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 JOHN KENDRICK AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

_____________________

JONATHAN BERRY

Counsel of Record

R. TRENT MCCOTTER

MICHAEL BUSCHBACHER

JARED M. KELSON

BOYDEN GRAY & ASSOCIATES

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

berry@boydengrayassociates.com

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ........................... 1

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

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT .............................................................. 4

I.

II.

The Eighth Circuit’s Decision Conflicts with

Decades of this Court’s Precedents on the

Meaning of “Accrual.” ......................................... 4

A.

The Distinction Between Statutes of Repose

and Statutes of Limitations. ....................... 4

B.

This Court Has Correctly Read Section

2401(a) as a Statute of Limitations, Not a

Statute of Repose. ........................................ 7

The Policy Justifications in Support of the

Eighth Circuit’s Decision Also Conflict with

Decades of this Court’s Precedents. ................... 9

CONCLUSION ......................................................... 12

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) ........................................... 10

Bank of Hartford Cnty. v. Waterman,

26 Conn. 324 (1857) ............................................ 8

Bay Area Laundry & Dry Cleaning Pension

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

522 U.S. 192 ........................................................ 7

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986) ........................................... 10

Crown Coat Front Co. v. United States,

386 U.S. 503 (1967) ......................................... 3, 7

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ................................................. 6

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

112 F.3d 1283 (5th Cir. 1997) ............................. 2

Graham Cnty. Soil & Water Conservation

Dist. v. U.S. ex rel. Wilson,

545 U.S. 409 (2005) ............................................. 7

Herr v. U.S. Forest Service,

803 F.3d 809 (6th Cir. 2015) ....................... 2, 5, 7

iii

King v. Burwell,

576 U.S. 473 (2015) ............................................. 9

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ............................................. 2

Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015) ........................................... 10

Murray v. East India Co., (1865) 106 Eng.

Rep. 1167; 5 B. & Ald. 204 .................................. 5

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc.,

139 S. Ct. 2051 (2019) ............................. 6, 10, 11

Pa. Dep’t of Pub. Welfare v. U.S. Dep’t of

Health & Human Servs.,

101 F.3d 939 (3d Cir. 1996) ................................ 3

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) ............................................. 5

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ............................................... 7

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

Serv.,

139 S. Ct. 361 (2018) ..................................... 3, 10

Wind River Mining Corp. v. United States,

946 F.2d 710 (9th Cir. 1991) ......................... 9, 10

Statutes

5 U.S.C. § 702 ....................................................... 2, 9

iv

28 U.S.C. § 2401(a) ............................. 2, 3, 5, 7, 9, 10

33 U.S.C. § 1369(b) ................................................... 6

42 U.S.C. § 7607(b) ................................................... 6

Other Authorities

American Heritage Dictionary (5th ed. 2022) ......... 4

Black’s Law Dictionary (1st ed. 1891) ..................... 4

Black’s Law Dictionary (11th ed. 2019)............... 3, 4

H.G. Wood, A Treatise on the Limitation of

Actions at Law and in Equity (1883).................. 5

John Kelly, A Treatise on the Code

Limitations of Actions Under All State

Codes (1903) .................................................... 5, 6

John Kendrick, (Un)limiting Administrative

Review: Wind River, Section 2401(a), and

the Right to Challenge Federal Agencies,

103 Va. L. Rev. 157 (2017) .................. 1, 5, 6, 8, 9

1

INTEREST OF AMICUS CURIAE1

John Kendrick is the author of the only scholarly

article on Section 2401(a): (Un)limiting Administrative Review: Wind River, Section 2401(a), and the

Right to Challenge Federal Agencies, 103 Va. L. Rev.

157 (2017).

1 All parties have received timely notice of amicus’s intent to file

this brief. No party’s counsel authored this brief in whole or in

part, and no person or entity other than amicus or his counsel

made a monetary contribution intended to fund its preparation

or submission.

2

INTRODUCTION

The question presented here is straightforward:

When does a plaintiff’s “right of action” “first accrue[ ]” under 28 U.S.C. § 2401(a)? The answer is

equally simple: A right of action accrues as soon as

(but not before) the potential plaintiff has suffered a

legally cognizable injury and is entitled to seek relief

in court to redress that injury.

That is how every federal court has always interpreted Section 2401(a) in all contexts but one. Starting in the early nineties, several courts of appeals

have judicially rewritten this statute of limitations to

function like a statute of repose for certain APA challenges. For “facial challenges,” these courts hold that

the clock always starts on the date of final agency action because “liability is fixed, and plaintiffs have a

complete and present cause of action[,] upon publication of the final agency action,” even if the individual

plaintiff was not in fact injured or did not even exist

at that time. App. 12.

This interpretation is wrong: finality is only one

of the “two separate requirements” necessary to bring

an APA suit—the other being injury. Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 882–83 (1990). Treating

Section 2401(a) as a statute of repose “contradicts the

text of the statute and Supreme Court precedent to

boot.” Herr v. U.S. Forest Service, 803 F.3d 809, 819

3

(6th Cir. 2015) (Sutton, J.); see also Dunn-McCampbell Royalty Int., Inc. v. NPS, 112 F.3d 1283, 1290 (5th

Cir. 1997) (Jones, J., dissenting).2

Petitioner ably explains the well-developed circuit conflict and why this division calls out for this

Court’s review. Amicus agrees and offers this brief to

further explain why the majority rule adopted by the

Eighth Circuit conflicts with the text of the statute

and this Court’s precedents.

SUMMARY OF ARGUMENT

In addition to deepening a circuit split, the decision below disregards this Court’s decisions in at least

two respects.

1. The Eighth Circuit’s decision conflicts with this

Court’s consistent interpretation of the word “accrue”

in Section 2401(a) and many other statutes of limitations. From the time Section 2401(a)’s predecessor

was enacted in 1887 until today, the word “accrue” has

always meant “to come into existence as a claim or

right; to arise.” Accrue, Black’s Law Dictionary (11th

ed. 2019). A “claim or right to bring a civil action

against the United States” under Section 2401(a) thus

“accrues” at the point when it is legally actionable—

when it “matures”—and not before, as this Court explicitly held in Crown Coat Front Co. v. United States,

386 U.S. 503, 514 (1967).

2 The Third Circuit, in an opinion by then-Judge Alito, has like-

wise concluded that timeliness can be measured by considering

when an APA claim ripened. See Pa. Dep’t of Pub. Welfare v. U.S.

Dep’t of Health & Human Servs., 101 F.3d 939, 941–42 (3d Cir.

1996) (Alito, J.).

4

2. The Eighth Circuit’s decision also conflicts with

this Court’s precedents holding that the “Administrative Procedure Act creates a basic presumption of judicial review [for] one suffering legal wrong because of

agency action.” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018) (internal quotations omitted). The majority rule turns this

presumption on its head, making many regulations

completely immune from challenge without any textual justification.

ARGUMENT

I.

The Eighth Circuit’s Decision Conflicts with

Decades of this Court’s Precedents on the

Meaning of “Accrual.”

A. The Distinction Between Statutes of Repose and Statutes of Limitations.

There are two kinds of statutory time limitations

that exist in federal law: statutes of limitations and

statutes of repose. While both put time limits on litigation, they work in different ways and serve different

purposes.

1. Statutes of Limitations. A “statute of limitations” is a “statute establishing 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); accord Statute of Limitations, Black’s

Law Dictionary (1st ed. 1891). “Accrue” in turn means

“to come into existence as an enforceable claim or

right; to arise.” Accrue, Black’s Law Dictionary (11th

ed. 2019); accord Accrue, Black’s Law Dictionary (1st

5

ed. 1891). Rights “accrue” when they “come to someone or something as a gain, addition or increment” or

“come into existence as a claim that is legally enforceable.” Accrue, American Heritage Dictionary (5th ed.

2022). When a “right of action” accrues, it “becomes a

piece of intangible personal property” belonging to the

potential plaintiff. Herr, 803 F.3d at 821 (internal quotations omitted). Thus, by definition, accrual cannot

occur earlier than when the plaintiff “can file suit and

obtain relief.” Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663, 670 (2014).

Significantly, this same understanding of accrual

was well established when the original version of Section 2401(a) was enacted in 1887. See Kendrick, supra, at 180. As the leading treatise of the day

explained, “the uniform result of the cases decided on

the statute of limitations” was “that it does not deprive a party of his remedy, unless he has been guilty

of the laches or default contemplated therein.” H.G.

Wood, A Treatise on the Limitation of Actions at Law

and in Equity 11 (1883). “It cannot be said that a

cause of action exists unless there be also a person in

existence capable of suing.” Id. at 11 n.4 (quoting Murray v. East India Co. (1865) 106 Eng. Rep. 1167; 5 B.

& Ald. 204).3 Similarly, commentator John Kelly’s

3 Wood’s analysis was supported by a discussion of cases in nu-

merous different areas of law. Discussing contracts, Wood explained, “the statute of limitations only begins to run from the

time when the right of action accrues[,] [and] at the time when a

right of action accrues there must be in existence a party to sue

and be sued.” Wood, supra, at 254. And in torts, Wood noted that

“the statute usually commences to run from the date of the tort,”

but clarified that there has not been a tort until the plaintiff can

6

1903 Treatise on the Code Limitations of Actions Under All State Codes devoted an entire chapter to

“When the Cause of Action Accrues,” explaining that

a “cause of action accrues at the time the party is entitled to sue, demand relief, or make the entry.” Id. at

91. Consequently, “it is logical that the cause accrue

when the party has been ‘hurt’ and not when the other

party has violated the contract or the law, unless both

concur, because there are cases where the breach or

the wrong did not cause the ‘hurt.’” Id.

2. Statutes of Repose. While statutes of limitations have existed since the thirteenth century, statutes of repose only began to emerge in the 1970s—

nearly a century after the original version of Section

2401(a) was enacted. See Kendrick, supra, at 160–61,

192 & n.220. Unlike statutes of limitations, the time

limit imposed by a statute of repose “is measured not

from the date on which the claim accrues but instead

from the date of the last culpable act or omission of

the defendant.” CTS Corp. v. Waldburger, 573 U.S. 1,

8 (2014) (emphasis added).

Statutes of repose are commonly used to limit the

window for seeking pre-enforcement review of agency

action. These come in two varieties. Some purport to

forever foreclose challenge after the window for preenforcement review closes, e.g., 42 U.S.C. § 7607(b)

(Clean Air Act); 33 U.S.C. § 1369(b)(1) (Clean Water

legally sue. Id. at 362–64. “Every breach of duty does not create

an individual right of action.” Id. “Thus a breach of public duty

may not inflict any direct immediate wrong on an individual; but

neither his right to a remedy, nor his liability to be precluded by

time from its prosecution, will commence till he has suffered

some actual inconvenience.” Id.

7

Act), while others, such as the Hobbs Act, “are silent

on the question whether a party may argue against

the agency’s legal interpretation in subsequent enforcement proceedings,” PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051, 2059–

60 (2019) (Kavanaugh, J., concurring in the judgment).

B. This Court Has Correctly Read Section

2401(a) as a Statute of Limitations, Not a

Statute of Repose.

Section 2401(a) expressly ties its time limitation

to the point at which the plaintiff’s “right of action

first accrues.” This Court has interpreted this

according to its plain meaning: a “claim or right to

bring a civil action against the United States” under

Section 2401(a) accrues at the point when it becomes

legally actionable, when it “matures.” Crown Coat

Front Co., 386 U.S. at 514; see also Graham Cnty. Soil

& Water Conservation Dist. v. U.S. ex rel. Wilson, 545

U.S. 409, 418 (2005) (“We have repeatedly recognized

that Congress legislates against the ‘standard rule

that the limitations period commences when the

plaintiff has a complete and present cause of action.’”)

(quoting Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201

(1997)); TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001)

(Scalia, J., concurring in judgment) (“Absent other

indication, a statute of limitations begins to run at the

time the plaintiff has the right to apply to the court

for relief.” (cleaned up)).

Nothing in this Court’s precedents or the text of

Section 2401(a) justifies a different outcome in the

8

context of “facial” APA challenges. And, perhaps unsurprisingly, the Eighth’s Circuit’s decision did not

make any arguments on this score beyond observing

that the Sixth Circuit’s textual analysis in Herr “did

not distinguish between as-applied and facial challenges.” App. 10. Of course, Section 2401(a) does “not

distinguish between as-applied and facial challenges,”

either.

Nor can any historical justification be found. As

noted above, “accrue” has had the same meaning since

at least 1887. And while there was no late nineteenth

century “cause of action like that currently contained

in the APA, there were various claims that could be

raised against local government officials for violation

of their public duties.” Kendrick, supra, at 185.

The Connecticut Supreme Court’s decision in

Bank of Hartford County v. Waterman is emblematic.

That case arose after a bank had sued a debtor and

asked the sheriff to attach his property at the outset

to ensure that it would still be there when the bank

obtained a final judgment. 26 Conn. 324, 324–325

(1857). Several years later the bank won, but to its

surprise the sheriff had attached the wrong property,

and there was nothing left to satisfy the bank’s judgment. Id. at 325–326. The bank then sued the sheriff,

who raised a statute of limitations as a defense, arguing that the bank’s claim against him accrued when

he made the error over two years earlier. Id.

The court rejected this. While “[t]he duty violated

is primarily a duty to the public [and] the violation is

therefore unlawful,” it is capable of redress by an individual only “when its consequences are the invasion

of an individual right, (and then only,) it becomes a

9

proper subject of redress by him.” Id. at 336. When

“the party is enabled for the first time to ascertain or

appreciate the fact of the injury” then only does a “legal wrong exist[ ].” Id. at 331. It is at that point “when

the statute of limitations shall commence to run. Authorities can hardly strengthen a proposition so manifestly just. If we are wrong, some strictly legal

injuries might never for a moment be capable of redress.” Id. at 331–332.

This is just as true today. And the analogy to “officer suits” and APA actions is plain. Under the APA,

a plaintiff may challenge final agency action only

when the plaintiff has “suffer[ed] [a] legal wrong because of [that] agency action, or [is] adversely affected

or aggrieved by [the] agency action within the meaning of a relevant statute.” 5. U.S.C. § 702.

II. The Policy Justifications in Support of the

Eighth Circuit’s Decision Also Conflict with

Decades of this Court’s Precedents.

This Court has explained that “[i]f the statutory

language is plain, we must enforce it according to its

terms.” King v. Burwell, 576 U.S. 473, 486 (2015). As

noted above, the text of Section 2401(a) is unambiguous, and this Court has uniformly adhered to this

meaning; consequently, policy concerns should not

matter at all. What makes the majority rule at issue

here especially pernicious is that its central policy justification for departing from the text of Section

2401(a) is that judicial review would otherwise be too

accessible—exactly the opposite of the APA’s “basic

presumption” that affirmative review is available.

10

While the Eighth Circuit’s opinion below doesn’t

explicitly offer any policy rationale, it relies on a long

line of cases which appear to spring from the policybased holding of Wind River Mining Corp. v. United

States, 946 F.2d 710 (9th Cir. 1991). See App. 10–11;

see also Kendrick, supra, at 170–79. There, the Ninth

Circuit concluded that starting the clock at final

agency action for APA challenges alleging “policybased” errors, for example, “would make the most

sense” because “grounds for such challenges will usually be apparent to any interested citizen within a sixyear period following promulgation of the decision.”

Wind River, 946 F.2d at 715. The court gave no textual

defense of this position, but instead mused that this

would “strike[ ] the correct balance between the government’s interest in finality and a challenger’s interest in contesting an agency’s alleged overreaching.”

Id. The Court didn’t try to hide the ball: “The government’s interest in finality outweighs a late-comer’s desire to protest the agency’s action as a matter of

policy.” Id. In other words, according to Wind River,

adhering to the text of Section 2401(a) would allow for

more judicial review than the court thought wise or

presumed Congress had intended.

This gets things exactly backwards. Even if policy

concerns could justify ignoring the text, this Court has

long held that there is a “‘strong presumption’” favoring judicial review of administrative action. Mach

Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (quoting Bowen v. Mich. Acad. of Family Physicians, 476

U.S. 667, 670 (1986)); see also Weyerhaeuser Co., 139

S. Ct. at 370 (“The Administrative Procedure Act creates a basic presumption of judicial review [for] one

11

‘suffering legal wrong because of agency action.’”); Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967)

(“[J]udicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of

Congress.”).

Cutting off pre-enforcement review in this context turns this presumption on its head, making many

regulations more difficult to challenge than the statutes that authorized those regulations in the first

place. This isn’t even “deference,” it’s judicial “abdication.” PDR Network, 139 S. Ct. at 2066 (Kavanaugh,

J, concurring).

This case is a remarkable example of just that

kind of passivity. The regulation at issue indisputably

harms Petitioner, but—because Petitioner is not directly regulated by the challenged rule—it does not

even have the opportunity to raise invalidity as a defense in an enforcement action. When Congress has

wanted to impose such a severe rule, it has said so explicitly. It did not do so here, and the decision below

thus conflicts with the APA’s strong presumption of

affirmative judicial review.

12

CONCLUSION

The judgment of the court of appeals should be

reversed.

May 17, 2023

Respectfully submitted,

JONATHAN BERRY

Counsel of Record

R. TRENT MCCOTTER

MICHAEL BUSCHBACHER

JARED M. KELSON

BOYDEN GRAY & ASSOCIATES

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

berry@boydengrayassociates.com