Full opinion text
ORDER This matter is before the.court on the petition for rehearing filed by the state of New Mexico parties, as well as the United States’ petition for rehearing en banc. Upon consideration of the New Mexico petition, the original panel grants panel rehearing in part and only to the extent of the changes made to pages 900-01, footnote 6, and pages 902-03 of the attached revised opinion. The clerk is directed to file the revised decision nunc pro tunc-to the original filing date of June 7, 2016. With respect to the United States’ petition, the original panel voted to deny any implicit request for panel rehearing. In addition, that petition was also circulated to all of the judges of the court who ap in regular active service and who are not recused. As' no judge on the panel or the court called for a poll, the United States’ petition is denied. In granting limited panel rehearing with respect to New Mexico’s petition, we note and emphasize that the portion of the request seeking en banc review remains pending. That part of the petition remains under advisement. Entered for the Court ELISABETH A. SHUMAKER, Clerk HOLMES, Circuit Judge. New Mexico Rule of Professional Conduct 16-308(E) (“Rule 16-308(E)”) prohibits a prosecutor from subpoenaing a lawyer to present evidence about a past or present client in a grand-jury or other criminal proceeding unless such evidence is “essential” .and “there is no other feasible alternative to obtain the information.” In a lawsuit brought against the New Mexico Supreme Court, and the state’s Disciplinary Board and Office of Disciplinary Counsel (“Defendants”), the United States claims that the enforcement of this rule against federal prosecutors licensed in New Mexico violates the Supremacy Clause of the U.S. Constitution. U.S. Const., art. VI, § 2. The district court concluded, on cross-motions for summary judgment, that Rule 16-308(E) is preempted with respect to federal prosecutors practicing before grand juries, but is not preempted outside of the grand-jury context. We agree. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I A The roots of Rule 16-308(E) can be traced to the adoption by the American Bar Association (“ABA”) of Model Rule of Professional Conduct 3.8(e). (“Model Rule 3.8(e)”). Faced with what was .perceived to be an “increasing incidence of grand jury and trial subpoenas directed toward attorneys defending criminal cases,” ABA Crim. Justice Section, Report with Recommendar tion to the ABA House of Delegates No. 122B, at 2 (Feb. 1988), the ABA issued Model Rule 3.8(e) in 1990.“to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship,” Model Rules of Profl Conduct r. 3.8(e) cmt. 4 (Am. Bar Ass’n 2015). As adopted, Model Rule 3.8(e) stated: The prosecutor in a criminal case shall: ([e]) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless: (1) the prosecutor reasonably believes: (a) the information sought is not protected from disclosure by an applicable privilege; (b) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; (c) there is no other feasible alternative to obtain the information; and' (2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding. ABA Standing Comm, on Ethics & Prof 1 Responsibility, Report with Recommendation to the ABA House of Delegates No. 118, at 1 (Feb. 1990). The rule, as originally adopted, ■ thus consisted of two components. Subsection (e)(1) governed prosecutors’ reasonable belief about the content of the information sought—i.e., that it was not privileged, was essential, and could not be obtained from any other feasible alternative. Subsection (e)(2) imposed a judicial preapproval requirement before a prosecutor could obtain an attorney subpoena. Several states promulgated versions of Model Rule 3.8(e), and legal challenges to these rules produced conflicting outcomes. The Third Circuit, for example, concluded that the judicial preapproval requirement in Pennsylvania’s version of Model Rule 3.8(e) conflicted with federal rules governing the issuance of subpoenas, and held that the enforcement of the rule against federal prosecutors was preempted. See Baylson v. Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102, 111-12 (3d Cir. 1992). In contrast, the First Circuit found that Rhode Island’s version of the rule created “no conflict with the Supremacy Clause.” Whitehouse v. U.S. Dist. Court for Dist. of R.I., 53 F.3d 1349, 1365 (1st Cir. 1995); Before our court, the United States challenged Colorado’s adoption of Model Rule 3.8(e). Specifically, we were called upon to review the district court’s dismissal of the United States’s action on jurisdictional grounds—that is, “[t]he 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.” United States v. Colo. Supreme Court (“Colorado Supreme Court I”), 87 F.3d 1161, 1163 (10th Cir. 1996). We reversed, however, concluding that, even though no federal prosecutor had been sanctioned under Colorado’s rule, the potential that it would “interfere with federal prosecutors in their conduct of, criminal proceedings and change- the nature of the federal grand jury in Colorado” was a sufficient injury in fact to render the case justiciable. Id. at 1165. The case later returned to us after the district court ruled on the merits of the United States’s challenge. See United States v. Colo. Supreme Court (“Colorado Supreme Court II ”), 189 F.3d 1281 (10th Cir. 1999). In the interim, the legal landscape had been altered in two salient ways. First, following the ABA’s lead, the Colorado Supreme Court amended its Rule 3.8(e) in 1997 by removing the judicial preapproval requirement. Id, at 1284.- Second, in 1998, Congress stepped in and enacted the McDade Act, 28 U.S.C. § 530B, which requires that: (a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same.extent and in the same manner as other attorneys in that State. (b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section. The Attorney General then promulgated regulations, pursuant to § 530B(b), stating that the statute “should not be construed in any way to alter federal substantive, procedural, or evidentiary law.” 28 C.F.R. § 77.1(b). As we framed it in Colorado Supreme Court II, the “question whether Rule 3.8 violate[d] the Supremacy Clause now turn[ed] on whether the rule [wa]s a rule of professional ethics clearly covered by the McDade Act, or a substantive or procedural rule that [wa]s inconsistent with federal law.” 189 F.3d at 1284. In a nutshell, the essence of the inquiry was whether Rule 3.8 was preempted by federal law. Significantly, we only addressed there, however, the question of whether Colorado’s Rule 3.8 was preempted outside of the grand-jury context—viz., the “trial” context. In this regard, in defining the scope of our analysis, we stated: “In its decision on remand, the district court determined that the restriction on grand jury proceedings violated the Supremacy Clause. Defendants have not appealed that determination and we do not address it here.” Id. Turning to the question at hand, we observed that Colorado’s Rule 3.8, inter alia, prescribed “broad normative principles of attorney self-conduct,” and we determined that “the rule in its current incarnation is a rule of ethics applicable to federal prosecutors by the McDade Act.” Id. at 1288-89. Nevertheless, we proceeded to determine whether this ethics rule was otherwise “inconsistent with federal law” and thus preempted. Id. at 1289. We con-eluded that it was not, and therefore it could be “enforced by the state defendants against federal prosecutors,” Id, B Against this backdrop, in 2008, New Mexico adopted Rule 16-308(E), which provides that: A prosecutor in a criminal case shall: E. not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any- applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information[.] N.M. Rules of Profl Conduct, N.M.R.A.’ 16-308(E). This rule is identical to the Colorado rule that we reviewed in Colorado Supreme Court II, Though the U.S. District Court for the District of New Mexico has generally adopted the New Mexico Rules of Professional Conduct, see D,N.M,LR-Cr. 57.2, it has chosen not to adopt Rule 16-308(E), see D.N.M. Admin. Order No. 10-MC-00004-9 (Mai'. 23, 2010). Nonetheless, the rule continues to apply to the conduct of federal, prosecutors licensed to practice in New Mexico, and a violation of the rule can form the basis for disciplinary sanctions. See N.M. Rules Governing Discipline, N.M.R.A. 17-205. The United States filed suit against Defendants in April 2013, arguing that the second and third requirements of Rule 16-308(E)—i.e., the essentiality and no-other-feasible-alternative conditions—were preempted by federal law. From the outset, these two provisions have been the only ones at issue in this litigation. Defendants moved to dismiss the complaint for lack of subject-matter jurisdiction, arguing that the United States lacked standing and that the case" was not ripe in the absence of an actual or threatened disciplinary action against a federal prosecutor. The district court rejected this argument and denied the motion. Relying in large part on our decision in Colorado Supreme Court I, it concluded that the complaint sufficiently alleged an injury in fact, to the extent that Rule 16-3Q8(E) altered federal prosecutors’ attorney-subpoena practice. It also determined that the case was ripe because “the preemption issue is purely a question of law,” Aplts.’ App. at 152 (Mem. Op. & Order Den. Mot. to Dismiss, filed Nov. 1, 2013). ' The United States moved for summary judgment in June 2013, before the parties had engaged in any discovery. Attached to its summary-judgment motion, the United States submitted the affidavit of an Assistant U.S. Attorney in the District of New Mexico. The declaration described several instances in which prosecutors in the U.S. Attorney’s Office (“USAO”) had issued attorney subpoenas prior to the enactment of Rule 16-308(E); it suggested that, even though “[t]his evidence was obtained in a lawful manner [and] implicated no privilege,” had Rule 16-308(E) been in effect, “it is unlikely the prosecutor would have served the subpoena[s].” Id. at 80-81 (Decl. of Sasha Siemel, filed June 28, 2013). Addressing the ruléis current effect on the USAO’s work, the declarant noted that “Rule 11—308(E) has a ■chilling’ effect on prosecutors.” Id. at 88. After averring that there are “many examples of such situations,” the declaration discussed, in general terms—with the aim of preserving grand-jury secrecy—several specific instances in which prosecutors “have already actually [been] hampered ... in the performance of their otherwise lawful duties” by concerns that they would be disciplined for violating the essentiality or no-other-feasible-alternative conditions of Rule 16-308(E). Id. at 84. The declaration further provided: These situations demonstrate that well-meaning prosecutors using legal means of obtaining evidence of criminality are subject to discipline simply for performing their duties. Federal grand juries in the District of New Mexico will continue in the future to need- evidence of crimes from lawyers. In many such cases, the most appropriate means of obtaining that evidence will be by subpoena.... If enforced against federal prosecutors, Rule 16-308(E) will interfere directly with efforts of this Office and the Department of Justice to enforce the criminal laws of the United States. Mat 88-89. Defendants filed a motion pursuant to Federal Rule of Civil Procedure 56(d), asking the court to delay ruling on the United States’s summary-judgment motion pending the completion of discovery. In the alternative, they moved for summary judgment on the existing record, claiming that Rule 16-308(E) was a permissible ethics rule under the McDade Act and our opinion in Colorado Supreme Court II. The district court denied Defendants’ Rule 56(d) motion, concluding that further factual development was unnecessary to decide the “purely legal question” of “whether or not Rule 16-308(E) is an ethical rule or a substantive rule.” Id. at 261 (Order Den. Defs.’ 56(d) Request for Extension of Time, filed Nov. 27,2013). After further briefing and argument, the court granted partial summary judgment in favor of the United States and partial summary judgment in favor of Defendants. Specifically, it determined that our decision in Colorado Supreme Court II compelled the conclusion that Rule 16-308(E) was not preempted by federal law as to criminal proceedings outside of the grand-jury context. However, it determined that the rule conflicted with “three strong governmental interests in grand jury proceedings of ¶ (1) ] affording grand juries wide latitude, [(2)] avoiding minitrials on peripheral matters, and [.(3)] preserving a necessary level: of secrecy.’ ” Id. at 321 (Mem. Op. & Order, filed Feb. 3, 2014) (alterations in original) (quoting United States v. R. Enters., Inc., 498 U.S. 292, 300, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991)). In particular, the court noted that the rule imposed,“a higher burden on federal prosecutors that is simply not warranted at the grand jury stage” and threatened grand-jury secrecy by forcing prosecutors to disclose details of confidential investigations in order to avoid disciplinary sanctions. Id. at 322. The district court thus upheld the application of Rule 16-308(E) to federal prosecutors’ issuance of attorney subpoenas for criminal proceedings outside of the grand-jury context, but enjoined Defendants from “instituting, prosecuting, or continuing any disciplinary proceeding or action against any federal prosecutor for otherwise lawful actions taken in the course of a grand jury investigation or proceeding on the ground that such attorneys violated Rule 16-308(E) of the New Mexico Rules of Professional Conduct.” Id. at 326-27 (Final J., filed Feb. 3,2014). 11 Both parties appeal from the district court’s judgment. Defendants challenge the district court’s subject-matter jurisdiction, its denial of their request for farther discovery, its holding that Rule 16-308(E) conflicts with federal law governing grand juries, and the scope of the injunction that the court issued. The United States challenges the district court’s conclusion that Rule 16—308(E) is not preempted outside of the grand-jury context. The United States’s appellate challenge, however, is primarily form, not substance. Though it seeks to “preserve [the preemption issue] for possible further review,” Aplee.’s/Cross-Aplt.’s Reply Br. (“U.S. Reply Br.”) at 12, the United States acknowledges the precedential force of Colorado Supreme Court II and thus concedes that Rule 16-308(E) is not preempted by federal law outside of the grand-jury context. Consequently, we resolve the United States’s appeal in summary fashion below. The heart of the parties’ dispute relates to whether Rule 16-308(E) is preempted relative to federal prosecutors’ issuance of attorney subpoenas in the grand-jury context. Consequently, our analysis naturally focuses extensively on this issue. However, before reaching the merits of this question, we must address Defendants’ threshold contentions regarding subject-matter jurisdiction and the district court’s refusal to allow them further discovery. A Defendants claim that the district court lacked subject-matter jurisdiction over this dispute because the United States does not have standing and because the ease is not ripe for review. We review questions of justiciability—including standing and ripeness—de novo. See Kan. Judicial Review v. Stout, 519 F.3d 1107, 1114 (10th Cir. 2008); accord Roe No. 2 v. Ogden, 253 F.3d 1225, 1228, 1231 (10th Cir. 2001). We determine ultimately that there is an adequate legal basis for subject-matter jurisdiction here. 1 Standing, as “a component of the case-or-controversy requirement [of Article III], serves to ensure that the plaintiff is ‘a proper party to invoke judicial resolution of the dispute.’ ” Habecker v. Town of Estes Park, 518 F.3d 1217, 1223. (10th Cir. 2008) (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In order to demonstrate standing, a plaintiff must show: “(1) that he or she has ‘suffered an injury in fact,’ (2) that the injury is ‘fairly traceable to the challenged action of the defendant,’ and, (3) that it is ‘likely1 that ‘the injury will be redressed by a favorable decision.’ ” Cressman v. Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013) (quoting Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir. 2012)). Defendants challenge the adequacy of the United States’s allegations of injury at both the pleading and summary-judgment stages. They also claim that any harm that the United States suffered was self-inflicted—notably, based on a speculative fear of disciplinary sanctions—and is thus insufficient to establish an injury in fact. We reject these arguments, concluding that the United States has standing to bring this lawsuit in federal court. a “When evaluating a plaintiffs standing at [the motion to dismiss] stage, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Cressman, 719 F.3d at 1144 (alteration in original) (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc)); accord S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). While the burden of establishing standing at this stage of the litigation “is lightened considerably,” Petrella v. Brownback, 697 F.3d 1285, 1292 (10th Cir. 2012), “[t]he injury alleged must be ‘concrete and particularized,”’ id. at 1293 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)). The complaint here alleges that (1) Rule 16-308(E) imposes higher substantive standards for grand-jury and trial subpoenas than those established by federal law; (2) approximately seventy federal prosecutors in the District of New Mexico are licensed in New Mexico, and are thus subject to discipline under the New Mexico Rules of Professional Conduct; (3) these federal prosecutors have “changed their practices in criminal investigations” and have-been deterred from issuing attorney subpoenas for fear of disciplinary proceedings under Rule 16-308(E), Aplts.’ App. at 13 (Compl., filed Apr. 30, 2013); and (4) as a result, the information available to grand juries and courts in the District of' New Mexico has been limited—impairing the United States’s interest in the “effective conduct of federal criminal investigations and prosecutions,” id. at 18. In Colorado Supreme Court I, we concluded that an alleged injury of a similar nature—viz., the “delays [in] the presentation of evidence to grand juries” due to the enforcement of a state attorney-subpoena rule—established a “concrete, particularized, and actual injury in fact.” 87 F.3d at 1165; see id. (“These allegations are sufficient to withstand a motion to dismiss.”). Defendants seek to distinguish that decision because the Colorado rule at issue involved a judicial preapproval requirement; such a distinction, however, is not persuasive. We specifically addressed the essentiality and no-other-feasible-alternative conditions—which appear verbatim in New Mexico’s Rule 16-308(E)—and concluded that these “require[d] far more from federal prosecutors” and “set a higher standard for obtaining attorney subpoenas” than is required by federal law or internal agency guidelines. Id. at 1166. In other words, we held that these two conditions imposed sufficiently concrete and particularized injuries on the United States to give it standing. Thus, at the motion-tó-dismiss stage, the United States’s specific aver-ments—i.e, indicating that Rule 16-308(E) has deterred federal prosecutors from issuing otherwise-permissible attorney subpoenas, thereby limiting the presentation of relevant evidence in grand-jury and other criminal proceedings—“sufficiently allege[] the injury in fact required for standing.” Id. at 1167., b - At the summary-judgment stage, mere allegations no longer suffice; instead “the elements of standing must be set forth, through specific facts, by affidavit or other evidence.” Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004); accord Protocols, LLC v. Leavitt, 549 F.3d 1294, 1298 (10th Cir. 2008). Defendants claim that the declaration submitted with the United States’s motion for summary judgment lacks the requisite specificity because it “does not tie any alleged past injury to the application of the challenged rule” and “does not identify any particular subpoena that is presently at issue.” Aplts.’/Cross-Aplees.’ Principal Br. (“Aplts.’ Opening Br.”) at 34. Contrary to Defendants’ assertions, the summary-judgment declaration contains several factual statements demonstrating how Rule 16-308(E) has worked to the detriment of federal prosecutors. In particular, after generally averring that there are “many examples of such situations,” the declaration specifically describes several instances in which prosecutors “have already actually [been] hampered ... in the performance of their otherwise lawful duties” by concerns that they would be disciplined for violating the essentiality or no-other-feasible-alternative conditions of Rule 16-308(E). Aplts.’ App. at 84. For example, the declaration offered the following: The [USAO] investigated an investment fraud scheme perpetrated by a target who, upon learning that he was under investigation, hired a criminal defense attorney. The target used money generated by the scheme to pay for his criminal defense, but he told a witness he had used the money to pay the attorney for legal work related to the supposed investment. Only the target and the attorney were in a position to testify that the victim funds were used for his criminal defense and not for any actual investment-related purposes. The threat of ethical sanctions posed by Rule 1 6-308(E) prevented the prosecutor from .seeking this important evidence from the attorney. Consequently, had the subpoena been issued, the prosecutor would have risked being accused of seeking evidence that might later have been deemed obtainable by alternative means or not ‘essential’ under Rule 16-308(E). Id. at 84-85. This and the other examples offered in the declaration illustrate the United States’s alleged injury with adequate particularity. Furthermore, prosecutors’ efforts to avoid sanctions, and the resulting reduction in available evidence in grand-jury and other criminal proceedings, demonstrate sufficient injuries to establish federal-court jurisdiction. See Cressman, 719 F.3d at 1145 (concluding that costs “incurred] to avoid prosecution” could confer standing on the plaintiff); Colorado Supreme Court I, 87 F.3d at 1167 (“[E]fforts to avoid litigation do not cast doubt on standing.... ”); cf. Stern v. U.S. Dist Court for the Dist. of Mass., 214 F.3d 4, 11-12 (1st Cir. 2000) (citing Colorado Supreme Court I in addressing ripeness, and noting that “[t]he threat of ethics enforcement is genuine, compliance costs are real and immediate, and the- chilling effect on attorney subpoena requests constitutes an injury sufficient to support a justiciable controversy”). Moreover, the declaration discusses a case in which counsel for a criminal defendant sought to quash an attorney subpoena on the basis that the prosecutor had obtained it in violation of Rule 16-308(E). Although this attempt to quash the subpoena failed, the declarant avers that the defense lawyer could have also filed an ethics complaint against the prosecutor. See generally N.M. Rules Governing Discipline, N.M.R.A. 17-102(A) (stating that the Disciplinary Board may initiate an investigation “upon complaint by any person”). In sum, we are satisfied that, at the summary-judgment phase, the United States adequately demonstrated standing. c However, Defendants maintain that, in the absence of any actual or threatened enforcement action based on a particular subpoena, federal prosecutors have imper-missibly attempted to “manufacture standing merely by inflicting harm on themselves” by voluntarily declining to issue certain attorney subpoenas. Aplts.’ Opening Br. at 28 (quoting Clapper v. Amnesty Int’l USA, - U.S. —, 133 S.Ct. 1138, 1151, 185 L.Ed.2d 264 (2013)). i We do not require “a plaintiff [to] risk actual prosecution before challenging an allegedly unconstitutional ... statute.” Bronson v. Swensen, 500 F.3d 1099, 1107 (10th Cir. 2007). “Standing may still exist even when a plaintiff ends the proscribed behavior, so long as a credible threat remains that such behavior, if taken in the future, would be prosecuted.” Id. at 1108; see also D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004) (requiring an “objectively justified fear of real consequences, which can be satisfied by showing a credible threat of prosecution or other consequences following from the statute’s enforcement”). The threat of prosecution is generally credible where a challenged “provision on its face proscribes” the conduct in which a plaintiff wishes to engage, and the state “has not disavowed any intention of invoking the ... provision” against the plaintiff. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); see, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 16, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (concluding that plaintiffs had alleged a credible threat of prosecution where the “Government has not. argued .... that plaintiffs will not be prosecuted if they do what they say they wish to do”); Cressman, 719 F.3d at 1145 (holding that the threat of prosecution was credible where state officials had informed the plaintiff that he could be prosecuted for disobeying the challenged statute); of. Stem, 214 F.3d at 10 (concluding that the U.S. Attorney’s suit was ripe where the rule imposed new substantive and procedural requirements on federal prosecutors and “Bar Counsel ha[d] stated unequivocally that he w[ould] enforce those requirements”). Here, federal prosecutors licensed in New Mexico are bound by the entirety of the New Mexico Rules of Professional Conduct, including the challenged provisions of Rule 16-308(E), and may be disciplined for violating those rules. See N.M. Rules Governing Discipline, N.M.R.A. 17-205. Rule 16-308(E) explicitly proscribes the types of attorney subpoenas federal prosecutors under certain circumstances may want to issue—namely, those that are not “essential” to an investigation and for which a feasible alternative might exist. And the federal prosecutor’s declaration submitted by the United States provides concrete evidence of ongoing desire and need of prosecutors in carrying out their lawful duties to issue such subpoenas. Cf Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 549 (10th Cir.2016) (concluding that certain organizations had not established standing “[a]bsentany testimony indicating ... [they] intended to engage in conduct that might violate” the statute at issue). Notably, Defendants have not indicated that the federal prosecutors will not be subject to discipline for disobeying Rule 16-308(E). Thus, even in the absence of any actual enforcement action, Rule 16-308(E) creates a sufficiently credible threat of prosecution to confer standing upon the United States. ii Defendants base their self-inflicted-injury argument on Clapper v. Amnesty International USA; however, their reliance on this case is misguided. There, the Supreme Court held that precautions taken by the plaintiffs to avoid the interception of their communications under the Foreign Intelligence Surveillance Act of 1978 were self-inflicted, and did not establish standing, because the statute did “not regulate, constrain, or compel any action on [the plaintiffs’] part.” Clapper, 133 S.Ct. at 1153. The Court emphasized that any injury to the plaintiffs rested on a “highly attenuated chain of possibilities”—viz., that the government would (1) target specific individuals that the plaintiffs communicated with; (2) invoke its authority under the statutory provision at issue; (3) obtain authorization for the interception from a judge; and (4) actually intercept communications involving the plaintiffs. Id. át 1148. However, in reviewing its standing jurisprudence, the Court recognized that, in contrast, “reasonable efforts [taken] to avoid greater injuries” could be sufficient for standing if the plaintiffs “would be subject to [discipline] but for their decision to take preventative measures.” Id. at 1153 (emphasis added) (discussing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010), Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), and Meese v. Keene, 481 U.S. 465, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987)). This scenario—where standing could be found—which Clapper used to distinguish the circumstances before it, is actually akin to the scenario of the present case. Thus, far from aiding Defendants, Clapper reinforces the view that where federal prosecutors licensed in New Mexico take precautions that significantly hinder them from carrying out their lawful responsibilities to investigate and prosecute crimes, in order to avoid possible disciplinary investigations and sanctions from state ethics officials, then the United States has suffered a cognizable injury for standing purposes. Lastly, in placing another spin on their self-inflicted injury argument against standing, Defendants draw our attention to the fact that federal attorneys can practice before the District Court for the District of New Mexico without being licensed in New Mexico. In other words, they point out that the United States Attorney could hire only attorneys without New Mexico law licenses as prosecutors in the District of New Mexico office, or those seeking to be federal prosecutors in that office could forego a New Mexico law licenses in favor of bar membership in another, less restrictive jurisdiction. In view of these alternatives, Defendants argue that the individual choices of federal prosecutors or would-be federal prosecutors to hold New Mexico law licenses—and thus subject themselves to Rule 16-308(E)—amounts to a self-inflicted injury, and not a harm occasioned by, or fairly traceable to, Defendants’ conduct relative to Rule 16-308(E). Defendants’ position, however, is unconvincing because it is an injury in itself to avoid lawful conduct—viz., obtaining a New Mexico law license—in order to avoid the application of an allegedly unlawful Rule. See Meese, 481 U.S. at 475,107 S.Ct. 1862 (explaining that “the need to take ... affirmative steps to avoid the risk of harm ... constitutes a cognizable injury”); Dias v. City & Cty. of Denver, 567 F.3d 1169, 1177 (10th Cir. 2009) (concluding that the plaintiffs “suffered actual injuries because they were forced to move from Denver to avoid the reach of the [arguably unlawful] Ordinance”). Accordingly, we reject this iteration of Defendants’ self-inflicted injury argument. iii Twenty years ago, we stated that “federal prosecutors need not risk disbarment by violating the Colorado Rules in order to challenge those rules in federal court.” Colorado Supreme Court I, 87 F.3d at 1167. Defendants do not persuade us that we should adopt a different position with respect to New Mexico Rule 16-308(E). At both the pleadings and summary-judgment stages of this litigation, the United States has adequately articulated its alleged injury. That injury—e.g., the issuance of fewer attorney subpoenas, resulting in a reduction in otherwise available evidence for law enforcement purposes—is not based on an attenuated alignment of a variety of events. Rather, it stems from, and is traceable to, the higher and conflicting standards imposed by Rule 16-308(E), which restrict federal prosecutors’ issuance of attorney subpoenas. And the relevant state authorities have not, disavowed an intention to sanction federal prosecutors who run afoul of these standards. In other words, the United States plainly faces a cognizable injury, traceable to Rule 16-r 308(E), and we conclude that it has standing to challenge Rule 16-308(E). 2 The “[rjipeness doctrine addresses a timing question: when in time is it appropriate for a court to take up the asserted claim.” Kan. Judicial Review, 519 F.3d at 1116 (alteration in original) (quoting ACORN v. City of Tulsa, 835 F.2d 735, 738 (10th Cir. 1987)). “Ripeness reflects constitutional considerations that implicate Article III limitations on judicial power, as well as prudential reasons for refusing to exercise jurisdiction.” Awad, 670 F.3d at 1124 (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010)). The requirements of standing and constitutional ripeness overlap; if an injury “is sufficiently ‘imminent’ to establish standing, the constitutional requirements of the ripeness doctrine will necessarily be satisfied.” Id. (quoting ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999)); see also Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341 n.5, 189 L.Ed.2d 246 (2014). The prudential requirements, however, turn on “both the ‘fitness of the issues for judicial decision’ and the ‘hardship to the parties of withholding court consideration.’ ” Ohio Forestry Ass’n, Inc: v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)); accord United States v. Vaquera-Juanes, 638 F.3d 734, 737 (10th Cir. 2011). Defendants invoke prudential considerations, challenging only the fitness of the preemption claim for judicial review. They argue that, in the absence of a pending state enforcement action, the United States’s complaint rests on “an abundance of uncertain or contingent future events,” including the issuance of a subpoena that violates Rule 16-308(E) and the filing of a disciplinary complaint against the issuing prosecutor. Aplts.’ Opening Br, at 31-32. Yet these contingencies would only be relevant if waiting for them to play out would “significantly advance our ability to deal with the legal issues presented [ ]or aid us in their resolution.” Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); accord Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 812, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). But waiting would not have this effect. While Defendants assert that the preemption claim remains “too abstract and theoretical” in the absence of a specific investigation, Aplts.’ Opening Br. at 33, in reality, the claim turns on whether Rule 16-308(E) is an ethics rule permitted by the McDade Act and, if so, whether it nonetheless conflicts with federal law governing prosecutors’ subpoena practices before federal grand juries and federal district courts. These questions are matters of law that can be resolved without further factual development. See Colorado Supreme Court II, 189 F.3d at 1284 (noting that “this appeal ... presents purely legal questions”); accord Stern, 214 F.3d at 10 (“The issue presented can be finally resolved by declaratory judgment, its. contours are sharply defined, and additional facts will not affect its resolution.”); see also Awad, 670 F.3d at 1124 (“[0]n fitness, we ‘focus[] on whether determination of the merits turns upon strictly legal issues or requires facts that may not yet be sufficiently developed.’ ” (second alteration in original) (quoting Stout, 519 F.3d at 1118)). Indeed, several courts—including our own—have resolved challenges to similar state attorney-subpoena rules in the absence of specific applications, suggesting that the United States’s claim here is fit for judicial resolution. See Stern, 214 F.3d at 9; Colorado Supreme Court II, 189 F.3d at 1284; Whitehouse, 53 F.3d at 1353-54; Baylson, 975 F.2d at 105. Thus, because the question presented in this appeal—viz., whether the challenged provisions of Rule 16-308(E) are preempted by federal law— would not be “better grasped when viewed in light of a particular application,” Texas v. United States, 523 U.S. 296, 301, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998), we consider it ripe for judicial review. B Having determined that the district court’s subject-matter jurisdiction over this case was sound, we turn now to Defendants’ claim that the court committed reversible error by denying their Federal Rule of Civil Procedure 56(d) motion to stay its ruling on summary judgment pending the completion of discovery. We review the denial of a Rule 56(d) motion for an abuse of discretion—a standard that “implies a degree of ‘[discretion invested in judges [to render] a decision based upon what is fair in the circumstances and guided by the rules and principles of law.’ ” Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010) (alterations in original) (quoting In re Bueno, 248 B.R. 581, 582 (Bankr. D. Colo. 2000)). As such, even though the general rule is that summary judgment should not be entered “where the nonmoving party has not had the opportunity to discover information that is essential'to his opposition,” Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)), we will not reverse a ruling denying discovery unless it “exceedfs] the bounds of the rationally .available choices given the facts and the applicable law in the case at hand,” FDIC v. Arciero, 741 F.3d 1111, 1116 (10th Cir. 2013) (quoting Valley Forge Ins. Co., 616 F.3d at 1096), Here, the district court denied the Rule 56(d) motion because it concluded that the case would turn on “whether or not Rule 16-308(E) is an ethical rule or a substantive rule,” such that “the wording of the rule itself, not factual circumstances surrounding the enactment or enforcement of the rule” would be determinative. Aplts.’ App. at 261. This observation is consistent with our prior conclusion that the issue of whether federal law preempts a state attorney-subpoena rule “presents purely legal questions.” Colorado Supreme Court II, 189 F.3d at 1284; see also Stern, 214 F.3d at 10 (concluding that the issue of an attorney-subpoena rule’s validity was “sharply defined, and additional facts w[ould] not affect its resolution”). Indeed, much of the district court’s order is devoted to discussing relevant decisions from other circuits addressing preemption claims involving similar state attorney-subpoena rules, and ultimately “[w]ith the guidance of the ... cited precedent, the [c]ourt f[ound] that Rule 16-308(E), as applied to grand jury proceedings, violate[d] the Supremacy Clause.” Aplts.’ App. at 322. The facts as to which Defendants sought discovery—including whether Rule 16-308(E) actually causes delay and whether there have been any disciplinary proceedings—were not “essential to [their] opposition.” Price, 232 F.3d at 783 (emphasis added). These facts, even if established, would not have affected the district court’s central legal conclusion—notably, that Rule 16-308(E) creates a higher and conflicting standard for attorney subpoenas in the federal grand-jury context, and thus impermissibly limits the types of subpoenas prosecutors may issue. As such, the court did not abuse its discretion in denying Defendants’ Rule 56(d) motion. See CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008) (“[W]e have affirmed the denial of Rule 56[ (d) ] motions ... if ‘further discovery would not have changed the legal and factual deficiencies.’” (quoting Maid v. Laakko, 88 F.3d 361, 367 (6th Cir. 1996))). C Turning to the central dispute in this case, the United States argues that Rule 16-308(E)—more specifically, subsections (E)(2) and (E)(3), the essentiality and no-other-feasible-alternative requirements— are preempted under the Supremacy Clause of the U.S. Constitution with respect to federal prosecutors’ subpoena practices before grand juries and in other criminal proceedings. See U.S. Const., art. VI, § 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land — ”). Conversely, Defendants argue that the rule is not preempted in either context. The district court granted partial summary judgment to the United States, finding that the rule was preempted when applied to federal prosecutors’ subpoena practice before grand juries because it conflicted with certain governmental interests—e.g., preserving grand-jury secrecy and affording grand juries wide latitude to investigate. However, outside of the realm of grand juries, the district court concluded that it was bound by Colorado Supreme Court II, in which we held that an identical Colorado ethics rule was not preempted by federal law governing prosecutors practicing in other criminal proceedings before federal district courts. “We review the district court’s grant of partial summary judgment de novo, applying the same legal standards as the district court.” Qwest Corp. v. AT & T Corp., 479 F.3d 1206, 1209 (10th Cir. 2007). “Where, as here, we are presented with cross-motions for summary judgment, we ‘must' view each motion separately/ in the light most favorable to the non-moving party, and draw all reasonable inferences in that party’s favor.” Manganella v. Evanston Ins. Co., 702 F.3d 68, 72 (1st Cir. 2012) (quoting OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir. 2012)); see also Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1030 (10th Cir. 2007) (“Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.” (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979))). 1 ■ We begin by inquiring into the nature of the United States’s “claim and the relief that would follow.” John Doe No. 1 v. Reed, 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010); see Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 248, 130 S.Ct. 1324, 176 L.Ed.2d 79 (2010) (“Our first task in resolving-this question is to determine the contours of Milavetz’s claim.”); accord United States v. Carel, 668 F.3d 1211, 1217 (10th Cir. 2011). This subject is an important one, and the parties’ arguments evince considerable uncertainty and disagreement regarding it. In Carel, we succinctly described the two relevant analytical constructs': An appellant may challenge the constitutionality of a statute by asserting a facial challenge, an as-applied challenge, or both. “A facial challenge is a head-on attack [on a] legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications.” United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007). In contrast, “[a]n as-applied challenge concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case.” Id. (emphasis added); see also N.M. Youth Organized v. Herrera, 611 F.3d 669, 677 n.5 (10th Cir. 2010) (“[An] ‘as-applied’ challenge to a law acknowledges that the law may have some potential constitutionally permissible applications, but argues that the law is not constitutional as applied to [particular parties].”). Carel, 668 F.3d at 1217 (alterations in original) (citation omitted). As the Supreme Court has recognized, however, “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010); see Reed, 561 U.S. at 194, 130 S.Ct. 2811 (noting as -to the parties’s disagreement regarding whether the claim at issue “is properly viewed as a facial or as-applied challenge,” that “[t]he label is not what matters”); see also Ctr. for Indiv. Freedom v. Madigan, 697 F.3d 464, 475 (7th Cir. 2012) (“[F]acial challenges and as-applied challenges can overlap conceptually.”); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1336 (2000) (“Facial challenges are not sharply categorically distinct from as-applied challenges to the validity of statutes.”). In other words, “facial” and “as-applied” are not necessarily antipodal rubrics. Indeed, “the line between facial and as-applied relief is a fluid one, and many constitutional challenges may occupy an intermediate position on the spectrum between purely as-applied relief and complete facial invalidation.” Am. Fed’n of State, Cty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 865 (11th Cir. 2013); see Showtime Entm’t, LLC v. Town of Mendon, 769 F.3d 61, 70 (1st Cir. 2014) (“[T]his case highlights the sometimes nebulous nature of the distinction between facial and as-applied challenges, for Showtime’s challenge does not fit neatly within our traditional concept of either type of claim”). This proposition is especially relevant here. The United States’s claim “obviously has characteristics of both” a facial and as-applied claim. Reed, 561 U.S. at 194, 130 S.Ct. 2811; see Carel, 668 F.3d at 1217 (“Mr. Carel’s claim that [42 U.S.C.] § 16913 is unconstitutional has characteristics of both a facial and as-applied challenge.”); see also Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 426 (5th Cir. 2014) (noting that “the precise boundaries of facial and as-applied challenges are somewhat elusive—certain challenges can have characteristics of both”). The .United States contends that Rule 16-308(E) “impermissibly imposes procedural and substantive requirements on federal prosecutors [licensed in New Mexico] that are inconsistent with federal.law and therefore violates the Supremacy Clause.” Aplee.’s/Cross-Aplt.’s Br. (“U.S. Response Br.”) at 7; see Aplts.’ App. at 7 (“As applied to federal prosecutors, New Mexico Rule of Professional Conduct 16-308(E) ... violates the Supremacy Clause_”). Its “claim is ‘as applied’ in the sense that it does not seek to strike the [New Mexico rule] in all its applications, but only to the extent it covers [federal prosecutors licensed to practice law in New Mexico], The claim is ‘facial’ in that it is not limited to [a] particular case [i.e., a particular federal prosecutor’s issuance of a specific attorney subpoena], but challenges application of the law more broadly to all. [attorney subpoenas issued by all federal prosecutors licensed in New Mexico].” Reed, 561 U.S. at 194, 130 S.Ct. 2811. Put another way, the United States’s claim has characteristics of a facial challenge because it attacks on purely legal grounds—i.e., under the Supremacy Clause—certain provisions of Rule 16-308(E) and contends that they are per se invalid. In this regard, the claim does not relate to the circumstances of any particular attorney subpoena or any particular trial or grand-jury investigation. But the claim also has characteristics of an as-applied challenge because it focuses solely on the constitutional ramifications of Rule 16-308(E)’s challenged provisions as they apply to a specific, . narrowly defined group—federal prosecutors licensed in New Mexico; it does not seek a determination that the rule is invalid as applied to any other category of prosecutors (e.g., state or local prosecutors), and thus not all applications of the. challenged provisions are encompassed by the claim. The unique duality of the United States’s preemption claim has engendered disagreement among the parties, and also some uncertainty—notably, by the claim’s proponent, the United States—regarding how to properly characterize it. The United States has emphasized in litigating the jurisdictional, prudential justiciability, and discovery issues that the claim is “facial”; in so doing, it has sought to underscore the legal nature of the claim. See, e.g., Aplts.’ App. at 116 (PL’s Opp. to Defs.’ Mot. to Dismiss, filed Sept. 20, 2013) (stating in opposing Defendants’ motion to dismiss on standing and ripeness grounds that the “ease is a facial challenge to the constitutionality of Rule 16-308(E), on grounds that the Rule invades a field completely occupied by federal regulation and conflicts with federal law” (emphasis added)); id. at 265 (Pl.’s (Am.) Combined Opp. to Defs.’ Mot. for Summ. J. & Reply in Supp. PL’s Mot. for Summ. J., filed Dec. 18, 2013) (citing the district court’s “eorrect[ ]” holding “that this matter is ripe for adjudication because facial challenges based upon preemption are fit for review even without additional factual development or actual enforcement of the law”). But, in arguing the merits of the preemption claim, the United States has stressed that it only seeks to invalidate Rule 16-308(E) as applied to a limited subset of prosecutors—i.e., federal prosecutors licensed in New Mexico. See id. at 20 (seeking a declaration in its complaint that Rule 16-308(E) was “invalid, null, and void, as applied to federal attorneys for otherwise lawful actions” (emphasis added)); id. at 33 (Mem. in Supp. of PL’s Mot. for Summ. J., filed June 28, 2013) (“If applied to federal prosecutors, the Rule violates the Supremacy Clause of the United States Constitution^] ... Rule 16-308(E) is therefore void as applied to federal prosecutors.”); id. at 49 (“[A]s applied to federal attorneys, Rule 16-308(E)_is not in fact an ‘ethical’ rule, and is invalid as applied to federal attorneys[.] ... ”). Perhaps not surprisingly, the language of the district court’s orders reflects the duality of the claim, and it also uses the labels “facial” and “as-applied” in a manner that approximates the United States’s (i.e., the plaintiffs) framing of its case. In its decision denying New Mexico’s motion to dismiss for lack of standing and ripeness, for example, the district court described the action as “facially challenging the New Mexico Rule .... as it applies to federal prosecutors.” Id. at 143. The court emphasized what it understood to be the facial nature of the challenge. See, e.g., id. at 151 (“The overwhelming majority of courts hold that cases involving facial challenges based upon preemption are fit for judicial review even without specific factual development.”). In denying Defendants further discovery, the court again held that “facial preemption challenges can be decided even in the absence of a detailed factual record.... The determination [of whether Rule 16-308(E) is preempted] is based upon the wording of the rule itself, not factual circumstances surrounding the enactment or enforcement of the rule.” Id. at 260-61 (Order Den. PL’s Mot. to Stay Briefing & Defs.’ 56(D) Req. for Extension, filed Nov. 27, 2013). Finally, in its order granting partial summary judgment to both parties, though the court noted that it was addressing a “facial[] chal-leng[e]” to Rule 16-308(E), it also explicitly recognized that the United States sought to declare the rule invalid only “as it applies to federal prosecutors.” Id. at 306 (Mem. Op. & Order Granting Partial Summ. J., filed Feb. 3, 2014); see also id. at 306 n.2 (“The Court assumes that Plaintiff only intended to bring this suit on behalf of federal prosecutors.... ”). 2 The unique duality of the United States’s preemption claim gives rise to an issue that we must address before resolving the merits: whether the United States is judicially estopped from relying on its version of an “as-applied” argument in attacking on appeal the substantive validity of Rule 16-308(E), given its heavy reliance oh “facial” arguments before the district court and the court’s acceptance of such arguments. More specifically, Defendants contend that the United States should be judicially estopped on appeal from “switchfing] to an as-ápplied challenge for purposes of avoiding the more stringent requirements for prevailing on the merits of a facial preemption challenge” after “[hjaving obtained the benefit of [ ] rulings from the district court based on a facial challenge.” Aplts.’/Cross-Aplees.’ Response and Reply Br, (“Aplts.’ Reply Br.”) at 19-20. They highlight a passage of the United States’s appellate brief, wherein it states that “the United States challenges Rule 16-[3]08(E) only as-applied to federal prosecutors and only to those who seek to take ‘otherwise lawful actions’ prohibited by the New Mexico rule.” U.S. Response Br. at 55 (quoting Aplts.’ App. at 20). The United States goes on to argue that certain principles governing facial challenges that the Supreme Court has announced do not apply because of the limited scope of its claim. Specifically, it contends that they “would not apply because the United States is not challenging all of the applications of the New Mexico Rule, but rather a limited set of applications.” Id. at 56. Thus, advocating for the application of facial standards, Defendants contend that the United States should be judicially estopped from making such an argument. For two salient, independent reasons, however, we reject this contention. Under the judicial-estoppel doctrine, “[w]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 39 L.Ed. 578 (1895)). While the circumstances that trigger judicial estoppel are “not reducible to ány general formulation,” id. at 750, 121 S.Ct. 1808, “nevertheless[ ] the Supreme Court has identified three relevant factors,” BancInsure, Inc. v. FDIC, 796 F.3d 1226, 1240 (10th Cir. 2015), petition for cert, filed sub nom. McCaffree v. BancInsure, — U.S. -, 136 S.Ct. 2462, 195 L.Ed.2d 800 (2016)). They are: (1) “a party’s later position must be ‘clearly inconsistent’ with its earlier position”; (2) the party must have “succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or second court was misled’ and (3) allowing the party to assert the inconsistent position would result in “an unfair advantage or" [would] impose an unfair detriment on the opposing party.” New Hampshire, 532 U.S. at 750-51, 121 S.Ct. 1808 (citations omitted); accord Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 767 F.3d 987, 993 (10th Cir. 2014). “[J]udicial estoppel ‘is an equitable doctrine invoked by a court at its discretion.’ ” New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808 (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)); accord Kaiser v. Bowlen, 455 F.3d 1197, 1204 (10th Cir. 2006). “This circuit applies the doctrine of judicial estoppel ‘both narrowly and cautiously.’” BancInsure, 796 F.3d at 1240 (quoting Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1227 (10th Cir. 2011)). This is because the doctrine is “a powerful weapon to employ against a party seeking to vindicate its rights, and there are often lesser weapons that can keep alleged inconsistent statements in check.” Vehicle Mkt. Research, Inc., 767 F.3d at 993; accord BancInsure, 796 F.3d at 1240. First, we reject Defendants’ judicial-estoppel argument because the United States’s legal arguments in the district court and on appeal are not clearly inconsistent; indeed, they are arguably not inconsistent at all. Our caselaw has set a high bar for estoppel proponents seeking to show that two positions are clearly inconsistent. See, e.g., Vehicle Mkt. Research, 767 F.3d at 994-96; Ellis v. Ark. La. Gas Co., 609 F.2d 436, 440 (10th Cir. 1979). And we find validation for our narrow and cautious approach in this regard, see. BancInsure, 796 F.3d at 1240, in the decisions of our sister circuits. In the words of the Second Circuit, “If the statements can be reconciled there is no occa sion to apply an estoppel.” Simon v. Safelite Glass Corp., 128 F.3d 68, 73 (2d, Cir. 1997) (applying judicial estoppel because plaintiff told the Social Security Administration that he was “unable to work,” which was “patently and admittedly contrary to his central claim in this ease that he is able to work”); see United States v. Apple, Inc., 791 F.3d 290, 337 (2d Cir. 2015) (noting that its precedent has “emphasized the need to ‘carefully consider the contexts in which apparently contradictory statements are made to determine if there is, in fact, direct and irreconcilable contradiction’ ” and concluding that a party’s “facially inconsistent” arguments were not clearly inconsistent because there was a factual basis in the record for distinguishing the arguments (quoting Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 119 (2d Cir. 2004))); see also Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, LLP, 546 F.3d 752, 757-58 (6th Cir. 2008) (noting that the judicial-estoppel doctrine is applied cautiously and that “there is- no inconsistency, and certainly no clear inconsistency” in the challenged arguments). As we read it, the substance of the United States’s arguments before the district court and on appeal are not clearly inconsistent. In both settings, the United States has presented a legal preemption challenge to the validity of provisions of Rule 16-308(E), as they apply to a limited subset of prosecutors—that is, federal prosecutors licensed in New Mexico. True, in emphasizing the legal nature of its challenge in litigating the jurisdictional, prudential justiciability, and discovery issues before the district court, it denominated its claim as “facial,” whereas on appeal it seems to have avoided this label, but the substance of its argument on appeal is not clearly inconsistent with the argument it made below. Compare, e.g., Aplts.’ App. at 116-17 (in opposing Defendants’ motion to dismiss on standing and ripeness grounds, stating that the “case is a facial challenge to the constitutionality of Rule 16-308(E)” and that “the complaint has alleged each way in which the Rule is at odds with federal law and therefore violates the Supremacy Clause”), with U.S. Response Br. at 18 (“The district court also correctly found that this case is ripe for adjudication. Its resolution requires no further factual development.... • The Supremacy Clause challenge here presents purely legal questions-”). And, on appeal—as before the district court—the United States has emphasized that it o