text:
    UNITED STATES of America, Plaintiff-Appellee, v. Adrienne LOPEZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Angela Marie Lopez, Defendant-Appellant.
    No. 15-3130, No. 15-3134
    United States Court of Appeals, Tenth Circuit.
    FILED February 27, 2017

      John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant Adrienne Lopez.
    Sean C. McEnulty, Attorney at Law, McNulty Law Firm, P.A., Wichita, Kansas, for Defendant Angela Marie Lopez.
    James A. Brown, Assistant United States Attorney (Barry R. Grissom, with him on the brief), Office of the United States Attorney, Topeka, Kansas, for' Plaintiff-Appellee.
    Before KELLY, HARTZ, and MATHESON, Circuit Judges.
   HARTZ, Circuit Judge.

Defendants Adrienne Lopez and Angela Lopez, no relation, appeal their convictions and sentences on charges of possessing methamphetamine with intent to distribute and conspiracy to do so. We need not address most of their arguments because we agree with them that the methamphetamine found in their car must be suppressed. They were properly stopped because Angela was speeding. But the officer did not have reasonable suspicion to continue their detention to obtain a drug-detection dog after he issued Angela a warning and Defendants refused to consent to a search of their vehicle. As alternative grounds for affirming the admission of the evidence, the government argues (1) that Adrienne cannot complain of the search because it was not a fruit of her detention and (2) that the continued detention was lawful anyway because there was probable cause to arrest Angela for driving without a license. We reject both arguments. The search of the vehicle was.based on the dog’s alert to marijuana in Adrienne’s purse and the police dispatcher informed the officer on the scene that Angela had a valid license.

I. BACKGROUND

At 3 p.m. on June 21, 2013, Angela was driving a 2013 Dodge Avenger eastbound on U.S. Route 54 toward Wichita. Kansas Highway Patrol Trooper Robert Krause pulled the car over for going 79 miles per hour in a 65-mile-per-hour zone. Krause had graduated from the police training academy six months earlier and had worked as a solo patrolman for two months. The stop was recorded on Krause’s dashboard camera. He approached the driver’s side of the Dodge and told Defendants that he had pulled them over for speeding. The passenger, Adrienne, asked where they were speeding, and Krause told her. Throughout the encounter Adrienne, rather than Angela, the driver, did almost all the talking, which Krause said can be a sign of nervousness.

After being told that the car was a rental, Krause asked Angela for her license, insurance, and car-rental paperwork. While Angela looked for those documents, Krause turned his attention to the backseat. Immediately, Adrienne said, “Don’t look back there, it’s a mess.” Gov’t Suppression Hr’g, Ex. 1, Videotape of Traffic Stop at 1:38-1:42 (Videotape). The backseat was not particularly messy; only a few bags and a blue cooler were on the seat.

Krause then asked the women about their travel plans. Adrienne told him that they were coming from California and headed to “Kansas City or Nebraska” to rescue her sister “because she was getting beat up by her boyfriend.” R. at 507, Suppression Hr’g at 18 (Suppression Hr’g). At that point Angela handed him her documents. Instead of her license she provided a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license. The rental paperwork stated that the car was rented in El Monte, California, at 5:30 p.m. on June 20 for two days, to be returned to the same location.

Krause asked the women if they had any drugs, such as marijuana, methamphetamine, or heroin, in the car. They replied no, but Adrienne added that she needed some marijuana because the drive was taking too long. This prompted Krause to inquire further into their travel plans. They told him that they left California at about 6 p.m. the night before and drove through the night. When asked if they stopped a lot, Adrienne replied, “a lot, too much.” Videotape at 3:38-3:40. With that, Krause returned to his car to check Angela’s documents.

Krause relayed Angela’s information to the dispatcher and learned that she had a valid driver’s license and no criminal history. He reapproached the driver’s side of the car, returned Angela’s paperwork, and warned her for speeding and not having her license. Adrienne thanked him and asked whether a person can get in trouble for not having her license when driving. Krause explained that she could. He then told Defendants to have a safe trip and turned to walk away.

After taking four steps away from the Dodge, Krause turned around and walked to the driver’s side window. He asked Angela if she minded answering a few more questions, and she consented. He again asked her where they were headed, and again Adrienne interceded, saying that she did not know the exact city because her cell phone had not been working for the past two hours. Krause asked Defendants if they were related, and they gave different answers. Talking over each other, Angela said that they were friends, while Adrienne said that they were cousins. Adrienne then explained that they had known each other for a very long time but were not related.

Krause next asked Defendants if he could search their vehicle, explaining that drugs were frequently trafficked on Route 54 and he was suspicious of their two-day car rental. After some hesitation they refused to consent. Nevertheless, Krause detained them until a drug dog could be ferried to their car. Twenty minutes later, the drug dog arrived with its handler. With Defendants standing away from the car, the dog sniffed around the car’s exterior, then jumped through the open front passenger window and alerted on Adrienne’s purse below the front seat. Adrienne admitted having some marijuana in her purse. Krause found the marijuana and proceeded to search the rest of the car. He found four vacuum-sealed packages beneath some ice water at the bottom of the blue cooler on the backseat. After calling his lieutenant to check if'he could lawfully open the packages, he discovered what was later determined to be 1,766 grams (about four pounds) of 100% pure methamphetamine.

The United States District Court for the District of Kansas denied Defendants’ motions to suppress. They were convicted by a jury of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. See 21 U.S.C. §§ 841, 846. Defendants appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

II. ANALYSIS

“When reviewing [the denial of] a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court’s findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment.” United States v. Pettit, 785 F.3d 1374, 1378-79 (10th Cir.), cert. denied, — U.S.—, 136 S.Ct. 282, 193 L.Ed.2d 205 (2015). A traffic stop must be justified at its inception and, in general, the officer’s actions during the stop must be reasonably related in scope to the circumstances that initially justified it. See United States v. Davis, 636 F.3d 1281, 1290 (10th Cir. 2011). A stop may, however, be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring. See United States v. Moore, 795 F.3d 1224, 1229 (10th Cir. 2015).

Defendants do not contest the initial stop, and the government does not contest that Krause extended the stop beyond its initial purpose (enforcing traffic laws) without Defendants’ consent. The propriety of the search depends solely on whether further detention to await the drug dog was lawful because Krause had reasonable suspicion that Defendants were engaged in criminal activity. The government bears the burden of proving reasonable suspicion. See Pettit, 785 F.3d at 1379. The officer must be able to articulate particular objective facts from which it is reasonable for a trained, experienced officer to believe that criminal activity is afoot. See United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); United States v. Simpson, 609 F.3d 1140, 1146-47 (10th Cir. 2010). The determination is based on the totality of the circumstances; reasonable suspicion can be founded on a combination of factors that individually may be susceptible of innocent explanation. See Arvizu, 534 U.S. at 277-78, 122 S.Ct. 744.

A. Legality of Continued Detention

We hold that Krause did not have reasonable suspicion to prolong the stop to await the drug dog. The government points to three suspicious factors justifying detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy even though it was not; and (3) Defendants’ travel plans were implausible. As for Adrienne’s nervousness, we have consistently assigned this factor limited significance because its measure is so subjective and innocent people can vary widely in how they respond to an encounter with police. See Pettit, 785 F.3d at 1380. Only extreme nervousness can substantially contribute to reasonable suspicion. See id. (“[W]e require specific indicia that the defendant’s nervousness was extreme.... ” (internal quotation marks omitted)). The district court did not find that either Adrienne or Angela was extremely nervous, Krause did not so testify, and it is not apparent on the videotape of the encounter. At the suppression hearing Krause recalled that he and Adrienne were having a “casual conversation,” with the only suggestion of nervousness being that Adrienne was overly talkative. Suppression Hr’g at 68. And even that suggestion of nervousness had an explanation. Given Adrienne’s story that it was her sister who was being abused and that she recruited Angela to come along on the rescue mission, it would make sense for her, rather than the driver, to be the one communicating with Krause.

Adrienne’s comment about the backseat also is very little support for reasonable suspicion. With the benefit of hindsight, the comment seems revealing, because methamphetamine was hidden in the blue cooler. One could surmise that Adrienne was concerned that the officer was looking in the backseat, blurted out that he should not look there, and then, realizing that she had to give a reason for him not to look, concocted the silly reason that the backseat was messy. But at the time she made her comment, there was nothing incriminating in view on the backseat, and her comment could hardly have dissuaded Krause from taking a closer look through the back window. At best, Adrienne’s comment was a cue for Krause that something was odd and he should be alert for evidence of crime.

The evidence he found, however, was inadequate. The government’s chief justification for expanding the traffic stop is Defendants’ allegedly implausible travel plans. But Adrienne’s fictionalized account held together rather well. Given the purpose of the trip — to rescue a sister from an abusive boyfriend — the travel plans made sense. Adrienne would want to act as quickly as possible to get to her sister and bring her to safety. A last-minute airline flight could be quite expensive, and driving might be a more flexible way to rescue her sister and some of her things. To travel through the night required recruiting.a companion to share the driving. Trying to make the round-trip within the time limits of the rental agreement might well have been overly ambitious (or foolish, because they were traveling more than 20% too fast when stopped), but if they did not' spend too much time in Kansas City (or Nebraska), it could be reasonable to rent only for two days rather than three. Although Krause testified at the suppression hearing that his suspicions were aroused because “[fit’s not normal for somebody to rent a car for two days and travel halfway across the country and expect to be back,” Suppression Hr’g at 20-21, Adrienne gave an explanation for the rapid travel. Even the vagueness of the final destination— Nebraska or Kansas City — was understandable if the sister needed to move to protect herself from her boyfriend. Kansas City is about 100 miles from the Nebraska border, so the vagueness of the destination still had the rescuers going in the correct direction (plausibly assuming that any destination in Nebraska would be in the part of the state closest to Kansas City), and the rescuers would not need more precise directions until they were closer to Kansas City. Adrienne explained that she did not yet have the final destination because her cell phone had not been working, and Krause testified that cell service in the area of the stop could be unreliable.

Perhaps additional questioning of Defendants (particularly if they were not together) would have elicited internal contradictions, inconsistencies between their stories, or inexplicable vagueness. We have said that such flaws in purported travel plans can be a significant factor in assessing reasonable suspicion. See Davis, 636 F.3d at 1292 (driver and passenger gave conflicting accounts of travel plans); Simpson, 609 F.3d at 1149 (“[L]ies, evasions or in-' consistencies ... may contribute to reasonable suspicion.”); United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir. 1995) (noting evasions and inconsistencies). But Krause did very little to pursue his suspicions, and he uncovered no flaws of that nature.

■Although our precedents may not be totally consistent in this regard, we have generally been reluctant to give weight in the reasonable-suspicion analysis to unusual travel purposes, at least absent lies, inconsistencies, or the like. For example, in United States v. Wood, 106 F.3d 942, 944 (10th Cir. 1997), the driver said that he was an unemployed painter in Kansas who had flown with his sister to California for a two-week vacation and was returning in a rental car to view the scenery while his sister had flown back. The district court found it “implausible that an unemployed painter in Kansas could afford to take a two-week vacation in California, to fly there one way in a commercial airplane, to rent a 1995 Mercury Marquis in California, and then to drive the rental car back to Kansas.” Id. at 946 (brackets and internal quotation marks omitted). But, we said, “[tjhere is nothing criminal about traveling by car to view scenery.” Id. at 947. We reasoned that since the driver was unemployed and not expecting to return to work for six weeks, he had time for a leisurely vacation and he may have saved money for the trip. See id. Similarly, in United States v. Salzano, 158 F.3d 1107 (10th Cir. 1998), the trooper was suspicious that the driver would rent a motorhome to drive from California to Massachusetts to visit his father instead of making the more economical choice of flying or renting a smaller vehicle, especially because the driver was the only person in the vehicle: See id. at 1110-11, 1113 n.2. We disagreed, explaining that the driver said he planned to drive his father back to California and he “may have chosen to travel by motor home in order to save on lodging costs, to avoid the hassles of finding accommodations that accept large pets such as his dog, and to enable him and his father to visit relatively out-of-the-way locales where temporary lodging is not readily available.” Id. at 1112.

When we have said that reasonable suspicion is buttressed by simply the implausibility of purported travel plans (when there were no inconsistencies, internal contradictions, or vagueness), it has been because it begged credulity to think that the purported purpose of the trip could justify the travel plans, as when the suspect says that he had driven 1200 miles just to spend a day with relatives and was now driving back, see United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007); or had driven “across the country from New York to California for a one-and-a-half-day visit during which he purchased a not-unusual used vehicle for $4,000,” gave a California address for the registration, and was driving the car back, United States v. Alcaraz-Arellano, 441 F.3d 1252, 1260 (10th Cir. 2006); or is making a round-trip across the country just to deliver a dilapidated sofa to friends, see Kopp, 45 F.3d at 1453-54. As we have explained, however, Defendants’ travel plans were quite consistent with the trip’s purported purpose of rescuing a sister in danger. In our view, the fit between purpose and travel plans was at least as good as in Wood and Salzano.

This is a close case. But viewing the totality of the circumstances in light of our precedents, the particularized objective facts did not suffice to justify continuing the detention of Defendants. The evidence seized from the car must be suppressed.

B. Government’s Fallback Arguments

The government argues that even if there was not reasonable suspicion justifying the continued detention, the evidence should not be suppressed. It has separate arguments relating to Adrienne and Angela.

1. Adrienne

The government argues that the evidence is admissible against Adrienne because the discovery of the methamphetamine was not the fruit of her unlawful detention. It relies on our opinion in United States v. DeLuca, 269 F.3d 1128 (10th Cir. 2001). In that case the police seized drugs from the trunk of a car that had been unlawfully detained after ah initial lawful stop. See id. at 1130-31. Mr. DeLu-ca was in the car but was neither the driver nor the owner. See id. at 1130. We said that Mr. DeLuca ordinarily would not have standing to challenge the search of the car because he did not have a posses-sory or ownership interest in it, but that he could have the evidence suppressed if it had been found as the fruit of his own unlawful detention. See id. at 1133. To prevail, he needed to show that the drugs “would never have been found but for his, and only his, unlawful detention.” Id. We concluded, however, that there was not a sufficient factual nexus between Mr. De-Luca’s detention and the discovery of the drugs. See id. at 1135. In the circumstances of that case, the only possible way for him to show such a nexus was by providing evidence that he would have been permitted to leave the scene in the detained car if he had asked to do so. See id. at 1133. He made no such showing, so the evidence was admissible against him.

Not so with Adrienne. DeLuca’s requirements were satisfied here. When the drug dog arrived and sniffed around the car’s exterior, it jumped through the open front passenger window and alerted on Adrienne’s purse under the front seat. Adrienne then admitted having some marijuana in her purse. Krause seized the marijuana and proceeded to search the rest of the car, discovering the methamphetamine in the cooler on the backseat. Thus, it was the detention of Adrienne’s personal property, her purse, that led to the search of the car and the discovery of the methamphetamine. We hold that this was a sufficient nexus to give her standing to challenge the admission into evidence of the drugs.

2. Angela

The government’s argument regarding Angela would sustain the admission of the evidence against both Angela and Adrienne. It contends that even absent reasonable suspicion, the detention was lawful because there was probable cause to arrest Angela for driving while not in possession of her driver’s license. See K.S.A. § 8-244. We agree that if there was probable cause to arrest for a crime, it does not matter whether the officer subjectively detained the, person for that crime. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (constitutional reasonableness does not depend on actual motivations of individual officers involved). The problem for the government is that there was not probable cause to arrest Angela.

To begin with, we question whether the document Angela gave to Krause — the receipt from the California Department of Motor Vehicles — would not be a “driver’s license” under the Kansas statute. (It apparently sufficed for the rental company to let her take the car.) But even if it was not the requisite license, Krause did not have probable cause to arrest her when the detention was continued to await the drug dog. To be sure, the Kansas statute requires every licensee to “have his or her driver’s license in his or her immediate possession at all times when operating a motor vehicle.” K.S.A. § 8-244. It goes on to say, however, that “no person charged with violating this section shall be convicted if such person produces in court or the office of the arresting officer a driver’s license theretofore issued to such person and valid at the time of arrest.” Id. Upon learning from the dispatcher that Angela had a valid driver’s license in California, Krause had enough information to know that Angela could not be convicted for this offense. An officer does not have probable cause to arrest a person for a crime when he knows she could not be convicted. See Brown v. Fisher, 251 Fed.Appx. 527, 534 (10th Cir. 2007) (expressing doubt that officer could arrest driver for violation of this very statute when officer knew that driver was licensed); see also United States v. Edwards, 632 F.3d 633, 640 (10th Cir. 2001) (“If the police learn information that destroys their probable cause to arrest a defendant, the arrest may become illegal.”).

CONCLUSION

We REVERSE Defendants’ convictions and REMAND to the district court for proceedings consistent with this opinion.

      . The rental document states the return time as 11:30 a.m., rather than 5:30 p.m., on June 22, while also showing- that the anticipated charge would be for two full days at $61.80 per day. The government has not suggested any possible nefarious reason for the apparent discrepancy.

      . The district court also noted that Adrienne had a record of drug offenses. But Krause did not learn about her record before he detained Defendants to await the drug dog. As the government concedes, he therefore could not rely on her record to support reasonable suspicion. Also, we do not consider that Adrienne falsely stated that she and Angela were cousins or that Adrienne stated that she wanted some marijuana, bécause the government does not rely on these facts and neither did the district court.

      . Although the district court did not reach these arguments, the government preserved them by raising them below.


source: Caselaw Access Project

author: MATHESON, Circuit Judge.

license: Public Domain

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. TRICORE REFERENCE LABORATORIES, Respondent-Appellee. Equal Employment Advisory Council, Amicus Curiae.
    No. 16-2053
    United States Court of Appeals, Tenth Circuit.
    FILED February 27, 2017

      Jeremy D. Horowitz, Attorney (P. David Lopez, General Counsel, Jennifer S. Gold-stein, Associate General Counsel, and Margo Pave, Assistant General Counsel, with him on the briefs), Equal Employment Opportunity Commission, Washington, DC, appearing for Appellant.
    Geoffrey D. Rieder (Sarah K. Downey and Lexi W. Jones, with him on the brief), Foster, Rieder & Jackson, P.C., Albuquerque, New Mexico, appearing for Appellee.
    Rae T. Vann and Michael P. Bracken, NT Lakis, LLP, Washington, DC, filed a brief on behalf of amicus curiae Equal Employment Advisory Council in support of Appellee.
    Before MATHESON, PHILLIPS, and ' McHUGH, Circuit Judges.
   MATHESON, Circuit Judge.

. This appeal asks whether a district court abused its discretion in declining to enforce an administrative subpoena. The Equal Employment Opportunity Commission (“EEOC”) issued a subpoena to TriCore Reference Laboratories (“TriCore”) seeking information relating to an individual’s charge of disability and pregnancy discrimination. After TriCore refused to comply, the EEOC asked the New Mexico federal district court to enforce the subpoena. The court denied the request, and the EEOC now appeals. Although we’ disagree with some of the district court’s analysis, we cannot say it abused its discretion. Exercising jurisdiction under 28 U.S.C. § 1291, we therefore affirm.

I. BACKGROUND

We summarize the relevant statutes and then present the factual and procedural background for this appeal.

A. Legal Background

1. Title VII and the ADA

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits employers from discriminating based on sex, including pregnancy. 42 U.S.C. §§ 2000e-2(a)(l), 2000e(k). Employers must treat pregnant individuals “the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” Id. § 2000e(k).

The Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008, (“ADA”) prohibits employers from discriminating against employees on the basis of disability and requires employers to make “reasonable accommodations” to “qualified individual[s],” unless the accommodations impose an undue hardship on the employer. Id. §§ 12112(a), (b)(5)(A). A “qualified individual” under the ADA is someone who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8). A charge alleging discrimination may be filed either by the “person claiming to be aggrieved, or by a member of the [EEOC].” Id. § 2000e-5(b).

2. The EEOC’s Investigative Power

The EEOC is empowered to investigate charges of discrimination and enforce both Title VII and the ADA. Id. §§ 2000e-5(a)-(b), 12117(a); EEOC v. Waffle House, Inc., 534 U.S. 279, 285, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (“Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII ... when it is enforcing the ADA’s prohibitions .... ”).

When investigating charges of discrimination, the EEOC may obtain evidence that “relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). The EEOC also has authority to “investigate and act on a charge of a pattern.or practice of discrimination.” Id. § 2000e-6(e).

If an employer refuses to comply with the EEOC’s request for information, the EEOC may issue a subpoena compelling production. Id. § 2000e-9 (incorporating the provisions of 29 U.S.C. § 161, which provides the power to issue subpoenas to parties under investigation). If the employer does not respond to the subpoena, the EEOC may apply to a federal district court for an order compelling the employer to provide the subpoenaed information. 29 U.S.C. § 161(2).

B. Factual Background

1. Ms. Guadiana’s Requests for Accommodation and Her Termination

TriCore is a medical reference laboratory with multiple locations throughout New Mexico. In 2011, Kellie Guadiana began working at TriCore’s Albuquerque location as a phlebotomist — someone who draws blood.

Beginning in November 2011 and continuing into 2012, Ms. Guadiana requested accommodations to her work schedule and responsibilities due to her rheumatoid arthritis, which she asserted was exacerbated by her pregnancy. In support of her requests, Ms. Guadiana submitted notes from her doctors recommending she sit for at least 75 percent of her shift and avoid exposure to infectious diseases, a common risk faced by phlebotomists. ■

After reviewing her doctors’ notes and meeting with her several times, TriCore’s human resources department determined Ms. Guadiana could not safely perform the essential functions of her phlebotomist position. TriCore offered Ms. Guadiana the opportunity to apply to other positions within the company for which she was qualified and whose essential functions she could perform. On May 5, 2012, after Ms. Guadiana did not apply to a new position, TriCore terminated her employment.

2. Charge of Discrimination and the EEOC’s Investigation

On June 26, 2012, Ms. Guadiana filed a charge of discrimination with the EEOC alleging that TriCore had discriminated against her due to her disability (rheumatoid arthritis) and sex (pregnancy). In the charge, she stated:

I am an individual with a disability of which my employer was well aware of. Since becoming pregnant I have submitted requests for accommodation because the pregnancy affects the disability. Respondent terminated my employment without any interactive process on May 5, 2012. This is a violation of the American’s [sic] with Disabilities Act and Title VII of the Civil Rights Act of 1964, as amended to include the Pregnancy Act.

App. at 26.

In response, TriCore explained to the EEOC that it had provided Ms. Guadiana a reasonable accommodation by offering her the chance to apply for other positions within TriCore. As the EEOC explained in its application to enforce the subpoena, it viewed TriCore’s response as suggesting a violation of the ADA because it thought the ADA required TriCore to reassign Ms. Guadiana to a vacant position rather than merely provide her an opportunity to apply for another position. TriCore’s statement led the EEOC to suspect that TriCore had a “companywide policy and/or practice of refusing to provide reassignment as a reasonable accommodation to qualified individuals with disabilities.” Id. at 17.

The EEOC informed TriCore in a letter that it was expanding the scope of its investigation to include the “[failure to accommodate persons with disabilities and/or failure to accommodate women with disabilities (due to pregnancy).” Id. at 37. This additional information, according to the EEOC, was “like and related to the underlying charge” (i.e., Ms. Guadiana’s original charge of discrimination) or was “based on evidence uncovered during the EEOC’s investigation of the underlying charge.” Id. The EEOC cited its Compliance Manual for its authority to expand the investigation.

As part of its expanded investigation, the EEOC sent TriCore another letter requesting: (1) a complete list of TriCore employees, along with their personal identifying information, who had requested an accommodation for disability (“the disability request”); and (2) a complete list of TriCore employees who had been pregnant while employed at TriCore, including the employees’ personal identifying information and whether they sought or were granted any accommodations (“the pregnancy request”). Id. at 36. The EEOC sought that information for a four-year time frame.

TriCore refused to comply, contending the EEOC did not have an actionable claim of discrimination. On February 23, 2015, the EEOC submitted another letter seeking the same information but limited. to a three-year time frame. After TriCore continued to refuse to comply, the EEOC subpoenaed the information it had sought in its February 23, 2015 letter. TriCore petitioned the EEOC to revoke the subpoena, arguing it was unduly burdensome and a “fishing expedition.” Id. at 57, 59. The EEOC denied TriCore’s petition.

C. Procedural Background

After TriCore refused to comply with the EEOC’s subpoena, the EEOC submitted an application to the United States District Court for the District of New Mexico requesting an order to show cause why the subpoena should not be enforced. TriCore responded, arguing the information requested was not relevant to Ms. Guadiana’s charge.

The court viewed the question as a “close call,” id. at 107, but ultimately denied the EEOC’s application. It noted that the “EEOC’s real intent in requesting this [information was], in fact, difficult to pin down.” Id. at 103. To the extent the subpoena sought evidence to show TriCore had a pattern or practice of discrimination, the court held that Tenth Circuit case law does not support such a request. To the extent the subpoena sought evidence to compare Ms. Guadiana with other TriCore employees, the court held the pregnancy request would not provide evidence of relevant comparators.

The EEOC appeals the denial of its application to enforce the subpoena.

II. DISCUSSION

The sole question on appeal is whether the district court erred in declining to enforce the EEOC’s subpoena.

After discussing our standard of review and the legal standards applicable to both subpoena requests, we address the EEOC’s arguments that the district court erred in not enforcing: (1) the disability request, which the EEOC asserts is relevant to investigate whether TriCore had a policy of discrimination (i.e., pattern-or-practice evidence), and (2) the pregnancy request, which the EEOC asserts is relevant to investigate whether TriCore treated Ms. Guadiana less favorably than similarly situated employees (i.e., comparator evidence). Because the district court did not abuse its discretion in denying enforcement of either request, we affirm.

A. Standard of Review

We review a district court’s ruling on an EEOC subpoena application for abuse of discretion. EEOC v. Dillon Cos., 310 F.3d 1271, 1274 (10th Cir. 2002).

B. Legal Standards

As described above, the EEOC is empowered to investigate charges of discrimination, see 42 U.S.C. § 2000e-5(b), including to subpoena evidence that “relates to unlawful employment practices ... and is relevant to the charge under investigation.” Id. §§ 2000e-8(a), 2000e-9. The EEOC has the burden to demonstrate the relevancy of the information sought in the subpoena. Dillon, 310 F.3d at 1274.

In the district court, the EEOC relied on the Supreme Court’s statement in University of Pennsylvania v. EEOC, 493 U.S. 182, 194, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990), that the EEOC does not need to provide a “specific reason” for requesting the information. App. at 16. The EEOC argued that, because it need not present a “specific reason” for the requested information, the district court should defer to the EEOC’s assertion that the information was relevant “so long as it is not obviously wrong.” The EEOC does not advance this argument on appeal, but instead correctly states the holding of University of Pennsylvania as not requiring the EEOC to provide a “specific reason ... beyond a showing of relevance,” 493 U.S. at 194, 110 S.Ct. 577 (emphasis added and citation omitted); Aplt. Br. at 18. The EEOC therefore bore the burden in district court to show the relevancy of the subpoenaed information. See Dillon, 310 F.3d at 1274.

To show subpoenaed information is relevant, the EEOC must show it has a “realistic expectation rather than an idle hope that the information requested will advance its investigation.” EEOC v. Konica Minolta Bus. Sols. USA, Inc., 639 F.3d 366, 369 (7th Cir. 2011) (quotations omitted). It must also establish the link between the EEOC’s investigatory power and the charges of discrimination. EEOC v. Shell Oil Co., 466 U.S. 54, 65, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984).

The Supreme Court has explained that the EEOC’s burden to show relevancy “is not especially constraining,” but added that it is nonetheless a statutory command. Id. at 68,104 S.Ct. 1621; see also 42 U.S.C. § 2000e-8. When determining whether the EEOC has met its burden, courts must be careful not to read relevancy so broadly as to render the statutory requirement a “nullity.” Shell Oil, 466 U.S. at 69, 104 5.Ct. 1621.

C. Analysis

Based on the arguments and facts presented to it, the district court did not abuse its discretion in denying the EEOC’s application to enforce the subpoena.

We agree with the district court that the “EEOC’s real intent in requesting this [information was], in fact, difficult to pin down.” App. at 103. On appeal, the EEOC has attempted to clarify its intent, pointing to two purposes: (1) to determine whether TriCore had a pattern or practice of violating the ADA; and (2) to determine whether TriCore treated Ms. Guadiana less favorably than other comparable employees. Those purposes correspond to the two subpoena requests — with the disability request relating to the pattern-or-practice rationale and the pregnancy request relating to the comparator-evidence rationale.

1. Pattern-or-Practice Evidence

The EEOC argues the district court erred in denying the pattern-or-practice disability request. Based on relevant case authority, we conclude the district court did not abuse its discretion in denying this request.

a. Additional Legal Background

A plaintiff may state a claim of company-wide discrimination by showing that an employer has a pattern or practice of discrimination. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The claim requires proof that the employer had a regular practice of discrimination— “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Id.

In EEOC v. Burlington Northern Santa Fe Railroad, 669 F.3d 1154 (10th Cir. 2012), we addressed whether the EEOC could expand an investigation beyond individual charges to seek pattern-or-practice evidence. In that case, the EEOC issued a subpoena to Burlington Northern Santa Fe Railway Company (“BNSF”) stemming from its investigation of two individual charges of disability discrimination. Burlington Northern, 669 F.3d at 1155-56. The subpoena sought information not only about the individual charges, but also as to whether BNSF had a “pattern or practice” of discriminating against others. Id. at 1157. The district court sustained BNSF’s refusal to comply, holding that pattern-or-practice evidence of discrimination “was not relevant to the charges under investigation.” Id.

We affirmed, holding that, under § 2000e-8, the EEOC was entitled only to evidence “relevant to the charges under investigation” and that the two charges of disability did -not refer to “any other charging party, an additional charge number, or anything else that might indicate that an additional charge [was] at issue.” Id. Nor could the EEOC rely on its pre-subpoena letter notifying BNSF of its intent to broaden the investigation because the letter was not a “charge” and conveyed no statutory basis for expanding the investigation. Id.

We rejected the notion that, because BNSF’s alleged individual acts of discrimination “could be part of a pattern or practice of discrimination,” the EEOC was entitled to such evidence. Id. at 1157-58. We concluded that rationale would stretch the relevance requirement under § 2000e-8 so broadly as to “render [it] ... a nullity.” Id. at 1158.

Without any basis to “transcend the gap between the pattern and practice investigation and the private claims,” the EEOC. could not expand its investigation into whether BNSF had a pattern or practice of discrimination. Id.

b. Application

The EEOC seeks pattern-or-practice evidence through its request for information about other disabled employees who had requested accommodations at TriCore. Recall that the EEOC had sought this information following TriCore’s admission that it had allowed Ms. Guadiana to apply to vacant positions instead of reassigning her. Assuming the EEOC is correct that TriCore’s admission was tantamount to admitting an ADA violation, the district court nonetheless did not abuse its discretion in ruling that such an admission did not justify the EEOC’s expanded investigation into whether TriCore had a pattern or practice of violating other employees’ ADA rights.

Burlington Northern leads to this conclusion. As in Burlington Northern, the EEOC’s disability request referenced only the individual charge and did not mention “any other charging party, an additional charge ..., or anything else” that might suggest the EEOC was investigating an additional charge that TriCore had a pattern or practice of discrimination. See 669 F.3d at 1157. And, as in Burlington Northern, the EEOC cannot rely on its letter informing TriCore of the EEOC’s intent to expand its investigation. The letter is not a “charge” of discrimination, which is required for the EEOC to seek information about alleged discrimination under § 2000e-8. See id.; see also 42 U.S.C. § 2000e-8(a) (providing the EEOC power to investigate information that is “relevant to the charge under investigation”). Nor can the EEOC rely on its Compliance Manual, which is not a statutory basis to expand its investigation, Burlington Northern, 669 F.3d at 1157, and which is not entitled to special deference, see Villescas v. Abraham, 311 F.3d 1253, 1261 (10th Cir. 2002) (stating that the EEOC’s Compliance Manual “is not entitled to any special deference by our court”).

The EEOC quotes Burlington Northern to suggest it could expand an investigation if it “ascertains some violation warranting a broader investigation.” Aplt. Br. at 13 (quoting Burlington Northern, 669 F.3d at 1159). But this passage must be read in the context of the entire opinion, which makes clear that a single discriminatory act does not, by itself, warrant a broader pattern-or-practice investigation. See Burlington Northern, 669 F.3d at 1157-58 (“Any act of discrimination could be part of a pattern or practice of discrimination, but not every charge of discrimination warrants a pattern or practice investigation.”).

The EEOC has not alleged anything to suggest a pattern or practice of discrimination beyond TriCore’s failure to reassign Ms. Guadiana. In TriCore’s letter responding to Ms. Guadiana’s charge, where the alleged admission appears, TriCore referred only to Ms. Guadiana’s case and said nothing to suggest that its actions were based on a company policy or that it had a pattern or practice of acting similarly when responding to other disabled employees’ accommodation requests. Although- the EEOC’s disability request could possibly have uncovered pattern-or-practice evidence, the district court did not abuse its discretion in finding TriCore’s alleged violation of the ADA — without more — was insufficient to warrant the EEOC’s expanded investigation.

The EEOC argues TriCore offered Ms. Guadiana the option to apply to vacant positions only after much deliberation and consultation within the human resources department. But deliberation and consultation about a particular employee hardly points to a pattern or practice and therefore is not enough to “transcend the gap” between an individual charge of discrimination and a pattern-or-practice investigation. See id. at 1158 (noting that there was nothing to “transcend the gap between the pattern and practice investigation and the private claims” to justify the EEOC’s expanded investigation).

Although the EEOC’s request to TriCore is not as broad as the “incredibly broad request” for three years of nationwide data in Burlington Northern, 669 F.3d at 1157, the request here rests on no firmer foundation to justify the EEOC’s expanded investigation. The district court did not abuse its discretion in determining the EEOC had not satisfied its burden to justify its expanded investigation. We thus affirm the court’s decision not to enforce the subpoena’s disability request.

2. Comparator Evidence

The EEOC argues the district court erred in denying the comparator-evidence pregnancy request. Before considering the district court’s denial of this request, we address whether forfeiture or waiver limit the EEOC’s arguments on appeal, and we offer some additional legal background.

a. Forfeiture or Waiver of Argument

TriCore contends the EEOC did not argue in district court that its disability and pregnancy subpoena requests would provide relevant comparator evidence. Although the EEOC may have come close to forfeiting this argument, we cannot say that it did.

That said, we do find the EEOC has waived part of its comparator-evidence argument on appeal — the part relating to its disability request. In its opening brief on appeal, the EEOC limited its comparator-evidence argument to the pregnancy request. See Aplt. Br. at 18. The EEOC’s self-imposed limitation aligns with the district court’s ruling, which addressed the comparator-evidence rationale only as it pertained to the pregnancy request. See App. at 102-03. Thus, given the EEOC’s direction in its opening brief, we consider the comparator-evidence rationale only as to the pregnancy request.

b. Additional Legal Background

Ms. Guadiana’s disability and pregnancy discrimination charge is a disparate-treatment allegation. Disparate treatment means “that an employer intentionally treated a complainant less favorably than employees with the complainant’s qualifications but outside the complainant’s protected class.” Young v. United Parcel Serv., Inc., — U.S. —, 135 S.Ct. 1338, 1345, 191 L.Ed.2d 279 (2015) (quotations omitted). “[A] plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or' decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ].” Id.

Young provides guidance on comparator evidence. There, a plaintiff alleged a disparate-treatment claim based on her employer’s failure to accommodate her pregnancy-related lifting restriction. Id. at 1344. The Supreme Court clarified how evidence about other similarly situated employees could support the plaintiffs claim.

First, the plaintiff could state a prima facie claim for disparate treatment by showing, among other things, that her employer accommodated non-pregnant workers “similar in their ability or inability to work.” Id. at 1354. Second, evidence about other employees could show the employer’s proffered reason for denying the accommodation was pretextual because it had “accommodated a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers” with similar lifting restrictions. Id. at 1354-55.

c. Application

The EEOC’s pregnancy request seeks a list of TriCore employees who had been pregnant while employed at TriCore and information about whether the employees sought or were granted any accommodations. The district court determined the request was not relevant because non-pregnant employees — not pregnant employees — would be relevant comparators. The court also determined “[t]here would be no real comparative statistics to offer with other pregnant employees” because other pregnant employees who did not also have rheumatoid arthritis would not be similarly situated to Ms. Guadiana. App. at 105 n.9.

Unlike the district court, we think the pregnancy request may seek information that is potentially relevant to Ms. Guadia-na’s charge. For instance, evidence that other non-disabled, pregnant employees were granted accommodations may tend to prove that Ms. Guadiana was denied an accommodation on the basis of her disability. Also, as suggested in Young, possible evidence that TriCore accommodated non-pregnant employees, but not pregnant employees, might be relevant to show that a proffered reason for Ms. Guadiana’s termination was pretextual. Young, 135 S.Ct. at 1354-55.

The problem for the EEOC is that it did not present these relevance arguments in district court. It has thus failed to meet its burden of explaining how the pregnancy request would offer information relevant to Ms. Guadiana’s charge. Dillon, 310 F.3d at 1274.

Even if the EEOC had provided such an explanation, however, its request would nonetheless be overbroad because it seeks information having no apparent connection to Ms. Guadiana’s charge. Unlike the disability request that is limited to other disabled employees who sought an accommodation, the pregnancy request seeks information about pregnant employees who never sought an accommodation. In district court, the EEOC did not proffer any reason to support how such evidence would support Ms. Guadiana’s charge beyond general assertions of relevancy.

Given'the EEOC’s paltry explanation of how the pregnancy request was relevant, the overbreadth of the request, and the EEOC’s burden of showing the subpoena’s relevancy to the charge, Dillon, 310 F.3d at 1274, we cannot say the district court abused its discretion.

The EEOC raises two final arguments untethered to a particular subpoena request. Neither persuades us.

First, the EEOC argues the district court improperly considered the merits of the discrimination claims in its order declining to enforce the subpoena. We disagree. The court explicitly stated that the issue presented had “nothing to do with the merits of the case,” App. at 100, and nothing else in the court’s order suggests it acted contrary to that statement.

Second, the EEOC argues reversal is justified to the extent the district court considered privacy interests as limiting the EEOC’s subpoena power, which is contrary to the Supreme Court’s decision in University of Pennsylvania. Although the court expressed some concerns about the EEOC obtaining such “sensitive information on other employees,” App. at 107, it denied the application on relevance grounds, not on privacy grounds.

III. CONCLUSION

We affirm. Our decision should not preclude the EEOC from formulating a request for information to overcome the concerns discussed in this opinion.

      . See EEOC v. Dillon Cos., 310 F.3d 1271, 1272 (10th Cir. 2002) ("The district court’s order [denying the EEOC’s application to enforce an administrative subpoena] is a final judgment, and we have jurisdiction pursuant to 28 U.S.C. § 1291.” (citation omitted)).

      . The EEOC appears to have relied on Section 22.3 of the Compliance Manual, which provides:
      The scope of the investigation will routinely include all allegations in the charge which directly affect the charging party, including those class allegations which involve the same bases and issues as those affecting the charging party. Like and related class allegations involving bases/issues not directly affecting the charging party as well as like and related issues not alleged in the charge may be included within the scope of investigation at the discretion of TMC [Top Management Committee], if, during the investigation, evidence is uncovered pointing to possible violations.
      EEOC Compliance Manual, Sec. 22.3, § 803.

      . The EEOC also requested information about job listings to which Ms. Guadiana had applied after TriCore had determined she was unable to perform the essential functions of her job. TriCore did not object to that request.

      . As discussed below, the EEOC has limited its comparator-evidence arguments on appeal to the pregnancy request.

      . The Supreme Court recently granted certio-rari on the applicable standard of review. See McLane Co. v. EEOC, 137 S.Ct. 30 (2016). It will address:
      Whether a district court's decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should.be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.
      Petition for Writ of Certiorari, McLane, 137 S.Ct. 30 (2016). Until the Supreme Court instructs otherwise, we adhere to our circuit precedent and review for abuse of discretion. See EEOC v. Burlington N. Santa Fe R.R., 669 F.3d 1154, 1156 (10th Cir. 2012); Dillon, 310 F.3d at 1274. Our standard aligns with the weight of circuit authority applying deferential standards of review in this context. See FTC v. Boehringer Ingelheim Pharms., Inc., 778 F.3d 142, 148 (D.C. Cir. 2015); EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 760 (11th Cir. 2014); EEOC v. Kronos Inc., 620 F.3d 287, 295 (3d Cir. 2010); Fresenius Med. Care v. United States, 526 F.3d 372, 375 (8th Cir. 2008); NLRB v. Am. Med. Response, Inc., 438 F.3d 188, 193 (2d Cir. 2006); EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (7th Cir. 2002); United States v. Chevron U.S.A., Inc., 186 F.3d 644, 647 (5th Cir. 1999); Reich v. Nat’l Eng’g & Contracting Co., 13 F.3d 93, 98 (4th Cir. 1993).

      . The EEOC argues the district court did not address the disability request. We disagree because the court specifically referred to the EEOC’s disability request and found that it was irrelevant to Ms. Guadiana’s claim. See App. at 105 (”[T]he Court here finds that the identification about other pregnant and/or disabled TriCore employees has little use in the investigation of Ms. Guadiana’s individual discrimination claim.”).
      We also reject TriCore's argument that the pattern-or-practice rationale is a "new justification” on appeal, see Aplee. Br. at 22-23, as the EEOC clearly offered the pattern-or-practice justification for its request in district court, see App. at 16-17.

      . The EEOC's opening brief makes clear that it seeks pattern-or-practice evidence only through its first request about other disabled employees, not its second request about other pregnant employees. See, e.g., Aplt. Br. at 12 (heading referencing only the "First Subpoena Request”), id. at 16 (arguing the information sought in the first subpoena request would allow EEOC to determine how TriCore responded to disability-related accommodation requests).

      . The EEOC’s view that TriCore admitted to a violation arises from both the text of the ADA and our case law. See 42 U.S.C. § 12111 (9)(b) (defining a "reasonable accommodation” as including "reassignment to a vacant position”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165-66 (10th Cir. 1999) (en banc) (holding that employers can provide a reasonable accommodation by reassigning disabled employees to other positions, not by merely allowing them to compete equally with others for vacant positions).

      . For similar reasons, the EEOC misplaces reliance on the Supreme Court’s statement in General Telephone Co. of Northwest, Inc. v. EEOC, 446 U.S. 318, 331, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) that "[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.” Aplt. Br. at 13. General Telephone supports that the EEOC can expand its charges after uncovering violations during a reasonable investigation. But it does not support that the EEOC can expand its investigation beyond the "charge under investigation.” 42 U.S.C. § 2000e-8.

      . The EEOC relies on out-of-circuit cases stating that it may expand its investigation ”[i]f new facts come to light during an investigation,” EEOC v. McLane Co., 804 F.3d 1051, 1055 (9th Cir. 2015), cert. granted in part on other grounds, — U.S.—, 137 S.Ct. 30, 195 L.Ed.2d 902 (2016), or if a "broader picture of discrimination ... unfolds in the course of a reasonable investigation of a specific charge,” EEOC v. Cambridge Tile Mfg. Co.,
        590 F.2d 205, 206 (6th Cir. 1979). Those cases are inapposite because the EEOC has not pointed to any “new facts,” apart from the alleged admission, suggesting a "broader picture” of discrimination at TriCore. And Burlington Northern, which controls our disposition, holds that a single act is not enough to expand the EEOC’s investigation.

      . In its district court application to enforce the subpoena, the EEOC’s relevancy argument focused on the information’s potential to provide pattern-or-practice evidence. Again in its reply to TriCore’s opposition to the application, the EEOC focused mainly on the pattern-or-practice rationale.
      But the EEOC mentioned its comparator-evidence argument in its reply memorandum in district court. See, e.g., App. at 86, 89, 90 (arguing that determining how other employees were treated was relevant to the investigation into Ms. Guadiana's charge). Further, during the district court hearing on its subpoena application, the EEOC argued the subpoena sought information to uncover comparator evidence relevant to Ms. Guadia-na's individual charge. See, e.g., App. at 141 (arguing the subpoena supports "determining whether Ms. Guadiana was treated fairly, because she was treated as everyone else, or she was treated unfairly based on how others were treated”). These arguments were apparently enough to alert the district court to the EEOC’s comparator-evidence rationale because the court rejected the rationale as to the pregnancy request in its order denying the application.
      Thus, although the EEOC could have presented its argument more clearly and completely in district court, we do not find the comparator-evidence rationale was forfeited. See Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1150 (10th Cir. 2012) (“An issue is preserved for appeal if a party alerts the district court to the issue and seeks a ruling.” (quotations omitted)).

      . In its opening brief, the EEOC's passing references to information about disabled non-pregnant employees, Aplt. Br. at 2, 20, are insufficient to preserve the comparator-evidence rationale for the disability request. See Holmes v. Colo. Coal. for Homeless Long Tenn Disability Plan, 762 F.3d 1195, 1199 (10th Cir. 2014) (collecting cases declining to consider arguments on appeal that were inadequately briefed); see also Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (declining to consider "a few scattered statements” and "perfunctory” arguments that failed to frame and develop an issue sufficient to invoke appellate review). This is especially so given the brief's heading limiting the EEOC’s argument to pursue comparator evidence to its "second request,” i.e., its pregnancy request. Aplt. Br. at 18.

      . The EEOC’s attempts to argue in its reply on appeal and at oral argument that the comparator-evidence rationale related to both requests fail. The EEOC cannot overcome its self-imposed limitation on the comparator-evidence rationale in its opening brief. See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (declining to consider arguments not raised in an opening brief); Mondragon v. Thompson, 519 F.3d 1078, 1081 n.2 (10th Cir. 2008) (declining to consider arguments raised for the first time at oral argument).

      . We disagree with the court's statement that the only type of relevant comparators would be those employees who’, like Ms. Gua-diana, were both pregnant and suffered from rheumatoid arthritis. The Supreme Court has held that other employees need not be alike in all respects to serve as relevant comparators. See Young, 135 S.Ct. at 1354 ("Neither does [the McDonnell Douglas path] require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways.”).

      . In its application, the EEOC argued that TriCore's actions "require[d] EEOC to investigate whether TriCore treated pregnant employees less favorably than similarly-situated non-pregnant individuals.” App. at 17. In its reply to TriCore’s response to the application, the EEOC argued that “determining how other employees with disabilities and/or pregnancies were treated is relevant to its investigation.” App. at 90. Finally, at oral argument, the EEOC argued that the requests would help ”determin[e] whether Ms. Guadiana was treated fairly, because she was treated as everyone else, or she was treated unfairly based on how others were treated.” App. at 141. Those arguments are mere assertions of relevancy — not rationales as to why the comparator evidence would be relevant to investigating Ms. Guadiana’s charge.

      . For similar reasons, even if the EEOC had not waived the comparator-evidence rationale as to the disability request, it failed to meet its burden of showing relevancy of the request.

      . In its reply brief on appeal, the EEOC explains that information about pregnant women who never asked for accommodations may be relevant if their failure to do so stemmed from fear of retaliation or because they believed asking would be futile. But the EEOC forfeited that theory of relevancy by failing to raise it in district court and argue plain error on appeal, see Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128-29 (10th Cir. 2011), and it waived the argument by failing to include it in its opening brief, see Silverton Snowmobile Club, 433 F.3d at 783.

      . For these reasons, we need not address TriCore’s argument that the subpoena should not be enforced because it has a valid defense, which is a merits-based argument that is not a proper consideration at the administrative subpoena stage. See Dillon, 310 F.3d at 1277 (“We will not ... encourage or allow an employer to turn a summary subpoena-enforcement proceeding into a mini-trial by allowing it to interpose defenses that are more properly addressed at trial.”).


author: McKAY, Circuit Judge.

text:
    IN RE: Jared Trenton COWEN, Debtor. WD Equipment, LLC; Aaron Williams; Bert Dring, Appellants, v. Jared Trenton Cowen, Appellee.
    No. 15-1413
    United States Court of Appeals, Tenth Circuit.
    Filed February 27, 2017

      Alexander M. Musz of Cohen & Cohen, P.C., Denver, Colorado, for Defendants-Appellants.
    C. Todd Morse of Morse Law, LLC, Denver, Colorado, for Plaintiff-Appellee.
    Before KELLY, McKAY, and McHUGH, Circuit Judges.
   McKAY, Circuit Judge.

Plaintiff Jared Trent Cowen’s 2000 Pet-erbilt 379, a commercial truck, was in need of repair. To cover the cost, Mr. Cowen borrowed money from Defendant WD Equipment, which is owned and managed by Defendant Aaron Williams, in exchange for a lien on the truck and the promise of repayment. After the Peterbilt broke down again only a few weeks after the repairs, it was towed to a local repair company, which estimated that fixing the truck again would cost $9,000 — more than Mr. Cowen could afford.

Because his Peterbilt was in the shop, Mr. Cowen could not make installment payments to WD Equipment. So, in early August, 2013, Mr. Cowen began taking steps to refinance the loan; he met with his bank and with his parents in an attempt to secure refinancing, and he exchanged several text messages on August 1 and 2 with Mr. Williams about paying off the loan. During the course of that exchange, however, Mr. Williams gave Mr. Cowen several, contradictory responses as to how much Mr. Cowen would need to pay to settle the debt, and he accelerated the payoff date several times, before ultimately setting August 6 as the deadline.

Around the same time, Mr. Cowen defaulted on another loan secured by another one of his trucks, a 2006 Kenworth T600. This loan was owed to Defendant Bert Dring, the father-in-law of Mr. Williams, who held a purchase-money security interest in the truck. On July 29, Mr. Dring lured Mr. Cowen under false pretenses to his place of business to repossess the Ken-worth. Mr. Dring asked Mr. Cowen, who had brought along his young son, to leave the keys in the ignition, engine running, and to step out of the truck. As Mr. Cowen exited the vehicle, Mr. Dring jumped in, grabbed the keys, and declared the truck “repossessed.” When Mr. Cowen asked what was going on, Mr. Dring told him to take his son and leave — immediately. A group of five men gathered around Mr. Dring while he brandished a can of mace above his head and threatened to use it if Mr. Cowen did not leave. Mr. Cowen pushed his young son behind him to protect him, and the two left the lot on foot. Three days -later, Mr. Cowen received a letter from Mr. Dring giving him ten days to pay off the Kenworth.

Instead, Mr. Cowen filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code on August 6, which was the deadline for paying off the Peterbilt, and which was within the ten-day cure period for the Kenworth. He notified Defendants of the filing and requested the immediate return of both trucks. But Defendants refused: Mr. Williams claimed that he had changed the title to his name on August 1. (At no time during the text message exchanges on August 1 and 2 did Mr. Williams ever inform Mr. Cowen of the title change.) And Mr. Dring claimed that he sold the Kenworth sometime prior to the bankruptcy filing. (Initially, he claimed he had sold the Kenworth to an unknown Mexican national for cash in an undocumented sale just days before Mr. Cowen filed for bankruptcy. Later, Mr. Dring produced bill of sale, purporting to show that he sold the Kenworth to a Mr. Garcia for $16,000 in cash on August 4.)

About a month later, Mr. Cowen moved the bankruptcy court for orders to show cause why Defendants should not be held in contempt for willful violations of the automatic stay. The bankruptcy court granted the motions and ordered Defendants to “immediately turn ever” the trucks to Mr. Cowen; “[cjontinuing failure to turn over the Truck[s],” the bankruptcy court warned, “may result in the imposition of monetary damages against the Creditors for willful violation of the automatic stay.” Order on Motion for Order to Show Cause and Order to Turnover Property of the Estate, Case No. 13-23461 (Bankr. Colo. Sept. 5, 2013).

When Defendants did not comply with the bankruptcy court’s turnover order, Mr. Cowen filed an adversary proceeding for violations of the automatic stay. A few months later, the bankruptcy court dismissed the underlying bankruptcy case because, without the trucks, Mr. Cowen had no regular income, which rendered him ineligible for Chapter 13 relief. However, the bankruptcy court expressly retained jurisdiction over the adversary proceeding.

During the adversary proceeding, Defendants again asserted that Mr. Cowen’s rights in the trucks had been properly terminated by Defendants before the bankruptcy petition was filed, and so they could not have violated the automatic stay. But the bankruptcy court “did not find the Defendants’ testimony that they had transferred title before the petition date to be credible.” (App. Vol. II at 248.) It went on to “find[ ] that they manufactured the paperwork ... after the bankruptcy filing.” (Id.) “Defendants likely forged documents and gave perjured testimony” and “coached their witnesses on what to testify to during [] breaks” in an “attempt to convince the Court that [Mr. Cowen’s] rights in the Trucks had been terminated prebankruptcy.” (Id. at 258.) Additionally, the bankruptcy court held that “even if they had taken the actions they claim to have taken before the bankruptcy filing,” (id. at 269), such actions contravened Colorado law, and therefore did not effectively terminate Mr. Cowen’s “ownership interest in the Trucks,” (id. at 252). And so, the bankruptcy court concluded, “[flailing to return the Trucks violated § 362(a)(3) of the Bankruptcy Code,” (id.), and it imposed actual and punitive damages under 11 U.S.C. § 362(k)(l).

Defendants timely appealed this decision to the district court, which reversed on the calculation of damages but otherwise affirmed the bankruptcy court’s order. Defendants then appealed to this Court, arguing, among other things, that the bankruptcy court exceeded its jurisdiction, that it lacked constitutional authority to enter a final judgment in this adversary proceeding, and that the bankruptcy court misinterpreted § 362 — the automatic stay provision. “[TJhough this appeal comes to us from the district court, we review a bankruptcy court’s decisions independently, examining legal determinations de novo and factual findings for clear error.” FB Acquisition Prop. I, LLC v. Gentry (In re Gentry), 807 F.3d 1222, 1225 (10th Cir. 2015). “In doing so, we treat the bankruptcy appellate panel or district court as a subordinate appellate tribunal whose rulings are not entitled to any deference (although they may certainly be persuasive).” Nelson v. Long (In re Long), 843 F.3d 871, 873 (10th Cir. 2016) (internal quotation marks omitted). “A bankruptcy court’s legal conclusions are reviewed de novo, while its factual findings are reviewed for clear error.” Id.

We address first the bankruptcy court’s jurisdiction. “The jurisdiction of the bankruptcy courts, like that of other federal courts, is grounded in, and limited by, statute.” Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). By statute, bankruptcy courts have jurisdiction to “enter final judgments in ‘all core proceedings arising under title 11, or arising in á case under title 11.’ ” Stern v. Marshall, 564 U.S. 462, 474, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011) (quoting 28 U.S.C. § 157(b)(1)). As we have explained, a claim for damages under § 362(k)(l) for a violation of an automatic stay is a core proceeding. Johnson v. Smith (In re Johnson), 575 F.3d 1079, 1083 (10th Cir. 2009) (holding that a “§ 362(k)(l) proceeding ... is a core proceeding because it derives directly from the Bankruptcy Code and can be brought only in the context of a bankruptcy case.” (internal quotation marks and brackets omitted)). Accordingly, bankruptcy courts can exercise jurisdiction and adjudicate such claims to final judgment. Id.

Defendants contend, however, that the bankruptcy court erred in retaining jurisdiction over the § 362(k)(l) adversary proceeding after the underlying bankruptcy was dismissed. But this argument is foreclosed by Johnson. There it was argued that “dismissal of the underlying Chapter 13 case divested the bankruptcy court of jurisdiction over the § 362(k)(l) proceeding.” Id. at 1081. We disagreed: “Nothing in the Bankruptcy Code mandates dismissal of the § 362(k)(l) proceeding when the bankruptcy case is closed,” and “[n]o part of § 362(k)(l) suggests that a claim exists only while the bankruptcy case remains pending.” Id. at 1084. We explained that “[rjequiring the dismissal of a § 362(k)(l) proceeding simply because the underlying bankruptcy case has been dismissed would not make sense. A court must have the power to compensate victims of violations of the automatic stay and punish the violators, even after the conclusion of the underlying bankruptcy case.”Id. at 1083.

Defendants’ attempts to distinguish Johnson are unavailing. They argue that, unlike in Johnson, this § 362(k)(l) adversary proceeding is “non-core” because the bankruptcy court “had to determine the disputed possessory interests in [the] assets pursuant to state law.” (Appellant’s Br. at 36). But “[a]- determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law.” 28 U.S.C. § 157(b)(3).

Defendants also seem to suggest that Johnson is distinguishable because there the bankruptcy court decided the automatic stay violation first, which was appealed (which, in turn, resulted in a remand), and then dismissed the underlying bankruptcy while the automatic stay violation appeal was pending. {See Appellant’s Br. at 34 (citing Johnson, 575 F.3d at 1081, where we summarized the procedural history of the case)). But Defendants do not argue, much less persuade, why this discrepancy undermines the unequivocal holding of Johnson: “a § 362(k)(l) proceeding, remains viable after termination of the underlying bankruptcy case.” Johnson, 575 F.3d at 1084.

Defendants also contend that the bankruptcy court lacked constitutional authority under Stem v. Marshall to enter final judgment. But Stem dealt with claims that did not “stem[ ] from the bankruptcy itself’ and would not “necessarily be resolved in the claims allowance process.” Stern, 564 U.S. at 499, 131 S.Ct. 2594. A claim under § 362(k)(l) for an automatic stay violation, by contrast, “derives directly from the Bankruptcy Code and can be brought only in the context of a bankruptcy case.” Johnson, 575 F.3d at 1083. Indeed, it necessarily “stems from the bankruptcy itself.” Stern, 564 U.S. at 499, 131 S.Ct. 2594.

A claim for violating an automatic stay is not the “stuff of the traditional actions at common law tried by the courts at Westminster in 1789.” Stern, 564 U.S. at 484, 131 S.Ct. 2594 (quoting N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (Rehnquist, J., concurring in the judgment)). To the contrary, “we are concerned here with the adjudication of a right created by federal statute, rather than a private, state-created right, like that of concern in Marathon.” Mountain America Credit Union v. Skinner (In re Skinner), 917 F.2d 444, 449 (10th Cir. 1990) (holding that a bankruptcy court did not exceed its constitutional authority when it entered sanctions pursuant to 11 U.S.C. § 362(h), the precursor of § 362(k), for violating an automatic stay). And so, the bankruptcy court did not exceed its constitutional authority by entering final judgment in the § 362(k)(l) adversary proceeding.

To the merits. Mr. Cowen filed the adversary proceeding against Defendants for violating “[sjection 362, which establishes the automatic stay.” Johnson, 575 F.3d at 1083. ‘When a debtor files for bankruptcy, section 362 prevents creditors from taking further action against him except through the bankruptcy court.” Id. (quoting Price v. Rochford, 947 F.2d 829, 831 (7th Cir. 1991)). To accomplish this, § 362 provides in relevant part that a bankruptcy petition “operates as a stay ... of ... any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3).

Below, the bankruptcy court held that “[t]he failure to return the Trucks to [Mr. Cowen] post-petition constituted a continuing violation of the stay”; specifically, Defendants “violated § 362(a)(3) of the Bankruptcy Code.” (App. Vol. II at 252.) As the district court noted, the bankruptcy court applied what appears to be the majority rule: “that the act of passively holding onto an asset constitutes ‘exercising control’ oyer it, and such action violates section 362(a)(3) of the Bankruptcy Code.” Thompson v. Gen. Motors Acceptance Corp., 566 F.3d 699, 703 (7th Cir. 2009); see also Weber v. SEFCU (In re Weber), 719 F.3d 72, 81 (2d Cir. 2013), California Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1151 (9th Cir. 1996), Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir. 1989), Unified People’s Fed. Credit Union v. Yates (In re Yates), 332 B.R. 1, 4 (10th Cir. BAP 2005); but see United States v. Inslaw, 932 F.2d 1467, 1474 (D.C. Cir. 1991). Defendants disagree with this interpretation of § 362(a)(3), and we agree with Defendants.

The majority rule seems driven more by “practical considerations,” Weber, 719 F.3d at 80, and “policy considerations,” Thompson, 566 F.3d at 703, than a faithful adherence to the text. But “[o]ur interpretation of the Bankruptcy Code starts where all such inquiries must begin: with the language of the statute itself.” Ransom v. FIA Card Servs., N.A, 562 U.S. 61, 69, 131 S.Ct. 716, 178 L.Ed.2d 603 (2011) (internal quotation marks omitted). In this case, it is also where the inquiry ends, “for where, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” Frieouf v. United States (In re Frieouf), 938 F.2d 1099, 1102-03 (10th Cir. 1991).

Here again is § 362(a)(3), in relevant part: a bankruptcy petition “operates as a stay ... of ... any act to obtain’ possession of property of the estate or of property from the estate or to exercise control over property of the estate.” Breaking down the sentence, “any act” is the prepo-sitive modifier of both infinitive phrases. In other words, § 362(a)(3) prohibits “any act to obtain possession of property” or “any act to exercise control, over property.” “Act”, in turn, commonly means to “take action” or “do something.” New Oxford American Dictionary 15 (3d ed. 2010) (primary definition of “act”). This section, then, stays entities from doing something to obtain possession of or to exercise control over the estate’s property.’ It does not cover “the act of passively holding onto an asset,” Thompson, 566 F.3d at 703, nor does it impose an affirmative obligation to turnover property to the estate. “The automatic stay, as its name suggests, serves as a restraint only on acts to gain possession or control over property of the estate.” Inslaw, 932 F.2d at 1474. Stay means stay, not go.

The majority rule reads too much into the section’s legislative history. Prior to the Bankruptcy Amendments and Federal Judgeship Act of 1984, “the Code’s stay provision only prohibited any act to obtain possession of property belonging to a bankruptcy estate.” Thompson, 566 F.3d at 702. The 1984 Amendments “broadened the already sweeping provisions of the automatic stay even further to prohibit expressly not only ‘acts to obtain possession’ of property of the estate, but also ‘any act ... to exercise control over the property of the estate.’” Weber, 719 F.3d at 80 (quoting Pub. L. No. 98-353, 98 Stat. 333, 371). Notwithstanding that “Congress did not provide an explanation of that amendment,” the majority reads from “the mere fact that Congress expanded the provision to prohibit conduct above and beyond obtaining possession of an asset,” that Congress “intended to prevent creditors from retaining property of the debtor.” Weber, 719 F.3d at 80. “This significant textual enlargement is consonant with [the majority rule].” Id.

But Congress does not “hide elephants in mouseholes.” Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). The amendments are equally “consonant” with another, less sweeping conclusion. “Since an act designed to change control of property could be tantamount to obtaining possession and have the same effect, it appears that § 362(a)(3) was merely tightened to obtain full protection.” In re Bernstein, 252 B.R. 846, 848 (Bankr. D.D.C. 2000). “[U]se of the word ‘control’ in the 1984 amendment to § 362(a)(3) sug-' gests that the drafters meant to distinguish the newly prohibited ‘control’ from the already-prohibited acts to obtain ‘possession,’ in order to reach nonpossessory conduct that would nonetheless interfere with the estate’s authority over a particular’ property interest.” Ralph Brubaker, Turnover, Adequate Protection, and the Automatic Stay (Part II): Who is “Exer- eising Control” Over What?, 33 No. 9 Bankruptcy Law Letter NL 1 (September 2013).

It’s not hard to come up with examples of such “acts” that “exercise control” over, but do not “obtain possession of,” the estate’s property, e.g., a creditor in possession who improperly sells property belonging to the estate. Similarly, “intangible property rights that belong to the estate, such as contract rights or causes of action are incapable of real possession unless they are reified. Yet, (a)(3) preserves and guards against interference with them by staying any act to exercise control over estate property.” In re Hall, 502 B.R. 650, 665 (Bankr. D.D.C. 2014). If Congress had meant to add an affirmative obligation — to the automatic stay provision no less, as opposed to the turnover provision — to turn over property belonging to the estate, it would have done so explicitly. The majority rule finds no support in the text or its legislative history.

In the end,' the best, argument for the majority rule is that § 362 should be read in conjunction with another part of the bankruptcy code — § 542, the turnover provision, which provides that any entity “in possession, custody, or control, during the case of property that the trustee may use, sell, or lease under section 363 of this title ... shall deliver” such property to the trustee “unless such property is of inconsequential value or benefit to the estate.” 11 U.S.C. § 542 (emphasis added). According to the majority, “Section 542 requires that any entity in possession of property of the estate deliver it to the trustees, without condition or any further action: the provision is self-executing.” Weber, 719 F.3d at 79 (internal quotation marks omitted); but see Hall, 502 B.R. at 654-665. Reading these two sections together ostensibly furthers “[t]he primary goal of ... bankruptcy,” Thompson, 566 F.3d at 702, i.e. “to group all of the debtor’s property together,” id. because “[a]s a practical matter, there is little difference between a creditor who obtains property of the estate before bankruptcy is filed, or after bankruptcy is filed,” Yates, 332 B.R. at 5. “The ultimate result is the same — the estate will be deprived of possession of that property,” which is “precisely the result § 362 seeks to avoid.” Id. And so, the argument goes, “§ 542 provides the right to the return of estate property, while [§ 362] provides the remedy for the failure to do so.” Abrams v. Sw. Leasing & Rental, Inc. (In re Abrams), 127 B.R. 239, 242-43 (9th Cir. BAP 1991).

But this policy argument, too, is simply not supported by the statute’s text or its legislative history. Even if the turnover provision were “self-executing” (which we do not decide), there is still no textual link between § 542 and § 362. And, contrary to one argument for the majority rule, see id. at 243, bankruptcy courts do not need § 362 to enforce the turnover of property to the estate. Bankruptcy courts have- “broad equitable powers” under 11 U.S.C. § 105(a), see Scrivner v. Mashburn (In re Scrivner), 535 F.3d 1258, 1263 (10th Cir. 2008), and can provide equitable relief as “necessary or appropriate to carry out the provisions of’ § 542(a), see id. (citing 11 U.S.C. § 105(a)). Moreover, § 105(a) “grants bankruptcy courts the power to sanction conduct abusive of the judicial process.” Id. (internal brackets and quotation marks omitted); see also Skinner, 917 F.2d at 447 (holding, that “section 105(a) empowers bankruptcy courts to enter civil contempt orders,” including for monetary damages). And so, adhering to the text of the statute, as we must, we adopt the minority rule: only affirmative acts to gain possession of, or to exercise control over, property of the estate violate § 362(a)(3).

Today’s decision does not absolve Defendants of liability, however. On remand, the damages award may be sustainable under the proper application of § 362(a)(3) and under § 105(a), which “grants bankruptcy courts the power to sanction conduct abusive of the judicial process.” Scrivner, 535 F.3d at 1263. The bankruptcy court here “found the Defendants’ attitudes while testifying to be contemptuous of the bankruptcy process, the Debtor, and the Court.” (App. Vol. II at 258). It also found that Defendants “manufactured the paperwork ... after the bankruptcy filing.” (Id. at 248.). And it noted that Defendants “likely forged documents and gave perjured testimony,” and “coached their witnesses on what to testify to during [ ] breaks.” (Id. at 258). This was all done in an “attempt to convince the Court that [Mr. Cowen’s] rights in the Trucks had been terminated prebankrupt-cy.” (Id.) These would qualify as post-petition acts to exercise control over the debtor’s property in violation of the automatic stay.

We REVERSE the judgement of the district court and REMAND to the district court, which may remand the case to the bankruptcy court, for further proceedings consistent with this opinion. We GRANT the renewed motion to seal volume five of the appendix.


author: MORITZ, Circuit Judge.

text:
    Marla VALLEJO, Plaintiff-Appellee, v. Nancy A. BERRYHILL , Acting Commissioner of Social Security, Defendant-Appellant.
    No. 15-1283
    United States Court of Appeals, Tenth Circuit.
    Filed February 28, 2017

      Submitted on the briefs:

    Benjamin C. Mizer, Principal Deputy Assistant Attorney General, John F. Walsh, United States Attorney, Alisa B. Klein, Appellate Attorney, Civil Division, and Gerard Sinzdak, Appellate Attorney, Civil Division, U.S. Department of Justice, Washington, D.C., for Defendant-Appellant.
    Michael W. Seckar, Michael W. Seckar, P.C., Pueblo, Colorado, for Plaintiff-Appel-lee.
    Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.

       Nancy A. Berryhill became the Acting Commissioner of the United States'Social Security Administration on January 20, 2017, and is substituted for Carolyn W. Colvin as the Defendant-Appellant in this case. See Fed. R. App. P. 43(c)(2).

       After examining the briefs and appellate record, this panel has determined unanimously that oral argument wouldn't materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

   MORITZ, Circuit Judge.

The Acting Commissioner appeals the district court’s order reversing her decision to deny Marla Vallejo’s application for supplemental security income benefits and remanding the case for further administrative proceedings. Because the district court’s order rests on a misapplication of controlling law, we reverse and remand to the district court for further proceedings.

Background

Vallejo applied for supplemental security income benefits in April 2010, alleging she had been disabled since November 2009. After the agency administratively denied her claim, she received a hearing with an administrative law judge (ALJ). The ALJ evaluated Vallejo’s testimony and the medical opinions of a consulting physician, a state-agency physician, an examining psychologist, and a state-agency psychologist. Although the record contained no medical opinions from treating physicians, Vallejo informed the ALJ at the hearing that her treating physician, Dr. Jerald Ratner, was preparing a mental health opinion. The ALJ agreed to consider the opinion if she received it before issuing her decision. One week later, the ALJ issued a decision adverse to Vallejo.

The next day, Ratner completed his opinion, titled “Residual Functional Capacity Evaluation (Mental).” App. 206. Ratner opined that Vallejo had bipolar disorder, and he rated her level of impairment as “extreme” in 13 of 20 functional areas. Id. at 206-07. He further advised that Vallejo wouldn’t be able to “work at any job 8 hours per day, 5 days per week,” because her impairment would cause her to be “off task” one hundred percent of the time. Id. at 208.

Vallejo requested that the Appeals Council review the ALJ’s decision and submitted Ratner’s opinion with her request. The Appeals Council denied review, stating that it “considered” Ratner’s opinion, along with other additional evidence, but found that evidence didn’t “provide a basis for changing the [ALJ’s] decision.” Id. at 51-52. The Appeals Council’s denial of Vallejo’s request for review rendered the ALJ’s decision the Commissioner’s final decision. See 20 C.F.R. § 416.1481.

Vallejo then sought judicial review of the Commissioner’s final decision. Ruling from the bench, the district court found one of Vallejo’s five arguments dispositive: that the Appeals Council erred “in not properly articulating its assessment” of Ratner’s opinion in denying Vallejo’s request for review. App. 215. Based on Ratner’s status as a treating physician, the court reasoned that the Appeals Council was required to “follow the same rules” as the ALJ by evaluating Ratner’s opinion and either assigning it controlling weight or articulating reasons for assigning it a lesser weight. Id. at 217. See 20 C.F.R. § 416.927(e) (requiring agency factfinder to evaluate all medical opinions and give controlling weight to opinions from treating sources or explain why lesser weight is given).

Because neither the ALJ nor the Appeals Council expressly evaluated Ratner’s opinion, the district court reversed the Commissioner’s decision and remanded for the Appeals Council to either (1) determine what weight, if any, to give Ratner’s opinion or (2) remand to an ALJ with directions to make that determination.

Discussion

I

Preliminarily, we must consider whether we have jurisdiction to consider the Commissioner’s appeal. Because the district court remanded the case for further administrative proceedings, we directed the Commissioner to clarify whether the remand was a sentence-four remand or sentence-six remand. See Pettyjohn v. Shalala, 23 F.3d 1572, 1573-74 (10th Cir. 1994) (noting that district court may remand case to Commissioner under either sentence four or sentence six of 42 U.S.C. § 405(g), and explaining that “whether a final judgment has been entered depends on what kind of remand is made”).

Under sentence four, “[t]he court may remand the case after passing on its merits and issuing a judgment affirming, reversing, or modifying the [Commissioner’s] decision.” Nguyen v. Shalala, 43 F.3d 1400, 1403 (10th Cir. 1994). Sentence six authorizes remand only when (1) the Commissioner requests a remand for good cause before filing an answer, or (2) “new and material evidence comes to light, and there is good cause for failing to incorporate such evidence in the earlier [administrative] proceeding.” Id.

Sentence-four remands are final and appealable because the court rules on the merits of the Commissioner’s decision and issues a final judgment before remanding the case. Sullivan v. Finkelstein, 496 U.S. 617, 629, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990). Sentence-six remands are interlocutory and non-appealable because the district court retains jurisdiction and remands solely for consideration of new evidence that wasn’t before the Commissioner, and' the parties must then return to court to obtain a final judgment. Melkonyan v. Sullivan, 501 U.S. 89, 102, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991).

For two reasons, we agree with the Commissioner that the district court ordered a sentence-four remand here. First, this case presents neither of the circumstances required for a sentence-six remand: the Commissioner didn’t request the remand, and Vallejo presented no evidence to the district court that wasn’t before the Commissioner. True; the Appeals Council didn’t expressly evaluate Ratner’s opinion. But it did incorporate the opinion into the agency record.

Second, the remand in this case bears the hallmarks of a sentence-four remand: the court reversed the Commissioner’s final decision, immediately entered judgment against the Commissioner, and later granted attorney’s fees to Vallejo. See Shalala v. Schaefer, 509 U.S. 292, 297, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) (noting that “[i]mmediate entry of judgment ... is in fact the principal feature that distinguishes a sentence-four remand from a sentence-six remand”). Because the district court issued a sentence-four remand, we exercise jurisdiction and proceed to the merits.

II

We review a district court’s ruling reversing the Commissioner’s final decision de novo, applying the same standards as the district court. Thus, we ask whether the Commissioner applied the correct legal standards and whether her factual findings are supported by substantial evidence. Nguyen, 43 F.3d at 1402.

Here, the district court reversed the Commissioner’s decision based solely on the court’s determination that the Appeals Council failed to apply the correct legal standards. Specifically, the district court concluded that the Appeals Council erred in denying Vallejo’s request for review without first expressly evaluating Ratner’s medical opinion.

The Commissioner disagrees. According to the Commissioner, the district court’s decision to remand this case based on the Appeals Council’s failure to explain its assessment of Ratner’s opinion conflicts with our decision in Martinez v. Barnhart, 444 F.3d 1201 (10th Cir. 2006), and rests on a misunderstanding of the relevant regulations.

In Martinez, as here, the Appeals Council denied review of an ALJ’s determination that the claimant wasn’t entitled to benefits. After the district court affirmed the ALJ’s decision, the claimant appealed. The claimant argued, in part, that the Appeals Council erred in “fail[ing] to articulate an analysis showing the opinions of [the claimant’s] treating physician, Dr. Oli-vares, were not supported by his treatment records.” Id. at 1204. In rejecting that argument, we recognized that “an express analysis of the Appeals Council’s determination would [be] helpful for purposes of judicial review.” ■ Id. at 1207-08. But we concluded that “nothing in the statutes or regulations ... require[s] such an analysis where new evidence is submitted and the Appeals Council denies review.” Id. at 1208. Rather, the Appeals Council is required only to “consider” the new evidence — and a conclusory statement that it has done so is sufficient. Id. at 1207.

Vallejo acknowledges Martinez’ holding but urges us to apply an exception to Martinez when, as here, (1) a claimant submits a treating-physician’s opinion to the Appeals Council that (2) wasn’t provided to the ALJ, that (3) undermines the ALJ’s decision, and that (4) is the only treating-physician’s opinion in the administrative record. Vallejo also suggests than an exception to Martinez would resolve the “tension,” Aplee. Br. 17, between two principles of social security law: (1) an agency fact-finder must “give good reasons” for its allocation of weight to the opinion of a treating physician, 20 C.F.R. § 416.927(c)(2); yet (2) when a claimant submits new evidence to the Appeals Council for review, and the Council denies the request for review, it’s not required to “specifically' discuss the effect of [the evidence] ... in light of the record as a whole,” Martinez, 444 F.3d at 1207.

. While these two principles may well be in tension, that tension doesn’t permit us to ignore the relevant regulations governing administrative review, which appear to specifically anticipate the outcome in this case.

Most notably, the regulation Vallejo relies upon, by its very terms, doesn’t apply to the Appeals Council wh.en it denies review. Instead, it requires the agency fact-finder- — ordinarily the ALJ — to thoroughly evaluate treating-physician opinions and “give good reasons” for the weight given to each when issuing a “notice of determination or decision.” § 416.927(c)(2). But it does not require the Appeals Council to do so when denying review of the ALJ’s decision. Instead, it requires the Appeals Council to evaluate treating-physician opinions in the same manner as the ALJ only when the Appeals Council grants review and “makes a decision.” § 416.927(e)(3) (“When the Appeals Council makes a decision, it will follow the same rules for considering opinion evidence as administrative law judges follow.”); see also § 416.1481 (“The Appeals Council may deny a party’s request for review or it may decide to review a case and make a decision”) (emphases added). Here, the Appeals Council did not “make[ ] a decision.” § 416.927(e)(3). Instead, it simply denied review. Thus, it was not required to follow the same rules for considering opinion evidence as the ALJ followed, and the district court erred in concluding otherwise and in reversing and remanding on that basis.

Finally, we reject Vallejo’s alternative argument that the district court’s “ultimate decision to remand the case to the Commissioner was the appropriate remedy” even if the district court erred in concluding that the Appeals Council had a duty to explain its assessment of Ratner’s opinion. Aplee. Br. 22. Vallejo argues the district court “determined that a remand for a fact-finder’s weighing of the new evidence was necessary” because without the' fact-finder’s evaluation of Ratner’s opinion, the court simply couldn’t determine whether substantial evidence supports the Commissioner’s decision. Id. at 23.

But Martinez also precludes this argument. We recognized in Martinez that an express analysis from the Appeals Council would be helpful to judicial review. 444 F.3d at 1207-08. But, as we said there— and reiterate here — “nothing in the statutes or regulations” requires the Appeals Council to provide that analysis. Id. at 1208. Remanding the case to the Appeals Council for further fact-finding when the Appeals Council did all it was required to do under the regulations wasn’t an option for the district court. The district court’s only option was to conduct a substantial-evidence review by assessing the entire agency record, including Ratner’s never-before assessed opinion. See O’Dell, 44 F.3d at 858-59 (noting that when claimant submits new evidence to Appeals Council and Appeals Council accepts it, that evidence becomes part of the record to be considered by court in performing substantial-evidence review).

Consequently, we reverse the district court’s order reversing the Commissioner’s final decision and remanding to the Appeals Council for an express evaluation of Ratner’s opinion. We remand to the district court with directions to address Vallejo’s remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record — which now includes Ratner’s opinion — supports the Commissioner’s final decision.

      . When a claimant submits new evidence to the Appeals Council and the Council accepts that evidence, it becomes part of the administrative record for the district court to consider in performing its substantial-evidence review. O’Dell v. Shalala, 44 F.3d 855, 858-59 (10th Cir. 1994).

      . Our cases have clarified this "good reasons” requirement: The explanation “must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that weight.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting Social Security Ruling 96-2p, 1996 WL 374188 (July 2, 1996), at *5).

      . In support for her argument to the contrary, Vallejo relies on Harper v. Astrue, 428 Fed.Appx. 823 (10th Cir. 2011) (unpublished). In Harper, we remanded for further proceedings based, in part, on what we characterized as the Appeals Council’s failure to "properly evaluate the opinion of [the claimant’s] treating physician.” 428 Fed.Appx. at 826. But in addition to Harpers unpublished and non-precedential status, we decline to rely on it here for two reasons: (1) Haiper doesn't cite Martinez, let alone attempt to square its decision with our holding in that case; and (2) Harper doesn't address the Appeals Council's limited requirement to "consider” new evidence under § 416.1470.