holding in the context of U.S. Sentencing Guidelines that a defendant had still “previously been deported after being convicted of a felony,” .even though his felony was later reduced to a misdemeanor). The Supreme Court’s decision in McNeill v. United States, 563 U.S. 816, 131 S.Ct. 2218,180 L.Ed.2d 35 (2011), illustrates why we avoid undoing federal sentences after the fact. Under the Armed Career Criminal Act, the sentencing court had to determine whether the defendant had “three previous convictions ... for a violent felony or a serious drug offense,” “for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. §§ 924(e)(1), 924(e)(2)(A)(ii). McNeill had been convicted in the early 1990’s of violating North Carolina drug laws for which the maximum penalty was at least ten years. McNeill, 563 U.S. at 818, 131 S.Ct. 2218. However, in 1994 North Carolina reduced the maximum sentence for his offense; as of 1994, the state offense no longer qualified for the federal enhancement. Id. McNeill argued that, because the state had changed its laws, his prior conviction did not qualify as a “serious drug offense.” Id. The Court disagreed, holding that the state’s changes to McNeill’s state conviction had no affect on his federal, sentence. Id. at 819, 131 S.Ct. 2218. The Supreme Court explained that the ACCA asked a “backward-looking question” and the “only way to answer [this question] is to consult the law that applied at the time of that conviction ... [this] avoids the absurd results that would follow from consulting current state law to define a previous offense.” Id. at 819-20, 131 S.Ct. 2218 (emphasis added).

Proposition 47 presents a slight variation on what effect, if any, we must give to subsequent acts affecting a prior state sentence. We have never specifically addressed whether a state that permits reclassifying particular felony convictions as misdemeanors requires a federal court to revisit a federal sentence enhancement imposed under § 841. But we have addressed whether dismissing or expunging a predicate state conviction invalidates a federal enhancement under this section. See Nor-bury, 492 F.3d 1012. In Norbury, we held that a state’s later dismissal or expungement of a predicate state conviction had no bearing on whether § 841’s requirements were met. Id. at 1015. In other words, despite the fact that the state felony conviction was now expunged, this did not change the historical fact that, for purposes of § 841, the defendant had been convicted of the felony in the past. Id. We noted one exception: where the dismissal or , expungement alters the legality of the original state conviction—such as where there was a trial error or it appears -the defendant was actually innocent of the underlying crime. Id. (citing Dickerson, 460 U.S. at 115, 103 S.Ct. 986). Other than this circumstance, we explained that a federal enhancement “does not depend upon the mechanics of state post-conviction procedures, but rather involves the [state] conviction’s underlying lawfulness.” Id.

B

Like the ACCA provision at issue in McNeill, § 841 is a “backward-looking,” McNeill, 563 ,U.S. at 821, 131 S.Ct. 2218, inquiry requiring only that a defendant have committed his federal crime “after two or more prior convictions for a felony drug offense have become final,” 21 U.S.C. § 841(b)(1)(A) (emphasis added). The statute tells us what event triggers the enhancement: two state convictions that are “final.” Id. As the Tenth Circuit has explained: “The question posed by § 841(b)(1)(A) is whether the defendant was previously convicted, not the particulars of how state law later might have” permitted relief from the defendant’s state conviction. United States v.-Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013), cert, denied, — U.S. -, 134 S.Ct. 365, 187 L.Ed.2d 252 (2013). In other words, a state making a change to a state conviction, after it has become final, “does not alter the historical fact of the [prior state] conviction” becoming final—which is what § 841 requires. Id. at 1292 (quoting Dickerson, 460 U.S. at 115, 103 S.Ct. 986). Even where a state has fully eradicated a predicate state conviction by dismissing it or expunging it—a more drastic change than merely reclassifying it as a misdemeanor—“as a matter of plain statutory meaning there [is] ... no question” the defendant committed his crime “after a [prior state felony] conviction” has become final. Dyke, 718 F.3d at 1292.

Congress could, of course, give retroactive effect to changes in state law for purposes of federal statutes “for policy reasons unrelated to innocence or an error of law.” United States v. Law, 528 F.3d 888, 911 (D.C. Cir. 2008) (per curium). Indeed, it has done so in other circumstances. See United States v. Yepez, 704 F.3d 1087, 1090-91 (9th Cir. 2012) (per curium) (en báñe) (discussing carve-óuts in the U.S. Sentencing Guidelines). But in § 841, Congress did not. One purpose for § 841 is to discourage repeat offenders. If a state provides relief for a prior state drug conviction, after the defendant has committed another, federal, drug crime, “it’s unclear why a [federal] Statute aimed at punishing recidivism (as § 841(b)(1)(A) is) would afford the defendant” relief in his federal sentence. Dyke, 718 F.3d at 1293.

Ignoring later state actions for purposes of federal sentences also aligns with the Supreme Court’s repeated admonishments that federal laws should be construed to achieve national uniformity. See Dickerson, 460 U.S. at 112, 103 S.Ct. 986. As we explained in Bergeman, “[i]f a conviction were to be determined by application of the different ... statutes of each state, then the application of federal criminal sanctions would depend solely upon where the defendant’s previous conviction had occurred.” 592 F.2d at 537. We doubted that Congress would have “intended a federal criminal law to be applied in such a patchwork fashion.” Id.; see also United States v. McGlory, 968 F.2d 309, 350 (3d Cir. 1992) (“[W]e note the confusion in sentencing likely to result if the sentencing court had to analyze the status of every prior state conviction in terms of the status of state law.... This would entail applying changes in state law retroactively to final convictions.”).

Ill

Vasquez argues his case is different because California applies Proposition 47 retroactively, so we should treat his 1996 felony conviction as if it never existed. But there are two problems with this argument. First, it is not clear that even California would apply Proposition 47 retroactively in a sentence enhancement case such as ours. Although California’s new statute allows defendants to request reclassification and a reduced sentence, the statute expressly provides that “[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act.” Cal. Penal Code § 1170.18(n). The California Supreme Court previously addressed a state statute that permits California courts to reclassify a “wobbler” offense—one that can be punished as either a felony or a misdemeanor—to be a misdemeanor upon completion of probation, even if the defendant was originally convicted of a felony. And the California Supreme Court observed that the reclassification of a felony to a misdemeanor does not necessarily mean the crime will be treated as a misdemeanor retroactively for the purpose of other statutory schemes. See People v. Park, 56 Cal.4th 782, 795-803, 156 Cal.Rptr.3d 307, 299 P.3d 1263 (2013) (finding that a felony wobbler reduced to a misdemeanor would count as a prior felony conviction for purposes of a sentencing enhancement under Cal. Penal Code § 667(d)(1), but would not count as a prior felony conviction for purposes of a sentencing enhancement under Cal. Penal Code § 667(a)).

Second, even if California decided to give Proposition 47 retroactive effect for purposes of its own state law, that would not retroactively make Vasquez’s felony conviction a misdemeanor for purposes of federal law. As we have explained, § 841 explicitly tells us when it applies: When a defendant (1) commits a federal drug offense (2) after being convicted of two or more felony drug offenses that have “become final.” 21 U.S.C. § 841(b)(1)(a). There is no doubt Vasquez committed a federal drug offense, nor is there any doubt his state felony convictions “have become final.”

We thus hold that California’s Proposition 47, offering post-conviction relief by reclassifying certain past felony convictions as misdemeanors, does not undermine a prior conviction’s felony-status for purposes of § 841. California’s later actions cannot change the fact that Vasquez committed his federal offense “after two or more convictions for a felony drug offense [had] become final.”

AFFIRMED.

      . Other issues raised in this case are addressed in a memorandum disposition filed concurrently with this opinion.

      . Vasquez’s petition, and the Superior Court's action, took place between the time the district court rendered Vasquez’s sentence and his appeal was heard by this court. Vasquez filed a supplemental brief on the issue and asked the panel to consider it as part of his appeal. The government responded on the merits, but also suggested that the panel should remand this question because it was not raised below. Because this issue has arisen while the appeal is pending, and because it is a legal question which has been fully briefed, we may decide it here for the first time on appeal. See United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990) (holding that we may review a new issue on appeal , ■ where it arose because of a recent change in law or other “exceptional” circumstance); Gates v. Deukmejian, 987 F.2d 1392, 1407-08 (9th Cir. 1992) (exercising discretion to address defendants' argument based on change in law during pendency of appeal). We have determined to exercise our discretion and decide this question.

      . Proposition 47 did not make Vasquez innocent of his felony possession of controlled substance. Rather, it downgraded the offense.


author: THOMAS, Chief Judge:

text:
    IN RE: SUNNYSLOPE HOUSING LIMITED PARTNERSHIP, Debtor, First Southern National Bank, Plaintiff-Appellant, v. Sunnyslope Housing Limited Partnership, Defendant-Appellee. In re: Sunnyslope Housing Limited Partnership, Debtor, Sunnyslope Housing Limited Partnership, Plaintiff-Appellant, v. First Southern National Bank, Defendant-Appellee. In re: Sunnyslope Housing Limited Partnership, Debtor, First Southern National Bank, Plaintiff-Appellant, v. Sunnyslope Housing LP, Defendant-Appellee. In re: Sunnyslope Housing Limited Partnership, Debtor, Sunnyslope Housing LP, Plaintiff-Appellant, v. First Southern National Bank, Defendant-Appellee.
    No. 12-17241, No. 12-17327, No. 13-16164, No. 13-16180
    United States Court of Appeals, Ninth Circuit.
    Filed September 22, 2016
    Brian Sirower, Attorney, Quarles & Brady LLP, Phoenix, AZ, Scott R. Goldberg, Esquire, Mark C. Hudson, Esquire, Dale Schian, Attorneys, Schian Walker, P.L.C., Phoenix, AZ, Edward King Poor, Attorney, Quarles & Brady LLP, Chicago, IL, for Plaintiff-Appellant.
    Scott B. Cohen, David William Engel-man, Bradley D. Pack, Patrick Clisham, Attorneys, Engelman Berger, PC, Phoenix, AZ, Susan Freeman, Attorney, Justin Henderson, Henk Taylor, Lewis Roca Ro-thgerber Christie LLP, Phoenix, AZ, for Defendant-Appellee.
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that these cases be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.