Joseph P. Seay, D.d.s., M.s.; Lois Jacobs, D.d.s., M.s. v. Oklahoma Board of Dentistry

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JOSEPH P. SEAY, D.D.S., M.S.;
LOIS JACOBS, D.D.S., M.S.,
Plaintiffs - Appellants,
v.
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
No. 21-6054
(D.C. No. 5:17-CV-00682-D)
(W.D. Okla.)
FILED
United States Court of Appeals
Tenth Circuit
June 7, 2022
Christopher M. Wolpert
Clerk of Court
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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.
_________________________________
AMENDED 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 have sought specialty licenses from the
Oklahoma Board of Dentistry. Dr. Seay and Dr. Jacobs wanted to use these
licenses in advertisements, but until recently Oklahoma law did not allow
specialty licenses in dental anesthesiology. So the Board allegedly deemed
Dr. Seay and Dr. Jacobs ineligible for specialty licenses.
Dr. Seay and Dr. Jacobs responded by suing the Board and its
members for violating 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
* 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).
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enforcement of the state law and the Board rule, and compensatory
damages against the Board members 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 specialty licenses. The federal district court granted summary
judgment to the Board members based on timeliness.
But the Oklahoma law changed in May 2021 to recognize dental
anesthesiology as a specialty, 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
couldn’t change or subvert 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
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defect in the Defendants’ alternative argument for affirmance. We see no
obvious defect in that 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, affirming 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 softened its position.
Dr. Seay and Dr. Jacobs seek injunctive and declaratory relief to
require issuance of specialty licenses in dental anesthesiology. When the
Plaintiffs sued, the specialty licenses were not permitted under Oklahoma
law. But during the pendency of the appeal, the Oklahoma legislature
amended the Oklahoma 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:
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1. Dr. Seay and Dr. Jacobs had received their master’s degrees in
anesthesiology before the Commission on Dental Accreditation
began 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 that the
Defendants had filed about 1½ years before the statutory change. Id.
(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
constitutional requirements and prudential considerations. 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
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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 Bldg. & Constr. Dep’t 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
Com. v. U.S. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980))).
The prospective claims became prudentially moot when
 the state legislature modified the law by recognizing dental
anesthesiology as a specialty and
 the Board softened its position on the Plaintiffs’ eligibility for
specialty licenses.
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 . . . .”).
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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. The Board later
confirmed in writing 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 stated that Dr. Seay just needed to reapply, he
hasn’t done that. Appellees’ Supp. Resp. Br. on Mootness at 2.
Unlike Dr. Seay, Dr. Jacobs applied after Oklahoma had amended the
statute. 3 Days after she had applied, the Board told her that she needed to
submit a copy of her driver’s license, passport, or birth certificate.
2 At oral argument, the Board asserted that it had changed its rules.
But we need not address this assertion.
3 Dr. Jacobs had previously applied for a specialty license in dental
anesthesiology in 2019, but she withdrew her application two days later.
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Dr. Jacobs hasn’t provided the required copy in the 8+ 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, which include proof of citizenship (a birth
certificate or passport). 4 So the requirements are apparent from the
application form.
Regardless of whether the Board already has the necessary
documentation, the claims for prospective relief remain prudentially moot.
4 Okla. Bd. of Dentistry, Dentist/Specialty/Hygienist Application by
Credentials, available at
https://www.ok.gov/dentistry/documents/App%20by%20cred%20adv%20pr
oc%202-3-2020.pdf (last visited Mar. 15, 2022).
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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
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.
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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.
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
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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 in
district court 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
 their “right to compete is still being suppressed” and
 the district court rejected “the importance of Plaintiffs’ right to
speech and to competition.”
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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. See Navajo Nat. v. San Juan Cnty., 929 F.3d 1270,
1281 (10th Cir. 2019) (stating that an argument was waived when the
appellant hadn’t explained “why the district court was wrong” (quoting
Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015))).
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 because we affirm on alternative
grounds.
In their appellate response brief, the Board members urged 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.
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. By
forgoing a 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. 2019); 5 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
5 In Hasan, 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.” 935 F.3d at 1099 (alterations in original)
(quoting Hardy v. City Optical Inc., 39 F.3d 765, 771 (7th Cir. 1994)).
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had completed their presentations in oral argument. 6 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)
(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
6 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.
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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.
So we 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.
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). Until
2021, Oklahoma law did not permit specialty licenses in dental
anesthesiology. So the Board members could have reasonably considered
themselves powerless to issue specialty licenses in dental anesthesiology.
The Oklahoma Dental Act lists the specialties that could be
recognized. Until 2021, that list omitted dental anesthesiology. Despite
that omission, the Plaintiffs insisted at oral argument and in their
supplemental brief on mootness that the Board members had the power to
grant licenses for unlisted specialties.
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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 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). 7 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
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)
7 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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(2018 supp.). 8 But at that time, the American Dental Association had not
yet recognized dental anesthesiology as a specialty; 9 and the Plaintiffs have
not identified another national organization that had recognized dental
anesthesiology as a specialty.
Dr. Seay and Dr. Jacobs point to accreditation of dental
anesthesiology programs by the Commission on Dental Accreditation,
arguing that accreditation allowed the Board to grant a specialty license in
dental anesthesiology. But the Commission’s accreditation of a dental
8 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 nothing for this assertion.
9 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 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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anesthesiology program does not show recognition as a specialty for
licensing purposes. The Commission on Dental Accreditation notes:
“Accreditation” is an evaluation process where an organization
or agency (e.g., the Commission) uses experts in a particular
field of interest or discipline (e.g., dental education) to define
standards of acceptable operation/performance for
universities/programs/organizations and measures compliance
with them. Whereas “certification” is a process by which an
organization (e.g., American Board of Oral and Maxillofacial
Surgery) grants recognition of competence to an individual who
has met predetermined qualifications specified by that entity.
Comm’n on Dental Accreditation, FAQ About the Commission on Dental
Accreditation (last visited May 3, 2022), available at
https://coda.ada.org/en/accreditation/faq; see also Joint App’x vol. 4, at
844 (“[The Commission on Dental Accreditation] has no role in specialty
recognition.”). The Commission’s accreditation of a graduate dental
program in dental anesthesiology does not constitute recognition of a
specialty by a nationally recognized dental association.
Dr. Seay and Dr. Jacobs point out that the Board “continue[d] to
refuse to grant the licenses” after the 2018 amendment to the Oklahoma
statute and the American Dental Association’s 2019 recognition of dental
anesthesiology as a specialty. But Dr. Seay and Dr. Jacobs did not submit
new complete applications following the American Dental Association’s
recognition of dental anesthesiology. So the Board never had an
opportunity to grant them licenses on this basis.
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Given the statutory constraints on the Board’s authority and the
Plaintiffs’ failure to submit new applications, we see no obvious defect in
the Board members’ alternative argument for affirmance.
But even if the Commission’s accreditation could somehow be
considered recognition of a specialty in dental anesthesiology, the Board
had no basis to act because
 Dr. Seay hadn’t reapplied after the 2018 amendment and
 Dr. Jacobs had withdrawn her application in 2019 and hadn’t
reapplied until the legislature changed the law in 2021.
4. The Plaintiffs haven’t shown an obvious constitutional
violation prior to the 2021 amendment.
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 because they
enforced the statute with knowledge that it was unconstitutional. Oral
Argument at 29:35–31:54. A board member’s reliance on a state statute
may prevent liability. See 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
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unconstitutional. See Part III(B)(2), above. But even now, the Plaintiffs
point to no such case law.
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 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 three cursory assertions:
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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
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 Board’s failure to issue specialty licenses in violation of a state
statute would have constituted a denial of equal protection. 10 We thus see
10 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 the different treatment would constitute a denial
of equal protection.
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no reason that the Board members would 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.
* * * *
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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.
* * * *
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 when discussing timeliness, the Plaintiffs haven’t said how or
why the prior statutory restrictions on specialty licenses had infringed on a
right to free speech. So even 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.
* * *
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.
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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. Judge Bacharach’s law clerk had no conflict of interest.
In seeking rehearing, the Plaintiffs argue that a law clerk for Judge
Bacharach developed a conflict of interest from working roughly 30 years
ago on an administrative appeal in Oklahoma state court involving Dr.
Jacobs. 11 This argument reflects a misunderstanding of the ethical rules for
law clerks and the nature of the administrative appeal.
Judicial law clerks are governed by the Code of Conduct for Judicial
Employees. Gregory Bischoping, Reconceiving Ethics for Judicial Law
Clerks, 12 St. Mary’s J. Legal Mal. & Ethics 58, 71 (2021). The Code’s
Canon 3F addresses disqualification. See Mathis v. Huff & Puff Trucking,
Inc., 787 F.3d 1297, 1309 (10th Cir. 2015) (“The Code of Conduct for
Judicial Employees sets forth specific rules governing law clerk conflicts
11 “Of course, ‘[i]f a clerk has a possible conflict of interest, it is the
clerk, not the judge, who must be disqualified.’” Mathis v. Huff & Puff
Trucking, Inc., 787 F.3d 1297, 1311 (10th Cir. 2015) (quoting Hunt v. Am.
Bank & Tr. Co., 783 F.2d 1011, 1016 (11th Cir. 1986)).
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of interest.”). Under this canon, judicial law clerks are disqualified if they
“served in governmental employment and in such capacity participated as
counsel, advisor, or material witness concerning the proceeding, or ha[ve]
expressed an opinion concerning the merits of the particular case in
controversy.” Code of Conduct for Judicial Employees, Canon 3F(2)(a)(v)
(emphasis added). 12
The Plaintiffs seek rehearing, arguing that Judge Bacharach’s law
clerk prosecuted Dr. Jacobs in this case in the early 1990s. This argument
mischaracterizes the law clerk’s role as well as the nature of the
administrative appeal.
In the early 1990s, the Oklahoma Board of Dentistry reprimanded Dr.
Jacobs for advertising as a specialist on the ground that her advertisements
had been misleading. Dr. Jacobs appealed in state district court and won.
The Oklahoma Board of Dentistry then appealed, and the Oklahoma Court
of Appeals affirmed.
At that time, a law clerk for Judge Bacharach represented the
Oklahoma Board of Dentistry in state district court and in the Oklahoma
Court of Appeals. In these proceedings, Dr. Jacobs never suggested that
12 Judicial law clerks are also disqualified if they harbor personal bias
or have personal knowledge of disputed evidentiary facts concerning the
proceedings. Code of Conduct for Judicial Employees, Canon 3F(2)(a)(i).
But the Plaintiffs do not suggest that the law clerk had personal bias or
personal knowledge of a disputed evidentiary fact.
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she was eligible for a specialty license. To the contrary, she argued simply
that her advertisements were truthful and protected by the First
Amendment. As Dr. Jacobs says in her opening appeal brief in our case,
“[t]he Jacobs case was limited to the violation of her right to speech.”
Appellant’s Opening Br. at 4. She also explained in our oral argument that
even though she had won in state court, she later sued in federal court so
that she could expand her advertising to show that she has obtained a
specialty license—something that hadn’t sought in her administrative
appeal roughly 30 years ago: “[T]he [Oklahoma] Court of Appeals said . . .
that discipline was inappropriate or wrong because it violated [Dr. Jacobs’]
constitutional rights. It did not strike down the law. It did not declare it
was unconstitutional. It didn’t do anything to the law and the law remained
on the books. What Dr. Jacobs and Dr. Seay would like to do is advertise
and represent themselves to the public and let the public know that they
hold a specialty license in anesthesiology in the state of Oklahoma.” Oral
Arg. at 9:54–10:23.
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The administrative appeal of roughly 30 years ago is not the same
proceeding as ours. 13 So the Code of Conduct for Judicial Employees did
not require recusal of Judge Bacharach’s law clerk. 14
V. 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 couldn’t grant the specialty licenses to Dr.
Seay and Dr. Jacobs.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
13 The issues also differ: Our appeal doesn’t address the truthfulness of
Dr. Jacobs’ advertising, and the administrative appeal didn’t involve her
eligibility for a specialty license.
14 The law clerk did no substantive work in this case.
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