Brett Shumate assists clients with high-stakes regulatory litigation involving the government. He develops creative strategies to challenge state and federal laws, regulations, and executive orders on constitutional and statutory grounds. He handles crisis litigation and defends clients in bet-the-company enforcement actions.
Brett represented the Alabama Association of Realtors in a successful challenge to the Centers for Disease Control and Prevention's (CDC) eviction moratorium. After a district court vacated the eviction moratorium, the Supreme Court issued an opinion explaining that the CDC exceeded its authority and lifted a stay pending appeal.
Brett currently represents clients in litigation arising under the Administrative Procedure Act, Telephone Consumer Protection Act, Federal Advisory Committee Act, Medicare Act, Tariff Act, Public Health Service Act, and Food, Drug, and Cosmetic Act. He also advises clients in matters involving climate change, trade, telecommunications, government contracts, and agency guidance.
Brett joined Jones Day from the U.S. Department of Justice, where he served as deputy assistant attorney general for the Civil Division's Federal Programs Branch. He handled litigation impacting nearly every sector of the economy, including health care, education, labor, national security, foreign affairs, sanctions, telecommunications, and energy. Brett advised nearly every federal agency and the White House on litigation risk and was the government's lead counsel in a number of high-profile cases.
Brett has particular experience in litigation affecting telecommunications and technology companies. He has handled numerous appeals challenging Federal Communications Commission (FCC) orders, including a successful challenge to the FCC's net neutrality rules.
The following represents experience acquired prior to joining Jones Day.
Public Citizen v. Trump (D.D.C.): argued successful defense of the president's Executive Order on Reducing Regulation.
English v. Trump (D.D.C.): argued successful defense of Mick Mulvaney's appointment as acting director of the CFPB.
Citizens for Responsibility and Ethics in Washington v. Trump (S.D.N.Y.): argued successful defense of Emoluments Clause claim against the president.
Texas v. U.S. (N.D. Tex.): argued constitutional challenge to the Affordable Care Act's individual mandate.
U.S. v. California (C.D. Cal.): coordinated preemption challenge to California's net neutrality law.
Center for Biological Diversity v. Zinke (D. Alaska): supervised successful defense of the Congressional Review Act.
Cummings v. Murphy (D.D.C.): supervised successful defense of Congressional members' lawsuit seeking to obtain documents regarding the Trump International Hotel.
City of San Francisco v. DOJ (N.D. Cal.): supervised successful defense of DOJ's rescission of guidance documents.
Exxon v. Mnuchin (N.D. Tex.): supervised defense of challenge to sanctions imposed by Office of Foreign Assets Control (OFAC).
Knight First Amendment Institute v. Trump (S.D.N.Y.): supervised defense of First Amendment challenge to president's blocking of Twitter followers.
New Hampshire Lottery Commission v. Barr (D.N.H.): supervised defense of Office of Legal Counsel opinion on applicability of Wire Act to non-sports betting and state lotteries.
Center for Biological Diversity v. Trump (D.D.C.): supervised defense of the president's declaration of a national emergency.
American Bankers Association v. U.S. (Fed. Claims): represented American Bankers Association and Washington Federal, N.A. in challenge to federal statute reducing stock dividend to Federal Reserve member banks.
USTelecom v. FCC (D.C. Cir.): represented Alamo Broadband in First Amendment challenge to FCC net neutrality rules.
Verizon v. FCC (D.C. Cir.): represented Verizon in successful challenge to FCC net neutrality rules.
Neustar v. FCC (D.C. Cir.): represented Neustar in challenge to FCC award of $500 million contract.
U.S. v. Martin (Ninth Cir.): represented defendant in successful appeal overturning federal criminal tax convictions and sentence.
Bais Yaakov v. FCC (D.C. Cir.): represented amicus National Federation of Independent Business (NFIB) in challenge to FCC fax rules.
Cox v. BMG (Fourth Cir.): represented amicus United States Telecom Association in case involving the Digital Millennium Copyright Act (DMCA).
Maverick Tube Corporation v. U.S. (Court of International Trade): represented Maverick Tube Corporation in challenge to Department of Commerce subsidy ruling.
- February 10, 2020
Justice Kavanaugh Hints at Future Consideration of Nondelegation Doctrine
Publications Prior to Jones Day
The International Comparative Legal Guide to Telecoms, Media & Internet Laws & Regulations (2017)
Business and Commercial Litigation in Federal Courts: Communications Litigation, 4th ed., Thomson Reuters (2016)
FCC’s Use of "Fact Sheets" Short-Circuits the Administrative Procedure Act, Washington Legal Foundation (2016)
10 Things To Know About Net Neutrality And Class Actions, Law360 (2016)
Sponsored Data, Net Neutrality, and the 1st Amendment, Law360 (2016)
Net Neutrality and the Rule of Law, Engage: The Journal of the Federalist Society Practice Groups (2015)
The FCC’s Expanding Use of Delegated Authority and the Dilemma of Appellate Jurisdiction, Communications Lawyer, Vol. 31, No. 2 (2015)
Don’t Tread on the Internet, Los Angeles Daily Journal (2014)
D.C. Circuit Challenge to FCC’s Authority Over Fax Advertisements Has Important First Amendment Implications, Bloomberg BNA’s Telecommunications Law Resource Center (2014)
- October 2021
Litigation Strategy Forum for Administrative State Reform
- October 2021
Recent Trends in ESG Litigation
- September 2021
Litigation Update: Alabama Ass'n of Realtors v. HHS
- September 2021
Alabama Association of Realtors, et al v. DHHS
- September 2021
The 'Cancel the Rent Movement' - Conversation with the Plaintiff and Litigator that won the Eviction SCOTUS Case
- September 2021
Judges, SCOTUS, and the Shadow Docket
- June 3, 2020
Return to Workplace Legal Considerations U.S. Companies need to know Post-COVID-19
- March 3, 2020
What In-House Counsel Need To Know About Agency Guidance: Banking Industry
- January 29, 2020
What In-House Counsel Need To Know About Agency Guidance: Webinar
- November 21, 2019
What In-House Counsel Need To Know About Agency Guidance: Telecommunications Industry
- November 19, 2019
What In-House Counsel Need To Know About Agency Guidance: Retail Industry
- October 29, 2019
The Future of Administrative Records after Department of Commerce v. New York
Speaking Engagements Prior to Jones Day
Taking the FCC to Court: An Adventurous Agency Faces Increasing Judicial Scrutiny, Washington Legal Foundation Media Briefing Program
Free Speech and the Internet, The Federalist Society Video Series
Consequences of Net Neutrality: Perspectives from Across the Industry, 2015 FCBA Annual Seminar
- Wake Forest University (J.D. magna cum laude 2006; Order of the Coif; Executive Editor, Wake Forest Law Review); Furman University (B.A. in Political Science and History magna cum laude 2003; Phi Beta Kappa)
- District of Columbia, U.S. Supreme Court, U.S. Court of International Trade, U.S. Court of Federal Claims, U.S. District Court for the District of Columbia, and every U.S. Court of Appeals
- Deputy Assistant Attorney General, Civil Division, Federal Programs Branch, U.S. Department of Justice (2017-2019)
Profiled in The National Law Journal as DOJ's "point man in court" and "first line of defense" and described as "very, very sharp" with "outstanding litigation judgment"
The Legal 500 United States, recommended lawyer in appellate law (2016-2017) and telecoms (2020)
Law360: rising star in telecommunications (2016) and "Legal Lion," Weekly Verdict Column (2014)
Recipient, Burton Award for Distinguished Legal Writing (2016)
- Law Clerk to Judge Edith H. Jones, U.S. Court of Appeals, Fifth Circuit (2006-2007)