Petition for Writ of Certiorari — Corner Post, Inc., Petitioner v. Board of Governors of the Federal Reserve System

No. ______

In the Supreme Court of the United States

CORNER POST, INC.,

Petitioner,

v.

BOARD OF GOVERNORS OF THE FEDERAL RESERVE

SYSTEM,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Tyler R. Green

Counsel of Record

CONSOVOY MCCARTHY PLLC

222 S. Main St., 5th Fl.

Salt Lake City, UT 84101

(703) 243-9423

tyler@consovoymccarthy.com

Bryan Weir

Frank H. Chang*

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

*Admitted in DC & PA only

April 13, 2023

Counsel for Petitioner

i

QUESTION PRESENTED

Petitioner Corner Post, Inc. is a convenience store

and truck stop in North Dakota that first opened for

business in 2018. In 2021, Corner Post sued the Board

of Governors of the Federal Reserve System under the

Administrative Procedure Act, challenging a Board

rule adopted in 2011 that governs certain fees for

debit-card transactions.

The Eighth Circuit held that Corner Post’s APA

claims were barred by 28 U.S.C. §2401(a)’s six-year

statute of limitations. In so doing, it adopted the majority position in an acknowledged circuit split on

when APA claims “first accrue[]” under §2401(a). The

Eighth Circuit held that Corner Post’s APA claims

“first accrue[d]” when the Board issued the rule in

2011—even though Corner Post did not open for business until seven years later. As a result, Corner Post’s

limitations period expired in 2017—a year before it

opened for business. The court did not explain how

Corner Post could have “suffer[ed] legal wrong” from

or been “adversely affected or aggrieved by” the

Board’s rule—a predicate to stating an APA claim, 5

U.S.C. §702—before Corner Post accepted even one

debit-card payment subject to the rule.

The question presented is: Does a plaintiff’s APA

claim “first accrue[]” under 28 U.S.C. §2401(a) when

an agency issues a rule—regardless of whether that

rule injures the plaintiff on that date (as the Eighth

Circuit and five other circuits have held)—or when the

rule first causes a plaintiff to “suffer[] legal wrong” or

be “adversely affected or aggrieved” (as the Sixth Circuit has held)?

ii

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS

The parties to the proceeding below are as follows:

Petitioner is Corner Post, Inc. It was a plaintiff in

the district court and an appellant in the Eighth Circuit. The North Dakota Retail Association and the

North Dakota Petroleum Marketers Association were

also plaintiffs and appellants below, but they do not

petition for a writ of certiorari from this Court.

The related proceedings below are:

1) NDRA v. Bd. of Governors of the Fed. Rsrv.

Sys., No. 1:21-cv-95 (D.N.D.) — Judgment

entered on March 11, 2022; and

2) NDRA v. Bd. of Governors of the Fed. Rsrv.

Sys., No. 22-1639 (8th Cir.) — Judgment

entered on December 14, 2022.

iii

CORPORATE DISCLOSURE STATEMENT

In accordance with Supreme Court Rule 29.6, Petitioner Corner Post, Inc. states that it has no parent

corporation and that no publicly held corporation

owns 10% of more of its stock.

iv

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING AND RELATED

PROCEEDINGS .......................................................... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

TABLE OF CITED AUTHORITIES ......................... vi

OPINIONS BELOW ................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISION INVOLVED ................... 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE.................................... 5

A. Background .................................................... 5

B. Proceedings Below ......................................... 7

REASONS FOR GRANTING THE PETITION....... 10

I. The Eighth Circuit’s opinion deepens a

square, entrenched circuit split about when

APA claims “first accrue[].” ................................ 11

II. The majority rule contradicts this Court’s

precedent. ............................................................ 20

III. The Eighth Circuit’s decision is wrong.............. 21

A. The majority rule effectively reads §702

out of the APA .............................................. 21

B. The majority rule improperly insulates

agency actions from APA challenges .......... 26

CONCLUSION .......................................................... 31

APPENDIX

Appendix A Opinion in the United States Court

of Appeals for the Eighth Circuit

(December 14, 2022) …..…….. App. 1

v

Appendix B

Order Granting Motion to Dismiss

in the United States District Court

for the District of North Dakota

(March 11, 2022) ……….…... App. 16

Appendix C

Judgment in a Civil Case in the

United States District Court for the

District of North Dakota (March 11,

2022) ………………............... App. 41

Appendix D

Amended Complaint for Declaratory

and Injunctive Relief in the United

States District Court for the District

of North Dakota (July 23, 2021)

……………………………….... App. 43

vi

TABLE OF CITED AUTHORITIES

Cases

Abbott Lab’ys v. Gardner,

387 U.S. 136 (1967) .................................. 2, 27, 28

Bay Area Laundry & Dry Cleaning Pension Tr.

Fund v. Ferbar Corp. of Cal.,

522 U.S. 192 (1997) ............................ 4, 10, 11, 20

Block v. Cmty. Nutrition Inst.,

467 U.S. 340 (1984) ............................................ 26

Boechler, PC v. Comm’r of Internal Revenue,

142 S.Ct. 1493 (2022) ........................................... 5

Bowen v. Mich. Academy of Fam. Physicians,

476 U.S. 667 (1986) ............................................ 26

Cal. Pub. Emps. Ret. Sys. v. ANZ Sec., Inc.,

137 S.Ct. 2042 (2017) ......................................... 23

Cal. Sea Urchin Comm’n v. Bean,

828 F.3d 1046 (9th Cir. 2016) ........................ 4, 15

CIC Servs., LLC v. IRS,

141 S.Ct. 1582 (2021) ......................................... 26

Citizens Alert Regarding the Env’t v. EPA,

102 F. App’x 167 (D.C. Cir. 2004) ........................ 9

Citizens United v. FEC,

558 U.S. 310 (2010) ............................................ 17

CREW v. FEC,

971 F.3d 340 (D.C. Cir. 2020) ...................... 17, 28

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ................................................ 23

vii

Dep’t of Homeland Sec. v. Regents of the Univ. of

Cal., 140 S.Ct. 1891 (2020) ................................ 26

DeSuze v. Ammon,

990 F.3d 264 (2d Cir. 2021) ................................ 19

Dir., Off. of Workers’ Comp. Programs, Dep’t of Lab.

v. Newport News Shipbuilding & Dry Dock Co.,

514 U.S. 122 (1995) ...................... 4, 10, 11, 20, 21

Dunn-McCampbell Royalty Int., Inc. v. NPS,

112 F.3d 1283 (5th Cir. 1997)

......................... 3, 4, 5, 9, 14, 15, 22, 23, 27, 30, 31

Epic Sys. Corp. v. Lewis,

138 S.Ct. 1612 (2018) ......................................... 23

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) .............................. 2, 5, 26, 28

Harris v. FAA,

353 F.3d 1006 (D.C. Cir. 2004) .......................... 16

Heimeshoff v. Hartford Life & Accident Ins. Co.,

574 U.S. 99 (2013) .............................................. 22

Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Cir. 2015)

........... 3, 5, 9, 12, 13, 17, 18, 19, 20, 21, 22, 27, 28

Hire Order Ltd. v Marianos,

698 F.3d 168 (4th Cir. 2021) ........ 9, 15, 16, 22, 29

Hyatt v. USPTO,

904 F.3d 1361 (Fed. Cir. 2018)........................... 16

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................ 29

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ...................................... 11, 20

viii

Match–E–Be–Nash–She–Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209 (2012) ........... 21

McDonough v. Smith,

139 S.Ct. 2149 (2019) ........................................... 5

NACS v. Bd. of Governors of Fed. Rsrv. Sys.,

746 F.3d 474 (D.C. Cir. 2014) .............................. 8

NACS v. Bd. of Governors of Fed. Rsrv. Sys.,

958 F. Supp. 2d 85 (D.D.C. 2013) ........................ 8

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S.Ct. 617 (2018) ............................... 24, 25, 30

NFIB v. OSHA,

142 S.Ct. 661 (2022) ........................................... 24

Odyssey Logistics & Tech. Corp. v. Iancu,

959 F.3d 1104 (Fed. Cir. 2020)........................... 16

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc.,

139 S.Ct. 2051 (2019) ....................... 17, 24, 27, 30

Peri & Sons Farms, Inc. v. Acosta,

374 F. Supp. 3d 63 (D.D.C. 2019) ...................... 16

Rotkiske v. Klemm,

140 S.Ct. 355 (2019) ........................... 5, 20, 25, 30

Sackett v. EPA,

566 U.S. 120 (2012) ...................................... 26, 27

Sendra Corp. v. Magaw,

111 F.3d 162 (D.C. Cir. 1997) ............................ 16

Shaughnessy v. Pedreiro,

349 U.S. 48 (1955) ................................................ 3

ix

Shiny Rock Mining Corp. v. United States,

906 F.2d 1362 (9th Cir. 1990) ............................ 15

Trump v. Hawaii,

138 S.Ct. 2392 (2018) ......................................... 26

Weaver v. FMCSA,

744 F.3d 142 (D.C. Cir. 2014) ............................ 17

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,

139 S.Ct. 361 (2018) ........................................... 26

Wilkins v. United States,

142 S.Ct. 870 (2023) ............................................. 5

Wind River Mining Corp. v. United States,

946 F.2d 710 (9th Cir. 1991) ................................ 9

Statutes

5 U.S.C. §702

............. 1, 2, 3, 4, 10, 11, 12, 20, 21, 22, 25, 27, 28

12 U.S.C. §1848 ......................................................... 24

15 U.S.C. §80b-13(a) ................................................. 24

15 U.S.C. §1693o-2(a)(2) ......................................... 7, 8

16 U.S.C. §7804(d)(1) ................................................ 24

21 U.S.C. §348(g)(1) .................................................. 24

26 U.S.C. §9041(a)..................................................... 24

28 U.S.C. §1254(1)....................................................... 1

28 U.S.C. §2344 ......................................................... 24

28 U.S.C. §2401(a)

.................... 1, 2, 5, 8, 10, 11, 12, 19-25, 27, 28, 30

29 U.S.C. §655(f) ....................................................... 24

x

39 U.S.C. §3663 ......................................................... 24

49 U.S.C. §30161(a)................................................... 24

Dodd-Frank Wall Street Reform and Consumer

Protection Act, Pub. L. No. 111–203, 124 Stat.

1376 (2010) ............................................................ 6

Rules

Sup. Ct. R. 10(a) ........................................................ 10

Sup. Ct. R. 10(c) ........................................................ 10

Regulations

75 Fed. Reg. 81722 (Dec. 28, 2010) ............................ 7

Debit Card Interchange Fees and Routing, 76 Fed.

Reg. 43394 (July 20, 2011) ............................... 6, 7

Other Authorities

Statute of Limitations, Black’s Law Dictionary (11th

ed. 2019) .............................................................. 23

Statute of Repose, Black’s Lack Dictionary (11th ed.

2019) .................................................................... 23

Wright & Miller, 33 Fed. Prac. & Proc. (2d ed.) ...... 30

1

Corner Post, Inc. respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The Eighth Circuit’s opinion is reported at 55

F.4th 634 and is reproduced in the Appendix (“App.”)

at 1-15. The District of North Dakota’s opinion is not

reported but is available at 2022 WL 909317 and is

reproduced at App. 16-40.

JURISDICTION

The Eighth Circuit issued its decision on December 14, 2022. On March 8, 2023, Justice Kavanaugh

granted Corner Post’s application to extend the time

to file a petition for a writ of certiorari to April 13,

2023. See 22A783. This Court has jurisdiction under

28 U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

The pertinent statutory provisions involved in

this case are 5 U.S.C. §702 and 28 U.S.C. §2401(a).

5 U.S.C. §702 states: “A person suffering legal

wrong because of agency action, or adversely affected

or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.”

28 U.S.C. §2401(a) states: “Except as provided by

chapter 71 of title 41, every civil action commenced

against the United States shall be barred unless the

complaint is filed within six years after the right of

action first accrues.”

2

INTRODUCTION

The Administrative Procedure Act ensures that

regulated parties can challenge unlawful regulations.

This Court has long said that the Act “embodies the

basic presumption of judicial review” and that its

“‘generous review provisions’ must be given a ‘hospitable’ interpretation.” Abbott Lab’ys v. Gardner, 387

U.S. 136, 140 (1967). Section 702 is the cornerstone of

that mandate. It provides that “[a] person suffering

legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review

thereof.” 5 U.S.C. §702.

Congress gave the APA’s generous review provisions plenty of runway by allowing plaintiffs to file an

APA challenge “within six years after the right of action first accrues.” 28 U.S.C. §2401(a). Those six years

dwarf the shorter 30-day or 60-day periods in some

agencies’ organic statutes and the Hobbs Act. And unlike those limitations periods, §2401(a)’s six-year period runs from when an APA claim “first accrues”—

not from the date of the final agency action. By design,

then, it is easier to file timely lawsuits for run-of-themill APA challenges.

This review regime is essential for regulated parties seeking judicial recourse against the administrative state, “which now wields vast power and touches

almost every aspect of daily life.” Free Enter. Fund v.

Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010).

Not surprisingly, federal agencies do not like the

broad review that the APA’s plain text provides. So

3

some agencies have tried to thwart it by convincing

lower courts—now including the Eighth Circuit—to

erroneously interpret the accrual rule for APA claims.

Those courts have held that the statute of limitations

for APA claims starts running for everyone the day

that an agency takes a final action—no matter when

(or whether) that action harms the plaintiff. Indeed,

some of those courts (including the Eighth Circuit)

have held that the limitations period starts running

on the day of final agency action even for entities that

do not exist when a regulation is issued. By so holding,

those courts have effectively turned the statute of limitations for APA claims into a statute of repose—a permanent “obstacle[] to judicial review.” Shaughnessy v.

Pedreiro, 349 U.S. 48, 51 (1955).

Those circuits’ decisions run headlong into the

Sixth Circuit’s contrary view. As that court explained,

an agency’s argument “that a right of action under the

APA accrues upon final agency action regardless of

whether that action aggrieved the plaintiff … contradicts the text of the statute and Supreme Court precedent to boot.” Herr v. U.S. Forest Serv., 803 F.3d 809,

819 (6th Cir. 2015) (Sutton, J.). After Herr, the APA’s

“six-year clock starts ticking” in the Sixth Circuit only

when the agency action actually “invades a party’s legally protected interest,” because “a party [who] cannot plead a ‘legal’ wrong or an ‘adverse[] [e]ffect[] …

has no right of action” under the APA. Id. (quoting 5

U.S.C. §702). A dissenting opinion in a split Fifth Circuit decision takes the same view. See DunnMcCampbell Royalty Int., Inc. v. NPS, 112 F.3d 1283,

1290 (5th Cir. 1997) (Jones, J., dissenting). According

to Judge Jones, “[l]imitations on certain challenges to

4

regulations [do] not begin to run” until the plaintiff

“could … sue[] the [agency].” Id. at 1289.

The Eighth Circuit’s decision below squarely conflicts with the Sixth Circuit’s opinion (and Judge

Jones’s view) and joins the wrong side of an entrenched circuit split on this question. The Eighth Circuit now aligns with the Fourth, Fifth, Ninth, D.C.,

and Federal Circuits’ holdings that the APA’s statute

of limitations starts to run for a plaintiff on the day

the agency issues a rule—“even if” the plaintiff “is not

injured until more than six years after the relevant

agency action became final.” Cal. Sea Urchin Comm’n

v. Bean, 828 F.3d 1046, 1050 (9th Cir. 2016). This

Court’s review is needed to resolve this entrenched,

square split.

Compounding that problem, the majority position

in this square split conflicts with this Court’s precedent. A statutory “limitations period commences when

the plaintiff has ‘a complete and present cause of action.’” Bay Area Laundry & Dry Cleaning Pension Tr.

Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997).

A plaintiff who has not been harmed by agency action

does not have a “complete and present [APA] cause of

action,” id., because the Court has “interpreted §702

as requiring litigants to show, at the outset of the case,

that he is injured in fact by the agency action.” Dir.,

Off. of Workers’ Comp. Programs, Dep’t of Lab. v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122,

127 (1995). The majority position cannot be reconciled

with those cases; it starts a plaintiff’s clock even before he can state an APA claim.

5

Of course, agencies love how the majority rule insulates their actions from review after six years. In

effect, the majority rule conflates §2401(a) with a statute of repose or other filing deadlines that expressly

run from final agency action. That is error, for “[a] federal regulation that makes it six years without being

contested does not enter a promised land free from legal challenge.” Herr, 803 F.3d at 821; see also DunnMcCampbell, 112 F.3d at 1290 (Jones, J., dissenting)

(“[A] regulation initially unauthorized by statute cannot become authorized by the mere passage of time.”).

The conflation needs to be corrected.

Time and time again, this Court has fixed lower

courts’ errors in applying statutes of limitations. See,

e.g., Wilkins v. United States, 142 S.Ct. 870 (2023);

Boechler, PC v. Comm’r of Internal Revenue, 142 S.Ct.

1493 (2022); Rotkiske v. Klemm, 140 S.Ct. 355 (2019);

McDonough v. Smith, 139 S.Ct. 2149 (2019). This

well-developed statute-of-limitations error in the APA

context raises a “heighten[ed]” concern that the evergrowing administrative state may further “slip from”

judicial review. Free Enter. Fund, 561 U.S. at 499. The

error in this case warrants plenary review. The Court

should grant the petition.

STATEMENT OF THE CASE

A. Background

Though the question presented here concerns only

a square split on a statute-of-limitations issue, Corner

Post briefly describes the underlying merits dispute to

put the limitations issue in context.

6

Almost every merchant in the country accepts

debit cards as a form of payment because they are

enormously popular with customers. App. 46-47. But

every time customers use a debit card, the merchant

pays behind-the-scenes transaction fees to transfer

the money from the customer’s bank account to the

merchant’s bank account. See Debit Card Interchange

Fees and Routing, 76 Fed. Reg. 43394, 43397 (July 20,

2011) (“Rule”); App. 57. The largest of those fees is

called an “interchange fee,” and the merchants pay

that fee to the banks that issue debit cards as compensation for the banks’ role in those transactions. App.

58. But merchants and banks do not set the interchange fee amounts. Rather, until 2010, interchange

fees were set by the network companies that process

the transactions, such as Visa and Mastercard. App.

59. Those networks also competed for the banks’ business by setting the interchange fees as high as possible—then passing those fees on to merchants to pay.

App. 59. And because merchants have little choice but

to accept debit cards and pay the fees no matter their

amount, this led to a market breakdown. App. 59.

Congress tried to address this problem in 2010 by

passing the “Durbin Amendment” as part of the DoddFrank Wall Street Reform and Consumer Protection

Act, Pub. L. No. 111–203, 124 Stat. 1376 (2010). The

Durbin Amendment instructs the Federal Reserve

Board to regulate interchange fees for debit-card

transactions with the largest banks—that is, banks

with over $10 billion in assets. App. 48. Congress directed the Board to cap interchange fees for those

largest banks at an amount that is “reasonable and

proportional to the cost incurred by the [bank] issuer

7

with respect to the transaction.” 15 U.S.C. §1693o2(a)(2).

As the Durbin Amendment required, the Board

started a rulemaking in 2010 to set an interchangefee cap. 75 Fed. Reg. 81722 (Dec. 28, 2010). The

Board’s proposed rule set the cap at 12 cents per

transaction. Id. at 81737-38. But in response to pressure from big banks, the Board changed course in its

final rule. See App. 64. In July 2011, the Board set the

interchange-fee cap at 21 cents per transaction and an

ad valorem component of .05% of the transaction’s

value. See Rule, 76 Fed. Reg. at 43422. Since then, the

Board has gathered and published data showing that

big banks’ average costs for processing debit-card

transactions have ranged from just 3.6 to 5 cents per

transaction. App. 50-51. That means big banks have

made an average profit of between 16 cents and 17.4

cents for virtually every one of 80 billion debit-card

transactions every year since 2011—or at least $12

billon per year in profits. App. 45. The Board has

never explained how a fee cap resulting in bank profits of between 320% and 483% per transaction is “reasonable and proportional to the cost incurred by the

[bank] issuer with respect to the transaction.” 15

U.S.C. §1693o-2(a)(2).

B. Proceedings Below

Petitioner Corner Post, Inc. is a truck stop and

convenience store in Watford City, North Dakota.

App. 52-53. It opened in March 2018 and first began

accepting debit cards (and thus paying the Board’s 21cent interchange fees) that month. App. 52-53. Just

over three years later, in 2021, Corner Post joined

8

other plaintiffs in an APA suit in the U.S. District

Court for the District of North Dakota challenging the

Rule. See App. 52-54. Corner Post contends that the

Board’s fee is contrary to law and exceeds the Board’s

statutory authority because it is not “reasonable and

proportional to the cost incurred” by banks for each

debit-card transaction. 15 U.S.C. §1693o-2(a)(2); see

App. 79-84. In particular, Corner Post argues that the

Board set the fee standard at 21 cents by basing it on

four types of costs that Congress statutorily barred

the Board from considering. App. 79-84. Corner Post

asked the district court to set aside the Rule as exceeding the Board’s statutory authority. App. 84-85.1

The Board moved to dismiss Corner Post’s claims

on multiple grounds. Relevant here, the district court

granted the Board’s motion and dismissed Corner

Post’s claim as time barred, holding that “[t]he limitations period under 28 U.S.C. § 2401(a) for bringing a

facial challenge to an agency action begins to run at

1 The Rule was previously challenged in the U.S. District

Court for the District of Columbia in 2011. That district court

vacated the Rule, concluding that it was “quite clear that the

statute did not allow the Board to consider the additional costs

factored into the interchange fee standard.” NACS v. Bd. of Governors of Fed. Rsrv. Sys., 958 F. Supp. 2d 85, 107, 114 (D.D.C.

2013) (Leon, J.). The court found that the “Board’s interpretation

is utterly indefensible” and “irreconcilable with the statute.” Id.

at 105, 107. The D.C Circuit employed Chevron deference and

reversed, even though it confirmed a defect in the rule and remanded to give the Board a chance to try to fix that defect. NACS

v. Bd. of Governors of Fed. Rsrv. Sys., 746 F.3d 474 (D.C. Cir.

2014). And this Court denied certiorari. 574 U.S. 1121 (2015).

Corner Post was not a party to that lawsuit (it did not yet exist)

and the lawsuit was litigated in a circuit where Corner Post does

not exist.

9

the time of publication of the agency’s action.” App.

38. That meant that Corner Post’s statute of limitations expired in 2017, a year before Corner Post first

opened its doors or accepted a debit-card payment.

App. 38.

The Eighth Circuit affirmed. App. 15. It acknowledged that it previously “ha[d] not explicitly addressed whether a plaintiff which comes into existence more than six years after the publication of a final agency action is barred from bringing an APA facial challenge to the agency action.” App. 7. To resolve

this issue, it first looked to cases in “[o]ther circuit

courts hold[ing] that APA claims accrue, and the statute of limitations begins to run, when an agency publishes the regulation.” App. 7; see also App. 10-11 (citing Hire Order Ltd. v Marianos, 698 F.3d 168, 170 (4th

Cir. 2021); Dunn-McCampbell, 112 F.3d at 1287; Citizens Alert Regarding the Env’t v. EPA, 102 F. App’x

167, 168-69 (D.C. Cir. 2004); Wind River Mining Corp.

v. United States, 946 F.2d 710, 715 (9th Cir. 1991)).

The panel then contrasted those decisions with

the Sixth Circuit’s holding in Herr “that a challenge to

an agency action first accrued upon injury to the

plaintiff rather than publication of the agency action.”

App. 9 (citing Herr, 803 F.3d at 822). The panel ultimately rejected the Sixth Circuit’s view and joined the

circuits on the other side of the split. It held that

“when plaintiffs bring a facial challenge to a final

agency action, the right of action accrues, and the limitations period begins to run, upon publication of the

regulation.” App. 11. According to the Eighth Circuit,

“liability is fixed and plaintiffs have a complete and

10

present cause of action upon publication of the final

agency action.” App. 12.

Applying its view of the statute of limitations, the

Eighth Circuit held Corner Post’s claims time barred

under §2401(a) because the Board issued its Rule in

July 2011 and Corner Post—which did not even open

and begin paying regulated interchange fees until

2018—sued in 2021. App. 12.

REASONS FOR GRANTING THE PETITION

By holding that the statute of limitations for APA

claims starts to run when an agency first issues a regulation—regardless of when that regulation first “adversely affected or aggrieved” the plaintiff, 5 U.S.C.

§702—the Eighth Circuit deepened to 6-1 an entrenched, square circuit split on the question of when

a plaintiff’s APA claim “first accrues” under 28 U.S.C.

§2401(a). This square split warrants plenary review.

Sup. Ct. R. 10(a).

The erroneous majority position also “decide[s] an

important federal question in a way that conflicts with

the relevant decisions of this Court.” Sup. Ct. 10(c). A

“limitations period commences when the plaintiff has

‘a complete and present cause of action.’” Bay Area

Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar

Corp. of Cal., 522 U.S. 192, 201 (1997). A plaintiff who

has not yet been harmed by a rule does not have a

“complete and present [APA] cause of action” because

this Court has “interpreted §702 as requiring litigants

to show, at the outset of the case, that he is injured in

fact by the agency action.” Dir., Off. of Workers’ Comp.

11

Programs, Dep’t of Lab. v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 127 (1995). Yet the

majority rule starts the statute of limitations even for

plaintiffs who cannot state a claim challenging the

agency’s action. That conflicts with how this Court applies statutes of limitations. That departure from this

Court’s precedent provides an independent ground for

plenary review.

I.

The Eighth Circuit’s opinion deepens a

square, entrenched circuit split about when

APA claims “first accrue[].”

A. Plaintiffs alleging APA claims must file their

complaint “within six years after the right of action

first accrues.” 28 U.S.C. §2401(a). And an APA claim

accrues when a plaintiff “suffer[s] legal wrong,” or becomes “adversely affected” or “aggrieved” by, a final

agency action. 5 U.S.C. §702; Newport News, 514 U.S.

at 127; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

882-83 (1990). Only upon suffering such an injury, or

being adversely affected or aggrieved, does a plaintiff

have “‘a complete and present cause of action’” under

the APA. Ferbar, 522 U.S. at 201.

Despite this plain statutory text, the circuits are

squarely split on when an APA “right of action first

accrues,” §2401(a)—and thus when the six-year limitations clock starts running. The circuits themselves

recognize this split between the Sixth Circuit and six

other circuits that follow the erroneous majority rule.

Start with the Sixth Circuit, which holds that

§2401(a)’s six-year limitations clock begins to run only

when a plaintiff first suffers an injury as required by

12

§702—not simply when a rule is first promulgated.

Herr v. U.S. Forest Serv., 803 F.3d 809, 818-22 (6th

Cir. 2015) (Sutton, J.). The plaintiffs in Herr sued in

2014 to challenge a 2007 regulation restricting the use

of motorboats on a lake abutting property they purchased in 2010. Id. at 813. They argued that they

timely filed their suit because §2401(a)’s six-year clock

did not begin to run until 2010, when they “purchased

their waterfront property” on a lake subject to the restrictions. Id. at 818. The agency, in contrast, “argue[d] that a right of action under the APA accrues

upon final agency action regardless of whether that

action aggrieved the plaintiff.” Id. at 819. The agency

thus contended that the plaintiffs’ statute of limitations expired in 2013, six years after the agency issued

the regulation in 2007, making the plaintiffs’ 2014

suit untimely. Id. at 818.

The Sixth Circuit sided with the plaintiffs. “To file

a lawsuit under the Administrative Procedure Act,”

the court explained, the plaintiffs “must know or have

reason to know that the challenged agency action

caused them to suffer a ‘legal wrong’ or ‘adversely affected or aggrieved’ them ‘within the meaning of a relevant statute.’” Id. at 818 (quoting 5 U.S.C. §702). On

that question, the plaintiffs “could not have become

‘aggrieved’ by the invasion of [their] property right until they became property owners on the lake—until

they purchased the waterfront real estate in September 2010.” Id. at 819. Their statute of limitations thus

started running in 2010.

That holding did not excuse the plaintiffs from

“also plead[ing] final agency action, see 5 U.S.C. §704.”

13

Id. at 819. But pleading final agency action “is another

necessary, but by itself not a sufficient, ground for

stating a claim under the APA.” Id. In other words,

the APA imposes “two requirements” to state a claim:

a plaintiff must “plead[] final agency action and injury

to [the plaintiffs’] rights.” Id. at 818, 819. And in many

cases, “the right of action happen[s] to accrue at the

same time that the final agency action occurred, because the plaintiff either became aggrieved at that

time or had already been injured.” Id. at 819-20. “But

that is not the case when, as here, the party does not

suffer any injury until after the agency’s final action.”

Id. at 820. The agency’s contrary position—“that a

right of action under the APA accrues upon final

agency action regardless of whether that action aggrieved the plaintiff”—“contradicts the text of the

statute and Supreme Court precedent to boot.” Id. at

819.

The Eighth Circuit’s decision below squarely

acknowledges and rejects the Sixth Circuit’s holding

“that a challenge to an agency action first accrued

upon injury to the plaintiff rather than publication of

the agency action.” App. 9 (citing Herr, 803 F.3d at

822). Instead, the Eighth Circuit held that “when

plaintiffs bring a facial challenge to a final agency action, the right of action accrues, and the limitations

period begins to run, upon publication of the regulation.” App. 11.

The Eighth Circuit’s holding mirrors holdings in

at least five other circuits. A leading early decision in

this line is the Fifth Circuit’s split panel opinion holding that “the limitations period begins to run when the

14

agency publishes the regulation in the Federal Register.” Dunn-McCampbell Royalty Int., Inc. v. NPS, 112

F.3d 1283, 1287 (5th Cir. 1997). There, mineral developers reacquired mineral interests on a tract of land

in 1989. Id. at 1285-86. Five years later, they challenged a 1979 National Park Service regulation that

affected those mineral interests. Id. at 1286. The majority held that the suit was untimely because the developers “failed to mount a facial challenge to the regulations within six years of their publication in 1979.”

Id. at 1287. The only recourse for the time-barred mineral developers, the panel said, was to wait until the

agency “applies [the] rule”—such as in an enforcement

action or the agency’s denial of a rulemaking petition

seeking to rescind the rule—which would “create[] a

new, six-year cause of action.” Id. (cleaned up).

Judge Jones dissented. She did not think “that the

statute of limitations ha[d] run against [the mineral

developers].” Id. at 1289 (Jones, J., dissenting). She

reasoned that the mineral developers “could not have

sued the Park Service before [they] began to reacquire

[their] leases in 1986-89.” Id. Thus, the “[l]imitations

on certain challenges to regulations could not begin to

run against [them] until that time.” Id. “The point

that divides the majority and me,” she explained, “is

their insistence that the agency’s lack of statutory authority could be raised by [the developer] only in defense against an agency enforcement action or if the

company petitions to rescind or amend the Park Service regulations and receives an adverse decision.” Id.

at 1290. Rather, if the mineral developers “ha[d] sued

15

within six years” of when they “effectively reacquir[ed] leases,” she would have “allow[ed] the suit to

go forward.” Id.

The Fourth Circuit has agreed with the Fifth Circuit that “‘the limitations period begins to run when

the agency publishes the regulation.’” Hire Order Ltd.

v. Marianos, 698 F.3d 168, 170 (4th Cir. 2012) (quoting Dunn-McCampbell, 112 F.3d 1287). There, the

court rejected two firearms dealers’ 2010 lawsuit challenging a 1969 ATF regulation that limited their ability to sell firearms out of state. Id. The court held that

the plaintiffs’ challenge was untimely even though

they did not become federally licensed firearms dealers until 2008: “The contention of Hire Order and

Privott that their cause of action did not accrue until

they became federally licensed firearms dealers in

2008 utterly fails.” Id.

The Ninth Circuit also has held that “a statute of

limitations may run against a plaintiff even if it is not

injured until more than six years after the relevant

agency action became final.” Cal. Sea Urchin Comm’n

v. Bean, 828 F.3d 1046, 1050 (9th Cir. 2016) (citing

Shiny Rock Mining Corp. v. United States, 906 F.2d

1362, 1363 (9th Cir. 1990)). In Shiny Rock, the plaintiff “contended that the statute of limitations period

should not begin to run until a plaintiff is injured and

acquires standing.” Bean, 828 F.3d at 1050 (citing

Shiny Rock, 906 F.2d at 1364-66). The Ninth Circuit

“disagreed, holding that the statute of limitations period runs from when the agency action becomes final

and is published in the Federal Register.” Id.

16

The D.C. Circuit has likewise held that “[t]he

right of action” under the APA “first accrues on the

date of the final agency action.” Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C. Cir. 1997). That court’s

precedent leaves no room for plaintiffs who begin suffering a harm only after that six-year period. For instance, in Harris v. FAA, the D.C. Circuit rejected a

2001 challenge to a 1993 FAA recruitment notice by

air-traffic controllers who were hired between 1995

and 1998. 353 F.3d 1006, 1010-12 (D.C. Cir. 2004). It

held that the limitations period for all air-traffic controllers began to run when the FAA issued the notice

in 1993—even for air traffic controllers who were not

hired until two and five years later. Id.; see Peri &

Sons Farms, Inc. v. Acosta, 374 F. Supp. 3d 63, 72 n.5

(D.D.C. 2019) (“[A]s the D.C. Circuit has made clear,

there is a ‘six-year window to directly challenge the

statutory authority’ of a regulation, which ‘accrues on

the date of the final agency action.’ … That a party did

not become subject to a regulatory scheme until a later

date does not, on its own, restart the statute of limitations clock for such challenges.”).

The Federal Circuit, in turn, has expressly stated

that its precedent “accords with Hire Order.” Odyssey

Logistics & Tech. Corp. v. Iancu, 959 F.3d 1104, 1111

(Fed. Cir. 2020) (citing Hyatt v. USPTO, 904 F.3d

1361, 1372 (Fed. Cir. 2018)); see id. (“Under Hire Order … ‘the limitations period begins to run when the

agency publishes the regulation.’”).

B. This square split cannot be explained as a distinction between facial and as-applied challenges.

Compare App. 10 (stating “other circuits distinguish

17

between as-applied and facial challenges under the

APA”), with App. 10 (stating “Herr did not distinguish

between as-applied and facial challenges”). To start,

the term “as-applied challenge” here should not be

confused with an as-applied remedy—that is, the

“breadth of remedy” issue this Court has discussed in

cases like Citizens United v. FEC, 558 U.S. 310 (2010).

See, e.g., id. at 330 (discussing facial and as-applied

remedies). Rather, in this context, the term refers to

the unobjectionable practice of allowing a party to

challenge a rule’s legality after the limitations period

has admittedly run—but as a defense if an agency

tries to enforce the allegedly illegal rule against the

party, or if an agency denies a petition to reconsider a

rule. See, e.g., PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc., 139 S.Ct. 2051, 2059 (2019) (Kavanaugh, J., concurring in the judgment) (noting that

“a party traditionally has been able to raise an as-applied challenge to an agency’s interpretation of a statute in an enforcement proceeding”); CREW v. FEC,

971 F.3d 340, 348 (D.C. Cir. 2020) (“‘[T]hose affected’

when an agency ‘seeks to apply [a] rule’ after the statute of limitations has passed ‘may challenge that application on the grounds that it conflicts with the statute from which its authority derives.’” (emphasis

added)).

By definition, this “as-applied” exception—

whether called an as-applied exception, an as-applied

challenge, or an enforcement exception2—becomes

2 The D.C. Circuit calls this “the Weaver exception.” CREW,

971 F.3d at 348 (discussing Weaver v. FMCSA, 744 F.3d 142, 145

(D.C. Cir. 2014)).

18

relevant only after the limitations period has expired.

It does not answer when the statute of limitations

starts running in the first place.

Herr itself acknowledged the as-applied exception’s role in an APA statute-of-limitations inquiry:

“Regulated parties may always assail a regulation as

exceeding the agency’s statutory authority” as a defense “in enforcement proceedings against them.” 803

F.3d at 821. In addition, “[r]egulated parties may always petition an agency to reconsider a longstanding

rule and then appeal the denial of that petition (as the

denial counts as final agency action).” Id. at 822.

And while acknowledging this exception, Herr further confirms that its holding does not rest on it. Rather, Herr “adds” to this as-applied “regime”: “When a

party first becomes aggrieved by a regulation that exceeds an agency’s statutory authority more than six

years after the regulation was promulgated, that

party may challenge the regulation without waiting

for enforcement proceedings.” Herr, 803 F.3d at 822

(second emphasis added). In other words, Herr’s holding harmonizes prior caselaw about the as-applied exception with its main holding about when APA claims

accrue for parties first injured more than six years after an agency adopts a rule.

Those statements are fatal to any contention that

Herr’s holding about when APA claims accrue turns

on any facial-versus-as-applied distinction. It does

not, and the Eighth Circuit below recognized as much.

App. 10 (“Herr did not distinguish between as-applied

19

and facial challenges”).3 Rather, Herr turns on the

plain language of 28 U.S.C. §2401(a), 5 U.S.C. §702,

and this Court’s precedent. See Herr, 803 F.3d at 819

(requiring both “final agency action and an injury”).

Indeed, if the Herr plaintiffs had raised their APA

claims as a defense to an as-applied enforcement action after the statute of limitations had expired, the

Sixth Circuit would not have needed to analyze when

their APA claim first accrued. But it did—and the

Sixth Circuit meticulously clarified that “§2401(a)’s

six-year clock starts ticking” only if a final agency action “invades a party’s legally protected interest.” Id.

at 818-19.

In short, there is no basis to explain away this

split as a purported distinction between facial and asapplied challenges. The Sixth Circuit in Herr didn’t

apply the as-applied exception because it didn’t need

to. And if Corner Post had brought its claims in the

Sixth Circuit, they would have been timely under

Herr.

***

The decision below deepens to 6-1 a square,

acknowledged circuit split about when an APA claim

3 The Second Circuit has also recognized that the Sixth Cir-

cuit’s rule does not hinge on a facial-versus-as-applied distinction. That court noted that Herr “offered qualifications to the

general rule” for facial challenges by “delaying accrual when the

plaintiff ‘does not suffer any injury until after the agency’s final

action.” DeSuze v. Ammon, 990 F.3d 264, 270 n.7 (2d Cir. 2021)

(quoting Herr, 803 F.3d at 820-22).

20

“first accrues” under §2401(a). This entrenched split

merits plenary review.

II. The majority rule contradicts this Court’s

precedent.

The majority rule that the Eighth Circuit adopted

below also “contradicts … Supreme Court precedent

to boot.” Herr, 803 F.3d at 819.

This Court has held that a “limitations period

commences when the plaintiff has ‘a complete and

present cause of action.’” Ferbar, 522 U.S. at 201; see

also Rotkiske v. Klemm, 140 S.Ct. 355, 360 (2019). And

“a cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can

file suit and obtain relief.” Ferbar, 522 U.S. at 201.

An APA plaintiff who has not been harmed by

agency action cannot “file suit and obtain relief.” Id.

That’s because this Court has “interpreted §702 as requiring litigants to show, at the outset of the case, that

he is injured in fact by the agency action.” Newport

News, 514 U.S. at 127; see also Lujan, 497 U.S. at 883,

885 (“The burden is on the party seeking review under

§702 to set forth specific facts … showing that he satisfied [§702’s] terms.”). Thus, to state a claim under

the APA, the plaintiff must suffer legal wrong or be

adversely affected or aggrieved by a final agency action. 5 U.S.C. §702.

The majority rule contradicts those cases. The

Eighth Circuit now holds that for APA claimants, “the

right of action accrues, and the limitations period begins to run, upon publication of the regulation.” App.

21

7. But under this Court’s correct interpretation of the

APA, “§702 … require[s] a litigant to show, at the outset of the case, that he is injured in fact by agency action.” Newport News, 514 U.S. at 127; see also Herr,

803 F.3d at 819 (“[O]nly ‘a person suffering legal

wrong because of agency action … is entitled to judicial review thereof.’” (quoting 5 U.S.C. §702)). “If a

party cannot plead a ‘legal wrong’ or an adverse effect,’ it has no right of action.” Herr 803 F.3d at 819

(cleaned up) (citing Match–E–Be–Nash–She–Wish

Band of Pottawatomi Indians v. Patchak, 567 U.S.

209, 224 (2012)). And because an uninjured party’s

APA claim has not accrued, the statute of limitations

cannot begin to run. Id. Yet the majority rule still

starts the statute of limitations for those plaintiffs

even though they do not have an APA right of action.

That cannot be squared with the Court’s precedent.

III. The Eighth Circuit’s decision is wrong.

A. The majority rule effectively reads §702

out of the APA.

The majority rule, adopted in the decision below,

reads §702’s injury-or-aggrievement requirement out

of the statute. That requirement is indispensable to

answering the limitations-period question because

under 28 U.S.C. §2401(a), APA claims must be “filed

within six years after the right of action first accrues.”

And §702 makes clear when a right of action “first accrues”: “A person suffering legal wrong because of an

agency action, or adversely affected or aggrieved by

agency action within the meaning of the relevant statute, is entitled to judicial review thereof.” 5 U.S.C.

§702 (emphasis added). Section 702’s import is self-

22

evident: A plaintiff bringing an APA claim becomes

“entitled to judicial review” when he “suffer[s] legal

wrong because of agency action” or is “adversely affected or aggrieved by agency action.” The plaintiff

has six years from that date to sue.

The Sixth Circuit recognizes this straightforward

reading. “The limitations period in §2401(a) begins to

run when a party’s ‘right of action first accrues’—‘as

soon as (but not before) the person challenging the

agency action can institute and maintain a suit in

court.’” Herr, 803 F.3d at 818. That “comports with

the general rule that ‘a statute of limitations begins to

run … when the plaintiff can file suit and obtain relief.’” Id. (quoting Heimeshoff v. Hartford Life & Accident Ins. Co., 574 U.S. 99, 105 (2013)). For lawsuits

under the APA, that happens when the agency action

“invades a party’s legally protected interest.” Id. at

819. A rule that starts the statute of limitations before

the plaintiff is injured “contradicts the text of the statute” because “[i]f a party cannot plead a ‘legal wrong’

or an ‘adverse effect,’ it has no right of action.’” Id.

(cleaned up).

The Eighth Circuit, in contrast, did not analyze

§702’s text, or acknowledge how §702 interacts with

§2401(a)’s accrual rule. See App. 6-12. Instead, it

pointed to other circuits’ cases holding that the statute of limitations begins to run when the regulation is

issued and adopted that position as its own. See App.

7-9, 10-11 (collecting cases). The Eighth Circuit thus

perpetuated the same analytical failure apparent in

all the other majority-side circuits. See, e.g., Hire Order, 698 F.3d at 170 (quoting Dunn-McCampbell, 112

23

F.3d at 1287). In fact, Corner Post has not found any

circuit opinion adopting the majority rule that meaningfully engages the statutes’ text.

Those circuits’ failure to abide the text has led

them to effectively convert §2401(a) from a statute of

limitations into a statute of repose. It is true that

“[s]tatutes of limitations and statutes of repose both

are mechanisms used to limit the temporal extent or

duration for liability.” CTS Corp. v. Waldburger, 573

U.S. 1, 7 (2014). “But the time periods specified are

measured from different points, and the statutes seek

to attain different purposes and objectives.” Id. A statute of limitations “establish[es] a time limit for suing

in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Statute of Limitations, Black’s Law Dictionary

(11th ed. 2019). In contrast, a statute of repose “bar[s]

any suit that is brought after a specified time since

the defendant acted … even if this period ends before

the plaintiff has suffered a resulting injury.” Statute

of Repose, Black’s Lack Dictionary (11th ed. 2019).

Congress “knows exactly how to specify” whether

it wants a statute of limitations or a statute of repose.

Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1617 (2018);

see also Cal. Pub. Emps. Ret. Sys. v. ANZ Sec., Inc.,

137 S.Ct. 2042, 2049-50 (2017) (differentiating between “accrual”-based statutes of limitations from

“last culpable act”-based statutes of repose). The majority rule disobeys Congress’s command by treating

§2401(a), an accrual-based statute of limitations, like

a statute of repose.

24

This error is all the more confounding because

Congress also knows how to specify that a filing deadline runs from the date of final agency action. In fact,

Congress has specifically done so in various contexts.

Consider the Hobbs Act, which “force[s] parties who

want to challenge agency orders via facial, pre-enforcement challenges to do so promptly and to do so in

a court of appeals.” PDR Network, 139 S.Ct. at 2059

(Kavanaugh, J., concurring in the judgment). Under

the Hobbs Act, plaintiffs must seek review of agency

orders “within 60 days after its entry.” 28 U.S.C.

§2344. Or consider the OSH Act’s judicial-review provision for emergency temporary standards. See, e.g.,

NFIB v. OSHA, 142 S.Ct. 661 (2022). Understandably,

Congress wanted emergency measures to be adjudicated quickly and required lawsuits to be filed “prior

to the sixtieth day” after an ETS is “promulgated.” 29

U.S.C. §655(f). Or consider the Clean Water Act. Certain challenges against EPA’s actions subject to the

Clean Water Act’s judicial-review provision “must be

filed within 120 days after the date of the challenged

action.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S.Ct.

617, 626 (2018) (citing 33 U.S.C. §1369(b)(1)). Or consider a whole host of similar time restrictions that run

from final agency action.4

4 Compare 28 U.S.C. §2401(a) (time runs “after the right of

action first accrues”), with 16 U.S.C. §7804(d)(1) (time runs after

the regulation is “published in the Federal Register”); 12 U.S.C.

§1848 (time runs “after the entry of [agency’s] order”); 15 U.S.C.

§80b-13(a) (similar); 21 U.S.C. §348(g)(1) (similar); 39 U.S.C.

§3663 (similar); 49 U.S.C. §30161(a) (similar); 26 U.S.C. §9041(a)

(similar).

25

But for APA challenges, Congress eschewed a repose period that runs from final agency action and instead imposed an accrual-based statute of limitations.

28 U.S.C. §2401(a). Congress’s decision to start the

clock from accrual—rather than upon final agency action—is significant. See Nat’l Ass’n of Mfrs., 138 S.Ct.

at 626-27 (differentiating between Clean Water Act

challenges that “must be filed within 120 days after

the date of the challenged action” and APA challenges

that “must be filed within six years after the claim accrues”).

Just recently, this Court confirmed the obvious

point that Congress’s decision to start the limitations

clock “‘from the date on which [a] violation occurs’”

means the clock does not run from “the date of discovery of such violation.” Rotkiske, 140 S.Ct. at 358, 361

(emphasis removed) (interpreting Fair Debt Collection Practices Act). Likewise here, because Congress

chose to start the six-year clock for APA challenges

“when the right of action first accrues,” 28 U.S.C.

§2401(a), it really means that it starts when the action

first accrues—not from the date a rule is issued.

***

The majority rule reads the accrual requirement

out of 28 U.S.C. §2401(a), and it reads 5 U.S.C. §702’s

injury requirement out of the APA. The Court should

grant plenary review and correct these errors.

26

B. The majority rule improperly insulates

agency actions from APA challenges.

The majority rule also improperly insulates

agency actions from judicial review. “The APA,” this

Court “ha[s] said, creates a ‘presumption favoring judicial review of administrative action.’” Sackett v.

EPA, 566 U.S. 120, 128 (2012) (quoting Block v. Cmty.

Nutrition Inst., 467 U.S. 340, 345 (1984)). That is because “‘legal lapses and violations occur,’” which has

led the Court to be “skeptical” of arguments that an

agency’s decision is “unreviewable.” Weyerhaeuser Co.

v. U.S. Fish & Wildlife Serv., 139 S.Ct. 361, 370

(2018).

As a result, the Court has repeatedly rejected

agencies’ machinations to evade judicial scrutiny of

their regulations. See, e.g., CIC Servs., LLC v. IRS,

141 S.Ct. 1582, 1588-92 (2021) (rejecting agency’s reliance on the Anti-Injunction Act to avoid judicial review); Dep’t of Homeland Sec. v. Regents of the Univ.

of Cal., 140 S.Ct. 1891, 1906 (2020) (prosecutorial discretion); Trump v. Hawaii, 138 S.Ct. 2392, 2407

(2018) (consular nonreviewability).

This review regime has become critical to safeguarding individual liberty from the administrative

state, which “wields vast power and touches almost

every aspect of life.” Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477, 499 (2010). In fact, this

Court has “insisted” that the availability of judicial review of executive action constitutes part of “‘[t]he very

essence of civil liberty.’” Bowen v. Mich. Academy of

Fam. Physicians, 476 U.S. 667, 670 (1986). That’s at

27

least partly why the APA “repudiat[es] … the principle that efficiency of regulation conquers all” and provides recourse for regulated parties before agencies

“drop the hammer.” Sackett, 566 U.S. at 127, 130-31

The

majority

rule—which

short-circuits

§2401(a)’s accrual-based statute of limitations—

thwarts those goals while indulging agencies’ tactics

to avoid judicial review. For example, agencies protest

that if courts actually apply 28 U.S.C. §2401(a) and 5

U.S.C. §702 as written, then “agency regulations will

never be safe from attack.” Herr, 803 F.3d at 821. That

complaint is both wrong and irrelevant.

To start, this “theory of repose”—that a “federal

regulation that makes it six years” somehow “enter[s]

a promised land free from legal challenge”—is a mirage. Id. at 821-22. “[A] regulation initially unauthorized by statute cannot become authorized by the mere

passage of time.” Dunn-McCampbell, 112 F.3d at 1290

(Jones, J., dissenting). In that sense, agency actions

are never safe from legal challenge because “[r]egulated parties may always assail a regulation as exceeding the agency’s statutory authority in enforcement proceedings against them.” Herr, 803 F.3d at

821; see also PDR Network, 139 S.Ct. at 2060 (Kavanaugh, J., concurring in judgment).

In any event, the APA was designed to foster expedient pre-enforcement review of questionable

agency action and to require lawful agency rulemaking. See Abbott Lab’ys v. Gardner, 387 U.S. 136, 14041 (1967). Under the majority rule, that promise is illusory for parties who first become subject to unlawful

28

agency action more than six years after it occurs.

Those parties face an impossible choice. They can

lower their heads and “incur the costs” of “compliance.” Abbott Lab’ys, 387 U.S. at 152. Or they can intentionally violate the regulation and invite an enforcement action where the regulation can be challenged. Id. at 152-53. But “[w]e normally do not require plaintiffs to ‘bet the farm’ … by taking the violative action’ before ‘testing the validity of the law.’”

Free Enter. Fund, 561 U.S. at 490.

All this is why the purported “enforcement” or “asapplied” distinction has always been understood as an

“exception” for “when an agency ‘seeks to apply’ [a]

rule after the statute of limitations has passed.”

CREW, 971 F.3d at 348 (emphasis added); Herr, 803

F.3d at 821-22 (noting the same). Regulated entities

who have been “adversely affected” or “aggrieved” by

an “agency action” for more than six years can challenge that agency action as a defense in an enforcement action. But that distinction does not answer the

initial question of when the limitations period starts

to run. On that question, only one rule gives effect to

§2401(a)’s and §702’s text and this Court’s cases:

“When a party first becomes aggrieved by a regulation

that exceeds an agency’s statutory authority more

than six years after the regulation was promulgated,

that party may challenge the regulation without waiting for enforcement proceedings.” Herr, 803 F.3d at

822.

The “enforcement” or “as-applied” exception is

also little help for parties dealing with regulations like

29

the one here—a rule that regulates a third party’s conduct in a way that harms the plaintiff. Such regulations can never be the source of an enforcement or asapplied action against harmed parties like Corner

Post. The Board does not “enforce” its 21-cent standard against Corner Post; it merely authorizes private

card issuers to charge Corner Post 21 cents per transaction. Regulations like this are common (they have

their own standing rules). See Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992) (outlining the standard

for when “a plaintiff’s asserted injury arises from the

government’s allegedly unlawful regulation (or lack of

regulation) of someone else”). But the majority rule effectively insulates them from challenge six years after

agencies issue them.

The majority rule also leads to absurd results.

This case is the classic example. The Board issued the

Rule in 2011, but Corner Post did not open its doors

and start paying regulated interchange fees until

2018. Yet according to the Eighth Circuit—and the

five circuits that have adopted the same approach—

Corner Post still should have challenged the Rule by

2017. See App. 11; see also Hire Order, 698 F.3d at 170

(rejecting challenge to 1969 ATF regulation by parties

who did not exist until 2010). How can an uninjured

(and non-existent) entity be an APA plaintiff?

Compounding the problem, the majority rule upsets Congress’s choice that APA review should be

broadly available and subject to a lengthy, accrualbased statute of limitations. “The length of a limitations period”—and when that limitations period

starts—“‘reflects a value judgment concerning the

30

point at which the interests in favor of protecting valid

claims are outweighed by the interests in prohibiting

the prosecution of stale ones.’” Rotkiske, 140 S.Ct. at

361. Sometimes, Congress wants agency challenges to

be subject to an accrual rule. See Nat’l Ass’n of Mfrs.,

138 S.Ct. at 626-27. And sometimes, Congress wants

to “force parties who want to challenge agency orders

… to do so promptly.” PDR Network, 139 S.Ct. at 2059

(Kavanaugh, J., concurring in judgment). As explained above, Congress knows how to specify what it

wants. Supra at 25. In the end, “[i]t is Congress, not

this Court, that balances those interests.” Rotkiske,

140 S.Ct. at 361.

Here, Congress subjected agency actions like the

Board’s 21-cent-fee standard to an accrual-based limitations period of six years. 28 U.S.C. §2401(a). The

majority rule voids that policy choice by starting the

clock upon final agency action before an APA claim

could even accrue.

Judge Jones explained the majority rule’s practical ramifications. See Dunn-McCampbell, 112 F.3d at

1290 (Jones, J., dissenting). It is “a waste of time to

require as a prerequisite to suit that [plaintiffs] manufacture ‘agency action’ by petitioning the [agency] to

revoke its regulations and suffering—at some time in

the possibly remote future—the inevitable rebuff.” Id.;

see also Wright & Miller, 33 Fed. Prac. & Proc. §8367

(2d ed.) (describing “extremely deferential” judicial review following denials of rulemaking petitions). Such

waiting games are especially devastating for small

31

businesses like Corner Post, which has to pay hundreds of thousands of dollars year after year in unlawful debit-card fees. App. 70.

In sum, Corner Post “seeks declaratory relief from

the regulation’s onerous effect,” and “it definitely alleges injury occasioned by agency action.” DunnMcCampbell, 112 F.3d at 1290 (Jones, J., dissenting).

The Court should grant the petition, reverse the judgment below, and “allow this suit to go forward.” Id.

CONCLUSION

This Court should grant the petition for a writ of

certiorari.

Tyler R. Green

Counsel of Record

CONSOVOY MCCARTHY PLLC

222 S. Main St., 5th Fl.

Salt Lake City, UT 84101

(703) 243-9423

tyler@consovoymccarthy.com

Bryan Weir

Frank H. Chang*

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

April 13, 2023

*Admitted in DC & PA only

Counsel for Petitioner