Amicus Curiae Brief — Corner Post, Inc., Petitioner v. Board of Governors of the Federal Reserve System

No. 22-1008

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

————

BRIEF OF THE NATIONAL FEDERATION OF

INDEPENDENT BUSINESS SMALL BUSINESS

LEGAL CENTER, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

————

ELIZABETH GAUDIO MILITO

Counsel of Record

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th Street, NW

Ste. 1001

Washington, DC 20004

(202) 406-4443

elizabeth.milito@nfib.org

rob.smith@nfib.org

Counsel for Amicus

NFIB Small Business

Legal Center, Inc.

May 17, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTEREST OF AMICUS CURIAE .....................

1

INTRODUCTION AND

SUMMARY OF ARGUMENT .........................

1

ARGUMENT ........................................................

3

I.

The Majority Rule is Egregiously Wrong,

Leaving Small Businesses in a No-Win

Situation ....................................................

3

A. The Majority Rule is Illogical—a NonExistent Entity Cannot Have Article

III Standing, and Thus, Does Not

Have a “Complete and Present Cause

of Action.”..............................................

4

B. The Majority of Circuits Considering

the Question Presented Erroneously

Conflate Injury and Final Agency

Action....................................................

8

The Majority Rule Disincentivizes Entrepreneurship and Imposes Significant

Financial Burdens on Small Businesses..

11

CONCLUSION ....................................................

15

II.

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Bay Area Laundry & Dry Cleaning Pension

Tr. Fund. v. Ferbar Corp. of Cal.,

522 U.S. 192 (1997) ...................................

5, 8

City of Arlington v. FCC,

569 U.S. 290 (2013).......................................

11

Clapper v. Amnesty Int’l,

568 U.S. 398 (2013) ...................................

7

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

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

3

Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Cir. 2015) ..................... 9, 10

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ...............................

11

Lujan v. Defenders of Wildlife,

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

4, 7

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 872 (1990) ................................... 9, 10

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .....................................

7

Rawlings v. Ray,

312 U.S. 96 (1941) .....................................

5

Sackett v. EPA,

566 U.S. 120 (2012) ...................................

9

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ...............................

4, 7

Wind River Mining Corp. v. United States,

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

3

iii

TABLE OF AUTHORITIES—Continued

CONSTITUTION

Page(s)

U.S. Const. art. III................................ 2, 4, 5, 7, 8

U.S. Const. art. III, § 2, cl. 1 ........................

4

STATUTES AND REGULATIONS

5 U.S.C. § 702 .............................................. 2, 8-10

5 U.S.C. § 704 ...............................................

2, 9

Debit Card Interchange Fees and

Routing Rule, 76 Fed. Reg. 43395

(July 20, 2011)........................... 3, 6-8, 10, 12-14

12 C.F.R. 235.3(a) .........................................

13

12 C.F.R. 235.3(b) .........................................

13

OTHER AUTHORITIES

AnnaMaria Andriotis, Another Challenge for

Small Businesses: Higher Card Fees Could

Be on the Way, Wall St. J. (Apr. 9, 2020

5:30am), https://on.wsj.com/3p3Eu2C ......

14

Disney History, https://bit.ly/3LThZ9K (last

visited May 15, 2023) .................................

12

Kristina Partsinevelos, et al., How small

businesses are fighting inflated credit

card swipe fees, CNBC (Feb. 9, 2023

11:14am), https://cnb.cx/42ih9IM ............. 13-14

Luke Goldstein, Small Businesses Rise to

Fight Wall Street, The Am. Prospect (Feb.

7, 2023), https://bit.ly/3NBGfOF ..............

14

Magna Carta (1215) .....................................

1

iv

TABLE OF AUTHORITIES—Continued

Page(s)

NFIB Rsch. Ctr., Small Business Problems

& Priorities (2020), https://bit.ly/44np6Oz ... 11-12

Press Release, Merchants Payments

Coalition, Merchants Call for Action as

Swipe Fees Rise Again (Mar. 21, 2023),

https://bit.ly/3Vwhx 4s ..............................

13

Swipe Fees, National Retail Federation,

https://bit.ly/3HCwsnE (last visited May

15, 2023) ........................................................

13

INTEREST OF AMICUS CURIAE1

The National Federation of Independent Business

Small Business Legal Center, Inc. (NFIB Legal Center)

is a nonprofit, public interest law firm established

to provide legal resources and be the voice for small

businesses in the nation’s courts through representation on issues of public interest affecting small

businesses. It is an affiliate of the National Federation

of Independent Business, Inc. (NFIB), which is the

nation’s leading small business association. NFIB’s

mission is to promote and protect the right of its

members to own, operate, and grow their businesses.

NFIB represents, in Washington, D.C., and all 50 state

capitals, the interests of its members.

Amicus takes interest in this case because the legal

and practical implications of the Eighth Circuit’s decision, and those circuits adopting the same analysis,

are significant and detrimental for small businesses.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“To no one will we sell, to no one deny or delay right

or justice.” – Magna Carta (1215)

Regrettably, numerous federal appellate courts have

fashioned a rule of law, the “majority rule,” which

makes denying justice on procedural grounds a

routine practice. Entrepreneurs and new businesses

1

Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or

in part and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

Under Supreme Court Rule 37.2(a), amicus curiae notified

counsel for both parties of its intent to file this brief at least 10

days prior to the due date for the brief.

2

are denied the ability to challenge agency regulations

more than six years old, even if the rule first started

affecting them today. Justice continuously and perpetually eludes them.

The majority rule holds that the six-year statute of

limitations for challenging agency rules under the

Administrative Procedure Act (APA) begins to run

against all people and entities everywhere at the exact

same moment—the instant the rule is promulgated.

By doing so, the majority rule ignores Article III standing and this Court’s precedent on when a “complete

and present cause of action” exists to begin a statute

of limitations. It also conflates the two distinct

requirements to bring an APA challenge: 1) “suffering

legal wrong” or being “adversely affected or aggrieved

by agency action”; and 2) that the agency action be

final. See 5 U.S.C § 702; 5 U.S.C. § 704.

In at least 24 states and the District of Columbia

(those comprising the jurisdiction of the Fourth, Fifth,

Eighth, Ninth, and D.C. Circuits) the majority rule

operates to deny justice to new small businesses by

preventing them from challenging agency rules six

years or older, regardless of when the new business

was first subject to a regulation’s reach. Put differently, the majority rule immunizes government agency

rules from constitutional or statutory challenges in

certain contexts. The Sixth Circuit has correctly

rebuffed the majority rule.

The legal and practical consequences of the majority

rule are immense. Legally, the majority rule works to

prevent new businesses from vindicating their rights

in court. Practically, it disincentivizes entrepreneurship

and permits significant financial burdens on small

businesses.

3

Here, the Federal Reserve Board’s (Board) Debit

Card Interchange Fees and Routing Rule, 76 Fed. Reg.

43395 (July 20, 2011) (hereinafter “debit card-fee

rule”) imposes significant fees on small businesses,

like Corner Post, when customers use debit cards.

When Corner Post tried to challenge the debit card-fee

rule within six years of first having to pay the fees

imposed by the rule, the lower courts prevented it from

doing so based on the erroneous majority rule. Thus,

only this Court can correct the majority rule and

provide relief for Corner Post, entrepreneurs, and the

business community.

Amicus urges this Court to grant the Petition.

ARGUMENT

I. The Majority Rule is Egregiously Wrong,

Leaving Small Businesses in a No-Win

Situation.

The majority rule insulates federal agencies from

challenges to the validity of a regulation merely due to

the passage of time. See e.g., Wind River Mining Corp.

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

(“The government’s interest in finality outweighs a

late-comer’s desire to protest the agency’s action[.]”).

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

112 F.3d 1283, 1290 (5th Cir. 1997) (Jones, J. dissenting) (“[A] regulation initially unauthorized by statute

cannot become authorized by the mere passage of time.”).

The Ninth Circuit, and others adopting the majority

rule, punish independent businesses simply based on

their date of first operation. Indeed, a “late-comer’s

desire” to challenge agency action may more appropriately be deemed a new-comer’s vindication of legal rights.

4

The majority rule wrongfully runs the statute of

limitations for APA claims from the date of final

agency action. Doing so ignores the role of Article III

standing for a statute of limitations to commence and

conflates the two distinct requirements for an APA

action, that a challenger prove: 1) the suffering of a

legal wrong, or adverse effect or aggrievement; and 2)

a final agency action.

These legal errors of the majority rule force new

businesses into a Hobson’s choice. They must either:

1) challenge an agency action as a prospective business

owner and lose based on lack of Article III standing;

2) challenge an agency action as a new business and

lose based on the APA statute of limitations; or 3) give

up the right to hold government agencies accountable

for unlawful regulations.

A. The Majority Rule is Illogical—a NonExistent Entity Cannot Have Article III

Standing, and Thus, Does Not Have a

“Complete and Present Cause of Action.”

To begin, a review of basic principles. Federal court

jurisdiction extends only to “Cases” or “Controversies.”

U.S. Const. art. III, § 2, cl. 1. Standing is a guardrail

to ensure courts stay within Article III’s subjectmatter boundaries. See e.g. TransUnion LLC v. Ramirez,

141 S. Ct. 2190, 2203 (2021); Lujan v. Defenders of

Wildlife, 504 U.S. 555, 559-60 (1992). To have standing, a plaintiff must demonstrate: 1) an injury in

fact that is both (a) “concrete and particularized”, and

(b) ‘‘‘actual or imminent, not ‘conjectural’ or ‘hypothetical’”’ Lujan, 504 U.S. at 560 (quoted source omitted);

2) the injury was caused by the Defendant’s conduct;

and 3) is redressable by a favorable decision. Id. at

560-61 (citations omitted).

5

Where a statute of limitations comes into play, “the

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) (quoting

Rawlings v. Ray, 312 U.S. 96, 98 (1941)). The phrase

“complete and present cause of action” refers to having

a valid lawsuit, not merely the filing of any lawsuit.

See Bay Area Laundry, 522 U.S. at 201 (“[A] cause

of action does not become ‘complete and present’ for

limitations purposes until the plaintiff can file suit

and obtain relief.” (emphasis added; quoted source

omitted)).

In Bay Area Laundry, this Court unanimously

rejected a similar proposition to the majority rule at

issue here:

The Court of Appeals held that the statute

of limitations on a pension plan’s action to

recover unpaid withdrawal liability runs from

the date the employer withdraws from the

plan. On that view, the limitations period

commences at a time when the plan could not

yet file suit. Such a result is inconsistent with

basic limitations principles, and we reject it.

A plan cannot maintain an action until the

employer misses a scheduled withdrawal

liability payment. The statute of limitations

does not begin to run until that time.

Bay Area Laundry, 552 U.S. at 200-01 (emphasis

added).

Putting these legal principles together, a plaintiff

must demonstrate an injury to have standing. Article

III requires standing to obtain federal judicial relief.

An ability to obtain relief is necessary for, by this

6

Court’s own words, a “complete and present cause of

action.” A “complete and present cause of action” must

exist for a statute of limitations to commence. Thus,

where there is no injury and standing, there is no

“complete and present cause of action” for a statute of

limitations to commence.

Logic, precedent, and these common-sense standing

principles should have decided this case. But instead,

the Eighth Circuit held that the statute of limitations

began to run in 2011 when the debit card-fee rule was

published, as opposed to when Petitioner first suffered

harm from the rule. In doing so, the Eighth Circuit

joined other federal appellate courts in holding that

the statute of limitations begins to run for APA challenges upon promulgation of agency rules. Pet. 11-16.

The majority rule violates the basic legal principles

mentioned above and this case perfectly demonstrates

how. Petitioner did not open its doors until 2018, seven

years after publication of the debit card-fee rule.

According to the majority rule, Petitioner would have

had to challenge the debit card-fee rule prior to its

existence as a business—and before its subjugation to

the rule—in order to comply with the statute of limitations. But it could not do so for obvious reasons—

standing. Petitioner suffered no personal “concrete

and particularized” and “actual or imminent” injury

prior to 2018 as a nonexistent business.

Consider the following two hypotheticals to demonstrate Petitioner’s lack of concrete harm under the

majority rule:

In the first, an existing small business is subject to

the Board’s debit card-fee rule in 2014. The company

sued, alleging that the Board exceeded its statutory

authority. In the second, an individual thinking about,

7

or planning to, one day start a business sued the Board

in 2014 challenging the debit card-fee rule.2

In the latter hypothetical, the individual suffered no

personal harm from the regulation. See TransUnion,

LLC, 141 S. Ct. at 2205 (using a similar set of hypotheticals to demonstrate why one person lacked concrete

harm for standing compared to another). For an APA

challenge, the majority rule requires Petitioner to

be the second hypothetical for statute of limitations

compliance, even though TransUnion makes clear the

second hypothetical plaintiff lacks standing.

Petitioner also would have failed the “particularized”

standing inquiry to challenge the debit card-fee rule in

the timeframe the majority rule requires, as there

would have been no personal harm prior to business

existence. See Spokeo, Inc. v. Robins, 578 U.S. 330,

339-40 (2016) (discussing that “particularized” requires

a personal and distinct injury to the plaintiff).

Nor could Petitioner satisfy the “actual or imminent”

injury requirement for Article III standing prior to

opening its business in 2018. Intentions or future

plans to engage in an activity, such as one day opening

a business that would be forced to pay debit card fees,

are not an actual injury. Lujan, 504 U.S. at 564 (holding no “actual or imminent” injury where plaintiffs

had “‘some day’ intentions—without any description of

concrete plans” to engage in conduct). Nor would an

“‘[a]llegation[] of possible future injury’” based on

opening a business be enough to satisfy the imminency

requirement. See Clapper v. Amnesty Int’l, 568 U.S.

398, 409 (2013) (quoted source omitted; emphasis in

2

For these hypotheticals, the year 2014 is only relevant to the

extent that both are clearly within six years of the debit card-fee

rule’s promulgation.

8

original) (no certainly impending injury based on

speculative fear of future harm).

Petitioner was not in existence until 2018 and did

not suffer an injury sufficient for standing by the debit

card-fee rule until then. Without an injury sufficient

for standing, Petitioner could not have filed suit and

obtained relief. With no ability to obtain relief within

six years of 2011, there was no “complete and present

cause of action.” Bay Area Laundry, 522 U.S. at 201.

Because there was no “complete and present cause of

action” until 2018, the statute of limitations could not

commence until then.

Bottom line, the Eighth Circuit’s decision below and

majority rule that the six-year limitations period

begins to run for APA claims upon publication of a

regulation requires many small businesses to do

something they cannot—sue for relief without Article

III standing. This Court should grant the Petition to

correct the majority rule and provide clarity for new

businesses seeking to enforce their legal rights.

B. The Majority of Circuits Considering

the Question Presented Erroneously

Conflate Injury and Final Agency Action.

An additional infirmity of the majority rule and

Eighth Circuit’s holding is that they have jumbled the

analysis for an APA challenge. The analysis should be

straightforward.

First, a person must have suffered an injury3 from

the agency’s action. 5 U.S.C. § 702 (“A person suffering

legal wrong because of agency action, or adversely

3

For conciseness, amicus uses the phrase “injury” in this

section as a shorthand for “suffering legal wrong” or “adversely

affected or aggrieved” as set forth in 5 U.S.C. § 702.

9

affected or aggrieved by agency action . . . is entitled

to judicial review thereof.”). Second, when challenging

under the general review provisions of the APA, the

challenged action must be a “final agency action.”

5 U.S.C. § 704; Sackett v. EPA, 566 U.S. 120, 125-26

(2012) (discussing that the APA’s judicial review

provision requires “final agency action”).

The majority rule, joined by the Eighth Circuit,

conflates these two distinct showings. See Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 872, 882-83 (1990) (distinguishing between the “two separate requirements”

for APA suits—agency action, including “final agency

action,” and suffering an injury). In essence, the federal

appellate courts adopting the majority rule have confused the “what” in the analysis—the injury from the

agency action—with the “when”—the final agency

action. While these two separate showings may be

satisfied at the same time, they need not be. Instead of

recognizing, as the Sixth Circuit did in Herr v. U.S.

Forest Serv., 803 F.3d 809 (6th Cir. 2015), that an

injury may occur upon final agency action, the majority

rule assumes that an injury always occurs upon a final

agency action. And that is where the majority rule

errs. See Pet. 11-16 (discussing the circuit split).

Only the Sixth Circuit has provided the correct

analysis that final agency action is a “necessary, but

not by itself a sufficient, ground for stating a claim

under the APA.” Herr, 803 F.3d at 819; see also Lujan,

497 U.S. at 883 (“Second, the party seeking review

under § 702 must show that he has ‘suffer[ed] legal

wrong’ because of the challenged agency action, or is

‘adversely affected or aggrieved’ by that action[.]”). As

Herr noted, a “right of action [may] happen[] to accrue

at the same time that final agency action occur[s]” but

“that is not the case when . . . the party does not

10

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

Id. at 819-20 (emphasis in original).

Here, the majority rule cannot work. Petitioner

suffered no injury when the Board published the debit

card-fee rule in 2011, because Petitioner did not exist

at that time and was not regulated by the rule at its

promulgation. See id. A rule cannot injure a person or

entity that is not under the rule’s dominion at promulgation. For example, courts would not permit a suit

to proceed from a person claiming injury under § 702

against the debit card-fee rule if that person does not

pay the debit card fee. Nor could a restaurant claim

injury under § 702 to challenge a Nuclear Regulatory

Commission rule on nuclear waste disposal.

By conflating the injury and final agency action

requirements for an APA claim, the majority rule

holds that a final agency action injures all people,

everywhere, at the exact same moment. Put in other

contexts, the majority rule is akin to saying all

baseball players are injured upon the first pitch,

instead of when hit by a pitch; the 24-second shot clock

in basketball runs against both teams, instead of just

the team with possession; or the statute of limitations

for a tort claim runs not from the commission of a tort,

but instead, from the moment the legislature passes

the law giving rise to the tort.

This Court’s review is necessary to correct the

jumbled analysis of the majority rule and reinforce

Lujan’s, 497 U.S. at 882-83, distinction between the

two separate requirements for APA claims.

11

II. The Majority Rule Disincentivizes Entrepreneurship and Imposes Significant

Financial Burdens on Small Businesses.

To reiterate, the majority rule adopted by the

Eighth Circuit below holds that the six-year statute of

limitations for general APA claims runs for the entire

world from the moment of final agency action. Not only

is this rule legally questionable, but it comes with

colossal real-world consequences.

Today’s “‘administrative state with its reams of

regulations would leave [the Framers] rubbing their

eyes.’” City of Arlington v. FCC, 569 U.S. 290, 313

(2013) (Roberts, C.J., dissenting) (quoted source omitted).

The federal bureaucracy continues to grow, adding

dozens of new agencies in recent years, id., with a

Code of Federal Regulations spanning nearly 185,000

pages. Kisor v. Wilkie, 139 S. Ct. 2400, 2447 (2019)

(Gorsuch, J., concurring) (citations omitted).

The majority rule prevents businesses from challenging the validity of a crushing regulation if more

than six years passed between the final rule and

the opening of the business. Because of the majority

rule, a prospective small business owner must spend

days, weeks, or months scouring the Code of Federal

Regulations for all regulations that may apply to their

new business. Failing to do so could expose them to

unforeseen financial costs, like debit card fees. The

prospective business owner could hire consultants and

lawyers, but these professionals cost money, and a

prospective small business owner sits on limited

resources. Even for already-existing small businesses,

the “Cost of Outside Business Services,” such as

lawyers and consultants, ranks as a major concern and

a significant obstacle to their success. See NFIB Rsch.

12

Ctr., Small Business Problems & Priorities, at 10

(2020). https://bit.ly/44np6Oz.

This preliminary burden to opening a business will

disincentivize entrepreneurship. Many successful large

businesses start small, with the birth of a novel idea.

Imagine if Walt and Roy Disney had to comb through

over 150,000 pages to determine if a federal government regulation prohibited or burdened the making of

animations from a small office. See Disney History,

https://bit.ly/3LThZ9K (last visited May 15, 2023).

Would we have the multinational company employing

hundreds of thousands of employees that we know

today? Or what if today’s biggest tech companies that

were reportedly started in a home garage—Microsoft,

Apple, and Amazon—faced this preliminary burden

that the majority rule imposes on today’s tech startups?

It is impossible to know which idea currently floating

around in one’s mind could be the next Disney,

Microsoft, Apple, or Amazon, but won’t be because of

little-known regulatory hurdles. The everyday person

who starts a business doesn’t inspect the entire Code

of Federal Regulations before doing so. Nor should

they have to. In this way, the majority rule stifles

entrepreneurship.

In addition, the majority rule’s prohibition on challenges to the validity of a regulation beyond six years

from the date of final agency action forces new businesses to acquiesce to burdensome fees and regulations.

The Federal Reserve permits banks and card

networks to unreasonably profit from interchange fees

on the backs of small businesses and consumers. While

the debit card-fee rule limits the total fee issuers can

impose, the rule does not limit the profit issuers can

make when the average per-transaction cost falls

below the total fee limit. The rule only requires that

13

the amount of an interchange fee for debit transactions “be reasonable and proportional to the cost

incurred by the issuer with respect to the electronic

debit transaction.” 76 Fed. Reg. 43394, 43467 (codified

at 12 C.F.R. 235.3(a)). But then the rule defines

“reasonable and proportional” as “21 cents and[] 5

basis points multiplied by the value of the transaction”

regardless of the actual fee cost. Id. (codified at 12

C.F.R. 235.3(b)). Thus, whether the average pertransaction cost is 2 cents or 20 cents, banks can

charge small businesses the same amount in interchange fees, even though the rule itself says the fee

must be “proportional to the cost incurred[.]” Id.

(codified at 12 C.F.R. 235.3(a)). It strains credulity to

say that a fixed fee cap, which never adjusts based on

the actual average per-transaction cost, is proportional

to that actual cost incurred.

Card processing fees, such as the those imposed by

the debit card-fee rule, are a major financial concern

for small businesses. For some merchants, interchange

fees are the largest operating cost behind payroll. Pet.

App. 59. According to the National Retail Federation,

which tracks swipe fees, these costs eclipsed $160

billion in 2022. Swipe Fees, National Retail Federation,

https://bit.ly/3HCwsnE (last visited May 15, 2023). In

2022, the average household paid over $1,000 dollars in

swipe fees. Press Release, Merchants Payments Coalition, Merchants Call for Action as Swipe Fees Rise

Again (Mar. 21, 2023), https://bit.ly/3Vwhx4s. Worse

still, the problem keeps growing—the total amount of

swipe fees for debit cards rose by 6% last year. Id.

Consider Sol Dias, a Dallas-area ice cream shop. In

2022, Sol Dias paid $25,000 in swipe fees, and expects

to pay $30,000 in 2023. Kristina Partsinevelos, et al.,

How small businesses are fighting inflated credit card

14

swipe fees, CNBC (Feb. 9, 2023 11:14am), https://cnb.

cx/42ih9IM. One thousand miles away in Elkhart,

Indiana, Stephenson’s, a specialty garment store,

faces similar burdens from swipe fees. Stephenson’s

paid 40% more in swipe fees in 2022 than it did in

2020. Luke Goldstein, Small Businesses Rise to Fight

Wall Street, The Am. Prospect (Feb. 7, 2023), https://

bit.ly/3NBGfOF. Swipe fees are the second-largest cost

for Stephenson’s, beating out business utilities and

narrowly trailing labor costs. Id. Small businesses

providing life necessities like food or gas will pay even

greater amounts. Hub Convenience Stores, a small

business consisting of six gas stations, paid almost

$400,000 in swipe fees in 2019, representing over

2% of its total sales. AnnaMaria Andriotis, Another

Challenge for Small Businesses: Higher Card Fees

Could Be on the Way, Wall St. J. (Apr. 9, 2020 5:30am),

https://on.wsj.com/3p3Eu2C.

The debit card-fee rule’s burden on entrepreneurship

and significant financial costs for businesses further

warrant this Court’s review.

15

CONCLUSION

The Court should grant the Petition for a Writ of

Certiorari.

Respectfully submitted,

ELIZABETH GAUDIO MILITO

Counsel of Record

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th Street, NW

Ste. 1001

Washington, DC 20004

(202) 406-4443

elizabeth.milito@nfib.org

rob.smith@nfib.org

Counsel for Amicus

NFIB Small Business

Legal Center, Inc.

May 17, 2023