UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ATLAS BREW WORKS, LLC,

Plaintiff,

v. 

WILLIAM P. BARR, in his official 

capacity as Attorney General of the United 

States,

Defendant. 

Case No. 19-cv-79 (CRC)

MEMORANDUM OPINION

The 34-day government shutdown that began in December 2018 and ran through most of 

January 2019 disrupted the lives of hundreds of thousands of federal employees and countless 

others who depend on their services. Families missed paychecks, furloughed workers were 

forced to moonlight, and critical public functions were curtailed after unpaid civil servants called

in sick. All of those effects were entirely predictable. But the shutdown also had myriad other, 

more surprising consequences. One of them even threatened the country’s most treasured 

libation: beer. This case shows how. 

Under federal law, any brewer who wishes to ship an alcoholic beverage in interstate 

commerce must first submit for regulatory approval the labels it will affix to its containers. If a 

brewer forgoes the pre-approval process and ships a container anyway, it risks criminal 

prosecution. The government shutdown, however, effectively put the regulator out of business, 

stalling the approval process for any labels already in the pipeline. District of Columbia-based 

craft brewer Atlas Brew Works had a few such labels, including one for a perishable pale ale, 

“The Precious One,” that Atlas had already brewed. Without label approval, The Precious One 

sat waiting in an Atlas fermenting tank, rather than flowing freely at area watering holes. This 
2

pinched the company’s bottom line and left its expectant customers in the lurch. But it also, 

Atlas said, constituted a First Amendment violation: a law that prohibits speech without 

regulatory approval becomes an outright ban on speech when the approval process is shuttered.

As Atlas puts it, “[i]t cannot be denied the right to speak for lack of meeting an impossible 

condition.” Am. Compl. at 2.

So Atlas filed suit on January 15, 2019—24 days into the shutdown. It sought a 

temporary restraining order and preliminary injunction preventing the Justice Department from 

prosecuting Atlas for proceeding with its labels without pre-approval. See ECF No. 3. Given 

Atlas’s request for expedited review, the Court ordered the government to promptly reply and 

held a hearing on the matter. Within days of that hearing, the Court was poised to issue a ruling.

But then, on January 25, the shutdown ended. Just a few days later, The Precious One 

label was approved, and Atlas was once again able to speak via its beer labels without the fear of 

prosecution. With Atlas no longer suffering an immediate and potentially irreparable injury, the 

Court denied as moot Atlas’s motion for a temporary restraining order and preliminary 

injunction. See Order, ECF No. 13. The government asked the Court to go a step further, 

dismissing the entire case as moot. Atlas countered that the case was not moot and, in any event,

that it fit within the capable-of-repetition-yet-evading-review exception to the ordinary mootness 

rule. It argued that another shutdown would likely come, and that when it did, Atlas would 

suffer a similar injury. The Court reserved judgment on that question and ordered the parties to 

fully brief it. Id. 

The government has since followed up with a motion to dismiss focused exclusively on 

the mootness question. Because the shutdown that started this dispute has ended and the 
3

likelihood of the same injury recurring is too speculative, the Court finds the case moot and will 

grant the government’s motion.

I. Background

A. Statutory Framework

This case involves the interplay of two fields of federal law—one governs how the 

federal government can spend money, the other regulates how purveyors of alcoholic beverages

can label their products. The Court will say a bit about each before turning to the facts at hand.

1. The Appropriations Clause and Anti-Deficiency Act

Congress, per the Constitution’s Appropriations Clause, holds “exclusive power over the 

federal purse.” Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992); see

U.S. Const., art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence 

of Appropriations made by Law.”). The Constitution thereby “prevents Executive Branch 

officers from even inadvertently obligating the Government to pay money without statutory 

authority.” U.S. Dep’t of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 

2012). “Federal statutes reinforce Congress’s control over appropriated funds.” Id. Key among 

these statutes is the Anti-Deficiency Act (“ADA”), 31 U.S.C. §§ 1341–42, which “makes it 

unlawful for government officials to ‘make or authorize an expenditure or obligation exceeding 

an amount available in an appropriation,’” U.S. Dep’t of Navy, 665 F.3d at 1347 (quoting 31 

U.S.C. § 1341(a)(1)(A)). The ADA also prohibits any federal officer or employee from working 

without an appropriation “except for emergencies involving the safety of human life or the 

protection of property.” 31 U.S.C. § 1342. 
4

2. The Regulation of Alcohol Labels

The Federal Alcohol Administration Act (“FAA Act”), 27 U.S.C. § 201 et seq., regulates 

the content of labels affixed to malt beverages shipped in interstate commerce. It requires or

forbids various types of speech on the labels and makes it a crime to introduce into interstate 

commerce any beverage that is not “bottled, packaged, and labeled in conformity with” 

regulations established by the Secretary of the Treasury. 27 U.S.C. § 205(e). Those regulations 

prohibit false, misleading, and obscene statements, and statements that disparage competitors’ 

products. Id. They also require that labels contain certain other information, including the 

beverage’s manufacturer, identity, and net contents. Id.; 27 C.F.R. Part 7.

To facilitate compliance with these regulations, the FAA Act created a regulatory process 

that requires sellers to obtain a Certificate of Label Approval (“COLA”) attesting to a label’s 

conformity with the Act and its attendant regulations before shipping a product in interstate 

commerce. 27 U.S.C. § 205(e). A Treasury regulation provides likewise. 27 C.F.R. § 7.41(a). 

An entity within the Treasury—the Alcohol and Tobacco Tax and Trade Bureau (“TTB”)—

administers the FAA Act, including the COLA requirement. The Attorney General of the United 

States is authorized “to prevent and restrain violations of” the FAA Act. 27 U.S.C. § 207. 

Shipping beer in interstate commerce without a COLA, in violation of 27 U.S.C. § 205, is a 

misdemeanor punishable by a fine up to $1,000 per offense. Id. § 207.

B. Factual Background

On November 28, 2018, Atlas sought a COLA for a label that would adorn individual 

cans of The Precious One. See Mot. for TRO, Ex. 2, ECF No. 3-2. The TTB approved that 

COLA on December 17, 2018. Then, on December 20, Atlas sought a COLA for a “keg collar”
5

label for the same beer. Am. Compl. ¶ 29.

1

 But just two days later, appropriations lapsed for 

scores of government agencies, including the TTB, which had not yet acted on Atlas’s COLA 

application for The Precious One’s keg collar label. Id. The TTB’s home page informed visitors 

that the appropriations lapse had led to a “cessation of TTB operations with limited access to” its 

web site. Id. ¶ 26. The TTB web site also stated that COLA “submissions will not be reviewed 

or approved until appropriations are enacted.” Id.

The TTB’s closure put Atlas over a barrel. Id. ¶¶ 33–35. The Precious One is perishable, 

and Atlas intended to market it as a seasonal beer February through April. Id. ¶ 34. But without 

label approval, Atlas said all of the beer set aside for out-of-state distribution via its kegs was 

languishing in a fermenting tank. Id. Atlas feared that it would lose thousands of dollars if the 

shutdown persisted much longer, and it lamented the opportunity cost incurred by the tying up of 

one of its fermenting tanks. Id. ¶¶ 34–35.2 

To put an end to the stalemate, Atlas on January 15, 2019 filed suit and sought a 

temporary restraining order and preliminary injunction against then-Acting Attorney General 

Matthew Whitaker.3 See ECF No. 3. The temporary restraining order would have enjoined the 

government from prosecuting Atlas for proceeding with The Precious One keg collar label 

without a COLA, while the preliminary injunction would have applied more broadly to all of 

Atlas’s pending COLA applications and perhaps even to other brewers nationwide. See id. The 

 

1 The keg collar label is affixed to the top of a keg encircling the tap coupler.

2

In Atlas’s amended complaint, it explains that a “similar problem affected [it] with 

respect to The Shape of Funk to Come,” another beer whose “production was completed during 

the shutdown while its keg colar COLA application languished.” Am. Compl. ¶ 34. 

3 Given the confirmation of William P. Barr as Attorney General, he is now the 

appropriate Defendant in this case.
6

Court ordered the government to file an opposition by January 18, see Minute Order, Jan. 15, 

2019, and held an expedited hearing on the motion four days later, see Minute Entry, Jan. 22, 

2019. 

But on January 25, before the Court had issued a ruling on the motion, leaders in 

Washington announced that a deal had been reached to restore appropriations. The Court held a 

status conference the following Monday to discuss whether Atlas’s demands had been mooted by 

the end to the shutdown. See Minute Order, Jan. 27, 2019. Atlas argued that its request for 

emergency injunctive relief had not yet been mooted because the TTB had not yet approved The 

Precious One label. The government, for its part, assured the Court that the approval was 

imminent. The Court thus deferred ruling on the matter until the government had provided 

notice that the label had been approved. That notice came the next day, see Notice of Label 

Approval, ECF No. 12, and the Court proceeded to deny as moot Atlas’s motion for a temporary 

restraining order and a preliminary injunction, see Order, ECF No. 13. The Court did not, 

however, dismiss the entire case as moot, instead inviting the government to submit an answer or 

revised motion to dismiss regarding Atlas’s demand for declaratory relief. See id.

The government, on February 28, filed its motion to dismiss. See Motion to Dismiss for 

Lack of Jurisdiction (“MTD”), ECF No. 14. Two weeks later, Atlas opposed that motion, but it 

also amended its complaint. See Amended Complaint, ECF No. 19; Memorandum in 

Opposition, ECF No. 20. The parties thereafter agreed to reset the briefing schedule, this time 

focused on the new allegations in the amended complaint. See Joint Motion for Briefing 

Schedule, ECF No. 21. The motion has now been fully briefed, and it is ripe for the Court’s 

resolution. 
7

II. Legal Standard

The government has filed a motion to dismiss Atlas’s complaint as moot, which “is 

properly brought under [Federal Rule of Civil Procedure] 12(b)(1) because mootness itself 

deprives the court of jurisdiction.” Indian River Cty. v. Rogoff, 254 F. Supp. 3d 15, 18 (D.D.C. 

2017). “Unlike some jurisdictional questions such as standing or ripeness, the party asserting 

mootness . . . bears the ‘initial heavy burden’ of establishing that the case is moot.” Zukerman v. 

USPS, -- F. Supp. 3d --, No. 15-cv-2131, 2019 WL 1877173, at *4 (D.D.C. Apr. 26, 2019)

(quoting Honeywell Int’l, Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010)). When evaluating a 

motion to dismiss, “the Court must treat the complaint’s factual allegations as true and afford the 

plaintiff the benefit of all inferences that can be derived from the facts alleged.” Indian River 

Cty., 254 F. Supp. 3d at 18 (internal quotation marks omitted). “But because the Court has an 

‘affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority,’”

id. (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C 

2001)), the ‘[p]laintiff[s’] factual allegations in the complaint . . . will bear closer scrutiny in 

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion [for failure to state a claim],’” id. 

(quoting Delta Air Lines, Inc. v. Export–Import Bank of United States, 85 F. Supp. 3d 250, 259 

(D.D.C. 2015)). In addition, the Court “may consider materials outside the pleadings in deciding 

whether to grant a motion to dismiss for lack of jurisdiction.” Id. (internal quotation marks 

omitted).

III. Analysis

The government contends that the case has been mooted by the restoration of 

appropriations and the processing of Atlas’s labels. Atlas responds, first, that the case has not 

been mooted and, second, that, even if it has been, the underlying dispute is capable of repetition 
8

yet will evade judicial review, meaning that the Court should still resolve it. The Court takes 

these issues in turn.

A. Mootness

“Federal courts lack jurisdiction to decide moot cases because their constitutional 

authority extends only to actual cases or controversies.” Iron Arrow Honor Soc’y v. 

Heckler, 464 U.S. 67, 70 (1983). The Constitution’s case or controversy requirement “means 

that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual 

injury traceable to the defendant and likely to be redressed by a favorable judicial 

decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal citations and quotation marks 

omitted). “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for 

purposes of Article III—‘when the issues presented are no longer ‘live’ or the parties lack a 

legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) 

(quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). “An intervening event may 

render a claim moot if there is no reasonable expectation that the conduct will recur.” Leonard v. 

U.S. Dep’t of Defense, 38 F. Supp. 3d 99, 104 (D.D.C. 2014) (citing Pharmachemie B.V. v. Barr 

Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002)).

The government contends that the end of the government shutdown functioned as such an 

intervening event here. It says Atlas’s claims “seek to challenge actions that are only present and 

relevant during a speculative future lapse in government appropriations.” Mem. Supp. Mot. 

Dismiss (“MTD”), ECF No. 23, at 13. For proof, the government continues, look no further than 

Atlas’s amended complaint. See id. at 13–14. Paragraph 38, for example, reads: “When, as a 

matter of law, no mechanism exists by which brewers might obtain [COLAs] . . . .” Likewise, 

Paragraph 39, starts: “From time to time, no COLA issuance mechanism can function . . . .” And 
9

finally, Paragraph 42 persists with the theme: “[T]his prior restraint is unbounded as to time 

whenever the government suspends the operation of the COLA process . . . .” Because Atlas 

frankly acknowledges that the harm they fear is only a future one, the government says the case 

no longer involves a live, i.e. ongoing, controversy and should therefore be dismissed. 

Atlas begs to differ. It insists that its declaratory judgment action challenges an ongoing 

policy, not merely a one-time event. See Memorandum in Opposition (“Opp.”), ECF No. 24, at 

19 (“The end of an injury inflicted under a challenged policy does not moot a challenge to the 

injurious policy.”). Atlas says the declaratory judgment claim cannot be moot because it is a

“challenge to the Attorney General’s existing enforcement policy”—punishing brewers for 

proceeding without a COLA despite the TTB’s inability to process COLA applications—not to 

any single action based on that policy. Id. Atlas’s amended complaint indeed reflects this 

approach. See Am. Compl. ¶ 40 (“Defendant maintains a policy of enforcing the COLA 

requirement against unlicensed speech, notwithstanding the lack of a COLA function stemming 

from these budgetary constraints.”). And, as Atlas points out, D.C. Circuit case law recognizes 

that, where “a plaintiff challenges both a specific agency action and the policy that underlies that 

action, the challenge to the policy is not necessarily mooted merely because the challenge to the 

particular agency action is moot.” City of Houston v. Dep’t of Housing & Urban Dev., 24 F.3d 

1421, 1428 (D.C. Cir. 1994); accord Del Monte Fresh Produce Co. v. United States, 570 F.3d 

316, 321 (D.C. Cir. 2009) (“[A] plaintiff’s challenge will not be moot where it seeks declaratory 

relief as to an ongoing policy.”). 

The trouble with Atlas’s argument, however, can be found in the portions of City of 

Houston it chose not to quote. Right after the D.C. Circuit said that challenges to a policy may 

persist even where actions based on that policy are no longer at issue, it discussed the genesis of 
10

that rule in general and the Supreme Court’s decision in Super Tire Engingeering Co. v. 

McCorkle, 416 U.S. 115 (1974), in particular: 

In Super Tire, the Supreme Court held that because the strike that prompted that 

suit ended before the case could be resolved, the employer’s request for an 

injunction preventing payment of welfare benefits during the strike was moot. 

However, the Court observed that the employer’s request for declaratory relief 

was not moot, because its subsequent relations with the union would be affected 

by the ongoing state policy of providing public assistance to strikers, and because 

the challenged law was in no way contingent or subject to the discretion of an 

enforcing body, but was fixed and definite.

Id. at 1428–29 (internal citations and quotation marks omitted). 

The Circuit’s reading of Super Tire highlights two critical differences between that case 

and this one. First, the policy in Super Tire—that striking workers engaged in labor disputes 

would be eligible for state assistance benefits—allegedly injured the corporate plaintiffs

regardless whether a strike was actually occurring. 416 U.S. at 124. Because “[e]mployees 

know that if they go out on strike, public funds are available,” the Supreme Court explained,

“this eligibility affects the collective-bargaining relationship, both in the context of a live labor 

dispute when a collective-bargaining agreement is in process of formulation, and in the ongoing 

collective relationship[.]” Id. As a result, whether workers were actively receiving state benefits 

during a strike was almost besides the point; the state’s policy was “a factor lurking in the 

background of every incipient labor contract.” Id. Second, and related to the first point, the 

effect of the policy was “not contingent upon executive discretion.” Id. That the state may for 

some reason choose not to award benefits to some striking workers made no difference to the 

corporate plaintiffs, because it “[was] the basic eligibility for assistance that allegedly prejudices 

[their] economic position.” Id. at 124 n.8. As a consequence, the challenged policy, at least 

according to the plaintiffs, was “immediately and directly injurious to [their] economic 

positions.” Id. at 125.
11

Here, by contrast, Atlas has never argued that the mere prospect of a government 

shutdown and the potential for prosecution were it to ship its products in interstate commerce 

without a COLA has a present effect on its First Amendment rights. Exactly how that argument 

would play out, had Atlas endeavored to make it, is beyond the Court’s analysis. Moreover, 

whether Atlas would be affected by the “policy” it identifies—the Attorney General’s purported 

plan to prosecute COLA violators during a shutdown—would depend on executive discretion at 

several junctures. To take just one example (and more will be said on this later), a future

appropriations lapse would have to impact the Treasury, and the TTB specifically, in the same 

way that it did this last go-round. If the TTB, for some reason, did not shutter its operations and 

continued processing COLA applications, the so-called policy Atlas challenges would not even 

be implicated. The “threat of governmental action,” therefore, is at least “two steps removed 

from reality,” just like the precedents that the Super Tire majority distinguished. Id. at 123.

The takeaway is clear. While a plaintiff’s challenge to a policy may not always be 

mooted by the absence of a discrete application of the policy, that is true only where the policy is

fixed and definite and manages to work a present injury on the plaintiffs. See Super Tire, 416 

U.S. at 125–26 (“It is sufficient . . . that the litigant show the existence of [a] . . . policy that has 

adversely affected and continues to affect a present interest.”). That was the factual basis for 

Super Tire’s holding, see id. at 123–26, and the D.C. Circuit has always understood its holding 

as tethered to those facts, see City of Houston, 24 F.3d at 1428–29 (emphasizing that Super 

Tire’s holding depended on ongoing impact of state law); Del Monte Fresh Produce Co., 570 

F.3d at 321 (discussing Super Tire’s finding that state law was “immediately and directly 

injurious” to plaintiffs); Halkin v. Helms, 690 F.2d 977, 1008 (D.C. Cir. 1982) (explaining that 

Super Tire’s holding “rested . . . on its finding that the governmental policy challenged . . . was 
12

one essentially carved in stone and self-executing in nature”). Try as it might, Atlas cannot sever

Super Tire’s principles from its factual moorings.

In sum, Atlas’s failure to demonstrate that DOJ’s alleged enforcement policy operates 

independent of executive discretion and that the policy causes Atlas to suffer any present harm 

renders its demand for declaratory relief moot. That finding divests this Court of jurisdiction 

over the case, unless Atlas can show that an exception to the mootness doctrine applies. The 

Court now turns to that issue.

B. Exception to Mootness: Capable of Repetition yet Evading Review

An otherwise moot case may be salvaged if one of the exceptions to mootness applies. 

While the government, as the party seeking dismissal for lack of jurisdiction, bore the burden of 

establishing that Atlas’s claims had been mooted by the restoration of appropriations, it is now 

Atlas, as the party opposing dismissal, that “bears the burden of proving an exception applies.” 

J.D. v. Azar, 925 F.3d 1291, 1307 (D.C. Cir. 2019).

The mootness exception Atlas grasps for here applies to claims that are capable of 

repetition but evade judicial review. The “capable-of-repetition doctrine applies only in 

exceptional situations,” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and only where 

the plaintiff can “demonstrate that ‘(1) the challenged action is in its duration too short to be 

fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that 

the same complaining party would be subjected to the same action again,’” Del Monte Fresh 

Produce Co., 570 F.3d at 322 (quoting Clarke v. United States, 915 F.2d 699, 704 (D.C. Cir.

1990) (en banc)). Because the Court concludes Atlas cannot satisfy the second necessary 

condition, it begins and ends its analysis there.
13

The “capable of repetition” prong “requires that the same parties will engage in litigation 

over the same issues in the future.” United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. 

Operative Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada, AFL-CIO, 721 F.3d 678, 

688 (D.C. Cir. 2013) (internal quotation marks omitted). The party invoking the exception “must 

show a reasonable degree of likelihood that the” issues will recur. Id. (internal quotation marks 

omitted); see also Del Monte Fresh Produce Co., 570 F.3d at 324 (plaintiff must demonstrate that 

“legal wrong complained of by the plaintiff is reasonably likely to recur”).

What exactly does a “reasonable degree of likelihood” mean? Though judgment calls are 

inevitable when working with slippery standards like this, the Supreme Court has provided some 

guidance. In Murphy v. Hunt, the Court said the appropriate question is whether there is a 

“‘reasonable expectation’ or a ‘demonstrated probability’” of recurrence. 455 U.S. at 482

(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). That dual formulation occasioned a 

debate six years later in Honig v. Doe, 484 U.S. 305 (1988), over whether “reasonable 

expectation” and “demonstrated probability” were two ways of saying the same basic thing, or 

instead referred to two distinct quantums of probability. Compare id. at 318 n.6 (maj. op.), with

id. at 333 (dis. op.). In dissent, Justice Scalia took the former view, arguing that a “reasonable 

expectation” of recurrence could exist only if there were a “demonstrated probability” of such a 

recurrence, for “[n]o one expects that to happen which he does not think probable; and his 

expectation cannot be shown to be reasonable unless the probability is demonstrated.” Id. at 333. 

To the majority’s eye, however, the use of “or” between the two standards proscribes a reading 

that merely equates them. Id. at 318 n.6. And to the extent the dissent believed a clear morelikely-than-not showing was required, the majority found that inconsistent with the Court’s 
14

cases. Id. (citing cases for the proposition that the exception has applied to disputes that “were 

hardly demonstrably probable”). 

Thus, the Court will not ask “whether [Atlas] has established with mathematical precision 

the likelihood” that a future government shutdown will inhibit its exercise of First Amendment 

rights. Id. Nor will it ask “whether [Atlas] ha[s] demonstrated that a recurrence of the dispute 

[is] more probable than not.” Id. Instead, it will ask only whether there is a “reasonable 

expectation” of such recurrence. Id. Though this standard is certainly more forgiving than a 

strict probability rule, it by no means admits all comers. As the Supreme Court has long 

maintained, “a mere physical or theoretical possibility” will not be enough. Murphy, 455 U.S. at 

482; see also Clarke, 915 F.2d at 701 (parties must show that resolution of the case would have 

“a more-than-speculative chance of affecting [their rights] in the future” to avoid mootness).

The task to which the Court now turns, then, is determining where on the continuum 

between “reasonable expectation” of recurrence and “mere . . . possibility” of recurrence the 

First Amendment dispute in this case falls. The government contends that there are too many 

hypothetical events that would have to coincide for this case to count as reasonably likely to 

recur. In its view, at least four events would have to occur—at the same time—for the alleged 

wrong Atlas suffered during the last government shutdown to recur. MTD at 18, 20. Three are 

out of Atlas’s hands altogether; the last would depend on what Atlas does, and when it does it. 

The first three are that another appropriations lapse would have to occur, that lapse would have 

to affect the Treasury, and the Treasury would have to respond to the lapse in the same way it did 

during the last shutdown. As for what Atlas must do for this grievance to recur, it must seek a 

COLA approval either right before the shutdown begins or while it is ongoing. The government 
15

says there is no reasonable expectation that each of those contingencies will be satisfied 

simultaneously.

The Court agrees. Closer examination of each of the contingencies, with relevant case 

law providing a useful barometer, confirms that Atlas’s capable-of-repetition argument is more 

conjecture than reasonable expectation. 

1. The Contingencies 

A shutdown has to occur. At first blush, this contingency seems like the surest bet for 

Atlas. After all, as Atlas documents, there have been 20 federal “funding gaps” since FY 1977. 

See Opp., Ex. B, Congressional Research Service, Federal Funding Gaps: A Brief Overview

(February 4, 2019) (“Opp., Ex. B”), ECF No. 24-3, at 2. But Atlas must point to more than just a 

lapse in appropriations or “funding gap.” It needs a lapse that actually results in a government 

shutdown, and that shutdown must last long enough to hinder the processing of one of Atlas’s 

COLA labels. Yet about half of the 20 funding gaps that have occurred since FY 1977 were so 

brief—three days or fewer in duration—that they “do not appear to have resulted in a 

‘shutdown’” at all. Id. And while the most recent lapse caused a shutdown that lasted 34 days, 

that was the longest by 13 days; only seven of the 20 shutdowns have lasted 10 or more days, 

and only two have stretched beyond 20. Id. at 6. 

Even so, the Court agrees with Atlas that there is at least a “reasonable expectation” that 

a shutdown will occur again in the foreseeable future. Murphy, 455 U.S. at 482. There have 

been two extended funding gaps in this decade alone—16 days in 2013 and 34 days in 2018–

19—and this nation’s otherwise long history of budget impasses indicates still more lie ahead. 

Satisfying this threshold contingency, however, takes Atlas’s capable-of-repetition argument

only so far. 
16

The shutdown has to affect the Treasury Department, and Treasury must shutter the TTB. 

The Court takes the next two contingencies together. Even assuming a future appropriations 

lapse is likely to recur, the lapse would have to affect the Treasury Department, and Treasury 

would have to respond to a funding gap in the same way it did the last time around. As the 

government explains, “[n]ot all lapses in appropriations necessarily affect all agencies.” MTD at 

18; see also Opp., Ex. B at 4 (“[W]hen most of these funding gaps occurred, one or more regular 

appropriations measures had been enacted, so any effects were not felt government-wide.”). The 

government notes that “this past lapse in appropriations affected only some agencies, as five of 

the twelve appropriations bills had already been enacted by the time the lapse began.” Id.; see

also Opp., Ex. B at 2. Similarly, Congress had passed seven of thirteen appropriations bills 

before the 1995–96 shutdown. Opp., Ex. B at 2. Thus, even granting that a lapse in 

appropriations will happen again, that by itself does not guarantee the Treasury Department will 

be affected. 

That’s not all. Even if the lapse affects Treasury’s appropriation, the government says “it 

is entirely speculative whether, in response to any such lapse, the Department of Treasury would 

implement the same contingency plan in exactly the same manner.” MTD at 19. The orders 

from on high, from the Office of Management and Budget, may change. Id. The Treasury may 

undergo structural changes, affecting its “underlying programs, governing legal authorities, or 

employment relationships.” Id. It could also find itself with some rainy-day funding “such that 

it may continue a program even in the absence of appropriated funding.” Id. Or, the Treasury 

“may simply exercise its discretion under the Anti-Deficiency Act in a different manner.” Id.

Atlas calls this “irresponsible speculation.” Opp. at 29. It notes, first and foremost, that 

notwithstanding the government’s hand-waving about the Treasury being immune from a future 
17

funding lapse, the fact is that twice in the last six years, a shutdown has hit Treasury, and twice

the TTB has stopped processing COLA applications. Id. Atlas doubts the government’s 

argument that, even if Treasury is affected, it might handle the appropriation lapse differently. 

Of the government’s “mights,” Atlas says, “by the next shutdown, the FAA Act might be 

repealed, or Prohibition might be reintroduced. Or, perhaps, given that First Amendment rights 

are at stake, the government will make better decisions. Anything is possible. No relief can be 

had against the wrongdoer, because it might change its mind.” Id. Rather than indulge the 

government’s “string of conjecture,” id. at 28, Atlas asks the Court to assume the Treasury would 

do as it did during the last shutdown and stop processing COLA applications. 

Hyperbole aside, both sides are engaged in a guessing-game. It is true that the TTB 

stopped processing COLA applications during the last shutdown, but it is equally true that not all 

appropriations lapses, including the last one, affect all federal entities, and that Treasury remains 

free to tinker with its response to a future shutdown, see Reply to Opposition (“Reply”), ECF 

No. 26, at 6 (citing OMB guidance stating that requires agencies “to re-evaluate and update their 

contingency plans”). Atlas may doubt the government’s sincerity that it would behave any 

differently during a future shutdown, but the reality is that the government could do so—and that 

reality is yet another contingency that lessens the likelihood that the First Amendment injury 

Atlas allegedly suffered here will recur. 

In a footnote, Atlas contends that the “mere promise to reform, without more, is 

worthless for mootness purposes.” Opp. at 30 n.2. But as counsel for Atlas surely understands, 

the cases Atlas cites in support of that proposition all involve the voluntary-cessation exception 

to mootness, not the capable-of-repetition exception. These are two discrete analytical 

frameworks. The former holds that a defendant cannot unilaterally moot a case simply by 
18

ceasing his current conduct, because that would “leave the defendant free to return to his old 

ways.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)

(alterations and internal quotation marks omitted). Some additional showing is required to moot 

the case. In some cases, “subsequent events” may make “it absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.” Id. Short of that, a defendant 

bears “the heavy burden of persuading the court that the challenged conduct cannot reasonably 

be expected to start up again.” PETA v. USDA, 918 F.3d 151, 157 (D.C. Cir. 2019) (alteration 

and internal quotation marks omitted). As the D.C. Circuit recently explained, a government 

agency might make such a showing by submitting a sworn declaration that states, in no uncertain 

terms, that the agency will not again engage in the allegedly offending conduct. Id. at 157–58. 

These declarations will suffice, however, only where they announce a “new permanent policy” 

consistent with a plaintiff’s demands, establish “no real prospect” of repetition, or “formally 

announce[] changes to official governmental policy.” Id. at 159 (citations omitted). Atlas is of 

course correct that the government’s mere suggestion in this case that the Treasury might handle 

the next shutdown differently does none of those. 

But that is not the issue that confronts the Court. This case involves the capable-ofrepetition exception to mootness, and that means it is Atlas’s burden to show that the conduct it 

complains about here is likely to recur, not the government’s to show it absolutely cannot recur. 

However “worthless” the mere prospect of reform might be for purposes of the voluntarycessation exception, that prospect provides still further reason to doubt that the injury that 

spawned this case will recur.

Atlas would have to seek a COLA immediately before a shutdown began, or during it. 

That leaves one final hurdle to this dispute’s recurrence. Even if a lapse in appropriations 
19

occurs, even if the lapse affects the Treasury Department, even if the shortfall persists long 

enough to cause a shutdown of Treasury’s operations, and even if Treasury responds to the 

shutdown by ceasing COLA processing, Atlas has to hold up its end of the bargain: it must have 

a COLA application that needs processing at the time all of the above events occur. The TTB’s 

track record reveals that it processes COLA applications rather quickly; although processing time 

fluctuates, it appears to take TTB about two to three weeks to approve or deny a COLA 

application. See Declaration of Janet M. Scalese (“Scalese Decl.”), ECF No. 14-1,4¶ 4 (average 

processing time of 18 calendar days for malt beverages in February 2019); Alcohol and Tobacco 

Tax and Trade Bureau, “Processing Times for Label Applications” (July 22, 2019), 

https://www.ttb.gov/labeling/processing-times.shtml (average processing time of 24 calendar 

days on July 22, 2019). Thus, if Atlas does not file a COLA application close in time to when a 

future shutdown begins, or file one during the pendency of the shutdown, its First Amendment 

rights still would not be implicated.

Atlas tries hard to minimize this contingency. It maintains that it “applies for COLAs at 

a rate of one every 11 days, and it takes approximately 3 weeks to process a COLA.” Opp. at 28; 

see Declaration of Justin Cox (“Cox Decl.”), ECF No. 24-1,5¶ 9 (stating Atlas applied for 34 

COLAs in 2018). Given those numbers, Atlas says it “almost always needs at least one COLA” 

and “there is all but a mathematical certainty that a COLA shutdown will leave at least one of 

Atlas’s applications hanging.” Id. The Court sees it differently.

 

4 The government provided Scalese’s declaration along with its February 28, 2019 

motion to dismiss the original complaint, but cites it for support in its operative motion to 

dismiss.

5 Atlas has provided several declarations by Mr. Cox, but this opinion references only the 

one filed along with Atlas’s opposition to the operative motion to dismiss.
20

First of all, while the Court does not doubt that Atlas sought 34 COLAs in 2018, the

brewer’s every-11-days statistic is misleading. Atlas arrived at that number by dividing 365 by 

34, but Atlas’s own declaration makes clear that Atlas seeks COLAs in fits and spurts, not at 

regular intervals throughout the calendar year. For example, Atlas applied for three other 

COLAs on the same day it applied for The Precious One COLA that precipitated this case. See

Cox Decl. ¶ 16; Cox Decl., Ex. A., ECF No. 24-2, at 3. It applied for another six COLAs on the 

same day, December 11, 2018. See Cox Decl., Ex. A at 2–3. The brewer’s lumpy application 

pattern meant that it had long dry spells in 2018 without having a single COLA pending—

including for 34 days (coincidentally, the same length of the recent record shutdown) from 

February to March, id. at 2 (rows 52–53), and for 55 days from April to May, id. (rows 54–55). 

It should therefore come as no surprise that, when the government filed its initial motion to 

dismiss on February 26, 2019, Atlas had no pending COLA applications, and indeed did not file 

another until March 12, 2019. Id. at 3 (rows 80, 87). These facts belie Atlas’s contention that 

“there is all but a mathematical certainty that a COLA shutdown will leave at least one of [its] 

applications hanging.” Opp. at 28.

In addition, the relatively brief duration of most appropriations lapses, combined with the 

short time it takes TTB to process a COLA application, also lessens the likelihood that an Atlas 

COLA application will be left at sea during a hypothetical shutdown. Funding gaps, as the Court 

highlighted earlier, are historically very short—so short, in fact, that they often do not cause a 

“shutdown” at all. See Opp., Ex. B, at 2, 5. Even when a shutdown does occur, it has rarely

stretched beyond a week or two. Id. And because the TTB processes COLAs so quickly—about 

two to three weeks—that means Atlas must file for a COLA within about 20 days of a 

shutdown’s onset for that COLA’s processing to be affected and for Atlas’s alleged First 
21

Amendment injury to arise. See Scalese Decl. ¶ 4. True, Atlas could also file for a COLA after

a shutdown has begun, but there again, the short duration of shutdowns makes that a slim 

possibility. (Unless, of course, Atlas were to deliberately wait to file a COLA until a shutdown 

has begun, about which more will be said later.)

* * *

To recap the boxes that must be checked for this dispute to recur: a lapse in 

appropriations must happen; the lapse must affect the Treasury Department; the lapse must last 

long enough to actually cause a shutdown; Treasury must respond to the shutdown by shuttering 

the TTB’s COLA processing; and Atlas must have a COLA application pending at the time the 

shutdown begins or file one shortly thereafter. In the Court’s view, the combination of these 

contingencies takes this case beyond the limits of the capable-of-repetition exception to 

mootness. The Court grants that, if only two or three of these events had to coincide for the 

alleged wrong to recur, the Court would be facing a different question and might well come to a 

different conclusion. For it is not hard to imagine another appropriations lapse causing a 

government shutdown, just as it is easy to predict that Atlas will continue to need COLAs so 

long as it remains in business. But this case will not again present a live controversy unless each 

and every potentiality discussed here happens, and happens at the right time. Stretching the 

capable-of-repetition exception to cover this chain of contingencies would permit the exception 

to swallow the rule.

2. The Case Law 

The cases discussed by the parties confirm the conclusion that Atlas’s claim is moot, and 

that there is not a “reasonable expectation” that the alleged legal wrong giving rise to the claim

will recur. 
22

A natural place to start is with Judge Huvelle’s decision in Leonard v. U.S. Dep’t of 

Defense, 38 F. Supp. 3d 99 (D.D.C. 2014), which arose out of the 2013 shutdown and involved, 

like this case, an alleged First Amendment violation. The plaintiff, Father Ray Leonard, worked 

as a Catholic chaplain at the naval submarine base in Kings Bay, Georgia. When the government 

shut down, Father Leonard was told that he could not perform his “ecclesiastical duties, even 

voluntarily,” which Leonard said violated his rights under the First Amendment and the 

Religious Freedom Restoration Act (“RFRA”). Id. at 102. One day after Father Leonard filed 

suit, in which he sought both injunctive and declaratory relief, the defendants told him that “he 

(and other chaplains like him) would be permitted to continue working during the shutdown.” 

Id. After the shutdown ended and the Defense Department moved to dismiss the suit as moot, 

Father Leonard contended, among other things, that the First Amendment injury he suffered fit 

into the capable-of-repetition exception to mootness.

Judge Huvelle disagreed. She reasoned that “there are simply too many contingencies 

that would need to occur simultensouly” to be capable of repetition, namely:

(1) the government would need to shut down once again, (2) it would need to 

exclude payment for chaplains from any temporary funding schemes; (3) Father 

Leonard, who works on year-to-year contracts, would need to continue to serve at 

the Naval Submarine Base Kings Bay as a chaplain, and (4) the Navy would need 

to apply the Anti-Deficiency Act so as to limit chaplains’ religious activities 

despite the express decision not to do so at the end of the most recent government 

shutdown.

Id. at 106. The D.C. Circuit seconded that analysis in an unpublished opinion, emphasizing that 

Father Leonard’s capable-of-repetition argument failed to clear even the first contingency. 

Leonard v. U.S. Dep’t of Defense, 598 F. App’x 9, 10 (D.C. Cir. 2015) (“[Leonard’s] claims do 

not qualify for the capable-of-repetition, yet-evading-review exception to the mootness doctrine 
23

because the likelihood of a future government shutdown is too speculative.” (internal quotation 

marks omitted)).

The parties spar over Leonard’s relevance to this case. The government calls it “[t]he 

most relevant precedent directly on point,” MTD at 21; Atlas says it is “readily distinguishable” 

and thus “unavailing,” Opp. at 32. The key distinction, according to Atlas, is the fourth 

contingency highlighted by Judge Huvelle—the fact that the Navy already made the “express 

decision” not to “limit chaplains’ religious activities” during the shutdown. Opp. at 33 (citing 

Leonard, 38 F. Supp. 3d at 106). Because the Navy allowed Father Leonard to continue 

performing his ecclesiastical duties during the last shutdown, it was improbable that Navy would 

stop him from doing so during any future shutdown. That, Atlas says, stands in stark contrast to 

the facts presented here, where the TTB has twice stopped processing COLA applications during 

government shutdowns, has twice allegedly infringed brewers’ free speech rights, and has never 

made an “express decision” to avoid that alleged First Amendment harm during any prior 

shutdown. Id. 

Atlas is right that this feature of Leonard weakened the plaintiff’s capable-of-repetition 

argument. Atlas also correctly notes the absence of that feature here, which would seem to 

attenuate Leonard’s relevance to this case. But Atlas overlooks the fact that another contrast 

between this case and Leonard cuts the other way, making this case a comparatively weaker 

candidate for the capable-of-repetition exception. In Leonard, a single-day shutdown—provided 

the government told Leonard he could not perform his duties—would guarantee the recurrence 

of his First Amendment injury, so long as he remained a Navy chaplain. Here, by contrast, a 

First Amendment deprivation would occur only if Atlas, in addition to remaining in business, 

had filed a COLA application close in time to the shutdown’s onset or filed one after the 
24

shutdown began. Said another way, the contingency in the plaintiff’s control was much more 

certain in Leonard than it is here. To create a ripe First Amendment dispute, all Father Leonard 

would have to do if the government-side contingencies were satisfied is keep his job, while Atlas 

would have to take a particular action at a particular time to do the same. And given Atlas’s

history of going long stretches without filing for a COLA, that is no minor obstacle. Thus, the

factual differences that exist between this case and Leonard merely cancel one another out; they 

do not augur in favor of a different result.

In any event, Leonard is but one chapter in an anthology of consonant cases, many of 

which do not have the distinguishing feature Atlas highlights in Leonard. Consider, for instance, 

American Federation of Government Employees v. Rivlin, 995 F. Supp. 165 (D.D.C. 1998), on 

which Leonard relied. In Rivlin, government employees, represented by unions, sought a 

declaratory judgment that the federal government could not force them to work without pay 

during a shutdown. Id. at 165–66. The defendants argued the case had been mooted by the 

passage of the 1996 budget, and plaintiffs answered that the dispute remained live under the 

capable-of-repetition exception. Id. at 166. Judge Sullivan rejected plaintiffs’ argument and 

dismissed the case. “It would be entirely speculative for this Court to attempt to predict if, and 

when, another lapse in appropriations may occur, how long that lapse might be, which agencies 

might be subject to the lapse, which employees might be affected, and whether employees will 

be required to work without compensation. Id. That holding, too, was affirmed by the D.C. 

Circuit. See Am. Fed’n of Gov’t Employees, AFL-CIO v. Raines, No. 98-5045, 1998 WL 

545417 (D.C. Cir. July 15, 1998). Although the opinion affirming Rivlin was unpublished, and 

therefore is not binding precedent, it is notable that the D.C. Circuit found the issue “so clear as 

to warrant summary action.” Id. at *1.
25

The very same government-side contingencies that Rivlin found too remote are present in 

this case. A funding gap must occur; it must have an impact on the Treasury; it must last long 

enough to result in a shutdown of at least some Treasury activities; and Treasury must again 

choose to pause the processing of COLA applications. And, as the Court explained in its 

discussion of Leonard, this case contains an additional contingency—the plaintiff taking a 

particular action at the right time, as opposed to simply maintaining a certain status—that 

provides further reason to doubt the likelihood of recurrence. Atlas counters that Rivlin cannot

guide the analysis in this case because the court there “did not fully review the history of 

shutdowns, and obviously, was not in a position to consider the many shutdowns that have 

occurred since.” Opp. at 33. But that argument addresses just one of the contingencies—the 

likelihood of a shutdown—which this Court has already explained stands as the lowest hurdle for 

Atlas in this case. Atlas has no answer for the remaining hurdles that Rivlin identified and that 

stand in its way here.

The government also urges on the Court, among other cases, Alaska v. Jewell, No. 13-cv34, 2014 WL 3778590 (D. Alaska July 29, 2014), and Foster v. Carson, 347 F.3d 742 (9th Cir. 

2003). Both are instructive. In Jewell, involving the 2013 federal shutdown, the district court 

rejected the plaintiff’s argument that a national wildlife refuge would be closed during the next 

hypothetical shutdown because “the only fact in the record before the Court that suggests a 

refuge closure may happen again is the fact that it happened once.” 2014 WL 3778590, at *3.

For support, Jewell cited Foster, a case involving an Oregon budget shortfall, which also rejected 

a capable-of-repetition argument because “the only fact in the record . . . that supports [the 

likelihood of recurrence] is that it happened once.” 347 F.3d at 748. Atlas contends that both 

Jewell and Foster are inapposite because the plaintiff there “lacked evidence that previous 
26

shutdowns have ever created the same injury.” Opp. at 34. But the plaintiffs in those cases had 

essentially what Atlas has here: an allegation that it was injured during the immediately 

preceding shutdown. The only difference is that the TTB has stopped processing COLA 

applications twice (in 2018–19 and 2013) as opposed to just once (although Atlas was not 

affected by the 2013 shutdown). Jewell and Foster yield no indication the result would have 

been different with one additional data point about the government’s track record. They 

therefore remain useful guideposts.

The cases Atlas has offered, meanwhile, are not much help. The case Atlas says is 

“[d]irectly on-point,” Pratt v. Wilson, 770 F. Supp. 539 (E.D. Cal. 1991), is anything but. That 

case involved a class-action challenge to the state of California’s refusal, due to a budget 

impasse, to provide benefits pursuant to the state’s Aid to Families with Dependent Children 

(“AFDC”) program. Id. at 540. The impasse ended, but the court held that the dispute remained 

live because it was capable of repetition. Id. at 543. The court had good reasons for doing so, 

but many of those reasons are absent here. For one thing, the government-side contingencies 

appeared far less speculative. At the time plaintiffs filed suit, California had failed to “timely 

adopt[] a budget in five of the last eight years” and the same plaintiff class had previously been 

denied AFDC benefits during a shutdown. Id. But more important for present purposes is what 

the Pratt court did not discuss: the plaintiff-side contingencies. Chief among these, plaintiffs 

were a class, and ostensibly one that would always have eligible members. No matter when the 

next California budget crisis occurred, it seems reasonable to assume there would always be 

some residents affected by a stoppage of AFDC benefits. The facts here are different. Even 

after the government-controlled conditions are satisfied—a funding lapse affecting Treasury long 
27

enough to cause a shutdown, and Treasury carrying out the same contingency plan it did the last 

time—Atlas, and Atlas alone, would have to file for a COLA at just the right time. 

Biggs v. Wilson, 828 F. Supp. 774 (E.D. Cal. 1991), which Atlas also cites, is even 

further afield. There, the 1990 California budget impasse caused the paychecks of plaintiffs, 

California Department of Transportation employees, to be delayed, and the employees alleged 

this violated the Fair Labor Standards Act’s prompt-payment requirement. Id. at 775. Biggs, 

however, makes for a poor fit with this case. For starters, neither the word “mootness” nor the 

phrase “capable of repetition” even appears in the decision. Therefore, while Biggs may have

remarked on the likelihood of another California budget impasse, it was clearly not doing so 

under the rubric that controls the Court’s inquiry in this case. What’s more, beyond the 

possibility of a funding gap alone, the Biggs court discusses exactly none of the contingencies 

that animate the Court’s capable-of-repetition anlysis here. Biggs is inapposite.

So what does this comparison to relevant case law reveal? It shows that this case is far 

closer factually to the cases where courts have declined to find shutdown-contingent disputes 

capable of repetition than it is to the few cases that have concluded otherwise. This case sits 

comfortably alongside Leonard, Rivlin, and other decisions holding that shutdown-related 

disputes are not sufficiently capable of repetition. The very same contingencies those district 

courts (and the D.C. Circuit) found too speculative are present in this case, and they point to the 

same conclusion. 

But there is one other feature of this case that makes it even less suited to the capable-ofrepetition exception than any that the parties have cited or that the Court has uncovered: the fact 

that Atlas, to some extent, can control whether or not a hypothetical future shutdown causes 

them any injury at all. As alluded to earlier, Atlas is to some extent free to choose when to seek 
28

COLA approval. Indeed, in planning the release of new beers, Atlas admits that it “builds in . . . 

three weeks for TTB approval.” Cox Decl. ¶ 12. Combined with the fact that speculation 

regarding an impending shutdown begins well in advance of the actual event, that means Atlas 

can possibly avoid, or at least mitigate, the harm caused by a future shutdown—and it makes the 

chasm between this case and Atlas’s favored authorities wider still. In cases like Pratt and Biggs, 

there was nothing the plaintiffs could do to avoid the legal wrong in the event of another state 

shutdown, save for relinquishing their entitlement to benefits in Pratt or quitting their jobs in 

Biggs. They could not, for example, demand an advance on their benefits or pay that would 

obviate the pain of the shutdown; Atlas can, however, accelerate their COLA process if a 

shutdown seems likely. This is, of course, not to say that the blame for any potential First 

Amendment deprivation or economic harm caused by a future shutdown should lie exclusively, 

or even primarily, at the feet of Atlas. But it is to say that, to the extent Atlas genuinely wishes

to avoid a First Amendment injury and any concomitant business loss, it could plan the COLA 

process with an eye toward any looming shutdown. That Atlas has at least some ability to avoid 

the alleged injury that gave rise to this lawsuit, and that Atlas might rationally try to do so, 

further lessens the likelihood that it will recur. That is the final reason why this case does not 

present the sort of “exceptional situation[]” fit for the capable-of-repetition exception. See City 

of Los Angeles, 461 U.S. at 109.

* * *

As the passage of time can skunk a beer, so too can it spoil a lawsuit. Atlas came to this 

Court because it believed the government shutdown resulted in a de facto ban on protected 

speech and because it feared that The Precious One’s purgatory might become a permanent loss. 

When the government turned the lights back on, however, Atlas regained its ability to speak via 
29

its labels, and The Precious One was liberated from Atlas’s tanks. Despite the brewer’s 

protestations that it will likely suffer the same harms in the future, the Court sees too many 

contingencies that would have to coincide for that to happen. As a consequence, this case is now 

moot, and the Court therefore must dismiss it. 

IV. Conclusion

For the foregoing reasons, the Court will grant the government’s motion to dismiss. A 

separate Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER

United States District Judge

Date: July 31, 2019