94 F.3d 1478
132 Lab.Cas.  P 33,441, 3 Wage & Hour Cas.2d(BNA) 769
Lori G. McKENZIE, Plaintiff-Appellant,v.RENBERG'S INC., and Robert Renberg, Defendants-Appellees.
No. 94-5197.
United States Court of Appeals,Tenth Circuit.
Sept. 4, 1996.

James C. Hodges of Eller & Detrich, Tulsa, Oklahoma (Charles L. Richardson and Brad Smith of Richardson & Stoops, with him on the brief), for Plaintiff/Appellant.
Larry D. Henry of Arrington, Kihle, Gaberino & Dunn, Tulsa, Oklahoma (Patrick W. Cipolla, with him on the brief), for Defendants/Appellees.
Before SEYMOUR, Chief Judge, TACHA and EBEL, Circuit Judges.
EBEL, Circuit Judge.

1
Plaintiff-Appellant Lori G. McKenzie brought this action against her former employer, Renberg's Inc., and its president, Robert Renberg (collectively "defendants"), asserting claims for retaliatory discharge in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3), and wrongful discharge in violation of Oklahoma public policy.  The district court dismissed McKenzie's state law wrongful discharge claim prior to trial under Fed.R.Civ.P. 12(b)(6).  McKenzie received a favorable jury verdict on her retaliation claim, but the district court thereafter entered judgment as a matter of law for defendants.  McKenzie now appeals these two rulings.1  We have jurisdiction under 28 U.S.C. § 1291 and we affirm.2  We hold that McKenzie did not engage in protected activity under § 215(a)(3) when, in her capacity as personnel director, she undertook to advise Renberg's that its wage and hour policies were in violation of the FLSA.

BACKGROUND

2
Renberg's, Inc.  ("the company") hired McKenzie as a receptionist in July 1984.  She was promoted to Assistant Personnel Director in October 1984, and in May 1985, she became the company's Personnel Director.  As Personnel Director, McKenzie was responsible for monitoring compliance with state and federal equal employment opportunity laws, wage and hour laws, and other laws regulating the workplace.

3
In August 1991, a co-worker of McKenzie, Marsha McElroy, attended a seminar on wage and hour laws and returned with various informational materials.  McElroy gave these materials to McKenzie, who, after reviewing them, became concerned that certain employees of the company were not receiving proper compensation for working overtime.  McKenzie discussed the matter with McElroy, and then decided to disclose her concerns to the company attorney, Steve Andrew.  McKenzie and McElroy met with Andrew on September 4, 1991, and later that same day, McKenzie also discussed the wage and hour problem with Robert Renberg ("Renberg"), the company president.  Sixteen days later, on September 20, 1991, McKenzie was terminated by Renberg.

4
Believing she had been retaliated against for reporting the company's possible wage and hour violations, McKenzie filed suit in the United States District Court.  In her complaint, McKenzie asserted an FLSA retaliatory discharge claim under 29 U.S.C. § 215(a)(3).  This statutory provision makes it unlawful for an employer

5
to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

6
29 U.S.C. § 215(a)(3).  McKenzie also asserted a state law claim for wrongful discharge in violation of Oklahoma public policy, see Burk v. K-Mart Corp., 770 P.2d 24 (Okla.1989).3  The district court dismissed the Burk public policy claim under Fed.R.Civ.P. 12(b)(6).  The FLSA retaliation claim was tried to the jury.

7
The parties vigorously disputed the facts at trial.  McKenzie testified that the defendants were not very open to her concerns about the company's possible FLSA violations.  According to McKenzie's testimony, Andrew seemed not to understand her concerns and would not examine the seminar materials she had brought to the September 4, 1991 meeting.  McKenzie testified that at one point in the meeting, Andrew drew a line on a legal pad--apparently representing the symbolic line between "right" and "wrong"--and indicated to McKenzie that he was not afraid to cross that line.  After the meeting with Andrew, McKenzie spoke with Renberg.  McKenzie testified that Renberg also seemed indifferent to the wage and hour problem.  She had the impression that Renberg had already spoken to Andrew about the FLSA issue.  McKenzie testified that after these meetings she began to feel uneasy and feared for her job.

8
McKenzie testified that her uneasiness continued during the next few weeks, as Andrew would not return her repeated phone calls.  On September 20, 1991, Renberg came to McKenzie's office and fired her.  McKenzie testified that Renberg's only stated reason for firing her was his "loss of confidence" in her.  McKenzie later discovered that she had been under investigation by an internal security officer since September 12, 1991, eight days after she first reported the FLSA violations to Andrew.  Renberg testified that he had personally requested the investigation of McKenzie, and that McKenzie was the only employee he specifically remembered ever having asked to be investigated.  Finally, McKenzie testified that she had received no warnings or complaints from the defendants about her performance, despite a general company policy that required progressive counseling about performance problems before termination.

9
The defendants disputed much of McKenzie's testimony at trial.  Andrew testified that the company did not have a progressive discipline system in place, nor did it have an employee's manual at the time of McKenzie's discharge.  In addition, the defendants sought to rebut McKenzie's claim of retaliation by offering evidence that Marsha McElroy, who attended the FLSA seminar and who also raised the possible FLSA violations with Andrew, was not terminated.

10
Renberg denied that McKenzie's discharge was in retaliation for her protected FLSA activity.  Renberg testified that he fired McKenzie for two legitimate reasons:  (1) for disclosing confidential information in her role as personnel director;4  and (2) for notarizing a "contract" between two company employees for sexual favors.  The "contract," which was entered into by Brenda Jagels, an on-call sales clerk, and David Childers, a company vice-president, provided in relevant part as follows:

11
AREA OF CONTENTION:  Renberg's Christmas Bonus

12
TERMS OF THE AGREEMENT:  Should Christmas bonuses not be paid in their usual manner to the employees of Renberg's Inc., a company operating in Tulsa, Oklahoma, then David Childers will provide Brenda Jagels with the following:

13
(1) Fendi Parfum 1.4 oz.

14
(1) Fendi EDT

15
(1) Fendi Body Lotion or Creme

16
(1) Erno Laszlo Eye Creme

17
However, should Christmas bonuses be paid then Brenda Jagels will provide David Childers with a very special and provocatively intimate evening;  time, place and duration to be negotiated.

18
PAYMENT: Made on or before December 25, 1989.

19
Brenda, this letter is intended to be a binding contract.  Please signify your agreement with the foregoing provisions by signing below and returning one copy for my file.

20
At trial, McKenzie admitted that she had notarized the sex contract, but stated that she had neither read it nor was aware of its content when she notarized it.  McKenzie also admitted that she had made a mistake by notarizing the contract.

21
The trial was conducted in three stages, with the question of FLSA liability decided first, followed by the jury's determination of back pay and compensatory damages, and finally, of punitive damages.  After the liability phase, the jury concluded that the defendants' asserted non-retaliatory reasons for discharging McKenzie were pretextual and returned a special interrogatory finding that McKenzie was terminated in retaliation for reporting her belief that Renberg's was in violation of the Fair Labor Standards Act.  After the two damages phases of the trial, the jury returned verdicts awarding McKenzie $100,000 in back pay, $175,000 in emotional distress damages, and $50,000 in punitive damages.  The district court deferred entry of judgment on the jury's verdict and ordered further briefing from the parties on the question whether emotional distress and punitive damages were authorized under the FLSA.  On July 15, 1994, the district court issued its findings of fact and conclusions of law, pursuant to which the court:  (1) reduced McKenzie's back pay award to $50,983.04;  (2) granted McKenzie an additional equal amount of $50,983.04 as liquidated damages;  (3) denied McKenzie's request for front pay under the equitable doctrine of "unclean hands";  and (4) (apparently) ruled that emotional distress and punitive damages were not available under the FLSA as a matter of law.

22
After the district court entered a corresponding judgment in favor of McKenzie, the defendants filed a Motion for Judgment as a Matter of Law under Fed.R.Civ.P. 50, or in the alternative, a Motion for New Trial under Fed.R.Civ.P. 59.  The district court granted the Motion for Judgment as a Matter of Law, and ruled that the Motion for New Trial was moot.  McKenzie now appeals.

DISCUSSION
I. Motion for Judgment as a Matter of Law

23
McKenzie first challenges the district court's decision to grant the defendants judgment as a matter of law on her FLSA retaliation claim.  We review de novo the grant or denial of a motion for judgment as a matter of law, applying the same legal standard as the district court.  Clark v. R.E.L. Prods., Inc., 972 F.2d 317, 317 (10th Cir.1992).  In conducting this review, we must determine whether, " 'viewing the evidence in the light most favorable to the nonmoving party, the evidence and the inferences to be drawn from it are so clear that reasonable minds could not differ on the conclusion.' "  Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1380 (10th Cir.1989) (quoting Guilfoyle v. Missouri, Kansas & Texas R.R. Co., 812 F.2d 1290, 1292 (10th Cir.1987)).  Judgment as a matter of law may be granted under Fed.R.Civ.P. 50 "only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion."  FDIC v. United Pac.  Ins. Co., 20 F.3d 1070, 1079 (10th Cir.1994).  Applying this standard, we affirm the judgment of the district court, although we do so on a different ground than that relied upon below.

A.

24
The Tenth Circuit applies a "motivating factor" analysis to claims of retaliatory discharge under § 215(a)(3) of the FLSA:  "When the 'immediate cause or motivating factor of a discharge is the employee's assertion of statutory rights, the discharge is discriminatory under § 215(a)(3) whether or not other grounds for discharge exist.'   If retaliation is not the motivating factor, then the discharge is not unlawful."  Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir.)  (quoting Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th Cir.1992)), cert. denied, --- U.S. ----, 116 S.Ct. 2552, 135 L.Ed.2d 1071 (1996).  The motivating factor test is equivalent to a "but for" inquiry--a discharge is unlawful under § 215(a)(3) "only if it would not have occurred but for the retaliatory intent."  Martin, 977 F.2d at 1408 n. 4.

25
We believe the jury verdict rendered in this case is dispositive of the retaliation issue.  At trial, the jury was presented with McKenzie's evidence of retaliation, as well as the defendants' evidence regarding their asserted non-retaliatory reasons for the discharge.  The trial judge correctly instructed the jury that McKenzie bore the burden of proving that her FLSA activity was the "motivating factor" in the termination decision and that she would not have been discharged "but for" the defendants' retaliatory intent.  See Martin, 977 F.2d at 1408 & n. 4.   In this regard, the jury was told that if it found McKenzie would have been terminated regardless of her FLSA activity, then it was required to find in favor of the defendants.  See Reich v. Davis, 50 F.3d 962, 966 (11th Cir.1995) (holding that under the "but for" test, a retaliation plaintiff cannot prevail if she "would have suffered exactly the same adverse action even if [she] had not engaged in FLSA activities").  After being given these instructions, the jury returned a special interrogatory finding that McKenzie was terminated because of her FLSA activity.  The jury therefore rejected the defendants' asserted non-retaliatory reasons and found that unlawful retaliation was the "but for" cause of McKenzie's discharge.5

26
Despite the jury's express finding of retaliatory intent, the district court granted the defendants' motion for judgment as a matter of law.  The district court reasoned that because the defendants would have been justified in discharging McKenzie for notarizing the sex contract, they could not be held liable under the FLSA even if they had unlawfully retaliated against McKenzie.  In the district court's view, the sex contract provided an independent lawful justification for McKenzie's discharge which trumped any retaliatory motive on the defendants' part:

27
[W]hen all of the evidence is viewed in a light favorable to Plaintiff, and all reasonable inferences are granted thereto, the evidence is sufficient to submit the issue to the trier of fact....  However, the evidence regarding Plaintiff's participation in the written quid pro quo contract for sexual favors presents a different matter.  If this nonpretextual reason standing alone would support employment termination, a judgment as a matter of law is appropriate even though a factual issue exists regarding alleged retaliation pursuant to 29 U.S.C. § 215(a)(3).

28
(Aplt.App. at 37-38.)

29
Under the district court's approach, the dispositive question is whether the defendants would have been justified in terminating McKenzie for notarizing the sex contract.  This approach, however, disregards both the jury's express findings of fact and the "but for" test of causation.  Under the "but for" standard, only those employees "who would have suffered exactly the same adverse action even if they had not engaged in FLSA activities will be unprotected...."  Davis, 50 F.3d at 966 (emphasis added).  Thus, the mere existence of a non-retaliatory motive that would justify an employee's discharge does not absolve an employer of liability for a retaliatory employment decision;  rather, the employer must actually rely on that nonretaliatory reason as the sufficient, motivating reason for the employment decision.  As the Supreme Court recently stated, "proving that the same decision would have been justified ... is not the same as proving that the same decision would have been made."  McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, ----, 115 S.Ct. 879, 885, 130 L.Ed.2d 852 (1995) (omission in original) (quotation omitted).  In other words, an employer may not prevail "by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision."  Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) (plurality opinion) (involving a mixed-motive situation).  Here, the defendants were given the opportunity at trial to persuade the jury that McKenzie was terminated not for reporting her wage and hour concerns, but for notarizing the sex contract.  The jury, however, was not convinced.  The jury instead found that the "but for" cause of McKenzie's discharge was her FLSA activity, and that the defendant's asserted "sex contract" rationale was a pretext. Given these findings of fact, it is immaterial whether the defendants would have been justified in discharging McKenzie for notarizing the sex contract, as the jury concluded she was not actually discharged for this reason.

B.

30
The district court erred in another important respect as well.  At trial, McKenzie argued that Renberg was not aware of the existence of the sex contract until after he terminated her, and thus could not have relied on the contract in making his decision.  To support her argument, McKenzie offered into evidence a copy of the sex contract with a handwritten date of "10/7/91" in the upper right-hand corner--a date approximately three weeks after McKenzie was terminated.  Renberg, on the other hand, testified that a copy of the document was discovered and turned over to him sometime prior to McKenzie's termination.6  The district court avoided this potential factual complication by invoking the so-called "Summers doctrine."   See generally Summers v. State Farm Mut. Auto.  Ins. Co., 864 F.2d 700, 708 (10th Cir.1988) (holding that an employer may avoid liability for a discriminatory discharge if, subsequent to the employee's discharge, the employer discovers evidence of wrongdoing that would have led to the employee's termination on lawful and legitimate grounds).  In ruling on the defendants' motion for judgment as a matter of law, the district court applied Summers and reasoned that even if Renberg did not learn of the sex contract until after McKenzie's discharge, defendants nevertheless could rely on the sex contract to justify their termination decision.

31
While the district court's reasoning may have been consistent with our precedents at the time, the Summers doctrine has since been rejected.  Shortly after the district court's decision in this case, the Supreme Court decided McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995).  In McKennon, the Court specifically disapproved of our decision in Summers and held that an employer's after-acquired evidence of misconduct cannot operate to bar an employee's discrimination action.  See 513 U.S. at ----, 115 S.Ct. at 885 ("The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason.").  Thus, the district court's reliance on Summers was in error.

C.

32
Notwithstanding the district court's errors, defendants urge us to affirm the judgment on two grounds not relied upon below.  "An appellee may defend the judgment won below on any ground supported by the record."  In re Robinson, 921 F.2d 252, 253 (10th Cir.1990);  see also United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994) (appellate court may " 'affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court' ") (quoting Medina v. City and County of Denver, 960 F.2d 1493, 1495 n. 1 (10th Cir.1992)).  Defendants argue that judgment as a matter of law was properly granted in their favor because:  (1) McKenzie's conduct was not protected activity under § 215(a)(3);  and (2) McKenzie failed to present sufficient evidence at trial to support the jury's finding of retaliation.  Because we agree with the first of these propositions, we need not reach the second.

33
Defendants argue that McKenzie's act of reporting her good faith concerns about the company's possible wage and hour violations was not sufficient to trigger the protections of § 215(a)(3).7  According to defendants, McKenzie was not asserting any rights under the FLSA but rather was merely performing her everyday duties as personnel director for the company.  Section 215(a)(3) makes it unlawful for an employer

34
to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

35
29 U.S.C. § 215(a)(3).  Although this provision specifically lists the types of activities which are protected from retaliation, we have held that § 215(a)(3) also protects employees who articulate a good faith, though unproven, belief that the employer is violating their rights under the FLSA.  Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984).  We also have held that § 215(a)(3) "applies to the unofficial assertion of rights through complaints at work."  Id.

36
Despite our expansive interpretation of § 215(a)(3), we have never held that an employee is insulated from retaliation for participating in activities which are neither adverse to the company nor supportive of adverse rights under the statute which are asserted against the company.  Indeed, the contrary conclusion follows directly from our decision in Love, where we held that in order to be protected under § 215(a)(3), an employee need not file an official complaint or institute an FLSA proceeding, so long as the employee makes a "good faith assertion of [one's] statutory rights."  738 F.2d at 387 (emphasis added);  see also EEOC v. Romeo Community Schools., 976 F.2d 985, 989 (6th Cir.1992) (per curiam) ("The Love Court held that it is the assertion of statutory rights that is the triggering factor, not the filing of a formal complaint.  This view is in accord with other circuits.")  (collecting cases).  Thus, it is the assertion of statutory rights (i.e., the advocacy of rights) by taking some action adverse to the company--whether via formal complaint, providing testimony in an FLSA proceeding, complaining to superiors about inadequate pay, or otherwise--that is the hallmark of protected activity under § 215(a)(3).

37
Here, McKenzie never crossed the line from being an employee merely performing her job as personnel director to an employee lodging a personal complaint about the wage and hour practices of her employer and asserting a right adverse to the company.  McKenzie did not initiate a FLSA claim against the company on her own behalf or on behalf of anyone else.  Rather, in her capacity as personnel manager, she informed the company that it was at risk of claims that might be instituted by others as a result of its alleged FLSA violations.  In order to engage in protected activity under § 215(a)(3), the employee must step outside his or her role of representing the company and either file (or threaten to file) an action adverse to the employer, actively assist other employees in asserting FLSA rights,8 or otherwise engage in activities that reasonably could be perceived as directed towards the assertion of rights protected by the FLSA.  Here, McKenzie did none of these things.  Indeed, McKenzie testified that her job responsibilities included participating in wage and hour issues.  There is no evidence in the record to suggest that McKenzie was asserting any rights under the FLSA or that she took any action adverse to the company;  rather, the record reflects that McKenzie's actions in connection with the overtime pay issue were completely consistent with her duties as personnel director for the company to evaluate wage and hour issues and to assist the company in complying with its obligations under the FLSA.  McKenzie therefore lacks an essential ingredient of a retaliation claim;  that is, she did not take a position adverse to her employer or assert any rights under the FLSA.  Accordingly, McKenzie did not engage in activity protected under § 215(a)(3), and we affirm the judgment as a matter of law in favor of the defendants on this alternative ground.  Because this ruling disposes of McKenzie's FLSA retaliation claim, we need not address McKenzie's arguments regarding front pay, back pay, or emotional distress and punitive damages:  As McKenzie's liability claim fails, so must her claims for legal and equitable relief.

38
II. Dismissal of McKenzie's State Law Wrongful Discharge Claim

39
McKenzie next argues that the district court erred in dismissing, for failure to state a claim, her state law tort claim for discharge in violation of Oklahoma public policy.  We review de novo the district court's grant of a motion under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.  Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir.1995).

40
McKenzie's state law claim is predicated upon Burk v. K-Mart Corp., 770 P.2d 24 (Okla.1989).  In Burk, the Oklahoma Supreme Court carved out a narrow exception to the Oklahoma employment-at-will doctrine by recognizing a tort cause of action "where an employee is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy."  770 P.2d at 29.   McKenzie alleges that she was discharged for reporting her concerns that the company was not properly paying overtime pay to sales associates and department managers.  Assuming this allegation is true,9 McKenzie can prevail on her Burk claim only if she can show that Oklahoma has a clearly established public policy regarding maximum work hours and overtime pay.

41
McKenzie has not pointed us to any specific Oklahoma statute establishing a public policy of this sort.  Moreover, we find no Oklahoma constitutional, statutory or decisional law which would require an employer such as Renberg's, Inc. to pay overtime compensation to its employees.  The absence of any Oklahoma law on this subject is underscored by the fact that although the Oklahoma legislature has adopted the federal standards for minimum wages, see Okla.  Stat. tit. 40 § 197.2 (making it unlawful for an employer in Oklahoma to "pay any employee a wage of less than the current federal minimum wage for all hours worked"), it has not adopted the FLSA standards governing maximum hours and overtime, see 29 U.S.C. § 207.

42
We also reject McKenzie's argument that the comprehensive Oklahoma statutory scheme governing the employer/employee relationship establishes a clear and compelling public policy mandating the payment of overtime compensation.  Of the entire body of Oklahoma statutory law governing the employment relationship, McKenzie directs our attention to only one specific provision mentioning overtime pay, Okla.  Stat. tit. 40 § 165.1.  Section 165.1 is the definitions section of the Oklahoma Protection of Labor Act and defines the term "wages" as "compensation owed by an employer for labor or services rendered, including salaries, commissions, holiday and vacation pay, overtime pay, severance or dismissal pay, bonuses and other similar advantages agreed upon between the employer and the employee...."  Okla.  Stat. tit. 40 § 165.1(4) (emphasis added).  In light of the Burk court's admonition that the public policy exception be "tightly circumscribed" and reserved for violations of "established and well-defined public policy," 770 P.2d at 29, we believe section 165.1(4)'s passing reference to "overtime pay" is far too slender a reed upon which to base a public policy tort.  Although it mentions overtime pay, section 165.1(4) does not prescribe a limit for maximum working hours, nor does it set forth a specific formula for calculating overtime pay.10  The absence of any clearly articulated overtime pay policy in the Oklahoma statutory scheme suggests that the Oklahoma courts would not entertain a Burk claim founded upon a discharge for reporting an employer's failure to pay overtime.

43
Despite the lack of a well-defined state policy, McKenzie argues that her Burk claim is cognizable because it is predicated upon a public policy found in a combined regime of both state and federal law.  McKenzie relies on two cases of the Oklahoma Supreme Court to support this argument, Tate v. Browning-Ferris, Inc., 833 P.2d 1218 (Okla.1992), and Todd v. Frank's Tong Serv., Inc., 784 P.2d 47 (Okla.1989).  In Tate, the court held that a plaintiff who alleged a discriminatory discharge in violation of the Oklahoma and federal anti-discrimination statutes stated a claim under Burk.  833 P.2d at 1222-25.   In Todd, the court upheld a Burk claim where the plaintiff alleged that he had been discharged for refusing to operate a vehicle that did not comply with both state and federal safety regulations.  784 P.2d at 50.

44
We believe Tate and Todd are distinguishable from the case at bar.  Unlike the present case, the alleged wrongful discharges in both Tate and Todd not only violated applicable federal law, but they also violated a mandate of state public policy clearly expressed in the Oklahoma statutes.  In Tate, for instance, the plaintiff alleged he had been fired because of his race--an action contrary to both the federal policy expressed in Title VII, 42 U.S.C. § 2000e et seq., and the state policy expressed in the Oklahoma anti-discrimination statute, Okla.  Stat. tit. 25 § 1101 et seq.   Similarly, in Todd, the plaintiff alleged he was unlawfully discharged for refusing to operate an unsafe vehicle in violation of the federal Surface Transportation Assistance Act, 49 U.S.C.App. § 2305 (recodified at 49 U.S.C.App. § 31105(a)), and for refusing to operate a vehicle that was not in compliance with state safety regulations, Okla.  Stat. tit. 47 §§ 12-201, 12-301.  Here, by contrast, McKenzie cannot direct our attention to any specific Oklahoma policy or statute mandating the payment of overtime compensation to private employees.  The most she can do is allege a violation of the federal FLSA.  We therefore affirm the dismissal of McKenzie's Burk public policy claim.11CONCLUSION

45
For the foregoing reasons, the judgment of the district court is AFFIRMED.

1
 McKenzie also appeals:  (1) the district court's refusal to enter judgment on the emotional distress and punitive damages awarded her by the jury on the FLSA claim;  (2) the reduction of her FLSA back pay award;  and (3) the denial of front pay.  However, we need not reach those issues

2
 The Court also has before it the defendants' motion for sanctions.  We have considered the arguments therein and hereby deny the motion

3
 McKenzie also brought a state law claim for intentional infliction of emotional distress and a federal claim of sex discrimination under Title VII.  The emotional distress claim was dismissed prior to trial in an order from which McKenzie does not appeal.  McKenzie's Title VII claim apparently was abandoned prior to trial (see District Court's Pretrial Order, Aplt.App. at 1-2) and therefore we do not address it in this appeal

4
 The alleged breaches of confidentiality involved McKenzie disclosing the names of company employees suspected of criminal activity and divulging the impending demotion of a department manager

5
 In its Findings of Fact and Conclusions of Law, the district court acknowledged the jury's rejection of the defendants' asserted non-retaliatory reasons:
The jury found that the Plaintiff was willfully and intentionally retaliated against and terminated by Defendants on September 20, 1991, because she had communicated good faith concerns regarding possible FLSA violations by Renberg's, Inc.  The jury concluded Defendants' proffered reasons for Plaintiff's termination were pretextual.
Aplt.App. at 27-28 (emphasis added).

6
 In his deposition, Renberg testified that he first was given a copy of the sex contract sometime between March and September of 1991.  At trial, however, Renberg testified that he first saw the document just a few days before he fired McKenzie

7
 The instruction to the jury on protected activity included the following statement:  "The parties have stipulated that plaintiff complained about practices she in good faith believed may have been unlawful under the Fair Labor Standards Act.  The parties herein agree that good faith reporting or communicating concerns regarding possible FLSA violations is protected activity."  (Jt.2d Supp.App., Tab A.)   While this "stipulation" would appear to preclude defendants' from arguing on appeal that McKenzie did not engage in protected activity, it is apparent from the colloquy between defense counsel and the trial judge that defendants neither agreed to this instruction nor entered into such a stipulation.  Indeed, defendants repeatedly objected to the form of the protected activity instruction, and although the court overruled their objections, it did acknowledge on several occasions that the issue was preserved for appeal.  See, e.g., Jt.2d Supp.App. at 510 ("[U]nderstanding you're very much interested in preserving that point for purposes of the beyond here, that is for appellate purposes--and I understand that, and you've raised it ....");  id. at 511 ("[C]an't we stipulate under the theory that I'm submitting it to the jury, certainly preserving your right to say, Judge, you're wrong ....");  id. at 512 ("[G]iving you the right to preserve your objection .... and certainly preserving your right to keep your issue for purposes of appeal alive....").  In light of these statements, we do not deem the argument waived

8
 The Tenth Circuit has not addressed whether § 215(a)(3) protects actions taken by an employee on behalf of other employees.  In Title VII cases, the "opposition" clause contained in that statute's anti-retaliation provision, 42 U.S.C. § 2000e-3(a), protects conduct by an employee who is not the direct victim of a practice made unlawful under Title VII, but who "opposes" such discrimination against others.  Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990);  see, e.g., Eichman v. Indiana State Univ.  Bd. of Trustees, 597 F.2d 1104, 1107 (7th Cir.1979) (protecting a man who assisted a female co-worker in asserting her right to be free from sex discrimination);  Jones v. Lyng, 669 F.Supp. 1108, 1121 (D.D.C.1986) (same).  While the FLSA contains no similar "opposition" clause, we assume, without deciding, that the language of § 215(a)(3) is sufficiently broad to encompass conduct taken on behalf of others.  See, e.g., 29 U.S.C. § 215(a)(3) (making it unlawful for an employer to retaliate against an employee "because such employee has filed any complaint or instituted or cause to be instituted any proceeding under [the FLSA], or has testified or is about to testify in any such proceeding ....") (emphasis added).  Section 215(a)(3) does not explicitly require that the employee's protected conduct relate to the assertion of his or her own statutory rights

9
 Because we are reviewing the sufficiency of the complaint, we must accept all well-pleaded allegations in the complaint as true and construe the allegations in the light most favorable to McKenzie.  Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir.1993).  Thus, we assume that McKenzie was retaliated against for reporting her good faith belief that Renberg's was violating the FLSA overtime provisions

10
 Indeed, in those particular situations where the Oklahoma Legislature has mandated the payment of overtime to employees, it has provided the amount by statute.  See, e.g., Okla.  Stat. tit. 40 § 196.3(A) (requiring "all workmen employed by or on behalf of any public body engaged in the construction of public works" to be paid "not less than the prevailing hourly rate of wages for legal holiday and overtime work ") (emphasis added).  Section 196.2(3) of the statute defines the "prevailing hourly rate of wages" as "the wages and fringe benefits determined to be prevailing by the United States Department of Labor pursuant to [federal law]."

11
 Defendants alternatively argue that the FLSA preempts any state law tort claim based on an employer's retaliation against an employee for making an FLSA complaint.  However, because McKenzie has not even asserted a violation of Oklahoma public policy cognizable under Burk, we need not reach the constitutional issue of preemption.  See Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (noting well-established rule that federal courts should avoid deciding constitutional issues if narrower grounds for decision exist)


         10-3240-ag
         Siuabalasingam v. Holder
                                                                                BIA
                                                                               A076 154 805
                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                    Circuit Judges.
11       _______________________________________
12
13       SACHILATHA SIUABALASINGAM, AKA
14       SRIESWARY SAKKARAUTHAN,
15                Petitioner,
16
17                           v.                                 10-3240-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                     Visuvanathan Rudrakumaran, New York,
25                                           N.Y.
26
27       FOR RESPONDENT:                     Tony West, Assistant Attorney
28                                           General; Richard M. Evans, Assistant
29                                           Director; Jeffrey J. Bernstein,
30                                           Attorney, Office of Immigration
 1                             Litigation, Civil Division, United
 2                             States Department of Justice,
 3                             Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is GRANTED.

 9       Sachilatha Siuabalasingam, a native and citizen of Sri

10   Lanka, seeks review of a July 15, 2010 decision of the BIA

11   denying her motion to reopen.       In re Sachilatha

12   Siuabalasingam, No. A076 154 805 (B.I.A. July 15, 2010).        We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of this case, which we reference only

15   as necessary to explain our decision to grant the petition

16   for review.

17       We review the BIA’s denial of a motion to reopen for

18   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

19   Cir. 2006).    Where the BIA evaluates country conditions

20   evidence, we review that determination for substantial

21   evidence.     Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

22   Cir. 2008).

23

24

                                     2
 1       The BIA denied Siuabalasingam’s motion finding that she

 2   did not establish her prima facie eligibility for relief.1

 3   In order to meet this burden she was required to “show a

 4   realistic chance that [she] will be able to establish [her]

 5   eligibility [for asylum].”   Poradisova v. Gonzales, 420 F.3d

 6   70, 78 (2d Cir. 2005) (emphasis added; internal quotation

 7   marks omitted).

 8       Siuabalasingam claims she carried this burden by

 9   showing (1) that subsequent to her prior asylum hearing, the

10   persecution of Tamils resumed and intensified; (2) failed

11   Tamil asylum seekers who are returned to Sri Lanka are

12   routinely persecuted or tortured by the government; and (3)

13   the Sri Lankan government will single her out for

14   persecution because she participated in protests in the

15   United States.

16       Errors of law appear to have informed the BIA’s

17   conclusion that Siuabalasingam did not establish a pattern

18   or practice of persecution against Tamils.   Reports of the

19   United States Department of State (“State Department”) and

           1
             Because Siuabalasingam’s motion to reopen was filed
       more than 90 days after the BIA’s final order of removal,
       she was required to establish changed country conditions.
       See 8 U.S.C. § 1229a(c)(7)(C). As the BIA did not
       determine whether she established a material change in
       Sri Lanka we do not address the issue.
                                   3
 1   the United Nations High Commissioner for Refugees (“UNHCR”)

 2   do not simply demonstrate isolated incidents of violence

 3   against Tamils, as indicated by the agency.     See In re

 4   Sachilatha Siuabalasingam, slip op. at 2.     Rather, these

 5   reports describe widespread violence against Tamils

 6   perpetrated by the Sri Lankan government, government-

 7   supported paramilitary groups, and other actors.     For

 8   example, the UNHCR report states that “[h]arassment,

 9   intimidation, arrest, detention, torture, abduction and

10   killing at the hands of government forces, the LTTE [i.e.,

11   the Tamil Tigers] and paramilitary or armed groups are

12   frequently reported to be inflicted on Tamils from the North

13   and East.   Individuals suspected of having LTTE affiliations

14   are at risk of human rights abuses by the authorities or

15   allegedly government sponsored paramilitary groups.”       CAR at

16   110.   The State Department report also describes killings,

17   disappearances, and torture perpetrated against Tamils by

18   paramilitaries and securities forces who operate with

19   “systemic impunity.”   Id. at 85, 87.   See Cao He Lin v. U.S.

20   Dep’t of Justice, 428 F.3d 391, 405 (2d Cir. 2005)

21   (remanding case where agency “mischaracterized the record”).

22

                                   4
 1      Moreover, the BIA failed adequately to explain its

 2   conclusion that Siuabalasingam did not establish prima facie

 3   eligibility for relief based on a pattern or practice of

 4   persecution against Tamil returnees.   While the BIA

 5   generally need not “expressly parse or refute on the record”

 6   every piece of evidence a movant offers, see Wei Guang Wang

 7   v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), the BIA here

 8   abused its discretion in failing to offer any explanation

 9   for its decision not to credit Siuabalasingam’s extensive

10   relevant evidence about the Sri Lankan government’s

11   mistreatment of returnees.   See Poradisova, 420 F.3d at 81-

12   82 (holding that the BIA abused its discretion in denying a

13   motion to reopen where it gave only a perfunctory summary of

14   material evidence in the record).

15       Finally, the BIA failed to address Siuabalasingam’s

16   claim that she faced a particular risk of mistreatment as a

17   result of her political activity in the United States.

18   While Siuabalasingam had been found not credible at her

19   initial removal hearing in claiming past persecution in Sri

20   Lanka, that finding was not determinative of her new claim,

21   based on subsequent activity in the United States.     See Paul

22   v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2008) (“[A]n

                                   5
 1   [asylum] applicant may prevail on a theory of future

 2   persecution despite an IJ’s adverse credibility ruling as to

 3   past persecution, so long as the factual predicate of the

 4   applicant’s claim of future persecution is independent of

 5   the testimony that the IJ found not to be credible.”).

 6       Thus, without expressing any view as to how the agency

 7   should resolve these questions, we need to know that they

 8   have been addressed and the basis for their resolution to

 9   conduct even deferential review.     See Poradisova, 420 F.3d

10   at 77.

11       For the foregoing reasons, the petition for review is

12   GRANTED, and the case is REMANDED to the BIA for proceedings

13   consistent with this decision.     Any pending request for oral

14   argument in this petition is DENIED in accordance with

15   Federal Rule of Appellate Procedure 34(a)(2), and Second

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20

                                    6


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                           No. 04-6845

RICKY HOBART PARSONS,
                                              Plaintiff - Appellant,

          versus

R. C. LEE; MARSHALL A. HUDSON; TIM SMITH; TIM
GOLDSTEIN; DWIGHT HYDE; BILL CLEMENTS; W. A.
BARNES; JANE DOE, Mail Room Officer at Central
Prison; MARVIN POLK, Warden; MATTIE CANADY;
STEVE HARPER; FOFANA SOLAIMAN; KENNETH M.
JONES; JONNITA BAKER-WILLIAMS; KEN BUTLER;
KRISTEN PARKS; MICHAEL S. HAMDEN; JOHN DOE,
Psychiatrist at Central Prison; JOHN DOE,
Psychologist at Central Prison,

                                             Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CA-04-73-FL)

Submitted:   October 14, 2004             Decided:   October 20, 2004

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ricky Hobart Parsons, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Ricky Hobart Parsons appeals the district court’s order

denying relief on his 42 U.S.C. § 1983 (2000) complaint under 28

U.S.C. § 1915(e)(2)(B) (2000).       We have reviewed the record and

find no reversible error.    Accordingly, we affirm on the reasoning

of the district court.        See Parsons v. Lee, No. CA-04-73-FL

(E.D.N.C. Apr. 27, 2004).     We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before   the   court   and     argument   would   not   aid   the

decisional process.

                                                                    AFFIRMED

                                   - 2 -


422 Mich. 422 (1985)
373 N.W.2d 586
DETROIT HILTON LIMITED PARTNERSHIP
v.
DEPARTMENT OF TREASURY
Docket No. 71863, (Calendar No. 18).
Supreme Court of Michigan.
Argued January 11, 1985.
Decided September 5, 1985.
Provizer, Eisenberg, Lichtenstein & Pearlman, P.C. (by Marilyn A. Madorsky), for the plaintiff.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and E. David Brockman, Assistant Attorney General, for the defendant.
RYAN, J.
We are called upon to answer two questions in this case: (1) whether a business taxpayer's failure to file a "final" tax return upon the transfer of its business to a new corporate entity renders the former business owner liable, under the Sales and Use Tax Acts, for the taxes incurred by its successor in business, and (2) whether, on the facts of this case, this petitioner is equitably estopped from denying that it is liable for the taxes in question.
Our answer to both questions is no.
I
Petitioner Hilton is a limited partnership that owns a hotel building located at 1565 Washington Boulevard in the City of Detroit, once known as the Statler Hotel. From July, 1969, through August, 1974, Hilton operated an active, although declining, hotel business on those premises through the services of a management company. During this period, Hilton filed the necessary state tax returns and paid the sales, use, and withholding taxes incurred as a result of the hotel's operations.
In August of 1974, the Detroit Hotel Operating Company, Inc. (DHOC) was created. Hilton's general partner, Fred Gordon, filed DHOC'S articles of incorporation and served as its president. Shortly after DHOC'S creation, Hilton leased its hotel building and transferred all its operating assets to DHOC. *425 Thereafter, the only formal relationship between Hilton and DHOC was that of landlord and tenant.
After obtaining a license from the City of Detroit to conduct a hotel business, DHOC operated the Detroit Heritage Hotel in Hilton's building from August of 1974 through October of 1975. During this period, DHOC'S controller, Jim Freund, filed monthly sales, use, and withholding tax returns with the respondent Department of the Treasury not in the name of DHOC, but in the name of Hilton, using Hilton's sales tax license number.
Section 3 of the Sales Tax Act, MCL 205.53; MSA 7.523, requires persons subject to that tax to obtain a license from the Department of Treasury, and § 5(a) of the Use Tax Act, MCL 205.95(a); MSA 7.555(5)(a), requires persons subject to that tax to "register with the department." Although DHOC was required to do both, it did neither. Similarly, although § 13 of the Sales Tax Act, MCL 205.63; MSA 7.534,[1] requires persons liable for those taxes to "make a final return within 15 days after the date of selling or quitting business," Hilton did not file such a return or notify the Department of the Treasury that it had transferred the hotel business to a new corporate entity.
From August of 1974 until May of 1975, DHOC filed unified monthly sales, use, and withholding tax returns in Hilton's name and remitted with each return the amount of taxes due. However, beginning in May of 1975 and continuing through October of 1975, DHOC either did not file monthly returns at all, or filed returns without including a remittance of taxes due. By January of 1976, DHOC *426 had filed all tax returns required for operations between May and October of 1975. It did not, however, pay any of the taxes due for that period.
In January of 1976, DHOC'S controller, Jim Freund, notified the Department of the Treasury that the tax returns previously filed in the name of Hilton should have been filed in the name of DHOC, and that the department should "correct" its records to reflect this previously undisclosed fact. About this time, DHOC was placed in involuntary bankruptcy.
On March 14, 1977, the Department of the Treasury issued four assessments against petitioner for delinquent sales, use, and withholding taxes totaling $73,960.52, with interest and penalties accrued to that date, for taxes incurred in the operations of the hotel from May through October of 1975. Hilton challenged these assessments before the State Board of Tax Appeals.[2] After a hearing, the board held that "liability for these business taxes" was not "properly transferred" from Hilton to DHOC because Hilton had not notified the Department of the Treasury that it was transferring its business to DHOC. The Court of Appeals affirmed, stating:
The Department of Treasury is entitled to rely on a sales tax license and tax return filed by a business in determining the party responsible for taxation. If petitioner had furnished respondent with notice by way of a final tax return that it transferred its interest in the hotel to Detroit Hotel Operating Company, its liability for subsequent tax assessments on the registered location would have been severed. Had petitioner filed a final tax return, petitioner, as the transferor of the *427 business, would not have been subjected to tax liability in the event that its successor failed to obtain a sales tax license or used petitioner's license and name in filing tax returns. [125 Mich App 823, 829-830; 337 NW2d 35 (1983).]
II
Before this Court, Hilton argues that it cannot be held liable for these taxes unless it engaged in the activities which produced the tax liability. It claims that the registration and licensing provisions found in the relevant statutes are merely administrative procedures and that, while binding upon parties to whom they are applicable, those statutes do not, in and of themselves, create any tax liabilities for mere failure to adhere to their requirements. We agree.
The record demonstrates that during the entire period for which Hilton has been assessed tax liability for the operation of the hotel business by DHOC, Hilton's only relationship to DHOC and the hotel business was as a landlord. The operative provisions of the relevant tax statutes impose no tax consequences on lessors of commercial real estate. Section 2 of the Sales Tax Act states that sales tax liability is incurred by engaging "in the business of making sales at retail." MCL 205.52; MSA 7.552. See Sims v Firestone Tire & Rubber Co, 397 Mich 469, 473; 245 NW2d 13 (1976). Section 3(1) of the Use Tax Act, MCL 205.93(1); MSA 7.555(3)(1), imposes a tax on the "using, storing, or consuming [of] tangible personal property in this state." Section 351(1) of the Income Tax Act of 1967, MCL 206.351(1); MSA 7.557(1351)(1), makes it clear that the so-called "withholding tax" is an obligation imposed only on persons who act as employers. It is uncontroverted that Hilton engaged in none of the activities described in those *428 statutes, and it is clear that none of the tax obligations described in the statutes apply to mere lessors of real property in which taxable activities might be conducted.
The Department of the Treasury would have us construe those sections of the Sales and Use Tax Acts, which required Hilton to file a "final" tax return when it withdrew from the hotel business and transferred its operations to DHOC, as imposing the penalty of continuing tax liability for DHOC'S operations as a penalty for noncompliance with the statutory filing requirements. We decline to do so. As we stated in In re Dodge Brothers, 241 Mich 665, 669; 217 NW 777 (1928):
Tax exactions, property or excise, must rest upon legislative enactment, and collecting officers can only act within express authority conferred by law. Tax collectors must be able to point to such express authority so that it may be read when it is questioned in court. The scope of tax laws may not be extended by implication or forced construction. Such laws may be made plain, and the language thereof, if dubious, is not resolved against the taxpayer.
The statutes in question impose no tax liability as a penalty for a taxpayer's failure to file a final tax return.
In contrast to the tax liability sought by the Department of Treasury, the Legislature has provided specific civil and criminal penalties for the failure to file statutorily required returns. In creating these sanctions, the Legislature has chosen the means it deems appropriate for penalizing taxpayers who do not follow the law. Under § 11 of the Sales Tax Act, MCL 205.61; MSA 7.532,[3] and § 10 *429 of the Use Tax Act, MCL 205.100; MSA 7.555(10), specific monetary penalties can be imposed for the failure to file a return. Criminal penalties could also be imposed, pursuant to § 24 of the Sales Tax Act, MCL 205.74; MSA 7.545,[4] and § 15 of the Use Tax Act, MCL 205.105; MSA 7.555(15).
There are certain situations where the Sales Tax Act does impose tax liability as a penalty for noncompliance with the statute. Under § 15(2), MCL 205.65(2); MSA 7.536(2), if a corporation fails to file a return, or pay taxes due, personal tax liability may be imposed on the officers having control of, supervision of, or responsibility for the making of tax returns or payments. This imposition of tax liability shows that the Legislature has considered this remedy; it has not applied it as a penalty for failure to file a final tax return upon discontinuance of a business. In the absence of such legislative action, there is no need to judicially impose continuing tax liability in this case.
The Court of Appeals reliance on MCL 205.59(2); MSA 7.530(2) was misplaced. This statutory provision, as well as the comparable provision in the Use Tax Act, MCL 205.101a; MSA 7.555(11a), state that the successor in certain instances can be held liable for taxes unpaid by the predecessor. Neither provision indicates that the predecessor can be held liable for taxes due while the business is operated by the successor.
III
The Department of the Treasury claims that Hilton's failure to notify the defendant that it was transferring its business to DHOC should estop *430 Hilton from denying its liability for the taxes in question.[5]
In Kole v Lampen, 191 Mich 156, 157-158; 157 NW 392 (1916), this Court stated:
It is a familiar rule of law that an estoppel arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.
Also see Detroit Savings Bank v Loveland, 168 Mich 163, 172; 130 NW 678 (1911).
If the Department of the Treasury had been notified that Hilton had transferred the hotel business to DHOC, it could have required DHOC to post a surety bond to ensure payment of expected tax liabilities. See MCL 205.53; MSA 7.523. However, the affirmative acts which misled the Department of the Treasury, and which caused it to forego its right to demand a surety bond, were those of DHOC, not Hilton. DHOC was operating the hotel and was using Hilton's name on its tax returns. The only acts or omissions attributable to Hilton are its failure to file a "final" tax return when it transferred the business to DHOC and its silence regarding DHOC'S representations.
Although it is true that "[i]f one maintain[s] silence when in conscience he ought to speak, the equity of the law will debar him from speaking *431 when in conscience he ought to remain silent," Michigan Paneling Machine & Mfg Co v Parsell, 38 Mich 475, 480 (1878) (opinion of COOLEY, J.), it is also true that "unless a person knows there is occasion for him to speak or act, his silence or passivity will not conclude him." Griffin v Nichols Shepard & Co, 51 Mich 575, 578; 17 NW 63 (1883) (opinion of GRAVES, C.J.). In order to establish an estoppel by silence, the respondent would have the burden of establishing that the taxpayer had actual or constructive knowledge that DHOC was filing unified sales, use, and withholding tax returns using the taxpayer's name and tax license number. Cf. Dull v Merrill, 69 Mich 49, 55-57; 36 NW 677 (1888). It is clear from the record that the respondent failed even to attempt to establish this element of its claim of estoppel.
The facts supporting an estoppel must be clearly made out. Payne v Payne, 241 Mich 547, 552-553; 217 NW 56 (1928). Because the respondent did not carry its burden of proof, the petitioner is not estopped from denying its liability for the tax liabilities incurred by DHOC in its operation of the hotel.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
WILLIAMS, C.J., and LEVIN, BRICKLEY, CAVANAGH, and RILEY, JJ., concurred with RYAN, J.
BOYLE, J., took no part in the decision of this case.
NOTES
[1]  Section 14 of the Sales Tax Act was repealed by 1980 PA 164, and replaced by provisions now found in § 9(2) of the act, MCL 205.59(2); MSA 7.530(2). 1982 PA 478 added similar provisions to § 11(a) of the Use Tax Act, MCL 205.101a; MSA 7.555(11a).
[2]  The State Board of Tax Appeals has been abolished by 1980 PA 162, as amended by 1981 PA 138. See Queen Airmotive, Inc v Dep't of Treasury, 105 Mich App 231; 306 NW2d 461 (1981).
[3]  Section 11 of the Sales Tax Act was repealed by 1980 PA 164. These provisions are now contained in MCL 205.24; MSA 7.657(24).
[4]  Section 24 of the Sales Tax Act was repealed by 1980 PA 162. 1980 PA 162 added a similar provision now contained in MCL 205.27; MSA 7.657(27).
[5]  In its brief to this Court, the Department of the Treasury cites and discusses authorities which address the subject of "piercing the corporate veil." That subject bears on the liability of shareholders for the obligations of their corporation. Since the Department of the Treasury has offered no evidence to show that Hilton is a shareholder of DHOC, the subject is not relevant.


919 N.E.2d 1145 (2010)
In the Matter of Joseph A. YOCUM, Respondent.
No. 82S00-0910-DI-491.
Supreme Court of Indiana.
January 21, 2010.

PUBLISHED ORDER IMPOSING RECIPROCAL DISCIPLINE
The Indiana Supreme Court Disciplinary Commission filed a "Verified Notice of Foreign Discipline and Petition for Issuance of an Order to Show Cause," advising that Respondent was disciplined by the Commonwealth of Kentucky and requesting, pursuant to Indiana Admission and Discipline Rule 23(28), that reciprocal discipline be imposed in this state. On November 3, 2009, this Court issued an "Order to Show Cause." Both parties filed responses. This case is now before this Court for resolution.
Respondent is licensed to practice law in the State of Indiana. He was also granted leave to appear pro hac vice in a Worker's Compensation case in the Commonwealth of Kentucky in 2005-2007. On October 1, 2009, the Supreme Court of Kentucky found Respondent's conduct in that case violated that jurisdiction's rules of professional conduct. By that time, Respondent's pro hac vice status had lapsed. For his misconduct, Respondent was barred from requesting leave to practice law in Kentucky for 120 days.
Respondent's misconduct consisted of: (1) attaching to his client's Worker's Compensation application two medical report forms that he himself prepared but falsely represented as being prepared by physicians; and (2) commencing his representation before he had been admitted pro hac vice and continuing his representation after local counsel had withdrawn.
The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state. The Court, however, observes that the discipline imposed by the Supreme Court of Kentucky does not readily translate to an appropriate sanction in Indiana. Pursuant to Admis. Disc. R. 23(28)(c), the Court will therefore enter an order of discipline as it deems appropriate for the misconduct.
Respondent's misconduct is serious, particularly his fabrication of evidence. In Matter of Barratt, 663 N.E.2d 536 (Ind. 1996), an attorney fabricated a letter purportedly from him offering to compromise a claim against him and testified in a breach of contract action brought against him that the document was authentic. He later falsely told a bar association grievance committee that he mailed the letter to the plaintiff. For this misconduct, the Court imposed suspension of at least one year. The Court concludes that a period of suspension is warranted for Respondent, as set forth below.
Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 120 days, without automatic reinstatement, beginning February 25, 2010. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties *1146 of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4).
All Justices concur.


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999 So.2d 1012 (2006)
ROOSEVELT SHANNON
v.
GEORGIA BLOUNT.
No. 2040927.
Court of Civil Appeals of Alabama.
July 28, 2006.
Decision of the Alabama Court of Civil Appeal Without Opinion. Reh. denied.


197 Va. 754 (1956)
JOHN DUDLEY ROBINSON
v.
COMMONWEALTH OF VIRGINIA.
Record No. 4511.
Supreme Court of Virginia.
March 5, 1956.
Sacks & Sacks,    for the plaintiff in error.
Present, Hudgins, C.J., and Eggleston, Spratley, Buchanan, Smith and
1.  There was sufficient evidence to support appellant's conviction of rape where the physical condition of the prosecutrix left no doubt that she had been criminally attacked and where her identification of defendant as her attacker was positive and the evidence showed that at the place of the alleged attack there was ample light for identification.  A conviction of rape may be justified on the sole testimony of the prosecutrix if it is credible and believed by the jury beyond a reasonable doubt.
2.  Under the evidence it was sufficiently established that the crime took place in Princess Anne county, hence the venue was proper.
3.  The crime having taken place near an airport, the testimony of an officer as to lights and degree of illumination there was admissible as descriptive of the general situation in that area, though he did not speak specifically as to the light at the time and place of the crime.
Error to a judgment of the Circuit Court of Princess Anne county.  Hon. F. E. Kellam, judge presiding. The opinion states the case.
J. Lindsay Almond, Jr., Attorney General    and    Thomas M. Miller, Assistant Attorney General,    for the Commonwealth.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
The defendant, John Dudley Robinson, was tried by a jury on an indictment charging him with the rape of Juanita Snyder.  Code | 18-54.  He was found guilty and his punishment fixed at life imprisonment.  The court overruled his motion to set aside the verdict and sentenced him in accordance with the finding of the jury.  Under his assignments of error on this appeal he contends that the Commonwealth did not prove the venue of the offense; that the evidence was not sufficient to support the verdict, and that the court erred in admitting the testimony of a witness for the Commonwealth.  We look first to the sufficiency of the evidence.
  The prosecutrix, Mrs. Snyder, twenty-seven years old and the mother of three children, lived on Pall Mall street, in Norview, Norfolk county, and at the time of the offense she was working at People's Drugstore in Lakeland Shopping Center, where she had been employed since the previous March.
She testified that on Thursday night, May 20, 1954, she got off from work about 10:05 p.m. and started walking home on the right-hand side of Bell's Road. The other stores were closed, there were no other prople on the street, and when she had reached the last house of the Lakeland apartments, where there was some light from a street lamp, a car pulled up, stopped beside her and one of its occupants asked her a question.  She looked around, saw they were two Negroes and started to run but dropped her package.  As she stopped to pick it up one of the men, who was sitting beside the driver, jumped out of the car and grabbed her.  In the ensuing struggle he tore her dress, knocked out some of her teeth and pulled her into the car, shut the door several times on her foot, causing it to bleed, and the car drove ahead on Bell's Road.
After getting her into the car its occupants held her head down between their legs and hit her with their fists when she tried to rise up.  She begged them to take her money and let her go, but they ordered her to shut up and threatened to kill her.  After making about four turns, the car pulled off the road and into a field.  There they made her get into the back seat and take off her clothes.  One held her while the other had intercourse with her.  She thought she fainted once when the one she afterwards identified as the defendant, who was the driver of the car, pulled her head back and hurt her. They heard someone drive by and pulled farther out into the field toward some lights, where they attacked her again.  Each one had *756 intercourse with her three times.  She said she cried so much her throat was sore and all she could do was pray.  They were drinking.
Afterwards they put her in the back seat of the car behind the driver and started back.  She was required to keep her head down and the younger man, not the defendant she said, sat beside her with a rock in his hand with which he threatened her if she rose up or said anything.  She kept asking them to let her out, stating that she knew her way home, but they said they would take her home. They came to an intersection and started down the Military Highway, where she recognized some signs and places.  She thought they rode seven or eight miles, maybe farther, in going back.  They put her out on Bell's Road, about a block and a half from where they had picked her up.  They told her not to say anything or they would come back and get her.  This was about twenty to twenty-five minutes after eleven, she said.
She walked and crawled back home, where her mother, with whom she lived, attended her and then called the police, who came and took her to a hospital where she was treated.  On leaving the hospital that night the police took her out to see if she could locate where she had been.
The following day, May 21, about noon, a police officer saw the prosecutrix at her home.  He testified that she was bruised and the left side of her face and her mouth were badly swollen.  Her legs were swollen, bruised and stiff.  He wanted her to go with him to try to identify the place, but she could not walk by herself and had to be helped to the car.  She was in a very nervous condition.  They rode all around the general vicinity of the Municipal Airport but she was not then able to identify the place.  Afterwards she went several times to see if she could locate where she had been.  Still later a police officer and a State trooper took her to a place she described to them as being where the offense occurred, and which she said was around the airport in Norfolk county, she supposed, but the officers testified it was in Princess Anne county.
On July 14, 1954, Mrs. Snyder, in company with a police officer, went to the Norfolk county jail where the defendant was being held on another charge.  Her mission was to see if she could identify him as one of her assailants.  The defendant was put in a line-up with nine other men, two or three of whom were of defendant's height and color.  She was asked to say nothing to anyone but to  *757 stop in front of each man, look him over carefully, then come outside and report.  This was done at least twice and each time she identified the defendant, Robinson, as being one of the men who attacked her.  She testified that she knew him as soon as she saw his face and his big build.  She was asked on cross-examination if when she saw this man in the line-up she could possibly have been mistaken about the face she saw the night of the attack.  She replied that it was not possible; that she could see his face in the light from the airport when she had to face him each of the three times he had assaulted her and made her kiss him, and she could not be mistaken.  She also pointed him out in the courtroom at the time of the trial without hesitation.
He was the driver of the car, she said, and while in the car she had looked it over to see if there was anything she could identify about it.  She did not know its make, but said it was a dark car with leather upholstering, the top light had been torn out and there were some stickers of what appeared to be a rooster in the front of the car.  She saw this car afterwards, she said, at the defendant's home, where she identified it in the presence of Police Officer Struncius, his wife and State Trooper Coffman.
After her identification of the defendant at the jail, Officer Struncius asked him if he owned a car.  He replied that he owned an old Chevrolet, he didn't know whether it was blue or green but decided it was green.  That night Mrs. Snyder went with Struncius, his wife and Trooper Coffman to the defendant's home, examined the car and the officers testified that it corresponded with her description as to color, upholstering and ceiling light.  The trooper testified she looked the car over very thoroughly before identifying it.
The defendant's half brother was at defendant's home that night.  Mrs. Synder thought she recognized his voice and that he was one of the men who had assaulted her.  He was questioned by the police but later released and she admitted that she was mistaken about him.
The defendant testified that he was thirty-six years old and had been employed for seven years at the Monsanto Chemical Plant, in Norfolk, and had not been arrested before except once on a minor charge; that on the afternoon of May 20 he took his wife, who had been ill, to a hospital and brought her back home about four o'clock; that he then had a headache and lay down across the bed *758  and went to sleep and slept until he was awakened about a quarter of twelve. His time card at the plant showed that he checked in for work at 11:56 that night.
The Commonwealth proved that from the place where the prosecutrix testified that the defendant and his companion let her out of the car after the attack at about 11:20 or 11:25 that night, the distance to the Monsanto Plant was between a mile and a quarter and a mile and three-quarters.
The company's record showed that defendant last worked at the plant on May 18 from 4:00 p.m. until 12:00 on the third shift.  The prosecutrix testified that her assailants discussed the fact that they had not worked the night before and would get fired if they did not work that night.
Defendant's wife testified that he went to sleep right after supper on May 20 with his clothes on and didn't get up until she woke him at eleven o'clock and he left the house at 11:50; that he usually left at 11:30 but "We overslept ourselves."
Defendant's mother testified that she had been in the home since April because of her daughter-in-law's illness and was there on the night of May 20; that the defendant was at home that day from four o'clock in the afternoon until sometime between 11:30 and 12 that night.  He told her to wake him up at 11:30 so he could go back to work, and she told him that if she was awake she would. She waked up around 11.  She said his wife was asleep also when the time came to wake him up.  She said that was the only time she ever knew the defendant to oversleep.
There is ample evidence to sustain the conclusion that the prosecutrix was attacked as she related.  Her physical condition, the marks on her body seen and their effects witnessed by the officer next day, and her detailed account of the matter from its beginning to its end, uncontradicted on this element of the case, sufficiently established that the crime was committed.
The evidence also was sufficient to support the conclusion of the jury that this defendant was one of the perpetrators of the crime.  At a place identified by her as the scene of the offense, and under the conditions described by her, it was shown by three of the officers that there was sufficient light to permit identification.  In particular the trooper testified that at that point at a similar time of night there was sufficient light from the airport to enable him to distinguish between a man and a woman at a distance of between fifty and seventy-five yards, and he could get a good view of a *759 face from three to six feet away.  The prosecutrix positively identified the defendant as one of her attackers, both in the line-up and in the courtroom.  Under a searching cross-examination she did not falter or hesitate on that point, but gave convincing reasons for her certainty.
The guilt of the accused depends mainly, of course, upon the credibility of the prosecutrix.  That is usually true in cases of this kind because there is rarely an eye-witness to such an offense other than the persons immediately involved.  Corroboration of the prosecutrix is not essential, else most of such offenses would go unpunished.  We have repeatedly held that if the testimony of a prosecutrix is credible, it is alone sufficient to sustain a conviction of rape if the guilt of the accused is believed by the jury beyond a reasonable doubt.     Addington     Commonwealth,    161 Va. 975, 170 S.E. 565;    Taylor
Commonwealth,    180 Va. 413, 23 S.E.(2d) 139;    Young     Commonwealth,
185 Va. 1032, 40 S.E.(2d) 805;    Davis     Commonwealth,    186 Va. 936, 45 S.E.(2d) 167.  Standing alone, the testimony of the prosecutrix here is not incredible.  It is supported in a material degree by facts and circumstances shown by other evidence.  From a careful analysis of all the evidence we are convinced that it clearly presented a question for the jury to decide, and we are not at liberty to disturb its verdict finding the defendant guilty as charged.
This case differs materially from    Terry     Commonwealth,    174 Va. 507, 6 S.E.(2d) 673, where identification was by a discredited witness who gave conflicting descriptions of her assailant, was unable to identify him in the first line-up and whose identification at his second line-up was of doubtful validity.
  The assignment on the proof of venue is not substantial.  Evidence to prove venue may be direct or circumstantial, and the facts proved may be aided by judicial notice of geographical facts that are matters of common knowledge.
McClain     Commonwealth,    189 Va. 847, 853, 55 S.E.(2d) 49, 52.  Here the evidence alone was sufficient to establish that the crime was committed in Princess Anne county where the defendant was tried.
The prosecutrix described the course of travel from the place where she was seized to where she was brought back, and identified some of the roads and some of the places.  She said they took her into a field toward some lights.  She testified that these lights were from the airport; that the place they took her was out at the airport, *760 and "If that is Princess Anne County, then that is where it was."  She went with Officer Struncius and Trooper Coffman and showed them the place where she said it happened.  The former testified that the airport was in Princess Anne county and that the place to which she directed them was in Princess Anne county and at least a half mile from the Norfolk county line.  The trooper testified that Mrs. Snyder pointed out the place where it occurred, which was about two hundred yards from the red warning lights on the poles at the airport, and it is also plain from his testimony that the place was in Princess Anne county.
  The final assignment is to the admission of the testimony of Officer Brady about the lights around the airport.  The point of the objection was that this witness did not describe any specific lights, did not know where the scene of the crime was, and his evidence did not relate the lights he described to the place where the crime was committed.  He testified that he had an airplane pilot's license and was very familiar with the airport and its lights and had been in and around the airport probably five hundred times in the last five years, and knew the character of the lights and the reach of their illumination at all times and in all kinds of weather, both from observation and from experience; that he had viewed these lights from the general area of this offense on numerous occasions and that on a cloudy night they would illuminate an area of at least one-half mile in any direction sufficiently to allow the driving of an automobile without headlights.  He did not undertake to speak specifically as to the light at the scene of the crime on the night it was committed, but his evidence was clearly admissible as a description of the general situation in that area and no error was committed in receiving his testimony. $tThe evidence was sufficient to support the verdict, no prejudicial error in the trial has been shown, and the judgment of the trial court approving the verdict and sentencing the defendant in accordance therewith must therefore be
Affirmed.


                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          June 4, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 SHAIDON BLAKE,

       Plaintiff - Appellant,

 v.                                                        No. 19-3184
                                                  (D.C. No. 5:18-CV-03146-SAC)
 JPAY; PAUL SNYDER; JOE                                      (D. Kan.)
 NORWOOD,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

      Shaidon Blake, a prisoner proceeding pro se, brought this civil rights action

under 42 U.S.C. § 1983 against JPay, the communications provider for the Kansas

Department of Corrections (KDOC); Paul Snyder, the Warden of the El Dorado

Correctional Facility; and Joe Norwood, the Secretary of the KDOC. In his

complaint, he alleged the defendants had violated his First Amendment rights by

censoring and banning his self-authored book. The district court dismissed the action

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
on screening for failure to state a claim and denied Blake’s motion to alter and amend

its judgment. Blake appeals. We reverse the district court’s judgment and remand

for further proceedings.

                                           I

      In Blake’s original complaint he alleged his “agent sent a picture of [his]

authored book[’]s cover over JPay and JPay censored it in its entirety saying it is

sexually explicit.” He claimed the book “was ordered censored and banned without

good cause” as sexually explicit “even without any sexually explicit gestures, no

penetration or anything considered vulgar in nature.” He further alleged that Warden

Snyder concurred in the ban, and that when Blake appealed to Secretary of

Corrections Norwood, he affirmed the ban. Blake sought an order allowing his book

into KDOC, as well as compensatory and punitive damages.

      After screening the complaint, see 28 U.S.C. § 1915A, the district court

entered a Memorandum and Order and Order to Show Cause. The district court

determined that because Blake had failed to identify or describe what was contained

on the censored book cover and had made only a conclusory allegation that his

materials were withheld as sexually explicit, his complaint failed to state a claim for

a violation of his First Amendment rights. Blake was ordered to show good cause as

to why his complaint should not be dismissed. He was also granted the opportunity

to file an amended complaint to cure the identified deficiencies.

      Blake filed an amended complaint. He again recited that his “authored books

were ordered banned and censored without good cause, using [the prison’s ban on]

                                               2
explicit[] materials as the reason.” Blake quoted the language of Kansas

Administrative Regulation § 44-12-313 defining sexually explicit materials and

recited that his book did not fall within the description of such materials. In addition,

he alleged that the KDOC regulation hindered prisoner reform, was unconstitutional

under the First Amendment, and was seemingly applied only to “[u]rban[-]authored

books.”1

      In a Memorandum and Order addressing Blake’s amended complaint, the

district court concluded he had failed to remedy the deficiencies discussed in the

previous screening order. It therefore dismissed the action for failure to state a claim.

See § 1915(e)(2)(B)(ii). Blake then filed a motion to alter or amend the district

court’s judgment, which the court denied. It noted that although Blake complained

that the court had not yet reviewed any “exhibits,” there were no exhibits attached to

his complaint, amended complaint, or supplement to be reviewed. It concluded

Blake’s allegations lacked factual support and were “completely conclusory.” Blake

timely appealed both the district court’s judgment and its denial of his motion to alter

or amend.

      1
           Blake also filed a “supplement” to his complaint, which complained about
prison officials’ confiscation of his manuscripts and the loss or destruction of certain
other property. The district court found these allegations also failed to state a claim
for relief. Blake presents no appellate argument concerning this specific
determination. We therefore decline to consider this aspect of the dismissal. See
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (issues omitted from or
inadequately presented in an appellant’s opening brief are waived).
                                               3
                                            II

      We review de novo the district court’s dismissal of an action under

§§ 1915(e)(2)(B)(ii) or 1915A(b) for failure to state a claim. See Young v. Davis,

554 F.3d 1254, 1256 (10th Cir. 2009). “We review the complaint for plausibility;

that is, to determine whether the complaint includes enough facts to state a claim to

relief that is plausible on its face.” Id. (quotation omitted). We review rulings on

Rule 59(e) motions to alter or amend a judgment for an abuse of discretion. See

Caballero v. Fuerzas Armadas Revolucionarias de Colombia, 945 F.3d 1270, 1273

(10th Cir. 2019). Because Blake appears pro se, we construe his filings liberally but

do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005).

                                             A

      This case presents important First Amendment issues deserving of further

proceedings. “Inmates have a First Amendment right to receive information while in

prison to the extent the right is not inconsistent with prisoner status or the legitimate

penological objectives of the prison.” Jacklovich v. Simmons, 392 F.3d 420, 426

(10th Cir. 2004). The policy allegedly used to censor Blake’s book, and which

describes the prison’s penological objectives, provides in pertinent part:

      (a) No inmate shall have in possession or under control any sexually explicit
      materials, including drawings, paintings, writing, pictures, items, and
      devices.

      (b) The material shall be considered sexually explicit if the purpose of the
      material is sexual arousal or gratification and the material meets either of the
      following conditions:

                                                 4
              (1) Contains nudity, which shall be defined as the depiction or display
              of any state of undress in which the human genitals, pubic region,
              buttock, or female breast at a point below the top of the [areola] is less
              than completely and opaquely covered; or

               (2) contains any display, actual or simulated, or description of any of
              the following:

              (A) Sexual intercourse or sodomy, including genital-genital, oral-
              genital, anal-genital, and anal-oral contact, whether between persons
              of the same or differing gender;

               (B) masturbation;

               (C) bestiality; or

               (D) sadomasochistic abuse.

Kan. Admin. Regs. § 44-12-313.

       Blake contends this policy should not have been applied to him because his book

does not meet its definition of sexually explicit material, and his book is otherwise

entitled to First Amendment protection. In rejecting his claim, the district court relied on

the four-factor test described in Turner v. Safley, 482 U.S. 78, 89-90 (1987).2 But the

Turner test addresses the constitutional validity of a prison’s regulation, asking whether it

reasonably relates to legitimate penological interests. See Turner, 482 U.S. at 89.

Although Blake challenges the constitutional validity of the KDOC regulation, he also

       2
          The relevant factors are “(1) whether a valid and rational connection exists
between the regulation and the asserted legitimate governmental interest, (2) whether
alternative means of exercising the constitutional right remain available to inmates,
(3) any effect accommodating the right would have on guards and inmates, and
(4) the absence of ready alternatives.” Jacklovich, 392 F.3d at 426 (citation omitted).

                                                  5
challenges the application of the regulation to his book, regardless of its validity. He

alleges that his book does not meet the regulatory criteria, and so defendants’ reliance on

the regulation to ban his book violated his First Amendment rights.3

       In assessing the applicability of § 44-12-313 to Blake’s book, the district court

appears to have ignored a key limitation in the regulation. It provides that “material

shall be considered sexually explicit [1] if the purpose of the material is sexual

arousal or gratification and [2] the material” falls into one of several categories,

including nudity or depictions of sexual activities such as sexual intercourse, sodomy

or masturbation. Kan. Admin. Reg. § 44-12-313(b) (emphasis added). Use of the

conjunctive term “and” indicates that both requirements must be satisfied. Cf., e.g.,

Qwest Commc’ns Int’l Inc. v. FCC, 398 F.3d 1222, 1236 (10th Cir. 2005) (“The use

of the conjunctive ‘and’ in the phrase ‘preserve and advance universal service,’ or

‘preservation and advancement of universal service,’ clearly indicates that the

Commission cannot satisfy the statutory mandate by simply doing one or the other.”).

       The district court addressed only the second element of the definition. But

Blake has sufficiently alleged facts showing that the first criterion for censorship

(that the purpose of his book is sexual arousal or gratification) was not satisfied in

this case. In the amended complaint, he affirmatively stated that the purpose of his

       3
        In his opening brief, Blake argues in conclusory fashion that he is a Maryland
inmate incarcerated in Kansas pursuant to an interstate compact and that his book is
not subject to censorship under Maryland law. He supplies no description of the
relevant Maryland law and no adequate explanation of why that state’s law should
apply to this issue. Because this argument is insufficiently developed, we decline to
consider it. See Bronson, 500 F.3d at 1104.
                                                 6
book was “rehabilitation and therapy,” not sexual arousal or gratification. In his

opening brief, he further explains that his book has a polemical, self-help purpose,

rather than an obscene one.4

      Further, although the district court faulted Blake for neither submitting the

book’s cover (which Blake explained he does not have because it was censored) nor

describing its contents, a detailed description of the book’s cover or contents was

unnecessary to state a claim. It is enough that Blake provided plausible facts in the

complaint from which it could be reasonably inferred that his book had a purpose

other than sexual arousal or gratification and that its censorship under the cited

      4
          Blake states:

      Petitioner’s book is titled “Doggy Style – Confessions of a Serial
      Cheater[.]” Through administrative remedies Petitioner explained the play
      on words in the title to mean – Doggy Style [is] a man with do[g]gish ways,
      a person that does not maintain a [monogamous] relationship . . . [T]he
      book is a self[-]help book in response to the very popular book by author
      and star Steve Harvey[] [titled] “Think Like a Man, Act Like a Lady,”
      which sold millions of copies.
       We are not obligated to consider such additional facts or explanations on
appeal. See, e.g., Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1566 (10th Cir. 1993)
(“We are not obliged to consider the various allegations newly made by [the
appellant] on appeal, since it is only the sufficiency of the complaint which is being
reviewed.”); see also Cohon ex rel. Bass v. N.M. Dep’t of Health, 646 F.3d 717, 730
(10th Cir. 2011). In this case, however, we have considered them because they shed
light on the meaning of language this pro se appellant employed in his amended
complaint.

                                               7
regulation violated the First Amendment.5 Because Blake alleged such facts, we

conclude that the district court should not have dismissed the amended complaint.

                                            III

      The district court’s judgment dismissing this action is reversed. We remand

with instructions to serve the amended complaint on the defendants and for further

proceedings. We note, however, that our ruling here is without prejudice to any

dispositive motions that may be filed and considered once the defendants are served

and participating in the case. In addition, because we have concluded that the

requirements of the Plan for Appointment of Counsel in Special Civil Appeals have

been satisfied, we appoint Samuel M. Strongin of WilmerHale, LLP, Washington,

D.C., to represent Blake and specifically authorize that representation to continue in

the district court proceedings on remand.

      We grant Blake’s motion to proceed in forma pauperis on appeal. He is

reminded of his obligation to continue making partial payments until the entire filing

fee has been paid in full. See 28 U.S.C. § 1915(b).

                                             Entered for the Court

                                             Carlos F. Lucero
                                             Circuit Judge

      5
       We note the district court did not make a finding that granting further leave
to amend would be futile. Blake may seek to amend his complaint on remand, as
appropriate.
                                                  8