Agency Rescission and State-Law Interdependence Moot APA Challenges: The Sixth Circuit’s Refined Voluntary-Cessation Analysis in Gun Owners of America, Inc. v. U.S. Department of Justice

Introduction

In a published opinion authored by Chief Judge Sutton, the Sixth Circuit vacated the district court’s judgment and remanded with instructions to dismiss as moot a challenge to a 2020 Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) advisory. The plaintiffs—Gun Owners of America, Inc. and Donald J. Roberts—sought injunctive and declaratory relief under the Administrative Procedure Act (APA) to prevent enforcement of the ATF’s advisory that had directed federal firearms licensees (FFLs) to stop accepting Michigan concealed-pistol licenses (CPLs) as an alternative to a National Instant Criminal Background Check System (NICS) background check under the Brady Act.

The case’s center of gravity shifted when, in May 2025, ATF issued a new “Open Letter” that superseded the 2020 advisory and again recognized Michigan CPLs as valid NICS alternatives. The Sixth Circuit held that this intervening agency action eliminated any live controversy, rejected the plaintiffs’ arguments under the voluntary-cessation and capable-of-repetition exceptions, and ordered Munsingwear vacatur of the district court’s standing dismissal. The court’s reasoning refines how voluntary cessation applies to easily changeable agency guidance and highlights an important, often underappreciated dimension of mootness: where recurrence would depend on independent state-law choices, the prospect of repetition is even more speculative.

Summary of the Opinion

The court held the appeal was moot because the 2025 ATF advisory withdrew and superseded the 2020 advisory challenged by plaintiffs. Plaintiffs sought only prospective relief (injunction and declaratory judgment), not damages; with the new advisory recognizing Michigan permits, the court could not grant “any effectual relief.”

The court rejected two primary exceptions to mootness:

Voluntary cessation: The government’s rescission was not a tactical retreat in response to the litigation; rather, it followed an Executive Order directing a comprehensive review of state licensing schemes for Brady Act compliance and resulted in a multi-jurisdictional, publicly reasoned advisory that disavowed the prior policy. The court emphasized its presumption that government actors are unlikely to resume challenged conduct and underscored a novel factor: re-creating the controversy would require not only an ATF reversal but also particular choices by Michigan concerning the meaning and application of its own law. That multi-sovereign dependency diminished any reasonable expectation of recurrence.
Capable of repetition yet evading review: Nothing about the regulatory context makes full judicial review impracticable; future challenges to ATF’s handling of NICS alternatives could be litigated to judgment, and the mere possibility of policy oscillation across administrations is too speculative to defeat mootness.

Because mootness arose while the case was on appeal, the Sixth Circuit vacated the district court’s standing dismissal under United States v. Munsingwear, Inc., and remanded with instructions to dismiss the case as moot.

Background

The Brady Handgun Violence Prevention Act generally requires a background check before firearms transfers. 18 U.S.C. § 922(t)(1). It recognizes an exception for certain state-issued permits if “the law of the State” requires issuance only after a determination that the applicant is not prohibited from possessing a firearm. 18 U.S.C. § 922(t)(3)(A)(ii). ATF informs FFLs which state permits qualify. See 28 C.F.R. § 0.130(a).

Prior to 2020, ATF recognized Michigan CPLs as satisfying the Brady Act alternative. Michigan law provides that the State Police or county sheriff must determine through NICS that an applicant is not federally prohibited. Mich. Comp. Laws § 28.426(2)(a). In 2020, ATF concluded that Michigan was not adequately resolving NICS “red flags” before issuing CPLs and issued a public-safety advisory directing FFLs not to treat Michigan CPLs as NICS substitutes. Roberts was denied a purchase using his CPL and, with Gun Owners of America, sued for injunctive and declaratory relief under the APA.

The district court initially granted summary judgment for ATF. The Sixth Circuit vacated and remanded in 2021 for further consideration of the “available information” about state-law requirements under § 922(t)(3). On remand, the district court dismissed for lack of standing in 2024. While the appeal was pending, a new Executive Order in February 2025 directed a federal review of potential infringements of Second Amendment rights, and on May 23, 2025, ATF issued an Open Letter that superseded prior letters and again listed Michigan CPLs as qualifying permits. That development drove the mootness outcome.

Analysis

Precedents Cited and Their Influence

Article III case-or-controversy and mootness: The court drew on the constitutional bedrock limiting federal courts to live disputes. See Brown v. Yost (en banc) (mootness when no “effectual relief” can be granted); Ohio v. EPA (must have “practical effect” on the parties). Because plaintiffs sought only forward-looking relief, Chafin v. Chafin’s “effectual relief” principle foreclosed adjudication once the ATF rescinded the challenged advisory.
Issue sequencing: Citing Sinochem Int’l, the court emphasized it could resolve a threshold non-merits issue (mootness) without resolving standing, avoiding unnecessary constitutional adjudication.
Voluntary cessation framework: The opinion applied Sixth Circuit en banc authority in Resurrection School v. Hertel and Speech First v. Schlissel, which articulate both the traditional concern that a defendant could “return to its old ways” and the Sixth Circuit’s “solicitude” presuming government actors are unlikely to reinstate challenged conduct. The court noted that the formality of the policy change matters: easily changeable policies demand “more” to establish mootness. Here, the “more” consisted of a comprehensive, cross-jurisdictional review spurred by an Executive Order, a public chart superseding prior guidance, and a clear disavowal of the prior position.
Speculation is not enough: Thomas v. City of Memphis underscores that “theoretical possibility” of reversion does not defeat mootness. Likewise, Hall v. Beals stands for rejecting “speculative contingencies,” and circuit decisions in DeOtte (5th Cir.), Brach (9th Cir. en banc), Prison Legal News (10th Cir.), and Larsen (D.C. Cir.) reject mootness-defeating arguments premised solely on the possibility of a future policy shift.
State-law dependency and justiciability: The court analogized to standing doctrine—DaimlerChrysler v. Cuno and Lujan v. Defenders of Wildlife—where third-party decisions break redressability. It also cited Mullaney v. Wilbur to underscore states’ authority over their own laws. The recent D.C. Circuit decision in Moharam v. TSA similarly counsels caution when controversies turn on unique factual contexts unlikely to recur. This body of law helped the court reason that recurrence would require both federal and state decisions aligning in the same way, making repetition especially unlikely.
Capable of repetition yet evading review: Thompson v. DeWine and Spencer v. Kemna set the demanding standard; In re Flint Water Cases reiterates that the exception is “exceptional” and applies only where complete judicial review is “impossible.” The court found neither short duration nor inherent time constraints here.
Munsingwear vacatur: United States v. Munsingwear requires vacatur of the lower court ruling when a case becomes moot on appeal through no fault of the appellant, preventing unreviewed judgments from having collateral consequences.
Comparison cases within the Sixth Circuit: The court distinguished Speech First (rescission during litigation with continued defense of legality) and aligned more closely with Doe v. University of Michigan, where the defendant’s admission of error supported mootness.

Legal Reasoning

The Sixth Circuit’s reasoning proceeds in three integrated steps.

No effectual relief available: Plaintiffs sought only declaratory and injunctive relief. With ATF’s 2025 Open Letter explicitly recognizing Michigan CPLs and superseding all prior letters, any prospective order would be advisory in the colloquial sense. The operative federal posture already affords the plaintiffs what they sought functionally—FFLs may accept Michigan CPLs. Therefore, the court could not provide relief with “practical effect” under Article III.
Voluntary cessation does not salvage the case:
- Presumption for government actors: The court invoked its established presumption that government entities will not resume challenged conduct once rescinded, while noting the presumption’s strength can vary with the ease of policy change.
- Timing and context: The 2025 rescission was not a strategic mid-litigation about-face. It came five years after filing, shortly after the government had prevailed on standing in the district court, and pursuant to a new Executive Order. These facts blunted any inference of “tactical cessation.”
- Scope and disavowal: The 2025 Open Letter reflected a system-wide review across states and territories and unequivocally superseded the prior advisory. The government represented that its prior determination was incorrect and that Michigan CPLs do qualify. That disavowal aligns with Doe v. University of Michigan and contrasts with cases where defendants rescinded while defending the legality of the old policy.
- Multi-sovereign dependency: Critically, even if ATF reversed again, recurrence of the same alleged injury would also depend on how Michigan defines, administers, or clarifies its own licensing law, including the treatment of NICS “red flags.” Because state law is within the state’s control, this additional variable further undermines any reasonable likelihood that “the same allegedly wrongful conduct” will recur in the same way.
Capable of repetition yet evading review does not apply: The regulatory context lacks the built-in temporal compression that defeats full litigation (unlike elections or pregnancy-related disputes). If ATF were to revise its view again, similarly situated plaintiffs could sue and obtain judicial review. The mere possibility that a future administration might adopt a different view—much less the exact same view in an identical legal posture—is too speculative.

Impact and Implications

This decision carries several practical and doctrinal implications:

Refined voluntary-cessation analysis for agency guidance: Even when the challenged policy is a relatively informal, easily changeable agency “open letter” or advisory, mootness can still attach if the government shows context indicating a bona fide, non-litigation-driven policy shift—especially where the change arises from broader executive direction, covers multiple jurisdictions, and is coupled with a clear disavowal of the prior position.
Multi-sovereign interdependence as a mootness stabilizer: Where the recurrence of harm depends on both federal and state actions, courts may weigh the independent choices of non-parties (here, the state’s control over its licensing law and its interpretation) as an additional reason to deem recurrence unlikely. This “third-party” dimension—borrowed conceptually from standing’s redressability analysis—adds an important factor to the mootness calculus in federalism-sensitive contexts.
Policy oscillation across administrations: The court resists the invitation to treat possible future oscillation as sufficient to defeat mootness. Litigants challenging executive-branch policies that may change with political control must marshal concrete evidence of likely recurrence; otherwise, abstract “what-ifs” will not keep cases alive.
Strategic litigation considerations for plaintiffs:
- If forward-looking relief is the only remedy sought under the APA, a later agency rescission may moot the case. Plaintiffs seeking to preserve a live controversy should consider whether any cognizable past injury and damages claims exist (subject to sovereign-immunity limitations) or whether other forms of relief (e.g., records correction, if available) could provide effectual relief.
- Attorneys’ fees under EAJA typically require “prevailing party” status; a Munsingwear vacatur following mootness may foreclose fee recovery. This incentivizes plaintiffs to think early about remedies that survive policy change.
- To invoke voluntary-cessation or capable-of-repetition exceptions, plaintiffs should develop a record showing either a pattern of rescind-and-reinstate behavior or concrete signals of imminent return to prior practices—not merely speculation.
Administrative law and firearms regulation: The opinion leaves unresolved the merits question the Sixth Circuit flagged in 2021 concerning the Brady Act’s “available information” requirement and how state law must be applied. The ATF’s 2025 reversal mooted the dispute, so no binding merits guidance emerged. Practically, however, the agency’s comprehensive 2025 review and chart now provides regulated parties with updated direction on which state permits qualify.
Munsingwear vacatur safeguards: By vacating the district court’s standing dismissal, the Sixth Circuit ensured that an unreviewed justiciability ruling would not carry preclusive effect. This preserves both parties’ ability to litigate similar issues if a future controversy actually materializes.

Complex Concepts Simplified

Mootness: Federal courts can decide only live disputes. If events after a case is filed mean the court’s decision can no longer affect the parties in a practical way, the case is “moot” and must be dismissed.
Voluntary cessation: When a defendant stops the challenged conduct after being sued, the case is not automatically moot—courts ask whether there is a reasonable chance the defendant will start again. For government defendants, the Sixth Circuit generally presumes they will not resume, though the strength of that presumption can vary depending on how easily the policy can be changed and the context of the change.
Capable of repetition yet evading review: A narrow exception that keeps cases alive if the action is so short-lived that courts can never finish reviewing it in time, and there’s a reasonable expectation the same plaintiff will face it again. It applies in contexts like elections or pregnancy, but rarely in ordinary regulatory disputes.
Munsingwear vacatur: If a case becomes moot on appeal through no fault of the appellant, the appellate court typically vacates the lower court’s decision so that it does not bind the parties in the future, and remands with instructions to dismiss.
Brady Act alternative permit: The Brady Act allows certain state-issued permits to substitute for the federal NICS background check if state law requires vetting that ensures the applicant is not prohibited from possessing a firearm. ATF advises FFLs which state permits qualify.
State-law interdependence: Some federal controversies turn on how a state defines and applies its own law. If future recurrence of a dispute depends on actions by both a federal agency and a state (which is not a party), courts are reluctant to assume everything will align to recreate the exact same injury.

Conclusion

Gun Owners of America, Inc. v. U.S. Department of Justice is a careful application—and refinement—of Article III mootness in the context of agency guidance that is both easily alterable and intertwined with state law. The Sixth Circuit concludes that ATF’s 2025 Open Letter, prompted by a broad executive directive and covering multiple jurisdictions, mooted plaintiffs’ forward-looking APA challenge to a 2020 advisory. The court’s analysis underscores two key lessons: first, government rescission accompanied by a clear disavowal and systemic review will often suffice to moot a case, even where the underlying policy instrument is easily changeable; second, when recurrence would depend on independent choices by non-parties (here, Michigan’s control over its licensing law and practice), the prospect of repetition becomes too speculative to sustain an exception to mootness.

By ordering Munsingwear vacatur, the court prevents the district court’s standing ruling from having lingering effects and preserves the parties’ ability to litigate anew if a concrete controversy ever returns. More broadly, the opinion signals to litigants that in multi-sovereign regulatory disputes, a strategic focus on remedies and a robust evidentiary showing of likely recurrence are essential if they wish to overcome mootness when agencies revise course.