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, o fficially and i ndividually, acting under the colo r of law; DAVID SCRASE, officially and i ndividually, acting under the color of law, Defendants

- Appellees. No. 22

- 2112 (D.C. No. 1:21

- CV

- 00783

- MV

- JHR) (D.N.M.)

_________________________________ 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

s tate f air, and Jennifer Blackford, a nurse, both r efus ed 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 a gain 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 12 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 dismiss ed each federal claim for failure to state a claim upon which the court could grant relief , while declin ing to exercise supplemental jurisdiction over the remaining state law claims. Valdez and Blackford now appeal

. Because Valdez’s claim s 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 Vald ez 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, s tate s 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 pe rsons who [were] eligible to receive a COVID

19 vaccine ” and who wanted to “e nter 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.” Ap p’x Vol. I at 145. The PHO also required all congregate care facility and hospital workers to get fully vaccinated against the virus

. Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 23 Noncompliance would allegedly ha ve had repercussions. Fairgoers who did
not show proof of vaccination or entitlement t o an exemption would allegedly be denied access to the fairgrounds. A nd 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 s he refused to have herself or her children vaccinated. And s he assert s that the PHO prohibit ed her and her children from attending the New Mexico State Fair to s how their animals

. Jennifer Blackford work ed 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 assert s that the PHO require d 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, § 1 0, and various rights under the New Mexico C onstitution. 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 dis trict court, they moved for a preliminary injunction. The district court denied Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 34 II. We review the court’s Rule 12(b)(6) dismissal de novo. Nixon v. City & C n ty. 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 con tain sufficient factual matter, which accepted as true, makes out a plausible claim to relief. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
T o 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 c lass 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)

. Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 45 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 c ourt 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. U nless there is “any basis” that the relief will be “arbitrarily revoke [d] ,” “ we [will] find no l ive controversy warranting a decision on the merits.” Johnson v. Riveland , 855 F.2d 1477, 1485 (10th Cir. 1988). In such

an instance, e ven if a party had a live controversy when initiat ing a suit, a federal
court “cannot , consistently with the limitation s 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 c laims are limited to damages.”). Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 56 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 s ince the start of this litigation, the j unior l ivestock s how was cancelled anyway, and the State Fair has passed

. Not onl y 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 vacc ine mandates that Plaintiffs challenge. All considered, Valdez got everything she wante d , 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 partie s 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. Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 67 Lastly, we cannot forget the fact that the junior livestock show

— the event she claims was going to deny her entry

— w as cancelle d . Valdez fails t o 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 1 151, 1166 (10th Cir. 2016)

. U nder 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, s he no longer has an injury that Defendants caused and this Court can remedy

. Put simply, s he cannot obtain damages or other relief for not g etting 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 th is 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. Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 78 among other jurisdictional doctrines, standing “is perhaps the most important.” Id. (citation omitted).
J urisdiction

— 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 [ th ree] elements.” Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992)

. That party m ust prove that she suffered an injury that is (1) concrete and particularized and actual or imminen t; (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, w e find that Blackford only sufficiently allege s 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 com plaint 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 decla ration, 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 wan ted to work elsewhere. As such, Blackford does not adequately allege Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 89 We concentrate our analysis on the third prong of th e standing inquiry:

r edressability

. 5 That prong requires Blackford to establish that “ any relief [a federal court] coul d have provided in this suit against ” would “likely” redress her alleged injury

. Lujan , 504 U.S. at 571

. T hrough favorable resolution, Blackford s eeks injunctive, declaratory, and monetary relief to redress her alleged injury caused by the PHO’s v accination requirement. However, i n 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.
I mportantly , 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, o r indeed even any specification of when the some day will be.” Lujan , 504 U.S. at 56 5

.
5 We acknowledge that i n 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 a gree with the prior panel that the harm Blackford alleges may be actual, however, upon further review, we hold that a court cou ld not redress her actual injury

. Lujan , 504 U.S. at 560

– 61. Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 910 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 w as not the only source of a vaccination requirement

— both at the time Plaintiffs commenced their class action suit and later on in litigation

. I t 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 Hospita l and the federal government’s vaccine requirement s 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 T he 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.”). Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 1011 omitted). O therwise, our ability to redress a plaintiff’s injury by a favor able 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 o n 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 vaccin e requirements that

are outside the purview of this case. A favorable decision against Defendants would not interrupt the same vaccin e requirements put in place by independent third parties not joined to the case

. In other words, what Blackford wants, we cannot give her. And t hat 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 Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 1112 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 constit utionality 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 sta nding 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 Appellate Case: 22-2112 Document: 010111053771 Date Filed: 05/22/2024 Page: 12