UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JASON WRIGHT, Pl aintiff - Appellant,

v. NATIONAL BOARD OF MEDICAL EXAMINERS,
De fendant - Appellee. No. 23-1274 (D.C. No. 1:21-CV -02319-GPG-KAS) (D. Colo.)

________________ _________________ 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 Bo ard of Medical Exam iners. The test has three parts, and Mr. Wright has pa ssed the first two parts. But he’s tried four times—without succe ss—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 co nstitute binding pr ecedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### July 2, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 12 Mr. Wright attributes these failur es to the Board’ s unwillingness to provide accommodations for his disa bility, 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 preventi ve relief turns not on ly on the merits of Mr. Wright’s claim but also on his eligibility to reta ke the third part of the

test. When he first took the test, the Boar d’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 ju risdictional grounds, concl uding that the claims

are

 moot for tests already taken and

 unripe for future test s in the absence of an opportunity to take the third part again. We conduct de novo revi ew over these jurisd ictional 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 la w and says that the district court failed to address the state-law claim. Mr. Wright is mistaken. The court dismissed the state-law claim, decl ining to exercise supplemental jurisdiction. Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 23 Mr. Wright doesn’t ques tion the mootness of his claims involving the tests that he has already ta ken. Instead, he alleges a right to take the third part of the test two more times becaus e 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 ar gument, concluding that Mr. Wright had not shown a legal right to take the test two more times. We agree with the district court that th e 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 reta ke the third part of the test. We can affirm on othe r grounds as long as th ey’re support ed by the record. I Dig Texas, LLC v. Creager , 98 F.4th 998, 1009 (10th Cir. 2024). In deciding whethe r to consider other grounds to affirm, we consider whether

 the issue was briefed in dist rict court and on appeal,

 the question is legal, and

 the record is adequately developed. Id. These factors support consideration of the alternativ e ground to affirm. The parties briefed the is sue in district court and on appeal, ripeness Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 34 constitutes a matter of law, 2 and both parties had an opportunity to present evidence involving th e 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 (10t h Cir. 2001). A challe nge to ripeness can be facial or factual. Laufer v. Looper , 22 F.4th 871, 875 (10th Cir. 2022). A facial attack assumes that the allega tions are true; a f actual attack relies on evidence outsid e 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. Respond ing to this challenge, Mr. Wright insi sts that two of his test s shouldn’t count because the Board hadn’t honored hi s past requests for acc ommodation. Even if Mr. Wright were correct, ripeness would turn on the Board’s actual practice (rather than what it should be). Assume, for example, th at the district court requires the Board to accommodate Mr. Wright if he retake s 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. Wr ight’s eligibility to retake the test turns solely on the Board’s ac tual practice.

2 See Texas v. United States , 497 F.3d 491, 495 (5th Cir. 2007) (stating that ripeness constitu tes a matter of law). Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 45 Mr. Wright argues that he remains eligible to retake the test because two of his attempts shoul dn’t count. The Board char acterizes this argument as factual; Mr. Wright characterizes the argument as lega l. With either characterization, howev er, the argument fails. Mr. Wright doesn’t argu e that the Board’s poli cy expressly allows another chance to take the test based on past failures to accommodate a disability. Mr. Wright instead argues that the Board’s po licy is flexible enough to allow retesting when there are glitches wi th 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 preserve d the argument, however, it wouldn’t matter because Mr. Wright do esn’t suggest that this policy is broad enough to allow re testing when the Boar d denies a required accommodation. So Mr. Wrig ht’s argument would fail if we characterize it as factual. The same is true if we characteri ze the argument as le gal. Mr. Wright says that two of his pr ior 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 te sts when counti ng the past attempts

. 3

3 Mr. Wright also asserts in a footno te that he’s entitle d to six attempts under the Board’s pr ior policy. Mr. Wright waived this issue by failing to Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 56 Mr. Wright argues that a legal inquiry arises fr om 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 polic y; the Board’s application of that policy is factual, not legal.
* * * The Americans with Disabilities Ac t authorizes “preventive relief,” not compensation for pa st wrongdoing. 42 U.S.C. §§ 2000a–3(a), 12188(a). But Mr. Wright’s requests involve reme dial 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 le gal, Mr. Wright hasn’t shown eligibility to retake th e third part of th e 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 wh en it was mentioned only in a footnote and lacked a developed argument).

4 Even if we were to characterize Mr. Wrig ht’s claim as ongoing, however, a preventive remedy would remain available only if the Board’s policy allowed him to re take the test because of past failures to accommodate his alleged disability. Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 67 Affirmed. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 23-1274 Document: 010111073708 Date Filed: 07/02/2024 Page: 7