Walmart Inc. vs. U.S. Department of Justice et al.

Court: U.S. Court of Appeals for the Fifth Circuit

Date: May 17, 2021

Issue on Appeal: Whether federal agencies can impose binding regulatory obligations through informal guidance without following the Administrative Procedure Act (APA), and whether businesses may seek pre-enforcement judicial review of such actions.

RLC’s Position: The RLC argues that federal agencies cannot evade APA requirements by imposing de facto regulations through informal guidance or enforcement threats. Such practices create significant regulatory uncertainty, expose businesses to liability without clear legal standards, and disrupt normal operations. The brief emphasizes that regulated entities must have access to pre-enforcement judicial review to challenge unlawful agency actions and ensure that liability is based only on properly adopted rules.

Other Amici: U.S. Chamber of Commerce; National Retail Federation; Independent Women’s Law Center.

Counsel: Megan L. Brown, Stephen J. Obermeier, and Jeremy J. Broggi, Wiley Rein LLP; Tara S. Morrissey and Stephanie A. Maloney, U.S. Chamber Litigation Center; Deborah R. White, Retail Litigation Center; Stephanie A. Martz, National Retail Federation; Jennifer C. Braceras, Independent Women’s Law Center.