Walmart had attempted to persuade the Fifth Circuit panel, which included Judges Patrick Higginbotham, Jerry Smith and James Ho, that alleged misconduct by DOJ prosecutors had amounted to appealable sanctions against Walmart. But in Wednesday's 16-page opinion, Judge Smith wrote that settlement negotiations had nothing to do with "agency action" — an element that had to be met to waive sovereign immunity under the Administrative Procedure Act. "Walmart cites several 'rules,' but most of them derive not from official publications but from positions allegedly taken by the government in settlement negotiations with Walmart," Judge Smith wrote in the unanimous opinion. "Though there is no room for disagreement about precisely what satisfies the definition of 'rule,' it surely does not include negotiating positions." Moreover, the very existence of the DOJ's enforcement action in the District of Delaware corroborates the Fifth Circuit's position that the Eastern District action is now unnecessary.