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 CATO INSTITUTE

AS AMICUS CURIAE SUPPORTING PETITIONER

_______________

THOMAS A. BERRY

ISAIAH MCKINNEY

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

JEREMY J. BROGGI

Counsel of Record

MICHAEL J. SHOWALTER

BOYD GARRIOTT

HANNAH BINGHAM

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

(202) 719-7000

JBroggi@wiley.law

Counsel for Amicus Curiae

QUESTION PRESENTED

In 1887, Congress established a six-year statute of

limitations for civil actions against the United States

that starts when “the right of action first accrues.”

28 U.S.C. § 2401(a). All agree that as originally

understood, a right of action first accrues when the

unlawful act injures the plaintiff.

Six decades later, the Administrative Procedure

Act (APA) established a right of action for persons

“suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action.”

5 U.S.C. § 702; see also id. § 704 (limiting the cause of

action to “final agency action”).

The question presented in the petition is whether

a plaintiff’s APA claim first accrues when an agency

issues a rule or when the rule first causes a plaintiff

to suffer a legal wrong. Pet. i. The answer to this

important question dividing the circuits turns on

whether the APA implicitly repeals Section 2401(a)’s

accrual rule with respect to certain claims of

administrative injury.

ii

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT .................................. 1

ARGUMENT ............................................................ 3

I.

WHEN AN APA RIGHT OF ACTION

ACCRUES IS AN IMPORTANT QUESTION

DIVIDING LOWER COURTS. .......................... 3

A. THE DECISION BELOW DISREGARDS

FUNDAMENTAL PRINCIPLES OF

STATUTORY INTERPRETATION. .......... 4

B. THE LOWER COURTS’ POLICY

ARGUMENTS ARE UNFOUNDED ....... 10

II. THE ADMINISTRATIVE STATE SHOULD

NOT BE PERMITTED TO ELUDE JUDICIAL

OVERSIGHT WHEN UNLAWFULLY

IMPOSING NEW INJURIES .......................... 14

CONCLUSION ....................................................... 20

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ................................................ 5

Alabama Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) .......................................... 15

Albernaz v. United States,

450 U.S. 333 (1981) ............................................ 2, 7

Auction Co. of Am. v. FDIC,

132 F.3d 746 (D.C. Cir. 1997) ................................ 4

Biden v. Nebraska,

143 S. Ct. 477 (2022) ............................................ 16

Bowen v. Michigan Acad. of Family

Physicians,

476 U.S. 667 (1986) .......................................... 5, 16

CIC Servs., LLC v. IRS,

141 S. Ct. 1582 (2021) .......................................... 17

City of Arlington, Tex. v. FCC,

569 U.S. 290 (2013) ........................................ 14, 15

Clark v. Martinez,

543 U.S. 371 (2005) ........................................ 13, 14

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ................................ 5

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) .................................................. 11

iv

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ...................................... 9, 10

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ........................................ 14, 17

George v. McDonough,

142 S. Ct. 1953 (2022) ............................................ 4

Guedes v. ATF,

140 S. Ct. 789 (2020) ............................................ 16

Harris v. FAA,

353 F.3d 1006 (D.C. Cir. 2004) .............................. 9

Hernandez v. Mesa,

140 S. Ct. 735 (2020) .............................................. 1

Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Cir. 2015) .......................... 10, 12

Jersey Heights Neighborhood Ass’n v.

Glendening,

174 F.3d 180 (4th Cir. 1999) .................................. 9

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................... 15, 16

Kremer v. Chem. Constr. Corp.,

456 U.S. 461 (1982) ............................................ 4, 6

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

572 U.S. 118 (2014) ................................................ 5

Marx v. Gen. Revenue Corp.,

568 U.S. 371 (2013) ................................................ 5

v

Nat’l Ass’n of Home Builders v. Defs. of

Wildlife,

551 U.S. 644 (2007) ................................................ 5

New Jersey v. New York,

523 U.S. 767 (1998) ................................................ 7

NFIB v. OSHA,

142 S. Ct. 661 (2022) ............................................ 16

Outdoor Amusement Bus. Ass’n, Inc. v.

DHS,

983 F.3d 671 (4th Cir. 2020) ................................ 18

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc.,

139 S. Ct. 2051 (2019) ...................................... 7, 12

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................................ 14

Preminger v. Sec’y of Veterans Affairs,

517 F.3d 1299 (Fed. Cir. 2008) ............................ 10

Ret. Sys. v. ANZ Sec., Inc.,

137 S. Ct. 2042 (2017) .......................................... 11

Rotkiske v. Klemm,

140 S. Ct. 355 (2019) .............................................. 9

Sackett v. EPA,

566 U.S. 120 (2012) .............................................. 17

Sekhar v. United States,

570 U.S. 729 (2013) ................................................ 7

vi

Shaughnessy v. Pedreiro,

349 U.S. 48 (1955) ................................................ 14

Spannaus v. DOJ,

824 F.2d 52 (D.C. Cir. 1987) .......................... 12, 13

Staples v. United States,

511 U.S. 600 (1994) ................................................ 7

Tilton v. SEC,

824 F.3d 276 (2d Cir. 2016) ................................. 18

Trafalgar Cap. Assocs., Inc. v. Cuomo,

159 F.3d 21 (1st Cir. 1998) .................................. 18

United States v. Madigan,

300 U.S. 500 (1937) ................................................ 4

United States v. Morton Salt Co.,

338 U.S. 632 (1950) .............................................. 14

United States v. Santos,

553 U.S. 507 (2008) .............................................. 13

Va. Office for Prot. & Advocacy v.

Stewart,

563 U.S. 247 (2011) .............................................. 12

W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) .................................................. 5

W. Virginia v. EPA,

142 S. Ct. 2587 (2022) .......................................... 16

Wilkie v. Robbins,

551 U.S. 537 (2007) .............................................. 18

vii

Wind River Mining Corp. v. United

States,

946 F.2d 710 (9th Cir. 1991) ................ 6, 10, 13, 19

Wong v. Doar,

571 F.3d 247 (2d Cir. 2009) ................................... 9

Yellow Freight Sys., Inc. v. Donnelly,

494 U.S. 820 (1990) ................................................ 9

Ex parte Young,

209 U.S. 123 (1908) .............................................. 17

Statutes

5 U.S.C. § 702 .............................................................. 7

5 U.S.C. § 704 .............................................................. 7

16 U.S.C. § 7804(d)(1) ................................................. 9

28 U.S.C. § 2401(a) ...................................................... 2

Act of June 25, 1948, ch. 646, 62 Stat.

869 (1948) ............................................................... 4

Legislative Materials

92 Cong. Rec. 2149 (1946) ......................................... 14

S. Rep. No. 79-752 (1945) .......................................... 14

viii

Administrative Materials

Luis A. Aguilar, Comm’r, SEC, A

Stronger Enforcement Program to

Enhance Investor Protection (Oct. 25,

2013) ..................................................................... 18

DOJ, Attorney General’s Manual on the

Administrative Procedure Act (1947) .................. 10

Comments of Andrew N. Vollmer on

Office of Mgmt. & Budget Request

for Information, OMB-2019-0006

(Mar. 9, 2020) ....................................................... 18

Other Authorities

Clyde Wayne Crews, Jr., How Many

Federal Agencies Exist?, Forbes (July

5, 2017, 4:03 PM) ................................................. 15

John Kendrick, (Un)limiting

Administrative Review: Wind River,

Section 2401(a), and the Right to

Challenge Federal Agencies, 103 Va.

L. Rev. 157 (2017) ............................................ 8, 13

Paul J. Larkin, Jr. & GianCarlo

Canaparo, Gunfight at the New Deal

Corral, 19 Geo. J.L. & Pub. Pol’y 477

(2021) .................................................................... 15

Susan C. Morse, Old Regs, 31 Geo.

Mason L. Rev. (forthcoming 2023) .................. 8, 10

INTEREST OF AMICUS CURIAE1

The Cato Institute (“Cato”) is a nonpartisan public

policy research foundation founded in 1977 and

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government that are the

foundation of liberty. Toward those ends, Cato

publishes books and studies, conducts conferences,

and produces the annual Cato Supreme Court Review.

This case interests Cato because the decision

below deprives persons newly injured by old agency

action of access to the federal courts in clear

contravention of the pertinent statutory text, and

thus allows unlawful agency action to evade judicial

correction. Cato respectfully urges this Court to grant

the petition for a writ of certiorari and reverse the

judgment below.

SUMMARY OF ARGUMENT

For a time, federal courts were quick to read

statutes as “implying” legal rules absent from the text

but perceived as sensible policy. This Court has long

since renounced that “freewheeling approach.”

Hernandez v. Mesa, 140 S. Ct. 735, 751 (2020)

(Thomas, J., concurring). But as this case illustrates,

1 No party’s counsel authored this brief in whole or in part, and

no person or entity other than amicus or its counsel made a

monetary contribution to fund the brief’s preparation or

submission. All parties were provided timely notice of amicus’s

filing of this brief.

2

the courts of appeals have not always followed this

Court’s lead. For policy reasons—when reasons are

given at all—six circuit courts have interpreted the

APA as repealing Section 2401(a)’s plaintiff-focused

statute of limitations with respect to certain

administrative-law claims and replacing it with a

defendant-focused statute of repose. According to

these courts, while a right of action accrued at injury

when Section 2401(a)’s accrual rule was enacted in

1887 all the way until the APA’s enactment in 1946—

and still does in all contexts outside of administrative

law—the APA implicitly changed Section 2401(a)’s

accrual rule to start the clock at the defendant’s last

act for certain administrative-law claims. But that

“read[s] much into nothing,” Albernaz v. United

States, 450 U.S. 333, 341 (1981), because the APA

implies nothing of the sort.

Perhaps recognizing the need to cite some

statutory text somewhere to support their policydriven conclusion, these lower courts have asserted

that APA Section 704’s limitation on the APA cause of

action to “final agency action” makes Section 2401(a)

a statute of repose for certain APA claims. That is

absurd. To the extent Section 704 implies anything

about accrual of the APA right of action, it creates an

additional condition necessary to start the clock (that

the agency action be final) on top of the normal accrual

rules. Section 704 cannot conceivably be understood

to subtract from the centuries-old understanding that

a right of action does not accrue before the plaintiff

has been injured. These lower courts have never

explained their invocation of Section 704, probably

because it can only be explained as a fig leaf for

policymaking.

3

The lower courts’ policy arguments, moreover,

make no sense. In the (rare) instances lower-court

analysis has extended beyond ipse dixit, the courts

have reasoned that the textual approach leaves

federal agencies without repose because for perpetuity

their actions might be challenged by someone newly

injured. But it is undisputed that agency action is

forever vulnerable to judicial invalidation regardless

of whose interpretation prevails. Agency action—no

matter how old—often can be challenged in an

enforcement proceeding. The action is never safe on

anyone’s position. Nor should it be.

If the decision below is allowed to stand, the

Americans who are newly injured by old agency action

each year will have no meaningful opportunity to

contest the lawfulness of the injurious action unless

the agency brings an enforcement action against

them. And this Court has time and again explained

that the possible opportunity to defend an

enforcement action is an inadequate remedy.

Particularly because of the immense and growing

reach of the administrative state, the APA cause of

action authorizing direct review by any newly injured

party is essential to ensure that Americans are not

unlawfully injured by overzealous bureaucrats.

ARGUMENT

I. WHEN AN APA RIGHT OF ACTION

ACCRUES IS AN IMPORTANT QUESTION

DIVIDING LOWER COURTS.

The decision below joins the wrong side of a circuit

split that deprives many Americans of access to the

federal courts to remedy harm caused by the

ubiquitous administrative state. This injustice is the

4

result of lower courts elevating certain (mistaken)

policy judgments over clear statutory text.

A. THE DECISION BELOW DISREGARDS

FUNDAMENTAL

PRINCIPLES

OF

STATUTORY INTERPRETATION.

At bottom, this case presents a pure question of

statutory interpretation: whether the APA implicitly

modifies Section 2401(a)’s accrual rules. No party,

court, or commentator has disputed that under

Section 2401(a)’s original meaning the limitations

clock starts when the plaintiff is injured. 2 Yet six

courts of appeals have held, opposite the Sixth Circuit,

that in 1946 the APA implicitly modified that

meaning with respect to certain administrative-law

claims. See Pet. 4.

One would expect a careful parsing of text to

precede such a determination of partial repeal by

implication. After all, “repeals by implication” are

“not favored.” Kremer v. Chem. Constr. Corp., 456

U.S. 461, 468 (1982); see also, e.g., United States v.

Madigan, 300 U.S. 500, 506 (1937) (“[T]he

modification by implication of the settled construction

2

Section 2401(a)’s original meaning dates to 1887, when its

predecessor was enacted as part of the Little Tucker Act. See

Auction Co. of Am. v. FDIC, 132 F.3d 746, 749 (D.C. Cir. 1997).

In 1948, Congress “made minor changes in the wording and

relocated [the statute of limitations] to 28 U.S.C. § 2401(a),

where it was to function as a catch-all limit for non-tort actions

against the United States.”

Id.

That organizational

recodification was meant to “continu[e] . . . existing law.” Act of

June 25, 1948, ch. 646, § 2680, sec. 2(b), 62 Stat. 869, 985 (1948).

And at any rate, statutory language “obviously transplanted

from another legal source” “brings the old soil with it.” George v.

McDonough, 142 S. Ct. 1953, 1959 (2022).

5

of an earlier and different section is not favored.”).3

That is particularly true when court access is at stake,

because the federal courts have a “virtually

unflagging” “obligation” to “hear and decide cases

within [their] jurisdiction.” Lexmark Int’l, Inc. v.

Static Control Components, Inc., 572 U.S. 118, 126

(2014) (quotation marks omitted); see also Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)

(Marshall, C.J.) (“We have no more right to decline the

exercise of jurisdiction which is given, than to usurp

that which is not given. The one or the other would

be treason to the constitution.”). Courts therefore

“restrict access to judicial review” “only upon a

showing of ‘clear and convincing evidence’ of a

contrary legislative intent.” Abbott Labs. v. Gardner,

387 U.S. 136, 141 (1967); see also Bowen v. Mich.

Acad. of Family Physicians, 476 U.S. 667, 670 (1986)

(courts may not preclude judicial review under the

APA unless “there is persuasive reason to believe”

that Congress intended that outcome). And this Court

has repeatedly explained that “[t]he best evidence of

congressional intent . . . is the statutory text that

Congress enacted.” Marx v. Gen. Revenue Corp., 568

U.S. 371, 392 n.4 (2013) (Sotomayor, J. dissenting)

(citing W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83,

98 (1991)). But the circuits’ consideration of statutory

text has ranged from cursory to nonexistent. They

have instead balanced interests and settled on a

3

It “does not matter” whether the implied alteration “is

characterized as an amendment or a partial repeal” because

“[e]very amendment of a statute effects a partial repeal to the

extent that the new statutory command displaces earlier,

inconsistent commands,” and the Supreme Court has “repeatedly

recognized that implied amendments are no more favored than

implied repeals.” Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644, 664 n.8 (2007).

6

framework that to them “make[s] the most sense.”

Wind River Mining Corp. v. United States, 946 F.2d

710, 715 (9th Cir. 1991).

The court below, for example, did not merely reach

the wrong interpretive answer—it failed even to ask

the pertinent interpretive questions. The court below

never inquired into Section 2401(a)’s original

meaning, or what specific part of the APA might

implicitly modify that meaning (a question clearly

antecedent to any implicit-modification conclusion), or

whether evidence of implicit modification is “clear and

convincing.” Instead, the panel listed quotations from

cases on both sides of the conflict—which themselves

do not ask any of those questions—and then simply

announced

that

“[t]his

court

concludes

that . . . [Petitioner’s]

right

of

action

accrue[d] . . . upon publication of the regulation.”

App. 11.

That perfunctory conclusion is demonstrably and

grievously wrong. Because the APA nowhere says

that a claim can accrue before injury, the decision

below requires the view that the APA modified

Section 2401(a)’s accrual rules implicitly. But implied

modification occurs only when (1) “provisions in the

two acts are in irreconcilable conflict,” or (2) “the later

act covers the whole subject of the earlier one and is

clearly intended as a substitute.” Kremer, 456 U.S. at

468. In “either case,” “the intention of the legislature

to repeal must be clear and manifest.” Id. And

neither requisite is remotely present here.

Far from clearly and manifestly altering the

original understanding of Section 2401(a) accrual, the

APA says nothing that even plausibly could do so. The

APA’s judicial-review provisions merely create a

cause of action for persons aggrieved by final agency

7

action. 5 U.S.C. §§ 702, 704. Those provisions cannot

conceivably be understood as establishing a break

from accrual norms—if anything, to the contrary, they

affirmatively indicate that the normal accrual rules

do apply to APA claims by stating that a right of

action exists only once the plaintiff is aggrieved. At

best for Respondent, the APA is silent on accrual.

The APA’s limitations-period “silence” “means

that ordinary background law applies.” New Jersey v.

New York, 523 U.S. 767, 813 (1998) (Breyer, J.,

concurring); see also, e.g., Albernaz, 450 U.S. at 341–

42 (“[I]f anything is to be assumed from the

congressional silence . . . , it is that Congress was

aware of the [background] rule and legislated with it

in mind.”); id. at 341 (Congress is “predominantly a

lawyer’s body,” and it is appropriate “to assume that

our elected representatives . . . know the law.”). That

includes both the original semantic meaning of the

phrase “right of action first accrues” and the “cluster

of ideas that were attached to [the phrase]”

“accumulated [in] the legal tradition and meaning of

centuries of practice.” Sekhar v. United States, 570

U.S. 729, 733 (2013); see also, e.g., Staples v. United

States, 511 U.S. 600, 605 (1994) (“[W]e must construe

the statute in light of the background rules of the

common law.”).

Statutory silence signals

congressional “satisfaction with widely accepted

definitions, not a departure from them.” Beck v.

Prupis, 529 U.S. 494, 501 (2000); see also PDR

Network, LLC v. Carlton & Harris Chiropractic, Inc.,

139 S. Ct. 2051, 2061 (2019) (Kavanaugh, J.,

concurring in the judgment) (congressional “silence”

“should not be read to preclude judicial review”).

As the petition and academic commentary have

shown, “every source” reflecting the cluster of ideas

8

attached to accrual “points the same way”: “[a] party’s

right of action cannot accrue until he or she has

actually been harmed by the defendant.” John

Kendrick, (Un)limiting Administrative Review: Wind

River, Section 2401(a), and the Right to Challenge

Federal Agencies, 103 Va. L. Rev. 157, 159 (2017); see

also id. at 180–192 (examining enactment-era cases,

dictionaries, and treatises); Pet. 22. Even the leading

commentary defending the majority approach

concedes

that

“the

text

of

28

U.S.C.

§ 2401(a) . . . suggests . . . that accrual should begin

separately for each specific plaintiff’s claim” and thus

further concedes that accrual based on “when the

plaintiff can sue” “does apply to cases first

contemplated by 28 U.S.C. § 2401(a).” Susan C.

Morse, Old Regs, 31 Geo. Mason L. Rev. (forthcoming

2023) (manuscript at 4), ssrn.com/abstract=4191798;

see also id. (conceding that under the majority

approach “accrual is triggered by an action of the

defendant, not a claim of the plaintiff, contrary to the

plaintiff-focused approach taken when interpreting

28 U.S.C. § 2401(a)’s application [in other contexts]”).

Because that commentary fares no better than the

circuit courts at identifying any text in the APA

implying modification of that background rule, those

concessions are fatal.4

4

This commentator rests her defense of the majority approach

on her unsubstantiated assertion that APA claims are different

because the unlawful action “arises at promulgation (or other

final agency action), then exists and continues, waiting

unchanged for any eligible plaintiff to come along and raise it.”

Morse, Old Regs, at 5. That does not, in fact, make APA claims

different—it is true any time there is a temporal gap between

unlawful conduct and injury.

9

The

lower

courts’

“atextual

judicial

supplementation” is “particularly inappropriate,”

moreover, because “Congress has shown that it knows

how to adopt the omitted language.” Rotkiske v.

Klemm, 140 S. Ct. 355, 361 (2019) (capitalization

altered). Congress has shown that “it knows exactly

how to specify” the kinds of limitations rules the lower

courts have written into the APA, but itself chose to

do “nothing like that” in the APA. Epic Sys. Corp. v.

Lewis, 138 S. Ct. 1612, 1617 (2018). Congress easily

could have provided that the limitations period for

APA claims starts once the regulation is “published in

the Federal Register,” for example, as it did in

16 U.S.C. § 7804(d)(1), see also Pet. 24 & n.4

(collecting additional examples). The “omission of any

such provision is strong, and arguably sufficient

evidence that Congress had no such intent.” Yellow

Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 823

(1990).

When the majority-approach courts have cited

any statutory text at all, they have pointed to the

APA’s limitation of its cause of action to “final agency

action” in Section 704. See, e.g., Wong v. Doar, 571

F.3d 247, 263 & n.15 (2d Cir. 2009) (“Under the APA,

the statute of limitations begins to run at the time the

challenged agency action becomes final. See 5 U.S.C.

§ 704.”); Jersey Heights Neighborhood Ass’n v.

Glendening, 174 F.3d 180, 186 (4th Cir. 1999) (holding

without analysis that APA right of action accrues

“upon ‘final agency action,’ 5 U.S.C. § 704”); Harris v.

FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004) (“The right

of action first accrues on the date of the final agency

action.” (citing 5 U.S.C. § 704)). But Section 704

plainly does not alter the rule that a right of action

cannot accrue until the plaintiff has been injured.

Rather, Section 704 simply states that an APA claim

10

does not accrue until the plaintiff is injured and the

agency action is final—in other words, finality “is

another necessary, but not by itself a sufficient,

ground for stating a claim under the APA.” Herr v.

U.S. Forest Serv., 803 F.3d 809, 819 (6th Cir. 2015).

The APA largely “restate[d] the law governing judicial

review of administrative action,” DOJ, Attorney

General’s Manual on the Administrative Procedure

Act (1947) 5 ; it certainly did not upend long-settled

accrual rules by providing that only final agency

action is reviewable.

Because there is no indication—let alone one that

is clear and manifest—that Congress intended to

implicitly modify Section 2401(a) through the APA,

the majority approach is textually indefensible. The

Court should grant certiorari to remind lower courts

that when interpreting Section 2401(a) they should

“ask only what the statute means.” Epic Sys. Corp.,

138 S. Ct. at 1631.

B. THE

LOWER

COURTS’

POLICY

ARGUMENTS ARE UNFOUNDED.

Though the lower courts have taken a much closer

look at policy than text, their policy arguments reflect

fundamental misunderstandings of both statutes of

limitation and the APA. The lower courts’ primary

policy concern is that under the textual approach

“there effectively would be no statute of limitations.”

Preminger v. Sec’y of Veterans Affairs, 517 F.3d 1299,

1307 (Fed. Cir. 2008) (citing Wind River, 946 F.2d at

714)); see also Morse, Old Regs, at 25 (arguing that “an

indefinite limitations period would defeat the purpose

of a limitations period in the first place”). That is

5

tinyurl.com/yxyfvuk8.

11

undeniably incorrect—if Petitioner had filed this

lawsuit more than six years after its alleged injury,

Section 2401(a) would bar the suit just like any other

statute of limitations. What these courts really mean

is that there effectively is no repose for the defendant.

And that is indeed true—because Section 2401(a) is

not a statute of repose.

A statute of repose does exactly what the lower

courts want Section 2401(a) to do: it provides the

defendant with “freedom from liability” and the

assurance that “past events [are] behind him.” CTS

Corp. v. Waldburger, 573 U.S. 1, 9 (2014). An

“absolute . . . bar on a defendant’s temporal liability,”

a statute of repose “puts an outer limit on the right to

bring a civil action” that 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.” Id. at 8 (internal quotation marks

omitted). That is, a statute of repose bars suit even if

its limitations period “ends before the plaintiff has

suffered a resulting injury.” Id.

Because a statute of repose limit is “not related to

the accrual of any cause of action,” id., and Section

2401(a) is related to accrual, 28 U.S.C. § 2401(a) (limit

based on when right of action “accrues”), Section

2401(a) is not a statute of repose. Rather, because it

is based on accrual, Section 2401(a) is a “statute of

limitations.” CTS Corp., 573 U.S. at 7. And a statute

of limitations begins to run “when the injury occurred

or was discovered.” Id. at 8. That means statutes of

limitation consciously do not provide a defendant with

“freedom from liability” and the assurance that “past

events [are] behind him.” Id. at 9; see also Cal. Pub.

Emp.’s Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042,

2049 (2017) (statutes of repose give “more explicit and

12

certain protection to defendants” than statutes of

limitation). A statute cannot ensure both repose for

defendants and remedy for plaintiffs because there

sometimes is a temporal gap between last culpable act

and injury; statutes of limitation like Section 2401(a)

accept some loss of repose to ensure that all injured

plaintiffs are able to bring suit. See Spannaus v. DOJ,

824 F.2d 52, 56 n.3 (D.C. Cir. 1987) (it is “virtually

axiomatic” that “a statute of limitations cannot begin

to run against a plaintiff before the plaintiff can

maintain a suit” even though that is not true of

statutes of repose). To say that Section 2401(a) must

provide federal agencies with repose ignores that

Congress chose the other side of that tradeoff.

Federal agencies do not have absolute repose,

moreover, even under the majority approach. No

matter what, so long as the agency enforces its action,

the action is never safe 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.).

And the scope of judicial review under the APA is the

same regardless whether the issue arises in a

declaratory-judgment action or as an enforcement

defense. Cf. Va. Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247, 262 (2011) (Kennedy, J.,

concurring) (pre-enforcement review is “nothing more

than the pre-emptive assertion in equity of a defense

that would otherwise have been available

in . . . enforcement proceedings at law.”). In both

situations, judicial review considers the purely legal

question of the agency action’s validity based on the

law and the closed universe of the agency’s action and

record of decision. See, e.g., PDR Network, 139 S. Ct.

at 2066–67 (Kavanaugh, J.). Any judicial decision in

13

an enforcement proceeding, therefore, is just as

sweeping as in an APA lawsuit. That means there is

little daylight between the degree of agency repose

under the majority approach and under the textual

approach.

The majority approach, moreover, has policy

problems itself. For one, it eliminates certain rights

of action before they even arise, as this case

illustrates. That contravenes the central purpose for

enacting a statute of limitations rather than a statute

of repose. See Spannaus, 824 F.2d at 56 n.3 (“virtually

axiomatic” that a statute of limitations “cannot begin

to run against a plaintiff before the plaintiff can

maintain a suit”). Americans should not be shut out

of court because, for example, they failed to be born

within six years of unlawful agency action that harms

them.

The majority approach also jettisons a uniform

standard and creates bifurcation in multiple ways.

Under the textual approach, the Section 2401(a)

limitations period operates uniformly across all

claims. Under the majority approach, by contrast, the

limitations period operates differently inside the APA

versus outside, and also depends on what sort of APA

claim is brought. See Wind River, 946 F.2d at 715;

Kendrick, (Un)limiting Administrative Review, 103

Va. L. Rev. at 199 (courts apply the textual approach

in “every other type of claim that [Section 2401(a)]

covers”). That violates this Court’s admonition that

statutory language cannot be given “different

meanings in different factual contexts.” United States

v. Santos, 553 U.S. 507, 522 (2008); see also Clark v.

Martinez, 543 U.S. 371, 386 (2005) (notion that

“judges can give the same statutory text different

meanings in different cases” is a “dangerous

14

principle”). The lower courts have impermissibly

“render[ed]” Section 2401(a) “a chameleon.” Clark,

543 U.S. at 382. Their policy arguments are both

procedurally improper and substantively impotent.

II. THE ADMINISTRATIVE STATE SHOULD

NOT BE PERMITTED TO ELUDE JUDICIAL

OVERSIGHT

WHEN

UNLAWFULLY

IMPOSING NEW INJURIES.

The APA is a “bill of rights” for “the hundreds of

thousands of Americans whose affairs are controlled

or regulated” by federal agencies. 92 Cong. Rec. 2149

(1946) (statement of Sen. McCarran). It was designed

to serve as “a check upon administrators whose zeal

might otherwise have carried them to excesses not

contemplated in legislation creating their offices.”

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 109 (2015)

(Scalia, J., concurring) (quoting United States v.

Morton Salt Co., 338 U.S. 632, 644 (1950)); see also S.

Rep. No. 79-752, at 212 (1945) (APA judicial review is

designed to prevent Congress’s statutes from

becoming “blank checks drawn to the credit of some

administrative officer or board”); Shaughnessy v.

Pedreiro, 349 U.S. 48, 51 (1955) (APA was intended in

part to “remove obstacles to judicial review of agency

action”).

The APA’s guarantees have become all the more

critical as the administrative state has transformed

into leviathan. Today, “the Executive Branch . . .

wields vast power and touches almost every aspect of

daily life.” Free Enter. Fund v. PCAOB, 561 U.S. 477,

499 (2010).

Much of the federal government’s

operation now consists of “hundreds of federal

agencies poking into every nook and cranny of daily

life.” City of Arlington, Tex. v. FCC, 569 U.S. 290, 315

15

(2013) (Roberts, C.J., dissenting); see also Clyde

Wayne Crews, Jr., How Many Federal Agencies Exist?,

Forbes (July 5, 2017) (government estimates of the

number of federal agencies in existence vary from 71

to 454).6 Our Constitution’s founders “could hardly

have envisioned today’s ‘vast and varied federal

bureaucracy’ and the authority administrative

agencies now hold over our economic, social, and

political activities.” City of Arlington, 569 U.S. at 313

(Roberts, C.J.). These agencies “produce[] reams of

regulations—so many that they dwarf the statutes

enacted by Congress.” Kisor v. Wilkie, 139 S. Ct. 2400,

2446–47 (2019) (Gorsuch, J., concurring in the

judgment) (quotations marks omitted). The Code of

Federal Regulations contained 18,000 pages near the

close of the New Deal in 1938 but now contains more

than 175,000 pages. Paul J. Larkin, Jr. & GianCarlo

Canaparo, Gunfight at the New Deal Corral, 19 Geo.

J.L. & Pub. Pol’y 477, 488 (2021). And agencies “add

thousands more pages of regulations every year.”

Kisor, 139 S. Ct. at 2446–47 (Gorsuch, J.).

Unfortunately, the administrative state’s rapid

expansion has not led agencies to exercise greater care

in respecting constitutional boundaries.

To the

contrary, in recent years agencies have aggressively

pushed the limits of their authority in ways that

impact every aspect of American society.

For

example, the CDC—an agency tasked with preventing

“communicable diseases”—recently claimed power to

“impose[] a nationwide moratorium on evictions” in

counties covering “[a]t least 80% of the country.”

Alabama Ass’n of Realtors v. HHS, 141 S. Ct. 2485,

2486, 2489 (2021). The EPA claimed that the “vague

6

bit.ly/2HyrFrP.

16

language of an ancillary provision of the [Clean Air

Act]” granted it authority to unilaterally demand “a

shift throughout the power grid from one type of

energy source to another.” W. Virginia v. EPA, 142 S.

Ct. 2587, 2610–12 (2022) (quotation marks and

alterations omitted). After stating “[f]or years” that

bump stocks are not machine guns, ATF “changed its

mind” and has placed the specter of criminal sanctions

on scores of law-abiding citizens. Guedes v. ATF, 140

S. Ct. 789, 789 (2020) (statement of Gorsuch, J.).

OSHA—“tasked with ensuring occupational safety”—

imposed a vaccine mandate on approximately 84.2

million employees during the Covid-19 pandemic.

NFIB v. OSHA, 142 S. Ct. 661, 663 (2022). This Court

recently heard argument on “a situation [it has] seen

before”: “an old statute with kind of general language,

Congress specifically considering the present issue

repeatedly but not . . . passing legislation that would

authorize the specific action and then . . . the

executive, nonetheless, doing a massive new

program”—this time a Department of Education

student-loan forgiveness program costing half a

trillion dollars. Tr. of Oral Argument at 45, Biden v.

Nebraska, 143 S. Ct. 477 (2022) (No. 22-506)

(Kavanaugh, J.). And that is not to mention the SEC’s

recent activity.

For all these reasons, “the cost of . . . deny[ing]

citizens an impartial judicial hearing” when injured

by agency action “has increased dramatically.” Kisor,

139 S. Ct. at 2447 (Gorsuch, J.); see also Bowen, 476

U.S. at 670 (citing this Court’s “insist[ence]” that the

availability of judicial review of executive action is

part of “‘[t]he very essence of civil liberty’”). And while

unlawful agency action often imposes immediate

injury, agencies should not escape judicial oversight

17

whenever their action causes injury more than six

years later.

While aggrieved persons always can challenge

agency action when defending an enforcement action,

see supra, nothing in Section 2401(a) or the APA

suggests that persons newly injured by old agency

action should be confined to defense review, and this

Court does not “consider” the availability of defense

review “a ‘meaningful’ avenue of relief,” Free Enter.

Fund, 561 U.S. at 490–91. That is for good reason—

the time, cost, and reputational ruin accompanying

enforcement actions often “practically necessitate a

pre-enforcement . . . suit” “if there is to be a suit at

all.” CIC Servs., LLC v. IRS, 141 S. Ct. 1582, 1592

(2021); see also Free Enter. Fund, 561 U.S. at 490 (“We

normally do not require plaintiffs to ‘bet the farm . . .

by taking the violative action’ before ‘testing the

validity of the law.’”); cf. Ex parte Young, 209 U.S. 123,

148 (1908) (forcing a business to risk penalties to

challenge a rule in court violates due process).

In Sackett v. EPA, for example, this Court rejected

an attempt by the EPA to duck the APA cause of

action after issuing an administrative compliance

order by arguing that the plaintiffs could contest the

order in an enforcement action. 566 U.S. 120, 124–25,

127 (2012). The plaintiffs would have “accrue[d], by

the Government’s telling, an additional $75,000 in

potential liability” “each day they wait[ed] for the

Agency to [bring an enforcement action].” Id. at 127.

In that case and many others, “the potential fines”

could “easily . . . reach[] the millions.” Id. at 132

(Alito, J., concurring). Defense review, in many

instances, is simply unrealistic.

The SEC, for example, has been able to coerce

settlement in the “vast majority of [its] cases” just by

18

threatening an enforcement action. Tilton v. SEC,

824 F.3d 276, 298 n.5 (2d Cir. 2016) (Droney, J.,

dissenting); see also Luis A. Aguilar, Comm’r, SEC, A

Stronger Enforcement Program to Enhance Investor

Protection (Oct. 25, 2013) (98 percent of those

threatened with enforcement settle). That is partly

because, according to a former SEC Deputy General

Counsel, most defendants’ “business, job, or personal

relationships will not survive sustained adverse

publicity repeating the SEC’s allegations over and

over during the long life of litigation.” Comments of

Andrew N. Vollmer on Office of Mgmt. & Budget

Request for Information, OMB-2019-0006, at 4 (Mar.

9, 2020).7 “[E]ndless battling depletes the spirit along

with the purse,” especially when interacting with “a

series of public officials bent on making life difficult.”

Wilkie v. Robbins, 551 U.S. 537, 555 (2007).

Many persons aggrieved by unlawful agency

action, moreover, will never have the opportunity to

participate in an enforcement action. In this case, for

example, there will never be an enforcement action

because Petitioner’s injury is caused by private

persons regulated by Respondent’s 21-cent standard.

See Pet. 28–29. And this case is no fluke—injurious

agency action will not involve enforcement in many

contexts, for example when persons are aggrieved by

“rules requiring that employers receive a favorable

labor certification . . . before obtaining a[n] [H-2B]

visa,” Outdoor Amusement Bus. Ass’n, Inc. v. DHS,

983 F.3d 671, 675–76 (4th Cir. 2020) (dismissing as

time-barred), or an agency’s decision “to subsidize a

portion of tenants’ rents,” Trafalgar Cap. Assocs., Inc.

v. Cuomo, 159 F.3d 21, 24 (1st Cir. 1998) (same); see

7

tinyurl.com/y5qcknzx.

19

also Pet. 29 (agency actions that injure one person by

regulating someone else are so common that they have

their own Article III standing rules). The possibility

of “filing [a] petition to rescind regulations” and then

“appealing the denial of the petition,” Wind River, 946

F.2d at 714, does not solve the problem because the

agency may not have a procedure for a petition to

rescind the action at issue, and even if it does, it may

simply decline to issue a decision on the petition or

delay such action indefinitely. When an agency takes

injurious action outside the enforcement context,

therefore, the APA’s cause of action is usually the only

mechanism to contest the action.

*

*

*

If left undisturbed, the decision below will deprive

many Americans of access to the federal courts in the

face of a behemothic and ever-growing administrative

state. And this injustice is a creation of the courts—a

relic of a time when judges read their own policy

judgments into the white spaces of the U.S. Code.

This Court should reaffirm that those days are gone

and the lower courts must simply apply the law as

written.

20

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

THOMAS A. BERRY

ISAIAH MCKINNEY

CATO INSTITUTE

1000 Mass. Ave.,

N.W. Washington, DC

20001

JEREMY J. BROGGI

Counsel of Record

MICHAEL J. SHOWALTER

BOYD GARRIOTT

HANNAH BINGHAM

WILEY REIN LLP

2050 M Street, NW

Washington, DC 20036

(202) 719-7000

JBroggi@wiley.law

Counsel for Amicus Curiae

May 17, 2023