UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JASON WRIGHT, 

 Plaintiff - Appellant, 

v. 

NATIONAL BOARD OF MEDICAL 

EXAMINERS, 

 Defendant - 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 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). 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 2, 2024

Christopher M. Wolpert 

Clerk of Court

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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. 

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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 

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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). 

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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 

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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. 

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Affirmed. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge 

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