National Council of Nonprofits v. Office of Management

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2026 Decided August 21, 2026
No. 25-5148
NATIONAL COUNCIL OF NONPROFITS, ET AL.,
APPELLEES
v.
OFFICE OF MANAGEMENT AND BUDGET AND RUSSELL T.
VOUGHT, IN HIS OFFICIAL CAPACITY AS DIRECTOR, OFFICE OF
MANAGEMENT AND BUDGET,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:25-cv-00239)
Brian J. Springer, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Brett A. Shumate, Assistant Attorney General, and Daniel
Tenny and Sean R. Janda, Attorneys.
Jay A. Sekulow, Jordan A. Sekulow, Andrew J. Ekonomou,
Benjamin P. Sisney, and Nathan J. Moelker were on the brief
for amicus curiae the American Center for Law and Justice in
support of appellants.

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Jessica Morton argued the cause for appellees. With her
on the brief were Kevin E. Friedl and Robin F. Thurston.
Allison Neswood and Katie E. Klass were on the brief for
amici curiae 8 Tribal Organizations in support of appellees.
Before: SRINIVASAN, Chief Judge, WILKINS and GARCIA,
Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: This case involves a dispute
over the proper interpretation of a short-lived federal funding
memorandum issued by the Office of Management and Budget
to the heads of all federal agencies. A week after President
Trump took office for his current term, OMB issued
Memorandum M-25-13, which directed agencies to
temporarily pause grants, loans, and financial assistance
programs in the wake of a series of executive orders released
in the administration’s first days. The Memorandum’s
issuance instantly sparked widespread chaos based on concerns
that it called for an across-the-board halt to vital funding of
essentially all federally funded programs. The next day, OMB
issued a guidance document explaining that the
Memorandum’s funding pause had a narrower reach, tied to
specific executive orders. Then, one day later—two days after
the Memorandum’s issuance—OMB rescinded it altogether.
Plaintiffs include organizations that receive federal
funding and associations of such organizations. They brought
this suit the day after the Memorandum issued, hours before it
was to take effect, and the day before it was rescinded.
Plaintiffs challenge the Memorandum’s lawfulness, and their
claims are grounded in their belief that the Memorandum called
for a global freeze on all federal funding.

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Acting quickly on Plaintiffs’ request for emergency relief
and the record before it, the district court entered a temporary
restraining order and then a preliminary injunction barring the
government from implementing the Memorandum. The
preliminary injunction rests on the court’s understanding that
the Memorandum directed a categorical freeze on all federal
financial assistance. The government now appeals.
We have no cause to question the district court’s
considered assessment in exigent circumstances of the most
natural reading of the Memorandum, of the strength of
Plaintiffs’ legal challenges to it, or of the widespread effects
and panic it caused. Rather, we vacate the preliminary
injunction based solely on the likelihood that Plaintiffs’
challenge to the Memorandum has become moot because the
Memorandum was rescinded. Plaintiffs challenge the now-
rescinded Memorandum itself; they do not challenge, for
instance, the actions taken by executive agencies in carrying it
out. In this sort of situation, discontinuation of the action being
challenged has the effect of mooting the case if there is no basis
for supposing the defendant might simply renew the challenged
action after the lawsuit has concluded.
The government has likely made the requisite showing that
it will not reissue the challenged Memorandum or one with the
same allegedly unlawful features. Plaintiffs’ challenge to the
Memorandum assumes that it called for a global funding
freeze, not the more tailored freeze contemplated by the
government’s interpretation. Assuming Plaintiffs have the
better reading, the government has shown there is sufficiently
little chance it would again attempt an across-the-board freeze
of that kind: before the government even knew of any lawsuit,
it issued a guidance document conveying to agencies that the
Memorandum had not intended to establish a blanket freeze in

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the first place; and throughout this litigation, the government
has not sought to defend the lawfulness of any such global
freeze or protect its ability to establish one in the future. In
these circumstances, we conclude that Plaintiffs’ challenge to
the now-rescinded Memorandum is likely moot, and that the
preliminary injunction therefore must be vacated.
I.
A.
On January 20, 2025, President Trump’s first day back in
office, he signed a series of executive orders addressing his
administration’s policy priorities. Several of the orders
contained directives about the disbursement of federal funds.
For example, an order titled Unleashing American Energy
directed agencies to ensure that no federal funds are “employed
in a manner contrary to the principles” of encouraging certain
“energy exploration and production” and guaranteeing the
accessibility of “an abundant supply of reliable energy,”
“unless required by law.” Exec. Order No. 14154 § 2(a), (c),
(i), 90 Fed. Reg. 8353, 8353–54 (Jan. 20, 2025). The order
required agencies to “immediately pause the disbursement of
funds” under programs established by two federal statutes. See
id. § 7(a), 90 Fed. Reg. at 8357. Other orders similarly directed
agencies to assess their existing programs to ensure that federal
funds are not disbursed in ways contrary to the administration’s
policies. See, e.g., Protecting the American People Against
Invasion, Exec. Order No. 14159 §§ 17, 18, 90 Fed. Reg. 8443,
8446, 8447 (Jan. 20, 2025); Defending Women from Gender
Ideology Extremism and Restoring Biological Truth to the
Federal Government, Exec. Order No. 14168 § 2(g), 90 Fed.
Reg. 8615, 8616 (Jan. 20, 2025); Ending Radical and Wasteful

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Government DEI Programs and Preferencing, Exec. Order No.
14151 § 2(b)(ii), 90 Fed. Reg. 8339, 8339–40 (Jan. 20, 2025).
B.
On January 27, 2025, Matthew J. Vaeth, Acting Director
of OMB, issued Memorandum M-25-13, addressed to the
heads of executive departments and agencies. Off. of Mgmt.
& Budget, Exec. Off. of the President, Temporary Pause of
Agency Grant, Loan, and Other Financial Assistance
Programs (Jan. 27, 2025), https://perma.cc/JA22-QXSK. The
Memorandum listed a “series of executive orders” that had just
been issued by President Trump in the administration’s first
week, id. at 1–2, and then stated that, “[t]o implement these
orders, each agency must complete a comprehensive analysis
of all of their Federal financial assistance programs to identify
programs, projects, and activities that may be implicated by
any of the President’s executive orders,” id. at 2. The
Memorandum instructed that, “[i]n the interim, to the extent
permissible under applicable law, Federal agencies must
temporarily pause all activities related to obligation or
disbursement of all Federal financial assistance, and other
relevant agency activities that may be implicated by the
executive orders, including, but not limited to, financial
assistance for foreign aid, nongovernmental organizations,
DEI, woke gender ideology, and the green new deal.” Id. The
Memorandum set the funding pause to take effect at 5:00 p.m.
the following day, January 28, 2025. Id.
The Memorandum instructed agencies to submit to OMB,
by February 10, 2025, “detailed information on any programs,
projects or activities subject to this pause.” Id. Pending
completion of OMB’s review of the submitted information, the
Memorandum required agencies to “pause: (i) issuance of new
awards; (ii) disbursement of Federal funds under all open

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awards; and (iii) other relevant agency actions that may be
implicated by the executive orders, to the extent permissible by
law.” Id. The Memorandum authorized OMB to grant
exceptions “on a case-by-case basis.” Id.
The next day, January 28, 2025, before the pause took
effect, OMB issued a guidance to agencies about the
Memorandum’s scope, which the White House also publicly
posted as a “Fact Sheet” about the Memorandum. See OMB
Guidance (Jan. 28, 2025) (“Guidance”), J.A. 62–63; Donald J.
Trump (2nd Term), White House Fact Sheet: OMB Q&A
Regarding Memorandum M-25-13 (Jan. 28, 2025),
https://perma.cc/K5M2-Z7LP. The Guidance began by stating
that the Memorandum directed agencies to “temporarily pause,
to the extent permitted by law, grant, loan or federal financial
assistance programs that are implicated by the President’s
Executive Orders.” Guidance at 1, J.A. 62. Immediately
following that introductory statement, the Guidance
emphasized (in bold) OMB’s explanation of the reach of the
funding freeze: “Any program not implicated by the
President’s Executive Orders is not subject to the pause.”
Id. The Guidance then relisted the specific executive orders
enumerated in the Memorandum and stated that the
Memorandum “establishes a process for agencies to work with
OMB to determine quickly whether any program is
inconsistent with the President’s Executive Orders.” Id.
In its first question and answer, the Guidance directly
addressed and rejected the idea that the Memorandum
instituted an across-the-board funding freeze:
Q: Is this a freeze on all Federal financial
assistance?

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A: No, the pause does not apply across-the-
board. It is expressly limited to programs,
projects, and activities implicated by the
President’s Executive Orders, such as ending
DEI, the green new deal, and funding
nongovernmental organizations that undermine
the national interest.
Id. The Guidance further explained that the Memorandum’s
funding freeze “is a temporary pause to give agencies time to
ensure that financial assistance conforms to the policies set out
in the President’s Executive Orders, to the extent permitted by
law.” Id. at 2, J.A. 63.
C.
On the same day (and at around the same time) that the
Guidance issued, January 28, 2025, Plaintiffs filed this action
challenging the previous day’s Memorandum as unlawful.
The complaint operates on the premise that the Memorandum
effected a funding freeze of global sweep—that it “purports to
eradicate essentially all federal grant programs” and
“immediately suspend[s] the obligation or disbursement of all
federal financial assistance.” Compl. at 2 & ¶ 28 (J.A. 14, 22).
Plaintiffs challenge the Memorandum on several grounds,
including that it is arbitrary and capricious because it: “fails
even to acknowledge the catastrophic practical consequences
that an immediate, across-the-board freeze on federal grant
programs will produce,” fails “to provide a reasonable
explanation why those consequences could possibly be
warranted,” and fails “to account for the substantial reliance
interests” it “wipes away in an effort to freeze all financial
assistance.” Id. ¶¶ 46–47. Plaintiffs also challenge the
Memorandum on the ground that OMB lacks statutory

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authority “to unilaterally terminate all federal financial
assistance programs across the entire government.” Id. ¶ 60.
Among other relief, Plaintiffs sought a temporary
restraining order and preliminary injunction barring OMB from
implementing or enforcing the Memorandum. On the same day
Plaintiffs filed their complaint, the district court, after an
emergency hearing, granted administrative relief barring
implementation of the Memorandum for several days—until
February 3, 2025, the scheduled date of the hearing to consider
Plaintiffs’ request for a temporary restraining order.
D.
The next day, January 29, 2025, OMB rescinded the
Memorandum. Off. of Mgmt. & Budget, Memorandum for
Heads of Executive Departments and Agencies (Jan. 29, 2025),
https://perma.cc/R39C-YZ7X. The rescission of the
Memorandum took the same form as the Memorandum itself—
a memorandum directed to the heads of all executive
departments and agencies. The rescission memorandum states
in its entirety: “OMB Memorandum M-25-13 is rescinded. If
you have questions about implementing the President’s
Executive Orders, please contact your agency General
Counsel.” Id.
Shortly after the rescission issued, White House Press
Secretary Karoline Leavitt posted the following message on
social media:
This is NOT a rescission of the federal funding freeze.
It is simply a rescission of the OMB memo.

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Why? To end any confusion created by the court’s
injunction.
The President’s EO’s on federal funding remain in full
force and effect, and will be rigorously implemented.
Karoline Leavitt (@PressSec), X (Jan. 29, 2025, at 6:40 PM),
https://perma.cc/6ZJG-9ZD8. Later that day, the government
filed a notice of the rescission in the district court and moved
to dismiss the complaint on the ground that the rescission of
the Memorandum rendered Plaintiffs’ challenge to it moot.
E.
On February 3, 2025, the district court granted Plaintiffs a
temporary restraining order and rejected the government’s
submission that the rescission had mooted the case. As to the
latter, the court explained that a defendant’s voluntary
cessation of challenged conduct—here, the rescission of the
challenged Memorandum—can moot a case only if the
defendant can show that its challenged conduct cannot
reasonably be expected to recur. The court determined that the
government could not make that showing. In reaching that
conclusion, the court relied on the Press Secretary’s statement
that the rescission had left the “federal funding freeze” in place
and on evidence that funding recipients continued to be denied
funding.
As to the merits of Plaintiffs’ challenge, the court held that
they were likely to succeed on their arbitrary-and-capricious
claim. And in concluding that Plaintiffs had demonstrated
irreparable injury and that the public interest favored granting
temporary relief, the court explained that a global “funding
freeze threatens the lifeline that keeps countless organizations
operational,” causing the denial of critical services, and that

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there had been a “nationwide panic in the wake of the funding
freeze.” Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget,
763 F. Supp. 3d 36, 57 (D.D.C. 2025).
On February 25, 2025, the court converted the temporary
restraining order into a preliminary injunction. Nat’l Council
of Nonprofits v. Off. of Mgmt. & Budget, 775 F. Supp. 3d 100
(D.D.C. 2025). The court reiterated the same grounds for
rejecting the government’s mootness argument. Id. at 117–19.
On the merits, the court for the first time considered the
Guidance that OMB had issued the day after the Memorandum.
Id. at 122–23. The court noted the Guidance’s statement that
the Memorandum’s funding pause, contrary to Plaintiffs’
understanding, was a tailored rather than global freeze. The
court concluded that the Guidance’s language about the scope
of the freeze could not be given effect, however, because it
appeared to conflict with the Memorandum’s terms and
because the timing of the Guidance’s issuance—only hours
before the funding freeze took effect—left agencies with too
little time to implement it. Id. at 123. The court then held that
Plaintiffs are likely to succeed on both their arbitrary-and-
capricious claim and their claim that OMB lacked statutory
authority to establish an across-the-board funding freeze
through the Memorandum. Id. at 124–27.
The resulting preliminary injunction bars OMB from
“implementing, giving effect to, or reinstating under a different
name the unilateral, non-individualized directives” in the
Memorandum with respect to disbursement of funds under all
open awards. Id. at 130–31. The injunction also orders OMB
to notify all agencies addressed by the Memorandum that they
should not “take any steps to implement, give effect to, or
reinstate under a different name the unilateral, non-
individualized directives in [the Memorandum] with respect to
the disbursement of Federal Funds under all open awards” and

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should “continue releasing any disbursements on open awards
that were paused due to [the Memorandum].” Id.
F.
The government now appeals the preliminary injunction.
Given that the preliminary injunction is premised on the
understanding that the Memorandum sought to effect an
across-the-board funding freeze, which the government
continues to deny, one might wonder why the government even
cares to appeal the preliminary injunction. That is, if the
preliminary injunction only bars the government from
enforcing an ostensibly global freeze that the government
believes was never intended in the first place, why is the
government even constrained by the preliminary injunction in
a way that matters to it?
The government says it cares because of the preliminary
injunction’s framing. See OMB Br. 39–40. Whereas Plaintiffs
sought a preliminary injunction barring OMB’s
implementation and enforcement of only the Memorandum
itself, see Compl. at 18 (J.A. 30), the injunction entered by the
district court ranges further, encompassing “implementing,
giving effect to, or reinstating under a different name the
unilateral, non-individualized directives in [the
Memorandum],” 775 F. Supp. 3d at 130. That language,
according to the government, could be read to restrict OMB
from making funding decisions on an agency-wide or program-
wide—i.e., “non-individualized”—basis as opposed to a grant-
by-grant basis, and the uncertainty over the preliminary
injunction’s scope led the government to appeal and seek the
injunction’s vacatur. Plaintiffs do not suggest that the
government lacks standing to appeal, and we think the
government has something sufficiently concrete at stake to

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substantiate its standing to seek vacatur of the preliminary
injunction.
II.
To obtain a preliminary injunction, a party must show,
among other things, a likelihood of success on the merits of its
claims. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). For purposes of that inquiry, “the likelihood that
the court has jurisdiction over a claim and the likelihood that
the claim is meritorious both bear on the claim’s ultimate
prospects.” Mullin v. Doe, 146 S. Ct. 2121, 2137 (2026). “So
in evaluating the likelihood-of-success question for the purpose
of ruling on a request for interim relief, courts may consider
both the likelihood that they have jurisdiction and the
likelihood that the claim will succeed on the merits. If they
conclude that a claim fails on either ground, they must deny
interim relief.” Id.
Here, we need address only the likelihood that there is no
longer jurisdiction over Plaintiffs’ challenge to the
Memorandum because it has been rescinded. We thus have no
occasion to review the district court’s considered assessment,
under exigent circumstances, of “the likelihood that [Plaintiffs’
challenge would] succeed on the merits,” assuming there is
jurisdiction to resolve it. Id. We do not review, then, the
district court’s conclusion that Plaintiffs’ reading of the
Memorandum’s terms is the more natural one, nor do we
question the district court’s assessment that the funding freeze
was “ill-conceived from the beginning” and “irrational,
imprudent, and precipitated a nationwide crisis.” 775 F. Supp.
3d at 125. Rather, we conclude as a matter of jurisdiction that
the Memorandum’s rescission likely renders Plaintiffs’
challenge to it moot, thus requiring vacatur of the preliminary
injunction.

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A.
“Derived from Article III, the mootness doctrine ensures
that federal courts decide only ‘actual, ongoing
controversies.’” Pub. Citizen, Inc. v. FERC, 92 F.4th 1124,
1127 (D.C. Cir. 2024) (quoting Honig v. Doe, 484 U.S. 305,
317 (1988)). Because the controversy must remain “ongoing,”
events may transpire during litigation that render a once-live
case moot, such that a decision can no longer affect the parties.
See id.; Samma v. Dep’t of Def., 136 F.4th 1108, 1113 (D.C.
Cir. 2025).
One such situation is when the government rescinds a
challenged policy. “As we have repeatedly recognized, ‘the
government’s abandonment of a challenged regulation is just
the sort of development that can moot an issue.’” Samma, 136
F.4th at 1113 (quoting Friends of Animals v. Bernhardt, 961
F.3d 1197, 1203 (D.C. Cir. 2020)). Plaintiffs in this case
exclusively seek forward-looking declaratory and injunctive
relief concerning the Memorandum. Compl. at 18–19 (J.A.
30–31). In that circumstance, if the challenged policy is
rescinded and hence “no longer exists, we can do nothing to
affect [a plaintiff’s] rights relative to it, thus making [the] case
classically moot for lack of a live controversy.” Akiachak
Native Cmty. v. U.S. Dep’t of Interior, 827 F.3d 100, 106 (D.C.
Cir. 2016); see Samma, 136 F.4th at 1113–14; Larsen v. U.S.
Navy, 525 F.3d 1, 4–5 (D.C. Cir. 2008).
That is what happened here. When OMB rescinded the
Memorandum after Plaintiffs brought their suit, the instrument
that Plaintiffs had challenged as unlawfully directing a global
funding freeze was no longer legally operative. That is “just
the sort of development that can moot” a case. Samma, 136
F.4th at 1113 (citation omitted). Whether the rescission of the

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Memorandum in fact did moot Plaintiffs’ challenge turns on
the application of the voluntary cessation doctrine, as Plaintiffs
recognize, Pls.’ Br. 42, and to which we turn next.
B.
While the government’s rescission of a challenged policy
can result in the case becoming moot, the government—like
any defendant—does not “automatically moot a case by the
simple expedient of suspending its challenged conduct after it
is sued.” FBI v. Fikre, 601 U.S. 234, 241 (2024) (internal
quotation marks omitted). Instead, the voluntary cessation
doctrine generally imposes an added burden on a defendant
who argues that a pending case has been mooted by its ceasing
the challenged conduct: “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.”
Id. (internal quotation marks omitted). If a party were able to
moot a challenge without needing to make such a showing, it
could simply “suspend its challenged conduct after being sued,
win dismissal, and later pick up where it left off.” Id. So, “[t]o
show that a case is truly moot, a defendant must prove no
reasonable expectation remains that it will return to its old
ways.” Id. (internal quotation marks and brackets omitted); see
Samma, 136 F.4th at 1113–14; Pub. Citizen, 92 F.4th at 1128–
30.
1.
The government has likely made the requisite showing
here. Plaintiffs challenge the Memorandum on the ground that
it unlawfully imposed an across-the-board funding freeze.
While the government disputes whether the Memorandum in
fact involved a global freeze or instead a more tailored one, we
assume Plaintiffs will prevail on the merits of their arguments

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in assessing whether jurisdiction exists. See Sandpiper
Residents Ass’n v. U.S. Dep’t of Hous. & Urb. Dev., 106 F.4th
1134, 1141 (D.C. Cir. 2024). For purposes of the voluntary
cessation doctrine, then, the question is whether the blanket
freeze we assume was directed by the now-rescinded
Memorandum can “reasonably be expected to recur.” Fikre,
601 U.S. at 241.
We believe not. The key to understanding why is to
consider the Guidance about the Memorandum released the day
after the Memorandum itself. According to Plaintiffs, the
Guidance was issued “in apparent response to the widespread
chaos the [Memorandum] had produced.” Pls.’ Br. 25. In
reaction to that chaos, the Guidance emphasized at its outset
that the funding freeze should not be considered a global one:
“Any program not implicated by the President’s Executive
Orders is not subject to the pause.” Guidance at 1, J.A. 62.
Then, in its first question-and-answer, which specifically
addressed whether the pause was “a freeze on all Federal
financial assistance,” the Guidance reconfirmed: “No, the
pause does not apply across-the-board. It is expressly limited
to the programs, projects, and activities implicated by the
President’s Executive Orders.” Id.
Without deciding whether the Guidance in fact conveys
the most natural interpretation of the Memorandum’s terms, the
Guidance at least establishes the following: as of the day after
the Memorandum’s issuance, the government wanted to ensure
that the Memorandum not be understood to have directed an
across-the-board freeze. The government, that is, broadcast to
agencies and the public that it had no desire to establish a global
freeze on federal funding, even if the previous day’s
Memorandum might have been read (or perhaps misread) to
indicate otherwise.

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For purposes of the voluntary cessation doctrine, the
timing of the Guidance is pivotal. There is no reason to
suppose the government had any awareness of Plaintiffs’
lawsuit when it issued the Guidance. True, the record does not
establish the exact timing of the release of the Guidance versus
the filing of the lawsuit, both of which occurred on January 28,
2025. But it appears they happened roughly
contemporaneously: Plaintiffs evidently filed their suit shortly
after noon, and they had received a copy of the Guidance by
around 1:30 p.m. 775 F. Supp. 3d at 110, 123. Whatever may
have been the precise sequence, Plaintiffs do not—and could
not—suggest that the Guidance was released with awareness of
their challenge, much less that the Guidance could have been
prepared in response to the challenge. (Nor could the Guidance
have been prepared in response to a separate challenge to the
Memorandum filed later that day in Rhode Island. See Compl.
¶ 3, New York v. Trump, No. 25-cv-00039 (D.R.I. Jan. 30,
2025).)
That means the government should be understood to have
made clear its disinterest in an across-the-board freeze before
knowing about—and thus for reasons having nothing to do
with—Plaintiffs’ challenge to such a freeze. In that context,
there is little reason to suppose that, when the government
rescinded the Memorandum the next day, it did so to elicit a
dismissal of the case so as to preserve its freedom to later
(re)institute an across-the-board freeze without any judicial bar
in the way. Having already announced its disinterest in a
blanket funding freeze before it knew about Plaintiffs’
challenge to the Memorandum, the government cannot be seen
to have rescinded the Memorandum as a means of preserving
its ability to (re)institute just such a freeze.
The voluntary cessation doctrine’s object, as noted, is to
prevent a defendant intent on continuing its challenged conduct

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from being able to “suspend [the] conduct after being sued, win
dismissal, and later pick up where it left off.” Fikre, 601 U.S.
at 241; see Samma, 136 F.4th at 1113–14; Pub. Citizen, 92 F.4th
at 1128. Here, far from suspending its challenged conduct after
being sued so that it could pick up again after the suit’s
dismissal, the government had already demonstrated its
disinterest in the challenged conduct before it knew about any
lawsuit in the first place.
In these circumstances, it is unclear whether the voluntary
cessation doctrine comes into play. Our decisions establish that
the doctrine “does not apply automatically whenever the
prospect of mootness is raised by a party’s voluntary conduct.”
Pub. Citizen, 92 F.4th at 1128. The doctrine will not apply if
there is no indication of any manipulation of the court’s
jurisdiction to preserve the ability to revert to the challenged
conduct. See id.; Samma, 136 F.4th at 1114. This case might
fall within that exception. But at any rate, assuming the
doctrine applies, the government has likely met its burden to
show there is no reasonable expectation it would impose a
global funding freeze if the case were dismissed: it had already
made clear it had not wanted to impose such a freeze by the
time the case started.
That conclusion is fortified by the distinctive context of
the Memorandum and its next-day clarification in the
Guidance. Those events took place as a presidential
administration freshly in office proclaimed a blitz of new
policy priorities. To the extent the Memorandum was
understood to direct an across-the-board funding freeze rather
than one tethered more closely to the new initiatives, the
government quickly announced it had no such intent. In accord
with that clarification, the government has maintained
throughout this litigation that it had not intended to institute a
global funding freeze, and the government does not attempt to

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defend such a freeze in this appeal. Those circumstances
reinforce the lack of expectation that the government would
want to (re)institute a blanket funding freeze akin to the alleged
one if the case were dismissed.
2.
Plaintiffs’ efforts to resist that conclusion fall short.
Plaintiffs submit that the Guidance should not be given effect
and that the rescission amounted to little more than a gesture.
Those arguments fail to offset the takeaway from the Guidance
that an across-the-board funding freeze cannot reasonably be
expected to recur (to the extent it occurred to begin with) and
that the challenge to the now-rescinded Memorandum thus is
likely moot.
a.
Plaintiffs contend that the Guidance’s next-day
interpretation of the now-rescinded Memorandum is
unpersuasive and should not control. But whatever may have
been the more natural reading of the Memorandum’s terms at
first glance, the second-glance understanding quickly set by the
Guidance the following day meant the government had already
clarified—before knowing about Plaintiffs’ challenge—that it
did not wish to direct an across-the-board freeze, no matter how
the previous day’s Memorandum may have been read. That is
what matters for purposes of the voluntary cessation doctrine.
In all events, Plaintiffs err in contending that the
Guidance’s interpretation of the Memorandum cannot govern.
In support of that proposition, Plaintiffs rely on the idea that an
agency’s after-the-fact interpretive guidance does not control
the proper interpretation of a binding regulation issued under
statutory authority. See Thomas Jefferson Univ. v. Shalala, 512

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U.S. 504, 512 (1994); Peabody Midwest Mining, LLC v. Mine
Safety & Health Admin., 70 F.4th 602, 607 (D.C. Cir. 2023).
That may be true, but it is because the post hoc guidance rests
on a different legal footing than the law it seeks to interpret, in
much the same way that legislators’ subsequent comments
about the meaning of enacted legislation do not control the
interpretation of a statute. See Kisor v. Wilkie, 588 U.S. 558,
628 (2019) (Gorsuch, J., concurring). The Memorandum, by
contrast, is an OMB policy directive addressed to executive
branch agencies; and there is no reason an ensuing OMB
Guidance (which was also publicly posted by the White House)
cannot clarify, amend, or supersede the prior OMB
communication. Indeed, the Guidance refers to the
Memorandum itself as a “guidance.” Guidance at 1, J.A. 62.
Plaintiffs also point out that the Guidance was issued just
hours before the Memorandum was to take effect, leaving
insufficient time for affected agencies to incorporate the
Guidance into their initial implementation of the
Memorandum. Of course, the Memorandum itself had been
issued only the day before it took effect. At any rate, even if it
is highly likely—if not inevitable—that the rapid sequence of
events would have caused a great deal of confusion for
agencies trying to comply with OMB’s two directives in short
order, that still does not indicate that the government might try
in the future to institute an across-the-board funding freeze of
the kind it had already disavowed before knowing about
Plaintiffs’ challenge. Plaintiffs have not explained why any
interim confusion between the time of the Guidance and the
following day’s rescission should bear on whether the
rescission moots their challenge.

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b.
Plaintiffs also question the import of the rescission. There
could be no question about the operative force of the rescission
on the Memorandum’s directions to agencies: upon the
Memorandum’s rescission, its now-rescinded directives no
longer controlled. That is the object of a rescission. And here,
the rescission was issued in the same fashion as the
Memorandum it rescinded: as an OMB memorandum
addressed to all heads of executive departments and agencies.
Whatever the Memorandum had directed those recipients to do,
the rescission annulled that directive. Plaintiffs do not suggest,
for instance, that OMB’s issuance of the rescission
memorandum to agencies was a diversionary ruse and that
there was in fact an additional, under-the-table directive to
agencies to disregard the rescission sent to them and instead
continue abiding by the Memorandum. The rescission, then,
directly implicates the understanding that “the government’s
abandonment of a challenged regulation is just the sort of
development that can moot an issue.” Samma, 136 F.4th at
1113 (internal quotation marks omitted).
In resisting that conclusion, Plaintiffs rely heavily on the
White House Press Secretary’s social-media message about the
rescission. In that message, she said: “This is NOT a rescission
of the federal funding freeze. It is simply a rescission of the
OMB memo.” Leavitt (@PressSec), supra. She added:
“Why? To end any confusion created by the court’s injunction.
The President’s EO’s on federal funding remain in full force
and effect, and will be rigorously implemented.” Id.
That message, especially as understood in the context of
the previous day’s Guidance, is essentially in keeping with the
net effect of the rescission. But to the extent there remained

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any confusion between the two, the rescission presumably
would govern, both for purposes of our review and for those of
agencies seeking to implement it. The rescission, like the
Memorandum, is an executive branch directive from OMB to
the heads of executive departments and agencies. The Press
Secretary’s social-media message is an outward-facing sum-up
intended for the consumption of the media and general public.
It would not be a surprise if a shorthand message of that variety
were couched in a manner aimed at instilling an impression
thought to be politically advantageous, even if not scrupulously
even-handed and fulsome in its account.
Particularly when viewed through that lens, the Press
Secretary’s message is not incompatible with the upshot of the
rescission. Recall what the previous day’s Guidance had
sought to clarify: that there was not an across-the-board freeze
but instead one targeted at executive orders that had been
issued in the new administration’s first week. Some of those
executive orders contained their own directives to review or
halt funding streams in their domains. So, when the Press
Secretary said there had not been a “rescission of the federal
funding freeze,” it was true that, under those executive orders,
a pause on federal funding instituted by the new administration
persisted. Consistent with that understanding, the Press
Secretary’s statement reiterated that the “Presidents EO’s on
federal funding remain in full force and effect.” To be sure, a
global funding freeze was not in effect after the rescission; but
the Guidance had already conveyed that there had been no
intent to issue such a freeze anyway. Ultimately, the Press
Secretary’s statement resembles the framing of the rescission
itself in that they both say that the Memorandum is rescinded
but that implementation of the executive orders remains in
place. Compare Leavitt (@PressSec), supra (Press Secretary
statement) with Off. of Mgmt. & Budget, Memorandum for

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Heads of Executive Departments and Agencies, supra
(rescission memorandum).
What about the Press Secretary’s indication that the
rescission sought “[t]o end any confusion created by the court’s
injunction”? Is that an acknowledgment of an effort to
manipulate the court’s jurisdiction in a way that would raise
concerns under the voluntary cessation doctrine? We do not
think so. The Guidance communicating the government’s
disinterest in an across-the-board funding freeze had already
been issued the previous day, before the executive branch
became aware of any lawsuit. For the government, continuing
to litigate the clarified-then-rescinded Memorandum might
confuse matters by suggesting it in fact wanted a blanket freeze
of the kind that it had disavowed but that Plaintiffs challenge
in this case. (The government says it has nonetheless continued
to litigate this case due to the framing of the preliminary
injunction later entered. See supra p. 11.)
In their effort to cast doubt on the import of the rescission,
Plaintiffs rely not only on the Press Secretary’s characterization
of it, but also on evidence that funding freezes subsisted to
some degree post-rescission. But there would be no reason to
infer solely from the fact of some lingering funding freezes that
the now-rescinded Memorandum had not in fact been
rescinded. The persistence of funding freezes after the
rescission could stem in some measure from agencies’
continued implementation of executive orders that themselves
called for funding pauses—as contemplated by the Guidance,
the Press Secretary’s statement, and the rescission itself. More
fundamentally, there could be a lag period for the rescission to
take full effect in some instances for agencies that had turned
off funding streams in attempting to comply with their reading
of the now-rescinded Memorandum—especially because
agencies were in the position of trying to keep pace with rapidly

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evolving guidance within a short period, aptly described by the
district court as a time of “nationwide chaos and paralysis.”
775 F. Supp. 3d at 114.
Even assuming an agency might somehow affirmatively
decide to persist with a funding freeze in reliance on the
Memorandum notwithstanding its rescission, that action might
support a suit against such an agency for failing to act in
accordance with the rescission. But that would be a different
action than the one we consider here. This case involves an
action against OMB and its officials—not against an agency
implementing an OMB directive—and this action is aimed
solely at the now-rescinded Memorandum. As to the action we
have before us, there is likely no point in enjoining OMB to
cease implementing a Memorandum it has already rescinded.
In that respect, this case differs from New York v. Trump,
171 F.4th 1 (1st Cir. 2026), in which the First Circuit upheld a
preliminary injunction against the same Memorandum after its
rescission. There, the district court, in rejecting the
government’s mootness argument, explained that the suit in
that case not only challenged the Memorandum and OMB’s
implementation of it, but also challenged “other agency
actions,” including agencies’ implementation of funding
freezes under preexisting executive orders. 769 F. Supp. 3d
119, 132 n.4, 134 (D.R.I. 2025). The district court concluded
that the Memorandum’s rescission thus did not moot the
challenge. Id. at 134. In sustaining the preliminary injunction
in relevant part, the First Circuit noted that challenge
encompassed agency actions to freeze funds that predated the
Memorandum, such that the Memorandum’s rescission did not
have the effect of mooting the full extent of the relief sought by
the plaintiffs. 171 F.4th at 16. The First Circuit also rested on
a district court factual finding that the Memorandum’s
substantive effect carried on even though the Memorandum

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had been rescinded. Id. In those circumstances, the First
Circuit did not expressly consider the implications of the
Guidance in connection with mootness.
The challenge in this case, unlike the one in New York v.
Trump, seeks no relief independent of the Memorandum.
Because the Memorandum has now been rescinded, no
effective relief can be granted as to it. And because the
Guidance had already made clear the government’s disinterest
in an across-the-board funding freeze before OMB knew about
Plaintiffs’ challenge, we conclude that the voluntary cessation
doctrine likely does not stand in the way of finding the
challenge moot. Plaintiffs thus have not demonstrated a
likelihood of success for purposes of obtaining a preliminary
injunction.
* * * * *
For the foregoing reasons, we vacate the preliminary
injunction.
So ordered.

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