Walmart v. Department of Justice

No. 21-40157
Fifth Circuit Court of Appeals

WASHINGTON, D.C. — Independent Women’s Law Center (IWLC) filed an amicus brief on Monday in support of Walmart, arguing that federal agencies should not be allowed to evade the procedural requirements of the Administrative Procedure Act.

Congress has required that, in order for any regulation to be binding on a company or individual, it must go through public notice and comment. This crucial step gives affected parties fair warning of potential changes in the law and an opportunity to be heard on those changes. Rather than follow these procedures, however, agencies increasingly issue de facto regulations in the guise of interpretive guidance—even though, under the APA, such agency pronouncements do not carry the force and effect of law. Worse, agencies often seek to enforce such interpretive guidance by threat of enforcement action—even when the guidance is contrary to statute—and then (as in the Walmart litigation) attempt to evade judicial review by claiming there has been no reviewable agency action.  

IWLC filed a brief in support of Walmart’s argument that a “threat to sue” or “intent to sue” is “agency action” subject to legal review.

IWLC argued that, when federal agencies unlawfully evade the APA’s procedural requirements by relying on guidance documents—and particularly when it threatens enforcement actions based on such guidance—they create substantial regulatory uncertainty.  

Jennifer C. Braceras, director of Independent Women’s Law Center, issued the following statement: “In addition to being unlawful, these agency tactics are costly to our national economy. They create substantial regulatory uncertainty as businesses must decide whether to comply with agency directives that, under the APA, are not binding but which agencies may nevertheless use to extract compliance.”

Erin Hawley, senior legal fellow at Independent Women’s Law Center, said: “Basing civil liability on interpretive guidance created without a transparent regulatory process, and for which judicial review is difficult to obtain, flouts the requirements of the APA.”

Read the brief HERE.


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