25CA0037 Ozborn v Colorado Supreme Court 05-07-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0037 City and County of Denver District Court No. 24CV31821 Honorable J. Eric Elliff, Judge
Michael Ozborn,
Plaintiff-Appellant,
v.
Colorado Supreme Court Office of Attorney Regulation Counsel,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE BROWN Freyre and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026
Kontnik | Cohen, LLC, Spencer J. Kontnik, Matthew L. Fenicle, Denver, Colorado, for Plaintiff-Appellant
Philip J. Weiser, Attorney General, Lily E. Nierenberg, Senior Assistant Attorney General, Kyle M. Holter, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiff, Michael Ozborn, appeals the district court’s order
dismissing his amended complaint against defendant, the Colorado
Supreme Court Office of Attorney Regulation Counsel (OARC). We
affirm in part and reverse in part and remand the case for further
proceedings.
I. Background
¶2 In 2021, Ozborn began attending the University of Denver
Sturm College of Law (DU).1 Between 2023 and 2024, Ozborn was
diagnosed with generalized anxiety disorder, post-traumatic stress
disorder, nightmare disorder, and major depressive disorder. He
had also been diagnosed previously with attention deficit
hyperactivity disorder. Based on these diagnoses, DU gave Ozborn
fifty percent extra time and a quiet testing space on all exams.
¶3 Ozborn graduated from DU and applied to take the July 2024
Uniform Bar Exam (bar exam). On May 1, 2024, Ozborn submitted
a request to OARC to provide him the following accommodations:
1 Because the district court dismissed Ozborn’s complaint based on
a motion to dismiss, we take these factual allegations from the amended complaint and assume they are true. See Roane v. Elizabeth Sch. Dist., 2024 COA 59, ¶ 44. We also view the allegations in a light most favorable to Ozborn. Bewley v. Semler, 2018 CO 79, ¶ 14.
1 fifty percent extra time, fifteen-minute breaks every ninety minutes,
and a distraction-free testing environment.2 With his initial
accommodation request, Ozborn submitted confirmation of the
accommodations he received while at DU and a treating
psychiatrist’s report. On May 21, OARC denied Ozborn’s request
for accommodations.
¶4 On May 28, Ozborn timely appealed. He submitted copies of
his undergraduate and law school transcripts and indicated that he
and his treating psychiatrist were available to answer questions.
On June 3 or 4, after the appeal deadline, Ozborn supplemented his
appeal by identifying three people OARC could contact to discuss
his diagnoses and provided a letter from DU’s Office of Student
Disability Services listing the accommodations it had provided to
him. On June 13, OARC issued a final decision denying Ozborn’s
request for accommodations.
¶5 On June 14, Ozborn filed a complaint in the district court
asserting a claim that OARC had discriminated against him by
2 Ozborn also asked to bring his inhaler and some Aquaphor into
the exam. OARC granted those requests, and they are not at issue in this appeal.
2 denying his accommodations request in violation of the Colorado
Anti-Discrimination Act (CADA), § 24-34-601, C.R.S. 2023;3
§ 24-34-801, C.R.S. 2025. Three days later, Ozborn filed a motion
for preliminary injunction under C.R.C.P. 65, seeking an order
requiring OARC to provide him with the requested accommodations.
¶6 On June 26, OARC issued an “updated determination”
granting Ozborn accommodations for the July 2024 bar exam.
OARC indicated that, “following the receipt of additional information
concerning [Ozborn’s] request after the closure of [his] appeal
deadline,” it had “contacted an official at the DU Sturm College of
Law and solicited the information and certification required to
consider [Ozborn’s] requested accommodations fully.” OARC
authorized the following accommodations: (1) “[fifty percent] extra
test time on all test sessions”; (2) “15 minutes of off-the-clock
breaks for every 1 hour of testing (60 minutes per test session)”;
and (3) “[a] reduced distraction testing environment.”
3 Section 24-34-601, C.R.S. 2023, was in effect at the time of the
events at issue, and we refer to that version throughout this opinion. The statute has since been amended.
3 ¶7 In September, Ozborn filed an amended complaint that
acknowledged OARC’s June 26 decision. Among other things,
Ozborn alleged that OARC’s June 13 denial “triggered a series of
events which put [him] through an emotional rollercoaster and
derailed [his] efforts to focus and study for the bar examination for
many weeks and months.” He alleged that the June 26 letter
caused him “anger, frustration, and anxiety” and that he “felt
unprepared to sit for the July 2024 bar examination because of the
events.” He also alleged that he declined to take the July 2024 bar
exam because of OARC’s discrimination but that he intended to
take the February 2025 bar exam. And he alleged that OARC had
retaliated against him after he filed his initial complaint by using its
character and fitness department to attempt to contact the
references he provided with the late supplement to his appeal.
¶8 Ozborn asserted three claims for relief: OARC (1) discriminated
against him by denying his request for accommodations on the July
2024 bar exam; (2) retaliated against him; and (3) would continue to
discriminate against him in connection with the February 2025 bar
exam and future bar exams.
4 ¶9 For each claim, Ozborn alleged that he was entitled to a
$3,500 statutory penalty under sections 24-34-602 and
24-34-802(2)(a)(III), C.R.S. 2023,4 nominal damages, and
reasonable attorney fees and costs. Relative to claim three, Ozborn
also sought an injunction requiring OARC to accommodate him on
the February 2025 bar exam and any future exams and to
internally audit, review, and revise its policies and practices.
¶ 10 OARC moved to dismiss the amended complaint under
C.R.C.P. 12(b)(1) and C.R.C.P. 12(b)(5). Neither party requested a
hearing on the jurisdictional challenge, and the district court did
not conduct one. In a written order, the court granted the motion,
dismissed claims one and three for lack of standing, and dismissed
claim two for failure to state a claim.
II. Claim One
¶ 11 Ozborn contends that the district court erred by concluding it
did not have subject matter jurisdiction over claim one because he
lacked standing. We agree Ozborn has standing to bring claim one.
We also reject OARC’s argument that, even if Ozborn has standing,
4 Both statutes have been amended since the events at issue in this
appeal. We cite these applicable versions throughout this opinion.
5 we can affirm on the alternative bases that claim one is moot or
fails to state a claim. We reverse the district court’s dismissal of
claim one and remand it for further proceedings.
A. Subject Matter Jurisdiction
1. Standard of Review and Generally Applicable Law
¶ 12 Under C.R.C.P. 12(b)(1), the plaintiff has the burden of proving
the facts necessary to establish jurisdiction, and evidence outside
the pleadings may be considered to resolve a jurisdictional
challenge. City of Aspen v. Kinder Morgan, Inc., 143 P.3d 1076,
1078 (Colo. App. 2006). But when, as here, the jurisdictional facts
are undisputed, the trial court may decide the issue of jurisdiction
as a matter of law, Jefferson County v. Dozier, 2025 CO 36, ¶ 11,
and we review the court’s ruling de novo, City & County of Denver v.
Crandall, 161 P.3d 627, 633 (Colo. 2007).
¶ 13 Standing and mootness are threshold jurisdictional issues
that must be addressed before a case can proceed on the merits.
See Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004) (explaining
standing is a threshold issue); USAA v. Parker, 200 P.3d 350, 356
(Colo. 2009) (noting mootness is “a threshold jurisdictional matter”).
6 A trial court cannot decide a case over which it lacks subject matter
jurisdiction. Long v. Cordain, 2014 COA 177, ¶ 10.
¶ 14 “In Colorado, parties to lawsuits benefit from a relatively broad
definition of standing.” Ainscough, 90 P.3d at 855. To establish
standing, a plaintiff must demonstrate (1) an injury in fact (2) to a
legally protected interest. Id. To satisfy the injury-in-fact
requirement, a plaintiff must show that the defendant’s action
caused or threatened to cause an injury. San Juan Hut Sys., Inc. v.
Bd. of Cnty. Comm’rs, 2023 COA 10, ¶ 13. The
legally-protected-interest requirement asks whether the plaintiff’s
claim for relief is grounded in the common law, the constitution, a
statute, a rule, or a regulation. Hickenlooper v. Freedom from
Religion Found., Inc., 2014 CO 77, ¶ 10. Whether a plaintiff has
standing is a question of law that we review de novo. Ainscough, 90
P.3d at 856.
¶ 15 A case becomes moot when the relief sought, if granted, would
have no practical legal effect on the controversy. Colo. Mining Ass’n
v. Urbina, 2013 COA 155, ¶ 22. Subject to limited exceptions, a
court will not exercise jurisdiction over a controversy that is moot.
See Educ. reEnvisioned BOCES v. Colo. Springs Sch. Dist. 11, 2024
7 CO 29, ¶¶ 26-27. We review de novo whether an issue is moot. See
People ex rel. Rein v. Meagher, 2020 CO 56, ¶ 14.
2. The District Court Has Subject Matter Jurisdiction
¶ 16 Under CADA,
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of [a] disability . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .
§ 24-34-601(2)(a).
¶ 17 In claim one, Ozborn alleged that OARC discriminated against
him relative to the July 2024 bar exam in violation of section
24-34-601(2)(a) by (1) failing to engage in the interactive process;
(2) denying his request for reasonable accommodations on the July
2024 bar exam; and (3) denying his appeal and stating it would
administer his examination under standard testing conditions.
¶ 18 The district court noted that Ozborn filed his complaint upon
the denial of his request for accommodations, which “denial
constituted an injury in fact to a legally protected interest.” As we
understand it, the court concluded that Ozborn had standing when
8 he commenced the underlying action against OARC. But the court
reasoned that Ozborn “was afforded the accommodations that he
was entitled to,” so he could not establish an injury in fact at the
time he filed his amended complaint and thus lacked standing.
Essentially, the court concluded that Ozborn had lost standing by
the time he filed his amended complaint. Ozborn contends this was
error, and we agree.
¶ 19 Standing is determined at the time the action is filed. San
Juan Hut Sys., Inc., ¶ 16. When Ozborn filed the original complaint,
he alleged that he was entitled to accommodations and had been
denied those accommodations in violation of CADA. See Roane v.
Elizabeth Sch. Dist., 2024 COA 59, ¶ 44 (to determine if there is an
injury in fact, we accept the allegations in the complaint as true).
Thus, Ozborn alleged an injury in fact to a legally protected interest
and had standing at the time the action was commenced. See id.
¶ 20 That Ozborn filed an amended complaint that became the
operative complaint governing his causes of action does not mean
we reassess standing as of the date of the later complaint. None of
the controlling cases OARC cites stands for that principle. See
Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74 (2007) (in
9 the context of deciding whether a person bringing an action is an
“original source” as required for jurisdiction under the False Claims
Act, the Court acknowledged “[t]he rule that subject-matter
jurisdiction ‘depends on the state of things at the time of the action
brought’” but noted that jurisdictional allegations that are later
proved false or withdrawn in an amended complaint may defeat
jurisdiction (citation omitted)); In re Marriage of Lockwood, 857 P.2d
557, 561 (Colo. App. 1993) (stating the unremarkable proposition
that “[a]n amended complaint supersedes the original complaint
and becomes the sole statement of the plaintiff’s cause of action”);
cf. G&E Real Est., Inc. v. Avison Young–Washington D.C., LLC, 168 F.
Supp. 3d 147, 159-60 (D.D.C. 2016) (assessing standing at the time
of an amended complaint to allow plaintiff to cure a lack of standing
at the time of the original complaint where claims had been
assigned to plaintiff after the original complaint); Espinoza v. Perez,
165 P.3d 770, 773 (Colo. App. 2006) (“A plaintiff’s lack of standing
may be cured by an assignment of the claim.”).
¶ 21 Moreover, that OARC later granted Ozborn’s request for
accommodations does not mean he suffered no injury — rather,
that fact implicates mootness as discussed below. See Friends of
10 the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189
(2000) (“The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue
throughout its existence (mootness).” (citation omitted)). Thus, we
conclude that the district court erred by dismissing claim one for
lack of standing.
¶ 22 Nonetheless, OARC contends that we can affirm the district
court’s dismissal on the alternative ground that claim one became
moot once OARC granted Ozborn’s request for accommodations and
he declined to take the July 2024 bar exam. We are not persuaded.
¶ 23 When analyzing whether a claim is moot, “we do not ask
whether the relief sought should be granted. Rather, we assume
that the appealing party is entitled to the ‘relief sought,’ and then
we ask whether obtaining the relief would matter.” Stor-N-Lock
Partners #15, LLC v. City of Thornton, 2018 COA 65, ¶ 39. So long
as the parties have a concrete interest, no matter how small, in the
outcome of the litigation, a case is not moot. See DePriest v. People,
2021 CO 40, ¶ 8.
¶ 24 Although Ozborn’s original complaint requested injunctive
relief to compel OARC to provide accommodations for the July 2024
11 bar exam, claim one of the amended complaint also sought
statutory penalties, nominal damages, and attorney fees and costs
for the injuries Ozborn allegedly suffered as a consequence of the
June 13 denial. Although any request for injunctive relief relative
to the July 2024 bar exam certainly would be moot, Ozborn no
longer seeks that relief. But we fail to see, and OARC does not
explain, why the other requested forms of relief cannot be afforded if
Ozborn is able to prove the wrongful denial of his request for
accommodations and his resulting damages. See Urbina, ¶ 22.
Thus, we cannot affirm the district court’s dismissal of claim one as
moot.
B. Failure to State a Claim
¶ 25 OARC next contends that we may affirm the district court’s
dismissal of claim one on the alternative basis that Ozborn failed to
state a claim. We disagree.
1. Standard of Review and Applicable Law
¶ 26 We review de novo a trial court’s ruling on a C.R.C.P. 12(b)(5)
motion to dismiss for failure to state a claim upon which relief may
be granted, applying the same standards as the trial court. Norton
v. Rocky Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7.
12 ¶ 27 The purpose of a Rule 12(b)(5) motion to dismiss is to test the
formal sufficiency of a plaintiff’s complaint. Wagner v. Grange Ins.
Ass’n, 166 P.3d 304, 306 (Colo. App. 2007). A plaintiff must plead
sufficient facts, that if taken as true, establish plausible grounds to
support a claim for relief. Patterson v. James, 2018 COA 173, ¶ 23
(citing Warne v. Hall, 2016 CO 50, ¶ 24). Rule 12(b)(5) motions are
generally viewed with disfavor. Pub. Serv. Co. of Colo. v. Van Wyk,
27 P.3d 377, 386 (Colo. 2001).
¶ 28 To resolve a Rule 12(b)(5) motion, a court may consider
matters stated within the complaint itself, Van Wyk, 27 P.3d at 386,
and documents attached to or referred to within the complaint,
Prospect Dev. Co. v. Holland & Knight, LLP, 2018 COA 107, ¶ 11.
The court must accept as true the factual allegations in the
complaint, viewing them in the light most favorable to the plaintiff.
Norton, ¶ 7. But the court is not required to accept as true bare
legal conclusions, see id., or conclusory statements or allegations
lacking any factual support, see Warne, ¶ 27. The court may not
weigh evidence or make findings of fact when resolving a Rule
12(b)(5) motion. Medina v. State, 35 P.3d 443, 452 (Colo. 2001).
13 2. Claim One Does Not Fail to State a Claim
¶ 29 OARC contends that claim one fails under C.R.C.P. 12(b)(5)
because it granted Ozborn accommodations for the July 2024 bar
exam, yet Ozborn declined to take the exam. We are not persuaded.
¶ 30 CADA is “substantially equivalent” to the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 to 12213, and
should be interpreted consistently with the ADA whenever possible.
Stalder v. Colo. Mesa Univ., 2024 COA 29, ¶ 25. To prove a “basic
ADA violation, [a plaintiff] must show that he: (1) has a disability;
(2) was otherwise qualified to get some public program, service, or
activity; and (3) was denied that program, service, or activity on the
basis of his disability.” Koon v. North Carolina, 50 F.4th 398, 405
(4th Cir. 2022). “The ADA was enacted not only to remedy
discrimination in the form of intentional exclusion, but also to
mandate reasonable modifications to existing policies or otherwise
to reasonably accommodate individuals with disabilities.” Colo.
State Bd. of Med. Exam’rs v. Ogin, 56 P.3d 1233, 1236 (Colo. App.
2002). To that end, one way to prove the third prong — denial on
the basis of disability — is to prove a failure to provide reasonable
accommodations. See Koon, 50 F.4th at 405.
14 ¶ 31 In his amended complaint, Ozborn alleged that he is a person
with a disability, detailing his diagnoses and the test-related
accommodations he received in law school. It appears to be
undisputed that OARC (or the bar exam) is a place of public
accommodation and that Ozborn was otherwise qualified to take the
bar exam. And Ozborn alleged that he requested and was denied
reasonable accommodations for the July 2024 bar exam. Ozborn
plainly stated a claim for discrimination based on a failure to
provide reasonable accommodations.
¶ 32 Even so, OARC argues that Ozborn cannot prove that it failed
to reasonably accommodate his disability because, even though it
initially denied his request, it agreed to provide the requested
accommodations over a month before the July 2024 exam was
scheduled to occur, and Ozborn nonetheless declined to take the
exam. OARC cites an unreported case from the Southern District of
Ohio discussing reasonable accommodations in the context of
employment law to assert that the “law is clear that once [a plaintiff]
rejects a reasonable accommodation[,] the [defendant’s] duty to
reasonably accommodate the [plaintiff] is fulfilled.” Vinson v.
Grant/Riverside Methodist Hosps., No. C2-99-1358, 2001 WL
15 1681125, at *14 (S.D. Ohio Aug. 30, 2001) (unpublished opinion).
Notably, the employer in Vinson never outright denied the
employee’s request for accommodation; instead, the employer
offered a reasonable accommodation that the employee rejected for
reasons unrelated to her disability. See id.
¶ 33 Even assuming we should import this concept — that a
plaintiff’s rejection of a reasonable accommodation satisfies the
defendant’s duty to reasonably accommodate — from the
employment discrimination context, we are not persuaded it
disposes of Ozborn’s claim. Here, OARC initially denied Ozborn’s
request in its entirety and definitively informed him that it would
“administer [his] exam under standard testing conditions.” True,
OARC later reversed its decision and offered Ozborn the requested
accommodations. But Ozborn alleged that he was unable to accept
the accommodations because OARC’s denial derailed his efforts to
study, caused him “fear, frustration, anger, and anxiety,” and
rendered him unprepared to take the bar exam. Under these
circumstances, we are not willing to decide as a matter of law that
Ozborn rejected the accommodations and relieved OARC of its duty
to accommodate.
16 ¶ 34 Moreover, section 24-34-601(2)(a) not only prohibits the actual
denial of the “full and equal enjoyment of . . . a place of public
accommodation” on the basis of disability, but it also prohibits a
person from communicating “that the full and equal enjoyment
of . . . a place of public accommodation will be refused, withheld
from, or denied” based on disability. “[E]ach violation” of the
statute entitles “[a] person aggrieved” to the statutory fine Ozborn
seeks. § 24-34-602(1)(a). Whether OARC’s initial denial violated
section 24-34-601(2)(a) independent of its later provision of the
requested accommodations and whether OARC’s decision to
accommodate Ozborn a month before the bar exam satisfied its
duty to provide reasonable accommodations are also not questions
we will decide as a matter of law.
¶ 35 We conclude that we cannot affirm the district court’s
dismissal of claim one on the alternative basis that it fails to state a
claim under C.R.C.P. 12(b)(5).
III. Claim Two
¶ 36 Ozborn contends that the district court erred by dismissing
his claim that OARC retaliated against him for failure to state a
claim under C.R.C.P. 12(b)(5). We disagree.
17 ¶ 37 Under CADA, “[i]t is a discriminatory practice and unlawful for
any person to discriminate against any individual” because that
individual “opposed any practice made a discriminatory practice” or
because such individual “made a charge . . . or participated in any
manner in an investigation, proceeding, or hearing conducted
pursuant to” this statute. § 24-34-601(2.5).
¶ 38 Again, we interpret CADA consistently with the ADA whenever
possible. Stalder, ¶ 25. To prove a claim of retaliation under the
ADA, the plaintiff must show that (1) he was engaged in conduct
protected by the ADA; (2) he suffered an adverse action after
engaging in the protected conduct; and (3) there was a causal link
between the protected activity and the adverse action. See Zimmeck
v. Marshall Univ. Bd. of Governors, 106 F. Supp. 3d 776, 780
(S.D.W. Va.), aff’d, 632 F. App’x 117 (4th Cir. 2015); A. v. Hartford
Bd. of Educ., 976 F. Supp. 2d 164, 192 n.12 (D. Conn. 2013); see
also Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1394 (10th Cir.
1997) (applying the same elements in an employment action
alleging retaliation).
¶ 39 Generally, an adverse action denotes conduct that is
“materially adverse” such that it would dissuade a reasonable
18 person from making or supporting a charge of discrimination.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
Courts must determine whether an action is adverse based on the
context of the circumstances. Id. at 69. Although the subjective
feelings of a plaintiff are not considered, courts do look at the
plaintiff’s “personal circumstances.” Freelain v. Village of Oak Park,
888 F.3d 895, 902 (7th Cir. 2018). Thus, “[t]he question is whether
a reasonable person in the plaintiff’s circumstances would be
dissuaded from engaging in protected activity.” Id. “If an
individual’s hypersensitivity causes him . . . to suffer tangible
psychological harm that a reasonable person would not suffer
under similar circumstances, then that individual cannot seek
protection from the ADA’s anti-retaliation provision.” Mondzelewski
v. Pathmark Stores, Inc., 162 F.3d 778, 787 n.5 (3d Cir. 1998).
¶ 40 In claim two, Ozborn alleged that OARC retaliated against him
in violation of section 24-34-601(2.5) by (1) “improperly using the
character and fitness department of the OARC to contact his
references to gather information about his mental health diagnoses
and reasonable accommodations after he filed a complaint and
preliminary injunction motion” and (2) “[i]ntentionally causing [him]
19 heightened fear[] and anxiety about his character and fitness
evaluation by improperly using the character and fitness arm of the
OARC and contacting individuals [he] did not list as part of his
character and fitness evaluation.”
¶ 41 The district court essentially reasoned that OARC’s action —
using its character and fitness investigators to contact references
Ozborn had provided — was not “materially adverse.” Instead, the
court reasoned that doing so “seems like a good practice.” In other
words, the court concluded as a matter of law that OARC’s action
would not dissuade a reasonable person from making a charge of
discrimination. See White, 548 U.S. at 57; Mondzelewski, 162 F.3d
at 787 n.5. We agree.
¶ 42 As an initial matter, it is undisputed that Ozborn provided the
references that OARC attempted to contact. The references were
identified as people who were available to discuss the nature of
Ozborn’s diagnoses and provide additional, firsthand observations
of Ozborn’s challenges. Although Ozborn alleged that OARC had a
character and fitness investigator reach out to his references, he did
not allege facts in his amended complaint to establish that doing so
was improper. He also did not allege that the investigator actually
20 spoke with any of the references. And he did not allege that the
investigator learned anything about Ozborn that OARC used to
evaluate his character and fitness. Ozborn argues that OARC had
no legitimate reason to contact his references after it denied his
accommodation request, but it is undisputed that OARC granted
Ozborn’s accommodation request after attempting contact.
¶ 43 Furthermore, the thrust of Ozborn’s claim is that because
OARC used a character and fitness investigator to contact his
references — rather than some other more suitable OARC employee
Ozborn does not identify — it is reasonable to infer that OARC
contacted the references to intimidate him rather than to gather
information about his accommodations request. But that assertion
is speculative and conclusory. Ozborn alleges no facts to support it,
so we need not accept it as true. See Warne, ¶ 27. In the end, we
agree with the district court that no reasonable person in Ozborn’s
circumstances would be dissuaded from engaging in protected
activity because OARC attempted to contact references he provided.
See Freelain, 888 F.3d at 902. Thus, we affirm the court’s
dismissal of claim two. See Patterson, ¶ 23.
21 IV. Claim Three
¶ 44 Ozborn contends that the district court erred by dismissing
claim three under C.R.C.P. 12(b)(1) because he lacked standing. We
disagree.
¶ 45 Claim three alleged that OARC discriminated against Ozborn
relative to the February 2025 and future bar exams in violation of
section 24-34-601(2)(a) by (1) “[f]ailing to change its policies on how
it internally reviews requests for accommodations or any
subsequent appeals”; and (2) failing to follow its own policies by
issuing a second determination on [his] appeal,” which
demonstrates OARC’s “propensity to ignore and violate its own
policies” and “does not ensure that the OARC will provide [him] with
accommodations on the February 2025 bar examination.”
¶ 46 The court determined that Ozborn failed to allege an injury in
fact because OARC confirmed it would provide him
accommodations for the February 2025 bar exam and any injury
based upon a future exam was too speculative and tenuous to
constitute an injury in fact. We agree.
¶ 47 Ozborn’s amended complaint did not allege that OARC denied
his request for accommodations on the February 2025 bar exam.
22 Indeed, he acknowledged in his response to the motion to dismiss
that OARC had granted that request. See Kinder Morgan, 143 P.3d
at 1078 (a court may consider evidence outside the pleadings to
determine jurisdictional issues). Because OARC never denied
Ozborn a requested accommodation with respect to the February
2025 bar exam, Ozborn never suffered an injury as alleged in claim
three. See Hickenlooper, ¶ 9 (explaining that the injury in fact
requirement ensures actual controversy). And any allegation based
upon a “future bar exam” is too speculative to establish standing.
See Ainscough, 90 P.3d at 856 (Standing cannot be conveyed by
“the remote possibility of a future injury” or by “an injury that is
overly ‘indirect and incidental’ to the defendant’s action.” (citation
omitted)). Thus, we affirm the court’s dismissal of claim three.
V. Disposition
¶ 48 We affirm the district court’s dismissal of claims two and three
but reverse the dismissal of claim one. We remand the case for
further proceedings consistent with this opinion.
JUDGE FREYRE and JUDGE SCHUTZ concur.