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March 20, 2026 Get Citation Alerts Download PDF Add Note

Professional Background Screening Association v. Philip J. Weiser, in his Official Capacity as Attorney General of the State of Colorado

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:25-cv-00295

• Precedential Status: Unknown Status

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (7.1K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 25-cv-00295-PAB-CYC

PROFESSIONAL BACKGROUND SCREENING ASSOCIATION,

Plaintiff,                                                           

v.

PHILIP J. WEISER, in his Official Capacity as Attorney General of the State of
Colorado,

Defendant.                                                           

                        ORDER                                        

This matter comes before the Court on the Motion to Dismiss Pursuant to Fed. R. 

Civ. P. 12(B)(1) [Docket No. 8]. Plaintiff filed a response, Docket No. 41, and defendant
filed a reply. Docket No. 46.

I. BACKGROUND1

Plaintiff Professional Background Screening Association (“PBSA”) is an
international trade association of over 800 member companies that provide
employment, insurance, and tenant background screening and related services. Docket
No. 1 at 5, ¶ 15. PBSA filed this action on January 28, 2025, arguing that two
provisions of the Colorado Consumer Credit Reporting Act (“CCRA”), Colo. Rev. Stat.
§ 5-18-101 et seq., are preempted by the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§ 1681 et seq. Id. at 9-10, ¶¶ 37-40. The FCRA governs all manner of consumer

1 The facts below are taken from plaintiff’s complaint, Docket No. 1, and are 

presumed to be true, unless otherwise noted, for purposes of ruling on defendant’s
motion to dismiss.

reports used for employment screening, tenant screening, insurance, and many other
purposes. Id. at 6, ¶ 21. One area of consumer reporting which the FCRA addresses is
what can and cannot be included in a consumer report. Id. at 7, ¶ 25. Specifically, the
FCRA proscribes consumer reports from including, among other items, civil suits, civil
judgments, or arrest records that antedate the report by more than seven years, and

any other adverse item of information other than records of convictions of crimes that
antedate the report by more than seven years. Id., ¶ 28 (citing 15 U.S.C.
§§ 1681c(a)(2), 1681c(a)(5)). The FCRA preempts state laws which are inconsistent
with any provision of the FCRA, to the extent of the inconsistency. Id. at 8, ¶ 33 (citing
15 U.S.C. § 1681t(a)). Moreover, the FCRA states that “‘[n]o requirement or prohibition
may be imposed under the laws of any State . . . with respect to any subject matter
regulated under . . . section 1681c of this title, relating to information contained in
consumer reports.’” Id. at 9, ¶ 35 (quoting 15 U.S.C. § 1681t(b)(1)(E)).
Section 5-18-109 of the CCRA prohibits reporting “‘[r]ecords of arrest, indictment,

or conviction of a crime that, from the state of disposition, release, or parole, predate the
report by more than seven years.’” Id., ¶ 37 (quoting Colo. Rev. Stat. § 5-18-109 (1)(e)).

Plaintiff argues that this conflicts with Congress’s decision not to prohibit the reporting of
criminal conviction records in the FCRA. Id. at 10, ¶ 38. Moreover, on May 10, 2022,
the Colorado legislature enacted the Clean Slate Act, which went into effect on August
31, 2022. Id., ¶ 39. The Clean Slate Act amended the CCRA to add subsection 5-18-
109(e.5), which prohibits reporting sealed records, expunged records, and records that
did not result in a conviction. Id. (citing Colo. Rev. Stat. § 5-18-109 (e.5)). Plaintiff
argues that this conflicts with Congress’s decision not to make the FCRA prohibit the
reporting of criminal non-conviction records which do not antedate the report by more
than seven years. Id., ¶ 40.

Plaintiff asserts that, “[u]pon information and belief, the Attorney General intends
to use his authority to enforce Colo. Rev. Stat. Ann. § 5-18-109 to prohibit the reporting
of the criminal conviction records or non-conviction records that PBSA’s members

currently report in compliance with the requirements of the FCRA.” Id., ¶ 42. In
accordance with that belief, plaintiff brings suit against defendant Philip J. Weiser—
Colorado’s attorney general—in his official capacity, seeking a declaratory judgment
that Colo. Rev. Stat. § 5-18-109 is preempted by the FCRA and seeking injunctive relief
prohibiting defendant from enforcing Colo. Rev. Stat. § 5-18-109. Id. at 15-19, ¶¶ 62-
82. On March 18, 2025, defendant filed a motion to dismiss under Fed. R. Civ. P.
12(b)(1). Docket No. 8. Briefing on the motion to dismiss was stayed pending
argument on whether jurisdictional discovery should be allowed. Docket No. 19. The
jurisdictional discovery was ultimately not allowed. Docket No. 38. On February 9,

2026, plaintiff filed a response. Docket No. 41. On March 2, 2026, defendant filed a
reply. Docket No. 46.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss a
claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A dismissal under
Rule 12(b)(1) is not a judgment on the merits; rather, it is a determination that the court
lacks jurisdiction to adjudicate the claim. Creek Red Nation, LLC v. Jeffco Midget
Football Ass’n., Inc., 175 F. Supp. 3d 1290, 1293 (D. Colo. 2016). A court lacking
jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes
apparent that jurisdiction is lacking.” Caballero v. Fuerzas Armadas Revolucionarias de
Colombia, 945 F.3d 1270, 1273 (10th Cir. 2019) (citation omitted). The dismissal is
without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006).

Challenges to subject matter jurisdiction may take two forms—a facial attack or a
factual attack—each with distinct analytical frameworks. United States v. Rodriguez-

Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001). A facial challenge focuses on the
sufficiency of the allegations in the complaint. Id. In resolving a facial challenge, “the
district court must accept the allegations in the complaint as true.” Id. By contrast, a
factual challenge allows a party to “go beyond allegations contained in the complaint
and challenge the facts upon which subject matter jurisdiction depends.” Id. (citation
omitted). In addressing a factual challenge to subject matter jurisdiction, “the court does
not presume the truthfulness of the complaint’s factual allegations.” Id. (citation and
quotations omitted); see also Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (“a court’s reference to evidence outside the pleadings does not convert

the motion into a Rule 56 motion”). The burden of establishing subject matter
jurisdiction lies with the party asserting it. Merida Delgado v. Gonzales, 428 F.3d 916,
919 (10th Cir. 2005). Here, defendant asserts that he is raising a facial challenge,
which characterization plaintiff does not dispute. Docket No. 8 at 4; Docket No. 41 at
12.

III. ANALYSIS

Defendant argues that the Court does not have subject matter jurisdiction over
this case because defendant is entitled to sovereign immunity under the Eleventh
Amendment and because plaintiff does not have associational standing. Docket No. 8
at 2-3. Plaintiff argues that defendant is not immune from suit under the Ex parte
Young, 209 U.S. 123 (1908), exception to sovereign immunity, and that plaintiff does
have associational standing. Docket No. 41 at 5-6, 12. Sovereign immunity and
standing both implicate the subject matter jurisdiction of the Court. See Ruiz v.
McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (“an assertion of Eleventh
Amendment immunity concerns the subject matter jurisdiction of the district court”);

Alexander v. Anheuser-Busch Companies, Inc., 990 F.2d 536, 538 (10th Cir. 1993)
(“The issue of standing is jurisdictional in nature.”).

A. Immunity

The Eleventh Amendment provides that “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. The United States Supreme Court has
construed the Eleventh Amendment to prohibit federal courts from entertaining suits
against states brought by their own citizens or citizens of another state without the
consent of the state being sued. See Port Auth. Trans-Hudson Corp. v. Feeney, [495

U.S. 299, 304](https://www.courtlistener.com/opinion/112423/port-authority-trans-hudson-corp-v-feeney/#304) (1990). State entities, agencies, and officials sued in their official
capacities are immune because they are “an arm of the State,” Mt. Healthy City Sch.
Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977), and a suit against such officials are “no
different from a suit against the State itself.” Hendrickson v. AFSCME Council 18, 992
F.3d 950, 965 (10th Cir. 2021) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71 (1989)). However, Eleventh Amendment immunity “is not absolute” and various
exceptions apply. Feeney, 495 U.S. at 304.

Under Ex parte Young, 209 U.S. 123, 159–60 (1908), “a plaintiff may sue
individual state officers acting in their official capacities if the complaint alleges an
ongoing violation of federal law and the plaintiff seeks only prospective relief.”

Hendrickson, 992 F.3d at 965 (citing Ex parte Young, 209 U.S. at 159–60; Verizon Md.
Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). “To satisfy this exception,
the named state official ‘must have some connection with the enforcement’ of the
challenged statute.” Id. (quoting Ex parte Young, 209 U.S. at 157). This connection

exists when the state official that is sued has both (1) “a particular duty to enforce the
statute in question” and (2) “a demonstrated willingness to exercise that duty.” Id. (internal quotations and citation omitted).

1. Duty to Enforce

Plaintiff argues that defendant has a particular duty to enforce the CCRA, both
through his own direct enforcement authority and through his supervision over the
Administrator of the Uniform Consumer Credit Code (“UCCC”), who ostensibly has
enforcement authority over the CCRA. Docket No. 41 at 7.

a. Attorney General’s Duty to Enforce the CCRA

The CCRA gives consumers the right to bring a private action to enforce the
CCRA. Colo. Rev. Stat. § 5-18-116 (1). Nothing in the CCRA expressly grants the

Attorney General the authority to enforce its provisions. See generally Colo. Rev. Stat.
§ 5-18-101 et seq. Nevertheless, according to plaintiff, defendant has conceded that he
possesses “some connection” to enforcement of the CCRA. Docket No. 41 at 10.

Specifically, plaintiff asserts that defendant acknowledged that “there may be
circumstances where provisions of the CCRA intersect with his statutory authority.” Id. For support, plaintiff cites a transcript of a court hearing before Magistrate Judge Cyrus
Y. Chung. Id. (citing Docket No. 41-3). As mentioned above, defendant raises a facial
attack on the complaint. The Court will therefore only consider the allegations of the
complaint. When analyzing facial attacks, “the Court must accept the allegations of the
complaint as true and may not consider evidence outside the complaint.” Ottawa N.
R.R., LLC v. City of Baldwin, Kan., 2023 WL 7923152, at *2 (D. Kan. Nov. 16, 2023)
(citing Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001)). Here,
the transcript—attached to plaintiff’s response as Exhibit C—is evidence which the

Court may not consider. Docket No. 41-3.

Even if the Court were to analyze the transcript, it would not find that the Attorney
General conceded that he possesses some connection to enforcement of the CCRA. In
the transcript, Judge Chung seeks clarification that the CCRA provides for a private
right of action. Docket No. 41-3 at 3. Defendant confirms that this is the case, and that
the Attorney General does not enforce the CCRA. Id. Judge Chung then asks if the
Attorney General is unable to enforce the CCRA. Id. Defendant’s counsel answers: “I
don’t know exactly the answer to that question in the sense that I don’t know if there are
circumstances where provisions of the CCRA could intersect with some other statutory

authority in theory that the Attorney General has that could provide some opportunity for
it to come up, but I would be really reaching and trying to imagine . . . what that would
be.” Id. at 3-4. Defendant’s counsel stating that she does not know “if there are
circumstances where provisions of the CCRA could intersect with some other statutory
authority in theory” is not equivalent to a concession from defendant that his statutory
authority intersects with provisions of the CCRA.

Next, plaintiff asserts that defendant has made public statements that he “has
received complaints related to the credit reporting requirements under the UCCC and
encouraging consumers to submit such complaints to ‘inform’ his enforcement actions.”

Docket No. 41 at 10 (citing Docket Nos. 41-1, 41-2). Plaintiff argues that these public
statements—attached to plaintiff’s response as Exhibits A and B—show defendant
acknowledged that he has “statutory duties and obligations” related to regulation of
credit reporting. Id. Again, plaintiff cites evidence outside the complaint in support of
this argument, which the Court cannot consider in a facial attack.

Even if the Court analyzed this extraneous evidence, it would not find that it 

shows defendant has a particular duty to enforce the CCRA. The two public statements
are press releases on the Attorney General’s website which state how many complaints
were filed in 2023 and 2024, and note the top ten categories of complaints. The
statements indicate that Colorado consumers filed 20,390 complaints in 2023 and
24,473 complaints in 2024. Docket No. 41-1 at 2; Docket No. 41-2 at 2. Both press
releases state that complaints relating to “Consumer Loans & Credit Sales” were in the
top ten, noting that “[t]hese complaints include issues under the Uniform Consumer
Credit Code, including interest rates, and credit reporting.” Docket No. 41-1 at 3;

Docket No. 41-2 at 4. The second press release states that “Complaints inform our
consumer protection work.” Docket No. 41-2 at 2. None of this shows that defendant
has a particular duty to enforce the CCRA. Instead, it merely shows that, out of over
40,000 complaints, a fraction involve the UCCC and credit reporting, without specifying
whether any of those complaints involve the allegedly preempted activities in Colo. Rev.
Stat. § 5-18-109. It also shows that these complaints inform defendant’s consumer
protection work, but does not show that defendant has the duty to enforce every
violation featured in the numerous complaints. Thus, even if the Court could consider
this outside evidence, it would not find that the press releases show defendant has any
enforcement duties regarding the CCRA.

Plaintiff only raises one argument that does not rely on outside evidence,

namely, that Colorado law grants defendant the authority to “‘independently initiate and
bring civil and criminal actions to enforce state laws.’” Docket No 41 at 10 (quoting Colo. Rev. Stat. § 24-31-101 (1)(h)(i)). This point merely reflects defendant’s general
authority to enforce the law.2 As noted by the Tenth Circuit, “if a general duty to enforce
the law were sufficient to avoid immunity, ‘then the constitutionality of every act passed
by the legislature could be tested by a suit against the governor and the attorney
general’ because the governor is, ‘in a general sense, charged with the execution of all
[a state's] laws’ and the attorney general ‘might represent the state in litigation involving
the enforcement of its statutes.’” Free Speech Coal., Inc. v. Anderson, 119 F.4th 732,
739 (10th Cir. 2024) (quoting Ex parte Young, 209 U.S. at 157). Finding this
inconsistent with state sovereign immunity, the court held that “Ex parte Young requires
something ‘more than a mere general duty to enforce the law.’”3 Id. (citing Hendrickson,

2 Notably, that authority is discretionary, as § 24-31-101(1)(h)(i) states that 

defendant may initiate such actions. Colo. Rev. Stat. § 24-31-101 (1)(h)(i). Plaintiff
identifies no instances of defendant using his authority to enforce the challenged
provisions of the CCRA. See generally Docket No. 1.

3 Conversely, in Petrella v. Brownback, 697 F.3d 1285, 1294 (10th Cir. 2012), the
Tenth Circuit found that an attorney general was a proper defendant under Ex parte
Young because he “ha[d] responsibility for the enforcement of the laws of the state.”

However, in Free Speech, 119 F.4th at 740, the Tenth Circuit noted that “the statute at
issue in Petrella did not include any particular enforcement provisions, meaning that the
ability to enforce it was necessarily encompassed by the attorney general’s overall
enforcement authority.” Id. (citing Petrella, 697 F.3d at 1294). Thus, the court found
that Petrella’s holding did not apply when the statute at issue “places enforcement
ability specifically with private individuals.” Id. (citation omitted). Here, the CCRA
specifies that consumers have a right to enforce it. Colo. Rev. Stat. § 5-18-116 (1). 992 F.3d at 965); see also Sgaggio v. Weiser, No. 22-cv-01791-PAB, 2022 WL
3700723, at *4 (D. Colo. Aug. 26, 2022) (“a general duty to enforce the law is
insufficient for Ex parte Young”). Thus, defendant’s general authority to initiate civil
actions to enforce state laws does not give rise to a “particular duty” to enforce the
CCRA.

            b.  Administrator’s Duty to Enforce the CCRA             
Plaintiff argues that defendant has authority to enforce the CCRA through his 

supervision of the Administrator of the UCCC (the “Administrator”). Docket No. 41 at 7.

Plaintiff contends that the Administrator has enforcement authority over the CCRA. Id. Plaintiff asserts that the Tenth Circuit has held that Ex parte Young applies when the
named defendant is responsible for supervising the administration of a challenged
provision by subordinate officials, even if the named defendant is not directly
empowered to ensure compliance with the challenged provision. Id. (citing Kitchen v.
Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014)).

The cited portion of Kitchen analyzes standing, not Ex parte Young. Kitchen, [755

F.3d at 1201-04](https://www.courtlistener.com/opinion/2680455/kitchen-v-herbert/#1201). The court held that, for purposes of standing, a state official is a
proper defendant if he or she is responsible for supervising local officials who administer
a challenged provision. Id. at 1204 (citing Papasan v. Allain, 478 U.S. 265, 282 n.14
(1986)). However, the court noted that standing requires the named defendant to have
the power to enforce a challenged statute. Id. at 1201 (citation omitted). The court then
observed that “[w]hether the Defendants have enforcement authority is related to
whether, under Ex parte Young, they are proper state officials for suit.” Id. (citation

Thus, consistent with Free Speech, having a general duty to enforce the law does not
establish that defendant has a particular duty to enforce the CCRA.

omitted). Thus, Kitchen’s holding arguably also applies when determining whether a
defendant has enforcement authority under Ex parte Young. See Scott v. Hiller, No. 21-
cv-02011-PAB-KLM, 2022 WL 16698694, at *5 (D. Colo. July 11, 2022), report and
recommendation adopted, 2022 WL 4726038 (D. Colo. Oct. 3, 2022) (citing Kitchen’s
holding in the context of Ex parte Young). Defendant does not dispute that Kitchen’s

holding extends to Ex parte Young. See generally Docket No. 8; Docket No. 46. The
Court will presume it does so for the purpose of ruling on this motion.

Plaintiff is correct that the Attorney General has supervisory authority over the
Administrator. Section 5-6-103 defines the Administrator as “the assistant attorney
general to be designated by the attorney general.” Colo. Rev. Stat. § 5-6-103. While
the statute does not say so explicitly, the Court presumes that the Attorney General has
supervisory authority over the assistant attorney general.

Plaintiff is incorrect, however, that the Administrator has enforcement authority
over the CCRA. The powers of the Administrator are contained in § 5-6-104. Plaintiff

notes that the Administrator is entitled to “[r]eceive and act on complaints, take action
designed to obtain voluntary compliance with this code, or commence proceedings on
his or her own initiative.” Docket No. 41 at 8 (Colo. Rev. Stat. § 5-6-104 (1)(a)). Plaintiff
also cites to Colorado Supreme Court cases which stand for the proposition that the
Administrator is charged with the enforcement of the UCCC. Id. (citations omitted); see
Oasis Legal Fin. Grp., LLC v. Coffman, 361 P.3d 400, 404 n.4 (Colo. 2015) (“The
Administrator is charged with the administration and enforcement of the UCCC.”); Tulips
Invs., LLC v. State ex rel. Suthers, 340 P.3d 1126, 1136 (Colo. 2015) (noting the
“Administrator’s ability to effectuate the purpose of the UCCC.”).

However, as noted by defendant, these cases are referring to the UCCC, but not
the CCRA. Title 5 is labeled as the Consumer Credit Code. See Colo. Rev. Stat. § 5-1 -
101 et seq. However, “Articles 1 to 9 of this title [5] shall be known and may be cited as
the “Uniform Consumer Credit Code”, referred to in said articles as the ‘code.’” Colo.
Rev. Stat. § 5-1-101. Thus, the Administrator’s ability to enforce the UCCC refers to her

ability to enforce Articles 1 to 9 of Title 5. The CCRA is found in Article 18. See Colo.
Rev. Stat. § 5-18-101 et seq. Moreover, § 5-1-101 is explicit that—when used in
Articles 1 to 9—the word “code” refers to Articles 1 to 9. As a result, the Administrator’s
ability to “take action designed to obtain voluntary compliance with this code,” which is
mentioned in Article 6, Colo. Rev. Stat. § 5-6-104 (1)(a), refers to her ability to take
action designed to obtain voluntary compliance with Articles 1 to 9.

Nevertheless, plaintiff argues that the term “this code” refers to the entirety of
Title 5, not just Articles 1 to 9. Docket No. 41 at 9. For support, plaintiff notes that the
term “code” is not defined in Title 5’s “General definitions” or “Index of definitions.” Id. (citing Colo. Rev. Stat. §§ 5-1-301, 5-1-303). However, the term is defined in the “Short
title.” Colo. Rev. Stat. § 5-1-101. Plaintiff provides no argument why the Court should
ignore the definition of a term based on where in the statute it is defined. The Court
finds that the definition in § 5-1-101 is binding regardless of where in Title 5 it appears.

Moreover, plaintiff’s argument is undermined by the text of § 5-1-301. There, the statute
references definitions “as used in this code.” Colo. Rev. Stat. § 5-1-301. However, as
evidenced by the index of definitions, it does not define any terms outside of Articles 1
to 9. See generally Colo. Rev. Stat. § 5-1-303. Conversely, Articles 10, 16, 17, 18, 19,
and 20 all contain their own “definitions” sections, which define terms used in their
respective Articles. See Colo. Rev. Stat. §§ 5-10-301, 5-16-103, 5-17-102, 5-18-103, 5-
19-202, 5-20-103. This provides further support that the term “code” refers to the
UCCC when used in Articles 1-9.

Plaintiff notes that the term “this code” is used in Article 19, arguing this is
evidence that “this code” refers to all of Title 5. Docket No. 41 at 9 (citing Colo. Rev.

Stat. § 5-19-110 (6)(a)). Notably, Article 19 predominately refers to itself as “this part 1,”
and only uses the term “this code” once. See generally Colo. Rev. Stat. § 5-19-110.

But, regardless of how Article 19 refers to itself, § 5-1-101 only defines the term “code”
as it is used in Articles 1 to 9. Colo. Rev. Stat. § 5-1-101. Thus, the term “code” being
used differently in other Articles is not indicative that “code” has a different definition in
Articles 1 to 9.

Next, plaintiff argues that “the Colorado Legislature specifically moved the CCRA
into the UCCC in 2017.” Docket No. 41 at 9 (citing Docket No. 1 at 9, ¶ 36). The Court
construes plaintiff’s reference to the UCCC as being a reference to Title 5 generally.4

This argument is unavailing. Regardless of where the CCRA is located, the
Administrator’s enforcement powers are clearly defined, and do not extend to the
CCRA. See Colo. Rev. Stat. § 5-6-104.

Defendant notes that “Plaintiff’s reading must also be rejected because it would
render numerous provisions of Title 5 superfluous.” Docket No. 46 at 7. Specifically, as
mentioned above, § 5-6-104(1)(a) states that the Administrator has authority to “take
action designed to obtain voluntary compliance with this code.” Colo. Rev. Stat. 5-6-

4 The portion of the complaint which plaintiff cites states that the CCRA was 

relocated to Colo. Rev. Stat. § 5-18-101 et seq. in 2017. Docket No. 1 at 9, ¶ 36.
104(1)(a). Numerous other Articles also provide that the Administrator has authority to
enforce their terms. See, e.g., Colo. Rev. Stat. §§ 5-10-801, 5-16-114, 5-19-110, 5-20-
114.5 If the Administrator already has authority to enforce the entirety of Title 5, then
these provisions would be superfluous. Courts “must avoid constructions that would
render any words or phrases superfluous.” Dep't of Revenue v. Agilent Techs., Inc., 441 P.3d 1012, 1016 (2019). Accordingly, the Court finds that “this code,” as used in
§ 5-6-104(1)(a), refers to Articles 1 to 9 of Title 5.

Finally, plaintiff argues that defendant publicly admitted that complaints related to
credit reporting raise issues under the UCCC. Docket No. 41 at 10 (citing Docket No.
41-1; Docket No. 41-2). Plaintiff claims that the CCRA is the only section of Title 5
which regulates credit reporting, therefore making defendant’s statement an admission
that he considers the CCRA to be a part of the UCCC. Id. Again, plaintiff cites press
releases—outside evidence which the Court cannot consider in a facial attack. But
even if the Court were to consider these documents, it finds plaintiff’s argument

unavailing. A press release is not a binding interpretation of the law, and the Court has
already determined that Article 18 is not encompassed in the UCCC as defined in § 5-1-
101. Moreover, the Court does not find that the press releases consider credit reporting
to fall under the purview of the UCCC. The press releases note that the Attorney
General received a category of complaints labeled “Consumer Loans & Credit Sales.”

Docket No. 41-1 at 3; Docket No. 41-2 at 4. Within that category, the press releases
state that “[t]hese complaints include issues under the Uniform Consumer Credit Code,

5 Article 18, the CCRA, has no such provision, instead allowing for a private right 

of action for consumers. Colo. Rev. Stat. § 5-18-116 (1).

including interest rates, and credit reporting. They also include unlicensed activity,
including tribal lending.” Docket No. 41-1 at 3; Docket No. 41-2 at 4. The comma after
“interest rates” indicates that the complaints include issues under the UCCC, which
includes interest rates, and also includes, separate from the UCCC, credit reporting.

The press releases do not support plaintiff’s position.

In summary, the Administrator does not have enforcement authority over the 

CCRA, and plaintiff has failed to show that defendant has a particular duty to enforce
the CCRA.6 Accordingly, defendant is entitled to sovereign immunity, and the Court will
grant the motion to dismiss.

B. Associational Standing

“Because the Court finds that it does not have subject matter jurisdiction over
plaintiff's claim because defendants are entitled to Eleventh Amendment immunity, the
Court need not address whether plaintiff has Article III standing.” Morrill v. Aarhaus, No.
24-cv-00199-PAB-KAS, 2025 WL 815383, at *9 (D. Colo. Mar. 14, 2025).

IV. CONCLUSION

Therefore, it is

ORDERED that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(B)(1) 

[Docket No. 8] is GRANTED. It is further

6 Because the Court has found that defendant does not have a particular duty to 

enforce the CCRA, it need not analyze the second prong—whether defendant has a
“demonstrated willingness” to enforce the CCRA. The Court notes, however, that
plaintiff’s only argument related to whether defendant has a demonstrated willingness to
enforce the CCRA relies on the press releases. Docket No. 41 at 11-12. This is outside
evidence which the Court cannot consider in a facial attack. Thus, if the Court were to
consider the second prong, it would find that it is not satisfied.

ORDERED that plaintiff's claims are DISMISSED without prejudice.’ It is
further
ORDERED that this case is closed.
DATED March 20, 2026.
BY THE COURT:

                               PHILIP A. BRIMMER 
                               United States District Judge 

 7 “Where the district court dismisses an action for lack of jurisdiction, .. . the 

dismissal must be without prejudice.” Brereton, 434 F.3d at 1216 (citations omitted).
16