United States v. Supreme Court of New Mexico

FILED
United States Court of Appeals
Tenth Circuit

June 7, 2016
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee/Cross-
Appellant,
v. Nos. 14-2037 & 14-2049
SUPREME COURT OF NEW MEXICO;
THE DISCIPLINARY BOARD OF NEW
MEXICO; OFFICE OF THE
DISCIPLINARY COUNSEL OF NEW
MEXICO,

Defendants-Appellants/Cross-
Appellees.
________________

THE AMERICAN BAR ASSOCIATION,

Amicus Curiae.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:13-CV-00407-WJ-SMV)

Paul J. Kennedy of Paul Kennedy & Associates, P.C., Albuquerque, NM (Arne Leonard
of Paul Kennedy & Associates, P.C., Albuquerque, NM, with him on the briefs) for
Defendants-Appellants/Cross-Appellees.

Douglas N. Letter, Appellate Staff Civil Division, United States Department of Justice
(Stuart F. Delery, Assistant Attorney General; Damon P. Martinez, United States
Attorney for the District of New Mexico; and Jaynie Lilley, Appellate Staff Civil
Division, United States Department of Justice, with him on the briefs), for
Plaintiff-Appellee/Cross-Appellant.

James R. Silkenat, President, American Bar Association, Chicago, IL, and Michael S.
Greco, John Longstreth, and Molly Suda, K&L Gates, LLP, Washington, DC, on the brief
of the American Bar Association, in support of Defendants-Appellants/Cross-Appellees.

Before TYMKOVICH, Chief Judge, HOLMES, and BACHARACH, Circuit Judges.

HOLMES, Circuit Judge.

New Mexico Rule of Professional Conduct 16-308(E) (“Rule 16-308(E)”)

prohibits a prosecutor from subpoenaing a lawyer to present evidence about a past or

present client in a grand-jury or other criminal proceeding unless such evidence is

“essential” and “there is no other feasible alternative to obtain the information.” In a

lawsuit brought against the New Mexico Supreme Court, and the state’s Disciplinary

Board and Office of Disciplinary Counsel (“Defendants”), the United States claims that

the enforcement of this rule against federal prosecutors licensed in New Mexico violates

the Supremacy Clause of the U.S. Constitution. U.S. Const., art. VI, § 2. The district

court concluded, on cross-motions for summary judgment, that Rule 16-308(E) is

preempted with respect to federal prosecutors practicing before grand juries, but is not

preempted outside of the grand-jury context. We agree. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

2
 I

A

The roots of Rule 16-308(E) can be traced to the adoption by the American Bar

Association (“ABA”) of Model Rule of Professional Conduct 3.8(e) (“Model Rule

3.8(e)”). Faced with what was perceived to be an “increasing incidence of grand jury and

trial subpoenas directed toward attorneys defending criminal cases,” ABA Crim. Justice

Section, Report with Recommendation to the ABA House of Delegates No. 122B, at 2

(Feb. 1988), the ABA issued Model Rule 3.8(e)1 in 1990 “to limit the issuance of lawyer

subpoenas in grand jury and other criminal proceedings to those situations in which there

is a genuine need to intrude into the client-lawyer relationship,” Model Rules of Prof’l

Conduct r. 3.8(e) cmt. 4 (Am. Bar Ass’n 2015). As adopted, Model Rule 3.8(e) stated:

The prosecutor in a criminal case shall: . . .

([e]) not subpoena a lawyer in a grand jury or other criminal proceeding
to present evidence about a past or present client unless:

(1) the prosecutor reasonably believes:

(a) the information sought is not protected from
disclosure by an applicable privilege;

(b) the evidence sought is essential to the successful
completion of an ongoing investigation or
prosecution;

1
Originally adopted as Model Rule 3.8(f), the rule was re-designated as
Model Rule 3.8(e) in 2002. We refer to it throughout this opinion as Model Rule 3.8(e) to
avoid any possible confusion.

3
 (c) there is no other feasible alternative to obtain the
information; and

(2) the prosecutor obtains prior judicial approval after an
opportunity for an adversarial proceeding.

ABA Standing Comm. on Ethics & Prof’l Responsibility, Report with Recommendation

to the ABA House of Delegates No. 118, at 1 (Feb. 1990). The rule, as originally

adopted, thus consisted of two components. Subsection (e)(1) governed prosecutors’

reasonable belief about the content of the information sought—i.e., that it was not

privileged, was essential, and could not be obtained from any other feasible alternative.

Subsection (e)(2) imposed a judicial preapproval requirement before a prosecutor could

obtain an attorney subpoena.

Several states promulgated versions of Model Rule 3.8(e), and legal challenges to

these rules produced conflicting outcomes. The Third Circuit, for example, concluded

that the judicial preapproval requirement in Pennsylvania’s version of Model Rule 3.8(e)

conflicted with federal rules governing the issuance of subpoenas, and held that the

enforcement of the rule against federal prosecutors was preempted. See Baylson v.

Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102, 111–12 (3d Cir. 1992). In

contrast, the First Circuit found that Rhode Island’s version of the rule created “no

conflict with the Supremacy Clause.” Whitehouse v. U.S. Dist. Court for Dist. of R.I., 53

F.3d 1349, 1365 (1st Cir. 1995).

Before our court, the United States challenged Colorado’s adoption of Model Rule

3.8(e). Specifically, we were called upon to review the district court’s dismissal of the

4
United States’s action on jurisdictional grounds—that is, “[t]he district court dismissed

the complaint for lack of subject matter jurisdiction, stating that the United States did not

have standing because it did not allege that federal prosecutors had suffered any actual or

imminent injury from application of the rules.” United States v. Colo. Supreme Court

(“Colorado Supreme Court I”), 87 F.3d 1161, 1163 (10th Cir. 1996). We reversed,

however, concluding that, even though no federal prosecutor had been sanctioned under

Colorado’s rule, the potential that it would “interfere with federal prosecutors in their

conduct of criminal proceedings and change the nature of the federal grand jury in

Colorado” was a sufficient injury in fact to render the case justiciable. Id. at 1165.

The case later returned to us after the district court ruled on the merits of the

United States’s challenge. See United States v. Colo. Supreme Court (“Colorado

Supreme Court II”), 189 F.3d 1281 (10th Cir. 1999). In the interim, the legal landscape

had been altered in two salient ways. First, following the ABA’s lead,2 the Colorado

Supreme Court amended its Rule 3.8(e) in 1997 by removing the judicial preapproval

requirement.3 Id. at 1284. Second, in 1998, Congress stepped in and enacted the

2
In 1995, the ABA amended Model Rule 3.8(e) to remove the judicial
preapproval requirement. See Stern v. U.S. Dist. Court for the Dist. of Mass., 214 F.3d 4,
9 (1st Cir. 2000).
3
Thus, by the time of Colorado Supreme Court II, Colorado Rule
3.8(e)—and the ABA’s Model Rule 3.8(e) on which it was based—only contained the
reasonable-belief requirement. It provided:

The prosecutor in a criminal case shall: . . .

(e) not subpoena a lawyer in a grand jury or other criminal

5
McDade Act, 28 U.S.C. § 530B, which requires that:

(a) An attorney for the Government shall be subject to State laws
and rules, and local Federal court rules, governing attorneys in
each State where such attorney engages in that attorney’s duties,
to the same extent and in the same manner as other attorneys in
that State.

(b) The Attorney General shall make and amend rules of the
Department of Justice to assure compliance with this section.

The Attorney General then promulgated regulations, pursuant to § 530B(b), stating that

the statute “should not be construed in any way to alter federal substantive, procedural, or

evidentiary law.” 28 C.F.R. § 77.1(b).

As we framed it in Colorado Supreme Court II, the “question whether Rule 3.8

violate[d] the Supremacy Clause now turn[ed] on whether the rule [wa]s a rule of

professional ethics clearly covered by the McDade Act, or a substantive or procedural

rule that [wa]s inconsistent with federal law.” 189 F.3d at 1284. In a nutshell, the

essence of the inquiry was whether Rule 3.8 was preempted by federal law. Significantly,

proceeding to present evidence about a past or present client
unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure
by any applicable privilege;

(2) the evidence sought is essential to the successful
completion of an ongoing investigation or prosecution;

(3) there is no other feasible alternative to obtain the
information.

6
we only addressed there, however, the question of whether Colorado’s Rule 3.8 was

preempted outside of the grand-jury context—viz., the “trial” context.4 In this regard, in

defining the scope of our analysis, we stated: “In its decision on remand, the district court

determined that the restriction on grand jury proceedings violated the Supremacy Clause.

Defendants have not appealed that determination and we do not address it here.” Id.

Turning to the question at hand, we observed that Colorado’s Rule 3.8, inter alia,

prescribed “broad normative principles of attorney self-conduct,” and we determined that

“the rule in its current incarnation is a rule of ethics applicable to federal prosecutors by

the McDade Act.” Id. at 1288–89. Nevertheless, we proceeded to determine whether this

ethics rule was otherwise “inconsistent with federal law” and thus preempted. Id. at

1289. We concluded that it was not, and therefore it could be “enforced by the state

defendants against federal prosecutors.” Id.

4
In Colorado Supreme Court II, we briefly intimated in a footnote that the
universe of attorney subpoenas implicated by rules like Colorado’s consists of “grand jury
and trial subpoenas.” 189 F.3d at 1286 n.6; see also id. at 1284 n.3 (describing the First
Circuit as “holding federal courts could adopt a rule requiring a federal prosecutor at
either the grand jury or trial stage to obtain judicial approval before serving a subpoena
on counsel to compel evidence concerning a client” (emphasis added)). We did not
define the term “trial subpoenas” there, and it seems likely that, similar to the First
Circuit, we were “us[ing] the term ‘trial subpoenas’ as a shorthand for all other
subpoenas (e.g., subpoenas issued in the course of pretrial hearings)”—i.e., all attorney
subpoenas issued by federal prosecutors in criminal proceedings other than grand-jury
subpoenas. Stern, 214 F.3d at 18 n.5 (emphasis added). In any event, we deem this
shorthand convention to be helpful. We note that the United States employs it, and
Defendants do not object. Accordingly, as needed, we use it here.

7
 B

Against this backdrop, in 2008, New Mexico adopted Rule 16-308(E), which

provides that:

A prosecutor in a criminal case shall: . . .

E. not subpoena a lawyer in a grand jury or other criminal
proceeding to present evidence about a past or present client
unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure
by any applicable privilege;

(2) the evidence sought is essential to the successful
completion of an ongoing investigation or prosecution;
and

(3) there is no other feasible alternative to obtain the
information[.] . . .

N.M. Rules of Prof’l Conduct, N.M.R.A. 16-308(E). This rule is identical to the

Colorado rule that we reviewed in Colorado Supreme Court II. Though the U.S. District

Court for the District of New Mexico has generally adopted the New Mexico Rules of

Professional Conduct, see D.N.M.LR-Cr. 57.2, it has chosen not to adopt Rule 16-308(E),

see D.N.M. Admin. Order No. 10-MC-00004-9 (Mar. 23, 2010). Nonetheless, the rule

continues to apply to the conduct of federal prosecutors licensed to practice in New

Mexico, and a violation of the rule can form the basis for disciplinary sanctions. See

N.M. Rules Governing Discipline, N.M.R.A. 17-205.

The United States filed suit against Defendants in April 2013, arguing that the

second and third requirements of Rule 16-308(E)—i.e., the essentiality and no-other-

8
feasible-alternative conditions—were preempted by federal law. From the outset, these

two provisions have been the only ones at issue in this litigation.5 Defendants moved to

dismiss the complaint for lack of subject-matter jurisdiction, arguing that the United

States lacked standing and that the case was not ripe in the absence of an actual or

threatened disciplinary action against a federal prosecutor. The district court rejected this

argument and denied the motion. Relying in large part on our decision in Colorado

Supreme Court I, it concluded that the complaint sufficiently alleged an injury in fact, to

the extent that Rule 16-308(E) altered federal prosecutors’ attorney-subpoena practice. It

also determined that the case was ripe because “the preemption issue is purely a question

of law.” Aplts.’ App. at 152 (Mem. Op. & Order Den. Mot. to Dismiss, filed Nov. 1,

2013).

The United States moved for summary judgment in June 2013, before the parties

had engaged in any discovery. Attached to its summary-judgment motion, the United

States submitted the affidavit of an Assistant U.S. Attorney in the District of New

Mexico. The declaration described several instances in which prosecutors in the U.S.

Attorney’s Office (“USAO”) had issued attorney subpoenas prior to the enactment of

5
It is undisputed that the United States does not challenge the first provision
of Rule 16-308(E)—viz., subsection (E)(1)’s directive that a federal prosecutor must have
a reasonable belief that the information sought from an attorney is not protected from
disclosure by a privilege. In other words, this subsection is not at issue here. Throughout
this opinion, for convenience, we frequently refer in general terms to the United States’s
challenge to New Mexico’s Rule 16-308(E), without segregating out the two provisions
of the rule that are actually at issue. Nonetheless, we underscore that a challenge to
subsection (E)(1) is not before us.

9
Rule 16-308(E); it suggested that, even though “[t]his evidence was obtained in a lawful

manner [and] implicated no privilege,” had Rule 16-308(E) been in effect, “it is unlikely

the prosecutor would have served the subpoena[s].” Id. at 80–81 (Decl. of Sasha Siemel,

filed June 28, 2013).

Addressing the rule’s current effect on the USAO’s work, the declarant noted that

“Rule 11-308(E) has a ‘chilling’ effect on prosecutors.” Id. at 83. After averring that

there are “many examples of such situations,” the declaration discussed, in general

terms—with the aim of preserving grand-jury secrecy—several specific instances in

which prosecutors “have already actually [been] hampered . . . in the performance of their

otherwise lawful duties” by concerns that they would be disciplined for violating the

essentiality or no-other-feasible-alternative conditions of Rule 16-308(E). Id. at 84. The

declaration further provided:

These situations demonstrate that well-meaning prosecutors using legal
means of obtaining evidence of criminality are subject to discipline
simply for performing their duties. Federal grand juries in the District
of New Mexico will continue in the future to need evidence of crimes
from lawyers. In many such cases, the most appropriate means of
obtaining that evidence will be by subpoena. . . . If enforced against
federal prosecutors, Rule 16-308(E) will interfere directly with efforts
of this Office and the Department of Justice to enforce the criminal
laws of the United States.

Id. at 88–89.

Defendants filed a motion pursuant to Federal Rule of Civil Procedure 56(d),

asking the court to delay ruling on the United States’s summary-judgment motion

pending the completion of discovery. In the alternative, they moved for summary

10
judgment on the existing record, claiming that Rule 16-308(E) was a permissible ethics

rule under the McDade Act and our opinion in Colorado Supreme Court II. The district

court denied Defendants’ Rule 56(d) motion, concluding that further factual development

was unnecessary to decide the “purely legal question” of “whether or not Rule 16-308(E)

is an ethical rule or a substantive rule.” Id. at 261 (Order Den. Defs.’ 56(d) Request for

Extension of Time, filed Nov. 27, 2013).

After further briefing and argument, the court granted partial summary judgment in

favor of the United States and partial summary judgment in favor of Defendants.

Specifically, it determined that our decision in Colorado Supreme Court II compelled the

conclusion that Rule 16-308(E) was not preempted by federal law as to criminal

proceedings outside of the grand-jury context. However, it determined that the rule

conflicted with “three strong governmental interests in grand jury proceedings of ‘[(1)]

affording grand juries wide latitude, [(2)] avoiding minitrials on peripheral matters, and

[(3)] preserving a necessary level of secrecy.’” Id. at 321 (Mem. Op. & Order, filed Feb.

3, 2014) (alterations in original) (quoting United States v. R. Enters., Inc., 498 U.S. 292,

300 (1991)). In particular, the court noted that the rule imposed “a higher burden on

federal prosecutors that is simply not warranted at the grand jury stage” and threatened

grand-jury secrecy by forcing prosecutors to disclose details of confidential investigations

in order to avoid disciplinary sanctions. Id. at 322.

The district court thus upheld the application of Rule 16-308(E) to federal

prosecutors’ issuance of attorney subpoenas for criminal proceedings outside of the

11
grand-jury context, but enjoined Defendants from “instituting, prosecuting, or continuing

any disciplinary proceeding or action against any federal prosecutor for otherwise lawful

actions taken in the course of a grand jury investigation or proceeding on the ground that

such attorneys violated Rule 16-308(E) of the New Mexico Rules of Professional

Conduct.” Id. at 326–27 (Final J., filed Feb. 3, 2014).

II

Both parties appeal from the district court’s judgment. Defendants challenge the

district court’s subject-matter jurisdiction, its denial of their request for further discovery,

its holding that Rule 16-308(E) conflicts with federal law governing grand juries, and the

scope of the injunction that the court issued. The United States challenges the district

court’s conclusion that Rule 16-308(E) is not preempted outside of the grand-jury

context. The United States’s appellate challenge, however, is primarily form, not

substance. Though it seeks to “preserve [the preemption issue] for possible further

review,” Aplee.’s/Cross-Aplt.’s Reply Br. (“U.S. Reply Br.”) at 12, the United States

acknowledges the precedential force of Colorado Supreme Court II and thus concedes

that Rule 16-308(E) is not preempted by federal law outside of the grand-jury context.

Consequently, we resolve the United States’s appeal in summary fashion below. The

heart of the parties’ dispute relates to whether Rule 16-308(E) is preempted relative to

federal prosecutors’ issuance of attorney subpoenas in the grand-jury context.

Consequently, our analysis naturally focuses extensively on this issue. However, before

reaching the merits of this question, we must address Defendants’ threshold contentions

12
regarding subject-matter jurisdiction and the district court’s refusal to allow them further

discovery.

A

Defendants claim that the district court lacked subject-matter jurisdiction over this

dispute because the United States does not have standing and because the case is not ripe

for review. We review questions of justiciability—including standing and ripeness—de

novo. See Kan. Judicial Review v. Stout, 519 F.3d 1107, 1114 (10th Cir. 2008); accord

Roe No. 2 v. Ogden, 253 F.3d 1225, 1228, 1231 (10th Cir. 2001). We determine

ultimately that there is an adequate legal basis for subject-matter jurisdiction here.

1

Standing, as “a component of the case-or-controversy requirement [of Article III],

serves to ensure that the plaintiff is ‘a proper party to invoke judicial resolution of the

dispute.’” Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 (10th Cir. 2008)

(quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). In order to demonstrate standing, a

plaintiff must show: “(1) that he or she has ‘suffered an injury in fact,’ (2) that the injury

is ‘fairly traceable to the challenged action of the defendant,’ and, (3) that it is ‘likely’

that ‘the injury will be redressed by a favorable decision.’” Cressman v. Thompson, 719

F.3d 1139, 1144 (10th Cir. 2013) (quoting Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir.

2012)).

Defendants challenge the adequacy of the United States’s allegations of injury at

both the pleading and summary-judgment stages. They also claim that any harm that the

13
United States suffered was self-inflicted—notably, based on a speculative fear of

disciplinary sanctions—and is thus insufficient to establish an injury in fact. We reject

these arguments, concluding that the United States has standing to bring this lawsuit in

federal court.

a

“When evaluating a plaintiff’s standing at [the motion to dismiss] stage, both the

trial and reviewing courts must accept as true all material allegations of the complaint,

and must construe the complaint in favor of the complaining party.” Cressman, 719 F.3d

at 1144 (alteration in original) (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d

1082, 1089 (10th Cir. 2006) (en banc)); accord S. Utah Wilderness All. v. Palma, 707

F.3d 1143, 1152 (10th Cir. 2013). While the burden of establishing standing at this stage

of the litigation “is lightened considerably,” Petrella v. Brownback, 697 F.3d 1285, 1292

(10th Cir. 2012), “[t]he injury alleged must be ‘concrete and particularized,’” id. at 1293

(quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).

The complaint here alleges that (1) Rule 16-308(E) imposes higher substantive

standards for grand-jury and trial subpoenas than those established by federal law; (2)

approximately seventy federal prosecutors in the District of New Mexico are licensed in

New Mexico, and are thus subject to discipline under the New Mexico Rules of

Professional Conduct; (3) these federal prosecutors have “changed their practices in

criminal investigations” and have been deterred from issuing attorney subpoenas for fear

of disciplinary proceedings under Rule 16-308(E), Aplts.’ App. at 13 (Compl., filed Apr.

14
30, 2013); and (4) as a result, the information available to grand juries and courts in the

District of New Mexico has been limited—impairing the United States’s interest in the

“effective conduct of federal criminal investigations and prosecutions,” id. at 18.

In Colorado Supreme Court I, we concluded that an alleged injury of a similar

nature—viz., the “delays [in] the presentation of evidence to grand juries” due to the

enforcement of a state attorney-subpoena rule—established a “concrete, particularized,

and actual injury in fact.” 87 F.3d at 1165; see id. (“These allegations are sufficient to

withstand a motion to dismiss.”). Defendants seek to distinguish that decision because

the Colorado rule at issue involved a judicial preapproval requirement; such a distinction,

however, is not persuasive. We specifically addressed the essentiality and no-other-

feasible-alternative conditions—which appear verbatim in New Mexico’s Rule 16-

308(E)—and concluded that these “require[d] far more from federal prosecutors” and “set

a higher standard for obtaining attorney subpoenas” than is required by federal law or

internal agency guidelines. Id. at 1166. In other words, we held that these two conditions

imposed sufficiently concrete and particularized injuries on the United States to give it

standing.

Thus, at the motion-to-dismiss stage, the United States’s specific averments—i.e,

indicating that Rule 16-308(E) has deterred federal prosecutors from issuing otherwise-

permissible attorney subpoenas, thereby limiting the presentation of relevant evidence in

grand-jury and other criminal proceedings—“sufficiently allege[ ] the injury in fact

required for standing.” Id. at 1167.

15
 b

At the summary-judgment stage, mere allegations no longer suffice; instead “the

elements of standing must be set forth, through specific facts, by affidavit or other

evidence.” Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004); accord

Protocols, LLC v. Leavitt, 549 F.3d 1294, 1298 (10th Cir. 2008). Defendants claim that

the declaration submitted with the United States’s motion for summary judgment lacks

the requisite specificity because it “does not tie any alleged past injury to the application

of the challenged rule” and “does not identify any particular subpoena that is presently at

issue.” Aplts.’/Cross-Aplees.’ Principal Br. (“Aplts.’ Opening Br.”) at 34.

Contrary to Defendants’ assertions, the summary-judgment declaration contains

several factual statements demonstrating how Rule 16-308(E) has worked to the

detriment of federal prosecutors. In particular, after generally averring that there are

“many examples of such situations,” the declaration specifically describes several

instances in which prosecutors “have already actually [been] hampered . . . in the

performance of their otherwise lawful duties” by concerns that they would be disciplined

for violating the essentiality or no-other-feasible-alternative conditions of Rule 16-

308(E). Aplts.’ App. at 84. For example, the declaration offered the following:

The [USAO] investigated an investment fraud scheme perpetrated by
a target who, upon learning that he was under investigation, hired a
criminal defense attorney. The target used money generated by the
scheme to pay for his criminal defense, but he told a witness he had
used the money to pay the attorney for legal work related to the
supposed investment. Only the target and the attorney were in a
position to testify that the victim funds were used for his criminal

16
 defense and not for any actual investment-related purposes. The threat
of ethical sanctions posed by Rule l 6-308(E) prevented the prosecutor
from seeking this important evidence from the attorney. Consequently,
had the subpoena been issued, the prosecutor would have risked being
accused of seeking evidence that might later have been deemed
obtainable by alternative means or not ‘essential’ under Rule
16-308(E).

Id. at 84–85. This and the other examples offered in the declaration illustrate the United

States’s alleged injury with adequate particularity.

Furthermore, prosecutors’ efforts to avoid sanctions, and the resulting reduction in

available evidence in grand-jury and other criminal proceedings, demonstrate sufficient

injuries to establish federal-court jurisdiction. See Cressman, 719 F.3d at 1145

(concluding that costs “incur[red] to avoid prosecution” could confer standing on the

plaintiff); Colorado Supreme Court I, 87 F.3d at 1167 (“[E]fforts to avoid litigation do

not cast doubt on standing . . . .”); cf. Stern v. U.S. Dist. Court for the Dist. of Mass., 214

F.3d 4, 11–12 (1st Cir. 2000) (citing Colorado Supreme Court I in addressing ripeness,

and noting that “[t]he threat of ethics enforcement is genuine, compliance costs are real

and immediate, and the chilling effect on attorney subpoena requests constitutes an injury

sufficient to support a justiciable controversy”). Moreover, the declaration discusses a

case in which counsel for a criminal defendant sought to quash an attorney subpoena on

the basis that the prosecutor had obtained it in violation of Rule 16-308(E). Although this

attempt to quash the subpoena failed, the declarant avers that the defense lawyer could

have also filed an ethics complaint against the prosecutor. See generally N.M. Rules

Governing Discipline, N.M.R.A. 17-102(A) (stating that the Disciplinary Board may

17
initiate an investigation “upon complaint by any person”).

In sum, we are satisfied that, at the summary-judgment phase, the United States

adequately demonstrated standing.6

c

However, Defendants maintain that, in the absence of any actual or threatened

enforcement action based on a particular subpoena, federal prosecutors have

impermissibly attempted to “manufacture standing merely by inflicting harm on

themselves” by voluntarily declining to issue certain attorney subpoenas. Aplts.’

Opening Br. at 28 (quoting Clapper v. Amnesty Int’l USA, --- U.S. ----, 133 S. Ct. 1138,

1151 (2013)).

i

We do not require “a plaintiff [to] risk actual prosecution before challenging an

allegedly unconstitutional . . . statute.” Bronson v. Swensen, 500 F.3d 1099, 1107 (10th

Cir. 2007). “Standing may still exist even when a plaintiff ends the proscribed behavior,

so long as a credible threat remains that such behavior, if taken in the future, would be

6
Defendants also claim that they were impermissibly “forced to accept
Plaintiff’s standing based on . . . Plaintiff’s ‘self-description’ of federal prosecutors’
activities in New Mexico.” Aplts.’ Opening Br. at 35 (quoting Summers, 555 U.S. at
497). However, for purposes of a summary-judgment motion, in the standing context, a
plaintiff’s particularized facts set forth in an affidavit or declaration “will be taken to be
true.” Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211
(10th Cir. 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Thus, the district court appropriately treated the statements in the declaration as true for
purposes of determining the United States’s standing.

18
prosecuted.” Id. at 1108; see also D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004)

(requiring an “objectively justified fear of real consequences, which can be satisfied by

showing a credible threat of prosecution or other consequences following from the

statute’s enforcement”).

The threat of prosecution is generally credible where a challenged “provision on its

face proscribes” the conduct in which a plaintiff wishes to engage, and the state “has not

disavowed any intention of invoking the . . . provision” against the plaintiff. Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979); see, e.g., Holder v.

Humanitarian Law Project, 561 U.S. 1, 16 (2010) (concluding that plaintiffs had alleged

a credible threat of prosecution where the “Government has not argued . . . that plaintiffs

will not be prosecuted if they do what they say they wish to do”); Cressman, 719 F.3d at

1145 (holding that the threat of prosecution was credible where state officials had

informed the plaintiff that he could be prosecuted for disobeying the challenged statute);

cf. Stern, 214 F.3d at 10 (concluding that the U.S. Attorney’s suit was ripe where the rule

imposed new substantive and procedural requirements on federal prosecutors and “Bar

Counsel ha[d] stated unequivocally that he w[ould] enforce those requirements”).

Here, federal prosecutors licensed in New Mexico are bound by the entirety of the

New Mexico Rules of Professional Conduct, including the challenged provisions of Rule

16-308(E), and may be disciplined for violating those rules. See N.M. Rules Governing

Discipline, N.M.R.A. 17-205. Rule 16-308(E) explicitly proscribes the types of attorney

subpoenas federal prosecutors under certain circumstances may want to issue—namely,

19
those that are not “essential” to an investigation and for which a feasible alternative might

exist. And the federal prosecutor’s declaration submitted by the United States provides

concrete evidence of ongoing desire and need of prosecutors in carrying out their lawful

duties to issue such subpoenas. Cf. Colo. Outfitters Ass’n v. Hickenlooper, --- F.3d ----,

2016 WL 1105363, at *7 (10th Cir. Mar. 22, 2016) (concluding that certain organizations

had not established standing “[a]bsent any testimony indicating . . . [they] intended to

engage in conduct that might violate” the statute at issue). Notably, Defendants have not

indicated that the federal prosecutors will not be subject to discipline for disobeying Rule

16-308(E). Thus, even in the absence of any actual enforcement action, Rule 16-308(E)

creates a sufficiently credible threat of prosecution to confer standing upon the United

States.

ii

Defendants base their self-inflicted-injury argument on Clapper v. Amnesty

International USA; however, their reliance on this case is misguided. There, the Supreme

Court held that precautions taken by the plaintiffs to avoid the interception of their

communications under the Foreign Intelligence Surveillance Act of 1978 were self-

inflicted, and did not establish standing, because the statute did “not regulate, constrain,

or compel any action on [the plaintiffs’] part.” Clapper, 133 S. Ct. at 1153. The Court

emphasized that any injury to the plaintiffs rested on a “highly attenuated chain of

possibilities”—viz., that the government would (1) target specific individuals that the

plaintiffs communicated with; (2) invoke its authority under the statutory provision at

20
issue; (3) obtain authorization for the interception from a judge; and (4) actually intercept

communications involving the plaintiffs. Id. at 1148.

However, in reviewing its standing jurisprudence, the Court recognized that, in

contrast, “reasonable efforts [taken] to avoid greater injuries” could be sufficient for

standing if the plaintiffs “would be subject to [discipline] but for their decision to take

preventative measures.” Id. at 1153 (emphasis added) (discussing Monsanto Co. v.

Geerston Seed Farms, 561 U.S. 139 (2010), Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167 (2000), and Meese v. Keene, 481 U.S. 465 (1987)). This

scenario—where standing could be found—which Clapper used to distinguish the

circumstances before it, is actually akin to the scenario of the present case. Thus, far

from aiding Defendants, Clapper reinforces the view that where federal prosecutors

licensed in New Mexico take precautions that significantly hinder them from carrying out

their lawful responsibilities to investigate and prosecute crimes, in order to avoid possible

disciplinary investigations and sanctions from state ethics officials, then the United States

has suffered a cognizable injury for standing purposes.

iii

Twenty years ago, we stated that “federal prosecutors need not risk disbarment by

violating the Colorado Rules in order to challenge those rules in federal court.” Colorado

Supreme Court I, 87 F.3d at 1167. Defendants do not persuade us that we should adopt a

different position with respect to New Mexico Rule 16-308(E). At both the pleadings and

summary-judgment stages of this litigation, the United States has adequately articulated

21
its alleged injury. That injury—e.g., the issuance of fewer attorney subpoenas, resulting

in a reduction in otherwise available evidence for law enforcement purposes—is not

based on an attenuated alignment of a variety of events. Rather, it stems from, and is

traceable to, the higher and conflicting standards imposed by Rule 16-308(E), which

restrict federal prosecutors’ issuance of attorney subpoenas. And the relevant state

authorities have not disavowed an intention to sanction federal prosecutors who run afoul

of these standards. Accordingly, we conclude that the United States has standing to

challenge Rule 16-308(E).7

2

The “[r]ipeness doctrine addresses a timing question: when in time is it appropriate

for a court to take up the asserted claim.” Kan. Judicial Review, 519 F.3d at 1116

(alteration in original) (quoting ACORN v. City of Tulsa, 835 F.2d 735, 738 (10th Cir.

1987)). “Ripeness reflects constitutional considerations that implicate Article III

limitations on judicial power, as well as prudential reasons for refusing to exercise

jurisdiction.” Awad, 670 F.3d at 1124 (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l

Corp., 559 U.S. 662, 670 n.2 (2010)). The requirements of standing and constitutional

7
In their reply brief, Defendants also argue that the United States’s injury is
self-inflicted because federal attorneys can practice before the District Court for the
District of New Mexico without being licensed in New Mexico. Therefore, they claim,
the individual choices of federal prosecutors to obtain New Mexico law licenses—and
thus subject themselves to Rule 16-308(E)—is a self-inflicted injury. Because
Defendants raise this argument for the first time in their reply brief, we deem it waived.
See, e.g., United States v. Bass, 661 F.3d 1299, 1301 n.1 (10th Cir. 2011).

22
ripeness overlap; if an injury “is sufficiently ‘imminent’ to establish standing, the

constitutional requirements of the ripeness doctrine will necessarily be satisfied.” Id.

(quoting ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999)); see also Susan B.

Anthony List v. Driehaus, --- U.S.----, 134 S. Ct. 2334, 2341 n.5 (2014). The prudential

requirements, however, turn on “both the ‘fitness of the issues for judicial decision’ and

the ‘hardship to the parties of withholding court consideration.’” Ohio Forestry Ass’n,

Inc. v. Sierra Club, 523 U.S. 726, 733 (1998) (quoting Abbott Labs. v. Gardner, 387 U.S.

136, 149 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977));

accord United States v. Vaquera-Juanes, 638 F.3d 734, 737 (10th Cir. 2011).

Defendants invoke prudential considerations, challenging only the fitness of the

preemption claim for judicial review. They argue that, in the absence of a pending state

enforcement action, the United States’s complaint rests on “an abundance of uncertain or

contingent future events,” including the issuance of a subpoena that violates Rule 16-

308(E) and the filing of a disciplinary complaint against the issuing prosecutor. Aplts.’

Opening Br. at 31–32. Yet these contingencies would only be relevant if waiting for

them to play out would “significantly advance our ability to deal with the legal issues

presented [ ]or aid us in their resolution.” Duke Power Co. v. Carolina Envtl. Study Grp.,

Inc., 438 U.S. 59, 82 (1978); accord Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S.

803, 812 (2003). But waiting would not have this effect.

While Defendants assert that the preemption claim remains “too abstract and

theoretical” in the absence of a specific investigation, Aplts.’ Opening Br. at 33, in

23
reality, the claim turns on whether Rule 16-308(E) is an ethics rule permitted by the

McDade Act and, if so, whether it nonetheless conflicts with federal law governing

prosecutors’ subpoena practices before federal grand juries and federal district courts.

These questions are matters of law that can be resolved without further factual

development. See Colorado Supreme Court II, 189 F.3d at 1284 (noting that “this

appeal . . . presents purely legal questions”); accord Stern, 214 F.3d at 10 (“The issue

presented can be finally resolved by declaratory judgment, its contours are sharply

defined, and additional facts will not affect its resolution.”); see also Awad, 670 F.3d at

1124 (“[O]n fitness, we ‘focus[ ] on whether determination of the merits turns upon

strictly legal issues or requires facts that may not yet be sufficiently developed.’” (second

alteration in original) (quoting Stout, 519 F.3d at 1118)).

Indeed, several courts—including our own—have resolved challenges to similar

state attorney-subpoena rules in the absence of specific applications, suggesting that the

United States’s claim here is fit for judicial resolution. See Stern, 214 F.3d at 9;

Colorado Supreme Court II, 189 F.3d at 1284; Whitehouse, 53 F.3d at 1353–54; Baylson,

975 F.2d at 105. Thus, because the question presented in this appeal—viz., whether the

challenged provisions of Rule 16-308(E) are preempted by federal law—would not be

“better grasped when viewed in light of a particular application,” Texas v. United States,

523 U.S. 296, 301 (1998), we consider it ripe for judicial review.

24
 B

Having determined that the district court’s subject-matter jurisdiction over this

case was sound, we turn now to Defendants’ claim that the court committed reversible

error by denying their Federal Rule of Civil Procedure 56(d) motion to stay its ruling on

summary judgment pending the completion of discovery.

We review the denial of a Rule 56(d) motion for an abuse of discretion—a

standard that “implies a degree of ‘[d]iscretion invested in judges [to render] a decision

based upon what is fair in the circumstances and guided by the rules and principles of

law.’” Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096

(10th Cir. 2010) (alterations in original) (quoting In re Bueno, 248 B.R. 581, 582 (Bankr.

D. Colo. 2000)). As such, even though the general rule is that summary judgment should

not be entered “where the nonmoving party has not had the opportunity to discover

information that is essential to his opposition,” Price ex. rel. Price v. W. Res., Inc., 232

F.3d 779, 783 (10th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 n.5 (1986)), we will not reverse a ruling denying discovery unless it “exceed[s] the

bounds of the rationally available choices given the facts and the applicable law in the

case at hand,” FDIC v. Arciero, 741 F.3d 1111, 1116 (10th Cir. 2013) (quoting Valley

Forge Ins. Co., 616 F.3d at 1096).

Here, the district court denied the Rule 56(d) motion because it concluded that the

case would turn on “whether or not Rule 16-308(E) is an ethical rule or a substantive

rule,” such that “the wording of the rule itself, not factual circumstances surrounding the

25
enactment or enforcement of the rule” would be determinative. Aplts.’ App. at 261. This

observation is consistent with our prior conclusion that the issue of whether federal law

preempts a state attorney-subpoena rule “presents purely legal questions.” Colorado

Supreme Court II, 189 F.3d at 1284; see also Stern, 214 F.3d at 10 (concluding that the

issue of an attorney-subpoena rule’s validity was “sharply defined, and additional facts

w[ould] not affect its resolution”).8 Indeed, much of the district court’s order is devoted

to discussing relevant decisions from other circuits addressing preemption claims

8
Defendants place much stock in the Fourth Circuit’s decision in Greater
Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264
(4th Cir. 2013) (en banc). That case—which is from another circuit—is of course not
binding on us. Moreover, its holding appears to be rooted in the Fourth Circuit’s
understanding of the unique requirements of First Amendment claims. Specifically, the
Fourth Circuit reversed there a district court’s determination that discovery was not
necessary to resolve as-applied and facial First Amendment claims: as the court saw it,
“[i]n the First Amendment context,” it was necessary for the city defendant to have
information about how the challenged ordinance affected the plaintiff pregnancy center in
order to defend an as-applied challenge, and, in order to make its case to the district court
as to the facial attack, the city needed information “concerning the distinctive
characteristics of Baltimore’s various limited-service pregnancy centers.” 721 F.3d at
282. In contrast, in a preemption case like this one, the inquiry is almost entirely a legal
one. See, e.g., Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n,
461 U.S. 190, 201 (1983) (“The question of preemption is predominantly legal . . . .”);
H & R Block E. Enters. v. Raskin, 591 F.3d 718, 723 (4th Cir. 2010) (describing the
conflict-preemption analysis as “a two-step process of first ascertaining the construction
of the two statutes and then determining the constitutional question [of] whether they are
in conflict” (alteration in original) (quoting Chi. & N.W. Transp. Co. v. Kalo Brick & Tile
Co., 450 U.S. 311, 317 (1981))); see also Sec. Indus. Ass’n v. Connolly, 883 F.2d 1114,
1125 n.10 (1st Cir. 1989) (concluding that a Rule 56(d) motion seeking to delay summary
judgment in order to assess the impact of a challenged regulation on investors and brokers
was “beside the point” because it was not directed at the determinative legal question of
whether the regulation was preempted). Accordingly, we believe Defendants’ reliance on
Greater Baltimore Center for Pregnancy Concerns is misplaced.

26
involving similar state attorney-subpoena rules, and ultimately “[w]ith the guidance of

the . . . cited precedent, the [c]ourt f[ound] that Rule 16-308(E), as applied to grand jury

proceedings, violate[d] the Supremacy Clause.” Aplts.’ App. at 322.

The facts as to which Defendants sought discovery—including whether Rule 16-

308(E) actually causes delay and whether there have been any disciplinary

proceedings—were not “essential to [their] opposition.” Price, 232 F.3d at 783

(emphasis added). These facts, even if established, would not have affected the district

court’s central legal conclusion—notably, that Rule 16-308(E) creates a higher and

conflicting standard for attorney subpoenas in the federal grand-jury context, and thus

impermissibly limits the types of subpoenas prosecutors may issue. As such, the court

did not abuse its discretion in denying Defendants’ Rule 56(d) motion. See CenTra, Inc.

v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008) (“[W]e have affirmed the denial of Rule

56[(d)] motions . . . if ‘further discovery would not have changed the legal and factual

deficiencies.’” (quoting Maki v. Laakko, 88 F.3d 361, 367 (6th Cir. 1996))).

C

Turning to the central dispute in this case, the United States argues that Rule 16-

308(E)—more specifically, subsections (E)(2) and (E)(3), the essentiality and no-other-

feasible-alternative requirements—are preempted under the Supremacy Clause of the

U.S. Constitution with respect to federal prosecutors’ subpoena practices before grand

juries and in other criminal proceedings. See U.S. Const., art. VI, § 2 (“This Constitution,

and the Laws of the United States which shall be made in Pursuance thereof . . . shall be

27
the supreme Law of the Land . . . .”). Conversely, Defendants argue that the rule is not

preempted in either context.9 The district court granted partial summary judgment to the

United States, finding that the rule was preempted when applied to federal prosecutors’

subpoena practice before grand juries because it conflicted with certain governmental

interests—e.g., preserving grand-jury secrecy and affording grand juries wide latitude to

investigate. However, outside of the realm of grand juries, the district court concluded

that it was bound by Colorado Supreme Court II, in which we held that an identical

9
After oral argument, Defendants submitted a letter, pursuant to Federal Rule
of Appellate Procedure 28(j), notifying this court of the Supreme Court’s recent decision
in Armstrong v. Exceptional Child Ctr., Inc., --- U.S. ----, 135 S. Ct. 1378 (2015), which
Defendants argue bars at the threshold the United States’s preemption claim. We
disagree. The Court in Armstrong held that there is no private right of action under the
Supremacy Clause. 135 S. Ct. at 1384. The Court held that, in enacting the Medicaid
statute at issue, Congress intended to foreclose such private equitable relief by creating
broad “judicially unadministrable” standards and explicitly providing a nonjudicial means
of enforcement—i.e., the withholding of Medicaid funds. Id. at 1385. However, in
contrast, nothing in the structure or terms of the McDade Act similarly suggests that
Congress sought to override the federal courts’ equitable authority to entertain the United
States’s suit for injunctive relief on preemption grounds. Specifically, the McDade Act’s
directive is relatively straightforward—attorneys for the federal government are subject to
a state’s ethics rules to the same extent as attorneys licensed in those states—and the
statute provides no alternative means of enforcement. Furthermore, the Armstrong Court
emphasized that allowing private enforcement of the Supremacy Clause would “mak[e] it
impossible to leave the enforcement of federal law to federal actors.” Id. at 1384. This, it
noted, would be inconsistent with the “discretion” the Constitution affords Congress
“over the manner of implementing its enumerated powers.” Id. at 1383–84. To the extent
that Armstrong’s Supremacy Clause holding is motivated by the desire to preserve the
federal government’s “ability to guide the implementation of federal law,” id. at 1384,
this counsels in favor of—not against—permitting the United States to invoke preemption
in order to protect its interest in the use of attorney subpoenas in federal prosecutions.
See Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201 (1967) (noting “the
general rule that the United States may sue to protect its interests”). Thus, in our view,
Defendants’ reliance on Armstrong is misguided.

28
Colorado ethics rule was not preempted by federal law governing prosecutors practicing

in other criminal proceedings before federal district courts.

“We review the district court’s grant of partial summary judgment de novo,

applying the same legal standards as the district court.” Qwest Corp. v. AT & T Corp.,

479 F.3d 1206, 1209 (10th Cir. 2007). “Where, as here, we are presented with

cross-motions for summary judgment, we ‘must view each motion separately,’ in the light

most favorable to the non-moving party, and draw all reasonable inferences in that party’s

favor.” Manganella v. Evanston Ins. Co., 702 F.3d 68, 72 (1st Cir. 2012) (quoting

OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can., 684 F.3d 237, 241

(1st Cir. 2012)); see also Christian Heritage Acad. v. Okla. Secondary Sch. Activities

Ass’n, 483 F.3d 1025, 1030 (10th Cir. 2007) (“Cross motions for summary judgment are

to be treated separately; the denial of one does not require the grant of another.” (quoting

Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979))).

1

We begin by inquiring into the nature of the United States’s “claim and the relief

that would follow.” John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010); see Milavetz,

Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 248 (2010) (“Our first task in

resolving this question is to determine the contours of Milavetz’s claim.”); accord United

States v. Carel, 668 F.3d 1211, 1217 (10th Cir. 2011). This subject is an important one,

and the parties’ arguments evince considerable uncertainty and disagreement regarding it.

In Carel, we succinctly described the two relevant analytical constructs:

29
 An appellant may challenge the constitutionality of a statute by
asserting a facial challenge, an as-applied challenge, or both. “A facial
challenge is a head-on attack [on a] legislative judgment, an assertion
that the challenged statute violates the Constitution in all, or virtually
all, of its applications.” United States v. Pruitt, 502 F.3d 1154, 1171
(10th Cir. 2007).

In contrast, “[a]n as-applied challenge concedes that the statute
may be constitutional in many of its applications, but contends that it
is not so under the particular circumstances of the case.” Id. (emphasis
added); see also N.M. Youth Organized v. Herrera, 611 F.3d 669, 677
n.5 (10th Cir. 2010) (“[An] ‘as-applied’ challenge to a law
acknowledges that the law may have some potential constitutionally
permissible applications, but argues that the law is not constitutional as
applied to [particular parties].”).

Carel, 668 F.3d at 1217 (alterations in original) (citation omitted).10

As the Supreme Court has recognized, however, “the distinction between facial

and as-applied challenges is not so well defined that it has some automatic effect or that it

must always control the pleadings and disposition in every case involving a constitutional

challenge.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010); see

Reed, 561 U.S. at 194 (noting as to the parties’s disagreement regarding whether the

claim at issue “is properly viewed as a facial or as-applied challenge,” that “[t]he label is

not what matters”); see also Ctr. for Indiv. Freedom v. Madigan, 697 F.3d 464, 475 (7th

Cir. 2012) (“[F]acial challenges and as-applied challenges can overlap conceptually.”);

Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113

10
We do not have the benefit of an agreement among the parties regarding the
nature of the constitutional challenge (i.e., facial or as-applied), like we did in Carel.
See 668 F.3d at 1217 (noting that “at oral argument [defense] counsel stated that his
challenge . . . is an as-applied challenge” and “Counsel for the Government agreed”).

30
HARV. L. REV. 1321, 1336 (2000) (“Facial challenges are not sharply categorically

distinct from as-applied challenges to the validity of statutes.”). In other words, “facial”

and “as-applied” are not necessarily antipodal rubrics.

Indeed, “the line between facial and as-applied relief is a fluid one, and many

constitutional challenges may occupy an intermediate position on the spectrum between

purely as-applied relief and complete facial invalidation.” Am. Fed’n of State, Cty. &

Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 865 (11th Cir. 2013); see Showtime

Entm’t, LLC v. Town of Mendon, 769 F.3d 61, 70 (1st Cir. 2014) (“[T]his case highlights

the sometimes nebulous nature of the distinction between facial and as-applied

challenges, for Showtime’s challenge does not fit neatly within our traditional concept of

either type of claim.”). This proposition is especially relevant here. The United States’s

claim “obviously has characteristics of both” a facial and as-applied claim. Reed, 561

U.S. at 194; see Carel, 668 F.3d at 1217 (“Mr. Carel’s claim that [42 U.S.C.] § 16913 is

unconstitutional has characteristics of both a facial and as-applied challenge.”); see also

Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 426 (5th Cir. 2014) (noting

that “the precise boundaries of facial and as-applied challenges are somewhat

elusive—certain challenges can have characteristics of both”).

The United States contends that Rule 16-308(E) “impermissibly imposes

procedural and substantive requirements on federal prosecutors [licensed in New Mexico]

that are inconsistent with federal law and therefore violates the Supremacy Clause.”

Aplee.’s/Cross-Aplt.’s Br. (“U.S. Response Br.”) at 7; see Aplts.’ App. at 7 (“As applied

31
to federal prosecutors, New Mexico Rule of Professional Conduct 16-308(E) . . . violates

the Supremacy Clause . . . .”). Its “claim is ‘as applied’ in the sense that it does not seek

to strike the [New Mexico rule] in all its applications, but only to the extent it covers

[federal prosecutors licensed to practice law in New Mexico]. The claim is ‘facial’ in that

it is not limited to [a] particular case [i.e., a particular federal prosecutor’s issuance of a

specific attorney subpoena], but challenges application of the law more broadly to all

[attorney subpoenas issued by all federal prosecutors licensed in New Mexico].” Reed,

561 U.S. at 194.

Put another way, the United States’s claim has characteristics of a facial challenge

because it attacks on purely legal grounds—i.e., under the Supremacy Clause—certain

provisions of Rule 16-308(E) and contends that they are per se invalid. In this regard, the

claim does not relate to the circumstances of any particular attorney subpoena or any

particular trial or grand-jury investigation. But the claim also has characteristics of an as-

applied challenge because it focuses solely on the constitutional ramifications of Rule 16-

308(E)’s challenged provisions as they apply to a specific, narrowly defined

group—federal prosecutors licensed in New Mexico; it does not seek a determination that

the rule is invalid as applied to any other category of prosecutors (e.g., state or local

prosecutors), and thus not all applications of the challenged provisions are encompassed

by the claim.

The unique duality of the United States’s preemption claim has engendered

disagreement among the parties, and also some uncertainty—notably, by the claim’s

32
proponent, the United States—regarding how to properly characterize it. The United

States has emphasized in litigating the jurisdictional, prudential justiciability, and

discovery issues that the claim is “facial”; in so doing, it has sought to underscore the

legal nature of the claim.11 See, e.g., Aplts.’ App. at 116 (Pl.’s Opp. to Defs.’ Mot. to

Dismiss, filed Sept. 20, 2013) (stating in opposing Defendants’ motion to dismiss on

standing and ripeness grounds that the “case is a facial challenge to the constitutionality

of Rule 16-308(E), on grounds that the Rule invades a field completely occupied by

federal regulation and conflicts with federal law” (emphasis added)); id. at 265 (Pl.’s

(Am.) Combined Opp. to Defs.’ Mot. for Summ. J. & Reply in Supp. Pl.’s Mot. for

Summ. J., filed Dec. 18, 2013) (citing the district court’s “correct[ ]” holding “that this

matter is ripe for adjudication because facial challenges based upon preemption are fit for

review even without additional factual development or actual enforcement of the law”).

But, in arguing the merits of the preemption claim, the United States has stressed

that it only seeks to invalidate Rule 16-308(E) as applied to a limited subset of

prosecutors—i.e., federal prosecutors licensed in New Mexico. See id. at 20 (seeking a

declaration in its complaint that Rule 16-308(E) was “invalid, null, and void, as applied

11
The response of the United States’s counsel to questioning during oral
argument regarding its use of the labels “facial” and “as-applied” bespeaks some of the
uncertainty noted above and also specifically sheds light on the United States’s intent
behind the use of the label “facial.” Counsel stated that perhaps the United States “used
the wrong term in district court . . . because facial challenge is a term of art . . . . [W]hat
we meant by that . . . is facial in the sense of this is a purely legal determination based on
Supremacy Clause principles . . . . What we meant was this is a straight legal
challenge . . . .” Oral Argument at 25:40–27:20.

33
to federal attorneys for otherwise lawful actions” (emphasis added)); id. at 33 (Mem. in

Supp. of Pl.’s Mot. for Summ. J., filed June 28, 2013) (“If applied to federal prosecutors,

the Rule violates the Supremacy Clause of the United States Constitution[.] . . . Rule

16-308(E) is therefore void as applied to federal prosecutors.”); id. at 49 (“[A]s applied to

federal attorneys, Rule 16-308(E) . . . . is not in fact an ‘ethical’ rule, and is invalid as

applied to federal attorneys[.] . . .”).

Perhaps not surprisingly, the language of the district court’s orders reflects the

duality of the claim, and it also uses the labels “facial” and “as-applied” in a manner that

approximates the United States’s (i.e., the plaintiff’s) framing of its case. In its decision

denying New Mexico’s motion to dismiss for lack of standing and ripeness, for example,

the district court described the action as “facially challenging the New Mexico

Rule . . . as it applies to federal prosecutors.” Id. at 143. The court emphasized what it

understood to be the facial nature of the challenge. See, e.g., id. at 151 (“The

overwhelming majority of courts hold that cases involving facial challenges based upon

preemption are fit for judicial review even without specific factual development.”). In

denying Defendants further discovery, the court again held that “facial preemption

challenges can be decided even in the absence of a detailed factual record. . . . The

determination [of whether Rule 16-308(E) is preempted] is based upon the wording of the

rule itself, not factual circumstances surrounding the enactment or enforcement of the

rule.” Id. at 260–61 (Order Den. Pl.’s Mot. to Stay Briefing & Defs.’ 56(D) Req. for

Extension, filed Nov. 27, 2013). Finally, in its order granting partial summary judgment

34
to both parties, though the court noted that it was addressing a “facial[ ] challeng[e]” to

Rule 16-308(E), it also explicitly recognized that the United States sought to declare the

rule invalid only “as it applies to federal prosecutors.” Id. at 306 (Mem. Op. & Order

Granting Partial Summ. J., filed Feb. 3, 2014); see also id. at 306 n.2 (“The Court

assumes that Plaintiff only intended to bring this suit on behalf of federal

prosecutors . . . .”).

2

The unique duality of the United States’s preemption claim gives rise to an issue

that we must address before resolving the merits: whether the United States is judicially

estopped from relying on its version of an “as-applied” argument in attacking on appeal

the substantive validity of Rule 16-308(E), given its heavy reliance on “facial” arguments

before the district court and the court’s acceptance of such arguments. More specifically,

Defendants contend that the United States should be judicially estopped on appeal from

“switch[ing] to an as-applied challenge for purposes of avoiding the more stringent

requirements for prevailing on the merits of a facial preemption challenge” after

“[h]aving obtained the benefit of [ ] rulings from the district court based on a facial

challenge.” Aplts.’/Cross-Aplees.’ Response and Reply Br. (“Aplts.’ Reply Br.”) at

19–20. They highlight a passage of the United States’s appellate brief, wherein it states

that “the United States challenges Rule 16-[3]08(E) only as-applied to federal prosecutors

and only to those who seek to take ‘otherwise lawful actions’ prohibited by the New

Mexico rule.” U.S. Response Br. at 55 (quoting Aplts.’ App. at 20). The United States

35
goes on to argue that certain principles governing facial challenges that the Supreme

Court has announced do not apply because of the limited scope of its claim. Specifically,

it contends that they “would not apply because the United States is not challenging all of

the applications of the New Mexico Rule, but rather a limited set of applications.” Id. at

56.

Thus, advocating for the application of facial standards, Defendants contend that

the United States should be judicially estopped from making such an argument. For two

salient, independent reasons, however, we reject this contention. Under the judicial-

estoppel doctrine, “[w]here a party assumes a certain position in a legal proceeding, and

succeeds in maintaining that position, he may not thereafter, simply because his interests

have changed, assume a contrary position.” New Hampshire v. Maine, 532 U.S. 742, 749

(2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)). While the circumstances

that trigger judicial estoppel are “not reducible to any general formulation,” id. at 750,

“nevertheless[ ] the Supreme Court has identified three relevant factors,” BancInsure, Inc.

v. FDIC, 796 F.3d 1226, 1240 (10th Cir. 2015), petition for cert. filed sub nom.

McCaffree v. BancInsure, 84 U.S.L.W. 3433 (U.S. Feb. 1, 2016) (No. 15-982). They are:

(1) “a party’s later position must be ‘clearly inconsistent’ with its earlier position”; (2) the

party must have “succeeded in persuading a court to accept that party’s earlier position,

so that judicial acceptance of an inconsistent position in a later proceeding would create

‘the perception that either the first or second court was misled’”; and (3) allowing the

party to assert the inconsistent position would result in “an unfair advantage or [would]

36
impose an unfair detriment on the opposing party.” New Hampshire, 532 U.S. at 750–51

(citations omitted); accord Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 767 F.3d

987, 993 (10th Cir. 2014). “[J]udicial estoppel ‘is an equitable doctrine invoked by a

court at its discretion.’” New Hampshire, 532 U.S. at 750 (quoting Russell v. Rolfs, 893

F.2d 1033, 1037 (9th Cir. 1990)); accord Kaiser v. Bowlen, 455 F.3d 1197, 1204 (10th

Cir. 2006). “This circuit applies the doctrine of judicial estoppel ‘both narrowly and

cautiously.’” BancInsure, 796 F.3d at 1240 (quoting Hansen v. Harper Excavating, Inc.,

641 F.3d 1216, 1227 (10th Cir. 2011)). This is because the doctrine is “a powerful

weapon to employ against a party seeking to vindicate its rights, and there are often lesser

weapons that can keep alleged inconsistent statements in check.” Vehicle Mkt. Research,

Inc., 767 F.3d at 993; accord BancInsure, 796 F.3d at 1240.

First, we reject Defendants’ judicial-estoppel argument because the United States’s

legal arguments in the district court and on appeal are not clearly inconsistent; indeed,

they are arguably not inconsistent at all. Our caselaw has set a high bar for estoppel

proponents seeking to show that two positions are clearly inconsistent. See, e.g., Vehicle

Mkt. Research, 767 F.3d at 994–96; Ellis v. Ark. La. Gas Co., 609 F.2d 436, 440 (10th

Cir. 1979). And we find validation for our narrow and cautious approach in this regard,

see BancInsure, 796 F.3d at 1240, in the decisions of our sister circuits. In the words of

the Second Circuit, “If the statements can be reconciled there is no occasion to apply an

estoppel.” Simon v. Safelite Glass Corp., 128 F.3d 68, 73 (2d. Cir. 1997) (applying

judicial estoppel because plaintiff told the Social Security Administration that he was

37
“unable to work,” which was “patently and admittedly contrary to his central claim in this

case that he is able to work”); see United States v. Apple, Inc., 791 F.3d 290, 337 (2d Cir.

2015) (noting that its precedent has “emphasized the need to ‘carefully consider the

contexts in which apparently contradictory statements are made to determine if there is, in

fact, direct and irreconcilable contradiction’” and concluding that a party’s “facially

inconsistent” arguments were not clearly inconsistent because there was a factual basis in

the record for distinguishing the arguments (quoting Rodal v. Anesthesia Grp. of

Onondaga, P.C., 369 F.3d 113, 119 (2d Cir. 2004))); see also Lorillard Tobacco Co. v.

Chester, Willcox & Saxbe, LLP, 546 F.3d 752, 757–58 (6th Cir. 2008) (noting that the

judicial-estoppel doctrine is applied cautiously and that “there is no inconsistency, and

certainly no clear inconsistency” in the challenged arguments).

As we read it, the substance of the United States’s arguments before the district

court and on appeal are not clearly inconsistent. In both settings, the United States has

presented a legal preemption challenge to the validity of provisions of Rule 16-308(E), as

they apply to a limited subset of prosecutors—that is, federal prosecutors licensed in New

Mexico. True, in emphasizing the legal nature of its challenge in litigating the

jurisdictional, prudential justiciability, and discovery issues before the district court, it

denominated its claim as “facial,” whereas on appeal it seems to have avoided this label,

but the substance of its argument on appeal is not clearly inconsistent with the argument it

made below. Compare, e.g., Aplts.’ App. at 116–17 (in opposing Defendants’ motion to

dismiss on standing and ripeness grounds, stating that the “case is a facial challenge to the

38
constitutionality of Rule 16-308(E)” and that “the complaint has alleged each way in

which the Rule is at odds with federal law and therefore violates the Supremacy Clause”),

with U.S. Response Br. at 18 (“The district court also correctly found that this case is ripe

for adjudication. Its resolution requires no further factual development . . . . The

Supremacy Clause challenge here presents purely legal questions . . . .”). And, on

appeal—as before the district court—the United States has emphasized that it only seeks

to invalidate provisions of Rule 16-308(E) as applied to a limited subset of

prosecutors—i.e., federal prosecutors. Compare, e.g., U.S. Response Br. at 55 (stating

that “the United States challenges Rule 16-[3]08(E) only as-applied to federal

prosecutors”), with Aplts.’ App. at 49 (“[A]s applied to federal attorneys,

Rule 16-308(E) . . . . is not in fact an ‘ethical’ rule, and is invalid as applied to federal

attorneys . . . .”).

Defendants’ argument to the contrary elides the unique duality of the claim and

operates on the assumption that the United States’s challenge must be either “facial” or

“as-applied”; under their reasoning, it cannot have characteristics of both. As noted

above, however, such an antipodal limitation is not required. See Reed, 561 U.S. at 194

(noting that the claim at issue “obviously has characteristics of both” a facial and as-

applied claim). And, in fact, the United States’s preemption claim has characteristics of

both a “facial” and an “as-applied” challenge. In sum, our first reason for rejecting

Defendants’ judicial-estoppel argument is because the United States’s arguments in the

district court and on appeal are not clearly inconsistent.

39
 Our second reason is because any ostensible inconsistency would involve solely

legal arguments; however, under our precedent, “the position to be estopped must

generally be one of fact rather than of law or legal theory.” Johnson v. Lindon City

Corp., 405 F.3d 1065, 1069 (10th Cir. 2005); see also BancInsure, 796 F.3d at 1240

(“Notably, we have held that judicial estoppel only applies when the position to be

estopped is one of fact, not one of law.”); United States v. Villagrana-Flores, 467 F.3d

1269, 1279 (10th Cir. 2006) (“Even if we were to agree that the government took two

clearly conflicting positions, . . . the existence of a Fourth Amendment violation is a legal

position, not a factual one, and therefore the first judicial estoppel factor has not been

satisfied.”). It cannot be disputed that the facial and as-applied rubrics are legal in nature

and form the basis for legal arguments. Therefore, even if the United States has shifted

on appeal from the position it held in the district court regarding the nature of its

claim—viz., from viewing it as facial to as-applied—that shift would be legal in nature.

Consequently, under our precedent, the judicial-estoppel doctrine would be inapposite.12

In sum, for these two salient, independent reasons, we reject Defendants’ judicial-

estoppel contention.

12
Of course, “lesser weapons,” Vehicle Mkt. Research, 767 F.3d at 993, in the
form of the doctrines of waiver or forfeiture might be employed in certain circumstances
when a party changes its position on a legal issue on appeal, see, e.g., Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011). However, Defendants have not
sought to invoke either of these weapons in connection with the United States’s purported
change of position regarding the nature of its claim, and we decline to assay the matter
sua sponte.

40
 3

Having concluded that the United States’s argument with respect to its uniquely

dual preemption claim is not barred by the judicial-estoppel doctrine, we must still

determine which analytical construct—facial or as-applied—is the appropriate one for

purposes of conducting the substantive preemption analysis. The parties’ arguments

reflect disagreement on this point. Defendants vigorously contend that facial standards

should govern the resolution of the United States’s preemption claim; in particular, they

advocate for the use of the rigorous no-set-of-circumstances test, which is perhaps most

closely associated with the Supreme Court’s decision in United States v. Salerno, 481

U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid.”); see also Cal. Coastal

Comm’n v. Granite Rock Co., 480 U.S. 572, 588–89 (1987) (“In the present posture of

this litigation, the Coastal Commission’s identification of a possible set of permit

conditions not pre-empted by federal law is sufficient to rebuff Granite Rock’s facial

challenge to the permit requirement.”); Reed, 561 U.S. at 231 (Thomas, J., dissenting)

(citing Salerno, and describing the no-set-of-circumstances test as “our most rigorous

standard”); see also Aplts.’ Opening Br. at 54–55 (“All that is required to defeat

Plaintiff’s facial challenge is the conclusion that Plaintiff has not met its burden of

proving that Rule 16-308(E) necessarily and irreconcilably conflicts with federal grand

jury practice in all instances”). The United States appears to generally resist application

41
of a facial standard and, most notably, flatly rejects application of the Salerno standard,

contending that it “would not apply because the United States is not challenging all of the

applications of the New Mexico Rule, but rather a limited set of applications.” U.S.

Response Br. at 56.

We conclude, under the parameters defined below, that the standards for a facial

claim are appropriate here.

a

As noted, the United States’s “claim is ‘as applied’ in the sense that it does not

seek to strike the [Rule 16-308(E)] in all its applications, but only to the extent it covers

[federal prosecutors licensed in New Mexico]. The claim is ‘facial’ in that it is not

limited to [a] particular case [i.e., a particular federal prosecutor’s issuance of a specific

attorney subpoena], but challenges application of the law more broadly to all [attorney

subpoenas issued by all federal prosecutors licensed in New Mexico].” Reed, 561 U.S. at

194. The Supreme Court’s decision in Reed is instructive in discerning the appropriate

legal standard for resolution of this case because there (as the First Circuit observed) the

Court “faced a similar duality in the First Amendment Context.” Showtime Entm’t, 769

F.3d at 70.

The foundation for the lawsuit in Reed was the public-records statute (“PRA”) of

the State of Washington, which “authorize[d] private parties to obtain copies of

government documents, and the State construe[d] the PRA to cover submitted referendum

petitions.” 561 U.S. at 191. The Court succinctly introduced the case’s factual

42
background, the legal issue, and its resolution of it:

This case arises out of a state law extending certain benefits to
same-sex couples, and a corresponding referendum petition to put that
law to a popular vote. Respondent intervenors invoked the PRA to
obtain copies of the petition, with the names and addresses of the
signers. Certain petition signers and the petition sponsor objected,
arguing that such public disclosure would violate their rights under the
First Amendment.

The course of this litigation, however, has framed the legal
question before us more broadly. The issue at this stage of the case is
not whether disclosure of this particular petition would violate the First
Amendment, but whether disclosure of referendum petitions in general
would do so. We conclude that such disclosure does not as a general
matter violate the First Amendment, and we therefore affirm the
judgment of the Court of Appeals. We leave it to the lower courts to
consider in the first instance the signers’ more focused claim
concerning disclosure of the information on this particular petition,
which is pending before the District Court.

Id.

In the claim at issue in Reed, the plaintiffs averred that the PRA “violates the First

Amendment as applied to referendum petitions.” Id. at 194 (emphasis added) (quoting

Count I of the Complaint). As here, the parties jousted about whether the claim was

“properly viewed as a facial or as-applied challenge.” Id. The Court, however,

recognized that facial and as-applied are not mutually exclusive or antipodal constructs,

observing that the claim “obviously has characteristics of both.” Id. Elaborating, the

Court said:

The claim is “as applied” in the sense that it does not seek to
strike the PRA in all its applications, but only to the extent it covers
referendum petitions. The claim is “facial” in that it is not limited to

43
 plaintiffs’ particular case, but challenges application of the law more
broadly to all referendum petitions.

Id.

Critically for our purposes, the Court then offered guidance on how—in the

context of such duality—to determine which analytical construct is most apt for

resolution of the underlying substantive claim. It began by observing that “[t]he label

[i.e., facial or as-applied] is not what matters.” Id. “The important point,” it said, is

whether the “plaintiffs’ claim and the relief that would follow . . . reach beyond the

particular circumstances of the[ ] plaintiffs.” Id. The Court concluded that this was true

in that case, where the plaintiffs sought in the claim at issue “an injunction barring the

secretary of state ‘from making referendum petitions available to the public,’” not just an

injunction barring the public disclosure of the referendum petition involving them,

relating to same-sex marriage. Id. (quoting Count I of the Complaint). As such, the

Court concluded that, irrespective of the “label” that the plaintiffs attached to their claim,

“[t]hey must therefore satisfy our standards for a facial challenge to the extent of that

reach.” Id.

We read Reed as offering three key lessons for discerning the appropriate

analytical lens for conducting a substantive constitutional analysis—lessons that are

applicable at least where the claims evince a duality as here: first, the labels the parties

attach to claims are not determinative; second, in determining whether to apply facial

standards to the claim, importantly, the court must focus on whether the claim and the

44
relief therein extend beyond the plaintiffs’ particular circumstances; and third, if the claim

and relief do so, facial standards are applied but only to the universe of applications

contemplated by plaintiffs’ claim, not to all conceivable applications contemplated by the

challenged provision. See, e.g., Showtime Entm’t, 769 F.3d at 70 (in holding that facial

standards apply, stating “[w]e understand the relief sought here to be the invalidation of

the zoning bylaws, not merely a change in their application to Showtime[;] . . . . it is clear

that this is a request that ‘reach[es] beyond’ the precise circumstances of Showtime’s

license application” (third alteration in original) (quoting Reed, 561 U.S. at 194));

Catholic Leadership Coal., 764 F.3d at 426 (“[T]o categorize a challenge as facial or as-

applied we look to see whether the ‘claim and the relief that would follow . . . reach

beyond the particular circumstances of the [ ] plaintiffs.’ If so, regardless of how the

challenge is labeled by a plaintiff, ‘[t]hey must therefore satisfy our standards for a facial

challenge to the extent of that reach.’” (second and third alterations in original) (citation

omitted) (quoting Reed, 561 U.S. at 194)); Discount Tobacco City & Lottery, Inc. v.

United States, 674 F.3d 509, 522 (6th Cir. 2012) (“In this case, Plaintiffs label their

claims as both facial and as-applied challenges to the Act, but because the ‘plaintiffs’

claim and the relief that would follow . . . reach beyond the particular circumstances of

these plaintiffs,’ the claims that are raised are properly reviewed as facial challenges to

the Act.” (quoting Reed, 561 U.S. at 194)); see also Am. Fed’n of State, Cty. & Mun.

Emps. Council 79, 717 F.3d at 862 (“We look to the scope of the relief requested to

determine whether a challenge is facial or as-applied in nature.”).

45
 Further explication may clarify the contours of the third lesson. As noted, a

paradigmatic facial challenge is “a head-on attack [on a] legislative judgment, an

assertion that the challenged statute violates the Constitution in all, or virtually all, of its

applications.” Carel, 668 F.3d at 1217 (quoting Pruitt, 502 F.3d at 1171). However,

where the claim at issue evinces the kind of duality at issue here—that is, reflects

characteristics of both facial and as-applied challenges—the facial analysis that Reed

envisions is more limited in scope than that employed for paradigmatic facial claims.13

Specifically, the analysis does not attempt to assay the constitutional validity of all or

virtually all of the applications of the challenged provision. Instead, it focuses on only

the constitutional validity of the subset of applications targeted by the plaintiffs’

substantive claim. Consequently, using the language of Reed, plaintiffs asserting such a

dual claim are obliged to “satisfy our standards for a facial challenge” but only “to the

extent of that [claim’s] reach”—which means only insofar as the claim is actually facial

in character, in that it “reach[es] beyond the particular circumstances of the[ ] plaintiffs.”

Reed, 561 U.S. at 194.

This third lesson was concretely displayed in Reed. The Court concluded that the

facial standard should be applied to the plaintiffs’ dual claim—a claim that, in part,

“obviously ha[d] characteristics of” a facial challenge, id.—because their claim attacked

13
Indeed, one of our sister circuits has recognized that these dual claims are
qualitatively distinct from paradigmatic facial claims by describing the former as “quasi-
facial in nature.” Am. Fed’n of State, Cty. & Mun. Emps., 717 F.3d at 863.

46
the public records statute’s disclosure requirements related to “referendum petitions in

general,” not only the disclosure requirements as they applied to the particular

referendum petition at issue involving same-sex marriage, id. at 191. Demonstrating the

third lesson, Reed only applied a facial analysis to the public records statute insofar as it

was construed to reach referendum petitions—not to the statute as a whole, which applied

to other records as well. See id. at 194. In other words, Reed applied the facial analysis

to the public records statute “to the extent [that the claim’s] reach” went beyond the

disclosure requirements related to the same-sex marriage referendum petitions to include

referendum petitions generally—but, critically, no further than that. See id. Some of our

sister circuits appear to have tacitly recognized and applied Reed’s third lesson. See, e.g.,

Showtime Entm’t, 769 F.3d at 70–71 (applying facial analysis to claim that extended

beyond plaintiff’s specific circumstances—that is, a license application—but extending it

no further than the zoning ordinance impacting plaintiff and other adjacent landowners

engaged in the same business); Am. Fed’n of State, Cty. & Mun. Emps., 717 F.3d at 865

(in the context of a dual claim “conclud[ing] that the district court granted what

effectively amounted to facial relief—or, at the very least, relief that had enough

characteristics of facial relief to demand satisfaction” of facial standards, and proceeding

to apply those standards only to the extent that the challenged executive order reached

beyond the particular circumstances of the plaintiffs).

Guided by Reed and its three key lessons, we conclude that facial standards should

be applied to the United States’s preemption claim but only to the extent that the

47
challenged provisions of Rule 16-308(E) impact federal prosecutors licensed in New

Mexico and their attorney-subpoena practices. First, because labels are not important, the

United States’s use of as-applied verbiage in its complaint, see Aplts.’ App. at 20

(seeking a declaration in its complaint that Rule 16-308(E) was “invalid, null, and void,

as applied to federal attorneys for otherwise lawful actions” (emphasis added)), should

not deter us from determining whether facial standards actually provide the appropriate

touchstone. See Reed, 561 U.S. at 194 (applying facial standards, though the count of the

complaint at issue alleged that the PRA “violate[d] the First Amendment as applied to

referendum petitions” (emphasis added) (quoting Count I of the Complaint)). Second, the

United States’s claim and its desired relief clearly extend beyond the particular

circumstances of any particular federal prosecutor issuing an attorney subpoena. The

United States has sought to bar enforcement of certain provisions of Rule 16-308(E)

relative to all federal prosecutors licensed in New Mexico who issue attorney

subpoenas—irrespective, for example, of the evidentiary needs of a particular grand-jury

investigation. Accordingly, following Reed, we rightly apply facial standards to the

resolution of the United States’s claim. Finally, applying Reed’s third lesson, the facial

analysis should extend to a preemption analysis of the challenged provisions Rule 16-

308(E), but only insofar as they apply to federal prosecutors licensed in New Mexico who

issue attorney subpoenas.14 We turn now to determine whether Salerno’s no-set-of-

14
Indeed, although starting from different places, both parties appear to
acknowledge that the relevant universe for analysis is this federal-prosecutor group.

48
circumstances language or some other rubric is the appropriate one to apply here.

b

i

Defendants argue that, in order to meet the “standard[ ] for a facial challenge,”

Aplts.’ Reply Br. at 51–52 (quoting Reed, 561 U.S. at 194), the United States must

demonstrate that “no set of circumstances exists under which [Rule 16-308(E)] would be

valid,” Salerno, 481 U.S. at 745. As noted, the United States contends that Salerno’s

facial standards are inapplicable here.15

Compare Aplts.’ Reply Br. at 3–4 (“Plaintiff must meet its burden to show that there is no
set of circumstances under which Rule 16-308(E) could apply with respect to a
prosecutor’s conduct in issuing a federal grand subpoena to an attorney.”), with U.S.
Response Br. at 56 (noting that “the United States is not challenging all of the
applications of the New Mexico Rule, but rather a limited set of applications” involving
“federal prosecutors who issue grand jury subpoenas”).
15
The United States’s resistance to Salerno’s no-set-of-circumstances
language appears to rest in part on a misunderstanding regarding the universe of possible
applications (i.e., circumstances) that would be at issue under that formula as used here.
In this regard, the United States says, “The Salerno standard would not apply because the
United States is not challenging all of the applications of the New Mexico Rule, but
rather a limited set of applications.” U.S. Response Br. at 56 (emphasis added).
However, as we noted supra in the immediately preceding section discussing the third
lesson that we glean from Reed, facial standards may be applicable even when plaintiffs
challenge only a limited subset of the conceivable applications of a challenged
provision—viz., if their claims evince the kind of duality or “quasi-facial” character at
issue here, Am. Fed’n of State, Cty. & Mun. Emps., 717 F.3d at 863 (noting that “Salerno
also applies when a court grants relief that is quasi-facial in nature”)—but only to the
extent of the challenged subset. See Reed, 561 U.S. at 194. Indeed, Defendants do not
maintain that the proffered Salerno no-set-of-circumstances test should extend beyond the
attorney-subpoena practices of federal prosecutors licensed in New Mexico. In any event,
for the reasons noted infra, we are content to assume that the Salerno no-set-of-
circumstances language is controlling, and we apply it consistent with Reed’s third lesson
and our precedent interpreting Salerno.

49
 While both the Supreme Court and our court have questioned whether Salerno’s

no-set-of-circumstances language applies to all facial challenges, see, e.g., United States

v. Stevens, 559 U.S. 460, 472 (2010); Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 (2008); Doe v. City of Albuquerque, 667 F.3d 1111, 1123 (10th

Cir. 2012); Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1255 (10th Cir. 2008), the

Supreme Court has previously applied this language in at least two preemption cases, see

Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995); Cal. Coastal Comm’n, 480 U.S. at

593; see also Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 564

(5th Cir. 2013) (applying Salerno to a facial preemption challenge). We thus are prepared

to assume arguendo that Salerno’s no-set-of-circumstances language does apply here.

Even so, we have construed Salerno’s no-set-of-circumstances language “not as

setting forth a test for facial challenges, but rather as describing the result of a facial

challenge in which a statute fails to satisfy the appropriate constitutional standard.” Doe,

667 F.3d at 1127; see also Marc E. Isserles, Overcoming Overbreadth: Facial Challenges

& the Valid Rule Requirement, 48 AM. U. L. REV. 359, 386 (1998) (“Salerno is best

understood, not as a facial challenge ‘test’ at all, but rather as a descriptive claim about a

statute whose terms state an invalid rule of law . . . .”). A facial challenge is best

understood as “a challenge to the terms of the statute, not hypothetical applications,” Doe,

667 F.3d at 1127, and is resolved “simply by applying the relevant constitutional test to

the challenged statute without attempting to conjure up whether or not there is a

hypothetical situation in which application of the statute might be valid,” id. at 1124; see

50
also City of Los Angeles v. Patel, --- U.S. ----, 135 S. Ct. 2443, 2451 (2015) (stating that,

in resolving a facial challenge, “the Court has considered only applications of the statute

in which it actually authorizes or prohibits conduct,” and not every hypothetical

possibility); Fallon, supra, at 1328 (“In a practical sense, doctrinal tests of constitutional

validity can thus produce what are effectively facial challenges.”). “In other words,

where a statute fails the relevant constitutional test . . . it can no longer be constitutionally

applied to anyone—and thus there is ‘no set of circumstances’ in which the statute would

be valid.” Doe, 667 F.3d at 1127.

ii

In this case, the relevant constitutional test for assaying the facial validity of the

challenged provisions of Rule 16-308(E) involves the preemption doctrine. The basic

taxonomy of that doctrine—which is based on the Constitution’s Supremacy Clause, U.S.

Const. art. VI, § 2—is well-established: “Put simply, federal law preempts contrary state

law.” Hughes v. Talen Energy Mktg., LLC, --- U.S. ----, 136 S. Ct. 1288, 1297 (2016);

see, e.g., Arizona v. United States, --- U.S. ----, 132 S. Ct. 2492, 2500–01 (2012); U.S.

Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1324 (10th Cir. 2010). More specifically,

among the “three types of preemption,” U.S. Airways, 627 F.3d at 1324, the one relevant

here is called conflict preemption.16 In that species of preemption, a state-law provision

16
The other two are called express preemption and field preemption. See,
e.g., English v. Gen. Elec. Co., 496 U.S. 72, 79–80 (1990) (noting, as to express
preemption, that “Congress can define explicitly the extent to which its enactments
pre-empt state law”; and, as to field preemption, that “state law is pre-empted where it

51
will be preempted if it conflicts with federal law, either because (1) “compliance with

both federal and state regulations is a physical impossibility,” Arizona, 132 S. Ct. at 2501

(quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963)), or

because the provision (2) “stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of” federal law, id. (quoting Hines v. Davidowitz, 312

U.S. 52, 67 (1941)); accord Sprietsma v. Mercury Marine, 537 U.S. 51, 64–65 (2002);

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372–73 (2000); Skull Valley Band

of Goshute Indians v. Nielson (Skull Valley), 376 F.3d 1223, 1240 (10th Cir. 2004); see

also Richard H. Fallon, Jr., et al., HART AND WECHSLER’S THE FEDERAL COURTS AND

THE FEDERAL SYSTEM 646 (6th ed. 2009) (“Conflict preemption . . . embraces two

distinct situations. In the easier but far rarer case, compliance with both federal and state

duties is simply impossible. In the second and more common situation, compliance with

both laws is possible, yet state law poses an obstacle to the achievement of federal

purposes.” (citation omitted)).17

regulates conduct in a field that Congress intended the Federal Government to occupy
exclusively”); see also U.S. Airways, 627 F.3d at 1324 (stating, in enumerating the two
others, that “1) ‘express preemption, which occurs when the language of the federal
statute reveals an express congressional intent to preempt state law;’ [and] 2) ‘field
preemption, which occurs when the federal scheme of regulation is so pervasive that
Congress must have intended to leave no room for a State to supplement it . . . .’”
(quoting Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d 480, 486 (10th Cir.
1998))). But cf. Hughes, 136 S. Ct. at 1300 (Sotomayor, J., concurring) (noting the
Court’s “general exhortation not to rely on talismanic pre-emption vocabulary”).
17
Conflict preemption is a form of implied preemption. See, e.g., Gade v.
Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (noting the Court’s historical
recognition of “at least two types of implied pre-emption,” that is, “field pre-emption”

52
 Generally speaking, “[t]here is no federal pre-emption in vacuo, without a

constitutional text or a federal statute to assert it.” P.R. Dep’t of Consumer Affairs v. Isla

Petroleum Corp., 485 U.S. 495, 503 (1988).18 Frequently, courts are called upon to

discern the preemptive effect of the latter—federal statutes (as well as regulations

promulgated under them). See, e.g., Crosby, 530 U.S. at 363, 373, 374 n.8 (noting that

“[w]e find that the state law undermines the intended purpose and ‘natural effect’ of at

least three provisions of the federal Act” and “declin[ing] . . . to pass on the First Circuit’s

and “conflict pre-emption”); Chamber of Commerce v. Edmondson, 594 F.3d 742, 765
(10th Cir. 2010) (noting that “state laws may be impliedly preempted either as a result of
conflict or field preemption”); Choate v. Champion Home Builders Co., 222 F.3d 788,
795 (10th Cir. 2000) (“Implied preemption exists when (1) state law regulates conduct in
a field Congress intended the Federal Government to occupy exclusively, or (2) when
state law actually conflicts with federal law.”).
18
In certain limited settings involving federal interests, the Supreme Court has
recognized that federal common law—absent an operative constitutional or congressional
text—may still preempt state law. See Boyle v. United Tech. Corp., 487 U.S. 500, 504
(1988) (“[W]e have held that a few areas, involving ‘uniquely federal interests,’ are so
committed by the Constitution and laws of the United States to federal control that state
law is pre-empted and replaced, where necessary, by federal law of a content prescribed
(absent explicit statutory directive) by the courts—so-called ‘federal common law.’”
(citation omitted) (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640
(1981))); see also Helfrich v. Blue Cross and Blue Shield Ass’n, 804 F.3d 1090, 1098
(10th Cir. 2015) (“In our view, the analysis in Boyle requires the displacement of the
Kansas antisubrogation regulation in the context of the Blue Cross claim against Ms.
Helfrich.”); N.J. Retail Merch. Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 392 (3d Cir.
2012) (“It is undisputed that state law can be preempted by federal common law as well
as federal statutes.”). This doctrine of federal common law preemption is not at issue
here. In particular, as explicated infra, as to the primary contested issue of substance in
this case—whether Rule 16-308(E)’s challenged provisions are preempted as applied to
federal prosecutors in the grand jury context—we predicate our preemption holding on
the text of the Grand Jury Clause of the Fifth Amendment of the Constitution, as
interpreted by the Supreme Court, not on federal common law.

53
rulings addressing the foreign affairs power and the dormant Foreign Commerce

Clause”); Choate v. Champion Home Builders Co., 222 F.3d 788, 791–92 (10th Cir.

2000) (“Congress has the power to preempt state law under . . . the Supremacy Clause.

‘[A]n agency’s preemption regulations, promulgated pursuant to Congressional authority,

have the same preemptive effect as statutes.’” (footnote omitted) (citation omitted)

(quoting Meyer v. Conlon, 162 F.3d 1264, 1268 (10th Cir. 1998))); Skull Valley, 376 F.3d

at 1240 (“[I]n order to determine whether the Utah statutes at issue are preempted, we

must examine the federal statutes regulating nuclear power.”); see also Emerson v.

Kansas City S. Ry. Co., 503 F.3d 1126, 1127 (10th Cir. 2007) (“This case concerns the

preemptive scope of the Interstate Commerce Commission Termination Act of 1995

(ICCTA).”).

However, as most relevant here, the constitutional text itself may displace

conflicting state law. See Chy Lung v. Freeman, 92 U.S. 275, 281 (1875) (“In any view

which we can take of this [California] statute, it is in conflict with the Constitution of the

United States, and therefore void.); Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38,

49–50 (1st Cir. 1999) (proceeding from the premise that “[t]he Constitution’s foreign

affairs provisions have been long understood to stand for the principle that power over

foreign affairs is vested exclusively in the federal government,” in holding that the state

law at issue was preempted under “the federal foreign affairs power as interpreted by the

Supreme Court”), aff’d on other grounds sub nom. Crosby, 530 U.S. at 373, 374 & n.8.

Compare DeCanas v. Bica, 424 U.S. 351, 355 (1976) (considering the possibility that

54
“the Constitution of its own force” may preempt state law), superseded by statute on

other grounds as recognized by Chamber of Commerce v. Whiting, 563 U.S. 582, 590

(2011), with Keller v. City of Fremont, 719 F.3d 931, 940 (8th Cir. 2013) (“In

[De Canas,] the Supreme Court addressed the extent to which the Constitution preempts

state and local laws . . . .”). In engaging in our preemption inquiry, we focus on “the

terms of [Rule 16-308(E)], not hypothetical applications.” See Doe, 667 F.3d at 1127; cf.

Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 644 (2d Cir. 2005) (“[W]hat is

preempted here is the permitting process itself, not the length or outcome of that process

in particular cases.” (emphasis added)).19

4

Having given content to the standards for the facial challenge at play here, we now

proceed to apply the preemption test to the terms of the challenged provisions of Rule 16-

308(E). Our analysis is guided by our reasoning in Colorado Supreme Court II, where

we considered the constitutionality of an identical attorney-subpoena rule. See 189 F.3d

at 1283 n.2. In resolving the preemption claim in that case, we framed the inquiry as

follows: “whether [the rule] violates the Supremacy Clause . . . turns on whether the rule

is a rule of professional ethics clearly covered by the McDade Act, or a substantive or

19
This approach of applying the preemption doctrine to the terms of Rule 16-
308(E) rather than speculating about potential valid applications accords with how other
circuit panels—including a panel of our own in Colorado Supreme Court II—have
addressed preemption challenges to state ethics rules. See, e.g., Stern, 214 F.3d at 20–21;
Colorado Supreme Court II, 189 F.3d at 1288–89; Baylson, 975 F.2d at 111–12.

55
procedural rule that is inconsistent with federal law.” Id. at 1284. Even though we

determined that the rule was an ethics rule, we nevertheless examined whether this ethics

rule was otherwise “inconsistent with federal law” and thus preempted. Id. at 1289. We

apply this analytical framework to the challenged provisions of Rule 16-308(E).20

20
Our esteemed colleague in dissent contends that our examination in
Colorado Supreme Court II of whether Colorado’s Rule 3.8—which we had determined
was an ethics rule—was “inconsistent with federal law,” 189 F.3d at 1289, was “a brief
aside at the end of the opinion,” Dissent at 7, without decisional significance. In this
vein, the dissent contends that “the first and only question we must answer is: whether the
rule is one governing ethics? If it is, considering the burden on federal interests is
unnecessary because Congress has authorized the rule’s application to federal
prosecutors.” Dissent at 3. We must respectfully disagree. The panel in Colorado
Supreme Court II effectively engaged in a conflict-preemption analysis—an inquiry into
the presence of impermissible inconsistency vel non with federal law—after determining
that Colorado Rule 3.8 was an ethics rule, and expressly rendered a holding on the
preemption question. In this regard, we stated there:

[W]e hold that Rule 3.8, in its mandate that a federal prosecutor
ought not to disturb an attorney-client relationship without a showing
of cause, does not conflict with Fed. R. CIM. P. 17, which details only
the procedures for issuing a proper subpoena. Rule 17 does not
abrogate the power of courts to hold an attorney to the broad normative
principles of attorney self-conduct. Accordingly, we hold that Rule 3.8
is not inconsistent with federal law and can be adopted and enforced by
the state defendants against federal prosecutors.

Colorado Supreme Court II, 189 F.3d at 1288–89 (emphases added). It is pellucid that
we considered our holding regarding the absence of an impermissible inconsistency (i.e.,
the absence of a conflict) with federal law essential to our conclusion that Colorado could
enforce Rule 3.8 against federal prosecutors in the trial (i.e., non-grand-jury context). It
was not an aside or casual piece of dictum that we may now disregard. Therefore,
contrary to the dissent, in applying the rule of Colorado Supreme Court II, we do not
believe that our analysis can end if we determine that Rule 16-308(E) is an ethics rule.
Instead, we must still determine whether Rule 16-308(E) conflicts with relevant federal
law.

56
 a

The McDade Act explicitly subjects federal attorneys “to State laws and

rules . . . governing attorneys in each State . . . to the same extent and in the same manner

as other attorneys in that State.” 28 U.S.C. § 530B(a). In Colorado Supreme Court II, we

considered whether the Colorado rule could be deemed an ethics rule—notably, a

“normative legal standard[ ] that guides the conduct of an attorney”—such that it fell

within the McDade Act’s purview. 189 F.3d at 1285. We defined an ethics rule as one

that: (1) “bar[s] conduct recognized by consensus within the profession as inappropriate”;

(2) is phrased as “a commandment dealing with morals and principles”; (3) is “vague

[and] sweeping” rather than highly specific; and (4) is “directed at the attorney herself”

rather than “at the progress of the claim.” Id. at 1287–88. Measured against these

criteria, we concluded that the Colorado rule was an ethics rule of the type that the

McDade Act contemplates. More specifically, as we saw it, the rule sought to safeguard

the attorney-client relationship—which “by general consensus of our profession [is]

worthy of protection”—and was phrased as a vague, sweeping commandment “directed at

the prosecutor, not at the cause of action.” Id. at 1288.

This reasoning applies with equal force to Rule 16-308(E). It contains identical

language to that found in Colorado Rule 3.8(e), and, as the commentary to the rule makes

clear, it is intended to limit the issuance of attorney subpoenas to only “those situations in

which there is a genuine need to intrude into the client-lawyer relationship.” N.M. Rules

of Prof’l Conduct, N.M.R.A. 16-308(E) cmt. 4. As such, under Colorado Supreme Court

57
II, Rule 16-308(E) is an ethics rule of the sort covered by the McDade Act.21

b

We must next determine whether the challenged provisions of Rule 16-308(E),

despite being within the purview of the McDade Act, are otherwise inconsistent with (i.e.,

conflict with) federal law. As evident from the analysis in Colorado Supreme Court II,

the fact that a challenged state rule is determined to be an ethics rule within the McDade

Act’s ambit does not necessarily mean that Congress intended that rule to trump or

impede the effectuation of otherwise applicable federal law. See Colorado Supreme

Court II, 189 F.3d at 1289 (proceeding to determine whether the ethics rule covered by

the McDade Act was otherwise “inconsistent with federal law”); see also Stern, 214 F.3d

at 19 (“[I]t simply cannot be said that Congress, by enacting section 530B, meant to

empower states (or federal district courts, for that matter) to regulate government

attorneys in a manner inconsistent with federal law.”); cf. United States v. Lowery, 166

F.3d 1119, 1125 (11th Cir. 1999) (“When it comes to the admissibility of evidence in

federal court, the federal interest in enforcement of federal law, including federal

evidentiary rules, is paramount. State rules of professional conduct, or state rules on any

subject, cannot trump the Federal Rules of Evidence. . . . There is nothing in the language

or legislative history of the [McDade] Act that would support such a radical notion.”).

21
In contrast, in Stern, the First Circuit concluded that the Massachusetts rule
at issue “clearly extend[ed] beyond the shelter that section 530B provides” because it
“add[ed] a novel procedural step—the opportunity for a pre-service adversarial hearing.”
214 F.3d at 20. New Mexico Rule 16-308(E) contains no such procedural hurdle.

58
Indeed, courts have specifically concluded that a Supremacy Clause analysis may still be

appropriate and necessary in instances where Congress has granted states regulatory

authority through language similar to that employed by the McDade Act (e.g., “to the

same extent . . . as”). See Hancock v. Train, 426 U.S. 167, 173, 182 n.41, 198 (1976)

(holding with reference to 42 U.S.C. § 1857f, which requires federal agencies engaged in

activities producing air pollution to comply with state “requirements respecting control

and abatement of air pollution to the same extent that any person is subject to such

requirements,” that Congress did not “evince[ ] with satisfactory clarity” the intent to

“subject[ ] federal installations to state permit requirements”); Colo. Dep’t of Pub. Health

& Env’t, Hazardous Materials & Waste Mgmt. Div. v. United States, 693 F.3d 1214, 1217

(10th Cir. 2012) (noting, where “the federal government and its agencies must comply

with an [Environmental Protection Agency] authorized state program regulating

hazardous waste” under 42 U.S.C. § 6961 “to the same extent, as any person,” that the

congressional grant of regulatory authority to the states “does not insulate a state

regulation from federal preemption”).

i

The United States concedes that Colorado Supreme Court II dictates the answer to

the otherwise-inconsistent-with-federal-law inquiry with respect to criminal proceedings

in the trial (i.e., outside of the grand-jury) context. Specifically, the United States

acknowledges that Rule 16-308(E) does not conflict with federal law governing trial

subpoenas; therefore, it is not preempted. In this regard, in Colorado Supreme Court II,

59
we determined that a Colorado ethics rule (i.e., Rule 3.8(e)) that had language identical to

Rule 16-308(E) was not in conflict with Federal Rule of Criminal Procedure 17—which,

generally speaking, governs the process for subpoenaing testimonial and documentary

evidence for trial—because Rule 17 was procedural and did “not abrogate the power of

courts to hold an attorney to the broad normative principles of attorney self-conduct.”

189 F.3d at 1289.22 The United States wisely acknowledges that this holding is

dispositive here. Therefore, we conclude that the district court appropriately determined

that the challenged provisions of Rule 16-308(E) are not preempted relative to federal

prosecutors’ issuance of attorney subpoenas in criminal proceedings outside of the grand-

jury context.23

22
Notably, we distinguished Baylson, in which the Third Circuit held that
Pennsylvania’s attorney-subpoena rule was preempted in the trial context, because the
Pennsylvania rule contained a judicial preapproval requirement and Rule 17 makes “no
allowances for the court’s intervention in the subpoena procedures.” Colorado Supreme
Court II, 189 F.3d at 1286. Like the Colorado rule, Rule 16-308(E) contains no such
preapproval requirement.
23
We recognize that after we issued Colorado Supreme Court II, the First
Circuit in Stern held that “the ‘essentiality’ and ‘no feasible alternative’ requirements [of
the largely similar ethics rule at issue there] are substantially more onerous . . . than the
traditional motion-to-quash standards” of Rule 17. 214 F.3d at 18. Specifically, the First
Circuit held that essentiality is “a more demanding criterion than relevancy or
materiality” and that “Rule 17 jurisprudence contains no corollary to the” no-other-
feasible-alternative requirement. Id. It thus concluded that these “novel
requirements . . . threaten[ed] to preclude the service of otherwise unimpeachable
subpoenas and thus restrict[ed] the flow of relevant, material evidence to the factfinder.”
Id. In substance, the court concluded that the essentiality and no-other-feasible-
alternative provisions conflicted with otherwise applicable federal law relative to trial
subpoenas (i.e., subpoenas issued outside of the grand-jury context) and were thus
preempted. Notwithstanding the First Circuit’s contrary reasoning in Stern, we remain
bound by our controlling decision in Colorado Supreme Court II, which concluded that a

60
 ii

Though its mode of analysis is still relevant, Colorado Supreme Court II’s holding

does not speak to the question before us: specifically, the court did not address whether

the challenged provisions of Rule 16-308(E) are preempted in the grand-jury context. See

189 F.3d at 1284. Resolving this question as a matter of first impression, we conclude

that Rule 16-308(E)’s challenged provisions are conflict-preempted24 in the grand-jury

setting because the essentiality and no-other-feasible-alternative requirements pose “an

obstacle to the accomplishment and execution of the full purposes and objectives” of the

rule identical to Rule 16-308(E) did not run afoul of federal law governing trial
subpoenas. See Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1230 n.5
(10th Cir. 2010) (“[T]he precedent of prior panels which we must follow includes not
only the very narrow holdings of those prior cases, but also the reasoning underlying
those holdings, particularly when such reasoning articulates a point of law.” (alteration in
original) (quoting Mendiola v. Holder, 585 F.3d 1303, 1310 (10th Cir. 2009), overruled
on other grounds by Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir.
2012))).
24
The United States does not argue that state ethics regulation of federal
prosecutors practicing before grand juries is expressly preempted. Moreover, it appears
to concede that Congress has not occupied the field of ethics regulation of federal
prosecutors practicing before grand juries; in this regard, it has noted that, through the
McDade Act, “Congress intended to require federal prosecutors to comply with state
ethical rules and that those rules would apply to grand jury practice.” U.S. Response Br.
at 44. Notably, as to the latter (i.e., field preemption), we have previously expressed
“considerable doubt” as to whether “Rules of Professional Conduct . . . apply to federal
prosecutors’ practice before a federal grand jury.” In re Grand Jury Proceedings, 616
F.3d 1172, 1186 (10th Cir. 2010). Yet, given the United States’s apparent concession
regarding the applicability of at least some state ethics rules in the grand-jury context, and
the clear conflict between the particular challenged provisions of Rule 16-308(E) and
federal grand-jury law, we need not (and do not) endeavor to reach any definitive,
categorical conclusions on whether state ethics rules are excluded from the field of
federal prosecutors’ practices before grand juries.

61
federal legal regime governing grand-jury practice. Arizona, 132 S. Ct. at 2501 (quoting

Hines, 312 U.S. at 67).

The law of the federal grand jury springs from the fertile and robust soil of the

Anglo-American legal tradition and the Constitution itself. See United States v. Williams,

504 U.S. 36, 47 (1992) (“‘[R]ooted in long centuries of Anglo–American history,’ the

grand jury is mentioned in the Bill of Rights . . . .” (citation omitted) (quoting Hannah v.

Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result)); Costello v.

United States, 350 U.S. 359, 362 (1956) (“The grand jury is an English institution,

brought to this country by the early colonists and incorporated in the Constitution by the

Founders. There is every reason to believe that our constitutional grand jury was

intended to operate substantially like its English progenitor.”). And, significantly, this

body of grand-jury law has a firm and explicit footing in the Constitution’s text through

the Grand Jury Clause of the Fifth Amendment of the Bill of Rights, which “provides that

federal prosecutions for capital or otherwise infamous crimes must be instituted by

presentments or indictments of grand juries.” Costello, 350 U.S. at 361–62; see U.S.

Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury . . . .”).

By the Framers’ explicit design, the federal grand jury occupies a uniquely

independent space in the constitutional text, apart from the three branches of government.

See Williams, 504 U.S. at 47 (“It [i.e., the grand jury] has not been textually

assigned . . . to any of the branches described in the first three Articles. It ‘“is a

62
constitutional fixture in its own right.”’” (quoting United States v. Chanen, 549 F.2d

1306, 1312 (9th Cir. 1977))); see also R. Enters., Inc., 498 U.S. at 297 (“The grand jury

occupies a unique role in our criminal justice system.”); Chanen, 549 F.2d at 1312

(“[U]nder the constitutional scheme, the grand jury is not and should not be captive to any

of the three branches. The grand jury is a pre-constitutional institution given

constitutional stature by the Fifth Amendment but not relegated by the Constitution to a

position within any of the three branches of the government.” (citation omitted)); Roger

A. Fairfax, Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L. REV.

703, 727 (2008) (“Not only is the grand jury independent of the three branches of

government, but it serves as a check on them.”); cf. United States v. Kilpatrick, 821 F.2d

1456, 1465 (10th Cir. 1987) (“The separation of powers doctrine mandates judicial

respect for the independence of both the prosecutor and the grand jury.” (emphasis

added)).

By creating this space, the Framers sought to ensure that federal prosecutions for

serious crimes are commenced through a fair and thorough process by a body that is free

of corrupting influences and vested with the broad investigative powers necessary to find

the truth. See Costello, 350 U.S. at 362 (“The basic purpose of the English grand jury

was to provide a fair method for instituting criminal proceedings against persons believed

to have committed crimes. . . . Its adoption in our Constitution as the sole method for

preferring charges in serious criminal cases shows the high place it held as an instrument

of justice. And in this country as in England of old the grand jury has convened as a body

63
of laymen, free from technical rules, acting in secret, pledged to indict no one because of

prejudice and to free no one because of special favor.”); Williams, 504 U.S. at 47 (“[T]he

whole theory of its [i.e., the grand jury’s] function is that it belongs to no branch of the

institutional Government, serving as a kind of buffer or referee between the Government

and the people.”); Fairfax, supra, at 729 (“Just as constitutional structure provides each of

the branches with the prerogative to check the others, the grand jury, with its robust

discretion, checks the judicial, executive, and legislative branches and represents a

structural protection of individual rights.” (footnote omitted)); Note, Susan M. Schiappa,

Preserving the Autonomy and Function of the Grand Jury: United States v. Williams, 43

CATH. U. L. REV. 311, 330–31 (1993) (“The Framers of the Constitution intended the

federal grand jury, like its English forerunner, to act as both a ‘sword and a shield.’ As a

sword, the grand jury has extraordinary power to carry out its investigatory function, and

acts free of procedural or evidentiary rules. . . . As a shield, the grand jury is designed ‘to

provide a fair method for instituting criminal proceedings.’” (footnotes omitted) (citations

omitted)); see also United States v. Sells Eng’g, Inc., 463 U.S. 418, 430 (1983) (“The

purpose of the grand jury requires that it remain free, within constitutional and statutory

limits, to operate ‘independently of either prosecuting attorney or judge.’” (quoting

Stirone v. United States, 361 U.S. 212, 218 (1960))).

As with most express provisions of the Constitution,25 the Framers did not

25
In 1819, the Supreme Court made clear that “there is no phrase in the
[Constitution] which[ ] . . . requires that everything granted shall be expressly and

64
bequeath a detailed blueprint in the Fifth Amendment’s Grand Jury Clause of how its

textual constraint on the prosecution of serious crimes should be effectuated. Federal

courts have endeavored, however, to adhere closely to the text and animating purposes of

the Fifth Amendment’s Grand Jury Clause in clarifying the scope of the grand jury’s

investigative power.26 In this regard, the Supreme Court has recognized that the Framers

minutely described.” M’Culloch v. State, 17 U.S. 316, 406 (1819); see also id. at 406–07
(“The men who drew and adopted [the Constitution] had experienced the embarrassments
resulting from the insertion of [certain] word[s] in the articles of confederation, and
probably omitted [them], to avoid those embarrassments.”). In an informative manner,
the Court elaborated:

A constitution, to contain an accurate detail of all the
subdivisions of which its great powers will admit, and of all the means
by which they may be carried into execution, would partake of the
prolixity of a legal code, and could scarcely be embraced by the human
mind. It would, probably, never be understood by the public. Its
nature, therefore, requires, that only its great outlines should be marked,
its important objects designated, and the minor ingredients which
compose those objects, be deduced from the nature of the objects
themselves. That this idea was entertained by the framers of the
American constitution, is not only to be inferred from the nature of the
instrument, but from the language.

Id. at 407; see also Nat’l Fed’n of Indep. Bus. v. Sebelius, --- U.S. ----, 132 S. Ct. 2566,
2615 (2012) (Ginsburg, J., concurring in part and dissenting in part) (observing that the
Framers “recognized that the Constitution was of necessity a ‘great outlin[e],’ not a
detailed blueprint, and that its provisions included broad concepts, to be ‘explained by the
context or by the facts of the case.’” 132 S. Ct. at 2615 (alteration in original) (citations
omitted)).
26
Indeed, the federal courts’ grand-jury jurisprudence reflects a careful,
ongoing effort to glean inferences from the text and history of the Constitution’s Grand
Jury Clause regarding the Framer’s conception of the proper scope of the grand jury’s
investigative powers. For example, in Costello, the Court rebuffed a defendant’s
argument that indictments should be “open to challenge on the ground that there was
inadequate or incompetent evidence before the grand jury.” 350 U.S. at 363. The Court

65
envisioned that the federal grand jury would possess a broad range of discretion; more

specifically, the Court has held that the grand jury’s function “is to inquire into all

information that might possibly bear on its investigation until it has identified an offense

or has satisfied itself that none has occurred.” R. Enters., Inc., 498 U.S. at 297. In

carrying out its role in the criminal-justice system, a grand jury “paints with a broad

brush,” id.; unlike federal courts, it is not bound by Article III’s case or controversy

requirement or by “the technical procedural and evidentiary rules governing the conduct

of criminal trials,” Williams, 504 U.S. at 66–67 (quoting United States v. Calandra, 414

U.S. 338, 343 (1974)); see also Costello, 350 U.S. at 362 (noting that grand juries carry

out their investigative function “free from technical rules”). Thus, while a grand jury may

not “engage in arbitrary fishing expeditions,” R. Enters., Inc., 498 U.S. at 299, it has

relatively broad power to run down available clues and examine all relevant witnesses to

determine if there is probable cause to prosecute a particular defendant, see Branzburg v.

reasoned that the Fifth Amendment’s vision of the proper functioning of the grand jury
would not permit such a rule. In this regard, the court observed:

[T]he resulting delay would be great indeed. The result of such
a rule would be that before trial on the merits a defendant could always
insist on a kind of preliminary trial to determine the competency and
adequacy of the evidence before the grand jury. This is not required by
the Fifth Amendment.

Id. As Costello illustrates, federal grand-jury law is firmly grounded in the text and
history of the Grand Jury Clause of the Fifth Amendment. Accordingly, insofar as Rule
16-308(E) is determined to be preempted in the grand-jury context—a conclusion that we
reach infra—the law effectuating that preemption through the Supremacy Clause would
be the Grand Jury Clause of the Fifth Amendment.

66
Hayes, 408 U.S. 665, 701 (1972).

Of particular importance here is the Supreme Court’s recognition that, in

performing its constitutionally sanctioned investigative role, a grand jury may issue

subpoenas that do not meet the stringent requirements imposed on trial subpoenas.

Specifically, in United States v. R. Enterprises, Inc., the Court held that the standards for

trial subpoenas announced in United States v. Nixon, 418 U.S. 683 (1974)—namely,

relevancy, admissibility, and specificity—do not apply to grand-jury subpoenas. See R.

Enters., Inc., 498 U.S. at 298–99. Instead, where a grand-jury subpoena is challenged on

relevancy grounds, it will only be quashed if “there is no reasonable possibility that the

category of materials the Government seeks will produce information relevant to the

general subject of the grand jury’s investigation.” Id. at 301 (emphasis added). The

Court concluded that the more restrictive Nixon standards “would invite procedural

delays and detours while courts evaluate[d] the relevancy and admissibility of

documents.” Id. at 298; see also In re Grand Jury Subpoenas, 906 F.2d 1485, 1496 (10th

Cir. 1990) (stating that “the government is not required to make any further showing of

need or lack of another source for the subpoenaed information”).27

27
The Court in R. Enterprises also focused on the possibility that a higher
relevance standard would require prosecutors to “explain in too much detail the particular
reasons underlying a subpoena” and would thus “compromise ‘the indispensable secrecy
of grand jury proceedings.’” 498 U.S. at 299 (quoting United States v. Johnson, 319 U.S.
503, 513 (1943)); see Fed. R. Crim. P. 6(e) (imposing secrecy requirements on
participants in the grand-jury process). In the context of challenges to the validity of state
attorney-subpoena rules, some courts—including our own—have taken note of the rules’
possible impact on grand-jury secrecy. See, e.g., Stern, 214 F.3d at 16 (noting that the

67
 In light of the Supreme Court’s indication—in construing the mandate of the

Grand Jury Clause—that, for federal grand juries to properly carry out their investigative

role, there must be no more than minimal limitations placed on the kinds of evidence that

they can consider, we believe that Rule 16-308(E)’s rigorous standards—i.e., the

requirements of essentiality and no-other-feasible-alternative—clearly create “an obstacle

to the accomplishment and execution of” the federal grand jury’s constitutionally

authorized investigative function. Arizona, 132 S. Ct. at 2501 (quoting Hines, 312 U.S. at

67). To be sure, generally speaking, we do not question the proposition that Congress has

considerable leeway to authorize states to regulate the ethical conduct of federal

prosecutors practicing before grand juries. Cf. In re Grand Jury, 111 F.3d 1066, 1073 (3d

Cir. 1997) (“Just as grand juries must operate within the confines of the Constitution, so

too must they comply with the limitations imposed on them by Congress (as long as those

limitations are not unconstitutional).” (emphasis added) (citation omitted)). However, we

remain acutely aware of the fact that, by the Framers’ express design, the federal grand

jury has an independent constitutional stature and stands apart from all three branches of

rule at issue “undermine[d] the secrecy of [grand-jury] proceedings”); see also Colorado
Supreme Court I, 87 F.3d at 1166 (concluding that the allegation that the Colorado rule
compromised grand-jury secrecy was sufficient to meet the injury-in-fact requirement for
purposes of standing). We acknowledge that grand-jury secrecy may be an important
consideration in determining whether a state ethics rule is preempted. However, because
Rule 16-308(E)’s heightened standards—and the concomitant restriction on evidence
available to a grand jury—provide an ample basis for us to conclude that the challenged
provisions of Rule 16-308(E) are preempted, we need not definitively opine on the merits
of this alternative secrecy rationale.

68
government. Consequently, it seems safe to reason that Congress’s power to authorize

states to burden the grand jury’s investigative functions is not unbounded. At the very

least, we presume that Congress is not free to authorize states to eviscerate the grand jury

and render it nugatory. See Ex parte Wilson, 114 U.S. 417, 426 (1885) (“The purpose of

the [Grand Jury Clause of the Fifth] amendment was to limit the powers of the legislature,

as well as of the prosecuting officers, of the United States. . . . [T]he constitution

protect[s] every one from being prosecuted, without the intervention of a grand jury, for

any crime which is subject by law to an infamous punishment[;] no declaration of

congress is needed to secure or competent to defeat the constitutional safeguard.”

(emphases added) (citations omitted)); accord Mackin v. United States, 117 U.S. 348, 351

(1886).

We do not suggest that Rule 16-308(E)’s rigorous standards tread closely to this

danger zone or have the foregoing nullifying effect. However, even assuming (without

deciding) that Congress would be free to authorize states to regulate—through provisions

like the challenged portions of Rule 16-308(E)—the ethical conduct of federal

prosecutors practicing before grand juries, the significant burdens that such provisions

would impose on grand juries’ constitutionally authorized investigative functions, compel

us to insist that, if Congress is to so act, that it speak more clearly than it has in the

McDade Act.28 See Hancock, 426 U.S. at 179 (“Because of the fundamental importance

28
Unlike our dissenting colleague, given the unique, independent
constitutional stature of the federal grand jury, we believe it would be inappropriate and

69
of the principles shielding federal installations and activities from regulation by the

States, an authorization of state regulation is found only when and to the extent there is ‘a

clear congressional mandate,’ ‘specific congressional action’ that makes this

authorization of state regulation ‘clear and unambiguous.’” (emphasis added) (footnotes

omitted)); accord Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180 (1988) (“It is well

settled that the activities of federal installations are shielded by the Supremacy Clause

from direct state regulation unless Congress provides ‘clear and unambiguous’

authorization for such regulation.” (emphasis added) (quoting EPA v. State Water Res.

Control Bd., 426 U.S. 200, 211 (1976))); see also Stern, 214 F.3d at 19 (insisting, under

the authority of Hancock, on clear congressional authorization for state ethics rules to

regulate federal grand-jury practice, and concluding that the McDade Act does not evince

it).

Under Rule 16-308(E), a prosecutor must determine whether there is a reasonable

basis to believe that an attorney subpoena is “essential” and that there is “no other

feasible alternative” source from which to obtain the information; this is unquestionably

a much greater burden than the federal requirement that there be only a “reasonable

especially unwise for us to infer from historical events preceding the passage of the
McDade Act or the Act’s “general reference to ethics rules,” Dissent at 17, Congress’s
intent to permit states—through ethical rules—to impose such significant restrictions on
the grand jury’s investigative function. Cf. Antonin Scalia & Bryan A. Garner, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 56 (2012) (“[T]he purpose must be derived
from the text, not from extrinsic sources such as legislative history or an assumption
about the legal drafter’s desires.”).

70
possibility that the [information] . . . [is] relevant to the general subject of the grand jury’s

investigation.” R. Enters., Inc., 498 U.S. at 301 (emphasis added). Holding federal

prosecutors licensed in New Mexico to this higher standard would invariably restrict the

information a grand jury could consider, and thus would “impede its investigation and

frustrate the public’s interest in the fair and expeditious administration of the criminal

laws.” Id. at 299 (quoting United States v. Dionisio, 410 U.S. 1, 17 (1973)); see also

Stern, 214 F.3d at 16–17 (concluding that the essentiality and no-other-feasible-

alternative requirements would “encroach[ ] unduly upon grand jury prerogatives,” as

described in R. Enterprises); Baylson, 975 F.2d at 109–10 (concluding that substantive

restraints on grand-jury subpoenas, including a no-other-feasible-alternative requirement,

were inconsistent with R. Enterprises).

In sum, we conclude that the challenged provisions of Rule 16-308(E) impose on

every federal prosecutor licensed in New Mexico who seeks to issue an attorney

subpoena in the grand-jury context far more onerous conditions than those required by

federal law. More specifically, because such heightened requirements for attorney

subpoenas would impede the grand jury’s broad investigative mandate—which the

Framers specifically envisioned in enacting the Grand Jury Clause of the Fifth

Amendment—the challenged provisions of Rule 16-308(E) conflict with federal law and

are preempted.

D

Finally, Defendants challenge the scope of the injunction that the district court

71
issued. We review this question for an abuse of discretion. See ClearOne Commc’ns,

Inc. v. Bowers, 643 F.3d 735, 752 (10th Cir. 2011); accord Rocky Mountain Christian

Church v. Bd. of Cty. Comm’rs, 613 F.3d 1229, 1239–40 (10th Cir. 2010). That is, we

reverse if the district court’s injunction embodies an “arbitrary, capricious, whimsical, or

manifestly unreasonable judgment.” ClearOne Commc’ns, 643 F.3d at 752 (quoting

Rocky Mountain Christian Church, 613 F.3d at 1239–40).

The district court’s injunction in this case prohibits Defendants “from instituting,

prosecuting, or continuing any disciplinary proceeding or action against any federal

prosecutor for otherwise lawful actions taken in the course of a grand jury investigation or

proceeding on the ground that such attorneys violated Rule 16-308(E) of the New Mexico

Rules of Professional Conduct.” Aplts.’ App. at 326–27. Defendants claim that this

injunction “is much broader than necessary to remedy the alleged conflict” in two

respects. Aplts.’ Opening Br. at 55.

First, Defendants argue that the injunction would be better tailored to concerns

about grand-jury secrecy if it is limited to “particular instance[s]” where a federal

prosecutor is able to make “an adequate showing that the grand jury proceedings [a]re

both secret and relevant to the disciplinary charges.” Id. at 56. On the basis that we

resolve this case, this argument is unavailing: regardless of whether disciplinary

proceedings would only compromise grand-jury secrecy in certain situations—a

proposition we consider dubious—the essentiality and no-other-feasible-alternative

requirements conflict overall with federal grand-jury practice because they impose overly

72
restrictive standards for the issuance of attorney subpoenas in every instance. Thus, a

broad injunction is appropriate to remedy such a conflict.

Second, Defendants claim that the injunction would also prohibit the enforcement

of Rule 16-308(E)(1) against a federal prosecutor who knowingly subpoenas a lawyer for

privileged information. While the district court’s order does refer generally to “Rule 16-

308(E),” see, e.g., Aplts.’ App. at 327, the language of the injunction and the context of

the order make plain that the enforcement of Rule 16-308(E)(1) is not prohibited. See

Alley v. U.S. Dep’t of Health & Human Servs., 590 F.3d 1195, 1208 (11th Cir. 2009)

(“What the plain text of the . . . injunction indicates, the context in which that language

was written reinforces; much of that context is provided in the opinion issued in tandem

with the injunction.”); Youakim v. McDonald, 71 F.3d 1274, 1283 (7th Cir. 1995) (“[T]he

terms of an injunction, like any other disputed writing, must be construed in their proper

context.”).

Here, the United States has not challenged the constitutionality of Rule 16-

308(E)(1)’s requirement that prosecutors possess a reasonable belief that information

sought from attorneys by subpoena be non-privileged, and the district court expressly

recognized that Rule 16-308(E)(1) was not at issue. Furthermore, the injunction is only

limited to “otherwise lawful actions” taken by prosecutors, Aplts.’ App. at 327, and the

knowing issuance of subpoenas to obtain privileged information is inconsistent with

federal law, see In re Grand Jury Proceedings, 616 F.3d at 1181–82 (examining whether

information sought by subpoena was covered by the attorney-client privilege, which

73
would “provide legitimate grounds for refusing to comply with a grand jury subpoena”);

In re Impounded, 241 F.3d 308, 316 (3d Cir. 2001) (recognizing that “[t]he grand jury

may not ‘itself violate a valid privilege’” and that “courts may quash an otherwise valid

grand jury subpoena for an attorney’s testimony under the attorney-client privilege”

(quoting Calandra, 414 U.S. at 346)). The injunction should, therefore, reasonably be

read as permitting the enforcement of Rule 16-308(E)(1) where a prosecutor engages in

unlawful action by issuing a subpoena to an attorney without a reasonable belief that the

information sought is not privileged.

Thus, read in light of “the relief sought by the moving party . . . and the mischief

that the injunction seeks to prevent,” United States v. Christie Indus., Inc., 465 F.2d 1002,

1007 (3d Cir. 1972), we conclude that the district court’s injunction did not evince an

abuse of discretion because it only bars enforcement of the unconstitutional aspects of

Rule 16-308(E)—namely, all applications of subsections (2) and (3) in the grand-jury

context—and does not enjoin the enforcement of subsection (1).

III

In sum, we hold that (1) the district court had subject-matter jurisdiction because

the United States had standing and the claim was ripe for review; (2) because the United

States’s preemption claim is a legal one, the district court did not abuse its discretion in

denying discovery; (3) the district court correctly concluded that (a) under our decision in

Colorado Supreme Court II, the challenged provisions of Rule 16-308(E) are not

preempted outside of the grand-jury context, but (b) they are preempted in the grand-jury

74
setting because they conflict with the federal-law principles—embodied in the Grand Jury

Clause of the Constitution, as interpreted by the Supreme Court—that govern federal

prosecutors’ attorney-subpoena practices before grand juries, and thereby stand as an

obstacle to the effectuation of the grand jury’s constitutionally authorized investigative

functions; and (4) the district court’s injunction appropriately prohibits the enforcement

of Rule 16-308(E)(2) and (3) against federal prosecutors practicing before grand juries,

while permitting the enforcement of Rule 16-308(E)(1). We AFFIRM the district court’s

judgment.

75
14-2037, 14-2049, United States v. Supreme Court of New Mexico et al.

TYMKOVICH, Chief Judge, concurring in part and dissenting in part.

The United States claims it is immunized from following New Mexico’s Rule of

Professional Conduct 16-308(E),1 which establishes professional guidelines for

prosecutors issuing subpoenas to third-party lawyers in criminal cases. The majority

agrees, and finds that to apply the rule to federal prosecutors would violate the

Constitution’s Supremacy Clause because New Mexico’s rule conflicts with federal law

governing grand-jury practice and procedure.

But this Supremacy Clause challenge must fail if Congress has authorized the

application of this rule—and it has. In 1998, Congress enacted the McDade Amendment,

1
Rule 16-308(E) provides,

The prosecutor in a criminal case shall: . . .

E. not subpoena a lawyer in a grand jury or other criminal
proceeding to present evidence about a past or present
client unless the prosecutor reasonable believes:

(a) the information sought is not protected
from disclosure by an applicable privilege;

(b) the evidence sought is essential to the
successful completion of an ongoing
investigation or prosecution;

(c) there is no other feasible alternative to
obtain the information . . . .
28 U.S.C. § 530B,2 instructing federal prosecutors that they “shall be subject” to state

rules of ethics “governing attorneys in each State where [they] engage in [their] duties, to

the same extent and in the same manner as other attorneys in that State.” And in United

States v. Colorado Supreme Court (Colorado Supreme Court II), 189 F.3d 1281, 1284

(10th Cir. 1999), we established a method for determining whether a state rule falls within

the scope of the McDade Amendment and held that a Colorado rule (identical to New

Mexico’s rule), requiring compliance with state trial subpoena rules, applied to federal

prosecutors. That should end the matter.

The majority, however, holds Rule 16-308(E) does not apply to federal prosecutors

because it unduly burdens federal interests when applied in the grand jury context. Thus,

despite categorizing the rule as one governing “ethics,” which Congress clearly intended

2
In full, the Amendment reads,

§ 530B. Ethical standards for attorneys for the Government

(a) An attorney for the Government shall be subject to State laws and rules,
and local Federal court rules, governing attorneys in each State where such
attorney engages in that attorney’s duties, to the same extent and in the same
manner as other attorneys in that State.

(b) The Attorney General shall make and amend rules of the Department of
Justice to assure compliance with this section.

(c) As used in this section, the term “attorney for the Government” includes
any attorney described in section 77.2(a) of part 77 of title 28 of the Code of
Federal Regulations and also includes any independent counsel, or employee
of such a counsel, appointed under chapter 40.

2
to apply to federal prosecutors, the majority reads Colorado Supreme Court II to also

require a conflict preemption analysis.

Applying the obstacle-conflict preemption doctrine, the majority holds New Mexico’s

rule is preempted in the grand jury context because it places more onerous conditions on

federal prosecutors issuing subpoenas than required by the Supreme Court in United

States v. R. Enterprises, Inc., 498 U.S. 292 (1991). The majority grounds its preemption

analysis not in any congressional mandate—because, indeed, Congress expressly stated

federal prosecutors “shall be subject” to state ethics rules—but in the Constitution’s text

by way of the Fifth Amendment’s Grand Jury Clause. But New Mexico’s rule is not

inconsistent with the Grand Jury Clause’s guarantee that “[n]o person shall be held to

answer for a capital, or otherwise infamous crime, unless in a presentment or indictment

of a Grand Jury.” Instead, the rule merely instructs prosecutors practicing in New Mexico

(federal or state alike) of their professional duty when issuing subpoenas to third-party

lawyers in criminal cases.

As I see it, the first and only question we must answer is: whether the rule is one

governing ethics? If it is, considering its burden on federal interests is unnecessary

because Congress has authorized the rule’s application to federal prosecutors. And

because Colorado Supreme Court II classified an identical rule as an ethics rule, the

answer is straightfoward. Since the majority’s holding departs from Congress’s clear

3
intent to apply all state ethics rules to federal prosecutors, I respectfully dissent.3

I. Discussion

A. The McDade Amendment

I begin with the statutory background on which we all agree. No one disputes that

“state regulation” of “federal . . . activities” can be authorized by a “clear congressional

mandate” making that “authorization of state regulation clear and unambiguous.”

Hancock v. Train, 426 U.S. 167, 179 (1976). The United States, of course, acknowledges

there is no Supremacy Clause problem if federal law unambiguously authorizes the

application of the state rules at issue here. See Second Br. at 38 (“[I]f Congress has,

through the McDade Act, clearly and unambiguously authorized the application to federal

prosecutors of [the rule], New Mexico has not violated the Supremacy Clause.”). And the

Amendment’s text is clear: “An attorney for the Government shall be subject to State

laws and rules . . . governing attorneys in each State where such attorney engages in that

attorney’s duties, to the same extent and in the same manner as other attorneys in that

State.” § 530B(a); Colo. Supreme Court II, 189 F.3d at 1284 (noting state laws and rules

contemplated by the Amendment are “state professional rules” or “rule[s] of professional

ethics”).

Indisputably, then, if a state rule is an ethics rule, the McDade Amendment clearly

and unambiguously authorizes its application to federal prosecutors. No one doubts this

3
I concur with the majority’s conclusions on standing and ripeness. My analysis
is the same no matter whether we look at the challenge facially or as-applied.

4
is an ethics rule in at least one context. In Colorado Supreme Court II, we created a test

for determining whether a rule is an ethics rule and applied the test to hold an identical

rule as ethical in all non-grand-jury criminal proceedings.4 189 F.3d at 1284, 1288. The

question in that case was whether a Colorado rule identical to New Mexico’s violated the

Supremacy Clause as applied in “criminal proceedings other than a grand jury.” Id. at

1284. As the majority notes, that question turned on whether the rule was “‘a rule of

professional ethics clearly covered by the McDade Act, or a substantive or procedural

rule that is inconsistent with federal law.’” Majority Op. 5, 55 (quoting Colo. Supreme

Court II, 189 F.3d at 1284).

We first noted the definition of “ethical”: “‘[o]f or relating to moral action,

conduct, motive or character. . . . Professionally right or befitting; conforming to

professional standards of conduct.’” Colo. Supreme Court II, 189 F.3d at 1284 (quoting

Black’s Law Dictionary 553 (6th ed. 1990)); see also id. at 1285 (quoting In re Snyder,

472 U.S. 634, 645 (1985)) (noting the Supreme Court’s definition of unethical conduct as

“conduct contrary to professional standards that shows an unfitness to discharge

4
Colorado Supreme Court II was the second time we had addressed the United
States’s Supremacy Clause challenge to this Colorado rule. We previously reversed and
remanded the district court’s dismissal for lack of standing when we first considered that
case. See United States v. Colo. Supreme Court (Colorado Supreme Court I), 87 F.3d
1161, 1166–67 (10th Cir. 1996). When we addressed the rule in Colorado Supreme
Court I, it contained a requirement precluding the issuance of a third-party subpoena
unless the attorney “obtain[ed] prior judicial approval after the opportunity for an
adversarial proceeding.” Id. at 1163. By the time of Colorado Supreme Court II, that
requirement had been removed, leaving us with a rule governing third-party subpoenas
indistinguishable from New Mexico’s. See Colo. Supreme Court II, 189 F.3d at 1284.

5
continuing obligations to clients or the courts, or conduct inimical to the administration of

justice”). In short, the question was whether Colorado’s rule was “one of those normative

legal standards that guides the conduct of an attorney.” Id.

To answer that question, we outlined a three-prong test.5 “First,” an ethical rule

bars “conduct recognized by consensus within the profession as inappropriate.” Id. at

1287. “Second,” such rules are like “commandment[s] dealing with morals and

principles” and in “directing sweeping commandments of conduct” can be “quite vague”

in nature, in contrast to procedural or substantive law, “the purposes of which are to direct

a cause of action through the courts.” Id. “Finally,” such rules are “directed at the

attorney herself.” Id. “Applying [those] factors” to Colorado’s rule, we “easily

conclud[ed] the rule [was] an ethical one.” Id. at 1288.

But the majority relies on a brief aside at the end of the opinion, made after we

applied our test and concluded the rule was an ethics rule, that Colorado’s rule also “does

not conflict with” a particular federal rule of criminal procedure and, “[a]ccordingly, . . .

is not inconsistent with federal law.” Id at 1288–89. That statement, however, is merely

an affirmation of the truism that it is not inconsistent with federal law to apply state ethics

rules as federal law instructs.

A natural reading of the opinion and a reasonable understanding of the word

5
Notably, this means a rule is not applicable to federal prosecutors just because a
state enacts rules of professional responsibility; the state rule must still pass our three-
prong test. In other words, the McDade Amendment does not give states carte blanche to
regulate federal prosecutors under the guise of ethical regulation.

6
“ethical” supports that position. We plainly thought what mattered was the meaning of

the word ethical, and every factor we announced goes to the essence of that word. The

Amendment speaks of “Ethical standards,” § 530B, and we generally interpret words in a

statute “as taking their ordinary, contemporary, common meaning.” Bilski v. Kappos, 561

U.S. 593, 603 (2010). And a rule governing ethics, by our own definition, is neither a

substantive nor procedural rule. Thus, the McDade Amendment suffices to ensure that

rules of truly ethical concern fit unobtrusively into the federal scheme, because it

explicitly deems such rules applicable to federal prosecutors.

And I cannot see how New Mexico’s rule is any less a “normative legal

standard[]” guiding “the conduct of an attorney,” Colo. Supreme Court II, 189 F.3d at

1285, than the identical rule we considered in Colorado Supreme Court II because it

might affect federal prosecutors in grand-jury practice. It, no less, “bar[s] conduct

recognized by consensus within the profession as inappropriate.” Id. at 1287. It deals

with the same “morals and principles” as that rule, and, like that rule, it is “directed at the

attorney herself.” Id. Because we are bound by Colorado Supreme Court II, there is no

Supremacy Clause violation here.6

6
The United States also challenges the application of New Mexico’s rule outside
the grand jury context. But as the majority explains, this challenge “is primarily form, not
substance.” Majority Op. 12. I agree with the majority that our review is confined by our
prior conclusions in Colorado Supreme Court II, Majority Op. 60, absent direction from
the Supreme Court or the en banc panel. I also note the Supreme Court has not had the
opportunity to construe whether our delineation between rules that are ethical and those
that are substantive or procedural is a correct one.

7
 The foregoing analysis of the McDade Amendment’s plain language and our

decision in Colorado Supreme Court II demonstrates the infirmity of the Supremacy

Clause argument. But understanding the problem Congress wished to fix by passing the

McDade Amendment operates to underscore the inapplicability of an additional

independent preemption analysis.

In 1989, the Department of Justice issued the “Thornburgh Memorandum,” which

concluded that “although the states have the authority to regulate the ethical conduct of

attorneys admitted to practice” in their courts, federal prosecutors may only be regulated

in that manner “if the regulation does not conflict with the federal law or with the

attorneys’ federal responsibilities.” Bruce A. Green, Whose Rules of Professional

Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be

Created?, 64 Geo. Wash. L. Rev. 460, 471 (1996) (quoting Memorandum from Dick

Thornburgh, Attorney General, U.S. Department of Justice, to All Justice Department

Litigators (June 8, 1989)). The DOJ intended to insulate federal prosecutors in at least

some circumstances from compliance with state ethics rules modeled upon ABA Model

Rule 4.2, which prohibited ex-parte attorney contacts with a represented party. N.Y. State

Bar Ass’n v. FTC, 276 F. Supp. 2d 110, 132 (D.D.C. 2003).

The memorandum received substantial criticism. See id.; In re Doe, 801 F. Supp.

478, 487 (D.N.M. 1992); see also United States v. Tapp, No. CR107-108, 2008 WL

2371422, at *6 (S.D. Ga. June 4, 2008) (noting criticism from “the ABA, the state bar

associations, the Judicial Conference of the United States, the Conference of State Chief

8
Justices, [and] the Federal Bar Association”). Nevertheless, in 1994, the DOJ

promulgated a regulation dubbed the Reno Regulation, which essentially codified the

Thornburgh Memorandum. See N.Y. State Bar Ass’n, 276 F. Supp. 2d at 132; see also

John H. Lim, The Side Effects of a Legal Ethics Panacea: Revealing a United States’s

Standing Committee’s Proposal to “Standardize” Ethics Rules in the Federal Courts as

an Attempt to Undermine the No-Contact Rule, 13 Geo. J. Legal Ethics 547, 568 (2000)

(“[T]he Reno [Regulation was] a virtual reprise of the Thornburgh Memo.”).

The Eighth Circuit invalidated portions of the Reno Regulation as beyond the

DOJ’s statutory authority, see United States ex rel. O’Keefe v. McDonnell Douglas Corp.,

132 F.3d 1252, 1257 (8th Cir. 1998), and criticism of the DOJ’s attempt to insulate itself

from state rules of professional responsibility persisted. Litigation continued on the

subject. See, e.g., Colo. Supreme Court I, 87 F.3d at 1163 (noting challenge by the

United States in 1996 to application of certain Colorado ethics rules to federal

prosecutors); Stern v. U.S. Dist. Court for Dist. of Mass., 214 F.3d 4, 9 (1st Cir. 2000)

(noting same type of challenge to application of Massachusetts ethics rules to federal

prosecutors).

Thus, in 1998, it was unclear whether or to what extent the DOJ could exempt its

attorneys from complying with a given state’s rules. Note, Federal Prosecutors, State

Ethics Regulations, and the McDade Amendment, 113 Harv. L. Rev. 2080, 2088 (2000)

(“By 1998, the war over ethics regulations had reached a stalemate.”). Congress clarified

that uncertainty with the McDade Amendment. See N.Y. State Bar Ass’n, 276 F. Supp. 2d

9
at 133 (“[I]n the face of the Justice Department’s repeated attempts to exclude its

attorneys from compliance with state bar rules, Congress adopted the [McDade

Amendment] . . . .”). The method Congress chose lacked any of the exemption-granting

language present in the controversial Thornburgh Memorandum and Reno Regulation.

And we should not take Congress’s failure to include those exemptions as reason to read

those exemptions into the plain meaning of a word—ethical—that does not naturally

encompass them. The simpler reading is that Congress was aware of the debate and came

down on the side of a blanket authorization of any rule deemed to govern attorney ethics.7

See Federal Prosecutors, State Ethics Regulations, and the McDade Amendment, supra,

at 2088 (“[U]nlike prior DOJ guidelines, [the McDade Amendment] affords no

exceptions for federal prosecutors when state ethics rules impinge on federal law

enforcement interests.”). That is the reading we adopted in Colorado Supreme Court II.8

7
It is unsurprising that Congress chose such a broadly sweeping method in light
of the long tradition of states “exercis[ing] extensive control over the professional
conduct of attorneys.” Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457
U.S. 423, 434 (1982) (noting “special importance” of the “State’s interest in the
professional conduct of attorneys involved in the administration of criminal justice”); Fla.
Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995) (noting “the standards and conduct of
state-licensed lawyers have traditionally been subject to extensive regulation by the
States”).
8
See Colo. Supreme Court II, 189 F.3d at 1284 (outlining the operative question
as “whether Rule 3.8 violates the Supremacy Clause now turns on whether the rule is a
rule of professional ethics clearly covered by the McDade Act, or a substantive or
procedural rule that is inconsistent with federal law” (emphasis added)). Other
commentators agree. Sara S. Beale, et al., Grand Jury Law & Prac. § 6:24 (2d ed.)
(“[T]he question whether Rule 3.8(e) may be applied to federal prosecutors may turn on
whether it is treated as a procedural rule or an ethical rule. . . . The Tenth Circuit held that
the modified version of Rule 3.8(e) adopted in Colorado is an ethical rule rather than a

10
 Of course, Congress did not intend to allow states to regulate government

attorneys in a manner inconsistent with federal law. But after the McDade Amendment,

regulation of federal prosecutors via rules that are truly ethical in nature is expressly

authorized by, and therefore consistent with, the dictates of federal law. It would be

perverse to say states act in a manner inconsistent with federal law when they act as

federal law instructs. Whether the Amendment’s authorization of such regulation in these

circumstances is a wise policy choice is not a question this court can or should answer.

B. Grand-Jury Practice and Procedure as Preemptive

In proceeding with its preemption analysis, the majority rests its preemption

finding on the role grand-jury practice and procedure plays in the federal legal

system—particularly, that New Mexico’s rule imposes more onerous conditions on

federal prosecutors issuing subpoenas to third-party lawyers in a grand jury context than

required by the Supreme Court in United States v. R. Enterprises, Inc., 498 U.S. 292

(1991). Majority Op. 61–71. So to adhere to the Supremacy Clause’s dictate that only

three named sources of federal law enjoy supremacy (“This Constitution,” “the Laws of

the United States,” and “all Treaties,” Const. art. VI, cl. 2) the majority reasons the grand-

procedural rule and therefore was applicable to federal prosecutors under the McDade
Act.” (emphasis added) (footnotes omitted)); 2 Charles Alan Wright, et al., Fed. Prac. &
Proc. Crim. § 276 (4th ed.) (citing Colorado Supreme Court II, 189 F.3d at 1288 and
stating “if such local rule is characterized as an ethics provision rather than a substantive
or procedural rule, it may by imposed upon federal prosecutors consistent with the
Supremacy Clause.” (emphasis added)).

11
jury subpoena standard must be traced to the constitutional significance of grand juries as

recognized in the Fifth Amendment’s Grand Jury Clause.9

As an initial matter, I note the peculiar circumstances that this case presents. Our

conflict preemption analysis requires us to compare a state statute to its federal

counterpart and evaluate whether (1) “compliance with both federal and state regulations

is a physical impossibility,” or (2) “the challenged state law stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.” Arizona

v. United States, 132 S. Ct. 2492, 2501 (2012) (emphasis added) (citations and internal

quotation marks omitted). But as the majority presents it here, we are deciding whether

New Mexico’s rule—which, as a rule of ethics, Congress has authorized its application by

enacting the McDade Amendment—stands as an obstacle to the accomplishment and

execution of the federal grand-jury subpoena standard as announced by judicial decision.

Majority Op. 66–67 (discussing grand-jury subpoena standard announced in R.

Enterprises). Thus, the federal interest here is one of judicial making, and Congress has

seen fit to expressly authorize the conflict.

The majority relies heavily on the Grand Jury Clause to ground its preemption

9
The majority also concludes New Mexico’s rule stands as an obstacle to the
important investigative function of grand juries. But New Mexico’s rule (as a rule of
ethics) is not directed at the grand jury as an institution. It is directed only at prosecutors.
Simply because the prevailing practice is for prosecutors to issue subpoenas on behalf of
grand juries, Sara S. Beale, et al., Grand Jury Law & Prac. § 6:2 (2d ed.), is insufficient to
conclude the rule violates the Supremacy Clause as being inconsistent with the
protections of the Grand Jury Clause.

12
analysis in some constitutional text. Although there was no mention of grand juries in the

original Constitution, the Fifth Amendment reads, “No person shall be held to answer for

a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand

Jury.” This guarantee “confer[s] a right not to be tried (in the pertinent sense) when there

is no grand jury indictment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 802

(1989); see also Ex parte Wilson, 114 U.S. 417, 426 (1885) (“The purpose of the [Grand

Jury Clause] was to limit the powers of the legislature, as well as of the prosecuting

officers, of the United States. . . . [T]he constitution protect[s] every one from being

prosecuted, without the intervention of a grand jury, for any crime which is subject by

law to an infamous punishment.”). The Supreme Court, however, has limited the Grand

Jury Clause’s reach by, for one, not compelling its application to the states through the

Due Process Clause. See generally Hurtado v. California, 110 U.S. 516 (1884); see also

Jerold H. Israel, Free-Standing Due Process and Criminal Procedure: The Supreme

Court’s Search for Interpretive Guidelines, 45 St. Louis U. L.J. 303, 385 (2001) (“Of the

specific guarantees aimed at the criminal justice process, only the Fifth Amendment

requirement of prosecution by indictment or presentment quite clearly will not be

incorporated [into the Fourteenth Amendment’s due process guarantees].”).

The majority’s conclusion that the standard adopted in R. Enterprises is mandated

by the Grand Jury Clause (thus, taking on constitutional supremacy) reads too much into

the Supreme Court’s decision. The Court clearly defined its task: “[T]he focus of our

inquiry is the limit imposed on a grand jury by Federal Rule of Criminal Procedure

13
17(c).” R. Enters., 498 U.S. at 299 (“‘[Rule 17(c)] provides that the court on motion

made promptly may quash or modify the subpoena if compliance would be unreasonable

or oppressive.’”). Because “reasonable[ness] depends on the context,” id., “[t]o the

extent that Rule 17(c) imposes some reasonableness limitation on grand jury subpoenas . .

. [the Court’s] task is to define it.” Id. at 300. The Court then rejected the Nixon

standard, applying to trial subpoenas, and adopted the following standard: “[W]here . . . a

subpoena is challenged on relevancy grounds, the motion to quash must be denied unless

the district court determines that there is no reasonable possibility that the category of

materials the Government seeks will produce information relevant to the general subject

of the grand jury’s investigation.” Id. at 301. That this standard is of constitutional

significance—as opposed to federal grand juries generally—goes too far.10

Having concluded the invocation of the Grand Jury Clause is illusory, I return to

the majority’s preemption finding. Although the Supreme Court has approved of the

doctrine of obstacle preemption (or frustration-of-purpose preemption), see Crosby v.

10
And it is generally understood that Congress controls the Supreme Court’s
rulemaking authority to promulgate rules of federal criminal procedure. See 28 U.S.C. §
2072(a). Indeed, Congress has regulated grand-jury practice and procedure through
amendments to the federal rules. From 2001 to 2004, Congress expanded the disclosure
provisions in Rule 6(e) three times. See USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat.
272, 279–80 (2001); Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135,
2256–57 (2002); Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-
458, 118 Stat. 3638, 3760 (2004). Of course, this discussion only has significance if New
Mexico’s rule is deemed to be “procedural” in form—that is, it is a rule of procedure
infringing upon the federal rules. But, as the majority concedes, that is not the case here.
Following Colorado Supreme Court II’s framework, New Mexico’s rule is clearly one
governing ethics.

14
Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000), the doctrine has been heavily

criticized, see generally Caleb Nelson, Preemption, 86 Va. L. Rev. 225 (2000), and the

Court has been sensitive to its over application. The Court has directed that in obstacle

preemption cases, “There is no federal pre-emption in vacuo, without a constitutional text

or a federal statute to assert it.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum

Corp., 485 U.S. 495, 503 (1988).11

Notwithstanding the Court’s sensitivity and criticism to the doctrine, see also

Sprietsma v. Mercury Marine, 537 U.S. 51, 123 (2002), the Court has continued to apply

it to invalidate state laws that stand as obstacles to the purpose of a particular federal

statutory scheme, see Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal

Courts and The Federal System 648 (6th ed. 2009) (citing Daniel J. Meltzer, The Supreme

Court’s Judicial Passivity, 2002 Sup. Ct. Rev. 343 (2002)). Thus, in such cases, the

Court generally departs from traditional canons of statutory interpretation by looking past

the plain language of the statute and focusing on legislative intent to divine the full

11
Justice Thomas, in no less than four recent opinions, has questioned the
constitutional lineage of the doctrine. See Wyeth v. Levine, 555 U.S. 555, 604 (2009)
(Thomas, J., concurring in judgment); Arizona, 132 S. Ct. at 2524 (Thomas, J., concurring
in part and dissenting in part); Williamson v. Mazda Motor of Am., 562 U.S. 323, 340
(2011) (Thomas, J., concurring in judgment); Haywood v. Drown, 556 U.S. 729 767
(2009) (Thomas, J., dissenting). In Justice Thomas’s words, obstacle preemption “is
inconsistent with the Constitution because it invites courts to engage in freewheeling
speculation about congressional purpose that roams well beyond statutory text. . . . Under
the Supremacy Clause, pre-emptive effect is to be given to congressionally enacted laws,
not to judicially divined legislative purposes.” Arizona, 132 S. Ct. at 2524 (citation
omitted).

15
purpose and objectives of Congress. See Cal. Div. of Labor Standards Enf’t v.

Dillingham Constr., N.A., 519 U.S. 316, 335–36 (1997) (Scalia, J., concurring); Geier v.

Am. Honda Motor Co., 529 U.S. 861, 868, 870 (2000) (quoting United States v. Locke,

529 U.S. 89, 106 (2000)). But still, the purposes and objectives are those of Congress,

not the courts. Cf. Atherton v. FDIC, 519 U.S. 213, 218 (1997) (“‘Whether latent federal

power should be exercised to displace state law is primarily a decision for Congress,’ not

the federal courts.” (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966)).

With that, I fully recognize the grand jury’s special position. See, e.g., R. Enters.,

498 U.S. at 297 (noting grand jury’s “unique role in our criminal justice system”). But

the grand jury’s unique role does not mean federal grand juries are immune from

congressional regulation absent some constitutional directive stating otherwise. Majority

Op. 68 (citing In re Grand Jury, 111 F.3d 1066, 1073 (3d Cir. 1997) (“Just as grand juries

must operate within the confines of the Constitution, so too must they comply with the

limitations imposed on them by Congress (as long as those limitations are not

unconstitutional).”). Regulation of grand juries via a federal statute, of course, is

precisely that. The majority does not hold that Congress lacks the power to say federal

prosecutors in the grand jury context are bound by standards mirroring New Mexico’s.

That it did so more indirectly—but still expressly, by a general reference to ethics

rules—makes no difference. In short, the question of whether the McDade Amendment

authorizes a rule’s application as ethical in no way depends on whether that rule’s

application to federal prosecutors may have the effect of changing their conduct. To the

16
contrary, Colorado Supreme Court II and the statute’s plain meaning make clear that any

obstacle created by state law here exists pursuant to Congress’s express intent.12

II. Conclusion

In sum, without some indication that Rule 16-308(E) stands as an obstacle to the

accomplishment and execution of Congress’s purposes and objectives, I respectfully

dissent from the majority’s determination that the rule conflicts with federal interests and

is thus preempted.

12
I note that one judge has concluded in a separate opinion that an Illinois rule
identical to the one here would apply to federal prosecutors by virtue of the McDade
Amendment, citing Colorado Supreme Court II for support. See United States v.
Williams, 698 F.3d 374, 391–92 (7th Cir. 2012) (Hamilton, J., concurring in part and
dissenting in part). See also United States ex rel. U.S. Attorneys for the E. & W. Dists. of
Ky. v. Ky. Bar Ass’n, 439 S.W.3d 136, 146 (Ky. 2014) (“In our view, E–435 survives
scrutiny under [the McDade Amendment] and the Supremacy Clause because it is simply
an ethical rule and does not affect federal substantive, procedural, or evidentiary law.”
(footnote omitted)).

17