UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

TALISHA VALDEZ, on behalf of herself 

and others similarly situated; JENNIFER 

BLACKFORD, on behalf of herself and 

others similarly situated, 

 Plaintiffs - Appellants,

v.

MICHELLE LUJAN GRISHAM, officially 

and individually, acting under the color of 

law; DAVID SCRASE, officially and 

individually, acting under the color of law, 

 Defendants - Appellees.

No. 22-2112

(D.C. No. 1:21-CV-00783-MV-JHR)

(D.N.M.)

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ORDER AND JUDGMENT*

_________________________________

Before HOLMES, Chief Judge, MORITZ, and EID, Circuit Judges.

_________________________________

Talisha Valdez, a mother who wanted her children to show their animals in a

state fair, and Jennifer Blackford, a nurse, both refused to get vaccinated as required 

* This matter was set for oral argument on May 4, 2023, in Roswell, New 

Mexico. Appellants’ counsel, A. Blair Dunn, acknowledged the notice for oral 

argument, yet failed to appear. As such, this matter is submitted on the briefs as to 

Appellants. Mr. Dunn is again admonished that his failure to appear for oral 

argument is inconsistent with the standards of practice and professionalism that apply 

to members of the Tenth Circuit Bar. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

May 22, 2024

Christopher M. Wolpert

Clerk of Court

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by a New Mexico public health order. They instead filed a class action against New 

Mexico’s Governor and Secretary of Health. Alleging violations under federal and 

state law, the class action sought damages as well as injunctive and declaratory relief. 

The district court dismissed each federal claim for failure to state a claim upon which 

the court could grant relief, while declining to exercise supplemental jurisdiction 

over the remaining state law claims. Valdez and Blackford now appeal. Because 

Valdez’s claims are moot and Blackford lacked standing to bring her suit in the first 

place, we lack jurisdiction to adjudicate their claims.

Below, the district court dismissed Valdez and Blackford’s claims with 

prejudice under Federal Rule of Civil Procedure 12(b)(6). Given our determination 

that there is no jurisdiction over the claims, we remand them for dismissal under 

Federal Rule of Civil Procedure 12(b)(1). 

I.

In the wake of COVID-19, states took many measures to reduce the virus’s

spread. New Mexico was no different. On August 17, 2021, the Secretary of the 

New Mexico Department of Health issued a public health order (“PHO”). Among 

other things, the PHO required “all persons who [were] eligible to receive a COVID19 vaccine” and who wanted to “enter the grounds of the New Mexico State Fair” to

“provide adequate proof of being fully vaccinated against COVID-19 . . . unless the 

individual qualifie[d] for an exemption.” App’x Vol. I at 145. The PHO also 

required all congregate care facility and hospital workers to get fully vaccinated

against the virus. 

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Noncompliance would allegedly have had repercussions. Fairgoers who did 

not show proof of vaccination or entitlement to an exemption would allegedly be 

denied access to the fairgrounds. And health workers who did not get vaccinated 

would allegedly be terminated from their positions. 

Talisha Valdez had contracted to show her and her daughters’ animals at the 

New Mexico State Fair Junior Livestock Show. But she refused to have herself or 

her children vaccinated. And she asserts that the PHO prohibited her and her 

children from attending the New Mexico State Fair to show their animals. 

Jennifer Blackford worked as a registered nurse at Presbyterian Hospital in 

Albuquerque, New Mexico. Blackford refused to take a COVID vaccine based on 

her medical training and research, and she asserts that the PHO required that she be 

terminated from her position. 

Valdez and Blackford (“Plaintiffs”) brought a class action in the United States 

District Court for the District of New Mexico, seeking declaratory and injunctive 

relief against the PHO’s vaccination requirements, as well as damages. They claimed 

that New Mexico’s Governor and Secretary of Health (“Defendants”) violated, 

among other things, substantive due process, equal protection, the contracts clause of 

Article I, § 10, and various rights under the New Mexico Constitution. 

The district court proceeded to dismiss each of Plaintiffs’ claims, and 

Plaintiffs now appeal that judgment.1

 

1 We note that before Plaintiffs proceeded on the merits to their claims before 

the district court, they moved for a preliminary injunction. The district court denied 

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II.

We review the court’s Rule 12(b)(6) dismissal de novo. Nixon v. City & Cnty. 

of Denver, 784 F.3d 1364, 1368 (10th Cir. 2015). That standard requires us to accept 

all well-pleaded allegations in the complaint as true, construing them in the light 

most favorable to the nonmoving party. Id. To withstand dismissal, a complaint 

must contain sufficient factual matter, which accepted as true, makes out a plausible 

claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

To even enter federal court, however, Plaintiffs must overcome Article III’s 

requirements. U.S. Const. art. III, § 2. Indeed, a federal court can only resolve 

“Cases” or “Controversies.” Id. Importantly, when analyzing our jurisdiction over a 

class action suit like this, we do not speculate about the injuries of unnamed class 

members. We instead focus on named class representatives. Thus, Valdez and 

Blackford—not some “unidentified members of the class”—must have a personal 

stake in the outcome of the case and cannot assert claims based on injuries others 

have suffered. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 n.6 (2016) (citation 

omitted). 

In this class action suit, Valdez and Blackford bring claims seeking injunctive, 

declaratory, and monetary relief. In the end, they each fail to meet Article III’s 

requirements. We address both Plaintiffs in turn. 

that injunction, and this Court affirmed. Valdez v. Grisham, No. 21-2105, 2022 WL 

2129071, at *1 (10th Cir. June 14, 2022). 

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A.

First, Valdez.2

 Her claims face a jurisdictional hurdle: mootness. Article III 

requires that a controversy remain live “during all stages” of litigation. United States 

v. Seminole Nation of Okla., 321 F.3d 939, 943 (10th Cir. 2002). If not, a plaintiff’s

claims turn moot, and a federal court has no jurisdiction to entertain them. Id. After 

all, “a federal court has no power to give opinions upon moot questions or declare 

principles of law which cannot affect the matter in issue in the case before it.” 

S. Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997). Proceeding 

otherwise would allow federal courts to issue “advisory opinions,” which Article III 

prohibits. See Rio Grande Found. v. Oliver, 57 F.4th 1147, 1159 (10th Cir. 2023)

(citation omitted). 

One way a case can become moot is when a party obtains all her desired relief 

before a federal court decides the case. Unless there is “any basis” that the relief will 

be “arbitrarily revoke[d],” “we [will] find no live controversy warranting a decision 

on the merits.” Johnson v. Riveland, 855 F.2d 1477, 1485 (10th Cir. 1988). In such 

an instance, even if a party had a live controversy when initiating a suit, a federal 

court “cannot, consistently with the limitations of [Article] III of the Constitution, 

consider the substantive constitutional issues tendered.” DeFunis v. Odegaard, 416 

U.S. 312, 319–20 (1974). 

2 Valdez has since abandoned her claims for injunctive relief, conceding that 

the State Fair has now passed, thus eliminating the need for prospective forms of 

relief. See Aplt. Br. at 6 (“Plaintiff Valdez along with putative class members [sic] 

remaining claims are limited to damages.”). 

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Here, Valdez faces a mootness problem. On behalf of her children, she alleges 

an injury of the “loss of the ability to exhibit their animal(s) at the junior livestock 

competition of the New Mexico State Fair.” App’x Vol. I at 15. But since the start 

of this litigation, the junior livestock show was cancelled anyway, and the State Fair 

has passed. Not only that, Valdez and her children still had the opportunity to show 

their animals for free at a rescheduled event with a new venue and without a vaccine 

requirement. Moreover, as of August 12, 2022, the New Mexico Department of 

Health has rescinded the vaccine mandates that Plaintiffs challenge. 

All considered, Valdez got everything she wanted, and then some. She and her 

daughters were able to show their animals free of charge. Indeed, Valdez fails to 

point to any basis, let alone to argue, that Defendants will somehow “arbitrarily 

revoke that which has been granted.” Johnson, 855 F.2d at 1485. Having been 

afforded all the relief requested, “[t]he controversy between the parties has thus 

clearly ceased to be ‘definite and concrete’ and no longer ‘touch(es) the legal 

relations of parties having adverse legal interests.’” DeFunis, 416 U.S. at 317

(citation omitted). 

Furthermore, because Defendants have since rescinded the PHO, Valdez 

“cannot be subject to a vaccine requirement that no longer exists” and that “could not 

reasonably be expected to recur.” Robert v. Austin, 72 F.4th 1160, 1164–65 (10th 

Cir. 2023) (declining to review mooted claims related to a rescinded vaccination

policy for the military). And “nothing in the record leads to a reasonable expectation 

[that she] will be subjected to the same action again.” Id. 

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Lastly, we cannot forget the fact that the junior livestock show—the event she 

claims was going to deny her entry—was cancelled. Valdez fails to explain how she 

could suffer injury related to an event that never happened. As such, she “no longer 

suffers actual injury that can be redressed by a favorable judicial decision.” Brown v. 

Buhman, 822 F.3d 1151, 1166 (10th Cir. 2016). 

Under Article III, a federal court may resolve only “a real controversy with 

real impact on real persons.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 

(2021) (citation omitted). And we do not have that here. Valdez received all the 

relief she asked for. What is more, she no longer has an injury that Defendants

caused and this Court can remedy. Put simply, she cannot obtain damages or other 

relief for not getting to show animals at an event that did not happen.3

 As such, 

Valdez and like class members do not have the “requisite personal interest” such that 

this Court may exert Article III power over their claims. Friends of the Earth, Inc. v. 

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). 

B.

Next, Blackford. A different jurisdictional hurdle stands in the way of her 

claims: Article III standing. The parties before us did not brief whether Blackford

met Article III’s standing requirements, nor did the district court address this issue. 

Regardless, as a federal court, we have “an independent obligation to examine [our] 

own jurisdiction.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). And

3 On this note, Valdez does not identify any other type of damages that she 

would be entitled to in her complaint. See App’x Vol. I at 24. 

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among other jurisdictional doctrines, standing “is perhaps the most important.” Id.

(citation omitted). 

Jurisdiction—standing included—must “affirmatively appear in the record.” 

Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884). It falls on the 

“party who seeks the exercise of jurisdiction in his favor” to “clearly [] allege facts 

demonstrating that he is a proper party to invoke judicial resolution of the dispute.” 

FW/PBS, Inc., 493 U.S. at 231 (citations omitted). Specifically, “[t]he party invoking 

federal jurisdiction bears the burden of establishing [three] elements.” Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 561 (1992). That party must prove that she suffered an 

injury that is (1) concrete and particularized and actual or imminent; (2) fairly 

traceable to the challenged action of the defendant; and (3) likely redressable by a 

favorable decision. Id. at 560–61. 

Moreover, as stated above, although this is a class action suit, Blackford must 

have a personal stake in the outcome of the case. See Spokeo, Inc., 578 U.S. at 338 

n.6. She cannot assert claims based on injuries others have suffered. See id. With 

that in mind, we find that Blackford only sufficiently alleges one injury—the 

threatened loss of her current job for refusing to vaccinate.4

 See App’x Vol. I at 11. 

4 We confine Blackford’s alleged injury to her possible termination, as the 

complaint specifies. We note, however, that the complaint alleges that Blackford and 

like class members “will lose their employment in their chosen professions because 

they have elected not to receive” COVID vaccinations. App’x Vol. I at 16. And in a 

declaration, Blackford argues that the PHO “prohibits [her] from engaging in [her] 

chosen profession anywhere in the state of New Mexico.” Id. at 46. This alleged 

injury does not move the needle. Nowhere does Blackford allege that she has applied 

or even wanted to work elsewhere. As such, Blackford does not adequately allege 

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We concentrate our analysis on the third prong of the standing inquiry: 

redressability.

5

 That prong requires Blackford to establish that “any relief [a federal 

court] could have provided in this suit against” would “likely” redress her alleged 

injury. Lujan, 504 U.S. at 571. Through favorable resolution, Blackford seeks

injunctive, declaratory, and monetary relief to redress her alleged injury caused by 

the PHO’s vaccination requirement. However, in bringing this suit, Blackford only 

sues New Mexico’s Governor and Secretary of Health. She does not join her

employer, Presbyterian Hospital, as a party to this action. And that fact matters. 

Importantly, a day after Defendants implemented the PHO and a day before 

the Plaintiffs filed their complaint, Presbyterian Hospital “announced its own, 

broader vaccine requirement for all employees.” Valdez v. Grisham, No. 21-2105, 

2022 WL 2129071, at *2 (10th Cir. June 14, 2022). Not only did Blackford face a 

requirement from her employer, but it did not take long for a federal vaccination 

how the PHO will affect her “in a personal and individual way,” so even if we 

considered her declaration, it fails to meet Article III’s particularization requirement. 

Spokeo, Inc., 578 U.S. at 339 (citation omitted). And even if we were to read into 

Blackford’s “some day” intentions of applying elsewhere in the State of New 

Mexico, she would not have an “actual or imminent” injury because she lacks “any 

description of concrete plans, or indeed even any specification of when the some day 

will be.” Lujan, 504 U.S. at 565. 

5 We acknowledge that in a prior unpublished panel decision dealing with a 

preliminary injunction in this case, this Court held that Blackford had standing for 

injunctive relief based on the finding of “an actual injury.” Valdez, 2022 WL 

2129071, at *3. Importantly, the specific issue of the lack of redressability was not 

before the prior panel. And this Court now focuses on that Article III requirement. 

We agree with the prior panel that the harm Blackford alleges may be actual, 

however, upon further review, we hold that a court could not redress her actual 

injury. Lujan, 504 U.S. at 560–61. 

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requirement to be added to the books. Blackford’s employer must impose 

vaccination requirements as mandated by the Centers for Medicare and Medicaid 

Services—requirements identical to the prior PHO. See Medicare and Medicaid 

Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61555, 

61571 (Nov. 5, 2021) (“[A]ny individual that performs their duties at any site of care, 

or has the potential to have contact with anyone at the site of care, including staff or 

patients, must be fully vaccinated to reduce the risks of transmission of SARS-CoV-2 

and spread of COVID-19.”).6

 

Thus, the PHO was not the only source of a vaccination requirement—both at 

the time Plaintiffs commenced their class action suit and later on in litigation. It then 

stands to reason that in order to “likely” redress Blackford’s alleged injury—the 

vaccine requirement on the one hand and the threat of termination on the other—our 

relief directed at the PHO must somehow affect Presbyterian Hospital and the federal 

government’s vaccine requirements as well. Lujan, 504 U.S. at 561. 

“In a case like this, in which relief for the petitioner depends on actions by a 

third party not before the court, the petitioner must demonstrate that a favorable 

decision would create a significant increase in the likelihood that the plaintiff would 

obtain relief that directly redresses the injury suffered.” US Magnesium, LLC v. 

EPA, 690 F.3d 1157, 1166 (10th Cir. 2012) (citation and internal quotation marks 

6 The Supreme Court has since upheld the enforcement and legality of this 

federal vaccine requirement. See Biden v. Missouri, 595 U.S. 87, 96 (2022) (“[T]he 

facilities covered by the interim rule must ensure that their employees be vaccinated 

against COVID–19.”). 

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omitted). Otherwise, our ability to redress a plaintiff’s injury by a favorable decision

would be “merely speculative,” not “likely.” Lujan, 504 U.S. at 561 (citation and 

internal quotation marks omitted); see 13A Charles Alan Wright, Arthur R. Miller & 

Edward H. Cooper, Federal Practice and Procedure § 3531.5 (3d ed. 2023) (“[E]ven 

if the challenged conduct were held unlawful, the same injury might continue to flow 

from an independent cause.”). For that reason, a “plaintiff lacks standing” when 

“redressability depends on a third party” and “no evidence suggest[s] [the] likelihood 

that the third party will take the action necessary to afford the plaintiff relief.” US 

Magnesium, LLC, 690 F.3d at 1166. 

Based on the record before us, Blackford fails to meet her burden. She does 

not demonstrate how anything we do to the PHO will affect her employer’s broader 

vaccine requirements or the federal government’s vaccine requirements. Say we did

provide relief against the PHO; Blackford would still face vaccine requirements that 

are outside the purview of this case. A favorable decision against Defendants would 

not interrupt the same vaccine requirements put in place by independent third parties 

not joined to the case. In other words, what Blackford wants, we cannot give her. 

And that inability to provide meaningful relief deprives this Court of jurisdiction to 

hear Blackford’s claims. 

Of course, occasions may arise where “an order directed to a party before the 

court will significantly increase the chances of favorable action by a non-party.” Id.

(citation omitted). But this is not one of them. Or at a minimum, Blackford has 

failed to “demonstrate . . . the likelihood” of a favorable decision affecting her 

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employer’s separate policy. Id.; see Renne v. Geary, 501 U.S. 312, 319 (1991) 

(doubting whether “the injury alleged” could “be redressed by a declaration of [a 

law’s] invalidity or an injunction against its enforcement” because the “invalidation 

of one [law] may not [have] impugn[ed] the validity of another” law, “the 

constitutionality of which was not litigated”); id. at 327 (Stevens, J., concurring)

(“Even if we were to strike down [the challenged law] as overbroad, then, it is 

unclear whether respondents’ alleged injury would be redressed.”). Therefore, 

Blackford lacks standing to pursue her claims. 

III.

Below, the district court dismissed Valdez and Blackford’s claims with 

prejudice under Federal Rule of Civil Procedure 12(b)(6). Given our determination 

that there is no jurisdiction over the claims, we remand them for dismissal under 

Federal Rule of Civil Procedure 12(b)(1). 

Entered for the Court

Allison H. Eid

Circuit Judge

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