PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

CONSUMER DATA INDUSTRY 

ASSOCIATION, 

Plaintiff-Appellant, 

v. 

GARY K. KING, in his official capacity as 

Attorney General for the State of New 

Mexico, 

Defendant-Appellee. 

No. 11-2085 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:10-CV-00458-MCA-WDS) 

James Chareq of Hudson Cook LLP, Washington, DC (Charles J. Vigil of Rodey, 

Dickason, Sloan, Akin & Robb, Albuquerque, New Mexico, with him on the brief) for 

Plaintiff-Appellant. 

Philomena Hausler (Luis E. Robles on the brief) of Robles, Rael & Anaya, P.C., 

Albuquerque, New Mexico, for Defendant-Appellee. 

Before KELLY, MURPHY, and O'BRIEN, Circuit Judges. 

O’BRIEN, Circuit Judge. 

I. INTRODUCTION 

New Mexico enacted a law making it easier for victims of identity theft to 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 7, 2012

Elisabeth A. Shumaker 

Clerk of Court
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expunge negative information from their credit reports. Before the law took effect, the 

Consumer Data Industry Association (“CDIA”), a trade group comprised of hundreds of 

consumer-data companies, brought a pre-enforcement challenge contending the law is 

preempted by the federal Fair Credit Reporting Act (“FCRA”). The CDIA sought 

declaratory and injunctive relief against the New Mexico Attorney General, who, along 

with aggrieved consumers, has authority to enforce the law through civil suit. 

Concluding equitable relief against the Attorney General would not adequately redress 

CDIA’s injuries, the district court dismissed the case as non-justiciable. We vacate the 

district court’s judgment and remand for further proceedings. 

II. BACKGROUND 

Congress enacted the FCRA in 1970 with the aim of protecting the banking 

system from inaccuracy and abuse in credit reporting. The FCRA creates a uniform set 

of rules governing the content of consumer reports and the responsibilities of those who 

maintain them. 15 U.S.C. § 1681 et seq. Together with the Fair Debt Collection 

Practices Act, the FCRA is the source of most consumer credit rights in the United States. 

Congress amended the FCRA in 2003 to add safeguards for victims of identity 

theft. See Fair and Accurate Credit Transactions Act, Pub. L. No. 108-159, 117 Stat. 

1952 (2003). Under the amendments, consumer reporting agencies (“CRAs”) must, upon 

a good-faith request from a consumer, include a fraud alert in the consumer’s file limiting 

the extent to which creditors can extend credit to an applicant using the consumer’s name 

without first verifying the applicant’s identity. 15 U.S.C. § 1681c-1(a) & (h). They must 
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also block the reporting of any information identified by the consumer as resulting from 

identify theft. Id. § 1681c-2. The block must generally take effect upon proof of the 

consumer’s identity and receipt of an identity-theft report, but, as a concession to the 

consumer-data industry, Congress allowed CRAs to override the block if they reasonably 

determine it was requested in error or on the basis of a misrepresentation. Id. § 1681c2(c). 

The FCRA leaves no room for overlapping state regulations. Congress set out to 

create uniform, national standards in the area of credit reporting, and the FCRA expressly 

preempts any state requirement or prohibition relating to, among other things, matters 

regulated under § 1681i (concerning the time by which CRAs must take certain actions) 

and § 1681c (concerning the content of consumer reports and a CRA’s duties in 

addressing reports of identity theft). Id. §§ 1681t(b)(1)(B)&(E), 1681t(b)(5)(C). 

In 2010, the New Mexico legislature enacted its own identity-theft requirements 

for CRAs operating in state. See Fair Credit Reporting and Identity Security Act 

(“FCRISA”), N.M. STAT. ANN. § 56-3A-1. The law contains several apparent conflicts 

with the FCRA, but most notable for the purposes of this appeal are sections 56-3A3.1(D) & (E), which govern CRAs’ required response when presented with requests to 

remove information resulting from identity theft. Federal law permits a CRA to decline 

such a request if it reasonably determines the request to be fraudulent or erroneous, 15 

U.S.C. § 1681c-2(c). New Mexico law, on the other hand, requires a CRA to oblige the 

request until a court or the affected consumer says otherwise. N.M. STAT. ANN. § 56-3A-
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3.1(D) & (E). New Mexico’s block-first-ask-later rule is therefore in tension with one of 

the key legislative compromises of the FCRA—the requirement that CRAs be given an 

opportunity to investigate suspicious block requests before acceding to them. 

If a CRA violates the FCRISA, both the affected consumer and the Attorney 

General have the right to bring a civil action against the CRA. Id. § 56-3A-5. Relief can 

take the form of an injunction to prevent further violations, actual damages sustained by 

the consumer, and civil penalties. Id. 

CDIA brought this suit in federal court for declaratory and injunctive relief. It 

contends certain provisions of the FCRISA are preempted by the FCRA and must give 

way to federal law under the Supremacy Clause. Asserting associational standing on 

behalf of some two-hundred-plus members, CDIA contends the preempted law places 

consumer data companies in an unenviable double-bind: submit to the preempted law and 

endure the costs of modifying otherwise uniform procedures, or violate the law and face 

the likelihood of lawsuits and penalties. CDIA obtained a temporary restraining order 

(TRO) enjoining New Mexico from enforcing sections 56-3A-3.1(D)&(E). The TRO had 

a nine-month shelf life during which CRAs had no obligation to comply with the 

challenged provisions or defend suits alleging violations.

Several months later, following briefing from both sides, the district court 

dissolved the TRO and dismissed the case, asserting the CDIA had failed to prove 

redressability, an element of constitutional standing. It reasoned that enjoining the 

Attorney General from enforcing the New Mexico law would redress only part of 
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CDIA’s injury; CDIA members would still be exposed to consumer-driven suits, and 

therefore would still face the dilemma of either paying the costs of complying with the 

New Mexico law or exposing themselves to liability for violating it. Relying on our 

decision in Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005), the court 

concluded that neither an injunction nor a declaratory judgment against the Attorney 

General would “materially reduce the coercive effect of” the FCRISA, because in either 

case consumers could still bring private lawsuits in state court. 

III. DISCUSSION 

A. Whether CDIA has standing to seek injunctive relief against the Attorney General 

There are three components to Article III standing—injury, causality, and 

redressability—and each must be established before a federal court can review the merits 

of a case. Summers v. Earth Island Inst., 555 U.S. 488, 492-93 (2009). Although CDIA 

had not yet been injured when it filed suit, the existence of a statute implies the threat of 

its enforcement, and the association was entitled to bring a pre-enforcement challenge 

based on the probability of future injury. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 

96 n.14 (1983); Abbott Labs. v. Gardner, 387 U.S. 136, 153-54 (1967). 

The primary issue on appeal is whether the injury identified in the complaint can 

be redressed by the relief sought against the Attorney General. It is CDIA’s contention 

that it can, and that the district court’s conclusion to the contrary was based on an unduly 

restrictive conception of redressability. In CDIA’s view, if a court can provide the 

requested relief, thereby improving upon the status quo ante, the claim is justiciable, even 
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if it does not completely redress the claimed injury. 

Like the other elements of standing, redressability is meant to foster the “concrete 

adverseness which sharpens the presentation of issues upon which the court so largely 

depends for illumination of difficult constitutional questions.” Duke Power Co. v. 

Carolina Envtl. Study Group, 438 U.S. 59, 72 (1978). “[T]he relevant inquiry is 

whether . . . the plaintiff has shown an injury to himself that is likely to be redressed by a 

favorable decision.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976). The 

Supreme Court has rejected interpretations of the rule that demand complete 

redressability, stressing that a plaintiff need show only that a favorable decision would 

redress “an injury,” not “every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 

(1982). Hence Massachusetts v. EPA, 549 U.S. 497, 526 (2007), where the Supreme 

Court concluded that Massachusetts had standing to challenge the EPA’s refusal to 

regulate greenhouse-gas emissions despite the attenuated causal chain linking agency 

non-action to potential environmental damage. Redressability was satisfied, the Court 

explained, because the risk of harm “would be reduced to some extent if petitioners 

received the relief they seek.” Id. (emphasis added). 

Echoing this principle, in Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 

742, 757 (10th Cir. 2010), we decided that a group of business federations could seek an 

injunction restraining the Oklahoma Attorney General from enforcing a law requiring 

public employers to condition eligibility for state contracts on the contractor’s use of a 

specific system for verifying the immigration status of its workers. Id. at 750. Oklahoma 
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had argued that a favorable decision against the Attorney General would not materially 

redress the plaintiffs’ primary injury—the choice between paying the costs of complying 

with the law or being deemed ineligible for state contracts. As the State saw it, that 

injury had nothing to do with the Attorney General and everything to do with public 

employers who refused to contract with non-complying businesses. Id. 

Still, this Court was satisfied that an injunction against the Attorney General 

would alleviate the injury to some extent. Id. at 758. Since the Attorney General often 

prepared contracts at the request of public employers, an injunction would preclude him 

from adding clauses requiring the use of the designated verification system. Id. An 

injunction would also prevent the Attorney General from filing or defending lawsuits on 

the basis of the challenged provision. Id. These were discrete injuries redressable by the 

requested relief, and it mattered not that public employers could still refuse to enter into 

contracts with non-complying businesses. “An opposite holding,” the court explained, 

“would contravene Supreme Court precedent so as to require complete redressability.” 

Id. at n. 16. 

Against this backdrop, it seems uncontroversial that restraining the Attorney 

General from enforcing the allegedly preempted provisions of the FCRISA would go a 

long way toward providing relief for CDIA’s members. Indeed, even if CDIA’s 

members would not be out of the woods, a favorable decision would relieve their 

problem “to some extent,” which is all the law requires. See Massachusetts v. EPA, 549 

U.S. at 526. The district court, however, read this court’s decision in Nova Health as 
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compelling a different conclusion, and CDIA’s appeal hinges on whether the district 

court’s reading was proper. 

The statute at issue in Nova Health made abortion providers liable for medical 

costs resulting from abortions performed on minor patients whose parents were not 

notified prior to surgery. 416 F.3d at 1152-53. Among those authorized to sue for costs 

were the minor patients and any medical facility incurring costs for treating them. Id. 

Nova Health Services, an abortion provider, sued the administrators of several public 

health institutions, asking the district court to declare the statute unconstitutional and to 

enjoin the defendants from filing suit. Id. Although the named defendants were public 

officials, none had sued or threatened to sue Nova, nor had any possessed enforcement 

authority beyond what the statute granted to any medical facility incurring costs for 

treating minors with abortion-related complications. Id. at 1153-54, 1157. 

Not surprisingly, the primary question on appeal was whether Nova could fairly 

trace its injury to the conduct of the named defendants. Id. at 1156. In concluding that it 

could not, we explained that “[e]ven if these defendants were enjoined from seeking 

damages against Nova. . ., there would still be a multitude of other prospective litigants 

who could potentially sue Nova under that act.” Id. at 1157. Although public officials by 

title, the defendants were in the same position as any private litigant who could bring a 

claim under the challenged provision. Id. The very power to litigate, we explained, was 

not sufficient to support standing: “Article III does not allow a plaintiff who wishes to 

challenge state legislation to do so simply by naming as a defendant anyone who, under 
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appropriate circumstances, might conceivably have an occasion to file a suit . . . under the 

relevant state law at some future date.” Id. at 1157-58. 

Here, in concluding CDIA lacked standing to sue, the district court thought 

CDIA’s pre-enforcement challenge suffered from the same defect as the one in Nova 

Health: it sought to restrain one party from enforcing the challenged statute where there 

was a multitude of litigants with identical enforcement power outside the scope of the 

injunction. Even with the Attorney General out of the picture, the district court reasoned, 

aggrieved consumers would still have the right to sue, and CDIA’s members would still 

be left to choose between litigation and the costs of compliance. “An injunction that 

merely prohibits [the Attorney General] from enforcing the FCRISA, while leaving every 

affected consumer free to pursue a private lawsuit,” the court stated, “appears unlikely to 

eliminate the dilemma faced by CDIA’s members.” (D. Ct. Order at 6). 

The district court stretched Nova Health beyond its elastic limits. Nova Health is 

a fact-bound decision with little bearing on the merits of this case. It sheds no light on 

the doctrine of redressability beyond its narrow holding—a party lacks standing to seek 

an injunction against a nominally public defendant who has not threatened suit and who 

cannot be distinguished from the countless private litigants with identical enforcement 

powers. That holding does not apply here because the Attorney General does have 

special enforcement authority and can be distinguished from the garden-variety private 
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litigant.1

 The chief distinctions are obvious: The Attorney General is the state’s most 

powerful litigant and, in this case, the only one authorized to sue on behalf of New 

Mexico. His office has the resources to outlast private consumers and the manpower to 

prosecute dozens of cases at a time. More importantly, his right to sue is broader than the 

consumer’s, and not only in the sense that he can sue on their behalf or join in actions 

arising under the FCRISA. Unlike consumers, the Attorney General can sue without 

regard to whether the violation caused injury—an entire category of cases in his 

exclusive domain.2

 See N.M. Stat. § 56-3A-5. 

The State contends Nova Health ought to be applied beyond its facts, to any case 

 

1

 The threat of injury may be negated by the government defendant’s renouncing 

any intention to enforce the challenged law. See Winsness v. Yocom, 433 F.3d 727, 729, 

732 (10th Cir. 2006) (a political candidate who had defaced state and federal flags had no 

standing to challenge Utah flag-abuse statute where district attorney stated he had no 

intention of prosecuting candidate under the statute); D.L.S. v. Utah, 374 F.3d 971, 975 

(10th Cir. 2004) (a Utah resident who had engaged in sodomy lacked standing to 

challenge sodomy law in light of the government’s assurances of non-prosecution). That 

has not happened here.

2

 A favorable decision against the Attorney General would probably have 

preclusive effect in New Mexico state courts. Under New Mexico law, issue preclusion 

bars re-litigation of the same issue if “(1) the party to be estopped was a party to the prior 

proceeding, (2) the cause of action in the case presently before the court is different from 

the cause of action in the prior adjudication, (3) the issue was actually litigated in the 

prior adjudication, and (4) the issue was necessarily determined in the prior litigation.” 

Ideal v. Burlington Res. Oil & Gas Co. LP, 233 P.3d 362, 365-66 (N.M. 2010). 

Assuming CDIA prevails in federal court on its preemption claim (an issue actually 

litigated and necessarily determined), issue preclusion would seemingly require a New 

Mexico state court to dismiss any subsequent enforcement actions brought by the 

Attorney General (the same party to the prior proceeding with a different cause of 

action). 
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where the relief sought does not completely redress a discrete injury. But Nova Health 

cannot bear the weight of such a broad interpretation, and even if it could, subsequent 

panels of this Court have not construed the decision so broadly. See, e.g., Edmondson, 

594 F.3d at 773-74 (Hartz, J., concurring and dissenting) (reading Nova Health as stating 

the basic proposition that potential for relief must rise above speculative level); Habecker 

v. Town of Estes Park, Colo., 518 F.3d 1217, 1225 (10th Cir. 2008) (same).

The most telling clues about the limited reach of Nova Health are found in the 

decision itself. To illustrate the difference between a nominally public defendant and a 

proper defendant—that is, between a public official who stands in the same position as a 

private litigant and a public official who possesses special enforcement authority—the 

Nova Health court cited favorably to suits against state defendants with special 

enforcement powers. See Corporate Health Ins., Inc. v. Tex. Dep’t of Ins., 215 F.3d 526, 

532 (5th Cir. 2000) (abrogated on other grounds); Mobil Oil Corp. v. Attorney Gen. of 

Va., 940 F.2d 73, 74-75, 76 n.2 (4th Cir. 1991). Yet in both Corporate Health and Mobil 

Oil, the state defendants shared enforcement authority with private litigants, with the 

result that favorable decisions against the state defendants could only partially relieve the 

plaintiff’s injury, the threat of private suits still extant. In other words, in offering 

examples of redressable lawsuits, the Nova Health court cites two decisions whose facts 

were analogous to those here. Had the Nova Health court intended to state the novel 

proposition that the injury must be completely redressable by the requested relief, it 

presumably would have relied on cases where the suit could completely redress the 
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injury. 

There are also several decades of Supreme Court precedent counseling against a 

broader reading of Nova Health. Under these precedents, redressability is satisfied when 

a favorable decision relieves an injury, not every injury. See, e.g., Massachusetts v. EPA, 

549 U.S. at 526; Larson, 456 U.S. at 243 n. 15. The State tries to avoid this line of 

precedent by adding a gloss of its own: A favorable decision, the State argues, need not 

redress every injury so long as the injuries it does redress are redressed completely. 

Setting to one side the difficulty in applying such a rule (is the threat of multiple lawsuits 

a single discrete injury or a number of separate injuries?), the State cites no authority for 

this theory, and neglects to account for Massachusetts v. EPA, where the Court adopted 

the contrary conclusion—standing is proper where a favorable decision would relieve 

“some extent” of an injury. 549 U.S. at 526. Indeed, if the law required that the 

requested relief afford complete redress, the Supreme Court would not have allowed 

Massachusetts to proceed against the EPA, as there was no guarantee a favorable decision 

would mitigate future environmental damage, much less redress it completely. Similarly, 

we would have dismissed the suit against the Attorney General in Edmondson, where the 

immediate and primary threat to the plaintiffs came from public employers, not the 

Attorney General. See 594 F.3d at 757. 

To recap, federal courts have consistently found a case or controversy in suits 

between state officials charged with enforcing a law and private parties potentially 

subject to enforcement. Doe v. Bolton, 410 U.S. 179, 188 (1973). So long as the plaintiff 
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faces a credible threat of enforcement, redressability is generally not an obstacle, see 

Edmondson, 594 F.3d at 757, and our decision in Nova Health does not carve out an 

exception in cases where the state defendant shares enforcement power with private 

litigants. CDIA therefore had standing to sue the Attorney General for injunctive relief. 

B. Whether CDIA has standing to seek declaratory relief against the Attorney General 

The foregoing analysis applies with equal force to the question whether CDIA’s 

request for a declaratory judgment presented a justiciable case or controversy. The State 

contends a declaratory judgment against the Attorney General would not prevent private 

litigants from suing CDIA’s members for violations of FCRISA, but if injunctive relief 

against the Attorney General meets the redressability requirement, the same must be true 

of declaratory relief. See Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 264 (1933) 

(holding that a controversy justiciable if presented in a suit for injunction is justiciable in 

a suit for declaratory relief). 

To satisfy the ‘case or controversy’ requirement, a request for declaratory relief 

must settle “some dispute which affects the behavior of the defendant toward the 

plaintiff.” Hewitt v. Helms, 482 U.S. 755, 761 (1987). Here, CDIA’s members are faced 

with the imminent threat of the FCRISA’s enforcement. A declaration that the 

challenged provisions are preempted by federal law would redress the threat of 

enforcement in two respects: directly, because once the declaration has issued, the court 

could issue follow-up relief to enjoin enforcement of the preempted provisions should the 

Attorney General decide to sue in state court; and indirectly, because the declaratory 
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judgment would have binding collateral effect in the New Mexico state courts, thereby 

frustrating a subsequent attempt by the Attorney General to enforce the FCRISA.3

 See 

D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004). 

C. Other Justiciability Arguments 

The State spends several pages of its statement of facts recounting justiciability 

arguments raised in its motion to dismiss under Fed. R. Civ. P. 12(b)(1) but not addressed 

in the district court’s decision dismissing the case. Without further elaboration, the State 

incorporates these issues by reference in its argument section, contending they are 

implicitly at issue in any appeal raising a jurisdictional challenge. 

We need not dwell on these issues. In the district court, the State offered evidence 

it describes as casting doubt on CDIA’s standing. The evidence relates to several 

subsections of the FCRISA the State maintains are in harmony with federal law. It urges 

us to review the evidence and make the appropriate findings of jurisdictional fact. But 

that job seems better suited for the district judge, who has “wide discretion to allow 

affidavits, other documents, and limited evidentiary hearing to resolve disputed 

jurisdictional facts.” See Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th 

Cir. 2001) (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)). Indeed, 

 

3

A favorable decision could also benefit CDIA in FCRISA suits brought by 

consumers. Although a lower federal court’s interpretation of federal law is not binding 

in state court, it is highly persuasive, and a federal decision that the FCRA preempts the 

challenged provisions of the FCRISA would carry significant weight in New Mexico 

state courts. See State v. Cardenas-Alvarez, 25 P.3d 225, 249 (N.M. 2001) (Serna, J., 

concurring); Inv. Co. of the Sw. v. Reese, 875 P.2d 1086, 1090 (N.M. 1994). 
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the challenged jurisdictional facts are so narrow that even if we decided them in the 

State’s favor, remand would still be required because CDIA’s standing would have been 

only mitigated, not eliminated. For instance, the State questions whether there is conflict 

between New Mexico and federal law with regard to issues like deadlines for responding 

to consumer requests or the type of proof required to trigger information removal, but 

omits mention of more notable conflicts—namely, the absence of a provision in the 

FCRISA giving CRAs the ability to deny an information block in the event they conclude 

it was improvidently granted. 

Finally, the State makes cursory mention of a ripeness challenge, contending 

CDIA’s suit is premature. But ripeness is seldom an obstacle to a pre-enforcement 

challenge in this posture, where the plaintiff faces a “credible threat” of enforcement, and 

“should not be required to await and undergo [enforcement] as the sole means of seeking 

relief.” See Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) 

(quotation omitted); Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734, 741-43 

(10th Cir. 1982). 

For the foregoing reasons, we VACATE the judgment of the district court and 

REMAND the case for further proceedings consistent with this opinion.