PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

NANCY MARKS, 

 Plaintiff - Appellant, 

v. 

COLORADO DEPARTMENT OF 

CORRECTIONS; COLORADO 

DIVISION OF CRIMINAL JUSTICE; 

SUSAN KELLER, Community Parole 

Office, Colorado Department of 

Corrections, in her official capacity; RICK 

RAEMISCH, Executive Director Colorado 

Department of Corrections, in his official 

capacity, 

 Defendants - Appellees. 

------------------------------ 

DISABILITY LAW COLORADO; 

COLORADO CROSS-DISABILITY 

COALITION; DISABILITY RIGHTS 

CENTER OF KANSAS; DISABILITY 

RIGHTS ADVOCATES; DISABILITY 

RIGHTS EDUCATION AND DEFENSE 

FUND; AMERICAN CIVIL LIBERTIES 

UNION; AMERICAN CIVIL LIBERTIES 

UNION OF COLORADO; AMERICAN 

CIVIL LIBERTIES UNION OF NEW 

MEXICO; AMERICAN CIVIL 

LIBERTIES UNION OF UTAH; 

AMERICAN CIVIL LIBERTIES UNION 

OF KANSAS; AMERICAN CIVIL 

LIBERTIES UNION OF OKLAHOMA; 

AMERICAN CIVIL LIBERTIES UNION 

No. 19-1114 

(D.C. No. 1:14-CV-01577-RPM) 

(D. Colo.) 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 18, 2020

Christopher M. Wolpert 

Clerk of Court
2 

OF WYOMING; CIVIL RIGHTS 

EDUCATION AND ENFORCEMENT 

CENTER, 

 Amici Curiae. 

_________________________________ 

ORDER

_________________________________ 

Before BACHARACH and CARSON,

*

 Circuit Judges. 

_________________________________ 

This matter is before the court on the Appellees’ Petition for Rehearing En Banc

(“Petition”). As an initial matter, we sua sponte grant panel rehearing only to the extent 

of the changes to the original opinion that are reflected in the attached revised opinion. 

The original opinion is withdrawn and replaced by the attached revised opinion. Because 

the revised opinion contains only non-substantive changes that do not affect the outcome 

of this appeal, it shall be filed nunc pro tunc to the date the original opinion was filed. 

Appellees may not file a second or successive rehearing petition. See 10th Cir. R. 40.3. 

The Petition was transmitted to all judges of the court who are in regular active 

service. As no member of the panel and no judge in regular active service requested that 

the court be polled, the request for en banc review is denied. See Fed. R. App. P. 35(f). 

*

 The Honorable Monroe G. McKay participated earlier as a panel member, but he 

passed away before the issuance of this opinion and has not participated in the decision. 

“The practice of this court permits the remaining two panel judges if in agreement to act 

as a quorum in resolving the appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n.* 

(10th Cir. 1997); see 28 U.S.C. § 46(d) (“A majority of the number of judges authorized 

to constitute a court or panel thereof . . . shall constitute a quorum.”). 
3 

The July 14, 2020 Unopposed Motion for Leave to File Brief of Amici Curiae in 

Opposition to Petition for Rehearing En Banc is granted. 

Entered for the Court 

CHRISTOPHER M. WOLPERT, Clerk 
PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_______________________________________ 

NANCY MARKS, 

 Plaintiff - Appellant, 

v. 

COLORADO DEPARTMENT OF 

CORRECTIONS; COLORADO 

DIVISION OF CRIMINAL 

JUSTICE; SUSAN KELLER, 

Community Parole Office, 

Colorado Department of 

Corrections, in her official 

capacity; RICK RAEMISCH, 

Executive Director Colorado 

Department of Corrections, in his 

official capacity, 

 Defendants - Appellees. 

__________________________________ 

DISABILITY LAW 

COLORADO; COLORADO 

CROSS-DISABILITY 

COALITION; DISABILITY 

RIGHTS CENTER OF 

KANSAS; DISABILITY 

RIGHTS ADVOCATES; 

DISABILITY RIGHTS 

EDUCATION AND DEFENSE 

FUND; AMERICAN CIVIL 

LIBERTIES UNION; 

AMERICAN CIVIL 

LIBERTIES UNION OF 

Case No. 19-1114

FILED 

United States Court of Appeals 

Tenth Circuit 

May 12, 2020

Christopher M. Wolpert 

Clerk of Court
2 

COLORADO; AMERICAN 

CIVIL LIBERTIES UNION OF 

NEW MEXICO; AMERICAN 

CIVIL LIBERTIES UNION OF 

UTAH; AMERICAN CIVIL 

LIBERTIES UNION OF 

KANSAS; AMERICAN CIVIL 

LIBERTIES UNION OF 

OKLAHOMA; AMERICAN 

CIVIL LIBERTIES UNION OF 

WYOMING; CIVIL RIGHTS 

EDUCATION AND 

ENFORCEMENT CENTER, 

 Amici Curiae. 

 

_______________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:14-CV-01577-RPM)

_______________________________________ 

Michael Fairhurst (David Lane, with him on the briefs), Killmer, Lane & 

Newman LLP, Denver, Colorado, on behalf of the Plaintiff-Appellant. 

Cathern H. Smith, Assistant Attorney General (Philip J. Weiser, Attorney 

General for the State of Colorado, with her on the brief), Denver, 

Colorado, on behalf of the Defendants-Appellees. 

Amy Farr Robertson, Co-Executive Director, Civil Rights Education and 

Enforcement Center, Denver, Colorado, and Claudia Center, Senior Staff 

Attorney, Disability Rights Program, American Civil Liberties Union, San 

Francisco, California, filed an Amici Curiae brief, in support of Appellant. 

____________________________________ 

Before BACHARACH and CARSON,

* Circuit Judges. 

* The Honorable Monroe G. McKay participated earlier as a panel 

member, but he passed away before the issuance of this opinion and has 

not participated in the decision. “The practice of this court permits the 
3 

____________________________________ 

BACHARACH, Circuit Judge. 

____________________________________ 

Ms. Nancy Marks was serving a prison term in Colorado when she 

entered a community corrections program operated by Intervention 

Community Corrections Services. To stay in the program, Ms. Marks 

needed to remain employed. But while participating in the program, she 

aggravated a previous disability, and Intervention deemed her unable to 

work. So Intervention terminated Ms. Marks from the program and returned 

her to prison. (This is called “regression” to prison.) 

Ms. Marks sued, blaming her regression on two Colorado agencies: 

the Colorado Department of Corrections (CDOC) and the Colorado 

Department of Criminal Justice (CDCJ).1

 In the suit, Ms. Marks sought 

damages and prospective relief based on 

 violations of the Americans with Disabilities Act and the 

Rehabilitation Act and 

 a denial of equal protection. 

remaining two panel judges if in agreement to act as a quorum in resolving 

the appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 

1997); see 28 U.S.C. § 46(d) (“A majority of the number of judges 

authorized to constitute a court or panel thereof . . . shall constitute a 

quorum.”). 

1

 She also sued Intervention and Jefferson County, but the appeal 

involves only the claims against the CDOC and CDCJ (including officialcapacity claims against two CDOC officials). See n.3, below. 
4 

The district court dismissed the claims for prospective relief as moot 

and granted summary judgment to the CDOC and CDCJ on the remaining 

claims on grounds that 

 the Rehabilitation Act did not apply because Intervention had 

not received federal funding, 

 neither the CDOC nor the CDCJ could incur liability under the 

Americans with Disabilities Act or Rehabilitation Act for 

Intervention’s decision to regress Ms. Marks, and

 the equal-protection claim failed because Ms. Marks did not 

show that the regression decision had lacked a rational basis. 

 We affirm in part and reverse in part. We agree with the district court 

that (1) the claims for prospective relief were moot and (2) neither the 

CDOC nor CDCJ violated Ms. Marks’s right to equal protection. But we 

reverse the award of summary judgment on the claims involving the 

Rehabilitation Act and Americans with Disabilities Act. On these claims, 

the district court made two errors. 

 First, the court mistakenly concluded that the Rehabilitation Act 

didn’t apply because Intervention hadn’t received federal funding. The 

court should have considered whether the federal government had funded 

the CDOC and CDCJ, not Intervention. 

 Second, the court mistakenly focused on whether the CDOC and 

CDCJ could incur liability under the Rehabilitation Act and Americans 

with Disabilities Act for a regression decision unilaterally made by 
5 

Intervention. This focus reflects a misunderstanding of Ms. Marks’s claim 

and the statutes. The statutes prohibit public and federally funded entities 

from discriminating against disabled persons in programs like community 

corrections. These prohibitions apply regardless of whether the entities 

operate the programs directly or indirectly. So the CDOC and CDCJ could 

incur liability for disability discrimination by operating the program 

through Intervention.

1. The Colorado Community Corrections System 

In Colorado, local governments operate community corrections 

programs under state oversight. Colo. Rev. Stat. §§ 17-27-101, 17-27-

108(1)–(2) (2013). Colorado provides this oversight through the CDOC and 

CDCJ, which set standards, administer contracts with local governments 

and other providers of community corrections, and audit the facilities. Id. § 

17-27-108(1)–(2). Under state oversight, localities can enter contracts to 

operate community corrections programs. Id. § 17-27-103(1). 

 With this authority, Jefferson County entered into a contract with 

CDOC and the Board of Commissioners entered into a contract with the 

CDCJ. In turn, Jefferson County contracted with Intervention to run the 

community corrections program where Ms. Marks was placed. 
6 

The CDCJ contract specified that any subcontractors had to adhere to the 

CDCJ’s standards.2

 

2. Aggravation of Ms. Marks’s Injury and Her Regression to Prison 

Ms. Marks suffers from spinal stenosis, which limits her ability to 

walk and requires her to use a wheelchair. While participating in 

community corrections, she fell in the shower and aggravated her 

disability. 

The incident prompted Ms. Marks’s physician to send two letters to 

Intervention. The first letter described Ms. Marks’s injuries, told 

2

 State law also required community corrections programs to satisfy 

the CDCJ’s standards. Colo. Rev. Stat. § 17-27-103(4) (2013). 
7 

Intervention to place her on complete bedrest for two weeks, and 

recommended physical therapy. The second letter indicated that Ms. 

Marks’s treatment had been unsuccessful, that she should continue bedrest, 

and that she was disabled. 

Although Ms. Marks alleges that she could have continued working 

despite her disability, Intervention decided that she couldn’t and 

terminated her from the program: 

Six of the eleven Conditions of Placement require physical 

activity on the part of the client: one of the more important 

conditions is that she is employed at a phone location. [Ms.] 

Marks’s medical conditions make it apparent that she will not be 

able to obtain employment in the foreseeable future, as is 

required by the ICCS residential program. . . . ICCS has rejected 

placement after acceptance as her medical conditions no longer 

make her appropriate to remain in the ICCS residential program. 

Appellant’s App’x, vol. 2, at 401. Ms. Marks completed her sentence in 

prison rather than in the community corrections program. 

3. Mootness of the Claims for Prospective Relief 

In part, Ms. Marks sought 

 a declaration that her rights had been violated under Titles II 

and III of the Americans with Disabilities Act, Section 504 of 

the Rehabilitation Act, and the Constitution, 

 an injunction against future discrimination, and 

 an injunction ordering the CDOC and CDCJ to reasonably 

accommodate her disability. 
8 

Appellant’s App’x, vol. 1, at 47–49.3

 

The district court dismissed the claims for prospective relief as moot, 

reasoning that Ms. Marks had completed her sentence. On appeal, Ms. 

Marks invokes an exception to mootness, arguing that the defendants’ 

conduct was capable of repetition yet evading review. 

We engage in de novo review of Ms. Marks’s challenge to the 

determination of mootness. See Rio Grande Silvery Minnow v. Bureau of 

Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). Exercising de novo 

review, we agree that the claims for prospective relief are moot. 

Federal jurisdiction exists only if the court could grant relief 

affecting the plaintiff’s rights. See Preiser v. Newkirk, 422 U.S. 395, 401 

(1975) (noting that courts may not “decide questions that cannot affect the 

rights of litigants in the case before them” (quoting North Carolina v. 

Rice, 404 U.S. 244, 246 (1971))). The grounds for jurisdiction must exist 

throughout the litigation, even as circumstances change. See Jordan v. 

Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011). When circumstances change 

and the court can no longer affect the plaintiff’s rights, the case ordinarily 

becomes moot. Id.

3

 Though Ms. Marks also sued Jefferson County and Intervention, she 

later stipulated to dismissal of the claims against these parties. See n.1, 

above. 
9 

An exception exists when the wrongdoing is “capable of repetition 

yet evading review.” Ind v. Colo. Dep’t of Corrs., 801 F.3d 1209, 1215 

(10th Cir. 2015). This exception is “narrow” and “only to be used in 

exceptional situations.” Jordan, 654 F.3d at 1034–35 (quoting Chihuahuan 

Grasslands Alliance v. Kempthorne, 545 F.3d 884, 892 (10th Cir. 2008), 

and McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999)). The 

plaintiff invoking the exception bears the burden of proof. Id. at 1035. 

To satisfy this burden, Ms. Marks must establish that 

 the challenged action ended too quickly to be fully litigated 

and 

 “a reasonable expectation” exists for Ms. Marks to again 

experience the same misconduct. 

Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per 

curiam)). 

We assume without deciding that Ms. Marks has proven that her 

regression ended too quickly to be litigated. Even with this assumption, the 

exception would not apply because Ms. Marks is unlikely to experience the 

same wrongdoing in the future. Ms. Marks does not allege that she may 

return to prison, that she may reenter a community corrections program, or 

that she may again face regression from a program based on her inability to 

work. Ms. Marks instead concedes that “the probability of recurrence 

against [herself] is not high.” Appellant’s Opening Br. at 63. 
10 

 But Ms. Marks argues that she need not show any possibility of 

facing the same conduct again. For this argument, she relies on three cases 

involving abortion, elections, and press access to trials: Roe v. Wade, 410 

U.S. 113, 125 (1973); Norman v. Reed, 502 U.S. 279, 288 (1992); and 

Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7 (1986). 

We disagree with Ms. Marks’s characterization of these cases, for 

they all stress the requirement that the same plaintiff face a risk of 

encountering the same conduct in the future. In Roe v. Wade, for example, 

the Supreme Court applied the mootness exception because “[p]regnancy 

often comes more than once to the same woman.” 410 U.S. at 125 

(emphasis added). The Supreme Court also applied the exception in 

Norman v. Reed because “[t]here would [otherwise] be every reason to 

expect the same parties to generate a similar, future controversy.” 502 U.S. 

at 288 (emphasis added). And in Press-Enterprise Co. v. Superior Court, 

the Supreme Court applied the exception because the “petitioner [might] be 

subjected to a similar . . . order” again in the future. 478 U.S. at 6 

(emphasis added). None of Ms. Marks’s cases imply that plaintiffs can 

invoke the exception if they face little chance of encountering the same 

conduct in the future. 

 Ms. Marks also argues that even though she’s unlikely to be 

regressed again, the case is not moot because the defendants’ wrongful 
11 

policies would continue harming other inmates in community corrections 

programs. But the mootness exception is not triggered by future risks to 

others. Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). 

 Again, none of Ms. Marks’s cases support her proposition. Ms. Marks 

relies in part on United States v. Howard, 429 F.3d 843, 848 (9th Cir. 

2005), but she disregards Howard’s subsequent history. Howard was 

withdrawn and superseded on rehearing by United States v. Howard, 463 

F.3d 999 (9th Cir. 2006). The new opinion was also withdrawn. United 

States v. Howard, 480 F.3d 1180 (9th Cir. 2007) (mem.). We decline to 

follow another circuit court’s opinion that was withdrawn. 

 Ms. Marks also relies on Del Monte Fresh Produce Co. v. United 

States, 570 F.3d 316 (D.C. Cir. 2009). There the D.C. Circuit concluded 

that the claims did not become moot because the same plaintiff would 

likely encounter the same conduct in the future. 570 F.3d at 324–25. Del 

Monte Fresh does not suggest that the mootness exception applies 

whenever the same conduct could injure others. 

 Other circuits aside, our cases prevent us from applying the mootness 

exception based on a risk to others. See, e.g., White v. Colorado, 82 F.3d 

364, 366 (10th Cir. 1996) (holding that claims for prospective injunctive 

relief became moot when the inmate plaintiff obtained parole). Given these 
12 

cases, we conclude that the claims for prospective relief became moot upon 

Ms. Marks’s completion of her sentence. 

4. Correctness of the Summary-Judgment Rulings 

On summary judgment, the district court ruled that 

 the Rehabilitation Act didn’t apply because Intervention hadn’t 

received federal funding, 

 the CDOC and CDCJ couldn’t incur liability under the 

Americans with Disabilities Act or Rehabilitation Act for 

Intervention’s decision to regress Ms. Marks, and 

 the equal-protection claim failed because Ms. Marks had not 

shown the absence of a rational basis to treat her differently 

than non-disabled inmates. 

A. Standard of Review 

For these rulings, we conduct de novo review, drawing all reasonable 

inferences favorably to Ms. Marks. See May v. Segovia, 929 F.3d 1223, 

1234 (10th Cir. 2019) (de novo review); Murphy v. City of Tulsa, 950 F.3d 

641, 643 (10th Cir. 2019) (draw reasonable inferences favorably to nonmovant). With these inferences, we consider whether the CDOC and CDCJ 

have shown the absence of a genuine dispute of material fact and their 

entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a). 

B. The Applicability of the Rehabilitation Act 

The district court rejected Ms. Marks’s claim under the 

Rehabilitation Act in part because Intervention had not received federal 

funds. We disagree with this ruling because the district court should have 
13 

focused on whether the CDOC and CDCJ (not Intervention) had received 

federal funds. 

The Rehabilitation Act applies only if the defendant received federal 

funds. 29 U.S.C. § 794(a) (2012);4 see Barnes v. Gorman, 536 U.S. 181, 

184–85 (2002) (stating that “§ 504 of the Rehabilitation Act prohibits 

discrimination against the disabled by recipients of federal funding, 

including private organizations”). 

In district court, the parties agreed that the CDOC and CDCJ had 

received federal funding. The district court nonetheless concluded sua 

sponte that the Rehabilitation Act didn’t apply because Intervention hadn’t 

received federal funds. 

 Ms. Marks challenges this ruling, arguing that 

 the district court should have focused on whether the CDOC 

and CDCJ had received federal funds, 

 the CDOC and CDCJ were subject to the Rehabilitation Act 

regardless of whether the federal funds had been used for 

community corrections, and 

 the CDOC and CDCJ admitted in district court that they had 

received federal funding. 

We agree with Ms. Marks. The district court should have considered 

whether the CDOC and CDCJ had received federal funds. The court had no 

4

 This section was amended on July 22, 2014, after Ms. Marks’s 

regression to prison. But this amendment does not affect the outcome. 
14 

reason to muddy application of the Rehabilitation Act to the CDOC and 

CDCJ by focusing on the lack of federal funding to a third party like 

Intervention. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 

2003) (observing that to establish a Rehabilitation Act violation, plaintiffs 

need only show “that the defendants receive federal funding” (emphasis 

added)). Because the CDOC and CDCJ received federal funding, we 

conclude that the Rehabilitation Act applies. 

C. Statutory Liability of the CDOC and CDCJ for 

Discrimination 

The district court also reasoned that (1) Intervention had unilaterally 

decided to regress Ms. Marks and (2) the CDOC and CDCJ could not 

unravel that decision. For these reasons, the district court concluded that 

the community corrections program could not be considered a program of 

the CDOC or CDCJ, preventing liability even if Ms. Marks could satisfy 

the elements of statutory liability. We disagree. 

Under the statutes, the CDOC and CDCJ could incur liability for 

disability discrimination in their own programs. See 42 U.S.C. § 12132 

(2012) (prohibiting discrimination against the disabled by a public entity); 

29 U.S.C. § 794(a) (2012) (same for discrimination by entities receiving 

federal funding). The issue here is whether the community corrections 

program could be considered not only a program of Intervention but also a 

program of the CDOC and CDCJ. We answer “yes.” 
15 

Ms. Marks was a state prisoner, and the Americans with Disabilities 

Act and Rehabilitation Act “unambiguously extend[] to state prison 

inmates.” Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 213 (1998) 

(discussing the Americans with Disabilities Act); see also Wright v. N.Y. 

State Dep’t of Corrs., 831 F.3d 64, 72 (2d Cir. 2016) (“Both the 

[Americans with Disabilities Act] and the [Rehabilitation Act] undoubtedly 

apply to state prisons and their prisoners.”). The CDOC and CDCJ thus 

could not discriminate against disabled prisoners participating in the 

state’s community corrections program. See Castle v. Eurofresh, 731 F.3d 

901, 909 (9th Cir. 2013) (holding that state agencies could incur liability 

under the Americans with Disabilities Act and Rehabilitation Act when a 

subcontractor had committed discrimination against disabled prisoners in a 

program for paid labor and vocational training); Henrietta D. v. 

Bloomberg, 331 F.3d 261, 286 (2d Cir. 2003) (holding that states incurred 

liability under the Rehabilitation Act for localities’ violations because the 

states’ acceptance of federal funds had reflected a promise to ensure 

statutory compliance). 

 As long as the CDOC and CDCJ complied with the prohibition 

against discrimination, they could choose how to operate the community 

corrections program. For example, the CDOC and CDCJ could operate the 

program themselves or farm out operations to a local or private entity. But 
16 

either way, the CDOC and CDCJ would remain subject to the statutory 

prohibition against discrimination. See Castle, 731 F.3d at 910 (stating that 

the obligations under Title II of the Americans with Disabilities Act “apply 

to public entities regardless of how those entities chose to provide or 

operate their programs and benefits”). 

Because this prohibition applies, the statutes and related regulations 

do not allow public or federally-funded entities to contract away their 

liability for discrimination. For example, the Americans with Disabilities 

Act prohibits discrimination when it is either direct or committed “through 

contractual, licensing, or other arrangements.” 42 U.S.C. § 12182(b)(1)(A) 

(2012). And the accompanying regulations prohibit public entities from 

committing disability discrimination either “directly or through 

contractual, licensing, or other arrangements.” 28 C.F.R. § 35.130(b) 

(2013).5

 Similarly, the regulations accompanying the Rehabilitation Act 

prohibit recipients of federal funding from discriminating against the 

handicapped “through contractual, licensing, or other arrangements.” 28 

C.F.R. 42.503(b) (2013). 

5

 These regulations carry the force of law. See Marcus v. Kan. Dep’t of 

Revenue, 170 F.3d 1305, 1306 n.1 (10th Cir. 1999) (stating that regulations 

implementing the Americans with Disabilities Act have the force of law). 
17 

Under these statutes and related regulations, a state entity’s services 

include programs “undertake[n] through third parties by means of contracts 

and other arrangements.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 

1065 (9th Cir. 2010). The CDOC and CDCJ thus cannot avoid statutory 

liability solely because they were not directly involved in Intervention’s 

decision to regress Ms. Marks. See Phillips v. Tiona, 508 F. App’x 737, 

753 (10th Cir. 2013) (unpublished);6 see also Armstrong, 622 F.3d at 1068 

(holding that Title II of the Americans with Disabilities Act required state 

defendants to ensure compliance by private operators).7

 

The CDOC and CDCJ characterize the community corrections 

program as the exclusive province of Jefferson County and Intervention. 

But a factfinder could reasonably regard the program as the state’s. Indeed, 

a state regulation assigns administration of residential community 

6

 In Phillips, we discussed a potential claim against the state for a 

private prison operator’s discrimination against an inmate. 508 F. App’x at 

739. We noted that the private nature of the operator should not materially 

affect liability because the Americans with Disabilities Act’s regulations 

suggest that states can’t use contracts to sidestep obligations to disabled 

inmates. Id. at 753. 

7

 The CDOC and CDCJ argue that Armstrong is distinguishable 

because in that case “[t]here was no dispute that the state had the 

obligation to house the prisoners in the first instance, so it was contracting 

out its actual authority over those prisoners to third parties.” Appellees’ 

Resp. Br. at 23. But the same is true here. Even when Ms. Marks 

participated in community corrections, the CDOC retained the obligation to 

house her. 
18 

corrections programs to the CDOC. CDOC Admin. Reg. 250-15(I) (2011).8

And the CDOC and CDCJ collectively provided funding for community 

corrections, made referrals to community corrections,9

 created standards 

for community corrections, maintained custody over all inmates in 

community corrections, continued to monitor the status of these inmates 

while in community corrections, and audited community corrections 

programs. Colo. Rev. Stat. §§ 17-27-103(4), 17-27-108(1)–(2) (2013); see 

also Appellant’s App’x, vol. 2, at 305–06, 448, 475.10 

8

 Ms. Marks relied on the 2011 version of the regulation. Appellant’s 

App’x, vol. 2, at 475–80. 

9

 Though the CDOC made the referrals, Intervention could decide 

whether to accept the inmate into community corrections or regress the 

inmate to prison. 

10 The defendants also argue that even if the evidence of state oversight 

had otherwise sufficed, the claims for damages would fail based on the 

absence of intentional conduct. Though this argument might ultimately 

prevail, we cannot address it here. 

 The parties agree that intentional discrimination is required for a 

plaintiff to obtain compensatory damages under the Rehabilitation Act or 

the Americans with Disabilities Act. See Barber ex rel. Barber v. Colo. 

Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (“To recover 

compensatory damages under § 504 [of the Rehabilitation Act], a plaintiff 

must establish that the agency’s discrimination was intentional.”); see also 

Hamer v. City of Trinidad, 924 F.3d 1093, 1108–09 (10th Cir. 2019) 

(suggesting that intentional discrimination is required to recover 

compensatory damages under the Americans with Disabilities Act), cert. 

denied sub nom. City of Trinidad v. Hamer, __ U.S. __, 140 S. Ct. 644 

(2019); Hans v. Bd. of Shawnee Cty. Comm’rs, 775 F. App’x 953, 956 

(10th Cir. 2019) (unpublished) (concluding that intentional discrimination 

is required to recover compensatory damages under the Americans with 
19 

* * * 

Disabilities Act). So in the absence of intentional discrimination against 

Ms. Marks, the parties agree that CDOC and CDCJ would not incur 

statutory liability for compensatory damages. But the district court didn’t 

decide the issue. 

The court did conclude that the CDOC and CDCJ weren’t liable for 

compensatory damages because they couldn’t prevent Intervention from 

regressing Ms. Marks. But that conclusion pertained to the agencies’ 

responsibility for the program—not the existence of intentional conduct. 

On appeal, the CDOC and CDCJ conflate the issues involving 

(1) responsibility for the program with (2) the element of intentional 

discrimination: “The State Defendants cannot be liable for intentional 

discrimination against Marks, because the decision to regress Marks from 

ICCS was made without the authority or consent of the State Defendants.” 

Appellees’ Resp. Br. at 17. But responsibility for the program and 

intentional discrimination are separate issues, and the district court didn’t 

decide whether the CDOC or CDCJ had intentionally discriminated against 

Ms. Marks. So we express no opinion on whether the existing evidence 

would create a factual issue on the element of intentional conduct. 
20 

Federal statutes and regulations prohibited discrimination against 

prisoners like Ms. Marks when they participated in state programs like 

community corrections. The CDOC and CDCJ could farm out operations to 

others, but doing so would not prevent liability under the Americans with 

Disabilities Act or Rehabilitation Act. So the district court shouldn’t have 

awarded summary judgment to the CDOC or CDCJ on these claims. 

D. The Equal-Protection Claim 

Ms. Marks also appeals the district court’s grant of summary 

judgment on her equal-protection claim, which involves discrimination 

based on her disability. This ruling was correct. 

Under Supreme Court precedent, claims of disability discrimination 

trigger rational-basis review. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 

U.S. 356, 367 (2001). Ms. Marks admits that precedent requires rationalbasis review but maintains that disability discrimination should trigger 

stricter scrutiny. Appellant’s Opening Br. at 64 n.24; see also Oral Arg. at 

30:47 (“What we acknowledged is that under caselaw which we believe is 

incorrect, it’s rational basis review.”). But even if we agreed, we could not 

buck Supreme Court precedent. See Hutto v. Davis, 454 U.S. 370, 375 

(1982) (per curiam) (“[A] precedent of this Court must be followed by the 

lower federal courts no matter how misguided the judges of those courts 

may think it to be.”). 
21 

Under rational-basis review, the underlying decision is presumed 

valid. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). 

This presumption requires us to defer to the decisionmaker’s choice 

whenever we can imagine “any reasonably conceivable state of facts that 

could provide a rational basis for the classification.” Teigen v. Renfrow, 

511 F.3d 1072, 1083 (10th Cir. 2007) (quoting Copelin-Brown v. N.M. 

State Pers. Office, 399 F.3d 1248, 1255 (10th Cir. 2005)). Under this 

standard, states need not “make special accommodations for the disabled, 

so long as their actions toward such individuals are rational.” Bd. of Trs. of 

Univ. of Ala. v. Garrett, 531 U.S. 356, 367–68 (2001). 

The CDOC and CDCJ argue that regression of Ms. Marks was 

rational because 

 her continued housing in community corrections was unsafe 

because Intervention lacked medical staff and could not provide 

extended bedrest or medical care and 

 Ms. Marks had violated her conditions by failing to attend job 

training and educational programs or work at a telephone 

location. 

We reach only the first reason and conclude that it satisfies rationalbasis review. Intervention lacked on-site medical staff, and the CDOC and 

CDCJ could reasonably consider the facilities unsafe for Ms. Marks. 

Indeed, she had already fallen in the shower because of the absence of a 

grab bar or shower chair. And a physician had said that Ms. Marks’s 
22 

movement was limited, that she needed physical therapy, and that she 

required bedrest. So even if the CDOC and CDCJ could have prevented the 

regression decision, they could have rationally doubted Intervention’s 

ability to accommodate Ms. Marks’s medical needs. See Welsh v. City of 

Tulsa, 977 F.2d 1415, 1420 (10th Cir. 1992) (holding that a municipal 

defendant had a rational basis for not hiring a disabled firefighter because 

of his need for special accommodations).11

At oral argument, Ms. Marks contended that she could have been 

transferred to other community corrections facilities. Oral Arg. at 33:15. 

But this argument did not appear in the appellate briefs, and we do not 

consider arguments newly hatched at oral argument. Hancock v. Trammell, 

798 F.3d 1002, 1017 (10th Cir. 2015). 

Concluding that a rational basis existed for the decision to order Ms. 

Marks’s regression, we uphold the award of summary judgment to the 

CDOC and CDCJ on the equal-protection claim.12

11 Our scrutiny of the equal-protection claim under the rational-basis 

standard does not bear on whether the regression violated the Americans 

with Disabilities Act or the Rehabilitation Act. See Pushkin v. Regents of 

Univ. of Colo., 658 F.2d 1372, 1383 (10th Cir. 1981) (stating that the 

rationality of an employer’s conduct does not prohibit liability under the 

Rehabilitation Act). 

12 The CDOC and CDCJ also argue that even if Ms. Marks’s equalprotection claim would otherwise succeed, her only remaining remedy—

monetary damages—would be unavailable under the Eleventh Amendment. 

Money damages are unavailable against state officials sued in their official 
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5. Conclusion 

In our view, the district court correctly 

 granted summary judgment to the CDOC and CDCJ on the 

equal-protection claim and 

 dismissed the claims for prospective relief as moot. 

But we also conclude that the district court erred in granting summary 

judgment to the CDOC and CDCJ on the claims under the Rehabilitation 

Act and Americans with Disabilities Act. The Rehabilitation Act applies 

because the CDOC and CDCJ received federal funding. And a factfinder 

could reasonably view the community corrections program as the CDOC 

and CDCJ’s, rendering them liable for the alleged discrimination against 

Ms. Marks.13 We thus reverse the entry of summary judgment and remand 

for further proceedings. 

capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). But 

the CDOC and CDCJ raise Eleventh Amendment immunity for the first 

time on appeal. Given the absence of any such argument below, the district 

court had no obligation to address the Eleventh Amendment. Wis. Dep’t of 

Corr. v. Schacht, 524 U.S. 381, 389 (1998). 

13 In district court, the CDOC and CDCJ also argued that they enjoyed 

Eleventh Amendment immunity on the claims under the Americans with 

Disabilities Act and Rehabilitation Act. The district court did not reach the 

Eleventh Amendment issue on these claims, and the CDOC and CDCJ have 

not briefed the issue here. We thus leave this issue to the district court to 

decide in the first instance.