In Intuit, Inc. v. FTC, the Fifth Circuit held that the FTC’s internal adjudication “of a deceptive advertising claim . . . violated the separation of powers.” The decision is a major win for the conservative legal movement, which has long fought to curb the administrative state. Time will tell whether it is a loss for the […]
The Fifth Circuit’s recent decision in Sayegh v. Bondi, 25-20073 provides a useful illustration of how administrative finality operates under the Administrative Procedure Act (APA), particularly in regulatory schemes that involve multi-stage agency decision-making. Although the case arises in the immigration context, the court’s analysis centers on familiar administrative law issues: when agency action is […]
The Supreme Court’s decision in Trump v. CASA left the legal world grappling with a number of questions about the scope of relief available to plaintiff—some new, some old. One old question at the heart of the debate between Justices Barrett and Jackson: to what extent is a plaintiff who alleges her rights have been violated […]
There’s a saying among Fifth Circuit clerks, practitioners, and court-watchers: “Hated, adored, never ignored.” But when it comes to administrative law, that last part hasn’t really been true lately. In recent months, the flow of administrative and regulatory opinions from the Fifth has slowed to a crawl. The reason is pretty simple: politics. During the […]
Another EPA rule met its demise in the Fifth Circuit this week. The case is Texas Corn Producers v. EPA—which presented a very technical dispute over how the government calculates vehicle fuel efficiency, but the substance of the rule did not play that big a role in the decision. This decision focused almost exclusively on […]
In NLRB v. AllService Plumbing & Maintenance, Inc., a divided Fifth Circuit panel held that the NLRB could not revive a 2013 order that the Board had previously abandoned. The NLRB’s underlying complaint alleged, inter alia, that the defendant had laid off several employees due to anti-union animus. The NLRB adopted an order that largely […]
In National Religious Broadcasters v. FCC, the Fifth Circuit struck down the FCC’s 2024 Rule requiring television and radio broadcasters to annually report employee demographic information using a form known as Form 395-B. The case, brought by a coalition of broadcasters and industry associations, centered on whether the FCC had the statutory authority to mandate […]
In Texas Public Policy Foundation v. United States Department of State, the Fifth Circuit held that the State Department must disclose the names and email addresses of rank-and-file employees pursuant to a FOIA request. The opinion, written by Judge Wilson, forces the Trump Administration to choose whether to take its pitch to the Supreme Court. […]
In AT&T v. FCC, the Fifth Circuit vacated a $57 million forfeiture order issued by the Federal Communications Commission, ruling that the agency’s internal enforcement process violated AT&T’s constitutional rights under Article III and the Seventh Amendment. The opinion, authored by Judge Stuart Kyle Duncan, represents one of the most significant applications yet of the […]
The Trump Administration has ushered in a new regulatory landscape in the Fifth Circuit. It is relatively peaceful, as most new litigants have brought their claims in forums perceived to be more liberal than that court (which has long been dominated by Republican-appointed judges). As Damonta Morgan and I continue to bring you the latest […]
The Corporate Transparency Act (CTA) has ignited a firestorm of legal challenges in the Fifth Circuit. In the last five weeks alone, three different district judges have issued three separate opinions resulting in two nationwide injunctions—one of which is already before the Supreme Court. In Texas Top Cop Shop, Inc. v. Garland, the plaintiffs contested […]
The en banc Fifth Circuit released some zingers ahead of the holiday season. In Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., the court of appeals issued a one-paragraph per curiam opinion—accompanied by 166 pages of concurrences and dissents—blessing a $14.25 million civil penalty against ExxonMobil. The showdown largely focused on standing. Appellate geeks may […]
Happy Holidays! I am excited to announce that my colleague Mikaela (Schulz) Milligan and I are joining forces with Shane Pennington to bring you a (somewhat) regular column about admin and regulatory cases in the Fifth Circuit. While I have written for Notice and Comment as a Guest Columnist a few times, this post is […]
As readers of Notice & Comment know, the Fifth Circuit has an active administrative law docket and often serves as a proving ground for cases on their way to the Supreme Court. This has been a regular column for the past few years, and I’m excited to take-up regular coverage and commentary on the court […]
UPDATE: My original post, which appears unchanged below, confidently declares that Judge Smith’s invocation of the slogan “stare decisis is for suckers” in his CFPB v. All Am. Check Cashing dissent shows that Judge Smith listens to Strict Scrutiny. Since then, I received this helpful note from Professor Jonathan H. Adler, explaining why he doubts […]