Morehouse Enterprises, LLC, doing business as Bridge City Ordinance v. Bureau of Alcohol, Tobacco, Firearms

United States Court of Appeals
For the Eighth Circuit
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No. 24-3200
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Morehouse Enterprises, LLC, doing business as Bridge City Ordinance; Gun
Owners of America, Inc.; Gun Owners Foundation
Plaintiffs - Appellants
v.
Bureau of Alcohol, Tobacco, Firearms and Explosives; United States Department
of Justice; Daniel P. Driscoll, In his Official Capacity as the Acting Director of
ATF; Hans Hummel, In his Official Capacity as the Director of Industry and
Operations for the Saint Paul Field Division of the ATF
Defendants - Appellees
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Brady Center to Prevent Gun Violence; Everytown for Gun Safety Action Fund;
March For Our Lives; Giffords Law Center to Prevent Gun Violence
Amici on Behalf of Appellee(s)
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: October 21, 2025
Filed: December 11, 2025
[Unpublished]
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Before SMITH, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
In 2021, the Biden administration announced a policy of “zero tolerance” for
“rogue gun dealers.”1 Consistent with the zero-tolerance policy, the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) circulated an internal
Administration Action Policy (AAP) instructing agency personnel to seek
revocation for certain first-time violations of the Gun Control Act of 1968. R. Doc.
55-1. Plaintiffs—a federal firearms licensee and two Second Amendment advocacy
organizations—filed suit to challenge the zero-tolerance AAP.2 The district court
dismissed the complaint for failure to state a claim.
1 White House, Fact Sheet: Biden-Harris Administration Announces
Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure
Public Safety, https://bidenwhitehouse.archives.gov/briefing-room/statements-
releases/2021/06/23/fact-sheet-biden-harris-administration-announces-
comprehensive-strategy-to-prevent-and-respond-to-gun-crime-and-ensure-public-
safety/ (last visited Nov. 21, 2025).
2 The complaint contained five claims: (1) the AAP is arbitrary and capricious
under the Administrative Procedure Act, (2) the AAP violates the Second
Amendment, (3) the ATF’s inspection was retaliation in violation of the Fifth
Amendment, (4) the ATF’s inspection was selective prosecution in violation of the
Fifth Amendment, and (5) the ATF’s inspection denied access to the courts in
violation of the First Amendment. Plaintiffs requested declaratory and permanent
injunctive relief.

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Plaintiffs appealed, but following a change in presidential administration,3 the
ATF repealed4 the zero-tolerance AAP and replaced it with a new AAP.5 Instead of
establishing a “zero tolerance” standard for certain violations, the new AAP requires
a “fact-specific analysis.” 2025 AAP § 6(a). In particular, the policy recognizes that
“[s]ome violations may be repetitive, yet accidental, and not inconsistent with public
safety.” Id. § 6(b). It explains, for example, that “[r]epeat non-willful errors
(particularly those involving paperwork) may occur, even by a conscientious
licensee.” Id. § 7(a)(1)(b). It accordingly permits ATF officials to initiate license
revocation proceedings only “if all elements of the violation, including the relevant
mens rea, are established and it is appropriate under the circumstances.” Id. § 6(b).
Based on these events, the ATF has moved to dismiss the appeal as moot. Plaintiffs
oppose the motion, arguing that the exceptions to mootness apply.
Upon review, we conclude that the appeal is moot and that no mootness
exception applies. “[A]n appeal must be dismissed as moot when our decision will
have no effectual relief whatever to a prevailing party.” Doe v. Pulaski Cnty. Special
Sch. Dist., 306 F.3d 616, 621 (8th Cir. 2002) (en banc) (citation modified); see also
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (“[I]f an event
3 President Donald J. Trump issued an executive order directing a review of
firearms-related matters. See The White House, Presidential Actions: Protecting
Second Amendment Rights (Feb. 7, 2025) (“Executive Order”),
https://perma.cc/3274-ALLR. The executive order directed the Attorney General to
review “[a]gencies’ plans, orders, and actions regarding the so-called ‘enhanced
regulatory enforcement policy’ pertaining to firearms and/or Federal firearms
licensees.” Id. § 2(b)(iii).
4See Press Release, ATF, DOJ, ATF Repeal FFL Inspection Policy and Begin
Review of Two Final Rules (Apr. 7, 2025), https://perma.cc/CM36-QA3D.
5See ATF, U.S. Dep’t of Just., Order 5370.1H, Federal Firearms
Administrative Action Policy and Procedures (May 6, 2025) (“2025 AAP”),
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ah
UKEwi156LIh_yQAxUnEFkFHeIrA8AQFnoECBEQAQ&url=https%3A%2F%2F
www.atf.gov%2Ffile%2F201926%2Fdownload&usg=AOvVaw3BEIQsNvzfrhED
Nuo51cel&opi=89978449 (last visited Nov. 21, 2025).

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occurs while a case is pending on appeal that makes it impossible for the court to
grant any effectual relief whatever to a prevailing party, the appeal must be
dismissed.” (citation modified)); FBI v. Fikre, 601 U.S. 234, 240 (2024)
(“Sometimes, events in the world overtake those in the courtroom, and a
complaining party manages to secure outside of litigation all the relief he might have
won in it. When that happens, a federal court must dismiss the case as moot.”). Here,
Plaintiffs sought declaratory and injunctive relief to “restrain[] [the ATF] from
further implementing or otherwise enforcing [the] . . . ‘zero tolerance’ policy.” R.
Doc. 1, at 1. Plaintiffs received all the relief that they sought in their complaint when
the ATF repealed the zero-tolerance AAP and replaced it with a new AAP after the
change in presidential administration. The case is moot.
No exception to the mootness doctrine saves this appeal from dismissal. First,
the ATF has satisfied its burden of showing that the reinstitution of the zero-
tolerance policy cannot reasonably be expected to recur. See Fikre, 601 U.S. at 241
(“[A] defendant’s voluntary cessation of a challenged practice will moot a case only
if the defendant can show that the practice cannot reasonably be expected to recur.”
(citation modified)). Here, the ATF repealed the zero-tolerance AAP and replaced it
with the new AAP “not in response to this lawsuit”6 but instead in response to
President Trump’s executive order issued after the change in presidential
administration. In that executive order, President Trump directed the Attorney
General to review agency actions “to assess any ongoing infringements of . . . Second
Amendment rights,” including reviewing “[a]gencies’ plans, orders, and actions
regarding the so-called ‘enhanced regulatory enforcement policy’ [the zero-
tolerance policy] pertaining to firearms and/or Federal firearms licensees.”
Executive Order, supra n.3, at § 2(a), (b)(iii).
6Resurrection Sch. v. Hertel, 35 F.4th 524, 529 (6th Cir. 2022) (en banc); see
also Twin Cities Safety, LLC v. Moe, 139 F.4th 1015, 1020 (8th Cir. 2025) (per
curiam) (“But Plaintiffs do not allege that Defendants stopped funding CNA
trainings in response to this litigation, or for any reason other than all of the money
had been allocated.”).

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Second, the present dispute is not capable of repetition, yet evading review.
See Abdurrahman v. Dayton, 903 F.3d 813, 817 (8th Cir. 2018) (explaining that the
mootness exception “allow[ing] a federal court to consider an otherwise moot case
if it is capable of repetition, yet evading review . . . . applies if (1) the challenged
action is in its duration too short to be fully litigated prior to cessation or expiration,
and (2) there is a reasonable expectation that the same complaining party will be
subject to the same action again” (citation modified)). Plaintiffs argue that the case
evades review because none of the ATF’s recent AAPs lasted longer than 19
months;7 furthermore, they assert that there is a reasonable expectation that they will
be subject to the same action again because the ATF can change its policy at any
time, for any reason. But “a policy is not capable of repetition yet evading review
merely because the governing body has the power to reenact the policy after the
lawsuit is dismissed. Instead, the exceptions are rare and typically involve situations
where it is virtually certain that the repealed policy will be reenacted.” Young Am.’s
Found. v. Kaler, 14 F.4th 879, 886 (8th Cir. 2021) (citation modified). Based on
President Trump’s executive order and the ATF’s response to that order, it is
virtually certain that the zero-tolerance AAP will not be reenacted during the Trump
administration.
Accordingly, we grant the ATF’s motion to dismiss this appeal as moot. The
district court’s order is vacated, and we remand to the district court to dismiss this
case as moot. See Twin Cities, 139 F.4th at 1020 (“When a civil case becomes moot
pending appeal, the appellate court normally vacates the order being appealed and
remands to the district court with instructions to dismiss the case as moot.” (quoting
Epp v. Kerrey, 964 F.2d 754, 756 (8th Cir. 1992))).
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7 The AAPs that Plaintiffs refer to were all issued during the Biden
Administration and were consistent with the zero-tolerance policy. See R. Doc. 1, at
10–19. Plaintiffs challenged all of these versions in their complaint.

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