author: THACKER, Circuit Judge:

text:
    Dianne L. BUTTS, Plaintiff-Appellant, v. PRINCE WILLIAM COUNTY SCHOOL BOARD, Defendant-Appellee, and United States of America; Tawnya Soltis; Kathryn Forgas, Defendants.
    No. 15-1989
    United States Court of Appeals, Fourth Circuit.
    Argued: October 27, 2016
    Decided: December 21, 2016

      ARGUED: Matthew B, Kaplan, KAP-LAN LAW FIRM, Arlington, Virginia, for Appellant. Mary McGowan, PRINCE WILLIAM COUNTY CIRCUIT COURT, Manassas, Virginia, for Appellee. ON BRIEF: Kristi Lynette Johnson, BLANK-INGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee.
    Before GREGORY, Chief Judge, and DUNCAN and THACKER, Circuit Judges. .
   Affirmed by published opinion. Judge THACKER wrote the opinion, in which Chief Judge GREGORY and Judge DUNCAN joined.

THACKER, Circuit Judge:

Appellant Dianne L. Butts (“Appellant”) is a veteran whom the Prince William County School Board (“the Board”) employed as a fifth grade teacher from 1996 to 2004. In 2004, Appellant, who was an Army Reservist, was deployed to Kuwait. After returning from deployment in 2008, Appellant sought reemployment with the Board pursuant to the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 (“USERRA”). The Board reemployed Appellant, but issues with her performance quickly arose. Repeated efforts to correct Appellant’s deficient performance were unsuccessful, and the Board ultimately terminated her on June 15, 2011., The Board later discovered that Appellant was disabled due to posttraumatic stress disorder (“PTSD”).

Appellant then sued the Board, claiming she was improperly reemployed in violation of Section 4313 of USERRA because her mental state rendered her unqualified, and the Board’s allegedly hostile work environment triggered or exacerbated her disability. The district court granted summary judgment to the Board.

Because Section 4313 of USERRA cannot serve as a basis for claims involving acts occurring after reemployment, and because Appellant has no available remedies, we affirm.

I.

Appellant previously served as an active duty officer in the United States Army. After' transitioning to the United States Army Reserve, Appellant sought employment through the Department of Defense’s Troops to Teachers Program, which assists service members to become public school teachers. Appellant possesses a Master’s Degree in Education and obtained certification from the Virginia Department of Education to teach grades three through six. The Board employed Appellant as a fifth grade teacher from 1996 until 2004; during that time, her teaching reviews were generally favorable.

Appellant returned to active duty in 2004, and was subsequently deployed to Kuwait until 2008. During her deployment, the Board granted Appellant a military leave of absence. But, rather than continuing to extend her leave, Appellant informed the Board she intended to resign from her teaching position at the end of the 2006-2007 school year.

In 2008, Appellant was honorably discharged from her military service. Shortly after her discharge, Appellant was briefly hospitalized for adjustment disorder with depressed mood, which she attributed to witnessing several suicides during her- deployment. Later that same year, Appellant contacted the Board about reemployment. Because she had previously resigned and did not, at least initially, seek reemployment under USERRA, the Board told Appellant to submit an online application, which she did. The Board then hired her as a fifth grade substitute teacher at Fitzgerald Elementary School (“Fitzgerald”), intending bo permanently assign Appellant to Fitzgerald for the 2008-2009 school year.

Appellant taught at Fitzgerald for less than one week before issues with her performance. arose, such as taking leave without following school policy, undermining superiors, and speaking “to the students in a disrespectful or harsh manner and refusing] to teach pursuant to [the Board’s] lesson guides or established practices, leading to confusion among students assigned to her class.” J.A. 66. Based on Appellant’s poor performance and conduct, the Board declined “to move forward with an offer of employment” at Fitzgerald for the 2008-2009 school year. id.

Appellant subsequently contacted an ombudsman for the Department of Defense, who reached out to the Board and clarified that Appellant sought reemployment pursuant to USERRA. The Board then hired Appellant under a one-year contract as a fifth grade teacher for the 2008-2009 school year, and reinstated her “with the same salary and benefits to which she would have been entitled” but for her deployment. J.A. 67. The Board also paid Appellant her entire salary for the 2008-2009 school year, credited her for all accrued leave, and provided her with 46 months of retirement service. ■

But after Appellant began teaching in 2009, her performance issues persisted. The school principal noted that Appellant refused to consider other “teachers’ suggestions” for teaching styles and lesson plans,'and “conveyed that she knew what she was doing and would teach the students the way she chose,” even though her teaching methods were ineffective. J.A. 130. In fact, students returned “to their regular classrooms even more confused,” and as a result, “were unable to complete their homework” and were “essentially regressing.” Id. As a.result, the Board reassigned Appellant to a fourth grade class at another school for the 2009-2010 school year. But she complained about teaching fourth grade rather than fifth grade and insisted she was qualified ■ to teach fifth grade.

Despite Appellant’s performance issues, the Board implemented an action plan in an attempt to help Appellant succeed. Pursuant to that action plan, the Board provided Appellant a mentor, instructional resources, and opportunities to meet with education specialists. However, Appellant did not comply with the action plan, and parents started to file complaints raising concerns about Appellant’s “quality of instruction and [her] treatment of students assigned to her classroom.” J.A. 70. The Board informed Appellant that she needed to improve or face' possible discharge. Expecting that Appellant could improve, the Board planned to employ her through the 2010-2011 school year, and provided Appellant a second, more formal improvement plan, with which Appellant also did not comply.

On October 10, 2010, Appellant requested long term sick leave to recover from stress, anxiety, and depression attributed to her military service. This request for sick leave was the first time the Board learned of any possible mental health condition. The Board approved Appellant’s request, and she remained on paid sick leave until May 2011, when she transitioned to leave under the Family and Medical- Leave Act.

Ultimately, based on Appellant’s persistent performance issues and failure to comply with the improvement plans, the Associate Superintendent informed Appellant that she would be recommended for dismissal to the Board. The Associate Superintendent informed Appellant of the dismissal recommendation by mail on May 9, 2011, and provided her instructions for filing a grievance. Appellant had 15 days to file a grievance, but did not do so until 30 days later, on June 8, 2011. Appellant attached a note with her untimely grievance, indicating for the first time that she (1) suffered from PTSD; (2) was currently incapacitated; and (3) would be unable to work for at least two years. The Board denied the grievance as time barred. Finally, on June 15, 2011, the Board terminated Appellant’s employment.

During her period of sick leave prior to her termination, Appellant sought benefits from both the Department of Veterans Affairs and the Social Security Administration. On June 3, 2011, the Department of Veterans Affairs determined she was disabled due to service-related PTSD, effective November 30, 2010. On November 21, 2012, the Social Security Administration likewise deemed Appellant disabled and unable to work in any occupation since October 28, 2010.

Appellant filed a pro se complaint in the Court of Federal Claims in 2014, alleging violations of the Civil Rights Act, Americans with Disabilities Act (“ADA”), and USERRA. The case was subsequently transferred to the Eastern District of Virginia. Appellant later obtained counsel, and narrowed her case to a single improper reemployment claim under Section 4313 of USERRA. Appellant - alleged that her reemployment worsened her “minor psychiatric symptoms related to her military service,” and “[t]hat worsening eventually culminated in a diagnosis of full post-traumatic stress disorder.” J.A. 54-55. Appellant sought an injunction requiring the Board to comply with USERRA, and compensatory and liquidated damages for lost wages and benefits.

Following discovery, the parties appeared before the district court for a final pretrial conference. At that time, the district court noted that Appellant had not designated a medical, expert to establish the alleged causal link between Appellant’s mental health and her employment. Appellant’s counsel asserted that her case in chief was “fine without a medical expert.” J.A. 25.

Subsequently, the Board filed a motion for summary judgment, and Appellant filed a partial motion for summary judgment. At the motion hearing, Appellant contended she had been improperly reemployed because she was unqualified to teach from 2009 until her termination due to her PTSD. According to Appellant, the Board’s improvement plans and the resulting stress caused her decline and PTSD.

The district court took particular issue with the lack of evidence showing any link between Appellant’s disability and the Board’s conduct. The court stated:

[T]he problem with a case like this is when you’re trying to say that ... [the Board] caused a medical injury, which as a result of the medical injury, the salary has stopped because the person can’t work, you’ve got to have evidence that, and ... the causative factor is the mental health, and you [Appellant] don’t have a person in your case who’s going to be able to testify to that, and so it’s— that is a real failure in the ... proof.

J.A. 339. The district court ultimately granted the Board’s motion because it could “not see how any reasonable jury could find in [Appellant’s] favor.” Id. at 342.

During the same motion hearing, the Board’s counsel also pointed out that Appellant’s remedies were limited to those available under USERRA, which meant: (1) her reemployment claim was moot because Appellant was paid all her back wages and promoted to her proper seniority; and (2) no damages existed “because when she was discharged in June of 2011, she had already been disabled since the previous October.... So [the Board’s] firing her in June made no difference. She couldn’t work anyway.” J.A. 341. As a result, the Board argued that Appellant “lost [her] legal vehicle ... for pain and suffering or mental health issues which allegedly caused the disability.” Id. at 340. The district court granted the Board’s motion for summary judgment, concluding that because the Board had paid Appellant all back wages and increased her salary to the proper seniority, any claim under the, reemployment provision was “clearly moot.” Id. at 341.

II.

“Our review of a district court’s grant of summary judgment is de novo.” Elderberry of Weber City, LLC v. Living Centers-Se., Inc., 794 F.3d 406, 411 (4th Cir. 2015) (emphasis and citation omitted). In our review, “we apply the same legal standards as the district court, and view all facts in the light most favorable to the nonmoving party.” Certain Underwriters at Lloyd’s, London v. Cohen, 785 F.3d 886, 889 (4th Cir. 2015) (alterations, citation, and internal quotation marks omitted).

III.

A.

Appellant contends the Board violated her rights under Section 4313 of USERRA because she was reemployed in a position for which she was unqualified. Appellant further contends that the resulting- stress from the Board’s improper reemployment “caused [Appellant’s] weakened mental state - to deteriorate, until reaching the point where she could do no work of any sort.” Appellant’s Br. 9. Her argument on this point has not been consistent. In her complaint, Appellant alleges that “she was qualified to teach 5th grade during the 2009-2010 school year” and that placing her “in a 4th grade, not a 5th grade position” violated USERRA. J.A. 53 (emphasis supplied). On appeal, however, Appellant now claims she was unqualified to teach but the Board forced her into a teaching position.

For its part, the Board argues that it has fully complied with USERRA. In support of this argument, the Board points out that Appellant was reemployed to an “escalator position”—that is, the position she would have attained but for her deployment. See 20 C.F.R. § 1002.191. Here, such position was the fifth grade teaching position. Moreover, Appellant received the associated pay and benefits of that position.

The Board next contends Appellant-cannot use Section 4313 to challenge the events occurring after her reemployment. The Board also claims it did not receive notice of Appellant’s disability until her untimely grievance, and her performance issues did not serve to notify the Board of her disability. Finally, the Board contends there are no remedies available to Appellant under USERRA,

B.

1.

USERRA “prohibit[s] discrimination against persons because of their service in the uniformed services.” Hill v. Michelin N. Am., Inc., 252 F.3d 307, 311 (4th Cir. 2001) (quoting 38 U.S.C., § 4301(a)(3)). USERRA was “enacted to protect the rights of veterans and members of the uniformed services,” meaning “it must be broadly construed in favor of its military beneficiaries.” Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 303 (4th Cir. 2006) (quoting Hill, 252 F.3d at 312-13). Four sections of USERRA outline its framework: 4311, 4312, 4313, and 4316.

Section 4311 prohibits an employer from discriminating against an employee who “is a member of ... a uniformed service.” § 4311(a). Section 4311 applies after a veteran is reemployed following deployment. See Francis, 452 F.3d at 304: This section is expansive, prohibiting discrimination because of an employee’s service at the “initial employment, reemployment, [and] retention in employment” stages of a veteran’s employment, as well as for “promotion, or any benefit of employment.” § 4311(a).

Sections 4312 and 4313 protect veterans seeking reemployment. See Petty v. Metro. Gov’t of Nashville-Davidson Cty., 538 F.3d 431, 439-440 (6th Cir. 2008) (citation omitted). Section 4312 guarantees returning veterans a right of reemployment after military service. It requires employers to rehire veterans when théy return from service if those veterans satisfy the criteria in that section. See § 4312(a)(1)(3). If a veteran satisfies the criteria, then Section 4313 sets forth the rights under Section 4312—namely, the specific position to which veterans are entitled upon their return. See § 4313(a)(1)-(4).

Finally, Section 4316 generally applies at the point of termination of employment. See Petty, 538 F.3d at 440 (citations omitted). Section 4316 prevents employers from firing without cause any returning veterans within either 180 days or one year of reemployment, depending on the length of service. See § 4316(c)(1)-(2).

2.

Section 4312 guarantees reemployment rights and benefits “and other employment benefits” for any employee who was absent from employment “by reason of service in the uniformed services” if three criteria are met:

(1) the person ... has given advance written or verbal notice of such service to such person’s employer; (2) the cumulative length of the absence ..: by reason of service in the uniformed services does not exceed five years; and ... [ (3) ] the person reports to, or submits an application for reemployment to, such employer[.]

38 U.S.C. § 4312(a)(l-3) (emphasis supplied). The parties do not' dispute that Appellant satisfied the criteria, and the record supports that conclusion. Thus, Section 4313 applies. Specifically, for veterans whose service period exceeded 90- days, that veteran must be promptly reemployed:

(A) in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had' not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform; or
(B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status and pay, the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.

38 U.S.C. § 4313(a)(2)(A)-(B) (emphasis supplied). The former is commonly referred to as the “escalator position”— meaning the position a veteran “would have attained with reasonable certainty if not for the absence due to uniformed service.” 20 C.F.R. § 1002.191. This is considered the “starting point for determining the proper reemployment position.” Id. at § 1002,192. In sum, the veteran is either employed to the position he or she would have attained but for his or her service, or, if unqualified for the escalator position— despite reasonable efforts to make him or her qualified—to the same position held prior to service.

3.

To determine the appropriate reemployment position, an employer may “have to consider several factors.” 20 C.F.R. § 1002.192. One factor is whether a veteran has a service-related disability. See id. If a veteran has a service-related disability and is unqualified for the escalator position, Section 4313 requires an employer to reemploy that veteran to (1) a position with equivalent “seniority, status, and pay” for which the veteran is qualified, or would be qualified by the employer’s reasonable efforts; or (2) a position that is “the nearest approximation” of that equivalent position in terms of “seniority, status, and pay” depending on the veteran’s circumstances. 38 U.S.C. § 4313(a)(3)(A).

C.

1.

Here, the facts demonstrate the Board complied with USERRA. The Board promptly reemployed Appellant to an escalator position—a fifth grade teaching position. More importantly, and in compliance with USERRA, the Board reinstated Appellant with the same salary and benefits to which she would have been entitled but for her deployment.

Indeed, the Board would have violated USERRA had it not reemployed Appellant to the, escalator position. Per USERRA, the starting point for determining reemployment must be the escalator position, see 20 C.F.R. § 1002.192, and at the time of reemployment, Appellant did not claim she was unqualified for such position. Further, there was no notice at the time of reemployment that Appellant suffered from PTSD.

2.

Appellant also cannot demonstrate she was unqualified for the position in which she was employed. An employee “must be qualified for the reemployment position.” 20 C.F.R. § 1002.198. The term “qualified” means “the employee has the ability to perform the essential task of the position.” Id. at § 1002.198(a)(1). Here, Appellant was qualified for the escalator position. Appellant has a Master’s degree in education, obtained certification from the Virginia Department of Education to teach grades three through six, had prior experience and education in teaching fifth grade before her deployment, and previously had favorable teaching reviews from 1996 to 2004. Appellant applied for the fifth grade teaching position for which she now maintains she was unqualified. And, critically, she stated in her complaint “she was qualified to teach 5th grade,” J.A. 53, and “demanded] a 5th grade position” after being transferred to the fourth grade, id. at 69.

3.

Moreover, even if Appellant were unqualified for the escalator position, the Board made reasonable efforts to assist her to become qualified. When reemploying a veteran, an employer must, if necessary, “make reasonable efforts to help the employee become qualified” for the escalator position. 20 C.F.R. § 1002.198. “Reasonable efforts” means “actions, including training provided by an employer, that do not place an undue hardship on the employer.” 38 U.S.C. § 4303(10). Here, the Board implemented two action plans to attempt to resolve the deficiencies in Appellant’s performance. Those plans provided Appellant mentors, meetings with specialists, and other similar resources, but Appellant was uncooperative. Even then, the Board delayed dismissing Appellant, and instead provided Appellant “with the opportunity to address the concerns in her action plan.” J.A. 70. Clearly, the Board made reasonable efforts to qualify Appellant.

On appeal, however, Appellant contends that these accommodation efforts actually worsened her condition. But Appellant offers no support for such argument other than her own testimony. Indeed, she failed to designate an expert to establish a causal link between her mental health and her employment. Absent expert testimony, Appellant’s own testimony is insufficient to establish a nexus between the alleged work-related stressors and her PTSD, and thus, her contention cannot survive summary judgment.

4.

Finally, Appellant does not fall under the disability provision of Section 4313 because the requirement to provide an alternate position due to her disability only applies if the employer knows of the disability at the time of reemployment. See 20 C.F.R. § 1002.192. Section 4313 permits a person who has a service-related disability and who remains unqualified for an escalator position despite an employer’s reasonable efforts to be reemployed in “any other position which is equivalent in seniority, status, and pay,” or the nearest approximation of the same. 38 U.S.C. § 4313(a)(3)(A)-(B). The duty to make reasonable efforts to accommodate a service-related disability—like the other provisions of Section 4313—only applies to structuring the appropriate reemployment position at the point of reemployment. See 20 C.F.R. § 1002.226(a).

Here, because Appellant’s disability was unknown to the Board until after terminating her employment, it has no bearing on the reemploymént decision. Likewise, Appellant’s teaching deficiencies and repeated issues did not come to light until after she was reemployed. Moreover, Appellant’s grievance containing a notice of her incapacity was untimely filed on June 8, 2011—almost two years after her reemployment.

D.

Even if Appellant had a .valid claim under USERRA, there are no remedies available to her. USERRA provides three possible remedies: (1) requiring the employer to comply with USERRA; (2) compensation for lost wages or benefits due to the employer’s noncompliance with USERRA; or (3) liquidated damages equal to lost wages or benefits if the employer willfully failed to comply with USERRA. See 38 U.S.C. § 4323(d)(A)-(C).

Here, there is no remedy available to Appellant for four reasons. First,. any claim for reinstatement would be futile. Appellant does not dispute that she. has been disabled since October 28, 2010, is still disabled to this day, and will likely remain so for the foreseeable future. Second, the Board already paid Appellant for past lost wages and benefits. Thus, any claim for lost wages or benefits is moot. Third, Appellant cannot show that a future lost wages claim could proceed. As the district court noted, Appellant has no medical expert or proof that the Board caused or exacerbated her disability. See, e.g., Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 164 n.2 (4th Cir. 1988) (“[Expert opinion is’ of course the prime—indeed usually the only-way to prove medical causation.”). And, fourth, Appellant has not argued,' nor presented any facts to demonstrate, that the Board willfully violated USERRA.

IV.

For all of the foregoing reasons, the decision, of the district court is

AFFIRMED.

      . Citations to the "J.A.” refer to the Joint Appendix filed by the parties in this appeal.

      . Appellant dropped her Section 4311 discrimination claims with the filing of her Third Amended Complaint.

      . "[A] party is bound by the admissions of his [or her] pleadings.” Lucas v. Burnley, IV, 879 F.2d 1240, 1242 (4th Cir. 1989) (citations and internal quotation marks omitted).

      . Appellant's claim also cannot proceed under Section 4312. In Francis v. Booz, Allen & Hamilton, Inc., this court held that Section 4312 "applies to protect a covered individual only as to the act of rehiring.” 452 F.3d 299, 305 (4th Cir. 2006). There, we pointed out that Section 4312 "does not prevent the employer from terminating [an employee] the next day or even later the same day,” but we acknowledged, "[t]he apparent harshness of this result is addressed by the fact that §§ 4311 and 4316 operate to protect the employee as soon as she is reemployed.” Id. at 304 (citation omitted).

      . Appellant also, sought attorney’s fees and costs, but USERRA only permits such an award if the requesting party prevails. See 38 U.S.C. § 4323(h)(2).


source: Caselaw Access Project

author: DUNCAN, .Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Henry MULDROW, a/k/a William Cooper, a/k/a Willie, a/k/a Fred Washington, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Luis Gomez, Defendant-Appellant.
    No. 15-7298, No. 15-7608
    United States Court of Appeals, Fourth Circuit.
    Argued: October 26, 2016
    Decided: December 27, 2016

      ARGUED: Sapna Mirchandani, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellants. Sujit Raman, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Debra L. Dwyer, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.
    Before DUNCAN and AGEE, Circuit Judges, and BRUCE H. HENDRICKS, United States District Judge for the District of South Carolina, sitting by designation.
   Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge HENDRICKS joined.

DUNCAN, .Circuit Judge:

• Defendants William Henry Muldrow (“Muldrow”). and Luis Gomez (“Gomez”) challenge the district court’s determination that the Guidelines commentary—as amended by. United States Sentencing Guideline Amendment 759 (“Amendment 759”)—requires a district court at resen-tencing to calculate the “applicable guideline range” without applying , any departures or variances from a defendant’s original sentencing range. For the reasons that follow, we affirm the district court and join all of our sister circuits that have considered the issue in holding that Amendment 759 binds sentencing courts.

I.

A.

Both Defendants were convicted of drug offenses in unrelated cases—Muldrow in 2006 and Gomez in 1996. This court consolidated their appeals.

Muldrow pleaded guilty to one count of conspiracy to distribute and .possess with intent to distribute five or more grams of cocaine and oxycodone, on January 19, 2006. At his sentencing on March 29, 2006, the district court adopted the findings of the presentence report with one exception. It departed from a criminal history category VI to a category V because it found Muldrow’s criminal history category overrepresented the seriousness of his criminal record. U.S.S.G. § 4A1.3. Employing an offense level 34 and a post-departure criminal history category V, the district court calculated a guideline range of 235 to 293 months and sentenced Muldrow. to 235 months in prison.

A jury convicted Gomez of one count of conspiracy to distribute cocaine, and one count of possession with intent to distribute cocaine, on June 29, 1996. At sentencing, the district court calculated his guideline range based on an offense level 44 and a criminal history category III, resulting in a then-mandatory guideline sentence of life imprisonment. On November 6, 1996, the court imposed a life sentence, but subsequently granted Gomez’s 28 U.S.C. § 2255 petition in part, vacating his sentence. The district court recalculated Gomez’s guideline range as 360 months to life imprisonment based on an offense level of 41 and a criminal history category II. Like Muldrow, Gomez received a downward departure under § 4A1.3 because the district court found that a criminal history category III overstated the seriousness of his criminal record. The court resentenced Gomez on February 27, 2006, imposing a below-guideline-range sentence of 340 months. ■

B.

In 2014 and 2015, Defendants separately filed motions for resentencing ürider 18 U.S.C. § 3582(c)(2) based on the retroactive application of United States Sentencing Guideline Amendment 782. U.S.S.G., app. C., amend. 782 (2014) (“Amendment 782”). Amendment 782 reduced the base offense level for drug offenses by two levels. Id. The United States Sentencing Commission (“Commission”) has the power to make its amendments retroactive, and although it has done so sparingly, it did so with Amendment 782 by listing it in subsection (d) of § 1B1.10 of the Guidelines Manual. U.S.S.G. § 1B1.10(d); United States v. Williams, 808 F.3d 253, 263 (4th Cir. 2015). Before the district court, the parties agreed that Defendants are eligible for relief under Amendment 782, which altered the Defendants’ “amended guideline range.” They dispute the extent of relief authorized based on the calculation of this range.

Each Defendant argued that the district court should calculate his guideline range at resentencing by using the post-departure criminal history category determined at his original sentencing. However, the district court did not reduce the sentences to the extent Defendants requested. At resentencing, the district court instead chose to calculate their ranges using their pre-departure criminal history categories. After recalculating the guideline ranges in this manner, the district court reduced each, Defendant’s sentence to the low end of his amended guideline range.

For Muldrow, the district court granted relief in part on July 29, 2015, reducing his sentence from 235 months to 210 months— the low end of the amended guideline range using a pre-departure criminal history category. For Gomez, the district court granted relief in part on October 6, 2015, reducing Gomez’s sentence from 340 months to 324 months—the low end of the amended guideline range using a pre-de-parture criminal history category.

The district court based its decisions to use a pre-departure criminal history category on a separate guideline amendment—Amendment 759. U.S.S.G., app. C., amend. 759 (2011). Specifically, the district court found that Amendment 759 (1) precluded the district court from considering § 4A1.3 departures during resentencing, and (2) abrogated this court’s prior decision in United States v. Munn, 595 F.3d 183 (4th Cir. 2010), which had adopted Defendants’ desired approach. Both Defendants appealed.

II.

On appeal, Defendants argue that the district court incorrectly deemed itself bound by Amendment 759, and thus, erred in not granting them greater relief. According to Defendants, the district court should have applied § 4A1.3 departures when calculating their applicable guideline ranges. The government counters that the: district court properly followed Amendment 759 in calculating Defendants’ applicable guideline range because Amendment 759 is consistent with the Guidelines and abrogated Munn.

“We review a district court’s decision to reduce a sentence under § 3582(c)(2) for abuse of discretion and its ruling as to the scope of its legal authority under § 3582(c)(2) de novo.” United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013). For the reasons that follow, we affirm the district court.

A.

Our decision today respects a con-gressionally mandated—and Supreme Court sanctioned—balance between the interpretive power of the Commission and our duties as an Article III court. With the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., Congress established the Commission and authorized it to (1) promulgate Sentencing Guidelines and (2) issue policy statements governing application of the Guidelines. See 28 U.S.C. §§ 991, 994(a); Stinson v. United States, 508 U.S. 36, 40-41, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). The Commission also issues commentary to the guideline provisions and policy statements. Stinson, 508 U.S. at 41, 113 S.Ct. 1913. In interpreting the Guidelines, commentary “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading, of that guideline.” Id. at 38, 113 S.Ct. 1913.

In addition, Congress entrusted the Commission with the power, and duty, to periodically review and revise the guideline provisions, policy statements, and commentary. 28 U.S.C. §§ 994(o), 994(p), 994(u); United States v. Braxton, 500 U.S. 344, 348, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991). This power includes the ability “to override our precedent through amendments to the Guidelines.” Williams, 808 F.3d at 258. With this framework in mind, we turn to the Guidelines applicable to sentencing reductions.

B.

Under' the Sentencing Reform Act, a federal court generally “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). However, Congress has provided an exception to that rule: when the Commission makes a Guidelines amendment retroactive, a district court may reduce an otherwise final sentence based on the amended provision, as long as the reduction remains consistent with applicable Commission policy statements. Id.

In considering whether and by how much to reduce a sentence under § 3582(c)(2), a district court follows a two-step inquiry. Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). The court first “followfe] the Commission’s instructions in § 1B1.10 to determine .the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” Id. at 827, 130 S.Ct. 2683. Specifically, § 1B1.10(b)(1) requires the court to “determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (d) had been in effect,at the time” of the defendant’s initial sentencing. U.S.S.G. § 1B1.10(b)(1). At step two, a district court considers relevant sentencing factors to determine whether, in its discretion, a reduction “is warranted in whole or in’ part under the particular circumstances of the case.” Dillon, 560 U.S. at 827, 130 S.Ct. 2683.

C.

This appeal—and the issue in Munn— concerns how a court calculates the amended guideline range at step one. In particular, the parties dispute whether the resentencing court calculates the range using a pre-departure criminal history category or a post-departure criminal history category. In Munn—decided prior to Amendment 759—this court held that a defendant’s applicable guideline range is determined after applying any departures. 595 F.3d at 192-95. Therefore, the defendant in Munn—a career offender who received a departure for overrepresentation of criminal history at his original sentencing—was entitled to have the district court factor in departures before calculating his applicable guideline range for resentencing purposes. Id. at 184-85, 194-95. Other circuits interpreted the Guidelines similarly. See United States v. Flemming, 617 F.3d 252, 272 (3d Cir. 2010); United States v. Cardosa, 606 F.3d 16, 21-22 (1st Cir. 2010); United States v. McGee, 553 F.3d 225, 229-30 (2d Cir. 2009) (per curiam) superseded by United States v. Montanez, 717 F.3d 287 (2d Cir. 2013) (per curiam). However, three other circuits decided that the applicable guideline range for resentencing was the range produced prior to any discretionary departures, reasoning that a district court cannot depart from a range before it is established. United States v. Pembrook, 609 F.3d 381, 384 (6th Cir. 2010); United States v. Darton, 595 F.3d 1191, 1197 (10th Cir. 2010); United States v. Blackmon, 584 F.3d 1115, 1116-17 (8th Cir. 2009) (per curiam).

In response to this circuit split, the Commission promulgated Amendment 759. U.S.S.G., app. C., amend. 759 (2011). Amendment 759 revised the commentary to § 1B1.10, at Application Note 1(A), by defining “applicable guideline range” as “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § lBl.l(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A) (2011) (emphasis added); U.S.S.G., app. C., amend. 759 (2011). In so doing, Amendment 759 explicitly “adopt[ed] the approach of the Sixth, Eighth, and Tenth Circuits.” U.S.S.G., app. C., amend. 759 (Reason for Amendment).

III.

The issue on appeal is a narrow one. Defendants do not contest that the Commission can resolve circuit spiits and abrogate our prior precedent by promulgating amendments. Instead, they argue that the district court erroneously deemed itself bound by the revised commentary to § 1B1.10 found in Amendment 759 for two reasons: (1) the commentary conflicts with the Guidelines, text, and (2) Amendment 759 is not one which by its nature applies retroactively. We consider each argument in turn.

A.

If the commentary conflicts with the Guidelines text, it cannot bind courts. Stinson, 508 U.S. at 38, 113 S.Ct. 1913. In deciding whether commentary conflicts with the Guidelines text, we recognize that the Commission “has the first responsibility to formulate and announce” how guideline provisions should be interpreted. Id. at 45, 113 S.Ct. 1913. Cognizant of our role vis-a-vis the Commission, this court rarely invalidates part of the commentary as inconsistent with.the Guidelines text. See United States v. Shell, 789 F.3d 335, 357 (4th Cir. 2015) (Wilkinson, J., dissenting). This is unsurprising given that “[t]he functional purpose of commentary (of the kind at issue here) is to assist in the interpretation and application of those rules, which are within the Commission’s particular area of concern and expertise.” Stinson, 508 U.S. at 45, 113 S.Ct. 1913.

1.

To' argue that the commentary, as amended by Amendment 759, conflicts with the Guidelines, Defendants first point to the text of § 1B1.10(b)(1). That section instructs resentencing courts calculating the “amended guideline range” to “substitute only” the retroactive amendments listed in § 1B1.10(d) and “leave all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). Defendants claim that this means courts must calculate the amended guideline range without excluding any factor that was taken into account at the original sentencing—that is, “to mirror whatever sentencing findings it originally made.” Appellants’ Br. at 25. Under Defendants’ view, the revised commentary in Application Note 1(A) conflicts with the text of § 1B1.10 because that commentary “expressly prohibits courts from incorporating ‘any departure’ or ‘any variance’ into the guideline calculation.” Appellants’ Br. at 25.

However, Amendment 759 does not conflict with the text. Amendment 759 revised Application Note 1(A) to define the “applicable guideline range” as “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § lBl.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). “Consistent with that definition, U.S.S.G. § 1B1.1(a) makes no mention of departures” or variances. Montanez, 717 F.3d at 292. Rather, a district court calculates departures and variances pursuant to §§ 1B1.1(b) and 1B1.1 (c), respectively, only after determining the applicable guideline range under § 1B1.1(a). See id.; U.S.S.G., app. C., amend. 741 (Reason for Amendment) (explaining the three-step process for calculating sentences). Logically, the phrase in § 1B1.10(b)(1)—“shall leave all other guideline application decisions unaffected”—refers to decisions sentencing courts make in establishing the amended guideline range, which, pursuant to § 1B1.1(a), does not take into account departures or variances. Therefore, Amendment 759’s clarifying definition is consistent with § 1B1.10 of the Guidelines text.

2.

In another effort to manufacture an inconsistency, Defendants next point to § 1B1.1—the application instructions for an original sentencing—to suggest that the commentary conflicts with § 1B1.10. Section 1B1.1(a)(6) directs a sentencing judge to “[d]etermine the defendant’s criminal history category as specified in Part A of Chapter Four.” U.S.S.G. § 1B1.1(a)(6). Downward departures for overrepresentation of criminal history appear in Chapter Four—specifically at § 4A1.3(b). U.S.S.G. § 4A1.3(b). Under this line of argument, § 4A1.3 departures are integral to determining the applicable guideline range under § 1B1.1(a)(6). Thus, Amendment 759’s definition of “applicable guideline range,” which excludes such departures, conflicts with § 1B1.10(b)(1)’s instruction to “leave all other guideline application decisions”— including those in § 1B1.1(a)(6)—“unaffected.” U.S.S.G. § 1B1.10(b)(1).

This argument reads more into § 1B1.1(a)(6) than the text can support. Section 1B1.1(a)(6) instructs sentencing courts to determine a defendant’s criminal history category, but it does not instruct them to follow each section in Part A of Chapter Four. Part A of Chapter Four has three sections, and only the first two sections directly govern how to determine the “criminal history category.” Section 4A1.1 is titled “Criminal History Category” and § 4A1.2 is titled “Definitions and Instructions for Computing Criminal History.” U.S.S.G. §§ 4A1.1, 4A1.2. By contrast, § 4A1.3 is titled “Departures Based on Inadequacy of Criminal History Category (Policy Statement).” U.S.S.G. § 4A1.3. That § 1B1.1(a)(6) instructs a sentencing judge to determine the criminal history category does not give the judge a license to factor in a departure for overrepresentation of criminal history at that stage. See United States v. Watkins, 655 Fed.Appx. 478, 482 (6th Cir. 2016) (unpublished) (citing Pembrook, 609 F.3d at 385-86). “[A] court does not depart under § 4A1.3 when calculating a defendant’s applicable guideline range, but instead departs from the applicable guideline range under § 4A1.3 after having calculated that range.” Montanez, 717 F.3d at 292. Holding to the contrary leads to a nonsensical circularity. A district court cannot factor in a departure from a range in calculating the range itself. See Pembrook, 609 F.3d at 385. “This leads inescapably to the conclusion that a defendant’s applicable guideline range under U.S.S.G. § 1B1.10 is his pre-departure guideline range.” Id.

Here, we see no inconsistency between the Guidelines and the commentary as revised by Amendment 759. We decline to strain the text to create one.

B.

Defendants next contend that Amendment 759 does not apply retroactively. But this argument misses the point. The ques-r tion is not whether Amendment 759 applies retroactively, but rather whether the district court properly applied Amendment 759 to Defendants who were resentenced after Amendment 759 took effect.

Normally, a sentencing court must apply the edition of the Guidelines in effect at the time “the defendant is sentenced.” U.S.S.G. § 1B1.11(a). However, § 3582(c)(2) “requires a sentencing court to adhere to the Commission’s policy statement in Guidelines section 1B1.10 when assessing a motion for a sentence reduction.” Williams, 808 F.3d at 262. The commentary to § 1B1.10 at Application Note 8, as amended by Amendment 759, instructs that “[consistent with subsection (a) of § 1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing), the court shall use the version of the policy statement that is in effect on the date on which the court reduces the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).” U.S.S.G. § 1B1.10, cmt. n.8; see also U.S.S.G., app. C., amend. 759 (2011) (originally adding current application note 8 as application note 6), Because Amendment 759 “went into effect prior to the district court’s resolution of [Defendants’] § 3582(c)(2) motion[s], the court was required to assess the motionfs] in light of the now applicable policy statement” as elucidated in ,the binding commentary revised by Amendment 759. Williams, 808 F.3d at 262.

Nevertheless, Defendants still contend that Munn, decided prior to Amendment 759, should apply to their resentencing. But “our precedent in the sentence-reduction context must give way if it conflicts with the Commission’s amendments.” Id. at 259; see also Braxton, 500 U.S. at 348, 111 S.Ct. 1854. The Commission specifically stated that it promulgated Amendment 759 in response to a split among the circuits, and rejected the approach taken by this court in Munn. U.S.S.G., app. C., amend. 759 (Reason for Amendment). As the Supreme Court has recognized, “Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest.” Braxton, 500 U.S. at 348, 111 S.Ct. 1854; see also 28 U.S.C. § 994(p). As an amendment to the binding commentary, Amendment 759 applies to Defendants unless it is inconsistent with the Constitution, a federal statute, or the Guidelines. Stinson, 508 U.S. at 38, 113 S.Ct. 1913. We rejected above Defendants’ argument that the revised commentary introduces an inconsistency. See supra Part III.A. Today we join the Second Circuit in formally recognizing that with Amendment 759 “the Commission has foreclosed the.exact approach that [Defendants] now advocate.” Montanez, 717 F.3d at 294.

IV.

Defendants’ argument hinges on finding an inconsistency between the commentary and text of the Guidelines. We fail to see one, and decline Defendants’ invitation to “recreate the split that the Commission hoped to resolve.” Id. at 292 n.2. For this and the foregoing reasons, the judgment of the district court is

AFFIRMED.

      . Commentary has several different purposes:
      First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. § 3742. Second, the commentary may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines. Such commentary is to be treated as the legal equivalent of a policy statement. Finally, the commentary may provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline. As with a policy statement, such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines.
      U.S.S.G. § 1B1.7; see also Stinson, 508 U.S. at 41, 113 S.Ct. 1913.

      . In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court invalidated statutory provisions that made the Guidelines Mandatory, and held that courts must treat the Guidelines as advisory. 543 U.S. at 265, 125 S.Ct. 738, Although the Court decided Stinson before Booker, we have no reason to reject the Stin-son holding regarding commentary’s binding effect. See United States v. Shell, 789 F.3d 335, 340 (4th Cir. 2015) (citing Stinson as good law).

      . Section 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range. (Policy Statement)) prohibits courts from reducing a term of imprisonment below an amended guideline range’s minimum except in certain cases in which the defendant originally received a downward departure for providing substantial assistance to the government. U.S.S.G. § 1B1.10(b)(2). Defendants do not seek terms below their amended guideline ranges. Instead, they challenge the application of Amendment 759 to their resentencing.

      . Defendants do not argue that the commentary conflicts with the statute. Defendants also . do not challenge that the district court has discretion to grant or deny relief at step two of the § 3582(c)(2) process.

      . Defendants also argue that there is a material difference between "applicable guideline range,” in § 1B1.10(a), and "amended guideline range,” in § 1B1.10(b). They assert that these phrases refer to different things—eligibility for sentencing reductions and the extent of relief available, respectively. Because Amendment 759 inserted a definition to "applicable guideline range,” Defendants contend that definition only affects eligibility. From this premise they argue that Amendment 759 doés not preclude a sentencing court from considering departures. This argument fails. As the Second Circuit, explained, such a position
      ignores the relationship between the "applicable guideline range" and the "amended guideline range.” Under § 1B1.10(a)(2)(B), a defendant is not eligible for a reduction if an amendment "does not have the effect of lowering the defendant’s applicable guideline range.” In the absence of any change to the applicable guideline range, speaking of an "amended guideline range” makes little sense. Where an amendment does change the applicable guideline range, however, the court can calculate a new "applicable” range by "substitut[ing] ... the amend[ed guideline provisions] for the corresponding ... provisions that were applied when the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1). Section 1B1.10(b)(1) defines this new, applicable range as the “amended guideline range.” The phrase "amended guideline range,” then, is simply the name by which the guidelines distinguish one applicable guideline range—i.e., the one that incorporates guideline amendments—from another—i.e., the one that applied under earlier versions of the guidelines. It follows, then, that courts should use the same procedure to calculate both the applicable guideline range and the amended guideline range, departing from that procedure in the case of the amended guideline range only to "substitute ... the [relevant guideline] amendments.” Id. Under the guidelines, courts applying this procedure should not "consider[] any departure provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A).

        Montanez, 717 F.3d at 293 (alteration in original).

      . Defendants also argue that application note 8 is inconsistent with the Guidelines. But in Williams this court recognized that application note 8 is consistent with both § 3582(c)(2) and the Guidelines. See 808 F.3d at 262-63.


author: JAMES E. GRAVES, JR., Circuit Judge:

text:
    LUV N’ CARE, LIMITED, Plaintiff-Appellant v. GROUPO RIMAR, also known as Suavinex, S.A., Defendant-Appellee
    No. 16-30039
    United States Court of Appeals, Fifth Circuit.
    FILED December 16, 2016

      Shannon S. Holtzman, Esq., Carol Wel-born Reisman, Liskow & Lewis, P.L.C., New Orleans, LA, Joseph Dowling Guer-riero, General Counsel, Monroe, LA, for Plaintiff-Appellant.
    Robert Francis Altherr, Jr., Esq., Christopher Barron Roth, Banner & Witcoff, Ltd.,' Washington, DC, Robert McCuller Baldwin, Esq., Johnny Ray Huckabay, II, Esq., Hudson, Potts & Bernstein, L.L.P., Monroe, LA, for Defendant-Appellee.
    Before BENAVIDES, HAYNES, and GRAVES, Circuit Judges.
   JAMES E. GRAVES, JR., Circuit Judge:

Baby products ’ manufacturer Luv N’ Care, Ltd. (“LNC”) brought this breach of contract action against its former distributor, Groupo Rimar, a.ka. Suavinex, S.A. (“Suavinex”), for selling two products that allegedly copy LNC’s product designs in violation of the parties’ 2012 Termination Agreement and Mutual Release (“Termination Agreement”). LNC sought damages as well as an injunction prohibiting Suavi-nex from selling the offending products. Suavinex asserted counterclaims seeking" a declaratory judgment that it did not breach the contract and that LNC was not entitled to an injunction. It subsequently moved for partial summary judgment on those claims. The district court granted Suavinex’s motion, finding that Suavinex did not breach the Termination Agreement because it did not apply to product designs that were already in the public domain, such as the two products at issue. We conclude that the plain language of the Termination Agreement contains no such limitation. Accordingly, we REVERSE.

I. BACKGROUND

A. Factual Background

LNC is a Louisiana corporation; Suavi-nex is a Spanish corporation. Both companies design and sell baby products. In 2009, the parties entered into a distribution agreement (the “2009 Distribution Agreement”) granting Suavinex the right to distribute LNC products in Spain. The contrast had a three-year term. It was the last of a series of distribution agreements that governed the parties’ business relationship, which dated back to the 1990s.

At some point before the end of' the term, a dispute arose between the parties. In settlement of the dispute, the parties entered into the Termination Agreement on April 12, 2012. The Termination Agreement served to terminate the 2009 Distribution Agreement, but provided that the obligations in Paragraphs 15, 16, and 19 of the 2009 Distribution Agreement, incorporated by reference, would survive termination. These provisions restrict Suavi-nex’s right to copy, use, or disclose various kinds of information pertaining to LNC products. Surviving Paragraphs 15, specifically 15B, and 19 are at issue in this appeal. Paragraph 15 is labeled “Intellectual Property Rights and LNC’s Product Design and Packaging.” Subsection B of Paragraph 15 provides:

B. Distributor hereby acknowledges and agrees not to copy or utilize any of LNC’s formulae, trade secrets, product design, patents, drawings, business plans, prototypes, packaging, procedures and methods [and] any other proprietary designs or information without LNC’s written permission.

Paragraph 19, “Use of Confidential Information,” provides:

During the term of this Agreement and continuing after the expiration or termination hereof, either party shall not disclose or make accessible to anyone, or make use of the knowledge or information which either party obtains or obtained during the term of this Agreement with respect to formulae, trade secrets, product design, patents, drawings, business plans, prototypes, procedures, and methods [and] any other proprietary designs or information of the other party without the written consent of the other party. Either party acknowledges receipt of confidential and non-confidential proprietary information from the other party. During the term of this Agreement and continuing after the expiration or termination hereof, Distributor agrees not to use in any fashion said information or designs, or any col-orable imitations thereof. Any use by Distributor of said information or property without LNC’s written consent will convey, royalty and commission rights upon LNC at a rate not less than those set herein, without waiving and specifically reserving to LNC any other remedies available to LNC....

LNC asserts that in 2013, it learned that Suavinex had been selling under its own name an orthodontic pacifier and silicone soft top spout cup (a “sippy cup”) that copied the design of LNG’s Comfort soft shield pacifier and soft silicone spout cup, in violation of Paragraphs 15B and 19. It is undisputed that LNC’s pacifier and cup were being sold to the general public for years prior to the execution of the 2009 Distribution Agreement; however Suavinex did not begin selling these products until the parties had an operative distribution agreement.

B. Procedural Background

On June 6,2013, LNC filed a petition for breach of contract in the Fourth Judicial District Court, Parish of Ouachita, Louisiana. Subsequently, LNC voluntarily dismissed the suit and filed this action on August 14, 2014 in the United States District Court for the Western District of Louisiana. LNC asserted claims for breach of contract and sought damages as well as an injunction prohibiting Suavinex from , selling the offending products. On December 22, 2014, Suavinex filed an answer and counterclaims, seeking a declaratory judgment that it was not in breach of contract and that LNC was not entitled to a permanent injunction prohibiting Suavi-nex from selling the products at issue outside the United States. Suavinex claimed further that LNC breached the forum selection clause in the Termination Agreement by originally filing suit in state court. Thereafter, Suavinex moved for partial summary judgment on all three claims.

In an opinion dated September 30, 2015, the district court granted Suavinex’s partial summary judgment motion in its entirety. The district court determined that the disputed paragraphs were unambiguous and protected only LNC’s "proprietary” information, not publicly-available information. First, the district court found that Paragraph 15B restricts the copying or utilization of an enumerated list of items “commonly understood to be proprietary,” as well as the catch-all, “any other proprietary designs or information.” It noted that Paragraph 19 contains virtually the same enumerated list and catch-all, but applies to the disclosure of confidential and non-confidential information. The court then turned to Black’s Law Dictionary to define proprietary information as “information in which the owner has- a protectable interest,” and reasoned from intellectual property law that “[a]ny protectable information is usually lost when that information is offered to the public.” Because the products at issue were publicly available before the parties entered into the 2009 Distribution Agreement, the court determined that they fell outside the scope of Paragraph 15B, and therefore Suavinex did not breach the 2012 Termination Agreement. Moreover, the district court found that LNC’s proposed interpretation would violate principles of Louisiana contract law; which hold that only information that is confidential to at least one of the parties may be protected through contract.

Having concluded that there was no breach, the district court further held that LNC was not entitled to a permanent injunction. In a subsequent order, the district court awarded Suavinex $267,401.25 in attorney’s fees as the prevailing party, pursuant to the terms of the Termination Agreement. .

II. DISCUSSION

A. Standard of Review

We review “a district court’s grant of summary judgment de novo, applying the same legal standards as the district court,” Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.Sd 255, 258 (5th Cir. 2009). Summary judgment is proper only when the record demonstrates that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Condrey v. SunTrust Bank of Georgia, 429 F.3d 556, 562 (5th Cir. 2005), Further, we review a district court’s interpretation of state law de novo and give no deference to its determinations of state law issues. Tradewinds Envtl. Restoration, Inc., 578 F.3d at 258 (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 239-40, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)).

B. LNC’s Breach of Contract Claim

LNC contends that the district court erred by ignoring the plain meaning of the contract and imposing an extra-contractual requirement that LNC’s product-related information already be protected by some other legal right in order to receive protection under the contract. We agree.

Louisiana law recognizes broad freedom to contract: “Parties are free to contract for any object that is lawful, possible and determined or determinable,” La. Civ. Code art. 1971, and “the contract constitutes the law between the parties,” Barrera v. Ciolino, 636 So.2d 218, 222 (La.1994) (citing La. Civ. Code art. 1983). Contractual intent is determined by the words of the contract. Id. “When the words of the contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ. Code art. 2046. Furthermore, “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La. Civ. Code art. 2050. Finally, “[a] contract should be interpreted so as to avoid neutralizing or ignoring a provision or treating it as surplusage.” Hawthorne Land Co. v. Equilon Pipeline Co., LLC, 309 F.3d 888, 893 (5th Cir. 2002) (citation omitted).

The plain language of Paragraph 15B states that “Distributor hereby' acknowledges and agrees not to copy or utilize any of LNC’s ... product design .., without LNC’s written permission.” On its face, the clause applies to any of LNC’s product designs, which would include those in the public domain. Rather than applying Paragraph 15B’s plain meaning, the district court imposed the requirement that the design be either confidential or protectable as intellectual property in order to fall within the definition of “product design.” This construction is flawed for several reasons.

First, by requiring that- the design already be protected in order to qualify for protection under the contract, the district court effectively rendered Paragraph 15B meaningless. If, for example, Suavinex copied one of LNC’s patented product designs, LNC would not need a contract to enforce its rights; it could sue Suavinex for infringement under the patent laws. Furthermore, Paragraph 19 already restricts Suavinex from using any confidential information it receives from LNC. Interpreting Paragraph 15B to apply only to information that is either confidential or already protected as intellectual property renders the provision mere surplusage, violating one of the basic tenets of contract interpretation recognized in Louisiana and elsewhere. See, e.g., Hawthorne Land Co., 309 F.3d at 893.

Suavinex urges us nonetheless to observe the general rule that “[o]nce an inventor has decided to lift the veil of secrecy from his work, he must choose the protection of a federal patent or the dedication of his work to the public at large.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 149, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); see also Netheler-Hinz GMBH v. Ritter GMBH, 289 F.3d 351, 355 (5th Cir. 2002) (“Unless protected by patent or copyright, functional product features may be copied freely by competitors in the marketplace.”); Zippo Mfg. v. Manners Jewelers, Inc., 180 F.Supp. 845 (E.D. La. 1960) (same). Therefore, according to Suavinex, the district court correctly held that Paragraph 15B cannot protect ideas in the public domain, such as the design of LNC’s two products here.

The intellectual property cases, which the district court relied upon in reaching beyond the plain language of the contract, are inapposite. They concern the rights held by an inventor against the public at large, not, as here, the rights and obligations of parties in contractual privity with one another, who have bargained for benefits beyond what the law itself can provide. Intellectual property law is no barrier to enforcement of a contract under state law, “merely because the contract relates to intellectual property which may or. may not be patentable.” Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979) (holding that a company’s contractual obligation to pay royalties for the use of inventor’s product design was enforceable despite the fact that the design was not patentable and other competitors were free to copy the design without paying royalties).

LNC asserts that in return for the benefits of becoming the exclusive distributor of LNC’s innovative products in Spain, including obtaining confidential business plans and information about promoting sales and marketing the products, Suavinex voluntarily and contractually limited its ability to use or copy LNC’s product design information.” “The fact that this agreement prevented [Suavinex] from using information that it previously [could have] gleaned by reverse engineering is irrelevant. Parties to a contract may limit their right to, take action they previously had been free to take.” Universal Gym Equip., Inc. v. ERWA Exercise Equip. Ltd., 827 F.2d 1542, 1550 (Fed. Cir. 1987); see also Byrne v. Sealy & Co., 142. So.2d 668, 671 (La. App. 5th Cir. 1999) (“There is nothing that prohibits or prevents a party from contractually agreeing to greater liability than would have been provided by law.”).

Moreover, as LNC contends, it makes little sense to incorporate U.S. intellectual property law principles into the parties’ contract, which concerns the sale of products outside of the United States. U.S. intellectual property law applies only to products manufactured in, sold in, offered for sale in, or imported to the United States. 35 U.S.C. § 154(a)(1); Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454-55, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007). Although jurisdictions outside of the’ United States recognize other forms of intellectual property rights, there is no indication that LNC ever intended to obtain intellectual property protection for products distributed worldwide through its network of distributors like Suavinex. Instead LNC asserts that it sought extraterritorial protection of its product designs through distribution agreements, such as the one at issue here, and insisted on the survival of these obligations in the Termination Agreement, which was executed by both parties after arm’s-length negotiation.

Examining Paragraph 15 as whole further demonstrates that Subsection B relates to information that is not intellectual property-protected. The heading of Paragraph 15, “Intellectual Property Rights and LNC’s Product Design and Packaging,” indicates that Paragraph 15 concerns both LNG’s “intellectual property rights” and LNC’s “product design and packaging.” Unlike Subsection B, Subsection A exclusively concerns LNC’s intellectual property rights, specifically LNC’s Trademarks. The provision imposes certain obligations and restrictions on the Distributor in relation to those marks. For example, the Distributor may not “challenge their validity or ownership,” “has no right or interest” in them, “will not in any way infringe or contribute to the infringement by others of the ... Trademarks,” and “will immediately notify LNC upon suspecting or learning of such infringement by others in the Territory.” Subsection A does not contain the words “product design” at all. It refers once to packaging, but specifically “copyrighted packaging.”

Subsection B, at issue in this litigation, contains the aforementioned list of product-related information, including LNC’s product design and packaging, without a similar qualification that they be copyrighted. And the Distributor “agrees not to copy or utilize any of [this information] ... without LNC’s written permission.”

Subsection C provides LNC’s remedies if the Distributor violates subsection A or B. The provision states in full:

C. If in the event, .the Distributor is found to have copied any Intellectual Property Rights, Product Designs and/or Packaging as defined in Paragraph 15 A & B above, then the Distributor will be liable to pay to LNC, at a minimum, a royalty of twelve (12) percent on all sales of the infringing product(s) as well as any other remedies allowed bylaw for LNC to recover its losses and lost sales.

Subsection C finally, draws the link between “Intellectual Property Rights” and “Products Designs and/or Packaging.” The logical inference is that the former is defined in subsection A, whereas the latter is defined in subsection B. Construing the term “product design” in subsection B merely as a subset of LNC’s intellectual property rights, as the district court did, ignores the relationship between each subsection of Paragraph 15 and subverts the meaning of the provision as a whole, in contravention of La. Civ. Code Ann. art. 2050.

We observe that sometimes contractual provisions are used merely to acknowledge rights already established so as to limit the set of rights and remedies to which the contract applies. Paragraph 15A provides an example. That provision discusses LNC’s trademarks, which the Distributor acknowledges, inter alia, that it “has no right or interest therein.” This acknowledgement serves merely to confirm rights LNC already has and Suavinex does not. Paragraph 15B, however, is not limited on its face to the parties’ established rights. While Paragraph 15A provides that LNC has “exclusive rights” to the use of LNC’s “copyrighted packaging,” Paragraph 15B requires the Distributor to agree “not to copy or utilize any of LNC’s .., packaging,” thereby extending contractual protection to LNC’s packaging that is not copyrighted. And Paragraph 15B extends that same protection to “any of LNC’s ... product design.”

Suavinex raises various counter arguments, none of which are persuasive. First, Suavinex argues that the Paragraphs 15B and 19 only apply to “proprietary” information, which the District Court concluded is limited to “information in which the owner has a protectable interest.” Even assuming the district court correctly inferred that the word “proprietary”—which appears only in the catch-all phrase at the end of the list of items in each provision—implicitly modifies every other item on the list, LNC asserts that the term “proprietary” refers simply to information that it originally conceived, such as the innovative designs of the baby products at issue in this case; which were in LNC’s sole possession prior to the dissemination of the products to the public. This common-sense meaning of “proprietary” is both reasonable and more consistent with the meaning of the contract as a whole.

Second, Suavinex contends that LNC’s interpretation attempts to rewrite the contract into the language of the contract in Universal Gym Equipment, Inc. v. ERWA Exercise Equipment Ltd., 827 F.2d 1542 (Fed. Cir. 1987), which the Federal Circuit interpreted in substantively the same manner as we construe the contract at issue here. That case concerned a licensing agreement authorizing Global Gym and Equipmént Fitness Limited (“Global”), a subsidiary of ERWA Exercise Equipment Limited, to manufacture and sell the “Universal machine” that Universal Gym Equipment, Inc. (“Universal”) invented, in exchange for royalty payments. Id. at 1550. The contract also provided that after termination of the agreement, Global “shall not thereafter manufacture, use, sell, or distribute any products which include any of the features, designs, [or] technical information” of Universal. Id. at 1545. Like Suavinex, Global argued that “because the agreement did not define 'features and designs,’ those items must be limited to 'confidential proprietary information’ that Universal supplied to Global.” Id. at 1550. The Federal Circuit held that “the broad language ... prohibiting Global from using ‘any of the’ features and designs of Universal meant what it said and was not limited to the use of whatever confidential or proprietary information Universal may have supplied to Global.” Id. at 1551. We similarly interpret the explicit prohibition against copying “any of LNC’s ... product design” to mean what it says and, as discussed above, reject the notion that the term “proprietary” limits the scope of Paragraph 15B to designs that are intellectual property-protected.

Suavinex also contends that Universal Gym Equipment is distinguishable because it expressly prohibited the use of product “features” as well as product “designs,” unlike the instant - contract, which only prohibits copying LNC’s “product design.” Suavinex contends’ that, at most, LNC alleges that Suavinex copied certain design features of LNC’s products. The district court did not address this argument and we make no observation as to whether there is a meaningful difference between copying features of a “product design” and copying a “product design” for purposes of determining breach of the Termination Agreement. On remand, Suavinex may address this argument directly to the district court.

Further, we draw no conclusion as to whether Suavinex did, in fact, copy LNC’s product designs, in violation of the Termination Agreement. These are questions of fact requiring an examination of the summary judgment record that the district court did not undertake. We remand to the district court to determine, in the first instance, whether these factual issues can be resolved on summary judgment.

C. Injunctive Relief

The district court’s judgment that LNC was not entitled to an injunction was premised entirely on its conclusion that the Termination Agreement did not reach the products at issue, and therefore that Sua-vinex did not breach the agreement. Accordingly, reversing the district court’s judgment on LNC’s breach of. contract claim requires that we reverse the district court’s denial of injunctive relief as well. We take no position on the merits of whether LNC is entitled under Louisiana state law to the injunctive relief it seeks.

D. Attorney’s Fees

Reversal on the breach of contract claim likewise requires vacation of the attorney’s fees award to Suavinex. It is premature at this juncture to conclude which party will be the “prevailing party,” entitled to reasonable attorney’s fees under Paragraph S.9 of the Termination Agreement.

III. CONCLUSION

In sum, we REVERSE the district court’s judgment on LNC’s breach of contract claim and its request for injunctive relief. We VACATE the award of attorney’s fees to Suavinex. And we REMAND the case to the district court for further proceedings consistent with this opinion.

      . Paragraph 3.3 of the Termination Agreement, entitled "Survival of Certain Provisions,” states:
      Notwithstanding termination of the Distribution Agreement as provided in Section 1 above or the mutual releases set forth in Section 4 below, the obligations of Groupo Rimar under Paragraph 15 "Intellectual Property Rights and LNC's Product Design and Packaging,” Paragraph 16 "Termination of Trademark Rights” and Paragraph 19 "Use of Confidential Information” of the Distribution Agreement shall survive termination of the Distribution Agreement.

      . The 2009 Distribution Agreement contained a forum selection clause designating state court as the forum for disputes arising under the contract, whereas tire 2012 Termination Agreement required that any such suit be brought in the United States District Court for the Western District of Louisiana.

      . LNC also asserted a claim for unfair trade practices under the Louisiana Unfair and Deceptive Trade Practices Act ("LUDTPA”), La. Rev. Stat. § 51:1407, but voluntarily moved to dismiss the claim after discovery confirmed Suavinex did not sell any products in Louisiana. On June 24, 2015, the district court dismissed the LUDTPA claim with prejudice.

      . The district court also ruled that LNC breached the Termination Agreement’s forum selection clause by originally filing this action in state court, and later awarded Suavinex nominal damages for the breach. LNC does not appeal these rulings and therefore they are not before this Court,'

      . Paragraph 5.9 of the Termination Agreement provides that the "prevailing party in a claim ... arising under this Agreement against another Party shall be entitled to collect reasonable attorney’s fees incurred in connection with the claim or suit or the underlying matter."

      . Paragraph 15A states:
      Distributor hereby acknowledges that the Trademarks that are or become subject to this Agreement, and any combinations thereof are good and valid between the parties and that Distributor will not challenge their validity or ownership during the term of this Agreement or thereafter. Distributor further acknowledges and hereby agrees that LNC has the exclusive rights in the Territory to the use of the Trademarks, trade names and brand names (including but not limited to, LNC's rights in connection with advertising materials, copyrighted packaging and/or other related materials associated with the Products), and that Distributor has no right or interest therein or in any other trademark, trade name, or brand name of LNC and/or Nûby or its Licensors. Furthermore, Distributor acknowledges that LNC and Nüby under a Trademark License Agreement (a license agreement with Admar International Inc. and/or N.E. Hakim for certain Nüby Trademarks) has licensed those certain Trademarks in Exhibit I for use within the Territory. Distributor will not in any way infringe or contribute to the infringement by others of the rights of LNC and or Nüby in said Trademarks, trade name and brand name> but will immediately notify LNC upon suspecting or learning of such infringement by others in the Territory.. Distributor will only use the Trademarks in a manner approved by LNC. LNC shall be responsible for protection and maintenance of the Trademarks. Distributor may use its own trademarks at its discretion on all non-LNC or Nüby Products:

      . -We note that Suavinex concedes that the district court’s statement that Louisiana law would prevent enforcement of a contract protecting non-confidential information is not , supported by the decisions the district court cited. Suavinex acknowledges that these cases are merely examples of where a non-disclosure agreement prohibiting the use of confidential information was breached through the use of confidential information. We likewise do not discern in these cases any general principle of Louisiana contract law that precludes enforcement of express agreements not to disclose or make use of won-confidential information as well as confidential information.

      . We likewise decline to address any other issues raised by the parties that the district court did not pass upon. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.").