UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ INFOCISION MANAGEMENT CORPORATION, Plaintiff - Appellant,

v. JENA GRISWOLD, in her official capacity as Colorado Secretary of State, Defendant - Appellee.

------------------------------ THE NONPROFIT ALLIANCE FOUNDATION; THE COLORADO NONPROFIT ASSOCIATION, Amici Curiae. No. 22-1264 (D.C. No. 1:20-CV -00357-WJM-KLM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , MATHESON , and McHUGH , Circuit Judges.

________________ _________________ InfoCision Management Corporati on (“InfoCision”) challenges the constitutionality of the Colorado Charitable So licitations Act, Colo. Rev. Stat. § 6-16-

* This order and judgment is not binding precedent, exce pt under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Pr ocedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 9, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 12 101, et seq . (the “Act”). In 2019, pursuant to the challenged provisions of the Act, Colorado refused to renew InfoCision’s regi stration due to a 2018 settlement InfoCision had entered with the Federal Trade Commission (“FTC”) that included a permanent injunction against deceptive practices in charitable solicitations. After exhausting administrative appeals, InfoCi sion sued the Colorado Secretar y of State, Jena Griswold (the “Secretary”), in the District of Colora do, arguing that the Act violated the First Amendment on its face and as applied. Th e parties filed cross motions for summary judgment. The district court denied InfoCi sion’s motion and granted the Secretary’s. InfoCision appealed. On appeal, the Secretary argued the case is moot because In foCision had been permitted to register in Colorado and the ch allenged restriction no longer applies to InfoCision. After oral argument, we remanded this matter to the district court for the limited purposes of developing the record to the extent necessary to address our mootness-based jurisdictional concerns and deci ding, in the first in stance, whether this matter is moot. The district court c oncluded this matter is now moot. We issued an order for supplemental br iefing from both parties addressing what issues, if any, remain before us and, if any such issues remain , how they should be resolved. InfoCision argues in its supplemental briefing that the district court erroneously found this case is moot. In the alternative, InfoCision argues that if this case is moot, we should vacate both the district court’s orders and the Secretary’s 2019 refusal to renew InfoCision’s registration in Co lorado. The Secretary responds that the district court correctly held this matter is now mo ot and vacatur is inappropriate. Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 23 We hold this case is moot and vacate th e district court’s orders but decline to vacate the Secretary’s denial of InfoCision’s registration.
I. BACKGROUND

A. Factual History The Colorado Charitable Solicitations Act prohibits paid solic itation by any person who “has been enjoined within the immediat ely preceding five years under the laws of this or any other state or of the United Stat es from engaging in deceptive conduct relating to charitable solicitations.” Colo. Rev. Stat. § 6-16-104.6(10). The Act further authorizes the Secretary to “deny, suspend, or revoke th e registration of any ch aritable organization, professional fund-raising consultant, or paid solicitor” that, among other things, “acts or fails to act in such a manner as otherwise to violate any provision of this article.” Id. § 6- 16-111(6)(a). InfoCision has been a “pai d solicitor” as defined under the Act for seventeen
years. 1 In January 2018, the FTC filed a complaint against In foCision in the Northern District of Ohio alleging that, in some of its telemarketing campaigns, InfoCision’s telemarketers falsely or misleadingly told c onsumers the purpose of the calls was not to ask for donations. The parties settled and th e Northern District of Ohio entered a “Stipulated Order for Permanent Injunction a nd Civil Penalty Judgment” (the “stipulated

1 The Act defines a “paid solicitor” as “a person who, for monetary compensation, performs any service in whic h contributions will be solic ited in this state by such compensated person or by any compensated person he or she employs, procures, or engages to solicit for contributions.” Colo. Rev. Stat. § 6-16-103(7). Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 34 injunction”). App. Vol. II at 18–29. Pursuant to the settlement ag reement between the FTC and InfoCision, Info Cision agreed to be permanently restrained a nd enjoined from engaging in, causing others to engage in, or assisting and facilitating others in engaging in, any of the following practices: A. Making a false or misleading statem ent to induce any person to pay for goods or services or to in duce a Charitable Contribution; B. In outbound telephone calls to in duce a Charitable Contribution, from failing to disclose truthfully, promp tly, and in a clear and conspicuous manner to the person receiving the call, the following information: 1. The identity of the charitable orga nization on behalf of which the request is being made; 2. That the purpose of the ca ll is to solicit a Charitable Contribution; and 3. Whether the requested Charitable Contribution is a donation, a gift of money, or any other thing of value; and C. Violating the Telemarketing Sales Rule, 16 C.F.R. Part 310 . . . . Id. at 21–22. In mid-2018, InfoCision applie d for the annual renewal of its registration to solicit charitable contributions in Colorado. In compliance with Colo. Rev. Stat. § 6-16- 104.6(3)(g), InfoCision disclo sed the settlement with the FT C. The Secretary denied the application because the settle ment agreement had “enjoine d” InfoCision “within the immediately preceding five years . . . from engaging in deceptive conduct relating to charitable solicitations” and thus barred regi stration under Colo. Rev. Stat. § 6-16- 104.6(10). InfoCision appealed the Secretary’s denial of its 2018 renewal application, arguing that the denial constituted an “unconstitutional restraint on pr otected speech” and violated Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 45 its “First and Fourteenth Amendment rights.” Id. at 3. InfoCision further argued that “the Secretary failed to issue her denial within the statutorily required ten-day period.” Id. The Secretary then retracted her denial, stating that, “upon further review,” the Secretary “ha[d] determined that” Info Cision’s registration “was deemed approved on August 9,
2018.” Id. Because the Secretary’s office had mi ssed the ten-day statutory deadline, it determined it must “deem the renewal accepted as filed.” Id. at 3–4. The following year, in August 2019, InfoCision submitted its annual application to renew its registration. InfoCision’s applica tion again disclosed the settlement agreement with the FTC. Eight days later, the Secretar y denied InfoCision’s application, citing the stipulated injunction and stating that InfoCi sion was statutorily barred from soliciting for a period of five years under Colo. Rev. Stat . § 6-16-104.6(10). InfoCision appealed the denial, and the Secretary issued her Notice of Duty to Answer, Notice of Hearing, and Notice of Charges on August 20, 2019. InfoCision file d its Answer, Affirmative Defenses, and Counterclaim, which included constitutional claims and defenses. The Secretary moved to dismiss InfoCision’s co unterclaim and constitu tional defenses, and the Colorado Department of State granted that motion at an administ rative hearing held in October 2019. The Hearing Officer declined to reach the merits of InfoCision’s constitutional claims because the Hearing Offi cer determined that, under Colorado law, “an administrative agency , such as the Department of State, has no jurisdiction to pass on constitutional challenges to stat utes the agency administers.” Id. at 5. The Hearing Officer then affirmed the Secretary’s denial of InfoCision’s application. InfoCision Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 56 appealed, but in January 2020, the Deputy Secretary of Stat e issued the ag ency’s final order affirming the denial. No other state has denied InfoCision’s pr ofessional fundraiser registration on the basis of the stipulated injunction. In add ition, in 2023, InfoCisi on successfully reregistered as a paid char itable solicitor in Colorado. 2
B. Procedural History InfoCision filed suit in the District of Colorado, bringing four First Amendment claims pursuant to 42 U.S.C. § 1983. First, InfoCision cl aimed Colo. Rev. Stat § 6-16- 104.6(10) was unconstitutional on its face and as applied becaus e it is a prior restraint and discriminates against disfavored professi onal solicitors and their clients. Second, InfoCision claimed the Act unc onstitutionally gave unbridle d discretion to government officials to grant or deny permission to speak by saying the Secretary “may” deny, suspend, or revoke a registration—allegi ng the Secretary admits she has treated registrants disparately in the past—and by allowing unreasonable delay in denial, suspension, or revocation of lic enses. Third, InfoCision clai med the ban violated Article II, § 10 of the Colorado Cons titution prohibiting laws that impair free speech. Finally, InfoCision claimed a violati on of the Colorado Administrative Procedure Act (“APA”) forbidding agency action that is contrary to constitutional rights or that abuses its discretion. As relief, InfoCision sought:

2 In 2024, after this case was remanded to the district court, it appears InfoCision was once again permitted to complete it s annual registration in Colorado. Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 67  “A stay of enforcement of the unconstitutio nal statute as applie d to InfoCision to ban its prospective fully protected speec h in Colorado pending judicial review,” App. Vol. I at 27;

 “A permanent injunction enjoining the enforcement of the provisions granting unbridled discretion to the Secretary of State, her agents, and employees, and establishing an unconstitutiona l prior restraint on the pr otected charitable speech of InfoCision, its agents, employees , and others similarly situated,” id. ;

 “A declaration that the challenged st atutory provisions granting unbridled discretion and creating an unconstitutional prior restra int that chills protected speech on their face violate the First a nd Fourteenth Amendm ents to the United States Constitution and Article II, § 10 of the Colorado Constitution,” id. ;

 “A declaration that the challenged statut ory provisions as applied to InfoCision violate the First and Fourteenth Amendmen ts to the United St ates Constitution and Article II, § 10 of the Colorado Constitution,” id. ;

 “A declaration that the Secretary of Stat e has violated InfoCision’s constitutional rights and, as a result, that InfoCision has been damaged,” id. ; and

 Costs, interest, and attorney’s fees, and an y other relief as the court deems just and
proper. InfoCision and the Secretar y both moved for summary judgment. Consistent with its complaint, InfoCision argue d the Act was unconstitutional on its face and as applied, and that the Secretary violated the Colo rado Constitution and th e Colorado APA. The Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 78 Secretary argued the Act was content-neutral and therefore subject only to intermediate scrutiny; was not overbroad; and did not grant u nbridled discretion or lack procedural safeguards. The Secretary also contended In foCision’s state law claims were barred by the Eleventh Amendment. Th e district court denied InfoCision’s summary judgment motion and granted the Secretary’s motion in full. InfoCision then moved to alter or amend th e judgment pursuant to Federal Rule of Civil Procedure 59(e) based on a District of Connecticut case, Kissel v. Seagull , 552 F. Supp. 3d 277 (D. Conn. 2 021) (considering the constitutionality of state requirements for charitable solicitors in th e context of a preliminary injunction). The district court denied the motion on the basis that Kissel was not binding. InfoCision timely appealed. On appeal, Info Cision argued that the district court erred in its evaluation of the First Amendmen t claims. A panel of this court heard oral argument on May 17, 2023. Because questio ns remained concerning our jurisdiction under Article III of the Constitution, on July 5, 2023, we ordered the parties to file supplemental briefs addressing questions on the issue of mootness. We directed the parties to answer th e following questions: 1) What, if any, are the collateral consequences of past enforcement of Colo. Rev. Stat. § 6-16-104.6(10) against InfoCision? 2) For each remedy listed in InfoCision’ s prayer for relief, what practical effect might such a remedy have? 10th Cir. Order for Supp. Briefing at 4. Followi ng the parties’ supple mental briefing, we remanded this matter to the district cour t for the limited purposes of developing the Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 89 record to the extent necessary to address our mootness-based jurisdictional concerns and deciding, in the first instance, whether this matter is moot. On May 14, 2024, after allowing the par ties to engage in limited discovery and ordering the parties to file briefs on the i ssue of mootness, the district court issued an order concluding this matter is now moot. The district court examined the injunction and declaratory relief InfoCision sought and co ncluded that relief would not redress any injury to InfoCision because InfoCision has been permitted to re-register in Colorado and the Secretary has explained InfoCision will not be subject to further bans based on the previous injunction. The district court fu rther concluded that InfoCision’s facial challenges to the Act were moot because Info Cision lacks a redressable injury, as the Secretary has already registered InfoCision as a charitable solicitor in Colorado. The district court then considered the collateral consequences exception to mootness. Although InfoCision asserted that its 2019 denial in Colorado would have the collateral consequence of requiring Mississi ppi to deny InfoCision’s registration, the district court found based on additional facts developed on re mand, and specifically the deposition testimony of the Assistant Secret ary of State for the Charities Division in Mississippi, that Mississippi would not be required to deny InfoCision’s registration now that InfoCision has registered as an agent in Colorado. The court further explained that InfoCision has not presented ev idence that another state is considering revoking or denying its registration based on Colorado’s previous denial. The court also concluded the voluntary cessation and capable of repet ition yet avoiding review exceptions do not apply to this case. Finally, the district court left to this court the question of whether to Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 910 vacate its previously issued Order on Cro ss Motions for Summary Judgment and the Secretary’s denial of InfoCision’s registration. We issued an order for supplemental br iefing from both parties addressing what issues, if any, remain before us and, if any such issues remain , how they should be resolved. InfoCision asserts in its supplemental brief that the district court erred in holding this case is moot. In the alternative, InfoCision argue s that we shou ld vacate the district court’s orders and th e Secretary’s denial of its 201 9 registration. The Secretary filed a responding supplemental brief, arguing th at this case is moot and that vacatur of the district court’s orders and the Se cretary’s denial would be improper.
II. DISCUSSION We hold that InfoCision’s case is moot. 3 We further vacate the district court’s Order on Cross Motions for Summary Judg ment and its Order Denying Plaintiff’s Opposed Motion to Alter or Amend the Court’ s Judgment, but we decline to vacate the Secretary’s denial of InfoCision’s 2019 registration.

3 On February 1, 2023, In foCision filed a motion to supplement the record with declarations in support of its response to th e Secretary’s claim of mootness. InfoCision’s motion predates our order for supplemental br iefing on the issue of mootness, our order remanding this matter to the di strict court, the parties’ limited discovery before the district court and briefing on the issue of m ootness, and the district court’s subsequent determination that this matter is moot. We now review the district court order deciding, in the first instance, that this case is moot. Given the posture of this case, we dismiss InfoCision’s February 2023 motion to supplement the record as moot. Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1011 A. Mootness Standard of Review “We review mootness de novo as a legal question.” Keller Tank Servs. II, Inc. v. Comm’r of Internal Revenue , 854 F.3d 1178, 1193 (10th Cir. 2017); Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1122 (10th Cir. 2010) (“Our review of [the question of constitutional mootness] is de novo.” (quotation marks omitted)). However, when we review a “district cour t’s dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1),” we “review findings of jurisdictional facts for clear error.” Stuart v. Colo. Interstate Gas Co. , 271 F.3d 1221, 12 25 (10th Cir. 2001); Hennessey v. Univ. of Kan. Hosp. Auth. , 53 F.4th 516, 527 (10th Cir. 2022) (“Specific to a dismissal for lack of subject matter juri sdiction pursuant to Fe deral Rule of Civil Procedure 12(b)(1), we revie w the dismissal de novo but review any factual findings underlying the dismissal for clear error.”). “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the enti re evidence is left with the definite and firm conviction that a mistake has been committed.” Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation , 599 F.3d 1165, 1175 (10th Cir. 2010) (quotation marks omitted). Although the district court in this case di d not dismiss this case as moot pursuant to a Rule 12(b)(1) motion, we are similarly reviewing the district court’s determination that this case is moot pursuant to our order that the distri ct court engage in fact finding related to our jurisdictional questions. We therefore adopt this same standard of review Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1112 and review the legal question of mootness de novo but review the district court’s factual findings for clear error. Legal Standard Article III of the Constitution permits federa l courts to decide only “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. This requires “a genuine, live dispute between adverse parties, th ereby preventing the federal cour ts from issui ng advisory opinions.” Carney v. Adams , 592 U.S. 53, 58 (2020). The doctrine of mootness aims to ensure federal courts stay within Article III’s bounds throughout the litigation. Brown v. Buhman , 822 F.3d 1151, 1163 (1 0th Cir. 2016) (explaining that mootness ensures a plaintiff’s action remains a case or controvers y at the time a court renders its decision). “In deciding whether a case is moot, th e crucial question is whether granting a present determination of th e issues offered will have so me effect in the real world.” Rio Grande Found. v. Oliver , 57 F.4th 1147, 1165 (10th Cir. 2023) (internal quotation marks, brackets, and ellipsis omitted). Thus, “a case becomes moot when a plaintiff no longer suffers actual injury th at can be redressed by a favorable judicial decision.” Ind v. Colo. Dep’t of Corr. , 801 F.3d 1209, 1213 (10th Cir. 2015) (internal quotation marks omitted); Rio Grande Found ., 57 F.4th at 1165 (“When it becomes impossible for a court to grant effective relief, a live c ontroversy ceases to ex ist, and the case becomes moot.” (quotation marks omitted)). We evaluate mootness as to each form of relief requested. Prison Legal News v. Fed. Bureau of Prisons , 944 F.3d 868, 880 (10th Cir. 2019). While the party invoking federal jurisd iction “bears the burde n of establishing standing as of the time it brought [t he] lawsuit and maintaining it thereafter,” Carney , 592 Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1213 U.S. at 59, “[t]he ‘heavy burd en of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up ag ain lies with the party asserting mootness,” Friends of the Earth, Inc. v. Laidlaw Env’t Se rvs. (TOC), Inc. , 528 U.S. 167, 189 (2000) (alterations in original) (quoting United States v. Concentrat ed Phosphate Exp. Ass’n , 393 U.S. 199, 203 (1968)). Furt her, we will not dismiss an otherwise moot case if one of several doctrines applies. See Ind , 801 F.3d at 1213 (describing the four circumstances in which a court will not dismiss an otherwise moot case as m oot). Two such exceptions are relevant here: collateral consequences a nd capable of repetition yet evading review.

a. Collateral Consequences The collateral consequences doctrine r ecognizes that “a ju dgment may carry indirect consequences in addition to its direct force, either as a matter of legal rules or as a matter of practical effect.” 13C Charles Al an Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure Jurisdicti on § 3533.3.1 (3d ed. 2008). “[A] case is not moot if there remains a secondary or co llateral injury despite the resolution of a plaintiff’s primary claim.” Kan. Jud. Rev. v. Stout , 562 F.3d 1240, 1248 (10th Cir. 2009). Collateral consequences need not be certain to preclude mootness. Friends of the Earth, Inc. , 528 U.S. at 170 (explaining that possi ble harm “may be too speculative to support standing, but not too speculative to overcome mootness”). Consequences that are entirely speculative and hypothetical, however, do not defeat mootness. See, e.g. , Schell
v. OXY USA Inc. , 814 F.3d 1107, 1115 (10th Cir. 2 016) (“Concerns over the preclusive effect of an adverse judgment or other matte rs relating to a hypothetical unfiled suit are not cognizable reasons for c ontinuing litigation that is othe rwise moot.”). Thus, mootness Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1314 applies “if no conseque nces can be foreseen or if foreseeable possible consequences seem

remote .” Kan. Jud. Rev. , 562 F.3d at 1248 (quotin g Wright, Miller & Cooper, supra , § 3533.3.1). The p arty asserting collateral consequen ces of an otherwise moot claim bears the burden to sh ow such consequences. See id. b. Capable of Repetition Yet Evading Review An exception to mootness for conduct that is capable of repetition yet evading review applies when “(1) the challenged action is in its duration t oo short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be su bject to the same action again.” Brown , 822 F.3d at 1166 (quotation marks omitted). Th is exception is a “narrow one,” Jordan v. Sosa , 654 F.3d 1012, 1034 (10th Cir. 2011) (internal quotation m arks omitted), which we “reserve for exceptional situations,” Robert v. Austin , 72 F.4th 1160, 1164 (10th Cir. 2023) (quotation marks omitted), cert. denied , 144 S. Ct. 573 (2024). The party asserting this exception to mootness “bears the burden of establishing both elements of this two-prong
test.” Jordan , 654 F.3d at 1035. Analysis

a. Declaratory and Injunctive Re lief – As Applied Challenge InfoCision requests that we stay enforcement of the Act as applied to InfoCision, permanently en join the enfo rcement of the challenged stat utory provisions, declare the challenged provisions as applied to InfoCi sion unconstitutional, and declare that the Secretary has violated InfoCision’s constitu tional rights, causing InfoCision to be damaged. Because the requested relief “will [not] have some effect in the real world,” Rio Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1415 Grande Found. , 57 F.4th at 1165 (quotation mark s omitted), InfoCision’s as applied challenge is moot. It is undisputed that InfoCision has succe ssfully re-registered as a paid charitable solicitor in Colorado. Ordering the Secretary to register InfoCision is thus pointless. See S. Utah Wilderness All. v. Smith , 110 F.3d 724, 728 (10th Ci r. 1997) (“There is no point in ordering an action that has already taken place.”). Similarly, a declaration that the challe nged statutory provisi ons, as applied to InfoCision, are unconstitutional or that the Se cretary’s previous de nial of InfoCision’s registration was unconstitutional would not redress any injury to InfoCision because it would not alter the Secretary’ s conduct toward InfoCision. See Jordan , 654 F.3d at 1025 (“[W]here a plaintiff seeks a declaratory judgme nt against his opponent, he must assert a claim for relief that, if granted, would affect the behavior of the particular parties listed in his complaint.”). InfoCision invokes the pe rmanence of the stipulated injunction, suggesting that it will always be prohibited from paid solic itation under the Act because it will always “ha[ve] been enjoin ed within the immediately pr eceding five years . . . from engaging in deceptive conduct relating to charitable solicitations.” 4 Colo. Rev. Stat. § 6- 16-104.6(10). But per the Secretary, this five -year clock begins at the time the injunction is entered, and “[t]he plain text of the Act does not authorize the Secretary to take any action after the five-year period following th e injunction has expired.” Appellee’s Supp.

4 InfoCision raises this argume nt in the context of its facial challenge to the Act in passing. Given that this argument relates to th e statute as applied to InfoCision, however, we address it here rather than in the context of InfoCision’s facial challenge. Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1516 Br. at 4. Given that the Secretary has alre ady approved InfoCision’s registration, despite the ongoing existence of the permanent injunction, and has expressed her belief that she

cannot deny InfoCision’s registration again base d on that same stipulated injunction, any potential injury stemming from her decision to re-ban InfoCision due to the stipulated injunction is pure speculation on the part of InfoCision. For the foregoing reasons, none of the relief InfoCision seeks with respect to its as applied challenge to the statute will redress a ny injury to InfoCision. Thus, these claims

are moot. b. Declaratory and Injunctive Relief – Facial Challenge InfoCision’s request for injunctive and decl aratory relief in relation to its facial challenges are similarly moot because InfoCision has no in jury to redress. While InfoCision argues “[t]he depriv ation of First Amendment right s, for any length of time, constitutes redressable injury for both declar atory and injunctive relief,” Supp. Reply at 2, any such injury in this case is no longer redressable because the alleged First Amendment deprivation has been stopped and none of the relief sought will provide any retrospective relief. As an initial matter, InfoCision argues th at a facial challenge turning on the constitutionality of an unchanged statute cannot be mooted by intervening events, citing to our unpublished case in Denver Bible Church v. Polis , No. 20-1391, 20 22 WL 200661, at *7 (10th Cir. Jan. 24, 2022). As an initial matter, the case is unpublished, and thus is not binding on this court. 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasi ve value.”). Further, we did not engage in Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1617 a detailed analysis of the mootness issue in th at case, and certainly did not hold that a facial challenge to a statute survives even if the plaintiff no longer suffers a redressable injury. See Denver Bible Church , 2022 WL 200661, at *7. Contrary to InfoCision’s assertions, InfoCision must still suffer from an injury that ca n be redressed in order to sustain its facial challenge. We have explai ned in the standing context that a plaintiff must meet the ordinary requirements for standing to bring a facial challenge. E.g. , Pac. Frontier v. Pleasant Grove City , 414 F.3d 1221, 1228 (10th Ci r. 2005) (“Although failure to apply for a license does not serve as a barri er to the facial challenge of an ordinance, plaintiffs must nonetheless meet the ordina ry requirements for standing.”). “[A]lthough the comparison [between standing and mootness] is not a perfect one, with rare exceptions [t]he requisite personal interest th at must exist at the commencement of the litigation (standing) must continue th roughout its existe nce (mootness).” Rio Grande Found. , 57 F.4th at 1165 (third a lteration in original) (internal quotation marks omitted). As a result, our precedent makes clear th at a facial challenge to a statute can be rendered moot when the party challenging the statute no longer has an injury that can be redressed by the requested relief, even if the statute remains the same. See, e.g. , Jordan , 654 F.3d at 1030 (holding that the plaintiff’s “facial and as-applied challenges to the Ensign Amendment, as it is embodied in the BOP’ s implementing regulation, are constitutionally moot” due to the plaintiff’s changed circumstances); Rio Grande Found ., 57 F.4th at 1165–67 (concluding a charitable organization’ s facial challenge to New Mexico state electioneering rules was moot following th e passing of the November 2020 election Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1718 “because invalidating the disclosure require ment would not affect [the charitable organization]”). Upon review of InfoCision’s alleged redr essable injuries, we conclude neither injunctive nor declaratory relief will provide redress to any injury. First, InfoCision argues the challenged provisions, Colo. Rev. Stat. §§ 6-16-104.6(10) and 6-16-111(6)(a), continue to apply to InfoCision and other re gistered paid solicitors. Per InfoCision, the law “has injured [InfoCision], continues to re gulate it, and threaten s repeated injury.” Appellant’s Supp. Br. at 4. InfoCision similarly assert s “a declaration that the enforcement provision of the Act, [§] 6-16 -111(6)(a), is facially unconstitutional would cure the grant of excessive discretion to the Secretary in granting or denying licenses to speak.” Id. at 2. But the mere existence of an a llegedly unconstitutional statute does not, without more, cons titute an injury. See Dr. John’s, Inc. v. City of Roy , 465 F.3d 1150, 1155–56 (10th Cir. 2006) (“An injury in fact does not automatically occur by [t]he mere presence on the statute books of an unconstitutiona l statute . . . , even if [plaintiffs] allege an inhibiting effect on cons titutionally protected conduct prohibited by the statute.” (internal quotation marks om itted)). Further, while InfoCisi on invokes potential future injury to other speakers, that potential injury is equally hypothetical and does not alter the fact that InfoCision no longer has a redressable injury. InfoCision also asserts the challenged stat utory provisions act as a prior restraint because they deter InfoCision from entering settle ment agreements due to the threat of a ban in Colorado, and the requested relief will prevent future injury to InfoCision and encourage the efficient settlement of disputes . This too is a purely speculative injury. Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1819 InfoCision asks that we assu me the FTC or some other entity will once again file a complaint against InfoCision an d that the enforcement proc eedings will once again result in a disposition that triggers Colorado’s five-y ear ban. The hypothetic al series of events that must take place for Info Cision to suffer the injury it alleges renders this injury entirely speculative. Finally, InfoCision argues that a declar ation of the Act’s unc onstitutionality would “inform the other 40 states licensing this sa me speech activity that InfoCision’s denial falls because it issued pursuant to an unconstitutional statute.” Appellant’s Supp. Br. at 2. But InfoCision’s invocation of other licensing stat es is not convincing, as the fact that the relief InfoCision seeks “might gui de third parties (i.e., those not parties to the lawsuit) in their future interactions with a plainti ff is insufficient [to overcome mootness].” Jordan , 654 F.3d at 1026 (emphasis omitted). For the foregoing reasons, this court ca nnot redress any injury in granting the relief InfoCision seeks. The Secretary has ca rried her burden and demonstrated that InfoCision’s facial challenge is moot.

c. Attorney’s Fees and Costs In addition to injunctive and declaratory relief, InfoCision seek s attorney’s fees and costs. “[A]s a general rule, we have said that a claim of entitlement to attorney’s fees does not preserve a moot cause of action alth ough the expiration of the underlying cause of action does not [necessarily] moot a c ontroversy over attorn ey’s fees already incurred.” Fleming v. Gutierrez , 785 F.3d 442, 448 (10th Cir. 2015) (emphasis omitted) (internal quotation marks omitte d). While this means “that a plaintiff may still recover Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 1920 (and a defendant may still contest) fees even when the merits have been rendered moot,” it “does not mean that an otherwise moot i ssue is revived whenever a prevailing party requests or might request fees.” Citizens for Responsible Gov’ t State Pol. Action Comm. v. Davidson , 236 F.3d 1174, 1183 (10th Cir. 2000). d. Exceptions to Mootness Having concluded that this matter is moot, we must consider whether any exceptions to mootness apply in this case . Although InfoCision argues that both the collateral consequences and the capable of repetition yet evading review exceptions apply, we conclude they do not. i. Collateral Consequences InfoCision argues the district court’s finding that the as applied challenge is moot for lack of collateral consequence is “tenuous.” Appellant’s Supp. Br. at 4. As InfoCision repeatedly em phasizes, the possibility of collateral consequences is enough to trigger this exception. However, upon review of each of the alleged collateral consequences of the Secretary’s denial, we conclude Info Cision has not carried its burden. See Kan. Jud. Rev. , 562 F.3d at 1248. InfoCision primarily asserts that it “remai ns under threat of a collateral denial by Mississippi” and the district court “failed to account” for the testimony of Tanya Webber, Assistant Secretary of State for the Charitie s Division in Mississippi. Appellant’s Supp. Br. at 4. But the fact that InfoCision disagr ees with the district court’s factual finding does not render that finding clearly erroneous, a nd the district court’s order reflects that it conducted a “closer ex amination of [Ms.] Webber’s depo sition testimony” and concluded Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 2021 that, “[w]hen presented with the proper cont ext,” the testimony showed “the Secretary’s past denial of InfoCision’s registration does not prevent it from registering now as a paid solicitor in Mississippi.” District Court Orde r at 11–12. For example, the court relied upon Ms. Webber’s testimony that “[i]f [an applicant is] registered in Colorado, then Mississippi will allow it to register in its state also.” Id. at 12. Based on Ms. Webber’s testimony, the district court found “that Mi ssissippi examines the applicant’s current registration status in other jurisdictions to determine whether Mississippi will allow it to register there.” Id. The district court’s factual finding is not one that leaves us “with the definite and firm conviction that a mistake has been committed.” Rio Grande Silvery Minnow (Hybognathus amarus) , 599 F.3d at 1175 (inter nal quotation marks omitted). Thus, InfoCision has not demonstrated that it will suffer the collateral consequence of a registration denial in Mississippi. In addition, InfoCision alleges it “faces th e possibility of suspension, revocation, or denial in more than 30 othe r states,” Appellant’s Supp. Br. at 4, and argues that “other states will require disclosure of the denial of any charitable solicitation license in any other state, and some may requ ire denial of a pending license based on Colorado’s denial and/or application of the ban in this case,” id. at 6 (emphasis omitted). In support of this argument, InfoCision relies on statutes in Mi ssissippi, Florida, and New Jersey. But as has been addressed, the district court did no t clearly err in finding that Mississippi will not deny InfoCision’s registration based on th e Colorado denial. Further, the language in the Florida and New Jersey st atutes upon which InfoCision re lies does not reflect that Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 2122 either state is required to deny InfoCision ’s registration based on the Colorado denial. 5 As the district court noted, “InfoCision has no t presented evidence th at another state is considering revoking or denying its registra tion based on Colorado’s previous denial of its registration.” District Court Order at 12. Thus, InfoCision’s assertion that it will face collateral consequences in othe r states is pure speculation. For the foregoing reasons, InfoCision has no t carried its burden and demonstrated that the collateral consequences ex ception to mootness applies here. 6
ii. Capable of Repetition Yet Evading Review In addition, InfoCision argues that the capable of repetition yet evading review exception to mootness applies. As the part y asserting this exception to mootness, InfoCision “bears the bur den of establishing both elements of this two-prong test.” Jordan , 654 F.3d at 1035. We conclude In foCision has not carried its burden.

5 In Florida, “[t]he department may deny or revoke the registration of a professional solicitor if the professional solicitor, or any of its officers, directors, trustees, or agents, has had the right to solicit contri butions revoked in any state or has been ordered by a court or governmental agency to cease soliciting cont ributions within any state.” Fla. Stat. § 496.410( 15) (emphasis added). Similarl y, in New Jersey, “[a]fter notice and an opportunity for a hearing, the Attorney General may revoke, or suspend any registration upon a finding that the registrant . . . [h]as had the au thority to engage in charitable activities denied, revo ked or suspended by New Jersey or any other state or jurisdiction.” N.J. Stat. § 45:17A-33(b)(5) (emphasis added).

6 InfoCision also asserts it will suffer the collateral c onsequence “of having the district court’s decision affirming the Secret ary’s actions and the constitutionality of the Act be the last word on an important cons titutional issue that will continue to have detrimental effects on InfoCision and its freedom of speech.” Appellant’s Supp. Br. at 6. We address any consequences stemming from th e district court’s orders, rather than the Secretary’s denial, in the context of InfoCi sion’s request that we vacate those orders, infra

. Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 2223 First, InfoCision has not demonstrated that “the challenged action is in its duration too short to be fully litigated prior to cessation or expiration.” Brown , 822 F.3d at 1166 (quotation marks omitted). InfoCi sion argues that this case cannot be litigated in three years, relying on the fact th at this case has taken longer than three years. But as the Secretary points out, InfoCision has cited to no authority suppor ting its argument that three years is short enough to trigger this exception. In addition, the challenged statute imposes a five-year ban, rather than a three- year ban. Colo. Rev. Stat. § 6-16-104.6(10). Although InfoCision only had th ree years to litigate its claims in this particular case, InfoCision “provides absolutely no evidence fro m which we might infer that this sort of allegedly unconstitutional behavior is necessarily of short duration.” Jordan , 654 F.3d at 1036. InfoCision had only three years because the Secretary initially denied InfoCision’s 2018 registration, withdrew that denial and c hose not to enforce the ban, and then denied InfoCision’s 2019 registration be fore issuing a final decision in January 2020. But as the Secretary points out, InfoCision provides no su pport for the contention that the Secretary intentionally delayed, or will in the future intentionally dela y, InfoCision’s registration in order to evade review. Thus, In foCision has not demonstrated th at it would face the same timing limitation if it were to be denied un der the challenged provis ions in the future. Similarly, InfoCision has not carried its burden under the second prong, which requires showing “there is a reasonable expectation that th e same complaining party will be subject to the same action again.” Brown , 822 F.3d at 1166 (q uotation marks omitted). For all the reasons articulated above, InfoCi sion has provided no evidence to suggest that Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 2324 it will again be denied registration in Co lorado based on Colo . Rev. Stat. § 6-16- 104.6(10). For the foregoing reasons, the Secretary ha s carried her burden and demonstrated that InfoCision’s facial and as applied cha llenges to the Act are moot. InfoCision has not carried its burden and demonstrated that an y exception to mootness should apply. We therefore conclude that this matter is moot.
B. Vacatur Because we hold that this matter is moot , we vacate the district court’s Order on Cross Motions for Summary Ju dgment and its Order Denying Plaintiff’s Opposed Motion to Alter or Amend the Court’s Judgment. Although InfoCision requests that we also vacate the Secretary’s denial of InfoCision’ s registration, we d ecline to do so.
Vacatur of the District Court’s Orders The decision to vacate a lower court’s decision when a ca se is mooted on appeal turns on “the conditions and circu mstances of the particular case.” Azar v. Garza , 584 U.S. 726, 729 (2018) (quoting United States v. Hamburg–Amerikanische Packetfahrt– Actien Gesellschaft , 239 U.S. 466, 478 (1916)). Our p recedent reflects that the conditions and circumstances of a case w arrant such vacatur “[w]hen causes beyond the appellant’s control make a case moot pending appeal.” In re Otasco, Inc. , 18 F.3d 841, 84 3 (10th Cir. 1994). This is because “[a] party who seeks review of the m erits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” Wyoming v. U.S. Dep’t of Agr. , 414 F.3d 1207, 12 13 (10th Cir. 2005) (quoting U.S. Bancorp Mortg. Co . v. Bonner Mall P’ship. , 513 U.S. 18, 25 (1994)). Thus, Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 2425 “[w]hen a case becomes moot pending appeal, the genera l practice is to vacate the judgment below and remand with directions to dismiss,” unless “mootness is a result of a voluntary act of a nonprevailing party.” Id. ; see Great Divide Wind Farm 2 LLC v. Aguilar , No. 19-2214, 2021 WL 2 690477, at *3 (10th Cir. Mar. 30, 2021) (unpublished) 7 (“This practice is particularly appropriate when , as here, the party seeking appellate relief is not the party responsible for mooting the case.” (internal quotation marks omitted)). In this case, neither party asserts that In foCision is responsible for the mootness of this appeal. InfoCision argues that the Secretary is responsible, while the Secretary claims that the expiration of the Act’s five-year ban, and the resulting requirement that the Secretary grant InfoCision’s renew al application, mooted the case. Indeed, there is no reason to believe that InfoCision’s voluntary action caused the fi ve-year ban period to expire before InfoCision had the opportunity to pursue this a ppeal. Thus, in line with our general practice, we vacate the di strict court’s orders below. Vacatur of the Secretary’s Denial InfoCision also asserts we should vacate the Secretary’s denial of InfoCision’s registration. Although InfoCisi on invokes our general practice of vacating district court orders when a case becomes moot pending appeal, InfoCi sion has not identified any Tenth Circuit precedent indicating that this general practice also applies to state administrative actions, such as the Secretary’s denial. Furth er, while InfoCision asserts

7 We cite unpublished cases for their persua sive value only and do not treat them as binding authority. See United States v. Ellis , 23 F.4th 1228, 1238 n.6 (10th Cir. 2022). Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 2526 the capable of repetition yet evading review and collateral conseque nces doctrines both support vacatur of the Secretar y’s denial, InfoCision has not established that either of those doctrines should apply in this case. Thus, we identify no compelling reason to conclude that InfoCision is entitled to the e quitable remedy of vacatur of the Secretary’s denial.
III. CONCLUSION We agree with the district court’s c onclusion that this matter is now moot. Accordingly, we DISMISS this appeal as moot, REMAND the mooted claims to the district court for dismissal without prejudice , and VACATE the district court’s Order on Cross Motions for Summary Ju dgment and its Order Denying Plaintiff’s Opposed Motion to Alter or Amend the Court’s Judgment. We de cline to vacate the Secretary’s denial of InfoCision’s registration.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 2622-1264, InfoCision v. Griswold HARTZ , J., dissenting in part I am pleased to join the panel decision ex cept for § II.B.2. In my view, we should also vacate the Secretary’s denial of InfoCisi on’s registration. As the opinion notes, other States will require disclosure of that deni al. I cannot think of any reason why such disclosure is required unless it could have a negative impact on license applicants. It seems unfair to me to keep that negative decision on the license e’s record when the licensee, through no fault of its own, has no opportunity to challenge the validity of the denial. When a court challenge to a deci sion by a federal administrative agency has become moot on appeal, the regular practice of the United States Supreme Court has been to order the agency to vacate and set aside its decision. See A. L. Mechling Barge Lines, Inc. v. United States , 368 U.S. 324, 331 (1961); Valspar Sourcing, Inc. v. PPG Indus., Inc., 780 Fed. App’x. 917, 921 (Fed. Cir. 2019) (collecting cases). I see no reason why the same practice should not apply to state administrative agencies that have been properly brought into federal court on a challenge to the agency action. After all, if the case had not been mooted, we would certainly have had full authority to order the state agency to vacate its order. Appellate Case: 22-1264 Document: 010111092562 Date Filed: 08/09/2024 Page: 27