Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ESTATE OF ROSE BOEHS, by and )

through Renee Heflin, Marlinda Lamle, )

and Desiree Selby, Personal )

Representatives; ESTATE OF )

PENELOPE LAMLE, by and through )

Joshua Lamle and Lexy Jobe, Personal )

Representatives; and ESTATE OF )

MAXINE HOUSTON, by and through )

Dal Houston, Personal Representative, )

)

Plaintiffs, )

)

v. ) Case No. CIV-25-00947-JD

)

OKLAHOMA DEPARTMENT OF )

HUMAN SERVICES; )

OKLAHOMA HEALTH CARE )

AUTHORITY; KAYLA BEAN, )

individually; LENA SCHWEITZER, )

individually; CYNTHIA WUNDERLE, )

individually; and JOHN DOES, )

)

Defendants. )

ORDER

Before the Court is Plaintiffs’ Motion to Revise Interlocutory Order (“Motion”).

[Doc. No. 41]. The Court ordered expedited briefing in this matter. [Doc. No. 42].

Defendants Oklahoma Department of Human Services (“OKDHS”) and the Oklahoma

Health Care Authority (“OHCA”) filed a Response. [Doc. No. 44]. Plaintiffs filed a

Reply. [Doc. No. 45]. For the reasons outlined below, the Court denies the Motion.

I. BACKGROUND

Plaintiffs are the estates of three decedents who applied for Medicaid benefits.

[See Doc. No. 16 ¶¶ 1–4]. Plaintiffs initiated this case against Defendants OKDHS,

OHCA, Kayla Bean in her individual capacity, Lena Schweitzer in her individual

capacity, and Cynthia Wunderle in her individual capacity. [Id. at 1].1 The individual

Defendants were OKDHS representatives assigned to determine decedents’ Medicaid

eligibility. [Id. ¶¶ 34, 46, 58]. Plaintiffs assert claims for violation of the due process

clause of the Fourteenth Amendment [id. ¶¶ 67–98]; violations of 42 U.S.C.

§ 1396a(a)(8) [id. ¶¶ 99–121]; and violations of 42 U.S.C. § 1396r(c)(2)(A)(v) [id.

¶¶ 122–136]. All of Plaintiffs’ claims relate to the denial of Medicaid benefits.

The individual Defendants are represented by Susan Eads, Assistant General

Counsel for OKDHS. [Doc. Nos. 24, 33]. Eads also represents OKDHS. [Doc. No. 10].

Plaintiffs filed two motions to disqualify Eads as counsel for the individual

Defendants. [Doc. Nos. 22, 31]. Plaintiffs requested that the Court disqualify Eads from

representing the individual Defendants and strike the motions to dismiss filed on behalf

of the individual Defendants by Eads. Plaintiffs argued that 74 Okla. Stat. § 20f(A)

prohibits Eads from representing the individual Defendants because they failed to comply

with the formalities required by the section and that § 20f(B) prohibits Eads’s

representation of the individual Defendants because it prohibits the Attorney General

from representing “a state employee if that employee did not perform a statutorily

1 The Court uses the page numbers from the CM/ECF designation at the top of the

district court docket filing.

required duty and such duty is a basis of the civil action or special proceeding.” [Doc.

No. 22 at 4–8; Doc. No. 31 at 4–9].2

The Court denied Plaintiffs’ motions to disqualify Eads as counsel for the

individual Defendants. [Doc. No. 40]. Plaintiffs request that the Court reconsider its

order, specifically based upon §§ 20f(A) and 20f(B), and does not challenge the other

bases for the Court’s order.

II. ANALYSIS

In their motions to disqualify, Plaintiffs sought to disqualify Eads from

representing the individual Defendants based upon § 20f(A), which states:

In the event an action is brought against an employee, who for the purposes

of this act shall be an elected or appointed state officer or employee of any

state officer, institution, agency, board or commission of any branch of

state government in any civil action or special proceeding in the courts of

this state, or of the United States, by reason of any act done or omitted in

good faith in the course of his employment, it is the duty of the Attorney

General or staff attorney of such person’s agency where the agency is

authorized by law to be represented in court by a member of its own

permanent legal staff, when requested in writing by such employee, to

appear and defend the action or proceeding in his behalf. Such written

request shall be made within fifteen (15) days after service of summons on

the employee and a copy of the request shall be transmitted by the

employee to the head of his agency and the Attorney General.

Plaintiffs argued that the individual Defendants had not demonstrated they complied with

the above formalities. [Doc. No. 22 at 7–8; Doc. No. 31 at 7–9]. The Court rejected this

as grounds for disqualification, concluding that the Tenth Circuit has rejected conclusory

allegations of failure to comply with § 20f(A) and that, even if the individual Defendants

2 Plaintiffs raised other grounds for disqualification in their motions, but these are

the two grounds re-urged in the Motion.

had failed to comply, the Tenth Circuit has rejected this as grounds for disqualification.

[Doc. No. 40 at 5–6]. Plaintiffs dispute these conclusions, arguing that “[i]t is the

employee’s burden to prove: (1) she gave notice of the suit; (2) the Attorney General

conducted his inquiry; and (3) the Attorney General determined representation was

proper.” [Doc. No. 41 at 3]. “It is not the plaintiff’s burden to prove these facts do not

exist.” [Id.].

The Court’s role is to apply the case law of the Tenth Circuit. United States v.

Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990) (“A district court must follow the

precedent of this circuit . . . .”). In this case, the Court must examine Oklahoma and

Tenth Circuit case law applying the statute at issue. Few cases exist examining the effects

of a state employee’s failure to comply with the requirements of § 20f(A). Accordingly,

the Court must try to follow any guidance precedential or persuasive case law can

provide.

Plaintiffs dispute the Court’s reliance upon Binsz v. Cody, No. 94-6139, 1994 WL

577558, at *4 (10th Cir. Oct. 17, 1994) (unpublished), and Hines v. Sherron, 372 F.

App’x 853, 857 (10th Cir. 2010) (unpublished). [Doc. No. 41 at 7–8]. Plaintiffs state as

follows:

Unlike the present case, in both Binsz and Hines the Attorney General, and

not another attorney working outside the Attorney’s General Office,

represented the state employees. As such, the employees followed Section

20f(A) by giving written notice of the suits to the Attorney General. The

Attorney General could not have responded to the suits without having

been notified by the employees of the suits, and without having received

and reviewed the plaintiff’s petition and summons served on the

employees. Since the Attorney General assumed representation of the

employees, the Attorney General had conducted his inquiry; determined

representation was proper; and determined the employees did not fail [to]

perform a statutorily required duty, prior to the representation as required

by Section 20g(A).

[Doc. No. 41 at 7].

However, Plaintiffs, not those cited circuit decisions, supplied this reasoning. In

Binsz, the court did not presume that the state prison official had complied with the

requirements of § 20f(A) because the Oklahoma Attorney General’s Office served as his

counsel. See 1994 WL 577558, at *4. Instead, the court simply rejected the challenge to

meet the statutory requirements as “conclusory and without factual support.” Id.

Similarly, the court did not presume that the defendants in Hines had complied with the

requirements of the statute based upon the fact that the Attorney General’s office was

representing the defendants. See 372 F. App’x at 857. In that case, the plaintiff argued

that “the defendants’ counsel—from the attorney general’s office—should not have been

allowed to represent the defendants because the defendants allegedly did not request this

representation within fifteen days of receiving the amended complaint.” Id. The court did

not discuss that a presumption exists that state defendants complied with the requirements

of § 20f(A) in instances where the Attorney General’s office itself provides

representation. Instead, the court discussed the requirements of the statute and stated:

By its plain terms, however, this provision merely imposes an obligation

upon state employees; it says nothing about what happens if state

employees fail to comply with that obligation and, more specifically, does

not indicate that the Attorney General will be barred from representing state

employees if they fail to satisfy the fifteen-day deadline. In our view, it

would be unreasonable to infer such a representational bar from statutory

silence.

Id. Accordingly, the Court relies upon this case as persuasive regarding the interpretation

of the statute, which the Court does not view as requiring disqualification of counsel

when state employees fail to meet its requirements.

Plaintiffs next argue that the Court must disqualify Eads because the individual

Defendants must demonstrate they complied with 74 Okla. Stat. § 20f(B), which states

that “[t]he Attorney General or a designated legal officer shall not represent a state

employee if that employee did not perform a statutorily required duty and such duty is a

basis of the civil action or special proceeding.” As outlined in the Court’s order denying

Plaintiffs’ motions to disqualify, the Attorney General must undertake a fact-finding

inquiry to determine the applicability of this exception, and in the absence of a finding of

“wrongdoing” by the Attorney General, “the Attorney General’s office has a general duty

to provide legal representation upon a written request.” [Doc. No. 40 at 4 (quoting Adams

v. Jones, No. CIV-10-920-F, 2012 WL 1574422, at *1 (W.D. Okla. Mar. 29, 2012),

report & recommendation adopted, No. CIV-10-920-F, 2012 WL 1564726 (W.D. Okla.

May 3, 2012))]. Plaintiffs assert that the Court is wrongfully placing the burden of proof

on them to establish the absence of wrongdoing, and they assert the individual

Defendants must prove the Attorney General has undertaken a fact-finding inquiry. [Doc.

No. 41 at 3–4].

Although Plaintiffs dispute the Court’s reliance upon the cases cited in its prior

order, Plaintiffs do not cite any case law relying upon 74 Okla. Stat. § 20f(B) as a basis

for disqualification of counsel. In the absence of the Attorney General’s office

concluding that the individual Defendants failed to perform a statutory duty, the statute

requires the Attorney General’s office to represent the individual Defendants. See 74

Okla. Stat. §§ 20f(A), (B). When moving to disqualify opposing counsel, the moving

party has the burden to demonstrate the grounds for disqualification. See Wisehart v.

Wisehart, 850 F. App’x 649, 652 (10th Cir. 2021) (unpublished) (reciting the standard the

magistrate judge applied in denying a renewed motion to disqualify defendants’ counsel).

Here, Plaintiffs have not established grounds for disqualification, especially considering

that “courts have historically been highly cynical of motions to disqualify opposing

counsel because such motions are often dilatory or tactical devices.” Id. (quotation

modified); see also Miller v. Legacy Bank, No. CIV-20-946-D, 2022 WL 20620743, at *1

(W.D. Okla. Sept. 2, 2022) (“Motions to disqualify opposing counsel are viewed with

suspicion, and the Court must guard against the possibility that disqualification is sought

to secure a tactical advantage in the proceedings.”) (quotation modified). Because the

Court has no evidence that the Attorney General’s office concluded that the individual

Defendants failed to perform a statutory duty that is the basis of this lawsuit, the Court

cannot justify granting the extreme remedy of disqualification of the individual

Defendants’ counsel.3

3 In Plaintiffs’ Motion, the Court discovered an incorrect citation. On page 8 of the

Motion, Plaintiffs include the following citation in a string citation: Kirkland v. Okla.

Dep’t of Corrections, 1994 U.S. Dist. LEXIS 1960, *13 (W.D. Okla. 1994). When the

Court enters the corresponding citation, the Court finds the following case: Wahl v. First

Unum Life Ins. Co., No. 93-4813, 1994 U.S. Dist. LEXIS 1960 (E.D. Pa. Feb. 17, 1994).

It is unclear to the Court whether Plaintiffs and their counsel used AI to generate the

citation. However, for purposes of future federal court filings, the Court cautions

Plaintiffs’ counsel that they have an obligation to confirm the accuracy of the authority

they are citing in filings before the Court. See Fed. R. Civ. P. 11(b)(2).

Il. CONCLUSION

For the reasons outlined above, the Court DENIES Plaintiffs’ Motion to Revise

Interlocutory Order. [Doc. No. 41].

IT IS SO ORDERED this 12th day of June 2026.

a W. DISHMAN

UNITED STATES DISTRICT JUDGE