In Mid-America Milling Company v. United States Department of Transportation, Case No. 3:23-cv-00072 (“Mid-America”), the Plaintiffs challenged the United States Department of Transportation’s (“DOT”) use of a rebuttable presumption when determining if an individual is socially disadvantaged for purposes of the DOT’s Disadvantaged Business Enterprise program (“DBE Program”). The Plaintiffs in Mid-America argued that the DOT’s use of a rebuttable presumption that businesses owned by women and certain races and ethnicities are socially disadvantaged is unconstitutional disparate treatment on the basis of race and sex.
On May 28, 2025, the DOT (through the Department of Justice (“DOJ”)) and the Plaintiffs submitted a proposed joint consent order that seeks to resolve the plaintiffs’ claims of unconstitutional racial discrimination through settlement. The proposed consent order would have barred the DOT from approving any federal, state, or local DOT-funded projects with DBE contract goals where any DBE in that jurisdiction was determined to be eligible based on a race- or sex-based rebuttable presumption. A coalition of DBEs and organizations that represent them intervened in the case to defend the DBE Program and opposed the proposed consent order.
On October 3, 2025, the DOT issued an Interim Final Rule (“IFR”) making immediate changes to the DBE Program, eliminating the rebuttable presumption of social disadvantage from the DBE regulation, requiring all Unified Certification Program entities to review and recertify existing DBEs without the presumption, and prohibiting the use of DBE goals until that recertification process is complete.
The Court’s March 19, 2026, Opinion & Order
On March 19, 2026, United States District Judge Gregory F. Van Tatenhove issued an Opinion & Order dismissing Mid-America as moot. The Court granted the Intervenor DBEs’ Motion to Dismiss, dissolved the September 23, 2024, preliminary injunction, and denied as moot the Plaintiffs’ and Government Defendants’ Joint Motion for Entry of a Consent Order.
The core of the Court’s analysis was straightforward: because the DOT’s October 2025 IFR eliminated the race- and sex-based presumptions challenged by the Plaintiffs, the regulatory change provided the Plaintiffs with the full relief they sought in their complaint. As such, the Court concluded there was no longer a live case or controversy for it to adjudicate under Article III of the Constitution.
Voluntary Cessation Exception Rejected
The Plaintiffs and the Government Defendants both argued that the case should not be dismissed as moot, contending that the “voluntary cessation” exception to the mootness doctrine should preserve the Court’s jurisdiction. The Plaintiffs argued that because the underlying statutory framework for the DBE Program remains intact, in that Congress has not repealed or amended the authorizing statutes, a future administration could reimpose the race- and sex-based presumptions. The Government Defendants, for their part, urged the Court to enter the consent order as a safeguard against the possibility that the IFR could be challenged, stayed, or vacated in separate litigation.
The Court rejected both arguments, relying heavily on the Sixth Circuit’s recent opinion in Gun Owners of America, Inc. v. U.S. Dep’t of Justice, 157 F.4th 834 (6th Cir. 2025). In Gun Owners, the Sixth Circuit held that a case was mooted when the ATF issued a superseding advisory, prompted by a post-inauguration executive order rather than the litigation itself, that provided the plaintiffs with their requested relief. The Sixth Circuit concluded that the mere possibility a future administration might reverse course amounted to “speculative contingencies” insufficient to prevent mootness.
Applying Gun Owners, the Court in Mid-America observed that the DOT’s regulatory overhaul was motivated by broader policymaking goals originating from the White House, not by the litigation itself. And notably, the Court found that an interim final rule is an even more concrete process than the agency circular at issue in Gun Owners, making the regulatory change here “at a minimum, less susceptible to rapid and transformative modification in future years.”
The Court was emphatic in its rejection of speculative arguments about future administrations, stating that claiming that a future administration could change course “is sheer speculation.” The Court also observed that even if a future administration were to revisit the DBE regulatory framework, it would be unlikely to return to the exact same scheme challenged in Mid-America.
What the Order Does
The Court’s Order has the following practical effects:
Dismissal of the Case. The entire action is dismissed for lack of subject-matter jurisdiction. Importantly, the Court expressly stated that it “does not purport to speak any further as to the merits of Plaintiffs’ claim.” There is no judicial declaration that the race- and sex-based presumptions were unconstitutional. The question of constitutionality was never resolved on the merits.
Dissolution of the Preliminary Injunction. The September 23, 2024, preliminary injunction is dissolved because the entire matter has become moot. The Court declined to vacate the preliminary injunction—a distinction that preserves the injunction’s historical record—but dissolved it as no longer necessary.
Denial of the Consent Order. The Joint Motion for Entry of a Consent Order is denied as moot. The Plaintiffs and the Government Defendants do not get the binding, nationwide judicial declaration that the DBE Program’s race- and sex-based presumptions violate the Equal Protection Clause—a result that would have bound future administrations. Instead, the current legal landscape is shaped entirely by the DOT’s IFR, which remains an administrative action subject to the ordinary processes of regulatory change.
Implications for Alaska Native Corporations
As we noted in our prior update on the IFR, Alaska Native Corporations’ ability to participate in the DBE Program is generally not directly affected by the elimination of the rebuttable presumption, because Alaska Native Corporations do not rely on the rebuttable presumption to establish social disadvantage for DBE certification purposes. Under 43 U.S.C. § 1626(e), each Alaska Native Corporation subsidiary that is an active participant in the SBA’s 8(a) program is eligible to be certified as a DBE.
The dismissal of Mid-America, however, is significant for several reasons:
No Binding Judicial Precedent on Constitutionality. Because the case was dismissed on mootness grounds, there is no judicial holding that the DBE Program’s race- and sex-based presumptions are unconstitutional. This is a meaningful distinction. The Plaintiffs and the Government Defendants sought a consent order that would have produced a binding judicial declaration of unconstitutionality – a court order that future administrations could not simply reverse through rulemaking. That declaration was not obtained. The legal status of the presumptions, if a future administration sought to reinstate them, would need to be litigated anew.
The IFR Is the Operative Legal Framework. The DOT’s October 2025 IFR remains the governing regulatory framework for the DBE Program. That IFR eliminated the rebuttable presumption, requires recertification of all existing DBEs, and prohibits the use of DBE goals until recertification is complete. Because the Mid-America litigation did not result in a final judgment on the merits, the IFR stands on its own and could be challenged, modified, or reversed through administrative processes by this or a future administration.
Continued Uncertainty in the DBE Space. The dismissal of Mid-America does not resolve the broader policy questions surrounding the DBE Program. The IFR itself may be challenged in separate litigation. The Intervenor DBEs may well pursue separate challenges to the IFR. Congress has not repealed or amended the statutory authorizations underlying the DBE Program. And the recertification process required by the IFR is still ongoing in many states, creating practical uncertainty for DBE-certified businesses and state transportation agencies administering the program.
This article summarizes aspects of the law and opinions that are solely those of the authors. This article does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.
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