text:
    John A. ACHA, Petitioner, v. DEPARTMENT OF AGRICULTURE, Respondent, Office of Special Counsel, Amicus Curiae.
    No. 15-9581
    United States Court of Appeals, Tenth Circuit.
    FILED November 14, 2016

      Ryan C. Gilman, Gilman Law, LLC, Glenwood Springs, Colorado, for Petitioner.
    Emma E. Bond, Trial Attorney, U.S. Department, of Justice, .Washington, DU. (Benjamin C. Mizer, Principal Deputy, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Elizabeth M. Hosford, Assistant Director, U.S. Department of Justice, Washington, D.C., and Rayann Lund, of Counsel, Litigation Specialist, U.S. Department of Agriculture Forest Service, Albuquerque, New Mexico, with her on the brief), for Respondent.
    Carolyn N. Lerner, Special Counsel, Louis Lopez, Associate Special Counsel, and Shayla Silver-Balbus, Attorney, U.S. Office of Special Counsel, Oakland, California, filed a brief for Amicus Curiae. .
    Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
   BALDOCK, Circuit Judge.

Petitioner John A. Acha worked as a Purchasing Agent for the Forest Service, an agency of the Department of Agriculture, at the White River National Forest in Glenwood Springs, Colorado. Petitioner’s job, which was subject to a one-year probationary period, primarily consisted of meeting the Forest Service’s purchasing needs. Petitioner was also responsible for ensuring that .all purchases complied with the Federal Acquisition Regulation (FAR), a set of “policies and procedures [that govern] acquisition by all executive agencies.” 48 C.F.R. § 1.101.

In January 2012, a few months, into his job, Petitioner submitted a report to his direct supervisor that documented an apartment rental he had helped secure on behalf of the Forest Service. In this report, Petitioner noted that another Forest Service employee “had put $500.00 of his own money down, as the deposit on the [apartment] unit.” Petitioner believed this specific employee did not have the authority to obligate the government in such a manner and therefore violated the FAR ,when he made this unauthorized deposit. Petitioner’s supervisor, however, did not act on Petitioner’s concerns;' in fact, his supervisor instructed him to delete the report’s reference to the deposit. Petitioner followed the instructions .and deleted the reference.

Several months later in April, Petitioner sent an email to the Department of Agriculture’s Office of Inspector General in which he again mentioned that the Forest Service employee had violated the FAR when he made the unauthorized deposit on the apartment. Petitioner also indicated in his email that he had previously told his supervisor about this violation; that, in response, his supervisor had instructed him to cover up the violation; and that he was punished afterward and treated poorly for following this instruction. Like Petitioner’s supervisor, however, the record does not indicate that the Inspector General ever took any actions on the issues Petitioner disclosed in his email. ■

Petitioner was eventually terminated during his probationary period from his position with the Forest Sendee. He filed a complaint with the Office of Special Counsel (OSC), the independent agency responsible for protecting federal employees from prohibited personnel practices, alleging that he was actually terminated because he had disclosed to the Inspector General in April that (1) his fellow employee’s unauthorized deposit violated the FAR, (2) his supervisor had directed him to cover this up, and (3) he had been punished for helping in the cover-up. Petitioner, in other words, alleged that he had been terminated because he was a whistleblower. See 5 U.S.C. § 2302(b)(8). The OSC eventually closed its inquiry into Petitioner’s complaint and refused-to seek any corrective action on his behalf from the Merit Systems Protection Board (MSPB), the independent agency with the power to actually order corrective action for employees affected by prohibited personnel practices. The OSC determined that no official involved .in Petitioner’s termination knew of his email to the Inspector General and, as such, his email could not have contributed to his termination. See 5 U.S.C § 1221(e)(1).

As a result, Petitioner appealed the OSC’s determination and sought corrective action from the MSPB himself. See 5 U.S.C. § 1221(a). As he did before the OSC, Petitioner argued that he was fired for making protected whistleblowing disclosures to the Inspector General in April. But this time around he also argued that he was fired for disclosing the FAR violation to his direct supervisor in January. The Department of Agriculture objected to Petitioner’s new allegation that he was terminated for making a whistleblowing disclosure in January. It argued that because Petitioner had not raised this argument before the OSC, he had not exhausted all of his administrative remedies before the OSC regarding his January disclosure. See 5 U.S.C. § 1214(a)(3). And because this failure to exhaust requirement is jurisdictional in nature, e.g., Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1037 (Fed. Cir. 1993), the Department of Agriculture claimed that the MSPB lacked jurisdiction to consider whether Petitioner was terminated for making this January disclosure.

Petitioner responded that he had made his January disclosure to his supervisor during his “normal course of duties,” which meant that, at the time he filed his complaint to the OSC, he necessarily could not have received any corrective action from the MSPB for that disclosure. See, e.g., Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1352 (Fed. Cir. 2001) (holding that “an employee who makes disclosures as part of his normal duties” is not a protected whistleblower), superseded by statute, Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465. Thus, Petitioner contended that he had no reason to argue before the OSC that he was terminated for making his January disclosure. But after the OSC had closed its inquiry into Ms case, Congress passed the Whistleblower Protection Enhancement Act of 2012 (WPEA), which changed the law and allowed employees to obtain corrective action for disclosures they made in their normal course of duties in certain circumstances. See 5 U.S.C § 2302(f)(2). Further, the MSPB held in a separate case that the new protections given to disclosures made during the normal course of an employee’s duties applied retroactively to all pending cases before the MSPB. Day v. Dep’t of Homeland Sec., 119 M.S.P.R. 589, 602 (2013). In light of the WPEA and the MSPB’s decision in Day, Petitioner argued that the MSPB should excuse him from the exhaustion requirement for his January disclosure; indeed, he contended that he should not be punished for refusing to make then-frivolous arguments in his complaint to the OSC.

But Petitioner further argued that he did not even need to be excused from the exhaustion requirement because he had, in fact, exhausted his remedies for the January disclosure. Specifically, he claimed that although he did not actually allege in his complaint to the OSC that he was terminated for making his January disclosure, he did include information about the January disclosure in his complaint. For support, he noted that he had attached his April email to the Inspector General to his complaint to the OSC and that in this email he had specifically discussed that he disclosed the FAR violation to his supervisor in January and was punished for doing so. He reasoned that this was enough for him to exhaust his administrative remedies, for the failure to exhaust requirement demands only that an employee “give the Office of Special Counsel sufficient basis to pursue an investigation which might have led to corrective action.” Serrao v. Merit Sys. Protection Bd., 95 F.3d 1569, 1577 (Fed. Cir. 1996) (emphasis added) (internal quotation marks omitted).

The MSPB agreed with Petitioner and concluded that his failure to argue before the OSC that he was terminated for making the January disclosure to his supervisor was not fatal to its jurisdiction. Although it did not mention Day or the change in law brought about by the WPEA, it agreed with Petitioner that he had provided enough information about his January disclosure to the OSC so that the OSC could sufficiently pursue an investigation of that claim. Thus, the MSPB determined that “although the allegations could be clearer,” Petitioner exhausted his remedies before the OSC regarding the January disclosure.

Moving on to the merits, however, the MSPB determined that Petitioner was not entitled to corrective action for either his January disclosure to his supervisor or his April disclosure to the Inspector General. Regarding his April disclosure, the MSPB agreed with the OSC that no officials involved in Petitioner’s termination had knowledge of his email to the Inspector General, so it could not have contributed to his termination. See 5 U.S.C § 1221(e)(1). And regarding the January disclosure, the MSPB recognized that although disclosures made during the normal course of duties now could warrant corrective action under the WPEA, such corrective action was not guaranteed. Instead, the MSPB concluded that corrective action for disclosures made during the normal course of duties was contingent on whether an employee could prove that the officials responsible for the personnel action at issue acted with an improper “retaliatory motive”—that is, a heightened burden that is not required when a whistleblower makes a disclosure outside the normal course of his duties. Compare 5 U.S.C § 2302(f)(2) (forbidding personnel actions relating to a disclosure made during the normal course of duties only if the action is “in reprisal for” the disclosure), with 5 U.S.C § 2302(b)(8) (forbidding personnel actions relating to all other disclosures when the action is merely “because of’ the disclosure). In the MSPB’s eyes, if the employee could not prove such a motive, then the employee’s disclosure was not a “protected” whistleblowing disclosure and therefore could factor into the personnel action at issue without being unlawful. Utilizing this logic, the MSPB concluded that even if Petitioner could prove his January disclosure factored into his termination, he could not prove the officials responsible for his termination acted with a retaliatory motive regarding that disclosure. Thus, the MSPB determined that Petitioner’s January disclosure was not protected and refused to order corrective action for it.

Before this Court, Petitioner does not challenge the MSPB’s ruling regarding his April disclosure to the Inspector-General; he appeals only the MSPB’s ruling regarding his January disclosure, to his supervisor. In so doing, he does not take issue with the MSPB’s finding that his disclosure to his supervisor was made during his normal course of duties, nor does he dispute that he cannot prove a retaliatory motive. Instead, he argues that the MSPB erred by making him prove a retaliatory motive as a prerequisite before it would consider his disclosure to his supervisor to be protected. For a variety of different reasons, he contends that any inquiry into the existence of a retaliatory motive—if such a motive is even required under the WPEA—is instead “properly reserved for consideration after a protected disclosure is found” and that the burden is on the Department of Agriculture to prove that its officials lacked a retaliatory motive when they terminated him. Appellant’s Br, 13 (emphasis added). He therefore asks us to set aside the MSPB’s finding that he failed to make a protected disclosure, find that this disclosure was protected, and remand this case back to the MSPB for further proceedings.

But before we may determine whether we should do so, we have the sua sponte obligation to satisfy ourselves “not only of [our] own jurisdiction, but also that of the lower courts,” which, in this case, happens to be the MSPB, “even though the parties are prepared to concede it." Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (internal quotation marks omitted). Generally, we would have jurisdiction to adjudicate Petitioner’s appeal from the MSPB’s final decision pursuant to 5 U.S.C. § 7703(b)(1)(B). If, however, the MSPB itself did not have jurisdiction to determine whether Petitioner was entitled to corrective action for his January disclosure, then we have jurisdiction “merely for the purpose of correcting the error of the lower court in entertaining the suit.” Steel Co., 523 U.S. at 95, 118 S.Ct.. 1003 (internal quotation marks omitted). And when reviewing whether the MSPB had jurisdiction, we are bound by the MSPB’s jurisdictional factual findings “unless those findings are. not supported by substantial evidence,” but we review de novo the ultimate legal question whether the MSPB had jurisdiction to adjudicate an appeal. Rosario-Fabregas v. Merit Sys. Protection Bd., 833 F.3d 1342, 1345 (Fed. Cir. 2016) (internal quotation marks omitted); see also Waldau v. Merit Sys. Protection Bd., 19 F.3d 1395, 1398 (Fed. Cir. 1994) (“[W]e review de novo the question whether the MSPB has jurisdiction to adjudicate a case.”); 5 U.S.C. § 7703(c).

What gives us pause is the MSPB’s determination that Petitioner exhausted his administrative renledies beforé the OSC for his January disclosure to his supervisor. This exhaustion requirement is governed by 5 U.S.C. § 1214(a)(3) and states that, subject to an exception not applicable here, a federal employee “shall seek corrective action from the [Office of] Special Counsel before seeking corrective action from the [MSPB].” -As the MSPB itself recognized, this requirement is jurisdictional in nature. Ellison, 7 F.3d at 1037; McCarthy v. Merit Sys. Protection Bd., 809 F.3d 1365, 1374 (Fed. Cir. 2016). And as the MSPB also recognized, § 1214(a)(3) requires an employee to “give the Office, of Special Counsel [a] sufficient basis to pursue an investigation which might have led to corrective action/’ Serrao, 95 F.34 at 1577; see also id. (noting that an employee must “articulate with reasonable clarity and precision [before OSC] the basis for his request for corrective action” (alteration in original] (internal quotation marks omitted)), Thus, when hearing an employee’s appeal from the OSC, the MSPB’s jurisdiction is “limited to those issues that have been previously raised with OSC.” McCarthy, 809 F.3d at 1374 (internal quotation marks omitted).

Unlike the MSPB, we believe that Petitioner did not raise his January disclosure with the OSC in a way that would allow the OSC to sufficiently pursue an investigation. Even though Petitioner’s complaint to the OSC undoubtedly included his April email to the Inspector General (which, in turn, discussed his January disclosure to his supervisor), this is not enough. Instead, the fact that he did not even attempt to allege in the complaint itself that he was terminated for making the January disclosure was fatal to the MSPB’s jurisdiction.

For illustration, consider the decision in McCarthy v. Merit Systems Protection Board, where the Federal Circuit encountered an almost identical issue and ruled that the MSPB lacked jurisdiction. In that case, a federal employee submitted a report to the State Department’s Office of the Inspector General in which he alleged that his employer was engaging in different types of fraud, waste, and abuse. McCarthy, 809 F.3d at 1368. Significantly, the employee specifically noted in the report that he had previously informed his supervisor of these instances of fraud, waste, and abuse via different legal memo-randa he had drafted. Id. The employee was thereafter terminated. Id. As is the case with Petitioner, the employee then filed a complaint with the OSC wherein he alleged only that his termination was because of the report he had submitted to the Inspector General—he did not allege that the legal memoranda he had drafted earlier contributed to his termination. Id. As is also the case with Petitioner, the employee’s failure to allege that these legal memoranda contributed to his termination stemmed from the fact that these memoranda were made during the normal course of his duties, which, at the time, meant that he had absolutely no chance of receiving corrective action for them. Id.

The OSC refused to seek corrective action on the employee’s behalf. Id. The employee sought corrective action from the MSPB, which initially affirmed the OSC’s decision. Id. But afterward, Congress enacted the WPEA, and as a result the employee asked the MSPB to reopen his case based on the fact that he could now allege that the legal memoranda contributed to his termination. Id. at 1368-69. The MSPB refused to reopen his case and dismissed his appeal. Id. at 1369.

Upon review, the Federal Circuit affirmed the MSPB’s decision on the grounds that the MSPB lacked jurisdiction to hear the employee’s case because the employee had not exhausted his administrative remedies with the OSC. Id. at 1375. In pertinent part, the Federal Circuit stated the following:

[The] OSC complaint only identifies [the employee’s] ,.. report to the [Inspector General] and a ... disclosure to Congressman Reyes. It makes no mention of his legal memoranda. Given this, the OSC’s “basis to pursue an investigation” was only these two disclosures and the circumstances suirounding them, such as whom these disclosures were made to, [his employer’s] awareness of these disclosures, and how they related to the events that led to [his] termination. This did not provide the OSC with a “sufficient basis to pursue an investigation” with respect to [his] legal memoranda— these were different disclosures, made to different people, at different times. Moreover, the case that [he] presented to the OSC ... substantially differs from the case he presents now. [Before the OSC, his] legal memoranda were not considered protected disclosures ...; thus, the OSC would have had no basis to investigate the legal memoranda and develop findings related to these disclosures. What [he] presents now . is in essence a different case, and the OSC has not had an opportunity to “effectively pursue an investigation” with respect to these circumstances.
[The employee] also argues that the exhaustion requirement only applies to the content of whistleblowing disclosures, and that existing case law does not require that he correctly affix legal labels to -these facts. We agree that the focus of the exhaustion requirement is on substance; however, [he] has not satisfied this requirement here.... [T]he core substance of [his] complaint has shifted from a single disclosure to the [Inspector General] (which, at best, was at least in part cumulative of a nebulous collection of previous disclosures) to four distinct legal memoranda provided to specific individuals at specific times.
We find, then, that [the employee] has not exhausted his OSC remedies with respect to the legal memoranda.

Id. at 1374-75 (emphases added) (citations omitted).

Although we are not bound by Federal Circuit precedent, we find the McCarthy court’s logic powerful and persuasive. We are not prepared to say that Petitioner exhausted his administrative remedies before the OSC regarding his January disclosure just because he discussed it as pertinent background information in his disclosure to the Inspector General. That was not enough for the McCarthy court— where, as stated above, the employee referenced in his report to the Inspector General previous disclosures he had made—and it is not enough for us. Indeed, and as the McCarthy court put it, the “core substance” of Petitioner’s complaint has “shifted from a single disclosure to the Inspector General” to a “distinct” disclosure that he provided to his supervisor three months earlier. This was a “different disclosure, made to [a] different [person], at [a] different time[].” The simple fact that the OSC knew about Petitioner’s January disclosure would not have made it aware that it should have investigated whether he was terminated for making this disclosure when the complaint itself, like the complaint in McCarthy, “makes no mention” on its face of any other disclosures. See Serrao, 95 F.3d at 1577 (“[A]n employee [must] articulate with reasonable clarity and precision the basis, for his request for corrective, action.” (emphasis added)).

The change in law brought about by the WPEA—protecting disclosures made during the normal course of duties—simply highlights and buttresses this conclusion. Because Petitioner’s January disclosure could not have merited corrective action when he filed his complaint with the OSC, “the OSC would have had no basis to investigate the legal memoranda and develop findings related to these disclosures.” Petitioner’s case before the MSPB and our Court, therefore, “is in essence a different case,” and the OSC is entitled to determine in the first instance whether it would like to pursue corrective action on his behalf for his January disclosure.

We adhere to our conclusion today even though we have previously recognized that exhaustion is not required “where it would be futile or fail to provide adequate relief.” McQueen ex rel. McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 874 (10th Cir. 2007) (internal quotation marks omitted); see also Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (“[E]xhaustion ... should not be required ... in cases where such exhaustion would be futile either as a legal or practical matter.” (omissions in original) (internal quotation marks omitted)). To be sure, it would' indeed have been futile for Petitioner to argue to the OSC that his January disclosure could merit corrective action— at the time, and as we have discussed, Petitioner would have undoubtedly lost on such an argument. McQueen, 488 F.3d at 875 (holding that exhaustion is futile when “it is clear at the outset” that the administrative agency cannot grant any relief for the claim at issue). That said, the Supreme Court has specifically informed us that courts are “not [to] read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise”—that is, when “Congress has mandated exhaustion.” Booth v. Churner, 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2000) (emphasis added); see also Shaumee Trail Conservancy v. U.S. Dep’t of Agric., 222 F.3d 383, 389 (7th Cir. 2000) (“Although we do not believe that the. district court had the power to waive the statutorily-mandated exhaustion requirement of the APA, the plaintiffs have not demonstrated that the district court erred in applying administrative exhaustion even if we assume arguendo that the district court had the discretion to excuse that failure on the ground of futility.” (citations omitted)); Glisson v. U.S. Forest Serv., 55 F.3d 1325, 1327 (7th Cir. 1995) (distinguishing the flexible common law doctrine of administrative exhaustion with the “inflexible command of a statute”). And here, Congress has indeed mandated exhaustion via 5 U.S.C. § 1214(a)(3). See supra. We are therefore prohibited from applying the futility doctrine to Petitioner’s claim that he was terminated for making his January disclosure to his supervisor. He was strictly required to present this claim to the OSC first.

Nor is it significant that the MSPB held in Day v. Department of Homeland Security that the WPEA’s new rules regarding disclosures made during the normal course of an employee’s duties are retroactive. Day, 119 M.S.P.R. at 602. Questions of retroactivity and questions of jurisdiction are distinct. An employee must still exhaust his administrative remedies before the OSC for disclosures made during the normal course of duties before he can claim that the substantive change in law as enacted by the WPEA applies to those disclosures. Indeed, we note that even in McCarthy neither party “dispute[d] that the WPEA could be applied retroactively” and yet the Federal Circuit still found that the employee failed to exhaust his administrative remedies. McCarthy, 809 F.3d at 1369.

In conclusion, the MSPB lacked jurisdiction to consider whether Petitioner was terminated for disclosing the FAR violation to his supervisor in January. We therefore vacate the MSPB’s decision insofar as it concluded that Petitioner’s January disclosure was not a protected disclosure and remand this case back to the MSPB to dismiss that issue for lack of jurisdiction. The MSPB’s decision regarding his April disclosure to the Inspector General still stands.

VACATED' IN PART'and REMANDED for further proceedings consistent with this opinion.

      . Petitioner also argued to the OSC that he was fired because he had refused to participate in any further violations of the FAR. See 5 U.S.C. § 2302(b)(9). Petitioner, however, does not present this issue on appeal before our Court, nor does it affect his appeal in any way, so we do not consider it,

      . Until 2012, the United States Court of Appeals for the Federal Circuit had exclusive jurisdiction "to review a final order or final decision of the [MSPB]. 5 U.S.C. § 7703(b)(1) (2006 & Supp. V 2011). In 2012, however, Congress amended this statute for federal employees who allege that they were subjected to prohibited personnel practices because of their whistleblowing disclosures. In those instances, federal employees may .now appeal the MSPB’s decisions to the "United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction" for a five-year trial period that ends in late 2017. 5 U.S.C. § 7703(b)(1)(B) (2012) (emphasis added), amended by 5 U.S.C. § 7703(b)(1)(B) (Supp. II 2014).
      As a result, we have had jurisdiction over cases like the one Petitioner brings before us today for only four short years, and our case-law regarding MSPB decisions that deal with whistleblowing allegations is thus virtually non-existent. We therefore utilize many of the Federal Circuit’s past decisions in this area of law for guidance.

      . We are cognizant of recent Supreme Court cases that caution us to label a statutory rule as jurisdictional only when "Congress has 'clearly state[d]’ that the rule is- jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr., — U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) (alteration in original) (quoting Arbaugh v. Y&HCorp., 546 U.S, 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)). We are equally cognizant that, for this very reason, our Court has of late cast doubt on whether exhaustion requirements in other statutes are actually jurisdictional. See, e.g., Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 783-84 (10th Cir. 2013) (pausing to consider whether the exhaustion requirement of the Individuals with Disabilities Education Act (IDEA) should remain jurisdictional in light of the Supreme Court’s recent remarks, but ultimately concluding that "for purposes of this case IDEA exhaustion’s status as a jurisdictional prerequisite is not at issue”). We note that our Court has even explicitly held that some exhaustion requirements are now properly nonjurisdic-tional. See, e.g., Hull v. IRS, U.S. Dep’t of Treasury, 656 F.3d 1174, 1181-82 (10th Cir. 2011) (holding that the exhaustion requirement of the Freedom of Information Act (FOIA) is nonjurisdictional because the FOIA “does not unequivocally make” the exhaustion requirement jurisdictional (internal quotation marks omitted)).
      That said, Congress has clearly indicated that the exhaustion requirement outlined in § 1214(a)(3).is jurisdictional. The context of § 1214(a)(3) and its placement in the overall statutory scheme is instructive as to why. See Auburn Reg’l, 133 S.Ct. at 824 (“This is not to say that Congress must incant magic words in order to speak clearly [about jurisdiction]. We consider context ,.. as probative of whether Congress intended a particular provision to rank .as jurisdictional.” (internal quotation marks omitted)). First, consider that Congress explicitly stated that the MSPB shall "hear, adjudicate, or provide for the hearing or adjudication, of all matters within the jurisdiction of the [MSPB] under this title_” 5 U.S.C. § 1204(a) (emphasis added). The only matters within the jurisdiction of the MSPB, in turn, are those expressly made appealable to it "under any law, rule, or regulation.” Id. § 7701(a). Finally, one of the matters made appealable to the MSPB is cases wherein a federal employee alleges that he is entitled to corrective action for making whistleblowing disclosures, but an employee’s ability to bring such a case is "[s]ubject to the provisions of ... subsection 1214(a)(3).” Id. § 1221(a) (emphasis added). Combining these statutes, it is thus clear that if a federal employee cannot satisfy the requirements of § 1214(a)(3)—that is, the exhaustion-of-remedies requirement— then his whistleblowing claim is not appeal-able to the MSPB under any law, rule, or regulation, which necessarily means that the MSPB does not have jurisdiction over his claim.

      . We note that Petitioner remains free to pursue a complaint with the OSC with respect to his January disclosure, “as there is no statutory time limit for filing a request for corrective action with the OSC.” McCarthy, 809 F.3d at 1375 (citing Augustine v. Dep't of Justice, 50 M.S.P.R. 648, 652 (1991)).

      . The OSC filed .an amicus curiae brief that argues the MSPB’s decision should be reversed on the merits because Petitioner actually did not make his January disclosure during his "normal course of duties," and the Department of Agriculture filed a motion asking for leave to respond to the OSC’s brief. But because both Petitioner and the Department of Agriculture have steadfastly assumed before the MSPB and our Court that the January disclosure was made in the normal course of duties, and because we vacate the MSPB’s decision on jurisdictional grounds without deciding whether reversal is warranted on the merits, we decline to address the OSC’s argument and express no opinion on it. The Department of Agriculture’s motion asking for leave to file a response is accordingly denied as moot,


source: Caselaw Access Project

author: BACHARACH, Circuit Judge.

license: Public Domain

text:
    Wendy L. PEDEN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 15-1381
    United States Court of Appeals, Tenth Circuit.
    Filed November 15, 2016

      Bradley A. Levin, Levin Sitcoff PC, Denver, Colorado (Nelson A. Waneka, Levin Sitcoff PC, Denver, Colorado, Gary Doehling and Keller Caubarreaux, Gary Doehling, P.C., Grand Junction, Colorado, with him on the briefs), for Plaintiff-Appellant.
    Heather A. Salg, Harris, Karstaedt, Ja-mison & Powers, P.C., Englewood, Colorado, for Defendant-Appellee.
    Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.

      . Mr. Graf obtained liability coverage through his fiancée’s insurance policy.

   BACHARACH, Circuit Judge.

This case involves the handling of a claim under policies providing underin-sured-motorist coverage. The tortfeasor, Mr. Terrill Graf, bought his fíancée a van for her 50th birthday. Celebrating the birthday and new purchase, Mr. Graf drank liquor and then gathered four friends in the van. The plaintiff, Ms. Wendy Peden, was one of those friends. She says that she expected Mr. Graf only to show off the van and to photograph the group. But Mr. Graf drove away with his friends in the van. He crashed, causing serious injuries to Ms. Peden. She obtained $240,000 in insurance benefits. But Ms. Peden claimed more under her coverage for underinsured-motorist benefits.

The insurer (State Farm) initially denied the claim, but ultimately paid her an additional $350,000, the maximum amount that she could receive under the underinsured-motorist coverage. Ms. Peden sued State Farm under Colorado’s common law and statutory law, claiming an unreasonable denial or delay in paying benefits. We must decide whether a reasonable fact-finder could conclude that State Farm unreasonably denied or delayed payment of benefits. The district court answered “no.” We disagree and reverse.

1. Ms. Peden sought two payments from State Farm: one from Mr. Graf’s liability coverage and one from Ms. Peden’s underinsured-mo-torist coverage.

Ms. Peden’s injuries triggered Mr. Grafs liability coverage and Ms. Peden’s underinsured-motorist coverage. State Farm, coincidentally, insured both Mr. Graf for his liability and Ms. Peden for underinsured-motorist coverage. Thus, State Farm bore dual responsibilities:

• to indemnify Mr. Graf for liability to his passengers, including Ms. Peden, and
• to pay Ms. Peden the amount that she was unable to recoup from Mr. Graf because of his lack of adequate liability coverage.

Mr. Grafs liability coverage had a cap of $500,000 for the accident. After investigating, State Farm recognized that Mr. Graf would likely incur liability to the four passengers for at least $500,000; thus, State Farm allocated the $500,000 among the four passengers in the van. Out of this $500,000, Ms. Peden obtained $210,000. She also obtained another $30,000 in medical payment benefits.

But she claimed that Mr. Graf owed more. If Ms. Peden were right, Mr. Graf would be considered “underinsured,” triggering coverage for underinsured-motorist benefits. These benefits totaled $350,000 from two separate policies:

1. Mr. Grafs fiancée, who owned the van, had $250,000 in underinsured-motorist coverage under a State Farm policy. This coverage extended to Ms. Peden as a passenger.
2. Ms. Peden had her own State Farm policy with $100,000 in underin-sured-motorist coverage.

Ms. Peden demanded the full $350,000 from State Farm, «which would have brought her total payments to $590,000. To justify this amount, Ms. Peden stated that she had seven forms of injury, totaling more than $647,484.76 to $1,115,504.76:

Nature of Injury Amount Demanded

1. Past medical bills $ 114,352.55

2. Past wage losses $ 7,500.00

3. Future wage losses “substantial”

4. College tuition that Ms. Peden had to forfeit $ 7,622.21

5. Noneconomic damages $ 468,010 to $936,030

6. Prejudgment interest Unspecified

7. Costs $ 50,000 fat minimum-)

TOTAL: $ 647,484.76 to

$ 1,115,504.76

(plus a “substantial” amount for future wage loss and an unspecified amount for prejudgment interest)

State Farm denied the claim, stating that the prior payment of $240,000 had fairly compensated Ms. Peden for the amount that Mr. Graf owed.

2. Ms. Peden sued, and the district court granted summary judgment to State Farm.

Dissatisfied, Ms. Peden sued State Farm, invoking Colorado common law and statutory law and alleging an unreasonable denial or delay in paying benefits. During the litigation, State Farm obtained additional information and ultimately paid Ms. Peden the complete $350,000 in underin-sured-motorist coverage.

Though Ms. Peden had now received the most she could recoup under the policies, she claimed that State Farm had unreasonably denied or delayed payment. State Farm moved for summary judgment, arguing that the handling of the claim was reasonable as a matter of law; Ms. Peden moved for partial summary judgment on her statutory claim. The district court granted State Farm’s motion, which led the court to deny Ms. Peden’s motion- as moot.

3. Engaging in de novo review, we apply Colorado substantive law.

We engage in de novo review, viewing the evidence and drawing all reasonable inferences in favor of Ms. Peden. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). In this manner, we consider whether State Farm has shown the absence of a genuine dispute of material fact. Fed. R. Civ. P. 56(a).

We assess Ms. Peden’s claims under Colorado law. See Etherton v. Owners Ins. Co., 829 F.3d 1209, 1223 (10th Cir. 2016) (‘When jurisdiction is based on the parties’ diverse citizenship, a federal court must assess state law claims based on the substantive law of the state.”). In this context, we defer to the decisions of the Colorado Supreme Court, id. and “follow the Colorado Court of Appeals’ reasoning ... unless we are convinced that reasoning is incorrect.” Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 827 F.3d 1256, 1263 (10th Cir. 2016).

4. State Farm owed Ms. Peden a duty of good faith.

In Colorado, all contracts contain an implied duty of good faith and fair dealing. Goodson v. Am. Standard Ins. Co. of Wis., 89 P.3d 409, 414 (Colo. 2004). For insurance contracts, a breach of this implied duty can create liability under Colorado’s common law and statutory law.

For a common-law claim involving the breach of an underinsured-motorist policy, the insured must prove that the insurer (1) acted “unreasonably under the circumstances” and (2) “knowingly or recklessly disregarded the validity of the insured’s claim.” See id. at 415 (standard for “first-party” claims); see also Sunahara v. State Farm Mut. Auto. Ins. Co., 280 P.3d 649, 657 (Colo. 2012) (noting that uninsured-motorist claims are “first-party” claims because the insured “is suing his own insurance company”).

Colorado also provides insureds with a similar statutory cause of action. Col. Rev. Stat. §§ 10-3-1101 to -1116 (2016). By statute, an insurer cannot “unreasonably delay or deny payment of a claim” to a first-party claimant. Id. § 10-3-1115(l)(a).

5.Industry standards govern the reasonableness of State Farm’s investigation.

The duty of good faith requires the insurer to reasonably investigate an insured’s claim. See State Farm Mut. Auto. Ins. Co. v. Brekke, 105 P.3d 177, 189 (Colo. 2004). The reasonableness of an investigation is determined objectively under industry standards. Goodson v. Am. Standard Ins. Co. of Wis., 89 P.3d 409, 415 (Colo. 2004). These standards may be established through expert opinions or state law. ,Id.; Am. Family Mut. Ins. Co. v. Allen, 102 P.3d 333, 343 (Colo. 2004). Here the industry standards are proven through both sources: an expert opinion and a Col-oi’ado statute.

Colorado law creates standards for insurers’ practices. Allen, 102 P.3d at 344. Under these standards, an insurer may not deny or delay a claim without “conducting a reasonable investigation based upon all available information.” Colo. Rev. Stat. § 10-3-1104(l)(h)(IV). In conducting this investigation, the insurer must “promptly and effectively communicate with anyone it was reasonably aware had ... information pertaining to the handling of [a plaintiffs] claim.” Dunn v. Am. Family Ins., 251 P.3d 1232, 1238 (Colo. App. 2010).

Ms. Peden’s expert witness also detailed the applicable industry standards. Two of these standards are:

1. “An insurer, in conducting its investigation, should look for facts which support coverage with at least as much diligence as the insurer expends in any attempt to deny or limit coverage.”
2. “A reasonable insurer should try to find all facts essential to an understanding of claimant medical conditions including ... the injury[’s] effects upon employment and future earning capacity.”

Thomas J. Corridan, Expert Witness Report at 2, 5 (Apr. 27, 2015), Appellant’s App. at 125, 128 (providing an expert opinion based on “the custom and practice in the industry”).

With proof of these industry standards, the question is whether a reasonable fact-finder could conclude that State Farm breached its duty of good faith.

6. A reasonable fact-finder could infer that State Farm breached this duty by failing to reasonably investigate Ms. Peden’s underinsured-motorist claim.

State Farm’s adjuster acknowledged a duty to investigate the claim. In considering this duty, a reasonable fact-finder could conclude that the investigation was unreasonably deficient in two respects:

1. Further investigation was needed to determine whether Ms. Peden assumed the risk for the accident.
2. Further investigation was needed to determine whether'Ms. Peden was entitled to greater damages from the tortfeasor (Mr. Graf).

A. The fact-finder could rationally infer that further investigation was needed to reasonably determine whether Ms. Peden had assumed the risk for the accident.

State Farm discounted the claim by 15%, reasoning that Ms. Peden had assumed the risk by going for a ride with a drunk driver. This reasoning was based on three alleged facts:

1. The driver, Mr. Graf, had been drunk.
2. Ms. Peden and three other passengers had entered the van.
3. Ms. Peden had known that Mr. Graf was drunk and was going to drive the van.

Ms. Peden disputes the third alleged “fact,”. contending that she did not know that Mr. Graf was drunk or that he was going to drive.the van; Ms. Peden insists that she thought that Mr. Graf was simply going to photograph the group in the van.

Did Ms. Peden know that they were going for a ride? When initially denying the underinsured-motorist claim, State Farm relied on its investigation of Mr. Grafs claim under the liability policy. In investigating Mr. Grafs claim under the liability policy, State Farm was adverse to Ms. Peden because she had a tort claim against State Farm’s insured (Mr. Graf).

During that investigation, State Farm obtained Mr. Grafs account of the incident, a questionnaire completed by Ms. Peden, and part of the police report. Mr. Graf told State Farm that the passengers had known that he was going to drive the van. And in the questionnaire, Ms. Peden characterized the drive as a joyride for pleasure. As a result, State Farm concluded that Ms. Peden had known that Mr. Graf was going to drive drunk. Based on this conclusion, State Farm applied a 15% reduction to Ms. Peden’s benefits under her underinsured-motorist claim.

Ms. Peden argues that State Farm jumped to this conclusion without adequate investigation. For example, Ms. Peden complains that in investigating the claim for underinsured-motorist coverage, State Farm should have asked to speak to the passengers.

Accompanying Ms. Peden in the van were three others: Alice Shope, Tod Co-nard, and Denise Conard. Ms. Peden, Mr. Conard, and Ms. Conard insist that they did not know that Mr. Graf was going to drive the van; instead, they say that they thought that someone was simply going to take a photograph.

State Farm had Ms. Peden’s questionnaire, but it was not conclusive. In the questionnaire, Ms. Peden was asked: “Was the purpose of your trip business or personal? Where were you going?” Appellee’s Response Br. at 6. The questions apparently assume that Ms. Peden knew that she was going for a ride. Her attorney’s claims manager completed the questionnaire and states under oath that he described the trip as a personal joyride only to clarify that the trip was not related to business; he denies suggesting that Ms. Peden knew that Mr. Graf was going to drive the van. Viewing the form in a light favorable to Ms. Peden, we conclude that a fact-finder could fault State Farm for reading too much into the questionnaire without investigating further.

State Farm eventually paid the policy limits on Ms. Peden’s underinsured-motorist coverage. But should State Farm have paid these benefits earlier? That depends in part on whether State Farm should have waited to reach a decision until after it had interviewed Ms. Peden, Mr. Conard, or Ms. Conard. Viewing the evidence favorably to Ms. Peden, a rational trier of fact could find that State Farm acted unreasonably when determining without adequate investigation that Ms. Peden had known that Mr. Graf would drive away.

Did Ms. Peden know that Mr. Graf was drunk? The same is true about Ms. Pe-den’s knowledge of Mr. Grafs drunkenness. State Farm discounted Ms. Peden’s claim based partly on a belief that Ms. Peden had known that Mr. Graf was drunk. Ms. Peden and two other passengers testified that they had not known that Mr. Graf was drunk.

Again, a fact-finder could reasonably conclude that State Farm did not perform an adequate investigation. State Farm did not try to speak with the passengers even though they could have shed light on whether they knew that Mr. Graf had been intoxicated.

B. A rational fact-finder could also infer that State Farm unreasonably investigated the damages that Ms. Peden could obtain against Mr. Graf.

State Farm valued Ms. Peden’s claim against Mr. Graf at $272,474.76 (before deducting 16% for assumption of the risk). But this was less than 43% of the damages itemized in Ms. Peden’s demand letter ($647,484.76 to $1,115,604.76).

What State Farm Evaluated {based on t!w* maximum of the i.inge demanded by Peden)

What State Fairn evaluated {based on minimum of the range demanded by Peden)

We do not know why State Farm discounted the claim so severely. All we know is that

• State Farm discounted the claim by 16% based on Ms. Peden’s assumption of the risk and
• the valuation of $272,474.76 did not include anything for future noneco-nomic damages, prejudgment interest, or future wage loss.

A reasonable fact-finder could justifiably infer that State Farm inadequately investigated the damages that would have been available to Ms. Peden if she had sued Mr. Graf. Ms. Peden had alleged between $468,010 and $936,080 for noneconomic damages. See pp. 3-4, above. To support this allegation, Ms. Peden submitted documents including medical records, a photograph following surgery, and a college transcript. With this evidence, Ms, Peden stated that her injury had prevented her from graduating college, sapped her of energy, caused her to avoid people, diminished her memory, and hurt her concentration.

State Farm may have been able to reasonably .discount Ms. Peden’s dollar range for noneconomic damages. But why would State Farm decline to pay anything for future noneconomic damages or future wage loss? State Farm could have consulted with a physician, asked Ms. Peden to submit to a physical examination, or interviewed her. State Farm did none of these things. If it had, it could have been better equipped to assess Ms. Peden’s future damages. Thus, a fact-finder could justifiably question the reasonableness of State Farm’s investigation.

* * *

Even if State Farm had adequately investigated Mr. Grafs liability to Ms. Pe-den, a genuine issue of material fact would exist on the reasonableness of State Farm’s initial refusal to pay anything for future noneconomic damages or future wage loss. As noted above, Ms. Peden provided State Farm with her college transcript, medical records, and photographic evidence to demonstrate future noneco-nomic damages and wage loss. A fact-finder could reasonably conclude that State Farm acted unreasonably in discounting that evidence.

7. State Farm’s alleged compliance with regulations does not preclude summary judgment.

State Farm argues that a Colorado regulation shows that the investigation was reasonable. Appellee’s Response Br. at 24-26. But compliance with this regulation does not mean that the insurer acted reasonably. See Etherton v. Owners Ins. Co., 829 F.3d 1209, 1228 n.7 (10th Cir. 2016) (stating that compliance with this regulatory provision on timely claims decisions does not preclude a finding that the insurer acted unreasonably).

8. State Farm waived its new estoppel theory.

At oral argument, State Farm asserted an estoppel theory. See Oral Argument .at 26:40 (“When the demand was given to State Farm from plaintiffs counsel, it said you have all the information that you need to conduct your evaluation.”); see also Ap-pellee’s Response Br. at 8 (Statement of the Case) (“[Y]ou have permission to review and rely on any information in the State Farm file.... ” (quoting Letter from Gary Doehling, Plaintiffs counsel, to Kristine Krist, Adjuster (Jan. 31, 2014), 2 Appellee’s Supp. App. at 52)). Under this theory, State Farm contends that it could rely solely on what Ms. Peden provided because she had given permission for State Farm to decline further investigation. But State Farm did not argue estoppel in its answer or appellate brief; therefore, this argument is waived. See Bentley v. Cleveland Cty. Bd. of Cty. Comm’rs, 41 F.3d 600, 604 (10th Cir. 1994) (“Failure to plead an affirmative defense results in a waiver of that defense.” (citing Fed. R. Civ. P. 8(c))); Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998) (“Issues raised for the first time at oral argument are considered waived.”).

9.Ms. Peden’s motion for partial summary judgment can no longer be considered moot.

Ms. Peden moved for partial summary judgment on her statutory claim. See p. 5 & note 2, above; Upon granting summary judgment to State Farm, the district court denied Ms, Peden’s motion as moot. Because we reverse the award of summary judgment to State Farm, Ms. Peden’s motion can no longer be considered .moot. The district court should address this motion on remand.

10. Disposition

We reverse the award of summary judgment to State Farm and vacate the denial of Ms. Peden’s motion for partial summary judgment. In addition, we remand to the district court for proceedings consistent with this opinion.

      . In her motion, Ms. Peden sought a legal determination that the "covered benefit” on her statutory claim consisted of “the $350,000 [underinsured-motorist] policy limit which ha[d] now been paid to [Ms. Peden].” Pl.’s Mot. for Partial Summary Judgment at 2, Peden v. State Farm Mut. Auto. Ins. Co., No. 14ev00982LTBKLM, 2015 WL 5244934 (D. Colo. Sept. 9, 2015), ECF No. 47, Appellant’s App. at 27.

      . Under both the statute and the common law, Ms. Peden must prove that State Farm acted unreasonably. The common-law claim includes a second element: the insurer’s knowing or reckless disregard for the validity of Ms, Peden’s claim. State Farm does not develop an argument on this additional element of the common-law claim. Instead, State Farm devotes only one sentence to this argument, stating that Ms. Peden failed "to address what State Farm knew, when, and what it did in response to receipt of additional information.” Appellee’s Response Br. at 19.

      . State Farm unsuccessfully attempted to speak with Ms. Peden as part of its liability investigation. At that stage, however, Ms. Pe-den had no obligation to speak with State Farm. In investigating the liability claim, State Farm owed a duty only to Mr. Graf as the covered party. Later, when investigating Ms. Peden’s claim for underinsured-motorist coverage in the run-up to litigation, State Farm never asked to speak with Ms. Peden.

      . State Farm also argues that the complete police report showed that all of the passengers reported that they had decided to go for a drive. Appellee’s Response Br. at 12. But State Farm did not have this part of the police report when denying the claim. State Farm acknowledges that it obtained the full report after the litigation had already begun.

      . State Farm relies in part on a photograph showing Mr. Graf and his fiancée drinking tequila from a bottle. Appellee’s Response Br. at 10. But State Farm obtained this photograph after denying the claim. In any event, Ms. Peden testified that she had not seen Mr. Graf drinking from the bottle.

      . In her reply brief, Ms. Peden also argues that State Farm should have added at least some amount for prejudgment interest. Appellant’s Response Br. at 21. This argument bears potential merit, for the Colorado Supreme Court has held that prejudgment interest constitutes an element of damages for purposes of a similarly worded provision. USAA v. Parker, 200 P.3d 350, 358-59 (Colo. 2009). But this argument was not adequately developed in Ms. Peden’s opening brief. There, Ms. Peden addressed prejudgment interest in only a single sentence in the "Statement of the Case.” Appellant’s Opening Br. at 9-10. This sentence was inadequate for meaningful appellate review. See Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 546 n.8 (10th Cir. 2016) (“A mere suggestion that the district court erred—made solely in the 'Statement of the Case” section of an appellant's brief and not subsequently developed in the ‘Argument’ section—is insufficient to adequately brief an issue for consideration on appeal.”). It was too late for Ms. Peden to develop this argument in her reply brief. Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011),. Thus, Ms. Peden has waived her appellate challenge involving State Farm’s failure to consider prejudgment interest in the initial claims decision. See Aviva Life & Annuity Co. v. FDIC, 654 F.3d 1129, 1136 n.6 (10th Cir. 2011) (“Plaintiffs raised this contention for the first time in their reply brief and the issue is therefore waived.”).

      . The regulation requires Colorado property- and casualty-insurers to make a decision on claims within 60 days (in the absence of a reasonable dispute or a failure by the insured to comply with the policy’s terms and conditions). 3 Colo. Code Regs. § 702-5:5-1-14, Rule 4(A)(1)(a).


author: MATHESON, Circuit Judge.

text:
    Anna GUTIERREZ; Patsy Flores, Plaintiffs-Appellants, v. Luna County Sheriff Raymond COBOS, in his individual and official capacity; Luna County Sheriff Deputy Gabriel Maynes; Deputy Mike Eby; Deputy Trini Garcia; Deputy Jose Ojeda; Deputy Israel Saenz, Jr., in their individual and official capacities; Luna County Central Dispatch Director Mirna Grado and Dispatch Employee Luhuana Villalba, in their individual and official capacities; Luna County Manager John Sutherland, in his individual and official capacity, Defendants-Appellees.
    No. 15-2161
    United States Court of Appeals, Tenth Circuit.
    Filed November 15, 2016

      Rosanne Camunez, Camunez Law Firm, PC, Las Cruces, New Mexico,' appearing for Appellants.
    Blaine T. Mynatt, Holt Mynatt Martinez P.C., Las Cruces, New Mexico (Casey B. Fitch and Benjamin J. Young, Holt Mynatt Martinez P.C., Las Cruces, New Mexico; and Carolyn A. Wolf, Montgomery & Andrews P.A., Santa Fe, New Mexico, with him on the brief), appearing for Appellees.
    Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
   MATHESON, Circuit Judge.

Anna Gutierrez and her mother, Patsy Flores, (“Plaintiffs”) appeal the district court’s grant of summary judgment based on qualified immunity to Luna County New Mexico Sheriffs Deputy Gabriel Maynes on three of their claims brought under 42 U.S.C. § 1983: (1) excessive use of force, (2) unlawful entry, and (3) unlawful seizure. When Deputy Maynes asserted the qualified immunity defense, Plaintiffs needed to show (1) a violation of (2) clearly established federal law. The district court concluded they failed to do so. Indeed, on their excessive force claim, they did not even try. In this appeal, we conclude as to all three claims that Plaintiffs failed to carry their burden as to clearly established law and do not address the first element of the qualified immunity analysis. Plaintiffs also appeal the district court’s denial of their motion for additional discovery under Federal Rule of Civil Procedure 56(d). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History

On the night of July 4, 2009, Luna County Sheriffs Deputy Gabriel Maynes tried to pull over Anna Gutierrez after she ran a stop sign. Ms. Gutierrez drove on— speeding slightly—-until she reached an apartment complex several blocks away.

Ms. Gutierrez parked, exited her truck, and ran toward an apartment. Deputy Maynes exited his car, and, without warping, fired his taser. One of the darts struck Ms. Gutierrez in the back. She reached the apartment door and pounded on it in an effort to get inside. Deputy Maynes caught up and began hitting, kicking, and tasing Ms. Gutierrez. Ms. Gutierrez did not: passively submit. Aplt. App., Vol. 5 at 72-74.

Patsy Flores, Ms. Gutierrez’s mother, opened the apartment door. Deputy Maynes pushed Ms. Gutierrez inside and continued to hit and tase her. Ms. Flores pleaded for Deputy Maynes to leave her daughter alone. Deputy Maynes tased Ms. Flores on her leg and threatened to arrest her.

Additional officers arrived at the apartment in response to Deputy Maynes’s dispatch call. Deputy Maynes eventually handcuffed Ms. Gutierrez and escorted her out of the apartment to a police car, During the encounter, Deputy Maynes tased Ms. Gutierrez nine or ten times.

Later that night at a hospital, a doctor surgically removed the taser dart from Ms. Gutierrez’s back and cleared her for transport to jail. Ms. Gutierrez sustained additional injuries, including two fractured ribs.

The State of New Mexico charged Ms. Gutierrez with several offenses, but the charges were later dismissed.

B. Procedural History

Ms. Gutierrez and Ms, Flores sued Deputy Maynes and other state officials (“Defendants”) in New Mexico state court. Defendants removed this case to federal court in September 2012. Plaintiffs filed an amended complaint, which alleged seven counts against nine state officials in , both their individual- and official capacities. The district court dismissed the official-capacity claims against all Defendants and dismissed many of the individual-capacity claims. Only three claims against Deputy Maynes in his individual capacity remain at issue.

In two separate motions, Deputy Maynes moved for summary judgment based on qualified immunity. First, he moved for summary judgment on Count III, Plaintiffs’ excessive force claim. Before the court resolved the first motion, Deputy Maynes moved for summary judgment on Counts I and II, Plaintiffs’ illegal entry and illegal seizure claims.

After they responded to Deputy Maynes’s first motion but before they responded to his second, Plaintiffs moved under Federal Rule of Civil Procedure 56(d) for additional discovery.

The district court denied Plaintiffs’ Rule 56(d) motion. In the same order, the court granted Deputy Maynes’s first motion for summary judgment on the excessive force claims because Plaintiffs had failed to address the dispositive qualified immunity issue.

Although Plaintiffs argued against qualified immunity in their response to the second motion, the district court again granted summary judgment. It determined Plaintiffs, on their claims of unlawful entry into the apartment and unlawful seizure of Ms. Flores, had failed to - show either a constitutional violation or a violation of clearly established law.

The district court entered judgment for Defendants, and Plaintiffs filed a timely notice of' appeal. See Fed. R. App. P. 4(a)(1)(A).

II. DISCUSSION

A. Legal Background

1. Section 1983 and Qualified Immunity

Section 1983 of Title 42 provides that a person acting under color of state law who “subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983.

“Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials ... from damages actions unless their conduct was unreasonable in light of clearly established law.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (ellipsis in original) (quotations and citation omitted). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Mullenix v. Luna, — U.S. -, 136 S.Ct 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “This exacting standard ‘gives government officials breathing room to make reasonable but mistaken judgments...City & Cty. of San Francisco v. Sheehan, — U.S.-, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 744, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

Once an individual defendant asserts qualified immunity, “the plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant’s unlawful conduct.” Estate of Booker, 745 F.3d at 411 (quotations omitted).

We may resolve a case on the second prong alone if the plaintiff fails to show a right was clearly established. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Lynch v. Barrett, 703 F.3d 1153, 1159 (10th Cir. 2013) (“[W]e are permitted to exercise our sound discretion in deciding whether to bypass the first question and proceed directly to the second.” (quoting Pearson, 555 U.S. at 236-43, 129 S.Ct. 808)).

“In this circuit, to show that a right is clearly established, the plaintiff must point to a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Callahan v. Unified Gov’t of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015) (quotations omitted). A plaintiff need not show “the very act in question previously was held unlawful in order to establish an absence of qualified immunity.” Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir. 2008) (quotations omitted). But “[a]n officer ‘cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in [his] shoes would have understood that he was violating it,’ meaning that ‘existing precedent ... placed the statutory or constitutional question beyond debate.’ ” Sheehan, 135 S.Ct. at 1774 (alterations and ellipsis in original) (citation omitted) (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074).

2. Standard of Review

We review summary judgment de novo, applying the same legal standard as the district court. Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). A “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir. 2012) (quotations omitted).

When a defendant moves for summary judgment based on qualified immunity, a plaintiff must show a violation of clearly established law because, “[u]nlike most affirmative defenses,” the plaintiff “bear[s] the ultimate burden of persuasion” to overcome qualified immunity. Estate of Booker, 745 F.3d at 411; see Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 971 (10th Cir. 2006) (“When a defendant raises a claim of qualified immunity, the burden shifts to the plaintiff to show the defendant is not entitled to immunity.”).

“Thus, at summary judgment, we must grant qualified immunity unless the plaintiff can show (1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant’s conduct.” Estate of Booker, 745 F.3d at 411; see also Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001) (“If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity”).

B. Analysis

We address the three claims on appeal in the order the district court decided them. On the Count III excessive force claim, Plaintiffs did not present any legal authority or legal argument to the district court in opposition to Deputy Maynes’s motion for summary judgment based on qualified immunity. Although Plaintiffs’ version of the facts underlying this claim is troubling, under our precedent the district court properly granted summary judgment because Plaintiffs did not meet their burden to show a constitutional violation based on clearly established law.

Unlike their response to the first motion for summary judgment where Plaintiffs failed to make any legal argument, their response to the second motion for summary judgment on Counts I and II cited legal authority and argued Deputy Maynes’s conduct violated their clearly established constitutional rights. The district court considered Plaintiffs’ arguments but correctly concluded Deputy Maynes was entitled to summary judgment based on qualified immunity. We accordingly affirm.

1. Excessive Force

Plaintiffs’ response to Deputy .Maynes’s first motion for summary judgment argued various genuine disputes of material fact precluded summary judgment, but Plaintiffs did not cite, case law or make a legal argument to show how any infringement of their constitutional rights violated clearly established law.

The district court concluded Plaintiffs failed to carry their burden and granted Deputy. Maynes summary judgment on Count III. The court primarily relied on two cases: Smith v. McCord, 707 F.3d 1161 (10th Cir. 2013), and Rojas v. Anderson, 727 F.3d 1000 (10th Cir. 2013). We agree that Smith-and Rojas control the outcome on the excessive force claim.

The plaintiff in Smith, a 75-year-old man, stepped outside the front door of his house to find “an array of police officers” responding to a suicidal man with knives. 707 F.3d at 1162. When Mr. Smith asked if something was wrong, an officer ordered him to put his hands on a parked car. Id. Mr. Smith complied but retracted his hands because the car’s surface was too hot. Id. An officer kicked Mr. Smith’s legs out from under him, and then two more officers pressed their knees into him while he was on- the ground. Id. Mr. Smith suffered injuries to his wrists, knees, elbows, and back. Id. He alleged excessive force and sued under § 1983. Id. When the officer-defendants asserted qualified immunity and moved for summary judgment, Mr. Smith argued only that material disputes of fact existed. Id. His response failed to mention the terms “qualified immunity” or “clearly established,” and the district court granted summary judgment. Id.

We affirmed. Calling the case “an unfortunate tale of poor lawyering,” we held the district court’s decision to grant summary judgment was “unassailable” because the plaintiff “failed to carry the burden assigned him by law.” Id. Mr. Smith did not argue against qualified immunity until his opening appellate brief asserted a violation of his clearly established rights in light of the Supreme Court’s seminal excessive force case, Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). See Br. for Aplt., Smith v. McCord, 707 F.3d 1161 (10th Cir. 2013) (No. 12-2041, 2012 WL 3886572, at *15-16 (citing Graham on appeal and acknowledging the response to summary judgment in district court “did not cite directly to Graham”). We did not address Mr. Smith’s Graham-based qualified immunity argument. Instead, we held that because Mr. Smith “didn’t even try to meet” his qualified immunity burden in responding to the summary judgment motion in district court, we could not fault the district court for granting summary judgment. 707 F.3d at 1162.

Rojas is similar. There, a plaintiff sued under § 1983 for unlawful seizure and excessive force. 727 F.3d at 1002. In response to the defendants’ motion for summary judgment on qualified immunity grounds, the plaintiff “made little, if any, attempt” to meet his legal burden. Id. at 1003. The plaintiff contested the facts, but he failed to provide legal analysis to show how the officers’ actions violated clearly established law. Id. at 1003-04. We once again upheld the district court’s grant of summary judgment: “Without any such argument, [defendants were entitled to qualified immunity.” Id. at 1004.

In this case, the district court determined that “Plaintiffs fail[ed] to cite or discuss any legal authority” and that “[t]hree mentions of the Fourth Amendment in Plaintiffs’ response [were] insufficient” to carry their burden. Aplt. App., Vol.- 5 at 83. “As in Smith, Plaintiffs’ response d[id] not even mention the terms ‘qualified immunity’ or ‘clearly established.’ ” Id. at 84.

Before- this court, Plaintiffs argue in them opening brief that Deputy Maynes’s use of force against Ms. Gutierrez was excessive and violated clearly established law, specifically Graham. But they did -not cite Graham—or any other case—in the district court or- present any legal argument there. This poses a problem because Plaintiffs have done the same thing as Mr. Smith: no citation of legal authority in district court followed by appellate reliance on Graham. Plaintiffs acknowledge that their response in opposition to Deputy Maynes’s summary judgment motion in district court “d[id] not contain the legal argument to establish that Plaintiffs’ constitutional rights ... were clearly established at the time in question.” Aplt. Reply Br. at 7. As in Smith, we can hardly say the district court erred in concluding Plaintiffs failed to show the clearly-established-law element of qualified immunity. Indeed, the lack of legal authority indicates a failure to show the constitutional violation element as well.

In their reply brief, Plaintiffs make one last argument to try to salvage their excessive force claim. They contend that earlier in the litigation, when they responded to a motion to dismiss, they addressed qualified immunity with supporting legal authorities sufficient to stave off summary judgment. They ask us to “consider that such analysis and argument has been made in this case” and they further request that we “incorporate it into” Plaintiffs’ response to Deputy Maynes’s motion for summary judgment. Aplt. Reply Br. at 8. We deny this request for two reasons. '

First, “a party waives issues and arguments raised for the first time in a reply brief.” Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (quotations omitted). And second, even if Plaintiffs had made this request in their opening brief, they never alerted the district court nor Defendants in their response to the summary judgment motion that they wished to incorporate qualified immunity arguments made earlier in litigation, and they cannot incorporate by reference now, see Fulghum v. Embarq Corp., 785 F.3d 395, 410 (10th Cir.) (explaining incorporation by reference of arguments made before‘the district court is “not acceptable appellate procedure”), cert. denied, — U.S. -, 136 S.Ct. 537, 538, 193 L.Ed.2d 428 (2015).

As in Smith and Rojas, we conclude the district court properly granted summary judgment. “This isn’t to say [Plaintiffs] lacked (or possessed) a meritorious case,” but “clients ... are usually bound by their lawyers’ actions—or, as here, inactions.” Smith, 707 F.3d at 1162. Plaintiffs failed to carry their burden of showing that Deputy Maynes violated clearly established federal law because their counsel did not. make any legal argument in the district court to rebut qualified immunity. We therefore affirm the district court’s, grant of summary judgment on Count III.

2. Unlawful Entry

Count I of Plaintiffs’ operative complaint alleged that Deputy Maynes’s warrantless entry into the apartment violated the clearly established Fourth Amendment rights of both Ms. Gutierrez and Ms. Flores.

In granting Deputy Maynes’s second motion for summary judgment on this claim, the district court concluded Ms. Gutierrez lacked a reasonable expectation of privacy in her mother’s apartment. As to Ms. Flores, it concluded Deputy Maynes’s entry was reasonable under both the hot-pursuit- and emergency-aid exceptions to the warrant requirement and that, even if Deputy Maynes violated the Fourth Amendment, Plaintiffs had not' shown he had violated clearly established law.

On appeal, Plaintiffs contend Ms. Gutierrez had a reasonable expectation of privacy in the apartment because it was her home too" or because she was an overnight social guest. We decline to resolve this issue. Regardless of whether Ms. Gutierrez had á reasonable expectation of privacy in the apartment, Plaintiffs have not shown that' Deputy Maynes’s entry violated law that was clearly established át the relevant' time—July 4, 2009.

We also decline to address Plaintiffs’ arguments that Deputy Maynes’s entry violated the Fourth Amendment. Instead, we affirm based on the clearly-established-law prong of the qualified immunity analysis, see Pearson, 555 U.S. at 236,129 S.Ct. 808 (permitting courts to address the qualified immunity prongs in any order), in particular as to the hot-pursuit justification for entry.

Plaintiffs dispute the hot-pursuit exception applies here. They argue Deputy Maynes had probable cause to suspect Ms. Gutierrez of only misdemeanor offenses, and they contend “[p]robable cause to arrest for a misdemeanor, by itself, does not justify warrantless entry into a home under the hot pursuit exception.”.Aplt. Br. at 25. Further, they argue that, as of 2009, it was clearly established that “a police officer could not enter a home without a warrant while in hot pursuit of a suspected misdemeanant.” Id. at 28.

We reject this argument because the law is . unsettled even now as to whether an officer’s hot pursuit of a misdemeanor suspect into . a home violates the Fourth Amendment. In Stanton v. Sims, — U.S. -, 134 S.Ct. 3, 187 L.Ed.2d 341 (2013) (per curiam), the Supreme Court explained that “federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect.” 134 S.Ct. at 5. In reversing the Ninth Circuit’s decision to deny qualified immunity to an officer on this issue, the Court emphasized that its earlier cases had not decided this question. Id. at 6-7. And the Court pointedly declined to express any view on the constitutionality of warrantless entries made in hot pursuit of misdemeanor suspects. Id. at 7.

As for Tenth Circuit authority, Plaintiffs cite Mascorro v. Billings, 656 F.3d 1198 (10th Cir. 2011), and although they acknowledge a 2011 decision cannot serve as clearly established law in 2009, Plaintiffs nevertheless appear to argue that Mascor-ro’s discussion of “serious offenses” and its citation to an earlier case, Bledsoe v. Garcia, 742 F.2d 1237 (10th Cir. 1984), supply the clearly established law they need. Aplt. Br. at 25-28. We disagree.

The events in Mascorro occurred in July 2007. In that case we determined that an officer was not entitled to qualified immunity on an unlawful entry claim where he had pursued a fleeing 17-year-old driver into his family home. 656 F.3d at 1202. We observed that the offense—driving without taillights—was a misdemeanor; the officer was “well acquainted” with the minor; the risk of flight was “somewhere between low and nonexistent” because the home had just one exit; there were no concerns about evidence destruction, officer safety, or public safety; and there was no indication that postponing action to obtain a warrant risked any other serious consequences. Id. at 1207. On those facts, we concluded the hot-pursuit exception did not justify the officer’s warrantless entry. Id. We further concluded that at the time of the incident—July 2007—it was clearly established that:

[T]he sort of exigent circumstances permitting officers to enter a suspect’s home without a warrant in pursuit of the suspect ... must involve a serious offense coupled with the existence of an immediate and pressing concern such as destruction of evidence, officer or public safety, or the possibility of imminent escape.

Id. at 1209, Maseorro thus requires a “serious offense” along with other exigent circumstances, but Maseorro did not define “serious offense” or establish that warrant-less entries made in hot pursuit of all misdemeanor suspects necessarily violate the Fourth Amendment.

Plaintiffs argue their case fits Maseorro because Ms! Gutierrez’s misdemeanor offenses were not sufficiently serious. They cite Bledsoe, but in that case we concluded the “exception of exigent circumstances” permitted a warrantless entry made to arrest a suspected misdemeanant. 742 F.2d at 1241. An officer went to the Bled-soe residence to arrest Larry Bledsoe on a bench warrant for failure to appear and to investigate his absent without leave (“AWOL”) status from the military, which was a misdemeanor punishable by up to a year of incarceration. Id. at 1238, 1241. After the officer spoke with Bledsoe át the door and confirmed he was AWOL, the officer allowed Bledsoe to go back inside to tell his mother he would be going to jail. Id. at 1238. Moments later, the officer heard commotion and profanity from inside the house. Id. He and other officers entered the home and arrested two women who interfered with the search for Bled-soe. Id. The women sued the officers under § 1983, alleging the police were not allowed to enter the house. Id. at 1238-40. We determined exigent circumstances— specifically, the gravity of the AWOL offense, the disturbance inside the house, and the possibility of Bledsoe’s flight— justified the warrantless entry. Id. at 1241-42.

Plaintiffs’ argument that Ms. Gutierrez’s offenses were not as serious as the offense in Bledsoe does not, even if accepted, carry their burden to show unlawful entry' in violation of clearly established law. For one thing, Bledsoe was not a hot-pursuit case. See Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (indicating that hot pursuit is implicated where there is “immediate or continuous pursuit ... from the scene of a crime”). Moreover, because we determined in Bledsoe that the officers’ warrantless entry was reasonable, the case did not set a boundary on minimum offense severity. An officer in Deputy Maynes’s position, armed with knowledge of Bledsoe, would not reasonably know which misdemeanors were sufficiently serious to justify a war-rantless entry or sufficiently minor to bar entry. See Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) («The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”), overruled in part on other grounds by Pearson, 555 U.S. 223, 129 S.Ct. 808; see also al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074 (instructing lower courts “not. to define clearly established law at a high level of generality”).

Neither Maseorro nor Bledsoe can do the work Plaintiffs need to meet their burden, and they cite, no other hot-pursuit cases. We therefore affirm the district court’s grant of summary judgment to Deputy Maynes on Count I because Plaintiffs failed to demonstrate that it was “beyond debate,” al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074, in 2009 that the Constitution prohibited a warrantless entry based on hot pursuit in the circumstances presented here.

3. Unlawful Seizure

Plaintiffs alleged in Count II, among other claims not relevant to this appeal, that “Defendant Maynes’ tasing of Ms. Flores constituted a seizure that was not supported by probable cause.” Aplt. App., Vol. 1 at 40 ¶ 73; see also id. (“[T]he tasing of Ms. Flores in this case violated her Fourth Amendment rights.”).

The district court granted Deputy Maynes summary judgment bn this claim because Plaintiffs failed to identify legal authority or record evidence to support their theory that Deputy Maynes’s act of tasing Ms. Flores on the leg was a seizure in violation of clearly established law. Aplt. App., Vol. 5 at 183-86. We agree that Plaintiffs failed to point to clearly established law and affirm on that basis.

Plaintiffs alleged that Deputy Maynes violated Ms. Flores’s Fourth Amendment rights in two respects. First, in Count III, Plaintiffs alleged Deputy Maynes used excessive force against Ms. Flores. But, as already discussed, the district court granted summary judgment to Deputy Maynes on this claim, and on appeal Plaintiffs waived review of the excessive force claim as to Ms. Flores, see supra n.2. Second, in Count II, we understand Plaintiffs to allege that Deputy Maynes unreasonably seized Ms. Flores when he tased her because, irrespective of the amount of force used, he had no legal justification to seize her at all. They argue any seizure of Ms. Flores was unreasonable because she “was not suspected of committing any crimes.” Aplt. Br. at 33.

On Count II, we must again affirm the grant of summary judgment. Plaintiffs failed to show the law was clearly established in 2009 that a tasing under these circumstances was a seizure, and we therefore need not address whether Deputy Maynes had the reasonable suspicion or probable cause necessary to seize Ms. Flores.

Plaintiffs’ summary judgment opposition brief argued that Deputy Maynes lacked a constitutionally sufficient justification to seize Ms. Flores. Plaintiffs, however, did not persuade the district court that 'Ms. Flores was seized in the first place. They cited Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010), for the proposition that “the use of a taser on a person results in a seizure of the victim.” Aplt. App., Vol. 5 at 104. But the district court concluded “Cavanaugh does not support this proposition.” Id. at 184.

In Cavanaugh, police responded to a non-emergency request to find Shannon Cavanaugh, who had walked out of her home after a domestic dispute. 625 F.3d at 662. As Ms. Cavanaugh was returning home and approaching her front door, an officer discharged his taser into her back without warning. Id. at 663, “Ms. Cava-naugh, whose feet were on the front steps of her home, went rigid, spun around, and struck her head on the concrete steps.” Id. As the district court observed, “Ms. Cava-naugh fell and was incapacitated; she was in fact restrained.” Aplt. App., Vol. 5 at 184; see also Cavanaugh, 625 F.3d at 665 (noting Ms. Cavanaugh was arrested). But when she sued under § 1983, her claim was for excessive force, not unlawful seizure. 625 F.3d at 662. We affirmed the district court’s denial of qualified immunity and emphasized, as part of our excessive force analysis, the severe harm tasers can cause, see id. at 665, 667, but whether fhe use of a taser invariably seizes a person for Fourth Amendment purposes was not presented.

Here, after reviewing Cavanaugh, and finding none of Plaintiffs’ other authorities apposite, the district court concluded Plaintiffs had failed to show that Ms. Flores was seized under clearly established law.

On appeal, Plaintiffs do not cite Cavanaugh. Instead, they rely upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), for general Fourth Amendment propositions that, for example, a seizure requires at least a reasonable, articulable suspicion, and that, an officer’s actions are judged for objective reasonableness. Aplt. Br. at 32;- see also Oral Arg. at 6:16-37. Plaintiffs also advise that “[a] person is seized when a reasonable person would believe that she is not free to leave.” Aplt. Br. at 32 (citing Bostick, 501 U.S. at 435, 111 S.Ct. 2382). ,

These general principles do not satisfy Plaintiffs’ burden to show Ms. Flores was unreasonably seized in violation of law that was clearly established at the time. We note that the Supreme Court has said the free-to-leave test “states a necessary, but not a sufficient, condition for seizure.” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

Plaintiffs do not cite authority that clearly establishes Ms. Flores was seized. Although they cite several taser cases, Aplt. Br. at 33 (citing Wilson v. City of Lafayette, 510 Fed.Appx. 775 (10th Cir. 2013) (unpublished); Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007)), these cases concerned excessive force claims and did not establish that the tasing of Ms. Flores necessarily constituted a seizure.

Plaintiffs not only failed to provide legal authority showing it was clear in 2009 that a tasing under these circumstances was a seizure, they did not even provide general authority showing when other methods of police restraint constitute seizures in like circumstances. One Tenth Circuit decision, issued, a year before the incident here, suggests that carrying this burden would have been a tall task. See Clark v. Edmunds, 513 F.3d 1219, 1221-22 (10th Cir. 2008) (where sheriff was taking a woman into protective custody, he did not seize the woman’s mother by pushing her out his way). At oral argument, Plaintiffs candidly acknowledged they did not cite a case establishing when use of a taser effects a seizure. Oral Arg. at 8:22-32; see also id. at 9:ll-35.

We do not and need not decide here whether Ms. Flores was seized. Because Plaintiffs did not proffer clearly established authority that Ms. Flores was seized, they did not carry their burden to rebut qualified immunity on this illegal seizure claim. See Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the burden of citing to us what he thinks constitutes clearly established law.”). Deputy Maynes is entitled to qualified immunity, and we accordingly affirm the district court’s grant of summary judgment.

4. Plaintiffs’ Rule 56(d) Motion

a. Additional Legal Background

In response to a summary judgment motion, a non-moving party may request additional discovery by showing via affidavit or declaration that without discovery “it cannot present facts essential to justify its opposition” to the motion. Fed. R. Civ. P. 56(d). “The court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Id.

In the Tenth Circuit, a non-movant requesting additional discovery under Rule 56(d) “must specify (1) the probable facts not available, (2) why those facts cannot be presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional time will enable [the party] to obtain those facts and rebut the motion for summary judgment.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015) (alteration in original) (quotations omitted). When the summary judgment motion is based on qualified immunity, the non-movant’s Rule 56(d) affidavit must also “demonstrate a connection between the information he would seek in discovery and the validity of the [defendant’s] qualified immunity assertion.” Lewis v. City of Ft. Collins, 903 F.2d 752, 754 (10th Cir. 1990) (alteration in original) (quotations omitted). Thus, “it is insufficient for the party opposing the motion to merely assert that additional discovery is required to demonstrate a factual dispute or that evidence supporting a party’s allegation is in the opposing party’s hands.” Id. (quotations omitted).

b. Standard of Review

“We review the district court’s denial of a Rule 56(d) motion for an abuse of discretion.” Trans-Western Petrol., Inc. v. United States Gypsum Co., 830 F.3d 1171, 1175 (10th Cir. 2016). “[T]he party requesting deferral of judgment ... shoulders the burden of demonstrating an abuse of discretion.” Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015).

c. Analysis

Plaintiffs’ Rule 56(d) motion argued “the information necessary for Plaintiffs to have a full and fair opportunity to respond to Defendant Maynes’ motions for summary judgment is exclusively in the possession of the Defendant.” Aplt. App., Vol. 5 at 35. They requested, among other things, “discovery as to Defendant Maynes’ knowledge, as well as the knowledge of various witnesses,” and information about when the dispatch “recordings were ‘lost’ or became unavailable.” Id. at 33. The affidavit of Plaintiffs’ counsel also specified that Plaintiffs wanted information about Deputy Maynes’s prior training on use of force, the working condition of his taser, and the observations of other officers that night, among other topics. Id. at 38-40. Plaintiffs contended they had “diligently pursued discovery” through other efforts without success. Id. at 35.

The district court denied Plaintiffs’ Rule 56(d) motion as to both of Deputy Maynes’s summary judgment motions. As to the first motion, the court found Plaintiffs’ Rule 56(d) request came more than three months after they had filed their factually detailed response opposing summary judgment. Given the timing, the court questioned whether Plaintiffs’ requested discovery was essential to their ability to respond. As to the second summary judgment motion, the court concluded Plaintiffs’ discovery request was “wide-ranging” and failed to focus on the critical issues for summary judgment. Id. at 58.

Plaintiffs contend the district court should have granted them discovery “narrowly tailored to uncover facts needed to rule on the immunity claim.” Aplt. Br. at 42. They argue their requested information relates to the qualified immunity issue because, for example, Deputy Maynes’s “knowledge at the time of Plaintiffs’ seizures ... goes to reasonableness.” Id. And they reject the district court’s reasoning as to timeliness because even though they responded “to the best of their ability,” they “nonetheless required more information to properly defend against the motions.” Id. at 48.

We perceive no abuse of discretion. As to the first summary judgment motion, we do not fault the district court for denying Plaintiffs’ Rule 56(d) motion as untimely, especially given the court had previously explained the Rule 56 procedure and this was Plaintiffs’ fourth motion for discovery. As to the second summary judgment motion, although Plaintiffs’ requested information is broadly relevant to the qualified immunity issue, their Rule 56(d) motion did not explain how specific information was essential to their summary judgment opposition. See Fed. R. Civ. P. 56(d) (stating non-movant must show “it cannot present facts essential to justify its opposition” (emphasis added)). For instance, Plaintiffs never linked the dispatch recordings they requested in their motion with their ability “to justify [their] opposition” to summary judgment on the qualified immunity issue, id. and this deficiency applies to their other requested discovery topics. As the district court determined, Plaintiffs failed to show “how further discovery would assist in overcoming” summary judgment. Aplt. App., Vol. 5 at 59. Despite Plaintiffs’ general arguments that additional discovery would be helpful, we cannot say the district court’s denial of their Rule 56(d) motion was an abuse of its discretion.

III. CONCLUSION

We affirm the district court’s judgment.

      . Because we are reviewing a grant of summary judgment, we recite the facts “in the light most favorable to the non-moving parties”—the Plaintiffs—and we “resolv[e] all factual disputes and reasonable inferences in their favor.” Cillo v. City of Greenwood Village, 739 F.3d 451, 461 (10th Cir. 2013) (quotations omitted). Deputy Maynes's account is different, see Aplt, App., Vol. 4 at 14-22 (Affidavit of Gabriel Maynes), but, as he acknowledges, see Aplee. Br. at 3 n.6, we must accept Plaintiffs' version on summary judgment. Irrespective of the parties' factual disputes, our decision is based on Plaintiffs' failure to satisfy the clearly-established-law element of qualified immunity.

      . The argument section of Plaintiffs’ opening brief addresses excessive force only as to Ms. Gutierrez. They therefore have waived any opportunity for review of Ms. Flores’s excessive force claim, See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (“[W]e have held that the failure to raise an issue in an opening brief waives that issue." (quotations omitted)).

      . To her credit, Plaintiffs’ counsel acknowledges that her briefing in the district court was deficient and that she "has learned much over the duration of this case.” Aplt. Reply Br. at 9.

      . The district court determined that Deputy Maynes had probable cause to arrest Ms. Gutierrez for aggravated fleeing, a felony under N.M. Stat. Ann. § 30-22-1.1. Plaintiffs argue this was error, but we need not decide whether the district court erred in its probable 'cause assessment. Even assuming Deputy Maynes had probable cause to suspect Ms. Gutierrez of only misdemeanor offenses, Plaintiffs have not shown that his hot-pursuit entry into the apartment violated clearly established law,
      Relatedly, because we conclude a reasonable officer in Deputy Maynes’s position could have thought that the Fourth Amendment allowed a warrantless entry under the hot-pursuit exception, we have no need to address whether his' entry would have been justified under the emergency-aid exception or to assess whether any violation would have been one of clearly established law as to that exception.

      . For instance, United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), affirmed a warrantless home entry where police were in hot pursuit of a felony suspect, but the Stanton Court said that "though Santana involved a felony suspect, we did not expressly limit our holding based on that fact.” Stanton, 134 S.Ct. at 6. Similarly, the Court explained that "nothing in the opinion” in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), which requires consideration of offense gravity as part of an exigency analysis, "establishes that the seriousness of the crime is equally important in cases of hot pursuit.” 134 S.Ct. at 6.

      . Before the district court, Plaintiffs also argued Ms. Flores was seized by the taser because it caused her to submit to Deputy Maynes's authority: in response to the tasing, she ceased her pleas on behalf of her daughter. See Brendlin v. California, 551 U.S. 249, 262, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (holding that "what may amount to submission depends on what a person was doing before the show of authority”). The district court rejected this theory, however, because Plaintiffs failed to identify any record evidence to support it. Plaintiffs do not- advance this theory on appeal.

      . Plaintiffs' counsel further explained that what happened to Ms. Flores "may not have been a Seizure," but Plaintiffs contend Deputy Maynes’s conduct as to Ms. Flores was "gratuitous.” Oral Arg. at 9:12-35.