Marks v. Colorado Dept. of Corrections ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
May 12, 2020
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_______________________________________
NANCY MARKS,
Plaintiff - Appellant,
v. Case No. 19-1114
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 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
2
____________________________________
BACHARACH, Circuit Judge.
____________________________________
Ms. Nancy Marks was serving a prison term in Colorado when she
obtained entry into a community corrections program operated by
Intervention Community Corrections Services (Intervention). 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
 a violation of the Americans with Disabilities Act and the
Rehabilitation Act and
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.”).
1
She also sued Intervention and Jefferson County, but the appeal
involves only the claims against the CDOC and CDCJ (including official-
capacity claims against two CDOC officials). See n.3, below.
3
 a denial of equal protection.
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
4
with Disabilities Act for a regression decision unilaterally made by
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 and its board of commissioners
entered into contracts with the CDOC and CDCJ to operate a community
corrections program. In turn, Jefferson County contracted with Intervention
to run the community corrections program where Ms. Marks was placed.
5
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).
6
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.
7
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))). Jurisdiction must continue 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.
8
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 occurred 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 occurred 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.
9
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 even 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
10
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 316, 324–25
(D.C. Cir. 2009). Del Monte Fresh does not suggest that the mootness
exception applies whenever the same conduct could mousetrap 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
11
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 non-
movant). 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
12
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.
13
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 concluded that the CDOC and CDCJ could not
incur liability under either the Rehabilitation Act or Americans with
Disabilities Act because Intervention had unilaterally decided to regress
Ms. Marks and the CDOC and CDCJ could not unravel that decision. 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.”
14
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
15
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 provides that discrimination is prohibited 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).
16
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 consider the community corrections program
the exclusive province of the county and Intervention. But a factfinder
could reasonably regard the program as the state’s. Indeed, a state
regulation assigns administration of residential community corrections
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
737, 739 (10th Cir. 2013) (unpublished). 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. 508 F. App’x 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.
17
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 the claims for damages would fail
based on the absence of intentional conduct even if the evidence of state
oversight had otherwise sufficed. We need not address this argument
because it does not appear in the defendants’ motion for summary
judgment. See Green v. United States, 880 F.3d 519, 532–33 (10th Cir.
2018) (holding that a party waived an issue by omitting it from a party’s
motion for summary judgment and asserting it for the first time on appeal).
18
* * *
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
19
U.S. 356, 367 (2001). Ms. Marks admits that precedent requires rational-
basis 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.”).
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 approve 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
20
 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 rational-
basis 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
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
11
Our consideration of rational-basis review 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).
21
At oral argument, Ms. Marks contended that she could have gone 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
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
12
The CDOC and CDCJ also argue that even if Ms. Marks’s equal-
protection 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
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).
22
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.
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.
In the appeal, Ms. Marks also contends that she was subjected to
discrimination based on a disability. But the CDOC and CDCJ didn’t seek
or obtain summary judgment based on the absence of discrimination, so we
need not address this issue. See n.10, above.
23