author: KAREN LeCRAFT HENDERSON, Circuit Judge:

text:
    Arthur S. WEST, Appellant v. Loretta E. LYNCH, Attorney General of the United States, et al., Appellees
    No. 15-5107
    United States Court of Appeals, District of Columbia Circuit.
    Argued December 8, 2016
    Decided January 18, 2017

      David M. Zionts, Washington, DC, appointed by the court, argued the cause as amicus curiae in support of the appellant. Robert A. Long, Jr., New York, NY, was with him on the briefs.
    Arthur S. West, pro se, filed the briefs for the appellant.
    Nicolas Y. Riley, Attorney, United States Department of Justice, argued the cause for the federal appellees. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Mark B. Stern, Attorney, were with him on the brief.
    Jeffrey T. Even, Deputy Solicitor General, Office of the Attorney General for the State of Washington, argued the cause for appellees Inslee and Foster. Robert W. Ferguson, Attorney General, was with him on the brief.
    Before: HENDERSON, TATEL and MILLETT, Circuit Judges.
   KAREN LeCRAFT HENDERSON, Circuit Judge:

The Constitution limits our “judicial Power” to “Cases” and “Controversies,” U.S. Const, art. Ill, § 2, cl. 1, and there is no justiciable case or controversy unless the plaintiff has standing, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). To stave off dismissal for lack of standing, the plaintiff must sufficiently allege a “concrete and particularized” injury that is “fairly traceable to the challenged action of the defendant” and “likely” to be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations, brackets and ellipses omitted). Arthur West, the plaintiff here, does not meet this “irreducible constitutional minimum.” Id. at 560, 112 S.Ct. 2130.

West lives in the state of Washington, which since the late 1990s has permitted the use of marijuana for medical purposes. He holds a medical marijuana authorization and uses marijuana for an undisclosed medical reason. He opposes the legalization of recreational marijuana, however, which Washington approved in 2012 through a ballot initiative. In West’s view, the initiative and subsequent amendments are bad for the state’s environment and for medical marijuana users like him.

All of Washington’s laws governing marijuana — medical and recreational — are in tension with the Controlled Substances Act of 1970 (CSA), 21 U.S.C. §§ 801 et seq., which makes it a federal crime to manufacture, distribute or possess with intent to distribute marijuana. In 2013, the United States Department of Justice (Department), through then-Deputy Attorney General James Cole, issued a guidance memorandum (Cole Memorandum) to federal prosecutors about enforcement of the CSA in cases involving marijuana. The memorandum, prompted by Washington’s 2012 ballot initiative and a similar one in Colorado, advises federal prosecutors generally to rely on state authorities to address marijuana activity unless the state’s regulatory system is insufficiently robust or the activity implicates a federal enforcement priority. West sued the Department, Deputy Attorney General Cole and other federal and state officials in district court, claiming in a pro- se complaint that the Cole Memorandum unconstitutionally “commandeer[s]” state officials and institutions. Pl.’s Am. Compl. (Compl.), Dkt. No. 14 at 1. He also claimed that all defendants violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., by failing to prepare an environmental impact statement before publication of the memorandum. He alleged that, taken together, Washington’s laws and the memorandum subject him to injuries from the wider availability of recreational marijuana and new restrictions on medical marijuana. The relief he sought centered not on state law but on the memorandum: he asked that it be “void[ed]” and that all defendants “be compelled to comply with ... NEPA” in connection with the “federal ... response” to the state’s legalization of recreational marijuana. Compl. 18-19.

The district court dismissed the complaint, concluding (inter alia) that West lacks standing. We agree. First, for his commandeering claim, West has not sufficiently alleged that setting aside the Cole Memorandum would redress his alleged injuries from the wider availability of recreational marijuana and new restrictions on medical marijuana. Second, for his NEPA claim, West has not sufficiently alleged that any adverse environmental effects of recreational marijuana on his own particularized interests are traceable to the memorandum. We therefore uphold the dismissal of his complaint.

I. BACKGROUND

For our review, the facts are undisputed. We recite them primarily from West’s complaint, accepting as true its well-pleaded factual allegations and drawing all reasonable inferences in West’s favor. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). As necessary, we cull additional facts from other parts of the record. See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005) (in deciding subject matter jurisdiction, court may “consider[] facts developed in the record beyond the complaint”). Before turning to the injuries alleged in the complaint, we summarize the regulatory backdrop against which they must be evaluated.

A. Washington’s Marijuana Laws and the Cole Memorandum

Since 1970, the CSA has made it a crime to manufacture, distribute or possess with intent to distribute controlled substances, 21 U.S.C. § 841(a)(1), including marijuana, id. § 812(c) (Schedule I(c)(10)). In late 1998, notwithstanding the CSA, Washington legalized the medical use of marijuana. Act of Nov. 3,1998, ch. 2,1999 Wash. Sess. Laws 1. Starting in 2011, a “qualifying patient” could join together with up to nine other qualifying patients to grow marijuana in a “collective garden” and transport the product for medical use. Act of Apr. 29, 2011, ch. 181, 2011 Wash. Sess. Laws 1345, 1355. A qualifying patient could possess up to 24 ounces of useable marijuana at a time. Id. at 1353.

In November 2012, Washington voters approved Initiative 502 (1-502), which legalized the recreational use of marijuana. Act of Nov. 6, 2012, ch. 3, 2013 Wash. Sess. Laws 28. 1-502 set up a licensing regime for marijuana producers, processors and retailers. Id. at 33-52. It also provided for a marijuana excise tax and subjected retail marijuana sales to ordinary sales tax. Id. at 52-53. With the exception of a broad prohibition on using marijuana or marijuana-infused products “in view of the general public,” id. at 44, 1-502 did not modify the regime governing medical marijuana that had existed since the late 1990s, including provisions permitting the possession of up to 24 ounces of medical marijuana and allowing for the creation of collective gardens. Instead 1-502 provided that any user over the age of 21 can, without violating “any ... provision of Washington state law,” possess up to one ounce of useable marijuana. Id.; see id. at 42.

In early 2013, Washington Governor Jay Inslee met with a White House official to seek assurances that the federal government did not intend to “preemptf ] ... state implementation of 1-502, or pursue enforcement of federal criminal laws” in Washington “for those acting legally under [state] law.” Pl.’s Supplemental Decl. and Exs. (Decl.), Dkt. No. 16 at 81. To the same end, Governor Inslee wrote a letter to Eric Holder, then-Attorney General of the United States, summarizing the regulatory and law enforcement strategies the state planned to implement in the wake of 1-502.

In a letter dated August 29, 2013, Attorney General Holder informed Governor In-slee — and Governor John Hickenlooper of Colorado, another state that had legalized the recreational use of marijuana — that “while the Department will not at this time seek to challenge your state’s law, we will nevertheless continue to enforce the Controlled Substances Act in your state.” Deck 71. The Attorney General also enclosed the Cole Memorandum, which was issued that same day to all United States Attorneys.

The Cole Memorandum updated marijuana-related CSA guidances earlier issued to federal prosecutors in 2009 and 2011. The memorandum “applies to all federal enforcement activity ... concerning marijuana in all states.” Deck 72. It is “solely ... a guide to the exercise of investigative and prosecutorial discretion” and “does not alter in any way the Department’s authority to enforce federal law ... regardless of state law.” Id. at 75. It advises federal prosecutors “to review marijuana cases on a case-by-case basis” in deciding how to deal with “marijuana-related activity.” Id, at 74. It directs them to “weigh all available information and evidence,” including whether the activity “is demonstrably in compliance with a strong and effective state regulatory system,” Id. It declares that “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity” unless the state’s “regulatory structure” and “enforcement efforts” “are not sufficiently robust.” Id. That arrangement is meant to enable federal prosecutors to focus on “enforcement priorities that are particularly important to the federal government[,]” including prevention of violence, organized crime, interstate distribution, distribution to minors and use on federal property. Id. at 72-73. Finally, the memorandum states that, if marijuana-related activity “interferes with any one or more of these priorities,” federal prosecution may be warranted “regardless of state law.” Id. at 73.

In the first few years after Washington voters approved 1-502, medical marijuana and recreational marijuana were governed by two parallel strands of Washington law, neither of which mentioned the other. As noted earlier, a user of medical marijuana could' grow it in a collective garden with other patients and could possess up to 24 ounces. 2011 Wash. Sess. Laws at 1353, 1355. A recreational user, by contrast, could possess only one ounce. 2013 Wash. Sess. Laws at 42, 44. In April 2015, the Washington legislature amended the two strands of law and partially pulled them together through enactment of the Cannabis Patient Protection Act (CPPA), ch. 70, 2015 Wash. Sess. Laws 287 (Apr. 24, 2015). The CPPA is “a comprehensive act that uses the regulations in place for the recreational market to provide regulation for the medical use of marijuana.” Id. at 288. In some ways, the CPPA is more restrictive than earlier laws. It repealed the provision that permitted a medical user to possess up to 24 ounces of useable marijuana. Id. at 317. Now the ordinary medical user may not possess more than three ounces purchased at retail and eight additional ounces obtained from home-grown plants. Id. at 312, 317 (codified at Wash. Rev. Code §§ 69,51A.040(l)(a) and 69.51A.210(1) (2016)). The CPPA also repealed the system of collective gardens, id. at 336, replacing it with a system of “eoop-erative[s]” under which “[n]o more than four qualifying patients” may cooperatively grow marijuana for medical use, id. at 319 (codified as amended at Wash. Rev. Code § 69.51A.25O0.) (2016)). Cooperatives are subject to registration requirements and other restrictions to which collective gardens were not. Compare Wash. Rev. Code § 69.51A.085 (repealed 2016) (collective gardens), with id. § 69.51A.250 (2016) (cooperatives). The CPPA took effect in stages during 2015 and 2016. 2015 Wash. Sess. Laws at 336.

B. West’s Complaint

In April 2014, after the Cole Memorandum was issued but before the CPPA was enacted, West filed his complaint in district court. His claims are difficult to discern but the crux is that, through the “policy” announced in the memorandum, the federal defendants “improperly commandeer[ed]” the state defendants and other “[sjtate officers and institutions” in violation of the Tenth Amendment and other provisions of the United States Constitution. Compl. 1-2 (citing Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)). West also claimed that all of the defendants violated NEPA by failing to prepare an environmental impact statement before undertaking the “major federal action” announced in the memorandum. Id. at 2, 17 (citing 40 C.F.R. § 1508.18) (capitalization altered). According to the complaint, the memorandum subjects West to injuries from the wider availability of recreational marijuana and by limiting his access to medical marijuana. We briefly summarize West’s allegations about each type of injury.

Wider availability of recreational marijuana. West opposed 1-502. He frequents a park in Olympia that is “suffering under the impacts of homelessness and casual recreational drug use.” Compl. 4. Implementation of 1-502, as “sanctioned” by the Cole Memorandum, “will” cause a surge in drug use, further “degradpng]” the park. Id. at 14. Moreover, because 1-502 authorizes “an entirely new commercial market” in marijuana, it “will” eventually cause more “crime, traffic, noise, air pollution, and cumulative impacts.” Id.

Limited access to medical marijuana. West holds a medical marijuana authorization, uses marijuana for medical purposes and is an “independent consultant” in that field. Compl. 4,18. The Cole Memorandum “will” have the “foreseeable and imminent effeet[s]” of limiting his access to medical marijuana and making it more expensive for him, inasmuch as state legislators have referred to the memorandum in proposing legislation “sharply regulatpng]” medical marijuana and subjecting it to new taxes. Id. at 12-13.

In the complaint’s prayer for relief, West asked the district court to declare the Cole Memorandum “void” and to “com-pelí ]” all of the defendants “to comply with ... NEPA” in connection with the “federal ... response” to Washington’s legalization of recreational marijuana. Compl. 18-19. The defendants moved to dismiss the complaint, contending (inter alia) that West lacks standing. West opposed their motions but did not explain how the relief he requested would redress his alleged injuries.

C. The District Court’s Dismissal op the Complaint

The district court dismissed the complaint, concluding (inter alia) that “West has not established that he has Article III standing to bring any of his various claims to federal court.” 60 F.Supp.3d 197, 200 (D.D.C. 2015); see supra. Reciting the three elements of standing — (1) a particularized injury to the plaintiff (2) traceable to the defendants’ challenged conduct and (3) redressable by a favorable decision— the court held that West did not sufficiently plead any of them. 60 F.Supp.3d at 200-03. First, in the court’s view, West’s allegations that the Cole Memorandum “will” produce more crime, traffic and pollution and “will” limit his access to medical marijuana were inadequate “speculative predictions.” Id. at 201 (internal quotations and emphases omitted). Second, the court reasoned that West’s alleged injuries could not “fairly ... be traced” to the memorandum, which was issued well after 1-502 became law and which merely “allow[s]” the allegedly harmful actions of third parties not involved in the suit. Id. (internal quotation omitted). Third, the court held that because West “made no effort to show that his injuries can be redressed” in federal court, he “forfeited any arguments he might have had” on that issue. Id. at 202-03 & n.5. The court added that any claim of redressability would fail in any event because it was “purely speculative” that voiding the memorandum would “modify Washington’s ... allegedly harmful marijuana policies.” Id. (internal quotation omitted).

West appealed and this Court appointed amicus curiae to present arguments in support of his position. West adopts ami-cus’s arguments without asserting any additional non-frivolous contention regarding his standing.

II. ANALYSIS

Because “standing is not dispensed in gross” but instead may differ claim by claim, Davis v. FEC, 554 U.S. 724, 734,128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (internal quotation and alteration omitted), we address seriatim West’s standing to pursue his commandeering and NEPA claims. Reviewing the district court’s decision de novo, Teton Historic Aviation Found, v. Dep’t of Defense, 785 F.3d 719, 724 (D.C. Cir. 2015) (per curiam), we conclude that West lacks standing to assert both claims.

A. Commandeering

For West’s claim that the Cole Memorandum “commandeer[s]” state officials and otherwise violates the Constitution, Compl. 1, 17-18, we need not decide whether he has adequately pleaded any particularized injury traceable to the memorandum because he has not sufficiently alleged redressability. See Huron v. Cobert, 809 F.3d 1274, 1279 (D.C. Cir. 2016) (plaintiff “bear[s] the burden of establishing each of [the] elements of standing”). “Redressability examines whether the relief sought, assuming that the court chooses to grant it, will likely alleviate the particularized injury alleged by the plaintiff.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663-64 (D.C. Cir. 1996) (en banc) (footnote omitted). The key word is “likely.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“[I]t must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” (internal quotation omitted)). As relief on his commandeering claim, West asks that the Cole Memorandum be declared “void.” Compl. 19. But his complaint and oppositions to the defendants’ motions to dismiss did not even begin to explain how voiding the memorandum would likely clean up the park he visits; reduce crime, traffic and pollution more generally; or cause Washington to ease its restrictions on medical marijuana. Nor has amicus closed the gap in this Court.

Amicus’s argument in a nutshell is that redressability necessarily “follows from causation.” Amicus Br. 40; see id. at 30-31. Not so. It is true that causation and redressability “are closely related” like “two sides of a ... coin.” Dynalantic Corp. v. Dep’t of Defense, 115 F.3d 1012, 1017 (D.C. Cir. 1997). Like heads and tails, however, the two concepts are distinct: causation focuses on the “connection between the assertedly unlawful conduct and the alleged injury” whereas redressability focuses on the “connection between the alleged injury and the judicial relief requested.” Allen v. Wright, 468 U.S. 737, 753 n.19,104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). If the challenged conduct is at best an indirect or contributing cause of the plaintiffs injury — la, if the injury may or may not follow from the conduct, based on a “chain of contingencies,” Clapper v. Amnesty Int’l USA, 568 U.S.-, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (2013) — the plaintiff faces an uphill climb in pleading and proving redressability. Arpaio v. Obama, 797 F.3d 11, 21 (D.C. Cir. 2015) (“When considering any chain of allegations for standing purposes, we may reject as overly speculative those links which are predictions of future events[,] especially future actions to be taken by third parties .... ” (internal quotation and parentheses omitted)); Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004) (“[A] plaintiffs standing fails where it is purely speculative that a requested change in government policy will alter the behavior of regulated third parties that are the direct cause of the plaintiffs injuries.”).

Our National Wrestling Coaches decision illustrates the principle. In that case, organizations representing male collegiate wrestlers and coaches challenged regulatory guidance implementing Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. The guidance prescribed a three-part test for measuring compliance with an earlier requirement that schools provide “equal athletic opportunity for members of both sexes.” 366 F.3d at 934-35 (quoting 34 C.F.R. § 106.41(c) and 45 C.F.R. § 86.41(c)). According to the plaintiff organizations, some schools passed the test “not by offering increased athletic opportunities to female students, but by reducing the opportunities available to male students,” including by eliminating men’s varsity wrestling. Id. at 937. We affirmed the district court’s dismissal of the suit for lack of standing because the plaintiffs could not establish redressability. Id. at 936-45. Setting aside the challenged guidance, we reasoned, would not undo the underlying equal-opportunity requirement or prevent the schools from exercising their own “discretion to eliminate men’s wrestling programs, as necessary, to comply with” the requirement. Id. at 933. And the plaintiffs “offer[ed] nothing but speculation” that “a favorable judicial decision” would alter the schools’ “independent choices” on that score. Id.

A similar analysis here yields a similar conclusion. The direct causes of West’s alleged injuries — e.g., recreational users who smoke marijuana in public and state officials who restrict his access to medical marijuana — are not governed by the Cole Memorandum but by state laws he does not challenge. The memorandum governs only federal prosecutors and even as to them, only loosely: it is mere guidance channeling their prosecutorial discretion, advising them to rely on state authorities to address marijuana activity unless the state’s regulatory system is insufficiently robust or the particular activity implicates a federal enforcement priority. If the memorandum no longer existed, would federal prosecutors expend them limited resources cracking down on the use of recreational marijuana in Washington? West’s allegations offer no basis to conclude that they would. Would an uptick in federal prosecutions dissuade scofflaws from publicly smoking marijuana in the park West frequents? Given that those offending marijuana users have already chosen to defy state law, see 2013 Wash. Sess. Laws at 44, any such allegation would be implausible. Similarly, if federal prosecutors began pursuing more CSA charges in Washington, would that encourage state legislators to loosen their recent restrictions on medical marijuana? Common sense hardly dictates such a result and, in any event, West fails to explain why it is likely to occur.

When conjecture is necessary, re-dressability is lacking. Simon v. E. Ky. Welfare Rights Org,, 426 U.S. 26, 43-44, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). To find redressability on West’s commandeering claim, we would have to pile conjecture on conjecture, much of it about the charging decisions of federal prosecutors. Courts do not lightly speculate how “independent actors not before [them]” might “exercise [their] broad and legitimate discretion,” Lujan, 504 U.S. at 562, 112 S.Ct. 2130 (internal quotation omitted), especially when the independent actors are federal prosecutors, United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (because prosecutors are “delegates” who help President “discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed,’ ” charging decisions “ ‘generally rest[ ] entirely in [their] discretion’ ” (quoting U.S. CONST, art. II, § 3, and Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978))); Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (“decision not to prosecute” ordinarily not subject to judicial review). Neither West nor amicus gives us any good reason to depart from these settled principles here. And we decline to do so especially because, even if we were to set aside the Cole Memorandum, we would not and could not compel the Department to alter the enforcement priorities that the memorandum merely documented.

B. NEPA

Analysis of West’s standing to assert a NEPA claim differs from that of his standing to assert a constitutional violation. But the result is the same.

A NEPA plaintiff can assert a violation of the statute “without meeting all the normal standards for redressability and immediacy.” City of Dania Beach v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007) (quoting Lujan, 504 U.S. at 572 n.7, 112 S.Ct. 2130) (internal quotation marks omitted). For example, the plaintiff need not allege that, if he were to succeed in enforcing a NEPA-required procedure the defendant agency did not follow, the agency’s substantive policy would change. Id. Here, then, West need not aver that, if the Department or other defendants were ordered to prepare an environmental impact statement about the likely effects of the Cole Memorandum, the memorandum would instead be withdrawn.

A NEPA plaintiff is not absolved, however, from pleading and proving “a causal connection between the [substantive] agency action and the alleged injury.” City of Dania Beach, 485 F.3d at 1186; see Fla. Audubon Soc’y, 94 F.3d at 664-65 (NEPA claimant or other procedural-rights plaintiff must “show[ ] a causal connection between the government action that supposedly required the disregarded procedure” and “the essential injury to the plaintiffs own interest”). West does not meet the causation requirement.

West claims that, before publication of the Cole Memorandum, NEPA required the defendants to determine what effect the memorandum’s “sanction[ing]” of 1-502 would have on Washington’s environment. Compl. 14, 17-18. But he cannot connect the memorandum to his alleged injuries from recreational marijuana, chief among them the “degradation]” of the park he visits. Id. at 14. As the state defendants’ counsel noted at oral argument, 1-502 “is itself a statute” and “was the law for about a year before the Cole Memo was issued.” Oral Arg. Recording 25:18-25:50. Also, Washington had begun the process of implementing 1-502 well before the memorandum existed. Given that sequence, and because 1-502 governs recreational users directly, we think 1-502 a much more likely source of West’s alleged injuries. We can only speculate that the Cole Memorandum — issued to third-party prosecutors who retain discretion to prosecute marijuana activity “on a case-by-case basis,” Decl. 74 — had anything to do with the alleged injuries. And just as speculation cannot establish redressability, it cannot establish causation. Clapper, 133 S.Ct. at 1147-50; Simon, 426 U.S. at 40-46, 96 S.Ct. 1917; Arpaio, 797 F.3d at 19-25.

For the foregoing reasons, we affirm the district court’s dismissal of the complaint.

So ordered.

      . West filed his complaint in the District of Columbia rather than the Western District of Washington, where he resides. He is barred from litigating in the latter district "absent leave of court” because he has filed "an unending string” of "vexatious" lawsuits there. State Defs.' Mot. to Dismiss, Dkt. No. 3, Ex. 1 at 4 (district court order); see In re West, 552 Fed.Appx. 624, 625 (9th Cir. 2014) (unpublished memorandum) (affirming order).

      . The district court dismissed the complaint in two separate orders. It first ordered dismissal as to the state defendants for lack of personal jurisdiction. 60 F.Supp.3d 190, 193— 96 (D.D.C. 2014). It did not address West’s standing and was not required to do so: personal jurisdiction and standing are both "essential element[s] of the jurisdiction of a district court,” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (internal quotation and ellipses omitted); see Steel Co., 523 U.S. at 102, 118 S.Ct. 1003, and neither the Supreme Court nor our Court "dictate[s] a sequencing of jurisdictional issues[,]” Ruhrgas AG, 526 U.S. at 584, 119 S.Ct, 1563; see Anderson v. Carter, 802 F.3d 4, 9-10 (D.C. Cir. 2015), Several months later, the court ordered dismissal as to the federal defendants on the ground that West lacks standing. 60 F.Supp.3d 197, 200-03 (D.D.C. 2015). Because our analysis of standing applies equally to the state and federal defendants, we affirm the dismissal as to all defendants for West's lack of standing without considering personal jurisdiction. See Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C, Cir. 2015) ("Ordinarily, a court of appeals can affirm a district court judgment on any basis supported by the record, even if different from the grounds the district court cited.”).

      . Washington’s session laws are available at leg.wa.gov/codereviser/pages/ses-sion_laws.aspx. Its laws relating to marijuana are primarily codified at chapters 69.50, 69.51 and 69.51A of the Revised Code of Washington.

      . As relevant here, the earlier guidance advised federal prosecutors not to “focus federal resources in [their] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” United States v. Canori, 737 F.3d 181, 183 (2d Cir. 2013) (quoting 2009 guidance) (alteration in original) (internal quotation marks omitted).

      . The complaint amended an earlier version filed in January 2014, No party claims the earlier version affects our analysis.

      . The proposed legislation cited in the complaint was not enacted but presaged the CPPA, which, as noted, was enacted after West filed his complaint.

      . In a subsequent order denying reconsideration, the district court clarified that its standing analysis applied not only to West’s commandeering claim but to his NEPA claim as well. 309 F.R.D. 54, 59 (D.D.C. 2015).

      . We observe, however, that West’s and ami-cus's assertions of injury from new restrictions on medical marijuana are chronologically problematic. The CPPA is the primary source of those restrictions and it postdates West’s complaint. Because "a party must show a legally cognizable injury to have standing to begin a lawsuit,” Garden State Broad. Ltd. P’ship v. FCC, 996 F.2d 386, 394 (D.C. Cir. 1993), ‘‘[sjtanding is determined as of the time the action is brought,” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005) (citing cases). We therefore question the CPPA’s relevance to West's standing. Amicus suggests remanding the case so that West can amend the complaint to account for the CPPA and other developments. There is no need. In view of our conclusion about redressability, amending the complaint would only delay the inevitable. Cf. Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012) (per curiam) ("A district court may deny a motion to amend a complaint as futile if the proposed claim would not survive a motion to dismiss.”).

      . In saying so, we by no means denigrate amicus, who provided exemplary briefing and oral argument in service of an unwinnable cause. Indeed, even if amicus had fashioned a viable theory of redressability, it would not have aided West, who preserved no such theory in district court. 60 F.Supp.3d 197, 202-03 & n.5 (D.D.C. 2015); see Huron, 809 F.3d at 1280 (absent "exceptional circumstances,” plaintiff may not “roll out an entirely new argument for standing for the first time on appeal” (internal quotation omitted)).

      . Even before the Cole Memorandum, prosecutors were advised not to "focus federal resources in [their] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” United States v.
        Canori, 737 F.3d 181, 183 (2d Cir. 2013) (quoting 2009 guidance) (alteration in original) (internal quotation marks omitted); see supra note 4 and accompanying text.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark CHRISTESON, Petitioner-Appellant, v. Cindy GRIFFITH, Responden-Appellee. American Bar Association; Roderick and Solange MacArthur Justice Center; National Associate for Public Defense; National Legal Aid and Defender Association; National Association of Criminal Defense Lawyers; Former Federal and State Judges, Amici on Behalf of Petitioner
    No. 16-2730
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 17, 2017
    Filed: January 18, 2017
    Amended February 6, 2017
    Mark Christeson, Pro Se.
    Jennifer A. Merrigan, Philadelphia, PA, Joseph J. Perkovich, Phillips Black Project, New York, NY, for Petitioner-Appellant.
    Stephen David Hawke, Michael Joseph Spillane, Assistant Attorney Generals, Attorney General’s Office, Jefferson City, MO, for Respondent-Appellee.
    Paulette Brown, American Bar Association, Chicago, IL, Brendan B. Gants, Clifford M. Sloan, Skadden & Arps, Washington, DC, for American Bar Association, Amicus on Behalf of Petitioner.
    Amy Elizabeth Breihan, Mae C. Quinn, MacArthur Justice Center at St. Louis, Saint Louis, MO, for Roderick and Solange MacArthur Justice Center, National Associate for Public Defense, National Legal Aid and Defender Association, National Association of Criminal Defense Lawyers, Amici on Behalf of Petitioner.
    Tejinder Singh, Goldstein & Russell, Bethesda, MD, for Former Federal and State Judges, Amicus on Behalf of Petitioner.
    Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

      . Cindy Griffith is automatically substituted predecessor pursuant to Federal Rule of Appellate Procedure 43(c)(2).

   PER CURIAM.

This is an appeal from the district court’s order denying Mark Christeson’s motion to reopen a final judgment dismissing his habeas corpus application as untimely. Christeson is under a sentence of death in Missouri, and his execution is scheduled for January 31, 2017. We remand the case to the district court for a limited evidentiary hearing.

Christeson was convicted of three counts of capital murder in Missouri and sentenced to death. The Missouri Supreme Court affirmed the convictions and sentences. State v. Christeson, 50 S.W.3d 251 (Mo. 2001). After Christeson sought post-conviction relief in Missouri state court, a state circuit court denied the motion, and the Missouri Supreme Court affirmed. Christeson v. State, 131 S.W.3d 796 (Mo. 2004).

The federal district court, on July 2, 2004, then appointed two attorneys to represent Christeson in federal habeas corpus litigation. Counsel first met with Christe-son on May 27, 2005, and filed a petition on August 5, 2005. As it turns out, the time for filing a timely habeas petition expired in April 2005, but counsel assert that they miscalculated the deadline and believed that the petition was timely filed in August 2005. The district court dismissed Christe-son’s habeas petition as untimely, and this court denied an application for a certificate of appealability.

Several years later, two new attorneys who now represent Christeson moved for substitution of counsel. New counsel sought to file a motion under Federal Rule of Civil Procedure 60(b) to reopen the final judgment on the ground that the statute of limitations should have been equitably tolled. The Supreme Court ultimately ruled that substitution was required, Christeson v. Roper, — U.S. -, 135 S.Ct. 891, 190 L.Ed.2d 763 (2015) (per curiam), and we remanded the case to the district court with directions to grant the motion for substitution. In its decision, the Supreme Court observed that “Christeson faces a host of procedural obstacles to having a federal court consider his habeas petition,” including a requirement to demonstrate that “extraordinary circumstances justify the reopening of a final judgment.” Id. at 895-96 (alterations and quotation marks omitted).

The district court on remand denied Christeson’s motion under Rule 60(b) to reopen the final judgment. In concluding that Christeson failed to show “extraordinary circumstances,” the district court rejected Christeson’s contention that original counsel had abandoned him. The court relied on actions taken by original counsel after the expiration of the filing deadline in April 2005 — i.e., between May 27, 2005, when they first met with Christeson, and June 8,2007, a date shortly after this court denied a certificate of appealability on the district court’s ruling that the petition was untimely.

We granted a certificate of appealability to review the district court’s denial of relief under Rule 60(b). Christeson argues on appeal that the district court erred in its ruling on abandonment by relying entirely on actions taken by original counsel after the deadline for filing a timely habeas petition, while making no inquiry into counsel’s performance before the deadline expired. Christeson also complains that the court accepted explanations given by original counsel for the tardy filing without providing an opportunity to test their credibility. The State responds that original counsel’s untimely filing was the result of a miscalculation based on colorable arguments under then-existing law, and that counsel’s mistake or negligence was simply not abandonment.

Without expressing a view at this time on the district court’s conclusion, we think it prudent under the circumstances for the district court to develop the record on the actions of original counsel so that a decision on Christeson’s allegation of abandonment is based on a more complete understanding of the facts. The Supreme Court, after noting that original counsel did not meet with Christeson until more than six weeks after his petition was due, cited a “legal ethics expert” who opined that “if this was not abandonment, I am not sure what would be.” 135 S.Ct. at 892. The record elsewhere, however, includes a filing from original counsel stating that two to three months after their appointment in July 2004, counsel received voluminous record materials concerning Christeson’s case. Original counsel wrote that they “thoroughly reviewed these documents, contacted appellate counsel regarding issues raised at the trial level and investigated potential claims” before meeting with Christeson in May 2005. R. Doc. 73, at 8. The district court on remand made no findings of fact concerning the pre-dead-line activity of original counsel or the credibility of their explanations for missing the filing deadline in 2005. A limited evidentia-ry hearing and supplemental findings of fact would facilitate resolution of Christeson’s appeal. Cf. Cody v. Hillard, 139 F.3d 1197,1200 (8th Cir. 1998).

Accordingly, we remand the case to the district court with directions to convene promptly a limited evidentiary hearing on the question of abandonment and to certify to this court its findings of fact and any additional conclusions of law. We retain jurisdiction over the appeal during this limited remand. See, e.g., United States v. Aguilar, 743 F.3d 1144, 1151 (8th Cir. 2014). Christeson need not file the reply brief due on January 20, and the motion for leave to file an overlength reply brief is denied as moot.


author: McKEOWN, Circuit Judge:

text:
    Michael G. SCHWERN, Plaintiff-Appellee, v. Patrick PLUNKETT, as personal representative of the Estate of Noirin Plunkett, Defendant-Appellant.
    No. 14-35576
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 9, 2016 Portland, Oregon
    Filed January 17, 2017

      Dan G. Booth (argued), Booth Sweet LLP, Cambridge, Massachusetts, for Defendant-Appellant.
    Bear-Wilner-Nugent (argued), Portland, Oregon, for Plaintiff-Appellee.
    Margaret Garvin and Amy C. Liu, Portland, Oregon, as and for Amicus Curiae National Crime Victim Law Institute.
    Before: M. MARGARET McKEOWN, WILLIAM A. FLETCHER, and RAYMOND C. FISHER, Circuit Judges.
   OPINION

McKEOWN, Circuit Judge:

In this appeal we resolve the lingering uncertainty about our jurisdiction to hear immediate appeals from denials of Oregon anti-SLAPP (“strategic lawsuit against public participation”) motions. Oregon amended its anti-SLAPP statute in 2009 with the purpose of “providing] a defendant with the right to not proceed to trial in cases in which the plaintiff does not meet” the statutory burden. Or. Rev. Stat. § 31.152(4). This amendment, which is akin to a statutory immunity from suit, responded directly to our decision in Englert v. MacDonell, where we held that the prior statute did not provide for interlocutory review. 551 F.3d 1099, 1105-07 (9th Cir. 2009). In view of this legislative change, we conclude that we have jurisdiction to hear immediate appeals from denials of Oregon anti-SLAPP motions.

The motion at issue arisqs from Nóirín Plunkett’s accusation that Michael Schwern raped her in September 2013. When Schwern was arrested, news quickly spread online. Schwern claimed the accusations were false and sued Plunkett for defamation, intentional infliction of emotional distress, and intentional interference with economic relations. The district court denied Plunkett’s anti-SLAPP motion. We reverse because Schwern failed to meet his evidentiary burden.

Background

Nóirín Plunkett and Michael Schwern married in November 2011 and lived together in Portland, Oregon. During their relationship, they were both actively involved in the community of open-source software developers.

The marriage was not a happy one. On September 19, 2013, the couple filed for divorce. That night, they met for one final dinner at the home they once shared. What happened next is hotly disputed. While Schwern claims that they had consensual sex, Plunkett testified that he forced her to have oral sex, choked her, and penetrated her vagina with a knife. She also testified that she went to the emergency room where she had a forensic sexual assault examination, her injuries were .photographed, and the police were called. Police arrested Schwern that night on charges of strangulation and harassment.

In the days that followed, information about Schwern’s arrest percolated online. Three prominent open-source developers posted links on Twitter to Schwern’s public arrest record, while organizations tied to the open-source community issued statements about Schwern’s arrest and distanced themselves from him.

Plunkett moved from Oregon to Massachusetts shortly after Schwern’s release on bail in late September 2013. According to Casey West, a mutual friend of the couple, West encountered Plunkett in Boston that fall; during the ensuing conversation, Plunkett allegedly told West that Schwern had raped her with a knife.

In January 2014, Schwern filed suit against Plunkett for defamation, intentional infliction of emotional distress, and intentional interference with economic relations. The gist of Schwern’s complaint was that his professional reputation suffered due to rape allegations Plunkett allegedly made to the individuals and organizations that commented online about his arrest.

In response to the lawsuit, Plunkett filed a special motion to strike under Oregon’s anti-SLAPP law, seeking dismissal of the case. A magistrate judge recommended denial of Plunkett’s motion on the ground that Schwern had established a prima facie case, and the district court adopted this recommendation.

Analysis

I. Jurisdiction

We first consider whether we have jurisdiction to hear this appeal under 28 U.S.C. § 1291, which permits us to review “final decisions” of district courts. The answer to this question is informed by the helter-skelter history of Oregon’s anti-SLAPP law.

Oregon enacted its anti-SLAPP law in 2001 to create a procedure “for expeditiously dismissing unfounded lawsuits attacking certain types of public speech” through special motions to strike, or anti-SLAPP motions. Plotkin v. State Accident Ins. Fund, 280 Or.App. 812, 814, 385 P.3d 1167 (2016). Oregon used California’s anti-SLAPP law as a model for its legislation. See Englert, 551 F.3d at 1101. Unlike California, though, Oregon did not initially allow immediate appeals from denials of anti-SLAPP motions. That distinction led us to treat the two states’ laws differently.

Looking to California law, in Batzel v. Smith we addressed whether denial of a California anti-SLAPP motion is an immediately appealable “final decision.” 333 F.3d 1018, 1024 (9th Cir. 2003) (citing 28 U.S.C. § 1291). We first noted that “California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit,” as evidenced by the statute’s legislative history and inclusion of a right of immediate appeal. Id. at 1025. As a consequence, we held that we had jurisdiction because a “district court’s denial of a claim of immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 1026.

When faced with the same issue regarding Oregon’s anti-SLAPP law, we came to the opposite conclusion because Oregon’s statute differed materially from its California counterpart. As we explained in Eng-lert, “[t]he failure of the Oregon Legislature to provide for an appeal from the denial of a special motion to strike provides compelling evidence that, unlike their California counterparts, Oregon lawmakers did not want ‘to protect speakers from the trial itself.’ ” 551 F.3d at 1106 (quoting Batzel, 333 F.3d at 1025). Instead, Oregon’s law had a less ambitious scope: it sought only to enable a judge to “promptly review the evidence ... to determine whether it had sufficient merit to go forward.” Id. Absent an expression of immunity from trial, we held that we lacked jurisdiction to hear the appeal. Id. at 1107.

Oregon reacted swiftly to our decision in Englert. The legislature immediately passed amendments to create a right of immediate appeal from denials of anti-SLAPP motions to strike by providing that, “[i]f the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.” Or. Rev. Stat. § 31.150(1); see also id. § 19.205(1) (providing that a “limited judgment” is appealable). The amendments also clarified that the purpose of Oregon’s anti-SLAPP procedure “is to provide a defendant with the right to not proceed to trial” when a plaintiff fails to meet the statutory burden. Id. § 31.152(4).

We have already acknowledged, albeit not definitively, that these amendments effectively overturned Englert. In DC Comics v. Pacific Pictures Corporation, we explained that “whether an immunity created by state law functions ‘as an immunity from suit or merely a defense from liability’ is dispositive in determining whether an immediate appeal of an order denying an immunity should be available.” 706 F.3d 1009, 1015 (9th Cir. 2013) (citation omitted). Noting that “Englert has been superseded by changes to the underlying statute” because “Oregon’s anti-SLAPP statute was amended to specifically provide for a right of immediate appeal,” we stated that “the Oregon statute now likely affords immunity from suit, as California’s does.” Id. at 1016 n.8; see also Makaeff v. Trump Univ., LLC, 715 F.3d 254, 276 (9th Cir. 2013) (Paez, J., concurring) (noting in citation that Englert was “superseded by” Oregon’s amended anti-SLAPP law).

We now hold that we have jurisdiction to review denials of Oregon anti-SLAPP motions. Like California’s anti-SLAPP law, Oregon’s amended statute grants immunity from suit by “provid[ing] a defendant with the right to not proceed to trial,” as the later-enacted right of immediate appeal corroborates. See Or. Rev. Stat. § 31.152(4); see also Batzel, 333 F.3d at 1025 (explaining that denials of anti-SLAPP motions are immediately appeal-able because “California lawmakers wanted to protect speakers from the trial itself rather than merely from liability”).

II. The Anti-SLAPP Motion to Strike

The issue on appeal is whether Schwern established a probability that he will prevail on each of his claims “by presenting substantial evidence to support a prima facie case.” Or. Rev. Stat. § 31.150(3).

Under Oregon’s anti-SLAPP law, a special motion to strike involves “a two-step process.” Gardner v. Martino, 563 F.3d 981, 986 (9th Cir. 2009). The defendant must first demonstrate that the claim arises out of expressive activity protected by the statute. Or. Rev. Stat. § 31.150(2), (3). If the defendant makes this threshold showing, “the burden shifts to the plaintiff ... to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.” Id. § 31.150(3). If the plaintiff fails to meet this burden, the motion to strike must be granted. Id. § 31.150(1).

The parties do not dispute that Schwern’s claims arise out of expressive activity protected by the statute. See id. § 31.150(2), (3). As a result, we must determine only whether Schwern produced substantial evidence to support a prima facie case. See id. § 31.150(3).

In determining whether Schwern has met his burden under the second step, we view the evidence in the light most favorable to him and draw reasonable inferences in his favor. Plotkin, 280 Or,App. at 815-16, 385 P.3d 1167. But “where, there is a conflict between the parties’ proffered factual narratives and evidence,” we “adopt the version most favorable” to Schwern only when “it is supported by substantial evidence.” Id. at 816, 385 P.3d 1167. In this context, “substantial evidence” means “sufficient evidence from which a reasonable trier of fact could find that the plaintiff met its burden of production” to support a prima facie case. Handy v. Lane Cty., 360 Or. 605, 622-23, 385 P.3d 1016 (2016).

The essence of Schwern’s suit is that Plunkett made false rape accusations to the individuals and organizations that commented online about his arrest, thereby harming his professional reputation. Central to each claim, then, is Schwern’s allegation that Plunkett actually communicated with these individuals and organizations following the incident. Yet Schwern offers no evidence that Plunkett ever spoke with any of the individuals who posted on Twitter about his arrest or that she communicated with any of the organizations that issued statements on their websites. As in Handy, “[t]he record does not show that [she] ever made any statement” to them. 360 Or. at 625, 385 P.3d 1016. Instead, Schwern “mere[ly] speculates]” that she spoke to them. Id.

Even when construing the evidence in Schwern’s favor, as we must, we cannot reasonably infer that Plunkett was the source. The online postings themselves do not help Schwern meet his burden because they recite truthful information that was freely available to the public. For example, one person posted a link to Schwern’s public arrest record and wrote that Schwern “was arrested for assaulting his partner.” Another organization confirmed that Schwern “was arrested by Portland Police” on charges of harassment and strangulation.

The only evidence that Plunkett spoke to anyone about the incident is a statement from Casey West that Plunkett told him about the alleged rape. The statement offers no details or elaboration. Setting aside Plunkett’s objection to the admission of this testimony, West’s statement tells us nothing about whether Plunkett was the source of the online commentary. Whether she made a statement to West and whether she made statements to the individuals and organizations that commented online “are two separate issues.” See id. Schwern offered no evidence that West ever repeated Plunkett’s alleged statement to anyone. Indeed, the conversation with West ostensibly took place after Plunkett moved to Boston. So not only is there no link to the online postings, but the temporal link is speculative at best.

Absent any evidence that Plunkett was the source of the online commentary, a “reasonable trier of fact” could not find that Schwern met his burden of production to support a prima facie case with substantial evidence. See id. at 623, 385 P.3d 1016. Schwern’s theory offers “nothing other than speculation to fill in the gaps in his evidence.” Id. at 626, 385 P.3d 1016. His allegation that he “believe[s]” Plunkett made the statements is insufficient. In sum, because Schwern failed to establish a prima facie case through substantial evidence, Plunkett was entitled to relief under Oregon’s anti-SLAPP law. We reverse and instruct the district court to grant Plunkett’s motion to strike.

REVERSED.

      . Plunkett died on July 28, 2015. Her father, Patrick Plunkett, is the personal representative of her estate and was substituted as the party on appeal.


author: PER CURIAM:

text:
    SLEP-TONE ENTERTAINMENT CORPORATION; Phoenix Entertainment Partners, LLC, Plaintiffs-Appellants, v. WIRED FOR SOUND KARAOKE AND DJ SERVICES, LLC; Ernest Z. McCullar, Defendants-Appellees.
    No. 14-17229
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 12, 2016, San Francisco, California
    Filed January 18, 2017

      James M. Harrington (argued), Harrington Law P.C., Pineville, North Carolina, for Plaintiff-Appellant.
    Lorraine Morey (argued), Morey Law PLLC, Phoenix, Arizona, for Defendants-Appellees.
    Before: SUSAN P. GRABER and ANDREW D. HURWITZ, Circuit Judges, and RICHARD F. BOULWARE, District Judge.

       The Honorable Richard F. Boulware, United States District Judge for the District of Nevada, sitting by designation.

   OPINION

PER CURIAM:

Karaoke is a “form of entertainment, originating in Japan, in which a person sings the vocal line of a popular song to the accompaniment of a pre-recorded backing tape, and the voice is electronically amplified through the loudspeaker system for the audience.” OED Online (Dec. 2016), http://www.oed.com/view/Entry/ 243613, Plaintiff Slep-Tone Entertainment Corporation produces karaoke music tracks. The tracks are marketed under the trademark “Sound Choice.” Plaintiff releases them on compact discs encoded in a format known as "CD-G,” which accompanies karaoke music with graphics, lyrics, and singing cues when played on compatible equipment.

Computer users are capable of copying the content of these CD-Gs onto computer hard drives as digital files; Plaintiff refers to this process as “media-shifting,” but it is also popularly known as “ripping.” Plaintiff acknowledges the convenience of digital files for karaoke operators (who need not use numerous CD-Gs during a performance), but also reports that this widespread practice, when combined with unauthorized file-sharing, “nearly drove [the company] out of business.” In the past, Plaintiff “opposed all commercial media-shifting.” Today, it allows the practice within the confines of a four-point “media-shifting policy” requiring that users make only one digital copy per source CD-G; that the physical media used to create the digital files are kept “on the shelf’ unused; that users notify Plaintiff if they intend to create media-shifted copies; and that users submit to auditing for compliance with these conditions.

Defendants Ernest Z. McCullar and his business, Wired for Sound Karaoke and DJ Services, LLC, operate a karaoke business in the Phoenix area. As alleged in the complaint, Defendants use Plaintiffs Sound Choice tracks. In 2009, Plaintiff learned that Defendants were using unauthorized media-shifted files instead of Plaintiffs original CD-Gs. Plaintiff filed a federal action against Defendants, alleging trademark infringement. See Slep-Tone Entm’t Corp. v, Gorrel, No. 2:09-cv-01462-HRH (D. Ariz. July 14, 2009). The parties entered a settlement agreement in 2010.

In the present action, Plaintiff once again claims that Defendants are performing karaoke shows using unauthorized media-shifted files. Plaintiff alleges, among other things, trademark infringement under the Lanham Act. The district court granted Defendants’ motion to dismiss as to the claims for trademark infringement and unfair competition, holding that “[t]his attempt to stuff copyright claims into a trademark container fails.” Plaintiff timely appeals.

We “review de novo the grant of a motion to dismiss.” Schueneman v. Arena Pharm., Inc,, 840 F.3d 698, 704 n.5 (9th Cir. 2016). We agree with the district court that Plaintiff has not stated a claim under the Lanham Act, and we therefore affirm that holding.

Plaintiff argues that, by “media-shifting” Plaintiffs tracks from physical CD-Gs to digital files and performing them without authorization, Defendants have committed trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114,1125. The Act creates a federal civil cause of action for unauthorized use of a registered trademark. The Lanham Act’s provision concerning ordinary trademark infringement, known as section 32, defines infringement in relevant part as follows:

Any person who shall, without the consent of the registrant—
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection "with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the remedies hereinafter provided.

15 U.S.C. § 1114(1). The Lanham Act’s provision on unfair competition, section 43, provides:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1). Both legal theories share a common inquiry: “[w]hether we call the violation infringement, unfair competition or false designation of origin, the test is identical — is there a ‘likelihood of confusion?’ ” New W. Corp. v. NYM Co. of Cal., 595 F.2d 1194, 1201 (9th Cir. 1979). Here, we conclude that there is not.

Plaintiffs theory is that, because the media-shifted files display Plaintiffs trademarks and trade dress when performed, consumers will be confused about their origin — believing that the tracks originated with Plaintiff, rather than with Defendants. But this theory does not involve consumer confusion about the source of an appropriate “good,” as that concept has been defined by the Supreme Court. Instead, it alleges possible confusion over the source of content. Analyzing the Lan-ham Act’s unfair competition provision, 15 U.S.C. § 1125, the Supreme Court has held that the statutory phrase “origin of goods” must “refer[] to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003). The concept of origin is “incapable of connoting the person or entity that originated the ideas or communications that ‘goods’ embody or contain.” Id. at 31-32, 123 S.Ct. 2041. And, although the Supreme Court was interpreting the “unfair competition” provision in section 43 of the Lanham Act, “ ‘the same standard’ applies to both registered and unregistered trademarks.” See, e.g., GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204 n.3 (9th Cir. 2000) (explaining that section 32 “covers only registered marks,” whereas section 43 “protects against infringement of unregistered marks and trade dress as well as registered marks”).

Perhaps in view of this limitation, Plaintiff frames the dispute as concerning a new tangible good bearing its trademark, describing the new digital files that Defendants allegedly created from Plaintiffs CD-Gs as the goods about which consumers may be confused. But, although Defendants may, in some sense, have created a new good by copying Plaintiffs CD-Gs to hard drives, it is still not a relevant good under the Lanham Act. We agree with the Seventh Circuit, which held, in addressing a similar claim by this very Plaintiff against another karaoke operator, that “the ‘good’ whose ‘origin’ is material for purposes of a trademark infringement claim is the ‘tangible product sold in the marketplace’ rather than the creative content of that product.” Phx. Entm’t Partners v. Rumsey, 829 F.3d 817, 828 (7th Cir. 2016) (quoting Dastar, 539 U.S. at 31, 123 S.Ct. 2041). Karaoke patrons who see Defendants’ performances of Plaintiffs karaoke tracks will not be confused about “the source of the tangible good sold in the marketplace.” Id. at 829. Consumers are not awai’e of the new, media-shifted digital files about which Plaintiff asserts confusion.

When the claim is more accurately conceived of as attacking unauthorized copying, Dastar requires us to avoid recognizing a “species of mutant copyright law” by making such claims cognizable under the Lanham Act. 539 U.S. at 34, 123 S.Ct. 2041. Thus, the Seventh Circuit held that “the good that Slep-Tone alleges the defendants are improperly passing off as a Slep-Tone product is the unauthorized digital copy of the ... track.” Rumsey, 829 F.3d at 828. But “[i]t [was] not alleged, nor [did] the briefing suggest, that the patrons see the physical good in question — the digital file that presumably resides on the hard drive of the bar’s karaoke system.” Id. If there is any confusion, it does not concern the source of the goods, as the Lanham Act requires. Consumers never see the digital files and Defendants neither sell them nor make representations about their source medium. Accordingly, Defendants do not use the Sound Choice marks “in connection with the sale, offering for sale, distribution, or advertising” of the files under 15 U.S.C. § 1114(l)(a) or “in connection with” the files under § 1125(a)(1). Instead, Defendants make allegedly unauthorized use of the content of Plaintiffs karaoke tracks, which Dastar precludes as. a trademark claim. As the Supreme Court explained, “[t]he words of the Lanham Act should not be stretched to cover matters that are typically of no consequence to purchasers.” Dastar, 539 U.S. at 32-33,123 S.Ct. 2041.

Plaintiff does not plausibly allege consumer confusion over the origin of a good properly cognizable in a claim of trademark infringement. We affirm the district court’s dismissal of Plaintiffs trademark claims.

AFFIRMED in part; REVERSED in part and REMANDED. The parties shall bear their own costs on appeal.

      . On appeal, the court has added Phoenix Entertainment Partners, LLC, Slep-Tone’s successor-in-interest, as an additional party. We refer to these entities collectively as "Plaintiff.”

      . The district court also granted summary judgment to Defendants on a claim for breach of the settlement agreement. In a concurrently filed memorandum disposition, we reverse that decision and remand for further proceedings.