Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 2, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JASON WRIGHT,
Plaintiff - Appellant,
v. No. 23-1274 (D.C. No. 1:21-CV-02319-GPG-KAS) NATIONAL BOARD OF MEDICAL (D. Colo.) EXAMINERS,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before TYMKOVICH, BACHARACH, and CARSON, Circuit Judges. _________________________________
Mr. Jason Wright wants a medical license. To get it, he needs to pass
a test administered by the National Board of Medical Examiners. The test
has three parts, and Mr. Wright has passed the first two parts. But he’s
tried four times—without success—to pass the third part.
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the briefing and the record. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
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. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 2
Mr. Wright attributes these failures to the Board’s unwillingness to
provide accommodations for his disability, and he has sued under the
Americans with Disabilities Act. 1 Under this statute, however, Mr. Wright
can get only preventive relief. 42 U.S.C. §§ 2000a–3(a), 12188(a). The
availability of preventive relief turns not only on the merits of
Mr. Wright’s claim but also on his eligibility to retake the third part of the
test.
When he first took the test, the Board’s rule allowed him to take the
third part six times. But the Board changed the rule, stating that applicants
could take the third part of the test only four times. And Mr. Wright has
now taken the third part of the test four times. The district court thus
dismissed the action on jurisdictional grounds, concluding that the claims
are
moot for tests already taken and
unripe for future tests in the absence of an opportunity to take the third part again.
We conduct de novo review over these jurisdictional conclusions.
Tompkins v. United States Dep’t of Veterans Affairs, 16 F.4th 733, 741
(10th Cir. 2021).
1 Mr. Wright has also invoked state law and says that the district court failed to address the state-law claim. Mr. Wright is mistaken. The court dismissed the state-law claim, declining to exercise supplemental jurisdiction.
2 Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 3
Mr. Wright doesn’t question the mootness of his claims involving the
tests that he has already taken. Instead, he alleges a right to take the third
part of the test two more times because of the failure to honor past requests
for accommodations. Given this alleged right, Mr. Wright argues that his
claim for future accommodations is ripe.
The district court rejected this argument, concluding that Mr. Wright
had not shown a legal right to take the test two more times. We agree with
the district court that the claim isn’t ripe, but we differ with the court in
our approach. In our view, the Board’s challenge to ripeness is factual and
the undisputed facts show that Mr. Wright has no right to retake the third
part of the test.
We can affirm on other grounds as long as they’re supported by the
record. I Dig Texas, LLC v. Creager, 98 F.4th 998, 1009 (10th Cir. 2024).
In deciding whether to consider other grounds to affirm, we consider
whether
the issue was briefed in district court and on appeal,
the question is legal, and
the record is adequately developed.
Id. These factors support consideration of the alternative ground to affirm.
The parties briefed the issue in district court and on appeal, ripeness
3 Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 4
constitutes a matter of law, 2 and both parties had an opportunity to present
evidence involving the Board’s practices.
Ripeness involves fitness of the issue for judicial resolution and
hardship to the parties from withholding a decision. United States v.
Wilson, 244 F.3d 1208, 1213 (10th Cir. 2001). A challenge to ripeness can
be facial or factual. Laufer v. Looper, 22 F.4th 871, 875 (10th Cir. 2022).
A facial attack assumes that the allegations are true; a factual attack relies
on evidence outside the complaint. Id.
The Board’s challenge is factual because it rests on Mr. Wright’s
ineligibility to retake the third part of the test. Responding to this
challenge, Mr. Wright insists that two of his tests shouldn’t count because
the Board hadn’t honored his past requests for accommodation. Even if
Mr. Wright were correct, ripeness would turn on the Board’s actual
practice (rather than what it should be).
Assume, for example, that the district court requires the Board to
accommodate Mr. Wright if he retakes the third part of the test. This
requirement would be academic if the Board doesn’t allow Mr. Wright to
retake this part of the test, and Mr. Wright’s eligibility to retake the test
turns solely on the Board’s actual practice.
2 See Texas v. United States, 497 F.3d 491, 495 (5th Cir. 2007) (stating that ripeness constitutes a matter of law). 4 Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 5
Mr. Wright argues that he remains eligible to retake the test because
two of his attempts shouldn’t count. The Board characterizes this argument
as factual; Mr. Wright characterizes the argument as legal. With either
characterization, however, the argument fails.
Mr. Wright doesn’t argue that the Board’s policy expressly allows
another chance to take the test based on past failures to accommodate a
disability. Mr. Wright instead argues that the Board’s policy is flexible
enough to allow retesting when there are glitches with administration of
the test (such as computer problems).
Mr. Wright failed to preserve this argument because he didn’t present
it in district court. See Ave. Cap. Mgt. II, L.P. v. Schaden, 843 F.3d 876,
884 (10th Cir. 2016). Even if he had preserved the argument, however, it
wouldn’t matter because Mr. Wright doesn’t suggest that this policy is
broad enough to allow retesting when the Board denies a required
accommodation. So Mr. Wright’s argument would fail if we characterize it
as factual.
The same is true if we characterize the argument as legal. Mr. Wright
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 2, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JASON WRIGHT,
Plaintiff - Appellant,
v. No. 23-1274 (D.C. No. 1:21-CV-02319-GPG-KAS) NATIONAL BOARD OF MEDICAL (D. Colo.) EXAMINERS,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before TYMKOVICH, BACHARACH, and CARSON, Circuit Judges. _________________________________
Mr. Jason Wright wants a medical license. To get it, he needs to pass
a test administered by the National Board of Medical Examiners. The test
has three parts, and Mr. Wright has passed the first two parts. But he’s
tried four times—without success—to pass the third part.
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the briefing and the record. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
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. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 2
Mr. Wright attributes these failures to the Board’s unwillingness to
provide accommodations for his disability, and he has sued under the
Americans with Disabilities Act. 1 Under this statute, however, Mr. Wright
can get only preventive relief. 42 U.S.C. §§ 2000a–3(a), 12188(a). The
availability of preventive relief turns not only on the merits of
Mr. Wright’s claim but also on his eligibility to retake the third part of the
test.
When he first took the test, the Board’s rule allowed him to take the
third part six times. But the Board changed the rule, stating that applicants
could take the third part of the test only four times. And Mr. Wright has
now taken the third part of the test four times. The district court thus
dismissed the action on jurisdictional grounds, concluding that the claims
are
moot for tests already taken and
unripe for future tests in the absence of an opportunity to take the third part again.
We conduct de novo review over these jurisdictional conclusions.
Tompkins v. United States Dep’t of Veterans Affairs, 16 F.4th 733, 741
(10th Cir. 2021).
1 Mr. Wright has also invoked state law and says that the district court failed to address the state-law claim. Mr. Wright is mistaken. The court dismissed the state-law claim, declining to exercise supplemental jurisdiction.
2 Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 3
Mr. Wright doesn’t question the mootness of his claims involving the
tests that he has already taken. Instead, he alleges a right to take the third
part of the test two more times because of the failure to honor past requests
for accommodations. Given this alleged right, Mr. Wright argues that his
claim for future accommodations is ripe.
The district court rejected this argument, concluding that Mr. Wright
had not shown a legal right to take the test two more times. We agree with
the district court that the claim isn’t ripe, but we differ with the court in
our approach. In our view, the Board’s challenge to ripeness is factual and
the undisputed facts show that Mr. Wright has no right to retake the third
part of the test.
We can affirm on other grounds as long as they’re supported by the
record. I Dig Texas, LLC v. Creager, 98 F.4th 998, 1009 (10th Cir. 2024).
In deciding whether to consider other grounds to affirm, we consider
whether
the issue was briefed in district court and on appeal,
the question is legal, and
the record is adequately developed.
Id. These factors support consideration of the alternative ground to affirm.
The parties briefed the issue in district court and on appeal, ripeness
3 Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 4
constitutes a matter of law, 2 and both parties had an opportunity to present
evidence involving the Board’s practices.
Ripeness involves fitness of the issue for judicial resolution and
hardship to the parties from withholding a decision. United States v.
Wilson, 244 F.3d 1208, 1213 (10th Cir. 2001). A challenge to ripeness can
be facial or factual. Laufer v. Looper, 22 F.4th 871, 875 (10th Cir. 2022).
A facial attack assumes that the allegations are true; a factual attack relies
on evidence outside the complaint. Id.
The Board’s challenge is factual because it rests on Mr. Wright’s
ineligibility to retake the third part of the test. Responding to this
challenge, Mr. Wright insists that two of his tests shouldn’t count because
the Board hadn’t honored his past requests for accommodation. Even if
Mr. Wright were correct, ripeness would turn on the Board’s actual
practice (rather than what it should be).
Assume, for example, that the district court requires the Board to
accommodate Mr. Wright if he retakes the third part of the test. This
requirement would be academic if the Board doesn’t allow Mr. Wright to
retake this part of the test, and Mr. Wright’s eligibility to retake the test
turns solely on the Board’s actual practice.
2 See Texas v. United States, 497 F.3d 491, 495 (5th Cir. 2007) (stating that ripeness constitutes a matter of law). 4 Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 5
Mr. Wright argues that he remains eligible to retake the test because
two of his attempts shouldn’t count. The Board characterizes this argument
as factual; Mr. Wright characterizes the argument as legal. With either
characterization, however, the argument fails.
Mr. Wright doesn’t argue that the Board’s policy expressly allows
another chance to take the test based on past failures to accommodate a
disability. Mr. Wright instead argues that the Board’s policy is flexible
enough to allow retesting when there are glitches with administration of
the test (such as computer problems).
Mr. Wright failed to preserve this argument because he didn’t present
it in district court. See Ave. Cap. Mgt. II, L.P. v. Schaden, 843 F.3d 876,
884 (10th Cir. 2016). Even if he had preserved the argument, however, it
wouldn’t matter because Mr. Wright doesn’t suggest that this policy is
broad enough to allow retesting when the Board denies a required
accommodation. So Mr. Wright’s argument would fail if we characterize it
as factual.
The same is true if we characterize the argument as legal. Mr. Wright
says that two of his prior tests shouldn’t count, but why shouldn’t they?
Mr. Wright doesn’t identify a legal theory that would require the Board to
disregard two of the past tests when counting the past attempts. 3
3 Mr. Wright also asserts in a footnote that he’s entitled to six attempts under the Board’s prior policy. Mr. Wright waived this issue by failing to 5 Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 6
Mr. Wright argues that a legal inquiry arises from characterization of
his prior tests as attempts. But the term attempt appears in the Board
policy, not a statute. So the only issue is whether Mr. Wright has
exhausted his four attempts under the Board’s policy; the Board’s
application of that policy is factual, not legal.
* * *
The Americans with Disabilities Act authorizes “preventive relief,”
not compensation for past wrongdoing. 42 U.S.C. §§ 2000a–3(a), 12188(a).
But Mr. Wright’s requests involve remedial action for past failures to
accommodate his disability—not the need for preventive relief to avoid
future mischief. 4
So whether we view the challenge as factual or legal, Mr. Wright
hasn’t shown eligibility to retake the third part of the test. A claim for
preventive relief is thus unripe, and the district court properly dismissed
the action for lack of jurisdiction.
develop it. See Therrien v. Target Corp., 617 F.3d 1242, 1252–53 (10th Cir. 2010) (deeming an argument waived when it was mentioned only in a footnote and lacked a developed argument). 4 Even if we were to characterize Mr. Wright’s claim as ongoing, however, a preventive remedy would remain available only if the Board’s policy allowed him to retake the test because of past failures to accommodate his alleged disability.
6 Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 7
Affirmed.
Entered for the Court
Robert E. Bacharach Circuit Judge