author: Judge SCHROEDER, Circuit Judge: RÁWLINSON, Circuit Judge,

text:
    BROADWAY GRILL, INC., a California Corporation, Plaintiff-Appellee, v. VISA INC.; Visa International Association; Visa USA Inc., Defendants-Appellants.
    No. 17-15499
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 21, 2017, San Francisco, California
    Filed May 18, 2017

      Joseph W. Cotchett, Nancy L. Fineman, Mark Cotton Molumphy, Esquire, Attorneys, Anne Marie Murphy, Cotchett, Pitre & McCarthy, LLP, Burlingame, CA, for Plaintiff-Appellee.
    Matthew A. Eisenstein, Attorney, Arnold & Porter Kaye Scholer LLP, Washington, DC, Sharon Douglass Mayo, Arnold & Porter Kaye Scholer LLP, San Francisco, CA, for Defendants-Appellants.
    Before: MARY M. SCHROEDER and JOHNNIE B. RAWLINSON, Circuit Judges, and STEVEN PAUL LOGAN, District Judge.

       The Honorable Steven Paul Logan, United States District Judge for the District of Arizona, sitting by designation.

   OPINION

Opinion by

Judge SCHROEDER, Circuit Judge:

We deal with provisions of the Class Action Fairness Act (“CAFA”) to ensure that large class action cases are heard in federal court. 28 U.S.C. § 1332(d). The issue before us is whether plaintiffs may amend their complaint, after a case has been removed to federal court, to change the definition of the class so as to eliminate minimal diversity and thereby divest the federal court of jurisdiction. We hold plaintiffs may not do so and clarify that the range of amendments permitted under our prior opinion in Benko v. Quality Loan Service Corp., 789 F.3d 1111 (9th Cir. 2015), upon which the district court relied, is very narrow.

Plaintiff, a California restaurant, filed this action in California state court against Visa Inc. and related corporations claiming that Visa is violating the state antitrust laws by fixing rates and preventing merchants from applying a surcharge for the use of credit cards. The complaint described the class as “all California individuals, businesses and other entities who accepted Visa-branded cards in California since January 1, 2004.... ” Defendant companies (“Visa”) are citizens of California and Delaware. Plaintiff class as described in the original state court complaint included both California and non-California citizens. Broadway Grill is the named plaintiff and is a California corporation. Visa removed to federal district court because CAFA’s minimal diversity requirement was satisfied. Under CAFA there is sufficient diversity to establish federal diversity jurisdiction so long as one class member has citizenship diverse from that of one defendant. 28 U.S.C. § 1332(d)(2)(A). Since many merchants doing business in California, and members of the class as originally described, are not citizens of California, the requirement was met.

After Visa removed to the District Court for the Northern District of California, Broadway Grill moved to remand on the theory that the case qualified as one of CAFA’s exceptions to the exercise of federal jurisdiction. The relevant exception is the so-called “local controversy” exception for cases in which two-thirds of the class members are citizens of the state of filing and a “significant” defendant is a citizen of that state as well. 28 U.S.C. § 1332(d)(4). The district court correctly denied the motion to remand because the class, on its face, included many non-citizens of California, and Broadway Grill could not- establish two-thirds were California citizens.

It was at this point that Broadway Grill sought leave to amend the complaint to change Plaintiff class to include only “California citizens,” in order to eliminate minimal diversity. The district court granted leave to amend and ordered the case remanded to the state court. While the district court acknowledged the general rule that jurisdiction is determined at the time of removal, and post-removal amendments cannot eliminate jurisdiction, the court relied on an exception, apparently unique to our circuit, permitting amendment in limited circumstances to add allegations of underlying facts that clarify the nature of the claims for purposes of determining CAFA jurisdiction. See Benko, 789 F.3d at 1117 (holding that in certain circumstances “plaintiffs should be permitted to amend a complaint to clarify issues pertaining to federal jurisdiction under CAFA”). In Benko, the plaintiffs were permitted to set out the percentage of claims that were against the in-state defendant in order to show it was a “significant defendant” within the CAFA exception to federal jurisdiction.

Benko has created some uncertainty in the district courts as to when post-removal amendments may be allowed. See Lopez v. Aerotek, Inc., 2017 WL 253948, at *2 (C.D. Cal. Jan. 19, 2017) (not allowing an amendment that added a new defendant to potentially qualify for the local controversy exception); Rossetti v. Stearn’s Prod. Inc., 2016 WL 3277295, at *1 (C.D. Cal. June 6, 2016) (not allowing an amendment that would change the class from a national class to- a California citizen class); Chen v. eBay, Inc., 2016 WL 835512, at *2 n.1 (N.D. Cal. Mar. 4, 2016) (effectively allowing amendment and ordering remand of a complaint that restricted a class to citizens of California, rather than residents); In re Anthem Inc. Data Breach Litig., 129 F.Supp.3d 887, 894-96 (N.D. Cal. 2015) (allowing amendment of a complaint so that a class represented only Missouri citizens rather than residents and ordering remand).

The basic jurisdictional provisions of CAFA are simple. Under 28 U.S.C. §§ 1332 (d)(2), (d)(5), the matter in controversy must exceed $5,000,000, the number of plaintiffs must be 100 or more and diversity is established when “any member of a class of plaintiffs is a citizen of a state different from any defendant.” Thus, unlike other civil actions, where there must be complete diversity between named plaintiffs and defendants, CAFA requires only what is termed “minimal diversity.” The law provides minimal diversity is to be determined as of the time of removal. 28 U.S.C. § 1332 (d)(7).

Congress’s intent to broaden federal court class action jurisdiction is illustrated by the provision for expedited appellate review when a district court orders remand. 28 U.S.C. § 1453(c). Such appeals must be decided within sixty days. We have appellate jurisdiction pursuant to that provision. We have held our review of remand orders is de novo. Bridewell-Sledge v. Blue Cross of Cal., 798 F.3d 923, 927 (9th Cir. 2015).

In exercising that appellate jurisdiction, the circuits have unanimously and repeatedly held that whether remand is proper must be ascertained on the basis of the pleadings at the time of removal. The rule goes back to Pullman Co. v. Jenkins, 305 U.S. 534, 537-38, 59 S.Ct. 347, 83 L.Ed. 334 (1939). Our leading case in the CAFA context is Mondragon v. Capital One Auto Fin., 736 F.3d 880, 883 (9th Cir. 2013). See also Doyle v. OneWest Bank, FSB, 764 F.3d 1097, 1098 (9th Cir. 2014) (“[T]he District Court should have determined the citizenship of the proposed plaintiff class based on Doyle’s complaint as of the date the case became removable.”) (internal quotation omitted). The other circuits are in complete agreement. As the Seventh Circuit has said, “removal cases present concerns about forum manipulation that counsel against allowing a plaintiff’s post-removal amendments to affect jurisdiction.” In re Burlington Northern Santa Fe Ry., Co., 606 F.3d 379, 381 (7th Cir. 2010). See also Hargett v. Rev-Claims, LLC, 854 F.3d 962, 966-67, 2017 WL 1405034, at *3 (8th Cir.2017); In Touch Concepts, Inc. v. Cellco P’ship, 788 F.3d 98, 101 (2d Cir. 2015); Cedar Lodge Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., 768 F.3d 425, 429 (5th Cir. 2014) (“Allowing Cedar Lodge to avoid federal jurisdiction through a post-removal amendment would turn the policy underlying CAFA on its head.”). This unanimity seems firmly to establish that plaintiffs’ attempts to amend a complaint after removal to eliminate federal jurisdiction are doomed to failure.

In Benko, however, this court allowed plaintiffs to amend the complaint after removal, in order to clarify jurisdiction. We did so when the amendment did not alter the definition of the class, but, rather, had the effect of explaining the impact of the complaint’s allegations on one of the defendants. This impact was jurisdictionally significant because CAFA contains an exception to the exercise of jurisdiction on the basis of minimal diversity, where a local defendant will be especially impacted, the “local controversy” exception. See Benko, 789 F.3d at 1117. Our opinion in Benko explained that the amendment served only to provide some amplification, for federal jurisdictional purposes, of the nature of plaintiffs’ allegations. The amendment provided “estimates of the percentage of total claims asserted against [the in-state defendant]” in order to show that the in-state defendant was “significant,” for purposes of § 1332(d)(4). Id.

The amendment in this case, however, did not provide an explanation of the allegations, but changed the definition of the class itself. Instead of being composed of all the merchants in the state of California, regardless of citizenship, the class, as defined in the amended complaint, became exclusively composed of California citizens. We conclude such an amendment is outside the exception recognized in Benko and thus cannot affect the removability of the action.

Benko itself recognized that CAFA “favors federal jurisdiction” and that only certain “CAFA-specifíc issues,” such as whether a particular in-state defendant was “significant,” that were highly unlikely to be addressed in a state court complaint, justified allowing amendments. Id. at 1116-17. It was only under those limited circumstances, where the “plaintiffs can provide a federal court with the information” that amendments that could potentially affect jurisdiction were allowed. Id. A class definition, however, will always be present in any class action complaint, state or federal. The amendment in this case did not merely provide relevant information. It changed the nature of the action.

We have not found any other circuit decisions permitting post-removal amendment of the complaint to affect the existence of federal jurisdiction and certainly none permitting alteration of the make up of the class. A very recent decision of the Eighth Circuit dealt with an issue very similar to the issue before us. That court refused to consider a post-removal amendment that would have narrowed the original class of Arkansas “residents” to Arkansas “citizens.” See Hargett, 854 F.3d at 966, 2017 WL 1405034, at *3. Indeed, those plaintiffs made many of the same arguments Broadway Grill makes here, including contending that the original class definition referring to Arkansas residents could have been understood to mean only citizens. In that case, the district court had, as in this case, permitted an amendment before remanding. See id. at 964-66, 2017 WL 1405034, at *1-2. The Eighth Circuit rejected the amendment, noting that CAFA’s language demands that class citizenship “must be determined as of the date of the pleading giving federal jurisdiction.” Id. at 967, 2017 WL 1405034, at *3, (citing 28 U.S.C. § 1332(d)(7)). That meant the class included non-citizens and hence minimal diversity was satisfied. We agree.

The Tenth Circuit, in an unpublished disposition, reached essentially the same decision. See Reece v. AES Corp., 638 Fed.Appx. 755, 775 (10th Cir. 2016). There plaintiffs’ state court complaint described a class of Oklahoma residents. After removal, plaintiffs sought leave to amend the class to cover only Oklahoma citizens, but the district court denied the motion. In affirming, the Tenth Circuit noted that “[although this class definition might have been effective if employed when the case was first filed, post-removal amendments are ineffective to divest a federal court of jurisdiction.” Id.

In a similar spirit, the Second and Seventh Circuits have refused to give effect to amendments that would have eliminated the claims alleged on behalf of a class. See In Touch Concepts, Inc., 788 F.3d at 102; Burlington Northern Santa Fe Ry., 606 F.3d at 381. The courts ruled jurisdiction was established as of the time of removal.

All of these decisions are in accord with CAFA’s legislative history, a history that is often cited. See, e.g., Benko, 789 F.3d at 1116; Cedar Lodge Plantation, 768 F.3d at 428. The history shows that Congress was well aware of the concern that expanding federal class action jurisdiction to require only minimal diversity would create instability, as class membership could change during the course of litigation. See Senate Report, S. Rep. 109-14, S. Rep. No. 14, 109th Cong. 1st Sess. 2005, 2005 WL 627977 *68 (Feb. 28, 2005) (“Senate Report”). The Senate Report observed that this concern was groundless, precisely because of the rule that post-removal amendments cannot affect jurisdiction. Id. at *70. Congress specifically noted that, under CAFA, if minimal diversity exists at the time of removal, jurisdiction could not be divested, even if the situation changed as a result of a later event, “whether beyond the plaintiffs control or the result of his volition.” Id. at *70-71. In this case plaintiffs have attempted to do what CAFA was intended to prevent: an amendment changing the nature of the class to divest the federal court of jurisdiction.

We therefore remain in agreement with the other circuits in holding that CAFA means what it says—citizenship of the class for purposes of minimal diversity must be determined as of the operative complaint at the date of removal. See 28 U.S.C. § 1382(d)(7) (“Citizenship of the members of the proposed plaintiff class shall be determined ... as of the date of the complaint or amended complaint ... indicating the existence of Federal jurisdiction.”). In Benko, we created a small exception to the general rule that bars post-removal amendments related to jurisdiction, and this understandably created some uncertainty in the district courts. Benko allowed amendments for purposes of clarifying the relationship between the parties and the effect of the class claims on particular defendants. This was permitted in Benko so that the district court could decide whether remand to state court was appropriate under the local controversy exception. Benko did not, however, strike a new path to permit plaintiffs to amend their class definition, add or remove defendants, or add or remove claims in such a way that would alter thfe essential jurisdictional analysis. Recognizing such a path in this circuit would conflict with statutory language and with the decisions of the other circuits. See, e.g., Hargett, 854 F.3d 962.

Because the existence of minimal diversity in this case must be determined on the basis of the pleadings at the time of removal in accordance with the general rule, the order of the district court remanding the case on the basis of a post-removal amendment must be reversed. The district court correctly recognized that the complaint, as of the time of removal, covered all California merchants, and not just merchants who were California citizens. That complaint remained the only one which should have been considered for determining the existence of minimal diversity. Accordingly, we respect rather than overrule Benko. Were we to interpret it as broadly as the dissent, we would not only disagree with other circuits, but overrule our own precedent in Doyle. Our decision in Benko did not sanction post-removal amendments that change the nature of the claims or the make up of the class.

We therefore REVERSE the order of the district court remanding this case to state court, and REMAND for further proceedings.

RÁWLINSON, Circuit Judge,

dissenting:

I respectfully dissent. I agree with the district court that the amendment of the Complaint in this case fit within the parameters recently articulated by us in Benko v. Quality Loan Serv. Corp., 789 F.3d 1111 (9th Cir. 2015).

The thrust of Broadway Grill’s Complaint, before and after amendment, was that the Visa defendants engaged in anti-competitive behavior in setting the rates for interchange fees charged to merchants in violation of California antitrust and unfair competition laws. Broadway Grill alleged that it was a California corporation, that its action was premised solely on violations of California law and that Broadway Grill conducted business only in San Mateo County, California. Broadway Grill described the class as consisting solely of California merchants, and noted that the Visa defendants were headquartered in California. Broadway Grill averred that Visa’s unlawful activities “occurred in and have substantially affected California commerce.”

Finally, Broadway Grill defined the class as “[a]ll California individuals, businesses and other entities who accepted Visa-Branded Cards in California.” No cause of action was pled under any federal law.

Of course, because Broadway Grill originally filed its action in state court,' the citizenship. of the parties was irrelevant. However, once the case was removed to federal court, an issue arose regarding whether the class included only California citizens. The district court determined that because the language in the Complaint defining the class was imprecise, it could be fairly read to include “non-California citizens.” Specifically, the court explained that the Complaint failed to “explicitly limit the class’s scope based on state citizenship.” However, the court subsequently allowed Broadway Grill to amend the Complaint to clarify the class of California citizens. The court relied on our holding in Benko that “[w]here a defendant removes a case to federal court under CAFA [the Class Action Fairness Act], and the plaintiffs amend the complaint to explain the nature of the action for purposes of our jurisdictional analysis, we may consider the amended complaint to determine whether remand to the state court is appropriate.” 789 F.3d at 1117.

The district court’s reliance on this language from Benko was entirely warranted. As the district court noted, Broadway Grill amended the Complaint “to explain the nature of the action for purposes of our jurisdictional analysis.” Id. Pre-amendment, the Complaint defined the class as “All California individuals, businesses and other entities who accepted Visa-Branded Cards.” Post-amendment, the Complaint defined the class as “All California citizens who are individuals, businesses and other entities who accepted Visa-Branded Cards.” The amendment in no way changed the nature of the action against the Visa defendants. Pre-amendment and post-amendment, the Complaint asserted the exact same claim against the Visa defendants: engaging in anticompetitive behavior through setting the interchange fees charged to California merchants. The amendment was entirely consistent with our holding in Benko that a plaintiff “should be permitted to amend a complaint after removal to clarify issues pertaining to federal jurisdiction under CAFA.” Id.

In Benko, we expressly acknowledged that pleadings originally filed in state court need not,' and often do not, “address CAFA-specific issues,” such as diversity of citizenship. Id. “By amending their complaint in these circumstances, plaintiffs can provide a federal court with the information required to determine whether a suit is within the court’s jurisdiction under CAFA.” Id.

My colleagues in the majority conclude that the amendment was inappropriate because it “changed the definition of the class.” Majority Opinion, p. 1277. But that is exactly the type of change countenanced in Benko—“information required to determine whether a suit is within the court’s jurisdiction under CAFA.” 789 F.3d at 1117. The majority also mistakenly maintains that the amendment “changed the nature of the action.” Majority Opinion, p. 1278. However, as noted above, the nature of the action remained one of alleged anti-competitive behavior in violation of California statutes. The description of the class was defined more precisely without in any way expanding or modifying the allegations underlying the asserted cause of action. Our analysis in Benko approves of just such an amendment, that clarifies jurisdictional facts without altering the nature of the action. See Benko, 789 F.3d at 1117.

Unlike my colleagues in the majority, I am not persuaded by the cases from our sister circuits. The reason is simple. All of these cases were decided on the premise that post-removal amendment to pleadings is prohibited. Rather, in these cases, jurisdiction under CAFA is “determined as of the date of the pleading giving federal jurisdiction.” Hargett v. RevClaims, LLC, 854 F.3d 962, 967, 2017 WL 1405034 at *3 (8th Cir. 2017); see also In Touch Concepts, Inc. v. Cellco P’ship, 788 F.3d 98, 102 (2d Cir. 2015) (same); Cedar Lodge Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., 768 F.3d 425, 429 (5th Cir. 2014) (same); In re Burlington N. Santa Fe Ry. Co., 606 F.3d 379, 381 (7th Cir. 2010) (per curiam) (noting that “nothing filed after a notice of removal affects jurisdiction”). In Benko, we expressly and definitively disavowed reliance on this premise. We explained that the defendants urged us to conclude that “jurisdiction must be analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent amendments.” Benko, 789 F.3d at 1117 (citation omitted). We rejected that argument and allowed amendment to clarify jurisdictional issues. See id. Benko compels our adherence to its holding rather than to the contrary approach of other circuits. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (“Binding authority must be followed ... ”). By following the reasoning of out-of-circuit authority that conflicts with binding precedent in this circuit, the majority essentially engaged in a stealth reversal of Benko, something a three-judge panel may not legitimately do. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003).

Because the district court’s ruling fits squarely within our decision in Benko, I would affirm the district court’s decision allowing amendment of the Complaint.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Dario OLIVAS, Plaintiff-Appellant, v. State of NEVADA, EX REL. DEPARTMENT OF CORRECTIONS; Nicholas Galbiso, individually, Defendants-Appellees.
    No. 15-17123
    United States Court of Appeals, Ninth Circuit.
    Submitted May 10, 2017  Pasadena, California
    Filed May 19, 2017

      Cal. J. Potter III and C.J. Potter III, Potter Law Offices, Las Vegas, Nevada, for Plaintiff-Appellant.
    Clark G. Leslie, Chief Deputy Attorney General, Public Safety/Litigation Division; Adam Paul Laxalt, Attorney General; United States Attorney’s Office, Carson City, Nevada; for Defendants-Appellants.
    Before: RICHARD R. CLIFTON and MICHELLE T. FRIEDLAND, Circuit Judges, and THOMAS O. RICE, Chief District Judge.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

       The Honorable Thomas O. Rice, Chief United States District Judge for the Eastern District of Washington, sitting by designation.

   OPINION

PER CURIAM:

Dario Olivas, a former prisoner, sued correctional officers and the Nevada Department of Corrections alleging violations of the Eighth Amendment and various state laws for injuries he suffered, and the medical treatment he received, after he was struck by shotgun pellets that officers fired in an attempt to quell an inmate altercation. The district court treated the lawsuit as one brought by a prisoner and thus applied the screening procedures established by § 1915A of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, dismissing the Complaint pursuant to those procedures. We hold that 28 U.S.C. § 1915A applies only to claims brought by individuals incarcerated at the time they file their complaints. Because Olivas was not so incarcerated, his claims should not have been subjected to § 1915A screening. We therefore reverse and remand.

I.

On July 31, 2012, an altercation broke out in the dining hall at High Desert State Prison. Dario Olivas, a prisoner at the time, was seated several tables away from the altercation and was not involved in it. “[Ajlmost immediately after the altercation began,” one or more officers fired pellets from a shotgun into the dining room. The pellets struck Olivas in the eye, face, and upper body. As a result, he lost sight in his right eye and suffered permanent disfigurement, excruciating pain, and extreme shock.

Olivas was released from prison in June 2014. In July 2014, Olivas filed a pro se complaint in state court. After retaining counsel, Olivas filed an amended complaint against Correctional Officer Galbiso, the Nevada Department of Corrections, and ten John Doe correctional officers alleging violations of the Eighth Amendment and various state laws.

Defendants removed the case to federal court in October 2014. The district court issued a screening order pursuant to 28 U.S.C. § 1915A dismissing the federal claims without prejudice and deferring a decision on the state law claims until Oli-vas amended the complaint.

In April 2015, Olivas filed a Second Amended Complaint in which he claimed that Defendants used excessive force by “maliciously and sadistically shooting Mr. Olivas in the eye with the intent to cause him harm.” He also alleged that Defendants acted with deliberate indifference to his serious medical needs by denying him treatment for the injuries caused by the shotgun pellets.

In September 2015, the district court issued a screening order pursuant to 28 U.S.C. § 1915A dismissing Olivas’s federal claims with prejudice and denying leave to amend. It concluded that Olivas had failed to. state a colorable claim for excessive force. Despite Olivas’s allegations of malice, the relatively short distance between the officers and the altercation, the space between Olivas and the altercation, the rapidity with which the officers allegedly began firing, and the extent of Olivas’s injuries, the district court held that Olivas had been inadvertently struck with shotgun pellets while the officers acted in good faith to restore discipline. The district court also dismissed Olivas’s deliberate indifference claim because it concluded that he failed to allege facts showing Defendants knew of and disregarded an excessive risk to his health. Finally, the. district court dismissed Olivas’s claims against the state of Nevada and the Nevada Department of Corrections on Eleventh Amendment grounds. The district court declined to exercise supplemental jurisdiction over Olivas’s state law claims and dismissed them without prejudice. The district court denied leave to amend, stating that amendment would be futile. Olivas timely appealed.

II.

This case presents us for the first time with the question whether a former prisoner who was released from custody before he filed his complaint is a “prisoner” within the meaning of 28 U.S.C. § 1915A.

Section 1915A provides that a federal district court “shall review ... a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). “On review, the court shall ... dismiss the complaint, or any portion of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). Section 1915A defines “prisoner” as “any person incarcerated ... who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(e).

A.

Although we have not previously interpreted the definition of “prisoner” in 28 U.S.C. § 1915A, we have interpreted two other provisions of the PLRA that use the same definition.

In Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000), we considered whether 28 U.S.C. § 1915, which establishes procedures for prisoner-plaintiffs proceeding in forma pauperis, and 42 U.S.C. § 1997e, which requires prisoner-plaintiffs to exhaust administrative remedies before challenging prison conditions, applied to a plaintiff who was civilly committed. We held that neither provision applied to a civilly committed plaintiff. We explained that “the natural reading” of the definition of “prisoner” in 28 U.S.C. § 1915(h) and 42 U.S.C. § 1997e(h) “is that, to fall within the definition of ‘prisoner,’ the individual in question must be currently detained as a result of accusation, conviction or sentence for a criminal offense.” Page, 201 F.3d at 1139. Thus “only individuals who, at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentenced for criminal offenses are ‘prisoners’ within the definition of 42 U.S.C. § 1997e and 28 U.S.C. § 1915.” Id. at 1140.

Similarly, in Talamantes v. Leyva, 575 F.3d 1021 (9th Cir. 2009), we analyzed whether a plaintiff who had been released from custody prior to filing his action was a “prisoner” within the meaning of 42 U.S.C. § 1997e(h). Relying again on the plain language of the statute, we held that “only those individuals who are prisoners ... at the time they file suit must comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).” Talamantes, 575 F.3d at 1024. Because the plaintiff had been released from custody before he filed suit, he was not required to comply with 42 U.S.C. § 1997e(a). Id.

B.

The definition of “prisoner” at issue in Page and Talamantes is the same definition at issue here. See 28 U.S.C. §§ 1915(h), 1915A(c); 42 U.S.C. § 1997e(h). Accordingly, we hold that a court may screen a complaint pursuant to 28 U.S.C. § 1915A only if, at the time the plaintiff files the complaint, he is “incarcerated or detained in any facility [because he] is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” This reading is consistent with Page and Talamantes, as well as with the plain language of the statute.

Because it is undisputed that Olivas was released from custody a month before he filed his complaint, the screening requirement of 28 U.S.C. § 1915A does not apply to his claims. The district court therefore erred in subjecting them to screening.

REVERSED and REMANDED.

      . “In reviewing an order dismissing a case for failure to state a claim, we ‘take as true all factual allegations in the complaint.' ” Nordstrom v. Ryan, 762 F.3d 903, 906 (9th Cir. 2014) (quoting Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011)).

      . We note that it appears the rigorous screening here did not take all factual allegations as true and weighed imagined countervailing evidence. And, even if it had been proper to conclude that the Complaint failed to state a claim, leave to amend should be freely given. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003).


author:
KELLY, Circuit Judge.
      BACHARACH, J.,

text:
    Bryan “Shane” JONES, Plaintiff-Appellant, v. Julie NEEDHAM; Needham Tracking, L.L.C., Defendants-Appellees. Equal Employment Opportunity Commission, Amicus Curiae.
    No. 16-6156
    United States Court of Appeals, Tenth Circuit.
    FILED May 12, 2017

      Bill V. Wilkinson, Tulsa, Oklahoma, for Plaintiff-Appellant.
    Joshua W. Solberg (Elizabeth Bowersox, with him on the brief), of McAfee & Taft A Professional Corporation, Oklahoma City, Oklahoma, for Defendants-Appellees.
    Philip M. Kovnat (P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel and Lorraine C. Davis, Assistant General Counsel, with him on the brief), of Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., for Amicus Curiae.
    Before KELLY, EBEL, and BACHARACH, Circuit Judges.
   KELLY, Circuit Judge.

Plaintiff-Appellant Bryan “Shane” Jones appeals from the district court’s dismissal of his Title VII sex discrimination claim against Defendant-Appellee Needham Trucking, LLC .and his state law tort claim for wrongful interference with a contractual relationship against Defendant-Appellee Julie Needham. See Jones v. Needham, No. CIV-15-0978-HE, 2016 WL 2659618 (W.D. Okla. May 6, 2016). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.

Background

Mr. Jones worked as a mechanic for Needham Trucking from May to November of 2014. 1 Aplt. App. 46. According to Mr. Jones, he was fired because he would not have sex with Ms. Needham, his direct supervisor and a shareholder of the business.

Mr. Jones completed an intake questionnaire with the EEOC. He checked the boxes for “Sex” and “Retaliation” as the reasons for his claims of employment discrimination, and also wrote out “sex har[as]sment.” Id. at 43. He provided a comparator, another mechanic who “was treated better because he had sex with Ms. Needham.” Id. And he listed two witnesses, both of whom would testify that they knew of the sexual harassment. Id. at 45. In response to questions seeking more detailed explanations, Mr. Jones wrote “[s]ee attached.” Id. at 43. That referenced a six-paragraph statement by Mr. Jones, which concluded with “I was terminated because I refused to agree to Ms. Need-ham’s-sexual advances and I rejected all such efforts by her.” Id. at 46.

Apparently the attachment never made it to the EEOC, nor did the EEOC alert Mr. Jones that it was missing. See 2 Aplt. App. 69-71. Nevertheless, the EEOC prepared the following charge form on behalf of Mr. Jones:

I. I have been employed with Need-ham Trucking LLC since on or about May, 2014. During my employment I was subjected to sexual remarks by owner, Julie Needham. I complained to General Manager, Jonathan Needham and Stephanie Needham about the sexual harassment. Nothing was done. On or about November 3, 2014, Julie Needham terminated my employment.
II. No reason was given for the sexual harassment. No reason was given for not stopping the sexual harassment. No reason was given for my retaliatory termination.
III. I believe I have been discriminated against and retaliated against for participating in a protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended.

1 Aplt. App. 41.

After the EEOC issued a right-to-sue letter, Mr. Jones filed suit against Need-ham Trucking and Ms. Needham with claims of sexual harassment, negligence, negligent or intentional infliction of emotional distress, wrongful interference with a contractual or business relationship, and violation of the Oklahoma Employment Security Act of 1980 (“OESA”). Id. at 9-15. Mr. Jones made clear that his sexual harassment claim took the form of both hostile work environment discrimination and quid pro quo discrimination that culminated in a tangible employment action “resulting] from his refusal to submit to a supervisor’s sexual demands.” Id. at 10.

Needham Trucking and Ms. Needham moved to dismiss all but Mr. Jones’s hostile work environment claim, M. at 22-23, and Mr. Jones voluntarily dismissed his claims for negligence and infliction of emotional distress. Aplee. Supp. App. 16. The district court then granted the partial motion to dismiss. It held that Mr. Jones failed to exhaust his administrative remedies for his quid pro quo sexual harassment claim, that his state law tort claim was precluded by the Oklahoma Anti-Discrimination Act (“OADA”), and that his OESA claim failed for want of a private right of action. Jones, 2016 WL 2659618, at *1-3. Mr. Jones moved to dismiss with prejudice his remaining claim for hostile work environment sexual harassment, which the district court granted. Order Granting Motion to Dismiss, Jones v. Needham, No. 5:15-ev-00978-HE (W.D. Okla. June 7, 2016), ECF No. 35. This appeal followed.

Discussion

Although the district court described the exhaustion of administrative remedies as a jurisdictional requirement under Title VII, Jones, 2016 WL 2659618, at *1, our recent cases suggest that exhaustion in this context might be better characterized as a claims-processing obligation. See Gad v. Kan. State Univ., 787 F.3d 1032, 1038 (10th Cir. 2015); see also Arabalo v. City of Denver, 625 Fed.Appx. 851, 860 (10th Cir. 2015) (unpublished); Pham v. James, 630 Fed.Appx. 735, 737-38 (10th Cir. 2015) (unpublished). Regardless, our review of the district court’s dismissal for failure to state a claim or for lack of subject matter jurisdiction is de novo. SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (Rule 12(b)(6)); McKenzie v. U.S. Citizenship & Immigration Servs., 761 F.3d 1149, 1154 (10th Cir. 2014) (Rule 12(b)(1)).

A. Quid Pro Quo Sexual Harassment and Exhaustion of Administrative Remedies

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). Sexual harassment has long been included in this proscription of sex discrimination. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); 29 C.F.R. § 1604.11(a). Such sexual harassment traditionally takes one of two forms. The first is “quid pro quo” harassment, in which a plaintiff “proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The second is “hostile work environment” harassment, in which conduct that does not result in a tangible employment action is nevertheless so “severe or pervasive” that it creates an abusive working environment. Id. at 754, 118 S.Ct. 2257; see also Morris v. City of Colo. Springs, 666 F.3d 654, 663 (10th Cir. 2012).

Importantly, the terms “quid pro quo” and “hostile work environment” do not appear in the statutory or regulatory text. Ellerth, 524 U.S. at 752, 118 S.Ct. 2257. Instead, the labels originated in the academy, were incorporated by the courts, and have since “acquired their own significance.” Id. The Supreme Court has warned that they “are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.” Id. at 751, 118 S.Ct. 2257.

Before filing suit, a Title VII plaintiff must first exhaust administrative remedies by, among other things, filing a sufficient charge of discrimination with the EEOC. See § 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104-05, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Aside from requiring that a charge be in writing and made under oath, Congress provided scant detail on what the charge should look like and instead gave the EEOC the responsibility of fleshing out those requirements. See § 2000e-5(b). The EEOC, in turn, has set up a system by which a person will submit information to the agency, typically in the form of an intake questionnaire, and then the EEOC will render assistance in the filing of the charge. 29 C.F.R. § 1601.6(a). The resulting charge document should contain a “clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” Id. § 1601.12(a)(3).

The purpose of administrative exhaustion is two-fold: “1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim.” Jones v. UPS, Inc., 502 F.3d 1176, 1185 (10th Cir. 2007) (citation omitted). Given these goals, the charge document must contain the general facts concerning the discriminatory actions later alleged in the legal claim. See id. at 1186. Thus, a plaintiffs claim in federal court “is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Id.

This overview raises two questions about the district court’s determination that Mr. Jones did not properly exhaust his administrative remedies. First, which was the proper document to look at? And second, was it sufficient?

The district court seemed to assume that the charge form prepared by the EEOC would necessarily be deficient because of the missing attachment to the intake questionnaire. See Jones, 2016 WL 2659618, at *1-2. Indeed, at times Mr. Jones himself seemed to assume this. See Aplee. Supp. App. 7 (blaming the EEOC for failing to “clearly articulate[ ] quid pro quo sexual harassment claims” in the charge papers). Accordingly, the district court looked at the intake questionnaire itself to see if it could be construed as a charge document sufficient for exhaustion.

While we acknowledge that there are times in which a different filing, such as an intake questionnaire, can constitute a charge for certain purposes, see, e.g., Fed. Express Corp. v. Holowecki, 552 U.S. 389, 401, 405, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008), the general rule remains that we typically look to the charge form if one exists. This is because the charge form, not a previous filing, is given to the employer to notify it of the potential claims against it and ordinarily determines the scope of the EEOC’s investigation. See 42 U.S.C. § 2000e-5(b); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 359-60, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977); see also Green v. JP Morgan Chase Bank Nat’l Ass’n, 501 Fed.Appx. 727, 731-32 (10th Cir. 2012) (unpublished).

Turning to the charge form itself, then, the question is whether the facts alleged are “sufficiently related to the claim [made in the complaint] such that those facts would prompt an investigation of the claim.” Jones, 502 F.3d at 1186 (citation omitted). We liberally construe the charge document in determining whether this requirement has been met. Id.

Needham Trucking argues that the' facts alleged were insufficient to put it on notice of the quid pro quo harassment claim made in Mr. Jones’s amended complaint. Aplee. Br. at 11. It takes issue with the EEOC’s argument that the facts alleged were sufficient to exhaust both a quid pro quo and a hostile work environment claim. We are not persuaded. Need-ham’s argumeiit relies on a complete bifurcation between the two forms of sexual harassment, see id. at 8-9, but the Supreme Court has cautioned that they are not wholly distinct claims. See Ellerth, 524 U.S. at 754, 118 S.Ct. 2257. Rather, they are shorthand descriptors to delineate different ways in which sexual harassment can occur. In the first, the tangible employment action that results from a refusal to submit to a supervisor’s demands “itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.” Id. In the second, it is the “severe or pervasive” conduct that effectively alters the conditions of employment so as to violate Title VII. See id.; Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009). Both factual scenarios lead to the same place: sexual harassment that violates Title VII’s proscription against sex discrimination in the workplace. See Gregory v. Daly, 243 F.3d 687, 698-99 (2d Cir. 2001). Though the descriptors matter a great deal insofar as they reveal what elements are needed to prove the specific claim of sexual harassment, see Ellerth, 524 U.S. at 752-54, 118 S.Ct. 2257, they are not so unrelated that the facts of the two scenarios could not overlap, or that an investigation resulting from facts specific to one category could not also fall within the scope of an investigation of the other:

Despite Needham’s implicit argument to the contrary, we do not think this understanding is new for this circuit. Needham emphasizes our past cases in which we have continued to use the words “quid pro quo” as evidence that we also continue to recognize “two distinct types of sexual harassment claims.” Aplee. Br. at 8-9. The implication is that perhaps things would be different if the case came about in another circuit that has retired that formulation. Cf., e.g., Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 n.4 (11th Cir. 2004) (using term “tangible employment action” instead of “quid pro quo” to describe “harassment that culminates in a discharge, demotion, or undesirable reassignment”). But as we have explained before, though the labels might differ, the underlying meaning does not. Pinkerton, 563 F.3d at 1059 n.4 (“[W]e use the ‘quid pro quo’ terminology only insofar as it might be useful to show that the harassment culminated in a tangible employment action.” (citing Ellerth, 524 U.S. at 753-54, 118 S.Ct. 2257)); see also Gregory, 243 F.3d at 699 (continuing to use term “quid pro quo,” emphasizing that “[w]hat matters ... is simply whether an employment action was based on plaintiffs sex,” and refusing “to create a separate doctrinal category for employers who make [employees’] workplace success contingent on submission to a supervisor’s sexual demands”). .

A charge need only “describe generally” the alleged discrimination, 29 C.F.R. § 1601.12(b), in order to “give notice of an alleged violation to the charged party,” Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997). Mr. Jones’s form has the boxes checked for his allegations of sex-based discrimination and retaliation, and it recounts that he was “subjected to sexual remarks,” that “Julie Needham terminated [his] employment,” and that no reason was given for the termination. 1 Aplt. App. 41. We think this was sufficient to alert Needham to the sexual-harassment allegations and to trigger an investigation that would look into what the sexual remarks were, why Mr. Jones was fired, and whether the two events were connected. Though the complaint Mr. Jones filed was more detailed than his charge form, this is to be expected given that a complaint must meet Rule 8 pleading standards and contain sufficient facts to render it plausible. See Fed. R. Civ. P. 8(a); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

B. Wrongful Interference with a Contractual or Business Relationship

The OADA “provides for exclusive remedies within the state of the policies for individuals alleging discrimination in employment on the basis of ... sex.” Okla. Stat. tit. 25, § 1101(A). The OADA is analyzed similarly to Title VII claims. See id. § 1305(A); see also Tilghman v. Kirby, 662 Fed.Appx. 598, 601 (10th Cir. 2016) (unpublished). The district court concluded that since Mr. Jones’s tortious interference claim was based on the same set of facts as his sex discrimination claim it fell within the OADA’s limitation of common law remedies. We agree.

Mr. Jones contends that “[n]either in the Amended Complaint nor in other pleading does [he] allege that the tortious interference is caused by the sexual harassment.” Aplt. Br. at 20. But in his amended complaint, Mr. Jones 1) adopted “[a]ll preceding paragraphs” detailing the facts for the sex discrimination claims, 2) alleged that he had a business or contractual relationship with Needham Trucking with which Ms. Needham wrongfully interfered, and 3) claimed that he was damaged in excess of $10,000 because of this interference. 1 Aplt. App. 13. Thus, the only facts in this statement are those he expressly adopted from the prior claims— which is to say, those relating to the alleged sexual harassment and resulting claims.

With this said, it could be that the same facts simply provide the basis for two different legal theories that are sufficiently distinct so as not to be precluded by the OADA. This sometimes happens in the Title VII context when courts have found that the separately-actionable tort is “highly personable” in nature. See Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995) (rape claim not barred by Title VII’s exclusive-remedy provision). Applying this logic, a district court in Oklahoma has held that a plaintiff could pursue both her OADA claim and her common law assault claim, even though both claims were founded on the same facts alleging that her supervisor sexually touched her without her consent. See Cunningham v. Skilled Trade Servs., Inc., No. CIV-15-803D, 2015 WL 6442826, at *3-5 (W.D. Okla. Oct. 23, 2015).

This exception does not apply to Mr. Jones’s claim. Oklahoma defines the elements of a claim for tortious or malicious interference as: “1) interference with a business or contractual right; 2) malicious and wrongful interference that is neither justified, privileged, nor excusable; and 3) damage proximately sustained as a result of the interference.” Tufty’s, Inc. v. City of Okla. City, 212 P.3d 1158, 1165 (Okla. 2009). Compare this with the elements of a quid pro quo form of sexual harassment: 1) tangible job benefits that are 2) conditioned on an employee’s submission to conduct of a sexual nature, which leads to 3) adverse job consequences when the employee refuses to submit to the sexual conduct. See Pinkerton, 563 F.3d at 1060. The elements are remarkably similar when the alleged malicious conduct is, as here, the conditioning of job benefits on the employee’s submission to sexual conduct.

AFFIRMED in part, REVERSED in part, and REMANDED. Mr. Jones’s motion to certify the OADA question to the Oklahoma Supreme Court is DENIED.

BACHARACH, J.,

dissenting.

The majority concludes that the Charge exhausts the plaintiffs Title VII claim. But in my view, the plaintiff waived this issue by (1) failing to present it in district court and neglecting to urge plain error on appeal and (2) failing to develop this issue in his opening brief in the appeal. Based on these waivers, I would not consider the Charge. And I regard the Intake Questionnaire as immaterial to the exhaustion requirement. Thus, I believe that the district court properly dismissed the action.

1. The Plaintiffs Two Waivers Regarding the Sufficiency of the Charge

The first waiver. The plaintiffs first waiver resulted from his failure to discuss the sufficiency of the Charge when responding to the defendant’s motion to dismiss in district court.

The majority refers to page 7 of the plaintiffs response brief filed in district court. Maj. Op. at 1290 n.3. This page contains only one pertinent sentence: “The regulation also dictates, however, that strict compliance with these requirements is not necessary so long as the Charge the Commission receives is ‘a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.’ ” Supp. App’x at 12 (quoting Semsroth v. City of Wichita, 304 Fed.Appx. 707, 712 (10th Cir. 2008) (unpublished)). The plaintiff follows this statement with this: “The more important question is whether the written statement generally describes the action complained of. Here, it is clear the written statement by Shane Jones [which is the attachment to the Intake Questionnaire, not the Charge] meets this requirement.” Id.

The entire thrust of the plaintiffs argument in district court was that: (1) the EEOC, not Mr. Jones, had prepared the Charge papers and (2) the EEOC, through neglect, had failed to adequately include the substance of the plaintiffs claim in the Charge. The plaintiff makes this clear in the concluding paragraph to his response to the motion to dismiss: “In the instant case, it is clear that Plaintiff Shane Jones alleged quid pro quo sexual harassment. However, when the EEOC prepared the Charge papers, the EEOC failed to specifically allege quid pro quo sexual harassment. This was clearly an oversight by the EEOC. If the employer’s Motion to Dismiss is granted, the Plaintiff Shane Jones will be penalized for the EEOC’s negligence in preparing the Charge.” Id. at 15; see also id. at 12 (“The attachment [to the Intake Questionnaire] clearly evidences quid pro quo sexual harassment and should have been included by the EEOC in the Charge papers. The EEOC failed to include in the Charge papers the claim described in the written attachment which was part of the responses to the Intake Questionnaire.”).

The plaintiffs omission of this argument in district court resulted in a forfeiture. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1238 (10th Cir. 2016). Forfeited arguments are ordinarily reviewable under the'plain-error standard. Id. at 1239. But the plaintiff has not asked us for plain-error review. As a result, the plaintiff waived his appellate argument on the sufficiency of the Charge. See McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) (“[E]ven if [the appellant’s] arguments were merely forfeited before the district court, her failure to explain in her opening appellate brief ... how they survive the plain error standard waives the arguments in this court.” (emphasis in original)).

The second waiver. The plaintiffs second waiver took place in his opening brief in this appeal. There the plaintiff argued that the Intake Questionnaire was sufficient, but he did not develop an argument involving the Charge. There were only two references to the Charge in the opening briefs discussion of exhaustion.

In one reference, the plaintiff stated that a “pivotal question” was whether the “Intake Questionnaire (APP 42-50) and Charge (APP 41) [met] minimum requirements for the exhaustion of remedies.” Plaintiffs Opening Br. at 11. After identifying this “pivotal question,” the plaintiff failed to discuss the Charge or say why it sufficed for exhaustion. Instead, the plaintiff answered the “pivotal question” by focusing solely on the Intake Questionnaire.

The second reference again identified “the question” as whether the plaintiffs information in “(APP1) would prompt an investigation of the quid pro quo claim.” Plaintiffs Opening Br. at 15. Then, in answering this question, the plaintiff referred solely to the information in the Intake Questionnaire, concluding that it had sufficiently described the underlying claim. Id. at 18. The Charge was again ignored.

These were the only two references to the Charge in the opening briefs discussion on exhaustiqn. Though the plaintiff twice referred to the Charge in framing the issue, he never discussed the Charge or stated why it would suffice for exhaustion. The plaintiffs two isolated references to the Charge failed to develop an argument regarding the Charge, resulting in a waiver. See Illiev v. Holder, 613 F.3d 1019, 1026 n.4 (10th Cir. 2010) (stating that the appellant’s failure to sufficiently develop an argument in his opening brief constituted a waiver).

After the plaintiff filed his opening brief, the EEOC filed an amicus brief, arguing that the Charge was sufficient. But we typically do not entertain an amicus curiae’s argument for reversal that had not been presented in the appellant’s opening brief. E.g., Tyler v. City of Manhattan, 118 F.3d 1400, 1404 (10th Cir. 1997). I would apply our typical practice here and decline to consider this argument.

We may assume, for the sake of argument, that this argument was developed in the plaintiffs reply brief. But we do not ordinarily consider appellate arguments for reversal made for the first time in an appellant’s reply brief. E.g., Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016). I would follow that practice here.

In my view, the plaintiff twice waived the sufficiency of the Charge. Thus, I would not address this issue.

2. Insufficiency of the Intake Questionnaire for Exhaustion

Mr. Jones also contends that the Intake Questionnaire satisfies the exhaustion requirement. I disagree.

An intake questionnaire can sometimes constitute a charge when a separate charge is not submitted. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402-03, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008). To constitute a charge, however, the intake questionnaire must request the EEOC to take remedial action to protect the employee’s rights or settle the dispute. Id.

In the Intake Questionnaire, the plaintiff stated that he wanted to file a separate charge; and he ultimately followed through by separately submitting a charge. Thus, the majority focuses on the Charge rather than the Intake Questionnaire. Maj. Op. at 1290. The majority’s focus is correct because the Intake Questionnaire never went to the employer. Id. As a result, the Intake Questionnaire is immaterial to the exhaustion requirement.

3. Conclusion

In my view, Mr. Jones
• waived a theory of exhaustion based on the Charge and
• failed to satisfy the exhaustion requirement based on the Intake Questionnaire.

Accordingly, I believe that the dismissal was correct. Because the majority concludes that the Charge suffices for exhaustion, I respectfully dissent.

      . Although Mr. Jones filed his notice of appeal before his motion to dismiss his remaining claim and before the district court had ruled on that motion or entered a final judgment, Fed. R. App. P. 4(a)(2) provides that a notice of appeal filed after the court announces a decision but before the entry of judgment "is treated as filed on the date of and after the entry.'' See also Coll v. First Am. Title Ins. Co., 642 F.3d 876, 884-85 (10th Cir. 2011).

      . Although not precedential, we find the reasoning of these and the other unpublished opinions cited in this opinion to be instruc-five. See 10th Cir. R 32.1 ' '

      . Mr. Jones did, however, preserve an argument that regardless of what filing constituted the final charge—i.e., whether it was the intake questionnaire or the charge form—strict compliance with the EEOC’s regulations in 29 C.F.R. § 1601.12(a) is not required “so long as the charge the Commission receives is a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” Aplee. Supp. App. 12 (quoting Semsroth v. City of Wichita, 304 Fed.Appx. 707, 712 (10th Cir. 2008) (unpublished) (emphasis, internal quotation marks, and citation omitted)). Since the charge form was before the district court, we . think this preserved an alternative argument that it, and not the questionnaire, constituted the actual charge.

      . See Supp. App’x at 10-15.

      . "APP 1" is the first page of a docket sheet, not the Charge. I assume that the plaintiff intended to cite page 41, which was the Charge.

      . Oral argument provided the defendant with its first opportunity to address the plaintiff's argument regarding the sufficiency of the Charge. When given this opportunity, the defendant objected and argued that the plaintiff had waived an argument on the sufficiency of the Charge. Oral Arg. at 15:43-16:16.


author: BACHARACH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kappelle SIMPSON-EL, Defendant-Appellant.
    No. 16-3107
    United States Court of Appeals, Tenth Circuit.
    FILED May 17, 2017

      David M. Magariel, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Kansas City, Kansas, for Appellant Kappelle Simpson-El.
    Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, and Tanya Sue Wilson, Assistant United States Attorney, on the brief), Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Appellee United States of America.
    Before LUCERO and BACHARACH, Circuit Judges.

       The Honorable Neil Gorsuch participated in oral argument, but he is not participating in the decision in light of his recent appointment to the U.S. Supreme Court. The practice of our court permits the remaining two panel judges, if in agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516, at n* (10th Cir. 1997) (noting that this court allows remaining panel judges to act as a quorum to resolve an appeal). In this case, the two remaining panel members are in agreement.

   BACHARACH, Circuit Judge.

This appeal involves a criminal defendant’s obligation to pay restitution to the victims. A restitution payment schedule can be modified when the defendant’s economic circumstances materially change. Here the criminal defendant obtained a cash settlement growing out of a tort action against the federal government. With this settlement, the district court had to decide whether the defendant’s circumstances materially changed. The district court answered “yes” and applied most of the settlement funds to the restitution obligation. The defendant appeals, and we affirm.

1.The Restitution Order and the Settlement

The defendant owing restitution is Mr. Kappelle Simpson-El, who was convicted of crimes involving the sale of stolen cars. His sentence included a restitution obligation of $432,930.00. Since obtaining release, Mr. Simpson-El has paid at least 5% of his gross monthly income toward restitution.

Mr. Simpson-El was injured while serving his prison sentence at a federal prison. The injury was allegedly exacerbated by inadequate medical attention and a lack of treatment, leading Mr. Simpson-El to sue the federal government under the Federal Tort Claims Act. After obtaining release from prison, Mr. Simpson-El settled with the government for $200,000.

2. The District Court’s Ruling and Mr. Simpson-El’s Arguments

The government sought modification of the restitution order based on a material change in economic circumstances, requesting an order for Mr. Simpson-El to pay the entire $200,000 as restitution. The district court granted the motion in part, applying $145,640 of the settlement funds toward restitution. Mr. Simpson-El makes two arguments on appeal:

1. The district court erred in finding' that the settlement funds constituted a “material change in economic circumstances” under 18 U.S.C. § 3664(k).
2. The district court improperly applied 18 U.S.C. § 3664(n).

We reject both arguments.

3. Standard of Review

Mr. Simpson-El contends that the standard is de novo review, and the government urges us to apply the abuse-of-discretion standard. For the sake of argument, we may assume that Mr. Simpson-El is right about the standard. See Unit ed States v. Grant, 235 F.3d 95, 99 (2d Cir. 2000) (stating that the court applies de novo review over “the legal question of ... what constitutes a ‘material change in the defendant’s economic circumstances’ under section 3664(k)”). Under either de novo review or review for an abuse of discretion, we would affirm.

4. The district court did not err in finding that Mr. Simpson-El’s settlement materially changed his economic circumstances.

Mr. Simpson-El argues that the district court erred substantively and procedurally in finding a material change in economic circumstances. Substantively, he contends that the settlement funds could not have constituted a change in economic circumstances because the settlement was intended to compensate for future income loss. Mr. Simpson-El also contends that the district court procedurally erred by failing to compare his current economic circumstances with his economic circumstances existing at the time of the restitution order.

a. Mr. Simpson-El’s settlement constituted a material change in his economic circumstances.

Under 18 U.S.C. § 3664(k), a court is authorized to adjust a restitution order when there is a “material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution.” The district court invoked this authority, reasoning that the receipt of settlement funds could affect Mr. Simpson-El’s ability to pay restitution.

Mr. Simpson-El disagrees. His argument centers on the premise that the settlement “attempts [only] to (in part at least) make up for a lifetime of lost income.” Appellant’s Opening Br. at 14. This argument rests on a questionable factual foundation, for the settlement might have included some compensation for non-economic harm. After all, the settlement resolved a suit in which Mr. Simpson-El had claimed “hedonic damage to his quality of life” as well as economic loss. R. vol. 1, at 98; see Hull ex rel. Hull v. United States, 971 F.2d 1499, 1502 (10th Cir. 1992) (differentiating between “economic losses” and “noneconomic losses” such as “loss of enjoyment of life”). Thus, Mr. Simpson-El acknowledges that

• presumably some part of the settlement involved compensation for lost quality of life and
• collection of damages for lost quality of life could involve a material change in economic circumstances.

Oral Arg. at 14:05-15:39.

Presumably not all of the settlement funds went toward “hedonic damage,” for Mr. Simpson-El’s claim also sought recovery for losses in future income. Even there, however, the district court could reasonably view an immediate cash payment to Mr. Simpson-El as more valuable than the opportunity to earn the same amount in the future.

For example, assume that without the alleged tort, Mr. Simpson-El would have earned the same that he had earned before going to prison: $37,000 per year. With this assumption, he would have had to wait over five years to earn $200,000.

Now, assume that he suffered a loss in earning capacity because of the tort. Mr. Simpson-El testified that after his injury, he would earn $16,000 for one year. This projection would have entailed a loss of roughly 57% from what he had earned before going to prison. Let’s assume that the sole cause of this reduction was the tort underlying the eventual settlement. With an annual loss in earning capacity, Mr. Simpson-El would have to wait 12 ½ years to earn $200,000.

With the settlement, Mr. Simpson-El obtains the entire $200,000 now, without having to wait more than 5 years (without the tort) or 12 ½ years (with the tort). Without the settlement, Mr. Simpson-El would theoretically have earned the same amount. But with the settlement, he no longer has to wait for the money. That time-savings could reasonably be viewed as a material change in economic circumstances. See United States v. Grant, 235 F.3d 95, 100-01 (2d Cir. 2000) (holding that newly created access to previously owned , funds constitutes a material change in economic circumstances under 18 U.S.C: § 3664(k)); see also United States v. Grigsby, 579 Fed.Appx. 680, 684 (10th Cir. 2014) (defining a “ ‘material change in the defendant’s economic circumstances’ ” as “a bona fide positive or negative change in the defendant’s financial circumstances that affects his ability to pay restitution”).

Mr. Simpson-El likens his circumstances to those in United States v. Grant, 715 F.3d 552 (4th Cir. 2013). The district court in Grant modified a restitution order by requiring the defendant to apply all of his income tax refunds toward restitution, without considering whether those refunds constituted a material change under § 3664(k). Id. at 555-56. The Fourth Circuit reversed, concluding that the district court had not considered whether the defendant’s circumstances materially changed after sentencing. Id. at 557, 559.

Mr. Simpson-El’s circumstances differ from those in Grant. Here, the district court considered Mr. Simpson-El’s .current economic condition and factored it into the distribution of the settlement. In addition, the income tax refunds in Grant were consistent annual payments that had preceded the restitution order. Id. at 557. Mr. Simpson-El’s settlement was different. It was a one-time event that took place after the creation of the restitution schedule.

b. The district court provided an adequate explanation.

Mr. Simpson-El contends that the district court did not properly apply 18 U.S.C. § 3664(k). According to Mr. Simpson-El, the district court failed to compare the economic circumstances before and after sentencing. Mr. Simpson-El points to a specific comment by the district court: “[I]t is clear that [Mr. Simpson-El’s] economic circumstances have changed materially with the settlement, as there is a substantial new fund from which the defendant could pay restitution.” R. vol. 1, at 110. Mr. Simpson-El claims that the lack of explanation taints the decision.

The explanation was adequate, for it compared the economic circumstances before and after the sentencing. In this comparison, the court discussed (1) the allega-, tions of loss of future income within the civil case and (2) the current employment and income level of the defendant. Based on these considerations, the district court concluded that the defendant remained able to meet his needs without dipping into the settlement proceeds.

The district court did not illustrate how Mr. Simpson-El’s economic circumstances had changed, but there was no need to do so. The court stated the obvious: that there was now a substantial new fund that had not existed before the time of the settlement. Pointing to the newly created fund, the court relied on a readily apparent change: Before the settlement, Mr. Simpson-El would have had to wait years to earn $200,000; after the settlement, he would immediately recoup $200,000. With the newly created access to $200,000, the district court’s simple explanation was adequate to inform the parties why the settlement would constitute a material change in economic circumstances. See United States v. Ahidley, 486 F.3d 1184, 1191 (10th Cir. 2007) (stating that when we review the explanations for the initial payment schedule, the standard is whether we can discern from the record that the district court considered the appropriate factors).

5. The district court did not rely on § 3664(n).

Mr. Simpson-El argues that the district court erred in relying on § 3664(n). Section 3664(n) requires application of settlement funds to a prisoner’s restitution obligations. Because Mr. Simpson-El received the settlement funds when he was no longer a prisoner, § 3664(n) did not apply.

The district court mentioned § 3664(n), but did not rely on it. Instead, the district court contrasted Mr. Simpson-El’s situation with that of a prisoner, who would be subject to § 3664(n)i The district court expressly rejected use of § 3664(n) as the legal standard for Mr. Simpson-El’s aetion, saying that “[Section 3664(n) ] does not apply because [Mr. Simpson-El] was not incarcerated when he received the settlement. ...” R. vol. 1, at 112. The district court did not err in mentioning § 3664(n).

6. Conclusion

Because the district court properly applied § 3664, we affirm.

      . The settlement agreement is not in the appellate record. Thus, we lack any evidence about possible designation of funds in the settlement agreement as payment for particular claims.

      . According to Mr. Simpson-El, the district court’s ruling would treat all personal injury settlements as material changes in economic circumstances. -We decide only the issue before us. Section 3664(k) requires a court to find a material change in Mr. Simpson-El’s ability to pay restitution. In this case, the district court could reasonably find that the . $200,000 settlement payment had affected Mr. Simpson-El’s ability to pay his restitution obligation more quickly. Id. at 557, 559. We need not decide whether personal injury settlements would always allow quicker payment of restitution obligations.

      . Mr. Simpson-El acknowledges that "the district court pointed out that § 3664(n) did not apply.” Appellant's Opening Br. at 18.


author: McKAY, Circuit Judge.

text:
    Jacquelynn (Jackie) L. JACKS; Stuart L. Rees, wife and husband; Harley J. Jacks; Jacquelynn (Jackie) L. Jacks, as next friend for T.J.M., a minor, and A.J.J., a minor, Plaintiffs-Appellees, v. CMH HOMES, INC., d/b/a Oakwood Homes Oklahoma City, and d/b/a Clayton Manufactured Homes; CMH Manufacturing, Inc., a/k/a Karsten Homes, Defendants-Appellants, and Vanderbilt Mortgage and Finance, Inc., Defendant.
    No. 15-6197
    United States Court of Appeals, Tenth Circuit.
    FILED May 17, 2017

      W. Scott Simpson of Simpson, McMa-han, Glick & Burford, PLLC, Birmingham, Alabama (Jonathan E. Beling of Simpson, McMahan, Glick & Burford, PLLC, Birmingham, Alabama, and Joseph R. Farris, Sarah Buchan, and Brynna Schellbar of Franden, Farris, Quillin, Goodnight + Roberts, Tulsa, Oklahoma, with him on the briefs) for Defendants-Appellants.
    Michael M. Reynolds of DeBois, Sherrill & Reynolds, Duncan, Oklahoma, for Plaintiffs-Appellees.
    Before MATHESON, McKAY, and MORITZ, Circuit Judges.
   McKAY, Circuit Judge.

In 2009, Jacquelyn Jacks bought a manufactured home from CMH Homes, Inc., on installment. The purchase was financed through CMH Homes under a manufactured-home retail installment contract. The contract contains an arbitration agreement, which provides that all disputes arising from, or relating to, the contract would be resolved by binding arbitration. By its terms, “[t]his Arbitration Agreement also covers all co-signors and guarantors who sign this Contract and any occupants of the manufactured Home (as intended beneficiaries of this Arbitration Agreement).” (Appellants’ App. at 31.) Ms. Jacks was the only “buyer” to sign the contract; there were no cosigners or guarantors. Ms. Jacks, along with her husband and their children, moved into the manufactured home soon after it was delivered and installed by CMH Homes.

About five years later, Ms. Jacks and her family brought suit in state court against CMH Homes and CMH Manufacturing, which had manufactured the home, and Vanderbilt Mortgage and Finance, which is not a party to this appeal. They claimed: (1) CMH negligently installed and repaired the manufactured home’s water system, which caused toxic mold to grow; (2) the manufactured home was unreasonably dangerous at the time it left the control of CMH; (3) the manufactured home was not fit for habitation. Ms. Jacks also sought to rescind her purchase of the manufactured home, along with her agreement to pay Vanderbilt Mortgage and Finance the indebtedness incurred to purchase the home.

The CMH defendants removed the case from state to federal court and moved to compel arbitration and stay the court proceedings. Defendants argued that Ms. Jacks, having signed the contract, was barred by the arbitration agreement from pursuing her claims in court. The district court agreed and granted the motion to compel as to the claims of Ms. Jacks.

The district court denied the motion as to the remaining plaintiffs who were not parties to the installment contract. Defendants had argued that Ms. Jacks’ husband and their children were likewise bound by the arbitration agreement, even though they never signed the contract. Because “all Plaintiffs were occupants of the Home and intended third party beneficiaries to the Arbitration Agreement,” Defendants maintained below, “a valid agreement to arbitrate exists between all Plaintiffs and CMH Homes under Oklahoma contract law.” (Id. at 18.)

The district court did not agree. It held that “the single sentence in the Arbitration Agreement generically referencing ‘any occupants of the Manufactured Home (as intended beneficiaries of this Arbitration Agreement)’ is not sufficient to make the nonsignatory plaintiffs, who are occupants of the home, third party beneficiaries of the Arbitration Agreement and subject to being compelled to arbitration.” (Id. at 83.)

The district court also rejected Defendants’ contention that the nonsignatory plaintiffs were “bound to arbitrate their claims” under “the doctrine of equitable estoppel” (id. at 24), holding that “Defendants have not satisfied any of the elements of equitable estoppel,” (id. at 84):

There have been no false representations or concealment of facts by the nonsignatory plaintiffs. Further, the Court finds no equitable reason why the nonsignatory plaintiffs should be bound by the Arbitration Agreement; the non-signatory plaintiffs have engaged in no conduct which would equitably warrant that they be bound by the Arbitration Agreement.

(Id. at 84.)

Defendants timely appealed the district court’s partial denial of their motion to stay and to compel arbitration. We have jurisdiction under the Federal Arbitration Act, which authorizes an interlocutory appeal of an order “refusing a stay of any action, under section 3 of this title” or “denying a petition under section 4 of this title to order arbitration to proceed.” 9 U.S.C. § 16(a)(1)(A), (B).

On appeal, Defendants tell us “[i]t is well-established that the standard of appellate review of a district court order denying a motion to compel is de novo.” (Appellants’ Opening Br. at 10.) That is generally true. See Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir. 2012). But it is also incomplete: “We have not yet decided whether the de novo standard that generally applies to our review of a denial of a motion to compel arbitration also applies to a denial of such a motion based on equitable estoppel, or whether some other standard of review applies.” Bellman v. i3Carbon, LLC, 563 Fed.Appx. 608, 612-13 (10th Cir. 2014) (unpublished) (citing Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 449 Fed.Appx. 704, 707 (10th Cir. 2011) (unpublished)). As we have recognized, “[o]ther circuits are split on this issue, with some courts reviewing such decisions de novo, and others for an abuse of discretion.” Id. In any event, we need not decide which to apply here because Defendants’ estoppel argument fails under either standard.

Defendants also note that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” (Appellants’ Opening Br. at 10 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983))). Again, that is generally true, but the presumption in favor of arbitration does not apply here: “[W]hen the dispute is whether there is a valid and enforceable arbitration agreement in the first place, the presumption of arbitrability falls away.” Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998); see also Dumais v. Am. Golf Corp., 299 F.3d 1216, 1220 (10th Cir. 2002) (recognizing that “this presumption disappears when the parties dispute the existence of a valid arbitration agreement”). Defendants, as the parties seeking to compel arbitration, have the burden to show that the arbitration agreement applies to the nonsignatory plaintiffs. Hancock, 701 F.3d at 1261.

“[Arbitration is a matter of contract.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). “[T]o determine whether a party has agreed to arbitrate a dispute,” we “apply ordinary state-law principles that govern the formation of contracts.” Walker v. BuildDirect.com Techs., Inc., 733 F.3d 1001, 1004 (10th Cir. 2013). As every first-year law student knows, “[a]n agreement or mutual assent is of course essential to a valid contract.” Lucy v. Zehmer, 196 Va. 493, 84 S.E.2d 516, 522 (1954). This basic rule of contracts was axiomatic in Oklahoma even before its admission to the Union: “The gist and meaning of the word ‘contract’ is that the minds of the parties must meet and agree upon a given proposition.” McCormick v. Bonfils, 9 Okla. 605, 60 P. 296, 299-300 (1900). In present-day Oklahoma, a contract is defined by statute as “an agreement to do or not to do a certain thing.” Okla. Stat. Ann. tit. 15, § 1. In short, without an agreement, there is no contract.

Arbitration agreements are no different: “An agreement for the submission of an issue to arbitrators is a prerequisite to the commencement of a valid arbitration agreement.” Voss v. City of Okla. City, 618 P.2d 925, 928 (Okla. 1980). “[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT&T Techs., 475 U.S. at 648, 106 S.Ct. 1415 (internal quotation marks omitted); see also Boler v. Sec. Health Care, L.L.C., 336 P.3d 468, 477 (Okla. 2014) (“Consent to arbitrate is an essential component of an enforceable arbitration agreement.”).

Defendants would have us turn this basic principle of contract law on its head. They concede that the nonsignatory plaintiffs are not third-party beneficiaries to the contract as a whole. (Appellants’ Reply Br. at 10 n.9.) Defendants focus instead on the arbitration agreement itself, which designates “any occupants of the Manufactured Home” as “intended beneficiaries of this Arbitration Agreement.” (Appellants’ App. at 31.) The “benefit,” according to Defendants, is the right to compel arbitration. But Defendants have not cited authority, and we are not aware of any, that says a contract (here, the arbitration agreement) can be enforced against an intended third-party beneficiary who has not accepted the benefit (here, the right to compel arbitration) or otherwise sought to enforce the terms of the contract. Cf. Restatement (Second) of Contracts § 306 cmt. b (1981) (“[A] beneficiary is entitled to reject a promised benefit.”). Such a rule would make no sense: unwitting third parties could be bound to a contract without knowing its terms or ever realizing some benefit.

At bottom, Defendants’ argument reduces to the following syllogism:

Major premise: A third-party beneficiary to an arbitration agreement is bound by the agreement.
Minor premise: Here, the nonsignatory plaintiffs are third-party beneficiaries of the arbitration agreement.
Conclusion: Therefore, the nonsignatory plaintiffs are bound by the arbitration agreement.

Defendants spend most of their briefing on the minor premise but then fail to cite to a single case to support the major premise. As the parties seeking to compel arbitration, Defendants have the burden to establish that the nonsignatory plaintiffs can be held to the arbitration agreement. See Hancock, 701 F.3d at 1261. Here, it is simply not enough to show that the nonsig-natory plaintiffs are third-party beneficiaries.

Next, Defendants argue that the nonsignatory plaintiffs are bound to the arbitration agreement, which they never agreed to, “under the doctrine of equitable estoppel.” (Appellants’ Opening Br. at 23.) At different stages of these proceedings, Defendants seemingly advance two different theories of equitable estoppel. Below, Defendants advanced a theory of integrally-related-claim estoppel, sometimes referred to as the “intertwined claims” theory. (See Appellants’ App. at 84 (arguing that “[bjecause the non-signatories’ claims are identical to Jackie Jacks’ claims and are ‘integrally related’ to the [contract] setting forth the Arbitration Agreement, all Plaintiffs are subject to the Arbitration Agreement.”)). In some jurisdictions, this theory permits a nonsignatory to estop a signatory from eschewing arbitration when the claims are integrally related to a contract that contains an arbitration agreement. See Janvey v. Alguire, 847 F.3d 231, 242 (5th Cir. 2017). Insofar as Defendants continue to press this theory of estoppel on appeal, it “does not govern the present case, where a signatory-defendant seeks to compel arbitration with a nonsignatory-plaintiff.” Id.; see also Carter v. Schuster, 227 P.3d 149, 156 (Okla. 2009) (distinguishing between “estop[ping] a signatory from avoiding arbitration with a nonsignatory where the nonsignatory was seeking to resolve issues in arbitration that were intertwined with the agreement the estopped party had signed,” and estopping a nonsig-natory (emphasis in original)).

On appeal, Defendants also argue for the “direct-benefit estoppel doctrine,” which “applies when a nonsignatory know'ingly exploits the agreement containing the arbitration clause.” (Appellants’ Opening Br. at 28-29 (quoting Hellenic Inv. Fund, Inc. v. Det Norske Veritas, 464 F.3d 514, 517-18 (5th Cir. 2006))). “Under ‘direct benefits estoppel,’ a non-signatory plaintiff seeking the benefits of a contract is estopped from simultaneously attempting to avoid the contract’s burdens, such as the obligation to arbitrate disputes.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 739 (Tex. 2005). Some states have embraced the doctrine of direct-benefits estoppel. See, e.g., id. Oklahoma has not.

In any event, this direct-benefit-estoppel argument is waived. “We have held that an appellant waives an argument if she fails to raise it in the district court and has failed to argue for plain error and its application on appeal.” Campbell v. City of Spencer, 777 F.3d 1073, 1080 (10th Cir. 2014). Defendants did not raise direct-benefit estoppel below and have not argued for plain error on appeal. Though Defendants did argue integrally-related-elaim estoppel before the district court, direct-benefit estoppel is not the same thing. See supra; see also Janvey, 847 F.3d at 242 (recognizing “two theories of equitable es-toppel”: (1) “[t]he ‘intertwined claims’ theory”; (2) “[t]he ‘direct benefits’ theory.”). And our forfeiture-and-waiver rule applies even “when a litigant changes to a new theory on appeal that falls under the same general category as an argument presented at trial.” See Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013).

We find no compelling reasons to reach this argument. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”). To the contrary, there is good reason not to depart from our rule: Defendants fail to cite Oklahoma law supporting their direct-benefits-estoppel theory. “As a federal court, we are generally reticent to expand state law without clear guidance from its highest court.” Schrock, 121 F.3d at 1284.

We AFFIRM.