                                         PUBLISH

                       UNITED STATES COURT OF APPEALS
Filed 6/28/96
                                     TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

        v.                                                   No. 95-1082

 COLORADO SUPREME COURT,
 GRIEVANCE COMMITTEE OF THE
 SUPREME COURT OF COLORADO,
 COLORADO SUPREME COURT
 DISCIPLINARY COUNSEL,

            Defendants - Appellees.
 ________________________

 NATIONAL ASSOCIATION OF
 ASSISTANT UNITED STATES
 ATTORNEYS,

                Amicus Curiae.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLORADO
                           (D. Ct. No. 93-Z-2672)


Thomas M. Bondy, Attorney (Henry L. Solano, U.S. Attorney, Kathleen L. Torres,
Assistant U.S. Attorney, and Barbara L. Herwig, Attorney, with him on the briefs), Civil
Division, Department of Justice, Washington, D.C., for the Plaintiff-Appellant.

Timothy M. Tymkovich, Solicitor General (Gale A. Norton, Attorney General and Laurie
Rottersman, Assistant Attorney General, on the brief) for Defendants-Appellees.
Robert L. Begleiter, Constantine & Partners, New York, NY, for amicus curiae.



Before TACHA, HOLLOWAY, and BRISCOE, Circuit Judges.


TACHA, Circuit Judge.



       The issue in this case is whether the United States has standing to challenge the

application of two Colorado professional ethics rules to federal prosecutors. The district

court dismissed the complaint for lack of subject matter jurisdiction, stating that the

United States did not have standing because it did not allege that federal prosecutors had

suffered any actual or imminent injury from application of the rules. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

                                     BACKGROUND

       The Colorado Rules of Professional Conduct (“Colorado Rules”) govern the

conduct of all attorneys licensed by the Colorado Supreme Court, whether they practice in

the state of Colorado or elsewhere. Colo. R. Civ. P. 241.1(b); People v. Schindelar, 845

P.2d 1146, 1147 (Colo. 1993). Local Rule 83.6 of the United States District Court for the

District of Colorado incorporates the Colorado Rules and applies them to all federal

prosecutions conducted in the District of Colorado. Through Local Rule 83.6, the

Colorado Rules also govern the activities of federal prosecutors who are not licensed in

Colorado but conduct prosecutions in the District of Colorado. A violation of the

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Colorado Rules constitutes professional misconduct, Colo. R. Prof. Conduct 8.4(a), and

grounds for discipline, Colo. R. Civ. P. 241.6(1). Discipline may include disbarment,

suspension, censure, or admonition. Colo. R. Civ. P. 241.7.

       The Colorado Rules became effective in January 1993. Rule 3.3(d) states, “In an ex

parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer

which will enable the tribunal to make an informed decision, whether or not the facts are

adverse.” The comments to Rule 3.8 specify that the “ex parte proceeding” mentioned in

Rule 3.3(d) includes grand jury proceedings. Rule 3.8(f) provides that “a prosecutor in a

criminal case shall . . . not subpoena a lawyer in a grand jury or other criminal proceeding

to present evidence about a past or present client unless” certain requirements are met,

including that “the evidence sought is essential to the successful completion of an ongoing

investigation or prosecution” and “there is no other feasible alternative to obtain the

information.” In addition, Rule 3.8(f) forbids a prosecutor from subpoenaing an attorney to

present evidence about a client before a grand jury unless she “obtains prior judicial approval

after the opportunity for an adversarial proceeding.”

       In December 1992, the United States Attorney for the District of Colorado wrote to

the Chief Judge of the United States District Court for the District of Colorado and requested

that the court amend Local Rule 83.6 to exclude application of Colorado Rules 3.3(d) and

3.8(f) to criminal prosecutions in the District of Colorado. In January 1993, the U.S.

Attorney wrote to the Chief Justice of the Colorado Supreme Court and requested that the


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court amend Colorado Rules 3.3(d) and 3.8(f) to prevent their application to federal

prosecutions. After a year passed without a response from either court, the United States

filed this suit on behalf of the United States Attorney General, the Department of Justice, and

the United States Attorney’s Office for the District of Colorado, seeking declaratory and

injunctive relief. The complaint alleges that Colorado Rules 3.3(d) and 3.8(f) violate the

Supremacy Clause because they alter the nature of the federal grand jury, conflict with

federal law, and interfere with federal prosecutors in their conduct of criminal investigations

and prosecutions.

       The district court granted the defendants’ motion to dismiss for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). 1 United States v. Colorado Supreme Court,

871 F. Supp. 1328, 1330 (D. Colo. 1994). The court held that the United States lacked

standing because federal prosecutors had suffered no injury as a result of application of the

rules. The court noted that since the rules became effective in January 1993, no disciplinary

or grievance proceedings had been brought against any federal prosecutor for violating the

rules. Id. at 1329. Furthermore, the court determined that federal prosecutors were not

injured by changing their behavior to conform with the rules because such changes did not

affect the attorneys’ ability to prosecute cases, and did not injure the attorneys personally.


       1
          The district court denied the defendants’ motion to dismiss for failure to join an
indispensable party, the U.S. District Court for the District of Colorado, on the ground
that the two rules would apply to federal prosecutors licensed in Colorado regardless of
whether the district court in Colorado had adopted them by local rule. Colorado Supreme
Court, 871 F. Supp. 1328, 1328-29 (D. Colo. 1994).

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Id. In sum, the court held that no case or controversy existed because the United States could

not show actual or imminent injury in fact, and thus could not establish the injury element

of the standing requirement. The United States appeals this decision, arguing that the

allegations in the complaint are sufficient to withstand a motion to dismiss.

                                       DISCUSSION

       We review the district court’s decision to grant the motion to dismiss for lack of

standing de novo. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994). A motion to

dismiss is appropriate when “it appears beyond doubt that the plaintiff could prove no set of

facts entitling it to relief.” Ash Creek Mining v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992).

Although the plaintiff bears the burden of establishing the elements of standing, Lujan v.

Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992), we must accept as true all well-pleaded

facts, and construe all reasonable allegations in the light most favorable to the plaintiff.

Warth v. Seldin, 422 U.S. 490, 501 (1975); Hackford, 14 F.3d at 1465.

       Article III of the Constitution limits the jurisdiction of federal courts to cases and

controversies. U.S. Const. art. III, § 2, cl. 1; Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982) . The case or

controversy limitation requires that a plaintiff have standing. Defenders of Wildlife, 112 S.

Ct. at 2136. “In essence the question of standing is whether the litigant is entitled to have

the court decide the merits of the dispute or of particular issues.” Warth, 422 U.S. at 498.

A plaintiff has standing when (1) she has suffered an injury in fact, (2) there is a causal


                                             -5-
connection between the injury and the conduct complained of, and (3) it is likely that the

injury will be redressed by a favorable decision. Defenders of Wildlife, 112 S. Ct. at 2136.

An “injury in fact” is an invasion of a legally protected interest that is concrete,

particularized, and actual or imminent, not conjectural or hypothetical. Id. These three

elements of standing are “an indispensable part of the plaintiff’s case,” and thus the plaintiff

must support each element “with the manner and degree of evidence required at the

successive stages of the litigation.” Id. “At the pleading stage, general factual allegations

of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we

‘presume that general allegations embrace those specific facts that are necessary to support

the claim.’” Id. at 2137 (quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871, 889

(1990)).

       In this case, the district court held that the United States failed to establish the first

element of standing, injury in fact. We disagree. In order to establish injury in fact, “‘the

plaintiff must allege some concrete injury, whether actual or threatened . . . .’” Ash Creek

Mining, 969 F.2d 868, 875 (quoting Glover River Org. v. United States Dep’t of Interior, 675

F.2d 251, 253 (10th Cir. 1982)). The complaint in this case alleges that Colorado Rules

3.3(d) and 3.8(f) interfere with federal prosecutors in their conduct of criminal proceedings

and change the nature of the federal grand jury in Colorado. These allegations are

sufficiently “concrete and particularized” and “actual or imminent” to withstand a motion to

dismiss.


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       Colorado Rule 3.3(d) requires the submission of exculpatory evidence to grand juries.

The Supreme Court held in United States v. Williams, 112 S. Ct. 1735, 1745 (1992), that

courts may not use their supervisory power to oblige federal prosecutors to present

exculpatory evidence. Such a rule is incompatible with the federal grand jury system. “[T]he

grand jury sits not to determine guilt or innocence, but to assess whether there is adequate

basis for bringing a criminal charge.” Id. at 1744. To make this assessment, “it has always

been thought sufficient to hear only the prosecutor’s side.” Id. The Court in Williams noted

that the grand jury is a constitutional entity, but “belongs to no branch of the institutional

government.” Id. at 1742. Consequently, the Court held, courts have very limited power to

fashion rules of grand jury procedure, and certainly cannot impose rules that change the

nature of the grand jury or the traditional relationship between the prosecutor, the

constituting court, and the grand jury itself. Id. at 1744.

       By forcing federal prosecutors to submit exculpatory evidence to the grand jury, Rule

3.3(d) effectively “alter[s] the grand jury’s historical role, transforming it from an accusatory

to an adjudicatory body.” Id. We express no opinion on the merits of the United States’s

claim that Rule 3.3(d) violates the Supremacy clause, because standing does not depend on

the merits of the claim. Warth, 422 U.S. at 500. However, the Supreme Court’s holding in

Williams supports the United States’s contention that it is injured by Rule 3.3(d). By alleging

that federal prosecutors have changed their practice in order to follow this rule, the United

States has alleged a concrete, particularized, and actual injury in fact.


                                              -7-
       The United States has also alleged sufficient injury in fact with regard to Rule 3.8(f).

Rule 3.8(f) forbids prosecutors to subpoena attorneys to present evidence before grand juries

about past or present clients unless the information sought is “essential” and there is no other

“feasible alternative to obtain the information.” In addition, Rule 3.8(f) requires that

prosecutors obtain prior judicial approval following an adversarial proceeding in order to

subpoena an attorney. The United States alleges that Rule 3.8(f) delays the presentation of

evidence to grand juries, and that the requirement of an adversarial hearing threatens grand

jury secrecy.

       These allegations are sufficient to withstand a motion to dismiss. This court has

specifically held that with regard to subpoenas of attorneys before grand juries, beyond a

satisfactory showing of relevance, prosecutors are not “required to make any further showing

of need or a lack of another source for the subpoenaed information.” In re Grand Jury

Subpoenas, 906 F.2d 1485, 1496 (10th Cir. 1990). By alleging that Rule 3.8(f) creates delays

and jeopardizes secrecy, the United States has established concrete, particularized, and

actual injury in fact. In addition, the Supreme Court has stated that “requiring the

Government to explain in too much detail the particular reasons underlying a subpoena

threatens to compromise” grand jury secrecy. United States v. R. Enterprises, 498 U.S. 292,

299 (1991). Thus the United States meets the injury in fact requirement when it alleges that

Rule 3.8(f)’s provision regarding judicial approval of attorney subpoenas threatens grand jury

secrecy.


                                             -8-
       The defendants argue that the U. S. Attorneys’ Manual contains provisions that are

substantially similar to Rule 3.8(f), and consequently that Rule 3.8(f) does not require a

change in federal prosecutors’ behavior. However, Rule 3.8(f) requires far more from

federal prosecutors than does the U.S. Attorneys’ Manual. The Manual requires that all

subpoenas of attorneys for information relating to the representation of a client be approved

by the Assistant Attorney General of the Criminal Division. The Manual directs the

Assistant Attorney General not to approve such subpoenas unless “the information sought

is reasonably needed for the successful completion of the investigation or prosecution” and

“all reasonable attempts to obtain information from alternative sources shall have proved

unsuccessful.” Rule 3.8(f)’s requirements that attorney testimony be “essential” and that

there be “no other feasible alternative to obtain the information” set a higher standard for

obtaining attorney subpoenas than the Manual. More importantly, Rule 3.8(f) requires

judicial approval of attorney subpoenas after an adversarial hearing. This requirement

creates a substantial change in federal prosecutors’ practice. In addition, the adversarial

hearing required by the Rule jeopardizes grand jury secrecy; no provision in the Manual has

a similar effect. In sum, Rule 3.8(f) does change federal prosecutors’ practice, and the

United States’s allegations as to those changes establishes injury in fact.

       Federal prosecutors have challenged rules substantially similar to Colorado’s Rule

3.8(f) in the First and Third Circuits. Whitehouse v. United States District Court for the

District of Rhode Island, 53 F.3d 1349 (1st Cir. 1995); Baylson v. Disciplinary Bd. of the


                                            -9-
Supreme Court of Pennsylvania, 975 F.2d 102 (3d Cir. 1992). In Whitehouse, the court

upheld a federal district court’s adoption of a state ethical rule similar to Colorado’s Rule

3.8(f). 53 F.3d at 1355. The Baylson court held that adoption of such a rule falls outside the

rule-making authority of the federal courts. 975 F.2d at 104. What is significant for this

case, however, is that neither the Whitehouse nor the Baylson court addressed the issue of

standing. A federal court does not have jurisdiction over a case if the plaintiff does not have

standing, Valley Forge, 454 U.S. at 471-76, and a court must raise the standing issue sua

sponte, if necessary, in order to determine if it has jurisdiction. Orr v. Orr, 440 U.S. 268, 271

(1979); FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3d Cir.

1996); Bangerter v. Orem City Corp., 46 F.3d 1491, 1497 (10th Cir. 1995); In re Thompson,

965 F.2d 1136, 1140 (1st Cir. 1992). Although the First and Third Circuits did not address

standing when they decided cases very similar to this one, we must assume that those courts

believed that the plaintiffs had standing as both courts proceeded to address their respective

cases on the merits.

       In its opinion, the district court suggested that the United States could establish

standing only by alleging that disciplinary actions had been taken against a federal prosecutor

who had violated the rules. This is incorrect. Under the Declaratory Judgment Act, 28

U.S.C. § 2201, a plaintiff may seek declaratory relief before actual harm occurs if she has a

reasonable apprehension of that harm occurring. As we observed in ANR Pipeline v.

Corporation Commission of Oklahoma,


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       Parties need not . . . await the imposition of penalties under an unconstitutional
       enactment in order to assert their constitutional claim for an injunction in
       federal court. Once the gun has been cocked and aimed and the finger is on
       the trigger, it is not necessary to wait until the bullet strikes to invoke the
       Declaratory Judgment Act.

860 F.2d 1571, 1578 (10th Cir. 1988). Thus federal prosecutors need not risk disbarment by

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

       The United States filed this suit nearly a year after the rules went into effect. The

defendants suggest that this delay in filing suit undermines the United States’s standing. The

United States explains, however, that the U.S. Attorney requested exemptions from Rules

3.3(d) and 3.8(f) from federal district court of Colorado and the Colorado Supreme Court,

and waited for a response from those bodies before commencing this lawsuit. Such efforts

to avoid litigation do not cast doubt on standing in this case.

       In sum, we hold that the United States’s complaint sufficiently alleges the injury in

fact required for standing. Thus the decision of the district court is REVERSED, and this

case is REMANDED for further proceedings consistent with this opinion.




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