U.S. Supreme Court Archives

Thomas Keathley v. Buddy Ayers Construction, Incorporated, No. 25-6 – Decided June 11, 2026

Today, the Supreme Court unanimously held that courts must consider the totality of the circumstances before barring a debtor from asserting a claim that the debtor failed to disclose in bankruptcy proceedings.

“To determine whether an omission was inadvertent or mistaken for purposes of judicial estoppel, courts should look to the totality of the circumstances surrounding the omission.”

Justice Jackson, writing for the Court

Background:

The Bankruptcy Code requires debtors to disclose their assets—including claims against third parties—so that the bankruptcy court, the trustee, and creditors can evaluate the estate and any proposed repayment plan.

When Thomas Keathley’s bankruptcy case was ongoing, he was hit by a truck driven by an employee of Buddy Ayers Construction. Keathley told his bankruptcy attorney about the crash and that he planned to sue, but his attorney did not disclose Keathley’s claim to the bankruptcy court. When Keathley eventually sued, the district court granted summary judgment in favor of Buddy Ayers Construction on judicial estoppel grounds, reasoning that Keathley had taken an inconsistent position in the bankruptcy proceeding by implicitly representing that he did not have a claim against Buddy Ayers Construction. The district court acknowledged an exception to the doctrine of judicial estoppel where the debtor’s omission was the result of “inadvertence or mistake” but, applying Fifth Circuit precedent, held that an omission qualifies as inadvertent or a mistake only if the debtor did not know the facts underlying the claim or had no potential motive to conceal it—conditions that were not satisfied. Under this approach, the district court declined to consider Keathley’s evidence that his omission was not the result of a bad-faith attempt to hide assets from the bankruptcy court and his creditors.

The Fifth Circuit affirmed, based on the same precedent. One judge concurred, doubting that the Fifth Circuit’s rule was consistent with judicial estoppel’s goals and noting that other circuits took a more holistic, totality-of-the-circumstances approach.

Issue:

Whether the doctrine of judicial estoppel can be invoked to bar a plaintiff who fails to disclose a civil claim in bankruptcy filings from pursuing that claim.

Court’s Holding:

Yes. The doctrine of judicial estoppel requires courts to evaluate the “totality of the circumstances” surrounding the debtor’s omission.

What It Means:

Under today’s decision, courts must undertake a fact-intensive assessment of a debtor’s failure to disclose a claim in bankruptcy proceedings before barring the debtor from asserting that claim.
The Court did not indicate which factors should be considered or how they should be weighed. That said, the Government, participating as amicus curiae, identified several potential considerations, including the debtor’s sophistication, when and how the omission was corrected, whether the debtor informed his attorney or the trustee of the claim, and whether the debtor disclosed other lawsuits.
The Court’s decision is notable for what it did not decide. The Court assumed without deciding that judicial estoppel applies in the bankruptcy context and that a debtor’s “inadvertence or mistake” in failing to disclose a claim can provide an exception. The Court also declined to consider whether a debtor’s bad faith in failing to disclose a claim is a prerequisite to application of that exception. And the Court did not resolve a circuit split regarding a debtor’s continuing obligation to disclose claims arising after a bankruptcy petition is first filed.
Justice Thomas, joined by Justice Gorsuch, wrote a concurrence in which they questioned whether judicial estoppel is a valid judicial doctrine in any context, noting that it lacks historical support and improperly expands upon the doctrine of equitable estoppel. These Justices urged the Court to consider the validity of judicial estoppel in a future case.
Justice Sotomayor also wrote a concurrence questioning judicial estoppel’s application in the bankruptcy context, where the doctrine’s application often provides a windfall for a potentially tortious third-party defendant at the expense of creditors who might otherwise recover if the claim ultimately succeeds.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice group leaders:

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Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com	Jeffrey B. Wall +1 202.955.8533 jwall@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Business Restructuring

Scott J. Greenberg
+1 212.351.5298
sgreenberg@gibsondunn.com

This alert was prepared by Samuel Eckman and Blake Hirst.

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FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd, No. 24-345 – Decided June 11, 2026

Today, the Supreme Court held 6-3 that Section 47(b) of the Investment Company Act of 1940 does not create a private right of action for rescission of contracts that violate the Act.

“[N]othing in the text or structure of the ICA indicates that Congress authorized private parties to enforce virtually every provision in the statute. For a cause of action to exist, we would have to create it.”

Justice Barrett, writing for the Court

Background:

The Investment Company Act of 1940 (ICA) comprehensively regulates investment companies and affords the Securities and Exchange Commission primary responsibility for enforcing its provisions. Any contract that violates the ICA or any rule or regulation thereunder “is unenforceable by either party” under Section 47(b)(1) “unless a court finds that under the circumstances enforcement would produce a more equitable result” and “would not be inconsistent with the purposes of this subchapter.” 15 U.S.C. § 80a-46(b)(1). To that end, “a court may not deny rescission at the instance of any party unless such court finds that under the circumstances the denial of rescission would produce a more equitable result than its grant and would not be inconsistent with the purposes of this subchapter.” Id. § 80a-46(b)(2).

Several investment companies sued several investment funds under Section 47(b), seeking rescission of contracts that allegedly violated the ICA. Relying on an earlier decision by the Second Circuit, the district court held that Section 47(b) created an implied private right of action. It then granted summary judgment to the investors and ordered the contracts rescinded. The Second Circuit affirmed.

Issue:

Whether Section 47(b) of the ICA creates a private right of action for rescission of contracts that violate the ICA.

Court’s Holding:

No. Section 47(b) does not create a freestanding private cause of action for parties to seek rescission of contracts that violate the ICA.

What It Means:

Today’s decision reiterates that the Court has “rejected the practice of fashioning rights of action” absent clear congressional intent in a statute’s text and structure. Op. 3. And “nothing in the text or structure of the ICA indicates that Congress authorized private parties to enforce virtually every provision in the statute.” Op. 8. Instead, Section 47(b) acts as a “mandate” to courts about their authority under the ICA in cases before it under other valid causes of action—like claims for breach of contract or for breach of fiduciary duties.
The Court’s decision reaffirms the SEC’s central role in enforcing—or exempting investment companies from—the ICA and reduces the risk that private suits will undermine the SEC’s enforcement priorities.

The Court’s decision also reveals sharp disagreement among the Justices about the role of legislative history in statutory interpretation. The majority rejects the use of legislative history to “divin[e] how Congress would have wanted courts to resolve” issues, remarking that such a mode of interpretation “depends on the fictional premise that hundreds of legislators (not to mention the President) shared a unified private view of how the statute should apply.” Op. 11. On the other hand, Justice Jackson, joined by Justice Sotomayor, called use of “legislative history as a tool of statutory interpretation . . . a time-honored tradition.” Justice Jackson Dissent 16. Justice Kagan, writing for herself, “fall[s] someplace in between,” explaining that “[r]eliance on legislative history may be appropriate” when statutory text is “stubbornly ambiguous.” Kagan Dissent 1.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice group leaders:

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com	Jeffrey B. Wall +1 202.955.8533 jwall@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Securities Litigation

Monica K. Loseman
+1 303.298.5784
mloseman@gibsondunn.com

Brian M. Lutz
+1 415.393.8379
blutz@gibsondunn.com

Jason J. Mendro
+1 202.887.3726
jmendro@gibsondunn.com

Craig Varnen
+1 213.229.7922
cvarnen@gibsondunn.com

This alert was prepared by associates Elizabeth Kiernan, Matt Aidan Getz, and Noah Delwiche.

Sripetch v. Securities and Exchange Commission, No. 25-466 – Decided June 4, 2026

Today, the Supreme Court unanimously held that the SEC may obtain an order directing a defendant to disgorge ill-gotten gains to investors without proving that investors suffered pecuniary harm.

“Whatever else traditional equitable principles demand, they do not require a showing of pecuniary loss before a court may issue an award of unjust profits.”

Justice Gorsuch, writing for the Court

Background:

The Securities and Exchange Commission (SEC) brought a civil enforcement action against Petitioner Ongkaruck Sripetch for securities-law violations arising from schemes involving penny-stock companies. The SEC alleged that Sripetch and his associates obtained shares, promoted the companies without disclosing their roles or planned stock sales, engaged in manipulative-matched trading, and obtained millions of dollars in proceeds from the schemes. Sripetch ultimately entered into a consent judgment on liability. The SEC then sought approximately $4 million in disgorgement to the investors involved in Sripetch’s schemes. The district court awarded the disgorgement over Sripetch’s objection.

The Ninth Circuit affirmed the disgorgement order. The court held that the SEC is not required to show pecuniary loss to investors as a precondition to a court ordering disgorgement. In doing so, the Ninth Circuit joined the First Circuit and disagreed with the Second Circuit, which had required such a showing.

Issue:

Whether the SEC must show that an investor suffered a pecuniary loss before it may secure a disgorgement remedy under either 15 U.S.C. §78u(d)(5) or 15 U.S.C. §78u(d)(7).

Court’s Holding:

No. The SEC need not prove investor pecuniary harm to obtain disgorgement of a defendant’s net profits or unjust enrichment in a civil enforcement action, because equitable remedies have long permitted stripping wrongdoers of ill-gotten gains without a showing of pecuniary loss to victims.

What It Means:

The decision preserves one of the SEC’s most powerful monetary remedies. The SEC may continue to seek disgorgement tied to a defendant’s net profits even where identifying individual investors or quantifying their losses would be difficult.
The Court’s ruling limits defendants’ ability to resist disgorgement by arguing that the SEC must prove the same type of economic loss required in private securities-fraud suits. The focus remains on whether the defendant received unjust enrichment as a result of the securities-law violation and whether the disgorgement award is properly limited to that enrichment.
Because the Court only assumed without deciding that disgorgement under Section 78u(d)(7) is an equitable remedy, defendants can still challenge SEC disgorgement requests seeking to provide the funds to the U.S. Treasury, instead of to investors, on the grounds that they constitute a penalty that implicates Seventh Amendment jury-trial concerns—a concern highlighted in Justice Thomas’s concurrence.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice group leaders:

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com	Jeffrey B. Wall +1 202.955.8533 jwall@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Securities Enforcement

Mark K. Schonfeld
+1 212.351.2433
mschonfeld@gibsondunn.com

This alert was prepared by Salah Hawkins, Benjamin Rice, and Rebecca Roman.

Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., No. 24-889 –
Decided June 4, 2026

The Supreme Court unanimously held today that a pharmaceutical company failed to plausibly allege that a generic manufacturer had actively induced patent infringement, rejecting the argument that active inducement may be shown based on neutral statements that may be understood as instructions to infringe.

“[T]he key question is whether a defendant actively encouraged infringement through its statements, not merely how others may understand those statements.”

Justice Jackson, writing for the Court

Background:

Patents often protect some but not all of a drug’s uses rather than the entire drug. Under the Hatch-Waxman Act, generic drug manufacturers may obtain approval to sell such drugs only for their unpatented uses (in what is often called “skinny” labeling). The generic manufacturers are not liable if third parties use their generic drugs off-label for patented indications unless the manufacturers “actively induc[e]” the third parties to do so. 35 U.S.C. § 271(b).

Amarin Pharma holds patents that protect some uses of icosapent ethyl, which Amarin sells under the brand name Vascepa. Generic manufacturer Hikma Pharmaceuticals obtained approval to sell icosapent ethyl for unpatented uses under a “skinny” label. Amarin sued, claiming that Hikma had actively induced third parties to infringe Amarin’s patents by prescribing Hikma’s generic version of icosapent ethyl for patented uses. The district court granted Hikma’s motion to dismiss, ruling that Amarin had not plausibly alleged that Hikma actively encouraged third parties to infringe Amarin’s patents. But the Federal Circuit reversed, emphasizing that Hikma’s skinny label did not expressly disclaim using the drug for patented uses; that Hikma publicly described its drug as “generic Vascepa”; and that Hikma’s marketing materials touted the total sales of Vascepa, the vast majority of which derive from patented uses.

The Supreme Court granted certiorari to resolve whether a plaintiff can plausibly plead active inducement of patent infringement where a drugmaker “calls its product a ‘generic version’” and “cites public information about the branded drug” but does not expressly “encourag[e], or even mentio[n], the patented use.”

Issue:

Whether a company plausibly alleges that a generic drug manufacturer actively induced patent infringement without expressly mentioning or encouraging the patented use.

Court’s Holding:

Generally no: Although active inducement may be implicit as well as explicit, a party claiming active inducement must plausibly allege that the defendant took clear, affirmative steps to encourage infringement, not merely that the defendant’s statements plausibly could be understood that way.

What It Means:

The Court’s opinion emphasizes that active inducement of patent infringement, at the motion-to-dismiss stage, requires allegations that the defendant took affirmative steps to encourage others to infringe the patent.
Although the Court cautioned that active inducement need not be express, “the necessary inducement must be ‘clear’ to the relevant audience and ‘affirmative.’” Knowledge that others will employ a product for infringing uses, omissions or inaction, and suggestive statements that are merely consistent with inducing infringement do not suffice.
In directing dismissal of the complaint, the Court underscored that the “well-established federal pleading standards” from Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), were enough to resolve the case. The Court’s opinion provides a helpful datapoint for litigation on Rule 12(b)(6) motions to dismiss, illustrating how Twombly and Iqbal should be applied and reinforcing that allegations must nudge the complaint across the line from possible to plausible.
The Court also reiterated recent decisions, including Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023), in which it has cautioned that ordinary business activities should not lightly give rise to legal liability. Here, for instance, the Court emphasized that patent law should avoid “trenching on regular commerce” and afford generic manufacturers “breathing room” when they comply with skinny-labeling laws and undertake “‘ordinary acts incident to product distribution.’”
The Court’s opinion illustrates that, both in active-inducement patent-infringement cases and more broadly, motion-to-dismiss analysis is highly fact-specific and requires close attention to all the allegations and the broader context.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice group leaders:

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com	Jeffrey B. Wall +1 202.955.8533 jwall@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Intellectual Property

Kate Dominguez +1 212.351.2338 kdominguez@gibsondunn.com	Josh Krevitt +1 212.351.2490 jkrevitt@gibsondunn.com	Jane M. Love, Ph.D. +1 212.351.3922 jlove@gibsondunn.com	Robert W. Trenchard +1 212.351.3942 rtrenchard@gibsondunn.com
Charlotte Jacobsen +1 212.351.3961 cjacobsen@gibsondunn.com

This alert was prepared by Matt Aidan Getz, Aaron Gyde, and Noah Delwiche.

Jules v. Andre Balazs Properties, No. 25-83 – Decided May 14, 2026

Today, the Supreme Court held unanimously that federal courts retain jurisdiction to confirm or vacate arbitration awards in federal-court actions stayed for arbitration under the Federal Arbitration Act.

“A federal court with jurisdiction to stay claims pending arbitration under § 3 of the FAA has the same jurisdiction to resolve motions to confirm or vacate a resulting arbitral award.”

Justice Sotomayor, writing for the Court

Background:

Petitioner Adrian Jules sued his former employer and several related parties in federal court, alleging federal employment claims. The U.S. District Court for the Southern District of New York concluded that those claims were subject to an arbitration agreement between the parties, and stayed the case pending arbitration under Section 3 of the Federal Arbitration Act. After arbitration concluded, Respondents returned to federal court and sought to confirm the arbitration award, while petitioner sought to vacate it. Petitioner also raised a jurisdictional challenge, asserting that because the application to confirm the award presented no federal question, and because complete diversity did not exist between the parties, the district court lacked subject matter jurisdiction to confirm or vacate the award.

The district court held that it retained jurisdiction to resolve those post-arbitration motions and confirmed the award. The U.S. Court of Appeals for the Second Circuit affirmed, holding that a federal court that stays a case pending arbitration retains jurisdiction to decide subsequent motions to confirm or vacate the award. The Second Circuit recognized that the Supreme Court had previously held in Badgerow v. Walters, 596 U.S. 1 (2022), that federal courts lack jurisdiction to confirm arbitration awards in suits initially brought in state court absent independent grounds for federal jurisdiction. The Second Circuit reasoned that this holding did not extend to Petitioner’s case because it was initially filed in federal court rather than state court.

The Supreme Court granted certiorari, recognizing that the courts of appeals were divided on this jurisdictional issue. Most circuits had agreed with the Second Circuit, adopting the so-called “jurisdictional anchor” approach and reasoning that where parties initially file suit in federal court, the court retains jurisdiction to confirm or vacate an arbitration award after staying a case for arbitration. By contrast, the Fourth Circuit had held that federal courts must identify an independent basis for jurisdiction over post-arbitration applications, even where the case was previously filed in federal court.

Issue:

Whether a federal court that initially exercised jurisdiction, compelled arbitration, and stayed a case pending arbitration retains jurisdiction to resolve post-arbitration motions to confirm or vacate an arbitration award, even if no independent basis for federal jurisdiction exists.

Court’s Holding:

Yes. When a federal court has properly exercised jurisdiction over an action, compelled arbitration, and stays the case pending arbitration, it retains authority to resolve post-arbitration motions to confirm or vacate the resulting award. These post-arbitration proceedings are part of the same case and therefore do not require an independent basis for federal jurisdiction.

What It Means:

The decision confirms that federal courts can oversee arbitration-related disputes from beginning to end when a case starts in federal court. Parties may return to the same federal court to confirm or challenge arbitration awards, promoting efficiency and avoiding duplicative litigation in state court.
Parties who anticipate arbitration, but wish to preserve the option of a federal forum for post-arbitration proceedings, should consider filing suit in federal court or removing suits filed against them to federal court where jurisdiction exists, as doing so creates a durable jurisdictional anchor through confirmation or vacatur.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice group leaders:

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Jeffrey B. Wall +1 202.955.8533 jwall@gibsondunn.com	Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com
Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Labor and Employment

Jason C. Schwartz
+1 202.955.8242
jschwartz@gibsondunn.com

Katherine V.A. Smith
+1 213.229.7107
ksmith@gibsondunn.com

This alert was prepared by Cate McCaffrey and Elan Wilson.

Spearheaded by Miguel Estrada, the U.S. Supreme Court Round-Up keeps clients apprised of the Court’s most recent actions. The Round-Up previews cases scheduled for argument, tracks the actions of the Office of the Solicitor General, and recaps recent opinions. The Round-Up provides a concise, substantive analysis of the Court’s actions. Its easy-to-use format allows the reader to identify what is on the Court’s docket at any given time, and to see what issues the Court will be taking up next. The Round-Up is the ideal resource for busy practitioners seeking an in-depth, timely, and objective report on the Court’s actions.

Gibson Dunn’s U.S. Supreme Court Round-Up provides summaries of cases decided during the October 2025 Term and highlights other key developments on the Court’s docket. For the October 2025 Term, the Court has granted 61 petitions and set one application for oral argument, in addition to two cases from last Term set for reargument, for a total of 58 arguments. To date, the Court has heard 49 arguments in 53 cases and has released 18 opinions in 20 cases.

View the Round-Up Here

Gibson Dunn has a longstanding, high-profile presence before the Supreme Court of the United States, appearing numerous times in the past decade in a variety of cases. Twelve current Gibson Dunn lawyers have argued before the Supreme Court, and during the Court’s ten most recent Terms, the firm has argued a total of 28 cases, including closely watched cases with far-reaching significance in the areas of intellectual property, securities, separation of powers, and federalism. Moreover, although the grant rate for petitions for certiorari is below 1%, Gibson Dunn’s petitions have captured the Court’s attention: Gibson Dunn has persuaded the Court to grant over 40 petitions for certiorari since 2006.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the U.S. Supreme Court. Please feel free to contact the following authors in the firm’s Washington, D.C. office, or any member of the Appellate and Constitutional Law Practice Group.

Miguel A. Estrada (+1 202.955.8257, mestrada@gibsondunn.com)

Jessica L. Wagner (+1 202.955.8652, jwagner@gibsondunn.com)

Lavi Ben Dor (+1 202.777.9331, lbendor@gibsondunn.com)

Christian Talley (+1 202.777.9537, ctalley@gibsondunn.com)

The GEO Group, Inc. v. Menocal, No. 24-758 – Decided February 25, 2026

Today, the Supreme Court unanimously held that federal contractors may not take immediate appeals from pretrial orders rejecting a defense to liability based on compliance with the government’s directives.

“Because Yearsley provides a defense to liability, not an immunity from suit, an order denying its protection can be effectively reviewed after a final judgment. So appellate review of such an order, as of most pretrial rulings, must await completion of the district court’s proceedings.”

Justice Kagan, writing for the Court

Background:

In Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), the Supreme Court held that government contractors cannot be held liable for acts that they undertake pursuant to validly conferred governmental authority. Yearsley gave rise to what many have described as “derivative sovereign immunity.”

GEO Group operates a private detention facility in Aurora, Colorado under contract with U.S. Immigration and Customs Enforcement (ICE). A class of detainees who were detained at GEO’s Aurora facility sued GEO in federal court, alleging that GEO’s facility-sanitation policy and voluntary-work program violate federal and Colorado law. GEO moved for summary judgment, asserting derivative sovereign immunity based on GEO’s claim that ICE authorized its challenged policies. After the district court denied the motion on the theory that ICE neither directed nor required those policies, GEO took an immediate appeal.

The Tenth Circuit dismissed the appeal for lack of jurisdiction. Under 28 U.S.C. § 1291, courts of appeals have jurisdiction over appeals from “final” decisions, which terminate the litigation. Under the collateral-order doctrine, appellate courts can hear appeals from certain, non-case-terminating decisions that (1) conclusively determine the disputed question, (2) resolve an issue completely separate from the merits of the action, and (3) are effectively unreviewable on appeal from a final judgment. The Tenth Circuit held that orders denying derivative sovereign immunity under Yearsley are not immediately appealable because they are not completely separate from the merits. Both the Yearsley defense and the merits of the case turn on whether the government directed the contractor’s challenged actions, so GEO would have to wait until the conclusion of litigation in the district court to appeal.

GEO petitioned for certiorari, noting a circuit split regarding whether government contractors can immediately appeal from denials of derivative sovereign immunity.

Issue:

Is an order denying a government contractor’s “derivative sovereign immunity” defense under Yearsley immediately appealable under the collateral-order doctrine?

Court’s Holding:

No. The Yearsley defense is a defense to liability on the merits, not an immunity from suit. Because merits defenses can be effectively reviewed on appeal from a final judgment, the collateral-order doctrine does not permit an immediate appeal.

What It Means:

Today’s decision clarifies that derivative sovereign immunity under Yearsley is not, despite its label, a true immunity from suit, but a defense to liability on the merits. The Supreme Court explained that government authorization relieves contractors of liability because the Yearsley defense turns on the legality of the defendant’s conduct. Government authorization does not and cannot delegate the government’s immunity from suit to its agents; sovereign immunity belongs to the government alone.
Because Yearsley does not provide an immunity from suit, orders rejecting that defense turn on the legality of the defendant’s conduct and therefore are effectively reviewable on appeal from a final judgment, defeating an immediate appeal as of right under the collateral-order doctrine.
At the same time, the Court went out of its way to note that government contractors could use the appeal-certification process in 28 U.S.C. § 1292(b) to seek immediate appellate review of an otherwise unappealable order denying the Yearsley defense.
Concurring in the judgment, Justice Thomas reiterated his longstanding position that the Court should refuse to allow interlocutory appeals from any new category of pretrial orders absent express congressional authorization.
Justice Alito also wrote separately. He would have denied a right to an immediate appeal because the Yearsley defense does not vindicate sufficiently important constitutional or public-policy interests, not because the defense turns on the legality of the defendant’s conduct.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice group leaders:

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Government Contracts

Dhananjay S. Manthripragada
T: +1 213.229.7366
dmanthripragada@gibsondunn.com

Lindsay M. Paulin
+1 202.887.3701
lpaulin@gibsondunn.com

This alert was prepared by associates Patrick Fuster and Connor P. Mui.

The Hain Celestial Group, Inc. v. Palmquist, No. 24-724 – Decided February 24, 2026

Today, the Supreme Court unanimously held that a federal court’s final judgment must be vacated—and the case remanded to state court—when an appellate court later determines that the district court erred in dismissing a nondiverse defendant after the case was removed.

“This Court has never held that a district court can create jurisdiction through its own mistakes. A rule to the contrary would permit courts to enlarge their jurisdiction beyond the limits Congress imposed.”

Justice Sotomayor, writing for the Court

Background:

Cases brought in state court may be removed to federal court when the federal court would have had jurisdiction at the outset, including when the amount-in-controversy requirement is met and the parties are completely diverse. If a party believes a nondiverse party was named as a co-defendant only to defeat the right of removal, the party can remove the case and ask the district court to dismiss the nondiverse co-defendant as improperly joined.

Sarah and Grant Palmquist, Texas citizens, sued Hain Celestial and Whole Foods in Texas state court, asserting state-law product-liability and negligence claims. Because Whole Foods (like the Palmquists) is a Texas citizen, there was no complete diversity on the face of the complaint. But Hain, a citizen of Delaware and New York, removed to federal court, arguing that Whole Foods had been improperly joined. The district court agreed, dismissed Whole Foods on improper-joinder grounds, and denied the Palmquists’ motion to remand. The case proceeded against Hain alone, and the district court ultimately granted judgment in Hain’s favor.

On appeal from the final judgment, the Fifth Circuit held that Whole Foods was not improperly joined. The court of appeals concluded that complete diversity was lacking from the moment of filing, vacated the judgment in Hain’s favor, and ordered the case remanded to state court.

Issue:

When a removed diversity case includes a nondiverse defendant who, following removal, was erroneously dismissed as improperly joined, must the court of appeals vacate the resulting final judgment and order the case remanded to state court?

Court’s Holding:

Yes. When a properly joined nondiverse defendant is erroneously dismissed following removal, complete diversity is lacking from start to finish, and accordingly the district court never has jurisdiction over the case. A court of appeals that corrects the erroneous dismissal must vacate the resulting judgment and remand the case to state court; it may not salvage the judgment on the ground that the nondiverse defendant could be dropped on appeal.

What It Means:

The Court’s decision adopts a bright-line rule for removed diversity cases: if an erroneous dismissal of a nondiverse party is not cured before final judgment, the judgment must be vacated once the error is corrected on appeal. Because this rule is jurisdictional, it applies “regardless of how efficient it might be to leave the judgment in place” or the inefficiencies that would result from a remand and retrial.
The Court distinguished situations where a nondiverse defendant settles or is voluntarily dismissed in a final order before trial, thereby curing the jurisdictional defect and allowing the ultimate judgment to stand.
The Court also highlighted alternative pathways parties may take in lieu of waiting until appeal from final judgment to address whether a dismissal was erroneous—for instance, partial final judgment under Federal Rule 54(b) or certification for interlocutory appeal under 28 U.S.C. § 1292(b).
The Court separately rejected Hain’s argument that Whole Foods could be dismissed as a dispensable nondiverse party under Rule 21, emphasizing that plaintiffs are generally entitled to select the forum in which they sue and explaining that courts cannot use Rule 21 to override those choices absent plaintiffs’ consent.
Going forward, the Court’s opinion may push district courts to resolve any doubts in favor of remand at the outset and to approach improper-joinder arguments with skepticism. Defendants contemplating removal on improper‑joinder theories will have to assess the risk that, if a court of appeals later disagrees, a defense verdict after trial will be wiped out and the case restarted in state court. The opinion also likely will encourage interlocutory appeals of improper-joinder issues so the parties can avoid the potential waste of proceedings that later would have to be vacated.
Justice Thomas separately concurred, questioning the doctrine of “improper joinder” (as opposed to outright fraudulent joinder) and urging the Court to consider that doctrine in a future case.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice group leaders:

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

This alert was prepared by Matt Aidan Getz and Jeff Gurley.

Join members of our International Trade Advisory & Enforcement and Appellate and Constitutional Law Practice Groups for a recorded webcast analyzing the U.S. Supreme Court decision in Learning Resources, Inc., et al. v. Donald J. Trump, et al. Topics include:

The implications for the major questions doctrine, the non-delegation doctrine, presidential emergency powers, and statutory interpretation
What happens next at the Court of International Trade
The ruling’s impact on existing and future tariffs
What steps are required to trigger alternative tariff mechanisms and how quickly they can be deployed
The potential effects on other IEEPA-based authorities, including sanctions and outbound investment restrictions
The practical and strategic landscape going forward for U.S. trade policy

MCLE CREDIT INFORMATION:

This program has been approved for credit in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour may be applied toward the areas of professional practice requirement. This course is approved for transitional/non-transitional credit.

Attorneys seeking New York credit must obtain an Affirmation Form prior to watching the archived version of this webcast. Please contact CLE@gibsondunn.com to request the MCLE form.

Gibson, Dunn & Crutcher LLP certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 1.0 hour in the General category.

California attorneys may claim “self-study” credit for viewing the archived version of this webcast. No certificate of attendance is required for California “self-study” credit.

Adam M. Smith is a partner in Gibson Dunn’s Washington, D.C. office and Co-Chair of the firm’s International Trade Advisory & Enforcement and Sanctions & Export Enforcement practice groups. He advises clients on tariff evasion, trade-sanctions strategy, import/export controls and white-collar investigations in complex cross-border contexts. Clients benefit from Adam’s experience in the Obama Administration, where he was Senior Advisor to the Director of the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) and Director for Multilateral Affairs on the National Security Council.

Ron Kirk is Senior Of Counsel in Gibson Dunn’s Dallas and Washington, D.C. offices. He is Leader of the International Trade Advisory and Enforcement Practice Group and a member of the Sports Law, Public Policy, Crisis Management and Private Equity Practice Groups. Ambassador Kirk has had an extensive career in Public Service. Prior to joining Gibson Dunn in April 2013, Ambassador Kirk served as United States Trade Representative (USTR) and was a member of President Obama’s Cabinet, serving as the President’s principal trade advisor, negotiator and spokesperson on trade issues. He also served as Mayor of Dallas from 1995 – 2001, and as Texas Secretary of State in 1994 appointed by Gov. Ann W. Richards.

Christopher T. Timura is a partner in Gibson Dunn’s Washington, D.C. office and a member of the International Trade and White Collar Defense & Investigations Practice Groups. He advises clients on complex matters at the intersection of U.S. national security, foreign policy and international trade regulation — including export controls, economic sanctions, and import-related investigations — and regularly represents companies before agencies such as the OFAC, BIS and CBP. Chris currently serves on the Department of Commerce’s Regulations and Procedures Technical Advisory Committee.

Trenton Van Oss is a partner in Gibson Dunn’s Washington, D.C. office and a member of the firm’s Appellate and Constitutional Law Practice Group. He advises clients on complex appellate and constitutional matters, including challenges involving federal statutes, administrative action, and separation‑of‑powers issues. Trenton regularly represents clients in high‑stakes litigation with significant regulatory and policy implications.

Samantha Sewall is of counsel in Gibson Dunn’s Washington, D.C. office and a member of the firm’s International Trade Advisory and Enforcement and Sanctions & Export Enforcement Practice Groups. She advises clients on U.S. economic sanctions, export controls, CFIUS, and anti‑boycott laws, and regularly handles compliance assessments, internal investigations, voluntary disclosures, and regulatory engagements with OFAC, BIS, and CFIUS. Samantha has experience across sectors including financial services, technology, aerospace/defense, energy, life sciences, and transportation.

Learning Resources, Inc. v. Trump, No. 24-1287
Trump v. V.O.S. Selections, No. 25-250 – Decided February 20, 2026

Today, the Supreme Court held 6-3 that the International Emergency Economic Powers Act does not grant the President the power to impose tariffs.

“Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA—’regulate’ and ‘importation’—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.”

Chief Justice Roberts, writing for the Court

Background:

The International Emergency Economic Powers Act (IEEPA) grants the President the power, upon declaring a national emergency, to “regulate . . . importation or exportation of . . . any property in which any foreign country or a national thereof has any interest.” 50 U.S.C. § 1702(a)(1)(B). From February to April 2025, President Trump invoked IEEPA and issued five executive orders imposing tariffs of up to 125% based on declared emergencies of fentanyl trafficking and trade imbalances. In subsequent months, the President amended and altered those tariffs.

Some plaintiffs challenged the tariffs in the U.S. District Court for the District of Columbia, while others challenged the tariffs in the U.S. Court of International Trade. Both courts ruled against President Trump’s tariffs. The District Court granted plaintiffs’ motion for a preliminary injunction on the grounds that IEEPA does not grant the President the authority to impose any tariffs. Before the D.C. Circuit ruled on the appeal of the preliminary injunction, the Supreme Court granted certiorari before judgment. The Court of International Trade granted summary judgment to plaintiffs, holding that IEEPA does not authorize tariffs based on trade imbalances because they are governed by a different statute. On appeal, the en banc U.S. Court of Appeals for the Federal Circuit affirmed 7-4, holding that, while IEEPA may authorize some tariffs, it does not authorize tariffs as broad or large as the challenged tariffs.

Issue:

Are President Trump’s emergency tariffs authorized by IEEPA? If so, does IEEPA unconstitutionally delegate legislative authority to the President?

Court’s Holding:

No. IEEPA does not grant the President any authority to impose tariffs.

What It Means:

Today’s decision confirms that President Trump’s emergency tariffs are not authorized by IEEPA—and that no president can impose tariffs under IEEPA. The Court concluded that IEEPA’s language authorizing the President to “regulate . . . importation or exportation” during emergencies does not grant the President the power to impose tariffs or other taxes. The Court also noted that, when Congress has granted the power to impose tariffs in other statutes, it has done so expressly.
The Court held that the Court of International Trade has exclusive jurisdiction over challenges to the tariffs. Importers have already filed nearly 2,000 lawsuits seeking refunds in that court. As Justice Kavanaugh noted in his dissent, the majority did not address “whether, and if so, how the Government should go about returning the billions of dollars that it has collected from importers.”
The majority expressly refused to speculate about how other statutes might be used to impose tariffs similar to the ones that President Trump attempted to impose under IEEPA. But Justice Kavanaugh suggested in his dissent that “numerous other statutes,” including the Trade Expansion Act of 1962, the Trade Act of 1974, and the Tariff Act of 1930, “authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case.”
Taking that lead, President Trump has already announced today that he will impose a 10% tariff on goods from all trading partners (which is limited to 150 days absent congressional authorization) under Section 122 of the Trade Act of 1974 and will begin taking steps to impose additional tariffs under Section 301 of that statute. No president has ever invoked Section 122, which Congress passed in 1974 in response to limited and temporary tariffs that President Nixon had imposed to address a “balance of payments” crisis in 1971. We discussed these alternative trade statutes in our October client alert.
The Court divided on the application of the major-questions doctrine to the President’s actions and did not address the related argument that the Constitution did not allow Congress to delegate an unbridled power to impose tariffs. While Justices Gorsuch and Barrett joined the portion of the Chief Justice’s lead opinion holding that the President “must ‘point to a clear congressional authorization’ to justify his extraordinary assertion of the power to impose tariffs,” Justices Kagan, joined by Justices Sotomayor and Jackson, reached the same interpretation without applying the major-questions doctrine, which they have criticized in past cases. Justice Kavanaugh, joined by Justices Thomas and Alito, suggested that the doctrine does not apply at all in the foreign-affairs context. Because the Justices fractured on the major-questions doctrine and did not resolve the nondelegation doctrine, the lack of consensus leaves unsettled how attempts to impose tariffs under other statutes may fare.
The Court today did not directly address whether IEEPA authorizes other kinds of actions, such as economic sanctions, prohibitions on outbound investment, and the recently finalized Department of Justice Data Security Program. Nor did the Court’s decision disturb other existing tariffs imposed by the Trump Administration during the past year that did not rely upon IEEPA, including tariffs imposed under Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974. Courts have rejected prior attempts to limit the scope of Section 232 and Section 301.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice group leaders:

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: International Trade Advisory and Enforcement

Ronald Kirk
+1 214.698.3295
rkirk@gibsondunn.com

Adam M. Smith
+1 202.887.3547
asmith@gibsondunn.com

This alert was prepared by associates and counsel Daniella Cass, Aaron Gyde, Patrick Fuster, Samantha Sewall, Dominic Solari, Dorkas Medina, Erika Holmberg, Layla Reynolds, Hui Fang, Nicole Martinez, Sarah Burns, and Zach Kosbie.

Berk v. Choy, No. 24-440 – Decided January 20, 2026

Today, the Supreme Court held that a Delaware statute—requiring that a medical malpractice complaint be accompanied by an expert affidavit—conflicts with the Federal Rules of Civil Procedure and therefore does not apply to suits in federal court.

“Rule 8 sets a ceiling on the information that plaintiffs can be required to provide about the merits of their claims. Delaware’s affidavit requirement is at odds with Rule 8 because it demands more.”

Justice Barrett, writing for the Court

Background:

The Supreme Court has long held that federal courts sitting in diversity must “apply state substantive law and federal procedural law.” Hanna v. Plumer, 380 U.S. 460, 465 (1965). Accordingly, when a state law conflicts with the Federal Rules of Civil Procedure, the federal rule generally controls.

Delaware—like several other States—generally requires that a complaint alleging medical malpractice be accompanied by an expert affidavit “stating that there are reasonable grounds” for the claim. 18 Del. C. § 6853. If the plaintiff fails to attach the required affidavit, the court clerk must “refuse to file the complaint.” Id. According to the States that have these expert-affidavit requirements, their main purpose is to deter meritless malpractice suits.

In this case, a Florida resident sued Delaware medical providers in Delaware federal court for alleged malpractice. But the plaintiff failed to submit the expert affidavit required by Delaware law. Accordingly, the district court dismissed the suit. The Third Circuit affirmed based on circuit precedent holding that expert-affidavit requirements like Delaware’s apply in federal court.

Issue:

Whether a state law requiring that a medical malpractice complaint be accompanied by an expert affidavit applies in federal court.

Court’s Holding:

No. Delaware’s expert-affidavit requirement conflicts with Rule 8 of the Federal Rules of Civil Procedure, which requires only a “short and plain statement of the claim” to proceed past the pleading stage. Because Delaware’s requirement demands more, it does not apply to medical malpractice actions filed in federal court.

What It Means:

Today’s decision—in which all nine Justices agreed to reverse the judgment below (and with eight Justices joining the majority opinion)—means that a different procedural framework governs certain medical malpractice actions brought in federal court versus those filed in state court. Plaintiffs in federal court need not comply with state laws requiring malpractice complaints to be accompanied by an expert affidavit. This difference could be relevant to certain strategic decisions in these types of suits—for example, what forum the plaintiff chooses and whether a defendant elects to remove a case to federal court.
The Court’s ruling does not affect what requirements govern medical malpractice actions filed in state court. Those suits will still be governed by state law, which may include expert-affidavit requirements like the Delaware requirement at issue in this case.
More broadly, today’s decision clarifies the Court’s general doctrine for determining when a state-law requirement applies in federal court. The proper inquiry is whether a state law purports to answer the same question as a federal procedural rule. And the Court clarified that a federal rule is valid under the Rules Enabling Act as long as it “really regulates procedure”—regardless of whether the state law it displaces is substantive.
The Court’s ruling thus has implications for actions outside of the medical malpractice context as well. Litigation may arise regarding whether state rules requiring any sort of third-party verification—by affidavit or otherwise—apply in federal court.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Litigation

Barry H. Berke +1 212.351.3860 bberke@gibsondunn.com	Reed Brodsky +1 212.351.5334 rbrodsky@gibsondunn.com	Trey Cox +1 214.698.3256 tcox@gibsondunn.com
Theane Evangelis +1 213.229.7726 tevangelis@gibsondunn.com	Helgi C. Walker +1 202.887.3599 hwalker@gibsondunn.com

Related Practice: FDA and Health Care

Gustav W. Eyler +1 202.955.8610 geyler@gibsondunn.com	Katlin McKelvie +1 202.955.8526 kmckelvie@gibsondunn.com	John D.W. Partridge +1 1 303.298.5931 jpartridge@gibsondunn.com
Jonathan M. Phillips +1 202.887.3546 jphillips@gibsondunn.com

This alert was prepared by associates Robert Batista and Jaime Barrios.

Gibson Dunn’s U.S. Supreme Court Round-Up provides an overview of cases being argued during the October 2025 Term and highlights other key developments on the Court’s docket. During the October 2024 Term, the Court heard 62 oral arguments and released 58 opinions. It dismissed three cases after argument as improvidently granted and set two cases for reargument during the October 2025 Term. To date, for the October 2025 Term, the Court has granted 40 petitions and set one application for oral argument, in addition to the cases set for reargument, for a total of 39 arguments.

View the Round-Up Here

Gibson Dunn has a longstanding, high-profile presence before the Supreme Court of the United States, appearing numerous times in the past decade in a variety of cases. Twelve current Gibson Dunn lawyers have argued before the Supreme Court, and during the Court’s ten most recent Terms, the firm has argued a total of 29 cases, including closely watched cases with far-reaching significance in the areas of intellectual property, securities, separation of powers, and federalism. Moreover, although the grant rate for petitions for certiorari is below 1%, Gibson Dunn’s petitions have captured the Court’s attention: Gibson Dunn has persuaded the Court to grant over 40 petitions for certiorari since 2006.

Miguel A. Estrada (+1 202.955.8257, mestrada@gibsondunn.com)

Jessica L. Wagner (+1 202.955.8652, jwagner@gibsondunn.com)

Lavi Ben Dor (+1 202.777.9331, lbendor@gibsondunn.com)

Christian Talley (+1 202.777.9537, ctalley@gibsondunn.com)

Gibson Dunn’s U.S. Supreme Court Round-Up provides summaries of cases decided during the October 2024 Term and highlights other key developments on the Court’s docket. During the October 2024 Term, the Court heard 62 oral arguments and released 58 opinions. It dismissed three cases after argument as improvidently granted and set one case for reargument next term. For the October 2025 Term, to date, the Court has granted 33 petitions for a total of 32 arguments.

View the Round-Up Here

Gibson Dunn has a longstanding, high-profile presence before the Supreme Court of the United States, appearing numerous times in the past decade in a variety of cases. Twelve current Gibson Dunn lawyers have argued before the Supreme Court, and during the Court’s ten most recent Terms, the firm has argued a total of 29 cases, including closely watched cases with far-reaching significance in the areas of intellectual property, securities, separation of powers, and federalism. Moreover, although the grant rate for petitions for certiorari is below 1%, Gibson Dunn’s petitions have captured the Court’s attention: Gibson Dunn has persuaded the Court to grant over 40 petitions for certiorari since 2006.

Miguel A. Estrada (+1 202.955.8257, mestrada@gibsondunn.com)

Jessica L. Wagner (+1 202.955.8652, jwagner@gibsondunn.com)

Lavi Ben Dor (+1 202.777.9331, lbendor@gibsondunn.com)

Christian Talley (+1 202.777.9537, ctalley@gibsondunn.com)

Special thanks to Hannah Bedard, Christine Buzzard, Gaby Candes, Giuliana Cipollone, Noah Delwiche, Matt Aidan Getz, Abby Holland, Maya Jeyendran, Elizabeth Kiernan, Hayley Lawrence, Sam Learner, Hunter Mason, Thomas Moore, Alec Mouser, Teddy Okechukwu, Jack Reed, Tate Rosenblatt, Psi Simon, Nick Scheuerman, Jesse Schupack, Anna Statz, Trenton Van Oss, Apratim Vidyarthi, and Abby Walters for their contributions to the Round-Up.

Trump v. CASA, Inc., No. 24A884 – Decided June 27, 2025

Today, the Supreme Court held 6-3 that district courts were wrong to grant “universal” preliminary injunctions against the government’s enforcement of a presidential executive order, and that any injunctive relief should be limited to the parties in those cases.

“‘[U]niversal injunctions’ . . . likely exceed the equitable authority that Congress has granted to federal courts.”

Justice Barrett, writing for the Court

Background:

On January 20, 2025, President Trump issued an Executive Order titled “Protecting the Meaning and Value of American Citizenship.” The order identifies two groups of persons whom the government should not recognize as United States citizens, even though they were born in the United States. The order directs federal officials not to issue documents recognizing U.S. citizenship for those individuals, to reject documents issued by state or local governments recognizing their citizenship, and to develop and issue public guidance on how to carry out the order within 30 days.

Shortly after the order’s issuance, three federal district courts granted universal preliminary injunctions, which forbade the government from taking steps to carry out the order’s directives against any person, anywhere in the country. The government defendants asked each district court (and later, the First, Fourth, and Ninth Circuits) for a partial stay of the preliminary injunctions. Their requests were denied. The government defendants then asked the Supreme Court for a partial stay. They argued that the Court should narrow the preliminary injunctions’ scope to protect only the individuals and identified members of the organizations who challenged the order, which would allow the order to go into effect against nonparties.

Issue:

May federal courts issue universal preliminary injunctions in favor of nonparties against the government?

Court’s Holding:

No. Universal injunctions likely exceed the equitable authority that Congress granted to federal courts under the Judiciary Act of 1789.

What It Means:

Today’s decision confirms that federal district courts likely do not have the power to grant universal preliminary injunctions, which temporarily forbid the government from enforcing a challenged federal action against anyone affected by the action, anywhere in the United States (even against nonparties to the lawsuit). The Court explained that while Congress endowed federal courts with jurisdiction over “all suits . . . in equity” in the Judiciary Act of 1789, courts’ power to fashion equitable remedies only encompasses those remedies “traditionally accorded by courts of equity” at the nation’s Founding.
The Court noted that it was not deciding whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action under the provision allowing courts to “hold unlawful and set aside agency action.” 5 U.S.C. § 706(2). The Court’s decision therefore does not affect plaintiffs’ ability to ask courts to “set aside” an agency action, even when some affected individuals are not parties to the APA suit.
The Court’s ruling signals to plaintiffs that they must consider alternative avenues to expedite their challenges to executive or legislative actions. These avenues may include Rule 23 class actions, lawsuits under civil rights legislation such as 42 U.S.C. § 1983, and actions to enjoin officials under Ex parte Young.
One consequence of today’s decision may be a reduction in the number of emergency applications to the United States Supreme Court. In recent years, a rise in the number of universal injunctions granted by district courts resulted in a sharp increase in emergency applications to the Supreme Court and a corresponding increase in decisions on the so-called “shadow docket”—the name that critics gave to the Court’s emergency docket. Today’s decision could result in a decrease in these applications going forward.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery
+1 202.955.8515
sdelery@gibsondunn.com

Eugene Scalia
+1 202.955.8673
Assistant Dawn J. Forrester: dforrester@gibsondunn.com

Helgi C. Walker
+1 202.887.3599
hwalker@gibsondunn.com

This alert was prepared by associates Stephen Hammer and Audrey Payne.

FCC v. Consumers’ Research, Nos. 24-354 and 24-422 – Decided June 27, 2025

Today, the Supreme Court held 6-3 that the statute authorizing the FCC to collect universal service contributions from telecommunications companies does not violate the nondelegation doctrine.

“The question in this case is whether the universal-service scheme . . . violates the Constitution’s nondelegation doctrine, either because Congress has given away its power to the FCC or because the FCC has given away its power to a private company. We hold that no impermissible transfer of authority has occurred.”

Justice Kagan, writing for the Court

Background:

The Telecommunications Act of 1996 directed the FCC to establish a Universal Service Fund to subsidize telecommunications services in rural and low-income areas, schools, and libraries. See 47 U.S.C. § 254. The Act instructs that “universal service” should be available at “just, reasonable, and affordable” rates. Id. § 254(i). Telecommunications carriers must make contributions to the fund that are “sufficient” to “advance universal service.” See id § 254(d)–(e). In defining universal service, the Commission must consider “the extent to which” telecommunications services “are essential to education, public health, or public safety”; are “subscribed to by a substantial majority of residential customers”; and “are consistent with the public interest, convenience, and necessity.” Id. § 254(c)(1). The FCC’s policies to “preserv[e] and advance[]” universal service must be based on six specific principles and any additional principles the FCC determines are “necessary and appropriate for the protection of the public interest, convenience, and necessity and are consistent with this chapter.” Id. § 254(b).

In 1997, the FCC directed a private not-for-profit corporation, the Universal Service Administrative Company (USAC), to help the FCC administer the fund. Among other things, USAC helps the FCC determine the size of carriers’ contributions by providing financial projections to the Commission.

A carrier and others challenged the FCC’s 2022 contribution rate in the U.S. Court of Appeals for the Fifth Circuit. They argued that the Universal Service Fund is unconstitutional because Congress delegated legislative power to the FCC and the Commission then redelegated power to USAC. A Fifth Circuit panel rejected the challenge. Sitting en banc, the full Fifth Circuit held 9-7 that the combination of Congress’s delegation to the FCC and the FCC’s delegation to USAC violates the Constitution’s vesting of legislative power in Congress.

Issues:

Did Congress violate the nondelegation doctrine when it authorized the FCC to determine the amounts that telecommunications carriers must contribute to the Universal Service Fund; did the FCC violate the nondelegation doctrine by using USAC projections to determine contribution rates; or did the combination of these delegations violate the nondelegation doctrine?

Court’s Holding:

Neither Congress nor the FCC violated the nondelegation doctrine. Section 254 provides an intelligible principle to constrain the FCC’s discretion in determining the amount of money to collect to support universal service and in defining universal service. The FCC did not improperly delegate to USAC because the FCC maintained the final say as to contribution rates. Those two lawful delegations do not become unconstitutional when combined.

What It Means:

The Court’s decision upholds the Universal Service Fund’s contribution mechanism, applying the traditional intelligible-principle test. The Court reiterated that exercises of Congress’s tax power are evaluated under “the usual nondelegation standard.” It also refused to draw a distinction for nondelegation purposes between statutes authorizing fees and statutes authorizing taxes.
The Court nonetheless emphasized that the intelligible-principle test is not toothless: Congress must make “clear both the general policy that the agency must pursue and the boundaries of its delegated authority”; those standards must “enable both the courts and the public to ascertain whether the agency has followed the law”; and the acceptable degree of discretion “varies according to the scope of the power congressionally conferred.” That leaves open the possibility that some statutes might still be successfully challenged on nondelegation grounds.
On the private nondelegation question, the Court held that the FCC did not unconstitutionally delegate authority to USAC because the FCC retained ultimate “decision-making power,” even if USAC gave “recommendations.” The Court was not willing to scrutinize whether the FCC was practically functioning merely as a rubber stamp.

The Court rejected the Fifth Circuit’s “combination theory” of unconstitutionality as novel and unsound. Because the public and private nondelegation doctrines “do not operate on the same axis,” measures implicating one do not “compound” measures implicating the other. The Court distinguished Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), where both measures at issue “limited the same thing—the President’s power to remove executive officers.”
Justice Gorsuch, joined by Justice Thomas and Justice Alito, dissented. He would have held that the funding mechanism is novel and violates the intelligible-principle test. In the end, however, he expressed “some optimism” because the Court did not address two provisions that allow the FCC to provide more “advanced” and “additional” services for schools, libraries, and healthcare providers—§ 254(c)(3) and (h)(2). Those provisions remain open to challenge.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery
+1 202.955.8515
sdelery@gibsondunn.com

Eugene Scalia
+1 202.955.8673
Assistant Dawn J. Forrester: dforrester@gibsondunn.com

Helgi C. Walker
+1 202.887.3599
hwalker@gibsondunn.com

This alert was prepared by associates Zachary Tyree and Connor P. Mui.

Kennedy v. Braidwood Management, Inc., No. 24-316 – Decided June 27, 2025

Today, the Supreme Court held 6-3 that the members of the U.S. Preventive Task Force are inferior officers whose appointment by the HHS Secretary is consistent with the Appointments Clause.

“Task Force members remain subject to the Secretary of HHS’s supervision and direction, and the Secretary remains subject to the President’s supervision and direction. So under Article II and this Court’s precedents, Task Force members are inferior officers, and Congress may vest the power to appoint them in the Secretary of HHS.’”

Justice Kavanaugh, writing for the Court

Background:

The U.S. Preventive Services Task Force is a 16-member volunteer body within the Public Health Service of the Department of Health and Human Services (“HHS”). Task Force members are experts in prevention, evidence-based medicine, and primary care who develop recommendations about preventive health services. They serve four-year terms, and there are no statutory restrictions on their removal. The current Task Force members were appointed by the Director of the Agency for Healthcare Research and Quality; their appointments were later ratified by the HHS Secretary in June 2023.

In codifying the Task Force, Congress directed that “[a]ll members of the Task Force . . . and any recommendations made by such members, shall be independent and, to the extent practicable, not subject to political pressure.” 42 U.S.C. § 299b-4(a)(6). Although the Task Force originally made only voluntary recommendations, in the Affordable Care Act of 2010, Congress determined that some of the Task Force’s recommendations would create binding obligations for health-insurance issuers and group health plans to cover certain preventive health services, unless rejected by the HHS Secretary. 42 U.S.C. § 300gg-13(a)-(b).

Several small businesses and individuals objected to the requirement—recommended by the Task Force—that health-insurance issuers and group plans cover certain HIV-prevention medications. Plaintiffs argued that the structure of the Task Force violated the Appointments Clause because Task Force members are “principal officers” and must therefore be nominated by the President and confirmed by the Senate. The HHS Secretary disagreed, arguing that Task Force members are “inferior officers” who may be appointed by the HHS Secretary.

The district court ruled for Plaintiffs, agreeing that the Task Force members’ appointments violated the Constitution because they were principal officers. The Fifth Circuit affirmed on the ground that “the Task Force cannot be ‘independent’ and free from ‘political pressure’ on the one hand, and at the same time be supervised by the HHS Secretary, a political appointee, on the other.”

Issue:

Whether appointment of the U.S. Preventive Services Task Force members by the HHS Secretary is consistent with the Appointments Clause.

Court’s Holding:

Yes. Task Force members are inferior officers: they are removable at will by the HHS Secretary and their recommendations can be rejected by the HHS Secretary before having any legal effect.

What It Means:

Today’s decision reiterates the Court’s commitment to enforcing the Appointments Clause and the chain of political accountability that is central to its design. See, e.g., Edmond v. United States, 520 U.S. 651 (1997); Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010); Lucia v. SEC, 585 U.S. 237 (2018).
In making the principal versus inferior officer determination, the Court emphasized that at-will removal by a principal officer is strong evidence of inferiority. At-will removal is a “powerful tool for control” and historical practice supports treating officers who can be removed at will by principal officers as inferior.
The Court also emphasized that the default presumption is that all officers are removable at will, and unless Congress clearly and explicitly states otherwise, the Court will not presume or imply restrictions on officers’ removal.
The Court clarified that the inability of a principal officer to compel a subordinate officer’s actions does not mean the subordinate officer is not inferior. The superior officer’s ability to overrule or reject a subordinate’s decision is sufficient supervisory authority.
The Court’s decision provides guidance to the potential avenues available to businesses seeking to challenge actions by federal government actors who may not have been validly appointed. Important considerations include assessing whether the actors’ decision may be overruled or rejected by senior government personnel and whether statutory language about independence is sufficient to overcome the presumption of at-will removal.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery +1 202.955.8515 sdelery@gibsondunn.com	Eugene Scalia +1 202.955.8673 Assistant Dawn J. Forrester: dforrester@gibsondunn.com	Helgi C. Walker +1 202.887.3599 hwalker@gibsondunn.com
Matt Gregory +1 202.887.3635 mgregory@gibsondunn.com

This alert was prepared by associates Salah Hawkins and Aly Cox.

Stanley v. City of Sanford, Fla., No. 23-997 – Decided June 20, 2025

Today, the Supreme Court held 7-2 that the Americans with Disabilities Act does not extend to retired employees.

“[T]o prevail under [Title I of the ADA], a plaintiff must plead and prove that she held or desired a job, and could perform its essential functions with or without reasonable accommodation, at the time of an employer’s alleged act of disability-based discrimination.”

Justice Gorsuch, writing for the Court

Background:

The Sanford Fire Department previously provided health insurance until age 65 for two categories of retirees: (1) those who retired with 25 years of service and (2) those who retired earlier because of a disability. In 2003, Sanford reduced the insurance period for those who retired due to disability to 24 months following retirement.

Karyn Stanley started working as a Sanford firefighter in 1999. She retired due to disability in 2018. Under Sanford’s revised policy, she was only entitled to 24 months of post-retirement health-insurance coverage. In 2020, Stanley sued Sanford, alleging that providing different benefits to those who retired with 25 years of service and those who retired earlier due to disability was impermissible discrimination under Title I of the Americans with Disabilities Act.

The district court dismissed the suit, holding that Stanley was not a “qualified individual” under the ADA because she was retired. She was not able to perform the essential functions of a job she held or desired at the time the City ceased providing her health insurance. The Eleventh Circuit agreed, but acknowledged a split among the circuits as to whether the ADA reached retirees like Stanley.

Issue:

Under the Americans with Disabilities Act, does a former employee—who was qualified to perform her job and who earned post-employment benefits while employed—lose her right to sue over discrimination with respect to those benefits solely because she no longer holds her job?

Court’s Holding:

Yes. Title I’s anti-discrimination provision does not protect individuals who do not hold nor desire a job with the defendant employer at the time of the allegedly discriminatory act.

What It Means:

Today’s decision clarifies that the ADA does not cover retired employees who neither hold nor desire a job at the time of the allegedly discriminatory conduct. But because retired employees might have other avenues by which to challenge changes to retirement-benefit plans, employers should continue to exercise caution in making such changes.
A plurality of the Justices (Gorsuch, joined by Alito, Sotomayor, and Kagan) wrote separately to opine that, unlike retired employees, employees who were both disabled and “qualified” when their employer adopted a discriminatory retirement-benefits policy might be able to state a claim under Title I. Justice Jackson articulated a similar view in her dissent.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Labor and Employment

Jason C. Schwartz
+1 202.955.8242
jschwartz@gibsondunn.com

Katherine V.A. Smith
+1 213.229.7107
ksmith@gibsondunn.com

This alert was prepared by Cate McCaffrey and Elizabeth Strassner.

McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, No. 23-1226 – Decided June 20, 2025

Today, the Supreme Court held that the Hobbs Act’s exclusive review provision for administrative orders does not prevent district courts from interpreting a statutory provision in civil enforcement proceedings.

“The Hobbs Act does not preclude district courts in enforcement proceedings from independently assessing whether an agency’s interpretation of the relevant statute is correct.”

Justice Kavanaugh, writing for the Court

Background:

The Hobbs Act provides that for certain pre-enforcement challenges to agency orders, “[t]he court of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of all final orders of the Federal Communications Commission” (FCC) and other agencies. 28 U.S.C. § 2342(1). Circuit courts were divided as to whether this channeled review provision required district courts to defer to the FCC’s interpretation in any subsequent civil enforcement actions after the period for court of appeals review had passed.

The Telephone Consumer Protection Act (TCPA) creates a private right of action against companies that “use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). McLaughlin Chiropractic Associates brought a class action lawsuit against McKesson Corporation alleging that the company sent unsolicited messages using online fax services to market its medical software products. While the lawsuit was ongoing, the FCC issued an order determining that the TCPA did not apply to an online fax service because it was not a “telephone facsimile machine.” The district court followed the interpretation set forth in the FCC’s order and entered summary judgment for McKesson, reasoning that the Hobbs Act precluded the court from considering whether the FCC’s interpretation of the TCPA was correct. The Ninth Circuit affirmed.

Issue:

Whether the Hobbs Act binds district courts presiding over civil enforcement suits to an agency’s interpretation of a statute.

Court’s Holding:

No. The Hobbs Act channels pre-enforcement challenges of agency orders to the courts of appeals. But the availability of pre-enforcement review does not mean that district courts are bound by the agency’s interpretation in civil enforcement proceedings.

What It Means:

Today’s decision continues a trend of the Court limiting the deference federal courts must give to an agency’s legal interpretations, following on Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), and other cases. The decision strengthens parties’ ability to request that a court issue a decision contrary to an agency’s interpretation, including in litigation between private parties.
The Court emphasized that Congress can restrict judicial review in an enforcement proceeding, provided Congress does so clearly. Absent such a clear statement by Congress, courts presume judicial review is permitted and may independently assess the meaning of a statute in the context of an enforcement proceeding. Because the Hobbs Act is silent as to whether a party may contest the agency’s legal interpretation in subsequent enforcement proceedings, it does not preclude judicial review or bind district courts to the agency’s interpretation.
The Court’s decision suggests that potential defendants might not be able to rely solely on agency determinations to provide a safe harbor, since a court may not be bound by the agency’s interpretation. However, defendants may still argue that the safe harbor correctly interprets the statute and is entitled to weight under Skidmore. They may also raise other arguments, including that principles of fair notice preclude liability or that other elements of the applicable statute are not satisfied.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery +1 202.955.8515 sdelery@gibsondunn.com	Eugene Scalia +1 202.955.8673 Assistant Dawn J. Forrester: dforrester@gibsondunn.com	Helgi C. Walker +1 202.887.3599 hwalker@gibsondunn.com
Akiva Shapiro +1 212.351.3830 ashapiro@gibsondunn.com	Russell Balikian +1 202.955.8535 rbalikian@gibsondunn.com

This alert was prepared by associate Salah Hawkins.

FDA v. R.J. Reynolds Vapor Co., No. 23-1187 – Decided June 20, 2025

Today, the Supreme Court held 7-2 that tobacco product retailers may sue the FDA for blocking the marketing of new tobacco products, allowing challenges by more than just the product manufacturer.

“If the FDA denies an application, the retailers, like the manufacturer, lose the opportunity to profit from the sale of the new tobacco product—or, if they sell the product anyway, risk imprisonment and other sanctions. . . . Accordingly, the retailers are ‘adversely affected’ by a denial order and are therefore proper petitioners.”

Justice Barrett, writing for the Court

Background:

The Family Smoking Prevention and Tobacco Control Act (“TCA”) requires tobacco product manufacturers to apply to the Food and Drug Administration (“FDA”) for authorization to market “new” tobacco products. If the FDA denies an application, the Act’s judicial-review provision permits “any person adversely affected by” the denial to petition for review in the D.C. Circuit or “the circuit in which such person resides or has their principal place of business.” 21 U.S.C. § 387l(a)(1).

R.J. Reynolds Vapor Co. (“RJR Vapor”), a leading e-cigarette manufacturer, is incorporated and has its principal place of business in North Carolina. When the FDA denied its applications to market four e-cigarette products, it jointly petitioned for review of each denial along with two retailers that sell those kinds of e-cigarettes. The companies filed the joint petition in the Fifth Circuit, where the retailers were formed and have their principal places of business. The FDA moved to dismiss or to transfer the action to the D.C. Circuit or the Fourth Circuit, based on RJR Vapor’s residence. The Fifth Circuit denied the motion, holding that each entity was a person adversely affected by the denial and that the petition could be filed in the Fifth Circuit because the retailers have their principal places of business there.

Issue:

May tobacco product retailers challenge FDA marketing denials, such that a petition for review can be filed in a circuit where a retailer resides or has its principal place of business?

Court’s Holding:

Yes. A retailer who would sell a new tobacco product counts as “any person adversely affected” by an FDA order that bars marketing of that product under the TCA. The retailer can therefore file a petition for review in any circuit in which it resides or has its principal place of business.

What It Means:

Today’s decision confirms that a tobacco product retailer is a “person adversely affected” under the TCA if it would have sold the new product for which the FDA issues a marketing denial. Noting that the phrase “adversely affected” is a term of art, the Court relied on cases interpreting the Administrative Procedure Act and other statutory causes of action to conclude that the TCA review provision “extends to any petitioner ‘with an interest arguably sought to be protected by the statute.’” The Court distinguished the statutory language here—“any person adversely affected”—from language in other statutes, which might limit judicial review to “the applicant” or a “party.” See NRC v. Texas, 605 U.S. __ (2025) (slip op., at 9).
Applying that rule here, the Court held that if the FDA denies a marketing application, retailers, “like the manufacturer, lose the opportunity to profit from the sale of the new tobacco product—or, if they sell the product anyway, risk imprisonment and other sanctions.” Therefore, retailers’ interests are not “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”
By creating more opportunities to challenge FDA orders, the Court’s decision could mean that manufacturers and retailers are able to combat more effectively the FDA’s efforts to thwart marketing approval of new tobacco products.
The Court also held that the Fifth Circuit correctly concluded that at least one proper petitioner had venue in that court because a retailer and trade association in this case have their principal places of business in the Fifth Circuit and could therefore file petitions for review in that circuit.
The Court did not decide the separate question—with more far-reaching consequences—whether each petitioner in a joint petition must independently satisfy the TCA’s venue provisions. The Court noted that “[n]o court, including the Fifth Circuit in this case, has analyzed” that question and that its resolution “would inevitably inform debates about similar [venue] statutes,” including “the general venue statute for lawsuits against the Government.” The Fifth Circuit may consider that question on remand.
In dissent, Justice Jackson (joined by Justice Sotomayor)—who would have held that only manufacturers can challenge a marketing denial—suggested that the TCA‘s venue provision limits the ability of manufacturers to sue outside the circuits in which they reside or have their principal places of business, “including through proxy suits that third parties file in other places on their behalf.” Companies should continue to think carefully about how to avail themselves of the best venue for challenging administrative action.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery
+1 202.955.8515
sdelery@gibsondunn.com

Eugene Scalia
+1 202.955.8673
Assistant Dawn J. Forrester: dforrester@gibsondunn.com

Helgi C. Walker
+1 202.887.3599
hwalker@gibsondunn.com

This alert was prepared by associates Zachary Tyree and Audrey Payne.

EPA v. Calumet Shreveport Refining, LLC, No. 23-1229 – Decided June 18, 2025

Today, the Supreme Court held 7-2 that, if EPA denies a Clean Air Act exemption as part of an “en masse” decision—applying one reasoning to multiple petitions—venue lies exclusively in the D.C. Circuit, even though the individual decisions are only locally or regionally applicable.

“[A]n action is ‘based on a determination of nationwide scope or effect’ . . . if such a determination supplies a core justification for EPA’s action . . . .”

Justice Thomas, writing for the Court

Background:

The Clean Air Act requires oil refiners to blend certain amounts of renewable fuel into transportation fuel sold within the United States. The Environmental Protection Agency (EPA) implements this requirement through the Renewable Fuel Standard program. The law permits small refineries to petition EPA for an exemption. Denial of a petition, like all EPA actions under the Clean Air Act, is reviewable in a federal court of appeals. 42 U.S.C. § 7607(b)(1). If EPA’s decision is “locally or regionally applicable,” venue lies in the refinery’s regional court of appeals; if it’s “nationally applicable” or “based on a determination of nationwide scope or effect,” venue is in the D.C. Circuit. Id.

In April and June 2022, EPA denied the exemption petitions of 105 small refineries in two omnibus notices that (1) described these en masse denials as a “new approach” to renewable-fuel exemptions and (2) stated that the denials were reviewable only in the D.C. Circuit.

The refineries nevertheless sought review in their regional court—the Fifth Circuit. EPA moved to transfer to the D.C. Circuit on the ground that they were made en masse with respect to 105 refineries nationwide as part of a broader policy change so the denials qualified as “nationally applicable” or “based on a determination of nationwide scope and effect” under Section 7607(b)(1).

A divided panel of the Fifth Circuit held that it had venue over Plaintiffs’ claims. The Fifth Circuit held that EPA’s exemption decisions were “locally or regionally applicable” because their “legal effect” was limited to the petitioning refineries and did not bind EPA in any future adjudication. On the merits, the Fifth Circuit held the challenged exemption decisions were unlawful. EPA sought certiorari, asserting that the Fifth Circuit’s decision was inconsistent with the Eleventh Circuit’s decision in a different case challenging the same en masse denial, as well as the decisions of several other circuits in similar circumstances.

Issue:

Under what circumstances is a decision by EPA “nationally applicable” or “based on a determination of nationwide scope or effect,” such that it may only be reviewed by the U.S. Courts of Appeals for the D.C. Circuit?

Court’s Holding:

An EPA “action” (defined by the Court to include only the enumerated acts Congress authorized EPA to take) is “nationally applicable” when “[o]n its face” it applies throughout the entire country. An EPA “determination” (defined by the Court to include any justification EPA gives for taking an action) is “of nationwide scope” if it applies throughout the country as a matter of law. An EPA “determination” is “of nationwide . . . effect” if it applies throughout the country as a matter of fact.

In this case, the Court concluded that each denial of a single refinery’s petition was a separate “action,” but that the decisions were of nationwide scope or effect because EPA made each decision on the same legal basis. Venue accordingly lay in the D.C. Circuit.

What It Means:

The opinion distinguishes between “actions,” “determinations of national scope,” and “determinations of national effect,” establishing three different paths for EPA to lay exclusive venue in the D.C. Circuit.
Courts analyzing venue in actions against EPA will need to walk through the two-step, tripartite system laid out in this opinion. First, a court will need to assess whether EPA’s statutorily authorized “action” applies nationwide on its face. If it does, venue will lie exclusively in the D.C. Circuit. Even if it does not, however, a court will still need to determine whether EPA’s reasoning for that act applies nationwide—“as a legal matter (de jure)” or “as a practical one (de facto).”
This ruling reaffirms the special role of the D.C. Circuit, as distinct from the other Courts of Appeals, in reviewing certain agency actions.
Litigants seeking to challenge EPA determinations may be more likely to find themselves limited to the D.C. Circuit—rather than potentially preferable courts in their own localities—when denials are made in en masse bundles supported by broad-reaching determinations.
In a companion case also decided today, Oklahoma v. EPA, No. 23-1067, the Court applied the Calumet rule to hold that EPA’s disapproval of state implementation plans could be challenged in regional circuit courts. There, states and industry groups challenged EPA’s disapproval of state implementation plans for Oklahoma and Utah in the Tenth Circuit, which held that the challenges should have been brought in the D.C. Circuit. The Supreme Court reversed. Under the first step of Calumet’s two-step inquiry, the Court determined the relevant “action” is EPA’s disapproval of the state implementation plans, which is a prototypical locally or regionally applicable action. Under the second step of Calumet, the Court concluded that the disapprovals “were not based on any determination of nationwide scope or effect” because, unlike in Calumet, the disapprovals were based on a “fact-intensive, state-specific analysis.”
The Court’s decision in Oklahoma v. EPA provides practical guidance on the Calumet framework and resolves uncertainty over the venue rules governing challenges to disapprovals of state implementation plans. Challenges to disapprovals of state implementation based on state-specific analysis may be filed in regional circuit courts.

The Court’s opinions are available here (Calumet) and here (Oklahoma).

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Environmental Litigation and Mass Tort

Stacie B. Fletcher
+1 202.887.3627
sfletcher@gibsondunn.com

Daniel W. Nelson
+1 202.887.3687
dnelson@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery
+1 202.955.8515
sdelery@gibsondunn.com

Eugene Scalia
+1 202.955.8673
Assistant Dawn J. Forrester: dforrester@gibsondunn.com

Helgi C. Walker
+1 202.887.3599
hwalker@gibsondunn.com

This alert was prepared by Grace Hart, Cate McCaffrey, Elizabeth Strassner, and Tom Donovan.