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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-5258 September Term, 2019

FILED ON: JULY 15, 2020

ATLAS BREW WORKS, LLC,

APPELLANT

v.

WILLIAM P. BARR, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-00079)

Before: MILLETT, KATSAS, and RAO, Circuit Judges.

J U D G M E N T

The Court has considered this appeal on the record from the United States District Court 

for the District of Columbia and on the briefs of the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR.

R. 34(j). The Court has accorded the issues full consideration and determined that they do not 

warrant a published opinion. See D.C. CIR. R. 36(d). For the reasons set out below, it is 

ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED.

Atlas Brew Works is a craft brewery located in Washington, D.C., with regular interstate 

beer sales. To comply with federal law, Atlas must frequently obtain certificates of label approval 

(“COLAs”) from the Secretary of the Treasury prior to releasing seasonal and limited release beers 

with a rapid production and marketing cycle. See 27 U.S.C. § 205(e) (prohibiting brewers, vintners, 

and distillers from selling alcohol across state lines without a COLA). To obtain a COLA, brewers 

must submit proposed labels to the Treasury Department’s Alcohol and Tobacco Tax and Trade 

Bureau (“Bureau”) for approval. See 27 C.F.R. § 7.1 et seq. The Attorney General may bring 

actions in federal district court to enforce the COLA requirement, the violation of which is 

a misdemeanor punishable by fines of up to $1,000 per offense. See 27 U.S.C. § 207.

On December 20, 2018, Atlas sought COLAs for beer labels intended for sale on the 

interstate market. On December 22, however, a lapse in federal appropriations halted the COLA 
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review process as part of a government-wide shutdown. The Bureau closed its doors without acting

on the pending applications or any further applications submitted by Atlas during the shutdown.

On January 15, 2019, Atlas sued the Attorney General in the U.S. District Court for the 

District of Columbia to prevent enforcement of the COLA requirement against the specific beer 

labels awaiting Bureau approval and generally against any interstate beer sales. The shutdown 

ended on January 25, and the Bureau soon approved all of Atlas’s pending COLA applications. 

The district court denied relief as to those specific labels because the issue was moot. See Order, 

Atlas Brew Works LLC v. Whitaker, No. 19-cv-79 (D.D.C. Jan. 29, 2019). Nevertheless, Atlas 

amended its complaint to request declaratory relief and a permanent injunction barring the 

Attorney General from enforcing the COLA requirement during any future government shutdown. 

Atlas argued the COLA requirement for beer labels amounts to an unconstitutional infringement 

on speech whenever the regulatory approval process is unavailable. See Amended Compl. ¶¶ 37–

43 (citing, inter alia, Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)).

The district court concluded Atlas’s challenge to the Attorney General’s enforcement 

policy was also moot and dismissed the case. See Atlas Brew Works, LLC v. Barr, 391 F. Supp. 3d 

6 (D.D.C. 2019). First, the court found Atlas alleged no present harm from the Attorney General’s 

presumed enforcement policy and noted that whether Atlas would be harmed by the policy in the 

future depended on several layers of discretionary decisionmaking by the Executive Branch. Id. at 

13–14. Next, the court found Atlas failed to carry its burden of showing the “capable of repetition 

yet evading review” exception to mootness applied to its claims. Id. at 16. Atlas timely appealed.

Our review is de novo. Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 

(D.C. Cir. 2009). Lawsuits must meet Article III’s case-or-controversy requirement “not only ‘at 

the time the complaint is filed,’ but through ‘all stages’ of the litigation.” Already, LLC v. Nike, 

Inc., 568 U.S. 85, 90–91 (2013) (quoting Alvarez v. Smith, 558 U.S. 87, 92 (2009)). Cases become 

moot, and federal courts lose jurisdiction, “when the issues presented are no longer ‘live’ or the 

parties lack a legally cognizable interest in the outcome.” Id. at 91 (quoting Murphy v. Hunt, 455 

U.S. 478, 481 (1982) (per curiam)). When litigating whether a dispute is moot, “[t]he party seeking 

jurisdictional dismissal bears the initial heavy burden of establishing mootness, but the opposing 

party bears the burden of proving an exception applies.” J.D. v. Azar, 925 F.3d 1291, 1307 (D.C. 

Cir. 2019) (per curiam) (cleaned up).

Atlas plausibly alleged a concrete Article III injury when the suit commenced because the 

indefinite nature of the shutdown forced Atlas to choose between risking enforcement penalties by 

violating the COLA requirement or forgoing expressive activity on new beer labels. See Del 

Monte, 570 F.3d at 324 (“[S]tanding is assessed as of the time a suit commences.”). Atlas does not 

challenge the Secretary’s COLA regulations or their administration by the Bureau, only the lack 

of COLA processing during the government shutdown. When the shutdown ended, however, the 

Bureau resumed COLA processing and effectively ended the alleged infringement on speech. 

Thus, Atlas no longer alleged a live dispute, rendering the case moot and depriving the district 

court of jurisdiction.

Atlas raises three arguments to resuscitate its lawsuit, none of which are persuasive. First, 

Atlas argues that although its challenge as to the pending applications was mooted when the 

Bureau granted the COLAs, its challenge to the Attorney General’s alleged enforcement policy 
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survives the mootness of specific applications of that policy. As we explained in City of Houston 

v. HUD, “[i]t is well-established that if 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.” 24 F.3d 1421, 1428 (D.C. Cir.

1994). To challenge such a policy, the plaintiff must have “standing to attack future applications

of that policy” and its claim must be “ripe for review.” Id. at 1430.

Atlas’s challenge fails these requirements because it alleges no concrete and imminent 

injury capable of satisfying either prong. To begin with, the precise contours of the Attorney 

General’s enforcement policy are not sufficiently “fixed and definite.” Id. at 1429 (quoting Super 

Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 124 (1974)). The Department of Justice has not stated 

that it will enforce COLA violations during future shutdowns. Atlas argues we must nevertheless 

presume a concrete injury in light of the “conventional background expectation that the 

government will enforce the law.” U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 739 (D.C. Cir. 2016) 

(citation omitted). Even assuming such an enforcement policy exists, however, injury to Atlas 

depends upon several independent exercises of executive discretion, including decisions to shutter 

the COLA approval process and also to continue enforcing labeling requirements during 

a shutdown. Lapses of government funding often involve complicated legal and policy decisions 

to determine which government functions will remain available, decisions made by the affected 

agencies in conjunction with the Office of Management and Budget. The combination of factors 

necessary for a cognizable injury here is too speculative to support jurisdiction. Moreover, a preenforcement First Amendment challenge to a government policy must include “a credible 

statement by the plaintiff of intent to commit violative acts.” Id. (citation omitted); see also Susan 

B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014). Atlas has not stated a credible intent to

violate the COLA requirement unless a shutdown lasts long enough to endanger its operations—

longer, that is, than the 2018-2019 shutdown during which Atlas refrained from violating the law.

In these circumstances, deciding Atlas’s claims would require the court to evaluate an alleged

enforcement policy by assuming a series of hypothetical decisions by government agencies as well

as Atlas. Such speculative decisionmaking would take us outside the boundaries of the judicial

power.

Second, Atlas argues that its challenge falls within the “capable of repetition yet evading 

review” exception to mootness. Under this exception, a case may continue notwithstanding 

mootness if the plaintiff demonstrates “(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, 570 F.3d at 

322 (citation omitted); see also United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018). 

Atlas comes up short here as well because it failed to demonstrate a reasonable expectation that it 

would be subjected to the same harms in the future. The number of contingencies and discretionary 

decisions that must occur simultaneously are too numerous to establish “a reasonable expectation” 

of recurrence, which our cases describe as “some likelihood” the injury will repeat. Ralls Corp. v. 

CFIUS, 758 F.3d 296, 324–25 (D.C. Cir. 2014) (citation omitted). As the district court noted, for 

this dispute to arise again: “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 [Bureau’s] COLA processing; and Atlas must have 
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a COLA application pending at the time the shutdown begins or file one shortly thereafter.” Atlas 

Brew Works, 391 F. Supp. 3d at 19. Our court recently rejected the applicability of the “capable of 

repetition yet evading review” exception in a similar situation “because the likelihood of a future 

government shutdown is ‘too speculative.’” Leonard v. DOD, 598 F. App’x 9, 10 (D.C. Cir. 2015) 

(quoting Columbian Rope Co. v. West, 142 F.3d 1313, 1317 (D.C. Cir. 1998)). Atlas presents no 

persuasive argument to distinguish its circumstances from Leonard or other similar cases. See, 

e.g., Am. Fed’n of Gov’t Emps. v. Raines, No. 98-5045, 1998 WL 545417 (D.C. Cir. July 15, 1998)

(affirming dismissal of shutdown-related claims as moot and incapable of repetition). Therefore,

we apply the same reasoning here to conclude this exception to mootness does not apply to Atlas’s

claims.

Finally, Atlas argues for the first time on appeal that the Attorney General’s enforcement 

policy inflicts present harms on its business by forcing it to plan for compliance during future 

shutdowns. This claimed injury is distinct from the speech ban that Atlas relied on to plead 

standing below, and the argument is therefore forfeited. See Huron v. Cobert, 809 F.3d 1274, 1280 

(D.C. Cir. 2016). Atlas’s complaint said nothing about present harms other than “[a]ny inordinate 

delay in obtaining a COLA can threaten Atlas’s business,” Amended Compl. ¶ 17, and the 

company cannot now supplement its allegations to survive mootness on appeal.

For the foregoing reasons, the judgment of the district court is affirmed. Pursuant to D.C. 

Circuit Rule 36(d), this disposition will not be published. The Clerk is directed to withhold 

issuance of the mandate herein until seven days after resolution of any timely petition for rehearing 

or petition for rehearing en banc. See FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1).

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Deputy Clerk

Daniel J. Reidy