Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JOSEPH P. SEAY, D.D.S., MS; LOIS JACOBS, D.D.S., MS,
Plaintiffs - Appellants, No. 21-6054 v. (D.C. No. 5:17-CV-00682-D) (W.D. Okla.) OKLAHOMA BOARD OF DENTISTRY; SUSAN ROGERS, individually and Executive Director of the Oklahoma Board of Dentistry; JAMES A. SPARKS, D.D.S., individually and President of District 5 of the Oklahoma Board of Dentistry; AUDREY CRAWFORD, D.D.S., individually and District 8 Board Member of the Oklahoma Board of Dentistry; CURTIS BOWMAN, D.D.S., individually and District 1 Board Member of the Oklahoma Board of Dentistry; JOSEPH DARROW, D.D.S., District 6 Board Member of the Oklahoma Board of Dentistry; PHIL COTTON, Chief, Public Member of the Oklahoma Board of Dentistry; ANGELA CRAIG, R.D.H., Hygiene Member of the Oklahoma Board of Dentistry; JAMES GORE, D.D.S., individually and District 7 Board Member of the Oklahoma Board of Dentistry; MICHAEL HOWL, D.D.S., individually and 1st Vice President of District 2 of the Oklahoma Board of Dentistry; LISA NOWLIN, D.D.S., individually and District 3 Board Member of the Oklahoma Board of Dentistry; LORI Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 2
ROBERTS, Esq., Public Board Member of the Oklahoma Board of Dentistry; JEFF LUNDAY, D.D.S., individually and 2nd Vice President of the Oklahoma Board of Dentistry,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges. _________________________________
This case involves the scope of a state board’s authority to grant a
specialty license. The Plaintiffs are two dental anesthesiologists, Joseph
Seay and Lois Jacobs, who applied to the Oklahoma Board of Dentistry for
specialty licenses. Dr. Seay and Dr. Jacobs wanted to use these licenses in
advertisements, but Oklahoma law prohibited specialty licenses in dental
anesthesiology. So the Board rejected the applications.
Dr. Seay and Dr. Jacobs sued the Board and its members, claiming
violations of the Constitution and antitrust laws. For these claims, Dr. Seay
and Dr. Jacobs sought a declaration invalidating the Oklahoma law and a
related Board rule, an injunction prohibiting enforcement of the state law
and the Board rule, and compensatory damages against the Board members
* This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 2 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 3
in their individual capacities. The Board members moved for summary
judgment based on timeliness, qualified immunity, and statutory
limitations on the Board’s authority to issue the requested specialty
licenses. The federal district court granted summary judgment to the Board
members based on timeliness.
But Oklahoma law changed in May 2021, and the Board has
represented that it will grant specialty licenses to the Plaintiffs when they
complete new applications. The Board’s representations moot the
Plaintiffs’ claims for declaratory and injunctive relief.
Though these claims became moot, Dr. Seay and Dr. Jacobs had also
sought damages for violations of the antitrust laws and the Constitution.
On these claims for damages, we affirm the grant of summary judgment.
On the antitrust claim, Dr. Seay and Dr. Jacobs haven’t addressed the
district court’s reasoning, so they’ve waived their challenge to the
summary-judgment ruling.
On the constitutional claims for damages, the Defendants argue not
only that the claims were untimely but also that the Board members had to
follow Oklahoma law’s restrictions on specialty licenses. Dr. Seay and Dr.
Jacobs could have addressed this argument in their reply brief, but they
didn’t. As a result, they waived any nonobvious defect in the Defendants’
alternative argument for affirmance. We see no obvious defect in that
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argument, so we also affirm the award of summary judgment on the
constitutional claims for damages.
I. Our review is de novo.
We conduct de novo review of the district court’s grant of summary
judgment. Murphy v. City of Tulsa, 950 F.3d 641, 643 (10th Cir. 2019). In
conducting this review, we consider the evidence in the light most
favorable to Dr. Seay and Dr. Jacobs, reversing only if no genuine dispute
of material fact exists and the Defendants are entitled to judgment as a
matter of law. Fed. R. Civ. P. 56; Simpson v. Univ. of Colo. Boulder, 500
F.3d 1170, 1173 (10th Cir. 2007).
II. The claims for prospective relief became prudentially moot when the law changed and the Board modified its position.
Dr. Seay and Dr. Jacobs seek injunctive and declaratory relief to
require the Board and its members to grant them specialty licenses in
dental anesthesiology. Until recently Oklahoma law prohibited specialty
licenses in dental anesthesiology, so the Board denied the Plaintiffs’
applications. After these denials, the district court granted summary
judgment to the Defendants, leading the Plaintiffs to appeal. While the
appeal remained pending, the Oklahoma legislature amended the Oklahoma
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Dental Act to include “dental anesthesiology” as a recognized specialty.
Okla. Stat. tit. 59, § 328.22(A)(3)(j) (2021 supp.).
The Plaintiffs argue on appeal that the statutory change won’t help
them for two reasons:
1. Dr. Seay and Dr. Jacobs received their Master’s Degrees in anesthesiology before the Commission on Dental Accreditation had begun accrediting anesthesiology schools.
2. The Board and its members previously represented that Dr. Seay and Dr. Jacobs would never obtain eligibility for specialty licenses because they had obtained their Master’s Degrees before their schools obtained accreditation.
Plaintiffs’ Opening Br. at 9. In support, the Plaintiffs cite a brief filed
about 1½ years before the statutory change. Id. at 9 (citing Appellants’
App’x vol. 4, at 607–09).
But the Board relaxed its position after the law had changed. At oral
argument and in supplemental briefing, the Board has represented that it
will grant specialty licenses to Dr. Seay and Dr. Jacobs once they complete
new applications. Given these representations, the claims for declaratory
and injunctive relief became prudentially moot.
A. The claims for declaratory and injunctive relief are prudentially moot.
Claims become moot “when the issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the outcome.” Already,
LLC v. Nike, Inc. 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455
U.S. 478, 481 (1982) (per curiam)). Mootness encompasses both
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constitutional requirements and prudential considerations of justiciability.
See Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011).
Even if a claim is not constitutionally moot, a court can decline to
consider requests for declaratory or injunctive relief when the claims
become prudentially moot. 1 Jordan v. Sosa, 654 F.3d 1012, 1023–24 (10th
Cir. 2011). We consider a claim prudentially moot if the dispute is
sufficiently “attenuated that considerations of prudence and comity for
coordinate branches of government counsel the court to stay its hand, and
to withhold relief it has the power to grant.” Fletcher v. United States, 116
F.3d 1315, 1321 (10th Cir. 1997) (quoting Building & Constr. Dept. v.
Rockwell Int’l Corp., 7 F.3d 1487, 1491–92 (10th Cir. 1993)); see also S.
Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997)
(“Prudential mootness addresses ‘not the power to grant relief but the
court’s discretion in the exercise of that power.’” (quoting Chamber of
Commerce v. U.S. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980))).
The prospective claims became prudentially moot when
1 We need not address constitutional mootness before prudential mootness. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999))); see also Charles Allen Wright, Arthur R. Miller, and Edward H. Cooper, 13B Fed. Prac. & Proc. Juris. § 3533.1, at 763 (3d ed. 2008) (“It also is appropriate to invoke a prudential principle without confronting the uncertain line between Article III and prudential grounds . . . .”). 6 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 7
the state legislature modified the law by recognizing dental anesthesiology as a specialty and
the Board modified its position on the Plaintiffs’ eligibility for specialty licenses.
Despite the change in state law and the Board’s softening of its
position, the Plaintiffs argue that the Board hasn’t amended its rules to
recognize dental anesthesiology as a specialty. Regardless of whether the
rules changed, 2 the Board has acknowledged the statutory change and
recognized the Plaintiffs’ eligibility for specialty licenses. For example, in
oral argument, the Board represented that it would grant the specialty
licenses. Oral Argument at 17:15–17:30; 20:15–20:34. And the Board
represented in a supplemental brief that it would “grant the specialty
license[s] once the requirements are met.” Appellees’ Supp. Resp. Br. on
Mootness at 2.
Despite these representations, the Plaintiffs point out that they still
haven’t obtained their specialty licenses. But the licenses are available
upon the Plaintiffs’ completion of new applications.
Dr. Seay applied in 2017 when state law prohibited specialty
licenses. Though the Board told Dr. Seay that he just needed to reapply, he
hasn’t done that.
2 At oral argument the Board asserted that it had changed its rules, but we need not address this assertion.
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Unlike Dr. Seay, Dr. Jacobs reapplied after Oklahoma amended the
statute. Days after she applied, the Board told her that she needed to
submit a copy of her driver’s license, passport, or birth certificate.
Dr. Jacobs hasn’t provided the required copy in the 7+ months that
have passed. The Board nonetheless approved Dr. Jacobs for a specialty
license and told her that she would get the license once she furnishes a
copy of her driver’s license, passport, or birth certificate. The Board then
informed us that it will “grant the specialty license once the requirements
are met.” Appellees’ Supp. Resp. Br. on Mootness, at 2.
The Plaintiffs argue that the Board’s representations do not moot
their claims because
they do not know “what the additional requirements might be,” Appellants’ Am. Supp. Br. on Mootness at 4, and
the Board already has the information needed for the specialty licenses, Appellants’ Supp. Reply Br. on Mootness at 5.
But the Board told Dr. Jacobs what the additional requirements were in
emails in August, September, and November 2021. So Dr. Jacobs should
know the additional requirements. And the Board’s application form
clearly states the requirements for an application, and these requirements
include proof of citizenship (a birth certificate or passport). 3 So the
requirements are apparent from the application form.
3 Okla. Bd. of Dentistry, Dentist/Specialty/Hygienist Application by Credentials, available at 8 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 9
Regardless of whether the Board already has the necessary
documentation, the claims for prospective relief remain prudentially moot.
The Board has unequivocally represented—both in oral argument and in
supplemental briefing—that it will grant specialty licenses to Dr. Seay and
Dr. Jacobs upon completion of new applications.
In these circumstances, declaratory or injunctive relief would do
little beyond what the legislature and the Board have already done. Once
Dr. Seay completes a new application and Dr. Jacobs provides a copy of
her identification, they will receive specialty licenses with or without
judicial action. The claims for prospective relief are thus prudentially
moot.
B. The exception for voluntary cessation does not apply.
The Plaintiffs argue that even if the claims were otherwise moot, an
exception would apply for the Board’s voluntary cessation of the allegedly
wrongful conduct. See Friends of the Earth, Inc. v. Laidlaw Env't Servs.
(TOC), Inc., 528 U.S. 167, 174, 190 (2000) (stating that a defendant’s
voluntary cessation of allegedly unlawful conduct does not render the
dispute moot if the conduct could “reasonably be expected to recur”); see
also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096,
1122 (10th Cir. 2010) (stating that an exception for voluntary cessation can
https://www.ok.gov/dentistry/documents/App%20by%20cred%20adv%20pr oc%202-3-2020.pdf (last visited Mar. 15, 2022). 9 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 10
apply to both constitutional and prudential mootness). Invoking this
exception, the Plaintiffs argue that the Board could still deny the
applications for specialty licenses. We reject this argument.
When a claimant challenges a regulation, an amendment ordinarily
moots the dispute. Rio Grande Silvery Minnow, 601 F.3d at 1116. “But a
case is not moot if a challenged regulation is repealed and there are ‘clear
showings of reluctant submission [by government actors] and a desire to
return to the old ways.’” Citizen Ctr. v. Gessler, 770 F.3d 900, 908 (10th
Cir. 2014) (quoting Rio Grande Silvery Minnow, 601 F.3d at 1117)
(alteration in original). So we must consider whether the Board has shown
a willingness to deny the applications even after representing that it will
grant the specialty licenses. In our view, the Plaintiffs lack a reasonable
basis for their apprehension.
The Board told the Plaintiffs and our court that Dr. Jacobs needed
only to submit a copy of her identification. Months passed without
compliance, and the Board reminded Dr. Jacobs—this time, stating that it
would mail her the specialty license as soon as she furnished a copy of her
identification. Then the Board told us of these communications and
represented that it would issue Dr. Jacobs a specialty license once she
supplies a copy of her identification. We lack any reason to question the
Board’s willingness to fulfill its representations to Dr. Jacobs and to us.
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The Board made similar representations regarding Dr. Seay, stating
that he would obtain a specialty license once he completes a new
application. Despite this representation, Dr. Seay hasn’t submitted a new
application. We again lack any reason to question the Board’s willingness
to carry out its representation by granting Dr. Seay a specialty license.
The exception for voluntary cessation does not apply, and the claims
for prospective relief became prudentially moot when the Board
represented that it would furnish the specialty licenses to Dr. Jacobs and
Dr. Seay.
III. The Plaintiffs’ claims for damages are invalid.
Though the claims for damages aren’t moot, they’re invalid. The
Plaintiffs waived an appellate challenge to the antitrust claim for damages,
and the constitutional claims for damages fail because the Board couldn’t
grant the specialty licenses until the law changed.
A. The Plaintiffs waived their appellate argument on the antitrust claim.
The Plaintiffs claimed a violation of the antitrust laws and argued
that their suit had been timely based on a continuing conspiracy to restrain
the Plaintiffs from practicing their trade. The district court rejected this
argument and dismissed the antitrust claim as untimely.
On appeal, the Plaintiffs have not reasserted a continuing conspiracy.
They instead argue that
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their “right to compete is still being suppressed” and
the district court rejected “the importance of Plaintiffs’ right to speech and to competition.”
Appellants’ Opening Br. at 20. But these arguments don’t bear on the
existence of a continuing conspiracy. So even if we were to credit the
Plaintiffs’ arguments, they wouldn’t undermine the district court’s reason
for granting summary judgment on the antitrust claim. By failing to
challenge the district court’s reasoning on this claim, the Plaintiffs waived
this appellate issue.
B. The Plaintiffs also waived any non-obvious defect in the Board members’ argument to affirm on alternative grounds.
The district court regarded the constitutional claims as untimely, and
the Plaintiffs confined their appellate argument to the issue of timeliness.
But we need not address timeliness.
In responding on appeal, the Board members urge us to affirm based
not only on timeliness but also on the prior statutory restrictions on
specialty licenses. The Plaintiffs filed a reply brief, but didn’t address the
Board members’ reliance on the prior statutory restrictions. Through that
omission, the Plaintiffs waived any non-obvious defect in the Board
members’ alternative argument for affirmance, and we see no obvious
defect.
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1. We can affirm the award of summary judgment on alternative grounds.
We have “discretion to affirm on any ground adequately supported by
the record.” Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). In
deciding how to exercise our discretion, we consider whether
“the ground was fully briefed and argued here and below,”
“the parties have had a fair opportunity to develop the factual record,” and
“our decision would only involve questions of law” “in light of factual findings to which we defer or uncontested facts.”
Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (citations &
internal quotation marks omitted). Each factor supports consideration of
the Board’s argument for affirmance on the alternative ground that the
Board previously lacked statutory authority to issue the licenses.
First, the Defendants briefed the issue in district court and on appeal.
Appellees’ Resp. Br. at 7–8. The Plaintiffs could have (and should have)
responded to this alternative argument for affirmance. But they didn’t.
Second, both parties had a fair opportunity to develop the factual
record on the Board’s authority to grant a specialty license. In district
court, the Defendants moved for summary judgment on this issue,
triggering an obligation for Dr. Seay and Dr. Jacobs to present their
evidence on the Board’s authority to grant a specialty license. See Celotex
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v. Catrett, 477 U.S. 317, 325 (1986). So we have a full factual record to
decide the issue.
Finally, the Board’s authority involves a purely legal question: Even
now, the parties present no factual disputes as to the Board’s authority
prior to the recent statutory change.
Because each factor supports consideration, we address the
Defendants’ argument for affirmance on alternate grounds involving the
Board’s prior inability to grant the specialty licenses.
2. The Plaintiffs waived their opportunity to address the statutory constraints on the Board.
In their response brief, the Board members argued that the claims for
damages were invalid because
Oklahoma law previously did not recognize dental anesthesiology as a specialty,
the Board was just carrying out the state law, and
the Board couldn’t have done anything differently.
Appellees’ Resp. Br. at 7–8. In their reply brief, the Plaintiffs did not
respond to the merits of the Board members’ argument. The Plaintiffs
instead argued that
the issue didn’t relate to the district court’s rationale,
the Board members’ brief did not refer to the record, and
the argument was not responsive to the opening brief.
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Appellants’ Reply Br. at 4. Missing, however, was a response to the
substance of the Board members’ argument.
We don’t craft arguments for the parties. Perry v. Woodward, 199
F.3d 1126, 1141 n. 13 (10th Cir. 1999). The Board members urged
affirmance on alternative grounds, and the Plaintiffs had a full opportunity
to address that argument in their reply brief. They declined to do so.
In their opening and reply briefs, the Plaintiffs refer to the Board’s
role in prosecuting them in the 1990s. The district court treated the
conduct in the 1990s as time-barred, and the Plaintiffs don’t question that
ruling. The Plaintiffs instead focus their appeal on the Board’s more recent
denial of their applications for specialty licenses. In responding to that
claim, the Board members urged us to affirm on the ground that they
couldn’t issue specialty licenses for anesthesiology when those licenses
were prohibited under state law. In their reply brief, the Plaintiffs did not
respond to the Board members’ argument that Oklahoma law had
prohibited approval of the specialty licenses.
By forgoing any response in their reply brief, the Plaintiffs waived
any non-obvious defect in the Board members’ alternative argument for
affirmance. Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1099 (10th Cir.
15 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 16
2019); 4 see Eaton v. Pacheco, 931 F.3d 1009, 1031 (10th Cir. 2019)
(stating that the failure to address an issue in the reply brief constitutes a
waiver of “any non-obvious responses” that the appellant could have
made); United States v. A.S., 939 F.3d 1063, 1076 (10th Cir. 2019) (stating
that we’re free to conclude that the appellant waived any non-obvious
responses to the appellee’s argument by failing to address it in the reply
brief).
Though Dr. Seay and Dr. Jacobs waived any objections to non-
obvious defects, we asked about the issue after Dr. Seay and Dr. Jacobs
had completed their presentations in oral argument. 5 They responded to our
questions on the issue. But their responses to our questioning don’t cure
the waiver from their failure to address the issue in their reply brief. See
Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998)
4 There we approvingly quoted a Seventh Circuit opinion: “When an appellee advances an alternative ground for upholding a ruling by the district judge, and the appellant does not respond in his reply brief . . ., he [does not] concede[] the correctness of the ruling . . . . But he waives, as a practical matter anyway, any objections not obvious to the court to specific points urged by the appellee.” Hasan, 935 F.3d at 1099 (alterations in original) (quoting Hardy v. City Optical Inc., 39 F.3d 765, 771 (7th Cir. 1994)). 5 At that time, we asked the Plaintiffs why they haven’t waived the Board members’ alternative argument for affirmance by failing to address it in the reply brief. Oral Arg. at 29:28–31:51. The Plaintiffs did not respond to this part of the question or otherwise suggest a reason for us to overlook the waiver. See id. 16 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 17
(appellate arguments are waived when presented for the first time in oral
argument).
After oral argument, we ordered supplemental briefing on mootness.
The Plaintiffs responded, presenting their argument on mootness. But the
Plaintiffs slipped into their supplemental brief a new response to the
Board’s alternative argument for affirmance. Appellants’ Am. Supp. Br. on
Mootness at 5. That was too late. We ordered briefing on mootness, not
issues that could and should have been presented in the Plaintiffs’ reply
brief. We thus confine our review to any obvious defect in the Board
members’ alternative argument for affirmance.
We haven’t squarely addressed how to consider obviousness in this
setting. But the Supreme Court and our court have addressed obviousness
when considering qualified immunity and plain error. In these settings, an
error is ordinarily obvious only when it is apparent from precedent or the
great weight of authority. See District of Columbia v. Wesby, 138 S. Ct.
577, 589–90 (2018) (qualified immunity); United States v. Miller, 978 F.3d
746, 763 (10th Cir. 2020) (plain error). This approach makes sense here,
for we would ordinarily consider a defect obvious if the defect had been
apparent from a precedent or weighty authority elsewhere. We thus
conclude that a defect in the Board members’ argument would ordinarily be
obvious only in the presence of contrary precedent or the great weight of
authority.
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3. We see no obvious defect in the Board members’ alternative argument for affirmance.
The Board members argued in their response brief that until the
recent statutory amendment, they couldn’t issue specialty licenses in dental
anesthesiology. We see no obvious defect in that argument.
The Board is a creature of Oklahoma law, so the Board members
drew their authority from the Oklahoma legislature. State ex rel. Okla.
State Dep’t of Health v. Robertson, 152 P.3d 875, 880 (Okla. 2006). When
the Board denied the Plaintiffs’ applications, Oklahoma law prohibited
specialty licenses in dental anesthesiology. Because of this prohibition, the
Board members could reasonably have considered themselves powerless to
do anything different. See Sholer v. State ex rel. Dep’t of Pub. Safety, 945
P.2d 469, 474 (Okla. 1995), as corrected (June 26, 1997), as supplemented
on reh’g (July 1, 1997), as corrected (Aug. 14, 1997) (noting that while
Oklahoma courts afford deference to a state agency’s interpretations of
Oklahoma statutes, state agencies cannot “misapply” unambiguous
statutes).
When the Board denied the Plaintiffs’ applications for specialty
licenses, the Oklahoma Dental Act listed the specialties that could be
recognized. That list omitted dental anesthesiology. Despite that omission,
the Plaintiffs insisted at oral argument and in their supplemental brief on
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mootness that the Board members had the power to grant licenses for
unlisted specialties.
Even if the Board had enjoyed this power, it wouldn’t be obvious to
us. To determine the extent of the Board’s authority, we ordinarily start
with the wording of the statute (the Oklahoma Dental Act). See
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171 (2016).
When the Plaintiffs sued in 2017, the Oklahoma statute provided that
“[t]he Board shall use the American Dental Association guidelines for the
purpose of defining a specialty practice area.” Okla. Stat. tit. 59,
§ 328.22(D) (2015 supp.) (emphasis added). 6 The use of the mandatory
shall suggested that the Board could grant licenses only for the listed
specialties. See Me. Cmty. Health Options v. United States, 140 S. Ct.
1308, 1320 (2020). Shall means “[h]as a duty to; more broadly, is required
to.” Shall, Black's Law Dictionary (11th ed. 2019). “Unlike the word
‘may,’ which implies discretion, the word ‘shall’ usually connotes a
requirement.” Kingdomware, 579 U.S. at 171.
Oklahoma amended the statute in 2018, changing shall to may and
allowing the Board to use either “the American Dental Association
guidelines or the guidelines of another nationally recognized dental
6 The statute elsewhere identified dental specialties that the Board had to recognize. Okla. Stat. tit. 59 § 328.22(A)(3) (2015 supp.). These specialties did not include dental anesthesiology. See id.
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association or board for the purpose of defining a specialty practice area
not otherwise defined [in the statute].” Okla. Stat. tit. 59, § 328.22(D)
(2018 supp.). 7 The 2018 amendment broadened the Board’s authority to
allow recognition of specialties upon approval by the Commission on
Dental Accreditation of the American Dental Association. Okla. Stat. tit.
59, § 328.22 (2018 supp.); see Okla. Admin. Code § 195:10-9-2 (2006
supp.) (specialties recognized by the Board and qualifying requirements).
But at that time, the American Dental Association had not yet
recognized dental anesthesiology as a specialty; 8 and the Plaintiffs have
7 In their opening brief, the Plaintiffs state that after the American Dental Association voted to approve dental anesthesiology as a specialty, the Oklahoma legislature amended the law in 2019 by changing shall to may. The Plaintiffs are mistaken. The statute was amended in 2018 (before the American Dental Association had recognized dental anesthesiology as a specialty). See Okla. H.B. 2759 (2017). The 2019 amendment dealt with another provision of the statute, Okla. Stat. tit. 59, § 328.22(A)(2) (2019 supp.). See Okla. S.B. 603 (2019).
In their supplemental brief on mootness, the Plaintiffs assert that the legislature amended the statute in 2019 “so that the Board could avoid granting licenses to anesthesiologists.” Appellants’ Am. Supp. Br. on Mootness at 5. But the Plaintiffs cite no support for this assertion. 8 Anesthesia and Sedation, Amer. Dental Assoc., https://www.ada.org/resources/research/science-and-research-institute/oral- health-topics/anesthesia-and-sedation (last updated Nov. 9, 2021) (noting that the American Dental Association had recognized dental anesthesiology in March 2019); see Am. Acad. of Implant Dentistry v. Parker, 152 F. Supp. 3d 641, 647 (W.D. Tex. 2016) (stating in 2016 that the American Dental Association did not recognize dental anesthesiology as a specialty), aff’d, 860 F.3d 300 (5th Cir. 2017).
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not identified another national organization that had recognized dental
anesthesiology as a specialty. So even with the statutory change in 2018,
Oklahoma law continued to prohibit specialty licenses for dental
anesthesiology. Given the statutory constraints on the Board’s authority,
we see no obvious defect in the Board members’ alternative argument for
affirmance.
4. The Plaintiffs haven’t shown an obvious constitutional infirmity in the Oklahoma Dental Act when the Board initially denied the applications.
In oral argument, the Plaintiffs suggested that despite the Oklahoma
Dental Act’s exclusion of dental anesthesiology as a recognized specialty,
the Board members should nonetheless incur liability for enforcing the
statute because they knew the statute was unconstitutional. Oral Argument
at 29:35–31:54. A board member’s reliance on a state statute may prevent
liability. Lawrence v. Reed, 406 F.3d 1224, 1232 (10th Cir. 2005). But
“some statutes are so obviously unconstitutional” that board members may
incur liability for damages unless they “second-guess the legislature and
refuse to enforce an unconstitutional statute.” Id. at 1233.
A constitutional violation would ordinarily have been obvious only if
a precedent or the weight of authority had already deemed the state law
unconstitutional. See Part III(B)(2), above. But even now, the Plaintiffs
have pointed to no such case law.
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The Plaintiffs say that the prior statutory restrictions constituted
denials of due process, equal protection, and free speech. But the Plaintiffs
haven’t pointed to any meaningful support in the case law.
In the context of discussing the statute of limitations, the Plaintiffs
asserted that Dr. Seay had a property interest in a specialty license and was
entitled to due process. This assertion consisted in its entirety of this
paragraph:
The [district] court trivialized Plaintiff Seay’s right to due process of law. In April 2017, Seay filed an Application for a Specialty License. His application has never been considered by the Board. He has never been given an opportunity to be heard. The Board has defended the due process violation by pleading that Seay does not have a protected property interest in his license and is not entitled to due process. (JA III:444, Doc. 57; JA I: 26–27, Doc. 1.) This defense is contrary to law. Johnson v. Board of Governors of Registered Dentists, 1996 OK 41.
Appellants’ Opening Br. at 17.
But the only cited case, Johnson, wouldn’t have rendered a property
interest obvious to the Board. There the court had addressed revocation of
an existing license—not an applicant’s request for a new license. Johnson
v. Bd. of Governors of Registered Dentists of State of Okla., 913 P.2d
1339, 1345, corrected (Okla. 1996).
The Plaintiffs also refer in their opening brief to a denial of equal
protection. These references consist of these three cursory assertions.
1. Plaintiff filed an action pursuant to 42 U.S.C. § 1983 claiming that under color of state law, they had been continuously deprived of their property and liberty interest
22 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 23
without due process of law, denied equal protection, freedom of speech and restrained from competition in violation of 15 U.S.C. §§ 1-26 and the Oklahoma Antitrust Reform Act, 79 O.S. § 201, et seq.
* * * *
2. [The Plaintiffs’] Complaint and Amended Complaint include violations of due process, equal protection and antitrust claims. These claims were ignored by the court.
3. This action was not just a lingering effect of a previous constitutional harm but a recent event in which Seay was treated differently than many of his peers. It also cost him clients. This is an equal protection allegation Plaintiffs are treated differently than other licensed dentists.
Appellants’ Opening Br. at 1, 5, 18 (emphasis added).
The Plaintiffs’ references to equal protection are just as cursory in
their reply brief. There the Plaintiffs say, in addressing timeliness, that (1)
the Board members have ignored the claim involving equal protection and
(2) the denial of equal protection is ongoing. Appellants’ Reply Br. at 3–4.
The Plaintiffs do not say in either their opening or reply brief how or
why the denial of a specialty license would have constituted a denial of
equal protection. 9 We thus see no reason that the Board members should
9 The Plaintiffs do assert that they were “treated differently than other licensed dentists.” Appellants’ Opening Br. at 18. But they do not explain this assertion or say how this different treatment would constitute a denial of equal protection. 23 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 24
have recognized an obvious denial of equal protection in the prior statutory
restrictions on specialty licenses.
Finally, in discussing timeliness, the Plaintiffs make six cursory
references to a right to free speech:
1. Plaintiffs filed an action pursuant to 42 U.S.C. § 1983 claiming that under color of state law, they had been continuously deprived of their property and liberty interests without due process of law, denied equal protection, freedom of speech and restrained from competition in violation of 15 U.S.C. §§ 1-26 and the Oklahoma Antitrust Reform Act, 79 O.S. § 201, et seq.
2. The court held that Plaintiffs had known for years that their rights to speech had been violated . . .
3. What the decision means is that the court knows the statute violates Plaintiffs’ constitutional rights to speech right now and not just in the past, but is willing to let the unconstitutional statute stand and continue to injure Plaintiffs because they did not file suit within the two year statute of limitations.
4. [The Oklahoma Court of Appeals] held that the Board’s action violated [Dr. Jacobs’] First Amendment right to speech.
5. The district court criticized the Plaintiffs because they knew that their right to speech had been violated for years and did nothing. This is not a fair or accurate statement.
24 Appellate Case: 21-6054 Document: 010110665826 Date Filed: 04/01/2022 Page: 25
6. The [district] court stated that, “Plaintiffs’ chief complaint is that their rights have been violated because the subject laws and regulations prohibit them from representing themselves to the public as specialists.” (JA V: 918, Doc. 67.) This statement belittles the importance of Plaintiffs’ right to speech, the development of their professional lives and the ability to compete in business.
Appellants’ Opening Br. at 1, 4, 12, 20 (emphasis added). The Plaintiffs’
reply brief contains no further explanation for the asserted denial of free
speech. See Appellants’ Reply Br. at 2–3.
Even in the course of discussing timeliness, the Plaintiffs haven’t
said how or why the prior statutory restrictions on specialty licenses had
impinged on a right to free speech. 10 So if the prior statutory restrictions
had infringed on a constitutional right to free speech, the infringement
wouldn’t have been obvious to the Board members.
* * *
10 The Plaintiffs cited Board of Governors of Registered Dentists of the State of Okla. v. Jacobs, Case No. 79,315 (Okla. Civ. App. 4th Div. Aug. 10, 1993) (Mem.) (unpublished), cert. denied, 511 U.S. 1082 (1994) (Joint App’x Vol. 2, at 318). There Dr. Jacobs had been reprimanded for holding herself out as a specialist in dental anesthesiology without a specialty license, and the Oklahoma Court of Appeals reversed. In reversing, however, the Oklahoma Court of Appeals did not hold that the Oklahoma Dental Act was unconstitutional on account of its failure to recognize dental anesthesiology as a specialty. Rather, the court held that Dr. Jacobs had a right to advertise her qualifications in dental anesthesiology without a specialty license.
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In the absence of any explanation or authority, we see no obvious
defect in the board members’ argument for affirmance on an alternative
ground. If a constitutional infirmity in the Oklahoma Dental Act had been
obvious, the Board couldn’t rely on the legislature’s constraints on
specialty licenses. But the Plaintiffs haven’t pointed to any obvious
constitutional infirmities in the statute.
So we need not address timeliness of the constitutional claims for
damages. Even if these claims had been timely, we see no obvious defect in
the Board members’ alternative argument for affirmance. Without an
obvious defect in that argument, we affirm the award of summary judgment
based on the Board members’ lack of statutory authority to issue the
specialty licenses.
IV. Conclusion
The Plaintiffs’ claims for prospective relief against the Board are
prudentially moot in light of the recent amendment to the Oklahoma Dental
Act and the Board’s softening of its position.
We affirm the award of summary judgment on the claims for damages
against the Board members. On these claims, the Plaintiffs waived an
appellate challenge on their theory under the antitrust laws. On the
Plaintiffs’ constitutional theories, the Board members couldn’t incur
personal liability because they had lacked authority to grant the specialty
licenses to Dr. Seay and Dr. Jacobs.
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Affirmed.
Entered for the Court
Robert E. Bacharach Circuit Judge