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 Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

November 20, 2023

i

TABLE OF CONTENTS

Table of Authorities ..................................................... iii

Interest of Amicus Curiae ............................................ 1

Summary of Argument ................................................. 2

Argument ....................................................................... 5

I.

It Is an Open Question Whether 28 U.S.C.

§2401(a) Applies to Pre-enforcement APA

Claims ................................................................. 5

II.

An APA Challenge To a Regulation Is Not TimeBarred If Brought Within Six Years of When

The Plaintiff Was Injured. ............................... 8

A. 28 U.S.C. § 2401(a) Is a Plaintiff-Focused

Statute of Limitations ....................................... 8

B. Two Requirements Must Be Met Before a

Person Has an APA Cause of Action ............. 11

1.

Section 704 Governs The Types of Agency

Decisions Subject to Review Under The

APA .......................................................... 12

2.

Section 702 Sets Forth The Requirements

a Plaintiff Must Meet to Have an APA

“Right of Review” .................................... 13

C. The Six-Year Clock For APA Claims Begins to

Run When a Plaintiff Is First Harmed By Final

Agency Action................................................... 15

ii

III.

Newly Harmed Parties Should Not Have to Risk

Prosecution to Challenge Old Regulations

Carrying Criminal Penalties .......................... 17

A. Many Untested Regulations Carry Criminal

Penalties ........................................................... 17

B. Ultra Vires Regulations, However Stale, Are

Mere Nullities .................................................. 18

C. Pre-enforcement Review Is Often The Only

Safe Pathway to Judicial Review ................... 20

IV.

Policy Considerations Cannot Trump Statutory

Text ................................................................... 23

Conclusion ................................................................... 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) .................................. 6, 13, 21

Air Courier Conference v. Am. Postal

Workers Union,

498 U.S. 517 (1991) ...................................... 11, 14

Ass’n of Data Processing Serv. Orgs., Inc. v.

Camp,

397 U.S. 150 (1970) .............................................15

Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) .........................................24

Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp.,

522 U.S. 192 (1997) .............................................10

Bennett v. Spear,

520 U.S. 154 (1997) .............................................12

Biden v. Missouri,

142 S. Ct. 647 (2022) ...........................................17

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020) ...........................................8

Bowen v. Mich. Acad. of Family Physicians,

140 S. Ct. 1731 (2020) .........................................21

iv

Cal. Sea Urchin Comm’n v. Bean,

828 F.3d 1046 (9th Cir. 2016) ............................23

CIC Servs., LLC v. IRS,

141 S. Ct. 1582 (2021) .........................................22

CIC Servs., LLC v. IRS,

936 F.3d 501 (6th Cir. 2019) ..............................21

CIC Servs., LLC v. IRS,

925 F.3d 247 (6th Cir. 2019) ..............................21

Clark v. Iowa City,

87 U.S. (20 Wall.) 583 (1874) ...............................9

Collings v. Yellen,

141 S. Ct. 1761 (2020) .........................................19

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) ...............................................8

Crown Coat Front Co. v. United States,

386 U.S. 503 (1967) ...............................................9

DeSuze v. Ammon,

990 F.3d 264 (2d Cir. 2021) ................................21

Director v. Newport News Shipbuilding &

Dry Dock Co.,

514 U.S. 122 (1995) .............................................14

Dixon v. United States,

381 U.S. 68 (1965) ...............................................19

v

Dunn-McCampbell Royalty Interest v. Nat’l

Park Serv.,

112 F.3d 1283 (5th Cir. 1997) ....................... 4, 19

Ex parte Young,

209 U.S. 123 (1908) .............................................22

FEC v. Ted Cruz for S.,

142 S. Ct. 1638 (2022) .............................. 4, 18, 19

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

561 U.S. 477 (2010) .............................................21

Functional Music, Inc. v. FCC,

274 F.2d 543 (D.C. Cir. 1958).............................20

Gabelli v. SEC,

568 U.S. 442 (2013) ...............................................9

George v. McDonough,

142 S. Ct. 1953 (2022) .........................................19

Graham Cnty. Soil & Water Conservation

Dist. v. United States ex rel. Wilson,

545 U.S. 409 (2005) .............................................11

Gross v. FBL Financial Services, Inc.,

557 U.S. 167 (2009) ...............................................8

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) .........................................14

vi

Hanson v. Wyatt,

552 F.3d 1148 (10th Cir. 2008) ..........................14

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) ...............................................8

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

571 U.S. 99 (2013) .......................................... 9, 10

Herr v. United States Forest Serv.,

803 F.3d 809 (6th Cir. 2015)………. 9, 13, 14, 15,

16, 17, 20, 21, 22

Impro Prods., Inc. v. Block,

722 F.2d 845 (D.C. Cir. 1983)...............................5

INS v. Nat’l Ctr. for Immigrants’ Rights,

502 U.S. 183 (1991) .............................................12

Jersey Heights Neighborhood Ass’n v.

Glendening,

174 F.3d 180 (4th Cir. 1999) ................................6

Kuhnle Bros., Inc., v. County of Geauga,

103 F.3d 516 (6th Cir. 1997) ..............................19

Life & Cas. Ins. Co. v. McCray,

291 U.S. 566 (1934) ...................................... 22, 23

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) .............................................14

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) .............................................21

vii

Morley v. Hurst,

49 P.2d 546 (Okla. 1935) ....................................10

Nation v. DOI,

876 F.3d 1144 (9th Cir. 2017) ............................14

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

138 S. Ct. 617 (2018) .........................................5, 6

Okla. Operating Co. v. Love,

252 U.S. 331 (1920) .............................................22

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc.,

139 S. Ct. 2051 (2019) ............................ 16, 19, 20

Petrella v. MGM,

572 U.S. 663 (2014) ...............................................7

Phila. Co. v. Stimson,

223 U.S. 605 (1912) ...............................................7

Rotkiske v. Klemm,

140 S. Ct. 355 (2019) ...........................................24

Sackett v. EPA,

566 U.S. 120 (2012) .............................................21

Sierra Club v. Slater,

120 F.3d 623 (6th Cir. 1997) ................................5

Spannaus v. U.S. Dep’t of Justice,

824 F.2d 52 (D.C. Cir. 1987)...............................11

viii

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ...................................... 10, 11

Sprint Commc’ns Co. v. APCC Servs., Inc.,

554 U.S. 269 (2008) .............................................13

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) .........................................10

Trudeau v. FTC,

456 F.3d 178 (D.C. Cir. 2006)...................... 11, 14

United States Army Corps of Eng’rs v.

Hawkes Co.,

578 U.S. 590 (2016) ...................................... 12, 23

United States v. Lindsay,

346 U.S. 568 (1954) .............................................10

United States v. Mottaz,

476 U.S. 834 (1986) ...............................................9

United States v. Nourse,

34 U.S. 8 (1835) ...................................................23

Wadley S. Ry. Co. v. Georgia,

235 U.S. 651 (1915) ...................................... 22, 23

Walmart Inc. v. United States DOJ,

21 F.4th 300 (5th Cir. 2021) ...............................14

Wilcox v. Plummer’s Ex’rs,

29 U.S. 172 (1830) .................................................9

ix

Wind River Mining Corp. v. United States,

946 F.2d 710 (9th Cir. 1991) ................................5

Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ...........................................8

Yates v. United States,

574 U.S. 528 (2015) .............................................12

Statutes

5 U.S.C. § 702 ...................2, 3, 6, 8, 11, 13, 14, 15, 20

5 U.S.C. § 704 ........................................... 8, 11, 12, 13

28 U.S.C. § 2401(a) .............................. 2, 5, 6, 8, 9, 24

Rules

Sup. Ct. R. 37.3 ...........................................................1

Other Authorities

Black’s Law Dictionary (3d ed. 1933) .......................9

Black’s Law Dictionary (4th ed. 1951) ....................10

Caleb Nelson,

“Standing” and Remedial Rights in

Administrative Law,

105 Va. L. Rev. 703 (2019)....................................6

Dep’t of Justice,

Attorney General’s Manual on the

Administrative Procedure Act (1947) ..................7

x

James R. Conde & Michael Buschbacher,

The Little Tucker Act’s Statute of

Limitations Does Not Govern GardenVariety Pre-enforcement Suits Under the

APA,

Yale Notice & Comment (Sept. 26, 2023)... 5, 6, 7

John C. Coffee Jr.,

Does “Unlawful” Mean “Criminal”?:

Reflections on the Disappearing

Tort/Crime Distinction in American

Law,

71 B. U. L. Rev. 193 (1991).................................18

John Kendrick,

(Un)limiting Administrative Review:

Wind River, Section 2401(a), and the

Right to Challenge Federal Agencies,

103 Va. L. Rev. 157 (2017)..................... 10, 15, 16

Ronald A. Cass,

The Umpire Strikes Back: Expanding

Judicial Discretion for Review of

Administrative Action,

73 Admin. L. Rev. 553 (2021) ...................... 17, 18

Susan C. Morse,

Old Regs,

31 Geo. Mason L. Rev. (forthcoming

2023),https://papers.ssrn.com/sol3/paper

s.cfm?abstract_id=4191798 ......................... 16, 19

xi

Stuart P. Green,

Why It’s a Crime to Tear the Tag Off A

Mattress: Overcriminalization and the

Moral Content of Regulatory Offenses,

46 Emory L.J. 1533 (1997) .................................18

Total Pages Published in the Code of

Federal Regulations (1951–2021),

George Washington Regulatory Studies

Center,https://regulatorystudies.columbi

an.gwu.edu/sites/g/files/zaxdzs4751/files/

2022-11/totalpagescodefedreg_11-012022.pdf ................................................................18

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.3, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society.

Some of those key ideas include the separation of

powers and constitutionally limited government. As

part of this mission, it appears as amicus curiae before

federal and state courts.

AFPF is committed to ensuring federal agency

rulemaking is subject to appropriate checks and

balances. AFPF believes judicially created barriers to

meaningful Article III review of allegedly unlawful

regulations are inconsistent with the separation of

powers. Nor should federal agencies be allowed to use

the threat of massive penalties and imprisonment as

a weapon to force businesses to submit to unlawful

administrative demands. Due process requires that

regulated parties not face an unconstitutional

Hobson’s choice: comply with an administrative

requirement they believe is unlawful or violate the

1 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 or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

2

law, bet their liberty, and risk imprisonment. The

courthouse doors should not be barred to parties, like

Petitioner, who suffer substantial downstream

pocketbook harm because of unlawful regulations,

which are void ab initio.

SUMMARY OF ARGUMENT

The resolution of the question presented by this

case begins and ends with the statutory text. As

Petitioner ably explains, see Pet. Br. 14–19, a

plaintiff’s Administrative Procedure Act (“APA”)

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

an agency regulation first causes that plaintiff to

“suffer[] legal wrong” or be “adversely affected or

aggrieved” under 5 U.S.C. § 702. That is, an APA

claim accrues separately for each individual

plaintiff—and the statute of limitations begins to

run—when that plaintiff is injured by an agency

action or regulation. Causes of action do not accrue as

to the world; they must be analyzed on a party-byparty basis. The focus, for statute of limitations

purposes, is on when the plaintiff was harmed, as

opposed to when the agency finalized its regulation;

28 U.S.C. § 2401(a) does not morph into a statute of

repose for these APA claims. Section 702’s plain text

compels this commonsense result, making pellucidly

clear that, to the extent a statute of limitations

applies, the six-year clock for bringing an APA claim

challenging a regulation begins to run when a person

suffers cognizable injury because of an agency rule.

Petitioner’s plight illustrates why this must be the

case. The Board regulation at issue was issued in July

2011. See App. 6. Petitioner, “a truck stop and

convenience store,” “opened for business in March

3

2018.” App. 52 (Compl. ¶ 19). Petitioner did not suffer

monetary harm because of the Board’s regulation

until 2018, when it first began accepting debit cards

and paying the Board’s interchange fee. See Pet. App.

54 (Compl. ¶ 22); see also Pet. Br. 19. It was at that

time (not before) when Corner Post first had a

complete and ripe APA cause of action. And that is

when its claim “first accrued” and the six-year clock

began to run. See App. 56 (Compl. ¶ 32).

The decision below found, however, that the

statute of limitations ran for Corner Post in 2017.

Before Corner Post could even challenge the

regulation! This analysis mistakenly decoupled the

statute of limitations from harm to the plaintiff,

thereby effectively reading 5 U.S.C. § 702 out of the

APA. See App. 6–12. That cannot be right. If allowed

to stand, the decision below severely curtails, for all

practical purposes, the ability of newly created or

harmed businesses and individuals to challenge

regulations, no matter how ultra vires and

unconstitutional those regulations might be. It is

fundamentally unfair to close the courthouse doors on

businesses and individuals newly harmed by longextant regulations imposing burdensome and

expensive compliance requirements or other costs.

Although not directly at issue here, businesses

should not be forced into a Hobson’s choice of either

submitting to unlawful regulations or betting the

farm by defying the regulations and thereby risking

draconian civil and often criminal consequences.

Raising invalidity as a defense in an enforcement

action is neither a safe nor realistic pathway for an

injured business to obtain judicial review. And a

person aggrieved by unlawful agency action should

4

not be forced to bet his liberty as a condition of

challenging it in court. Instead, companies recently

injured by agency action of any vintage should be able

to bring pre-enforcement APA challenges.

Unlike fine wine, unlawful regulations do not

become better with age. “[A] regulation initially

unauthorized by statute cannot become authorized by

the mere passage of time.” Dunn-McCampbell Royalty

Interest v. Nat’l Park Serv., 112 F.3d 1283, 1289–90

(5th Cir. 1997) (Jones, J., dissenting). “An agency,

after all, literally has no power to act—including

under its regulations—unless and until Congress

authorizes it to do so by statute. An agency’s

regulation cannot operate independently of the

statute that authorized it.” FEC v. Ted Cruz for S.,

142 S. Ct. 1638, 1649 (2022) (cleaned up). This means

that an ultra vires regulation does not gain legitimacy

and morph into a binding law merely by the

happenstance that it has been on the books for six

years. Instead, unlawful regulations are not law at all

and remain void ab initio.

Nor can atextual policy considerations justify a

judicial transmogrification of Section 2401(a) from a

garden-variety statute of limitations into a selective

statute of repose that means something different than

what it says only in the context of certain APA claims.

Statutes are not chameleons that can change meaning

in this way. Concerns about the government’s interest

in regulatory finality and judicial efficiency involve

complex value judgements the Constitution tasks

Congress, not the courts, with resolving.

For the foregoing reasons, this Court should

reverse the decision below.

5

ARGUMENT

I.

It Is an Open Question Whether 28 U.S.C.

§ 2401(a) Applies to Pre-enforcement APA

Claims.

The decision below mistakenly relied on an

atextual policy-laden judicial gloss to conclude that an

APA claim “first accrues” under 28 U.S.C. § 2401(a)

when an agency issues a rule, irrespective of when a

plaintiff suffers harm. See App. 10–12; see also Pet.

Br. 12, 21. But the gloss on 28 U.S.C. § 2401(a) may

well run far deeper, going beyond the question

presented in this case.

For several decades, courts have concluded that

Section 2401’s six-year limitations period applies to

APA claims. See, e.g., Wind River Mining Corp. v.

United States, 946 F.2d 710, 713 (9th Cir. 1991);

Impro Prods., Inc. v. Block, 722 F.2d 845, 850 n.8 (D.C.

Cir. 1983); see also Sierra Club v. Slater, 120 F.3d 623,

631 (6th Cir. 1997) (“Numerous courts have held . . .

that a complaint under the APA for review of an

agency action is a ‘civil action’ within the meaning of

section 2401(a).”). This “Court has [also] once

assumed the statute of limitations applied generally”

in passing. James R. Conde & Michael Buschbacher,

The Little Tucker Act’s Statute of Limitations Does Not

Govern Garden-Variety Pre-enforcement Suits Under

the APA, Yale Notice & Comment (Sept. 26, 2023)

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

6

617, 626–27 (2018)).2 But cf. Abbott Labs. v. Gardner,

387 U.S. 136, 155 (1967) (noting “defense of laches,”

as opposed to a statute of limitations, “could be

asserted if the Government is prejudiced by a delay”

in

pre-enforcement

challenge).

But

that

interpretation may not be right.

As an original matter, it appears likely that there

is no statute of limitations for garden-variety preenforcement APA challenges to regulations.3 Section

2401(a) applies to non-tort “civil action[s] commenced

against the United States[.]” 28 U.S.C. § 2401(a)

(emphasis added). Some courts have assumed that

APA claims against federal agencies are “against the

United States.” See, e.g., Jersey Heights Neighborhood

Ass’n v. Glendening, 174 F.3d 180, 186 (4th Cir. 1999)

(“Because an action against a federal agency is an

action against the United States, a complaint under

the APA for review of an agency action is a ‘civil

action’ within the meaning of section 2401(a).”

(cleaned up)). But that construction appears to

overread the key phrase “against the United States,”

https://www.yalejreg.com/nc/the-little-tucker-acts-statute-oflimitations-does-not-govern-garden-variety-pre-enforcementsuits-under-the-apa-by-james-r-conde-michael-buschbacher/.

3 Importantly, “[t]his does not mean the Little Tucker Act does

not apply to any suits under the APA.” Conde & Buschbacher,

supra. 5 U.S.C. § 702 does not appear to “authorize broad

statutory standing to vindicate public rights. Those suits raise

tough questions, as they are not analogous to traditional officer

suits brought by the objects of a regulation.” Id. (citing Caleb

Nelson, “Standing” and Remedial Rights in Administrative Law,

105 Va. L. Rev. 703 (2019)).

2

7

conflating suits against federal officers with suits

against the United States.

“When the Little Tucker Act was enacted in 1887,

and when the statute of limitations was later

amended in 1948, . . . a tort action against a federal

official acting without authority was not a suit

‘against the United States.’ Similarly, a suit in equity

against a government official seeking to prevent an

enforcement action or tortious conduct was not a suit

‘against the United States.’” Conde & Buschbacher,

supra; see Phila. Co. v. Stimson, 223 U.S. 605, 619–20

(1912). This suggests 28 U.S.C. § 2401(a) does not

cover APA claims involving these types of

circumstances, including pre-enforcement challenges

to regulations seeking declaratory or injunctive

relief.4

This Court “has yet to decide this question on the

merits.” Conde & Buschbacher, supra. This Court

should take a closer look and address this issue in an

appropriate case.

4 The 1947 Attorney

General’s Manual on the Administrative

Procedure Act indicates that laches would apply to a subset of

general APA claims. See Dep’t of Justice, Attorney General’s

Manual on the Administrative Procedure Act 96 (1947) (“[T]ime

within which review must be sought will be governed, as in the

past, by relevant statutory provisions or by judicial application

of the doctrine of laches.”). This, too, suggests a subset of APA

claims are instead governed by laches, which typically does not

apply “in face of a statute of limitations enacted by Congress[.]”

Petrella v. MGM, 572 U.S. 663, 679 (2014).

8

II.

An APA Challenge To a Regulation Is Not

Time-Barred If Brought Within Six Years

of When The Plaintiff Was Injured.

At bottom, the present question is straightforward

and turns on the interplay between two provisions of

the APA, 5 U.S.C. § 702 and 5 U.S.C. § 704, with 28

U.S.C. § 2401(a)’s general six-year statute of

limitations for bringing lawsuits against the

government, to the extent that it applies at all. The

plain language of those provisions requires that the

decision below be reversed.

A. 28 U.S.C. § 2401(a) Is a PlaintiffFocused Statute of Limitations.

“This Court normally interprets a statute in accord

with the ordinary public meaning of its terms at the

time of its enactment. After all, only the words on the

page constitute the law adopted by Congress and

approved by the President.” Bostock v. Clayton Cnty.,

140 S. Ct. 1731, 1738 (2020); see Wis. Cent. Ltd. v.

United States, 138 S. Ct. 2067, 2070 (2018) (“[O]ur job

is to interpret the words consistent with their

‘ordinary meaning . . . at the time Congress enacted

the statute.’” (citation omitted)). “As in all such cases,

. . . [this Court] begin[s] by analyzing the statutory

language, ‘assum[ing] that the ordinary meaning of

that language accurately expresses the legislative

purpose.’” Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242, 251 (2010) (quoting Gross v. FBL

Financial Services, Inc., 557 U.S. 167, 175 (2009)).

“[C]ourts must presume that a legislature says in a

statute what it means and means in a statute what it

says there.” Conn. Nat’l Bank v. Germain, 503 U.S.

249, 253–54 (1992).

9

That proposition holds true here. “28 U.S.C.

§ 2401(a) [is] the general statute of limitations

governing actions against the United States.” United

States v. Mottaz, 476 U.S. 834, 838 (1986). It provides,

in relevant part, “every civil action commenced

against the United States shall be barred unless the

complaint is filed within six years after the right of

action first accrues.” 28 U.S.C. § 2401(a). By its plain

terms, the clock begins to run when the “right of action

first accrues.” Id.

“[T]he ‘right of action’ of which § 2401 (a) speaks is

not the right to administrative action but the right to

file a civil action in the courts against the United

States.” Crown Coat Front Co. v. United States, 386

U.S. 503, 511 (1967). Cf. Clark v. Iowa City, 87 U.S.

(20 Wall.) 583, 589 (1874) (“All statutes of limitation

begin to run when the right of action is complete[.]”);

Wilcox v. Plummer’s Ex’rs, 29 U.S. 172, 181 (1830)

(“When might this action have been instituted, is the

question; for from that time the statute [of

limitations] must run.”). That is, “‘a legal right to

maintain an action, growing out of a given transaction

or state of facts and based thereon.’” Herr v. United

States Forest Serv., 803 F.3d 809, 820 (6th Cir. 2015)

(quoting Black’s Law Dictionary 1560 (3d ed. 1933)

(emphasis added)). In essence, “right of action” means

that a particular plaintiff has a completed cause of

action. That is the point at which a claim “accrues,”

and the statute of limitations begins to run for that

plaintiff. See Gabelli v. SEC, 568 U.S. 442, 448 (2013)

(“[T]he standard rule is that a claim accrues when the

plaintiff has a complete and present cause of action.”

(cleaned up)); Heimeshoff v. Hartford Life & Acc. Ins.

Co., 571 U.S. 99, 105 (2013) (“As a general matter, a

10

statute of limitations begins to run when the cause of

action ‘“accrues”’—that is, when ‘the plaintiff can file

suit and obtain relief.’” (quoting Bay Area Laundry &

Dry Cleaning Pension Tr. Fund v. Ferbar Corp., 522

U.S. 192, 201 (1997)).

This is the most natural reading of Section 2401(a),

reflecting its plaintiff-focused approach. “In common

parlance a right accrues when it comes into

existence[.]” United States v. Lindsay, 346 U.S. 568,

569 (1954). Dictionaries underscore this basic point.

“A cause of action ‘accrues’ when a suit may be

maintained thereon.” Accrue, Black’s Law Dictionary

37 (4th ed. 1951) (citation omitted). That is,

“[w]henever one person may sue another.” Id. (citation

omitted); see id. (“Cause of action ‘accrues,’ on date

that damage is sustained and not date when causes

are set in motion which ultimately produce injury.”

(citation omitted)); see also id. at 38 (“Accrued Right.

As used in the Constitution, a matured cause of

action, or legal authority to demand redress.” (citing

Morley v. Hurst, 49 P.2d 546, 548 (Okla. 1935)). Not

before then. This was true when the Little Tucker

Act’s predecessor statute, the Tucker Act, was enacted

in 1897 and remains so today. See John Kendrick,

(Un)limiting Administrative Review: Wind River,

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

Agencies, 103 Va. L. Rev. 157, 179–91 (2017).

“‘Accrual’ means, and has always meant, the same

thing. A party’s right of action cannot accrue until he

or she has actually been harmed by the defendant.”

Id. at 159. The Constitution requires no less. See

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200

(2021) (“No concrete harm, no standing.”); Spokeo, Inc.

v. Robins, 578 U.S. 330, 339 (2016) (“Injury in fact is

11

a constitutional requirement[.]”). And just like every

other type of claim against the government subject to

Section 2401(a)’s six-year limitation period, this holds

true for APA claims.5 Cf. Spannaus v. U.S. Dep’t of

Justice, 824 F.2d 52, 56 n.3 (D.C. Cir. 1987) (“That a

statute of limitations cannot begin to run against a

plaintiff before the plaintiff can maintain a suit in

court seems virtually axiomatic.”).

B. Two Requirements Must Be Met Before

a Person Has an APA Cause of Action.

For a plaintiff to bring a cause of action under the

APA, two conditions must be met: there must be both

“final agency action,” 5 U.S.C. § 704, and the plaintiff

must have “suffer[ed] legal wrong because of agency

action, or [be] adversely affected or aggrieved by

agency action,” 5 U.S.C. § 702.6 These are two distinct

requirements that perform different functions: the

former is agency-focused, identifying the types of

agency decisions subject to general APA review; the

This Court “ha[s] 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.” Graham Cnty. Soil & Water Conservation Dist. v.

United States ex rel. Wilson, 545 U.S. 409, 418 (2005) (cleaned

up). There is no evidence, textual or otherwise, that the Congress

that enacted the APA into law in 1946 intended to depart from

this standard rule.

6 “The judicial review provisions of the APA are not

jurisdictional[.]” Air Courier Conference v. Am. Postal Workers

Union, 498 U.S. 517, 523 n.3 (1991). “[W]hat its judicial review

provisions do provide is a limited cause of action for parties

adversely affected by agency action.” Trudeau v. FTC, 456 F.3d

178, 185 (D.C. Cir. 2006) (citing 5 U.S.C. §§ 701–06).

5

12

latter is plaintiff-focused, imposing a harm

requirement akin to Article III’s injury-in-fact

requirement for constitutional standing.

1. Section 704 Governs The Types of

Agency Decisions Subject to Review

Under The APA .

First, the “final agency action” requirement.

Section 704, titled “Actions reviewable,” provides that

“[a]gency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in a court are subject to judicial review.” 7 5

U.S.C. § 704. As both its title and text make clear,

Section 704’s focus is on what types of agency decisions

must be pled to state a cause of action under the APA.

This Court’s precedent underscores Section 704’s

focus: “to be ‘final’ . . . the action must mark the

consummation of the agency’s decisionmaking

process” and “be one by which rights or obligations

have been determined, or from which legal

consequences will flow.”8 Bennett v. Spear, 520 U.S.

154, 177–78 (1997) (cleaned up). Agency regulations

governing private conduct are plainly within the

universe of agency decisions that meet this test. See,

7 “Titles can be useful devices to resolve doubt about the meaning

of a statute.” Yates v. United States, 574 U.S. 528, 552 (2015)

(Alito, J., concurring); see INS v. Nat’l Ctr. for Immigrants’

Rights, 502 U.S. 183, 189 (1991) (“[T]itle of a statute or section

can aid in resolving an ambiguity in the legislation’s text.”).

8 Bennett’s conjunctive two-part test may well reflect an unduly

cramped reading of Section 704. Cf. United States Army Corps of

Eng’rs v. Hawkes Co., 578 U.S. 590, 597 n.2 (2016); id. at 604 n.*

(Ginsburg, J., concurring in part, concurring in judgment).

13

e.g., Abbott Labs., 387 U.S. at 149 (“[T]he regulations

in issue we find to be ‘final agency action[.]’”).

But while “final agency action” is a “necessary”

condition to sue, it is “not by itself a sufficient, ground

for stating a claim under the APA.” Herr, 803 F.3d at

819. A “final agency action,” standing alone, does not

create a free-floating APA cause of action for anyone

in the world to bring; instead, a plaintiff must also be

harmed by the agency’s decision within the meaning

of Section 702.

2. Section

702

Sets

Forth

The

Requirements a Plaintiff Must Meet

to Have an APA “Right of Review.”

When an APA claim accrues thus depends on when

a plaintiff suffers an injury because of a final agency

action. Section 702’s title, “Right of review,”

underscores that for APA causes of action the “right of

action” 28 U.S.C. § 2401(a) references belongs to and

travels with plaintiffs who are individually harmed by

agency decisions, not the public at large. Cf. Herr, 803

F.3d at 821 (“Once a right of action accrues, it becomes

a ‘piece’ of intangible personal property called a ‘chose

in action.’” (quoting Sprint Commc’ns Co. v. APCC

Servs., Inc., 554 U.S. 269, 275 (2008)). Section 702’s

plain text likewise underscores this basic point: “A

person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to

14

judicial review thereof.” 9 5 U.S.C. § 702 (emphasis

added); see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

882–83 (1990) (discussing required showing of

individualized harm to a plaintiff). In the APA,

“Congress created a general right of judicial review for

individuals injured by agency action.” GuerreroLasprilla v. Barr, 140 S. Ct. 1062, 1077 (2020)

(Thomas, J., dissenting) (citing 5 U.S.C. § 702).

“If a party cannot plead a ‘legal wrong’ or an

‘adverse[] [e]ffect[],’ it has no right of action.” Herr,

803 F.3d at 819 (quoting 5 U.S.C. § 702). Section 702

thus operates as a rough proxy for Article III’s injuryin-fact requirement. Cf. Director v. Newport News

Shipbuilding & Dry Dock Co., 514 U.S. 122, 127

(1995) (“We have thus interpreted § 702 as requiring

a litigant to show, at the outset of the case, that he is

injured in fact by agency action[.]”); Air Courier, 498

U.S. at 523 (“To establish standing to sue under the

APA, respondents must establish that they have

9 The second sentence of Section 702 broadly waives sovereign

immunity for suits against the government “seeking relief other

than money damages[.]” 5 U.S.C. § 702. That waiver of sovereign

immunity extends to nonstatutory ultra vires and constitutional

claims, see Trudeau, 456 F.3d at 187, and is not limited by

Section 704’s “final agency action” requirement for APA claims.

See Hanson v. Wyatt, 552 F.3d 1148, 1173 n.11 (10th Cir. 2008)

(Gorsuch, J., concurring) (“Section 702 is a waiver of sovereign

immunity, but we have not treated Section 704 as a limit on that

waiver.” (citation omitted)); Nation v. DOI, 876 F.3d 1144, 1172

(9th Cir. 2017). Nor is this waiver contingent on “agency action.”

See Trudeau, 456 F.3d at 187; see also Walmart Inc. v. United

States DOJ, 21 F.4th 300, 307 (5th Cir. 2021) (noting majority

rule). This case provides an opportunity for this Court to clarify

the scope of Section 702’s sovereign immunity waiver.

15

suffered a legal wrong because of the challenged

agency action, or are adversely affected or ‘aggrieved

by agency action within the meaning of a relevant

statute.’” (quoting 5 U.S.C. § 702)); Ass’n of Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153

(1970) (APA “grants standing to a person ‘aggrieved

by agency action within the meaning of a relevant

statute’” (quoting 5 U.S.C. § 702)).

C. The Six-Year Clock For APA Claims

Begins to Run When a Plaintiff Is First

Harmed By Final Agency Action.

The upshot is that a plaintiff’s APA cause of action

cannot exist—and thus cannot “accrue”—until both

Section 702’s and Section 704’s distinct requirements

have been met. This means that the statute of

limitations cannot begin to run for a plaintiff until

that plaintiff is harmed by the underlying “final

agency action,” such as the rule at issue here. See

Herr, 803 F.3d at 818–19 (holding that the “six-year

clock starts ticking” only if “the challenged agency

action becomes final and invades a party’s legally

protected interest”).

To be sure, in the mine run of cases Section 704’s

“final agency action” requirement travels with Section

702’s plaintiff-harm requirement. See Kendrick, 103

Va. L. Rev. at 169–70; see also Herr, 803 F.3d at 818–

20. But this is not invariably true, as there is no

necessary temporal link between the agency’s decision

and the harm to private parties flowing from it. For

example, “[a] final agency regulation only causes

injury to a party once he or she is actually affected by

it, and this could first happen decades after the

regulation became final.” Kendrick, 103 Va. L. Rev. at

16

170. Indeed, a “final agency action” under Section 704

may not harm anyone at the time it occurs, as

required by Section 702 and Article III to challenge it.

IRS tax regulations are one example. See Susan C.

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

2023) (manuscript at 6).10 Or consider, as a thought

experiment, if a government agency issued

regulations purporting to govern a nascent or

nonexistent industry—for example, if the FTC

promulgated a suite of regulations governing the use

of artificial intelligence (“AI”) technology in 1985 or

the FCC issued Net Neutrality rules in the early

1990s.11 In such cases, a party’s right of review under

the APA accrues long after the agency acted, when

that party first suffers harm because of that agency

action.12 That makes sense. The APA does not require

“potentially affected parties to predict the future.”

PDR Network, LLC v. Carlton & Harris Chiropractic,

Inc., 139 S. Ct. 2051, 2062 (2019) (Kavanaugh, J.,

concurring).

“Some courts, it is true, have suggested that an

APA claim ‘first accrues ‘on the date of the final

agency action.’ But these cases show why [courts]

10 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4191798.

11 A related scenario is where an agency issues informal guidance

interpreting a long-extant regulation to apply to conduct or

parties that were thought to be outside its scope.

12 A “final agency action” will either occur contemporaneously

with or precede legally cognizable injury to a private party. For

this practical reason, the timing of when a particular plaintiff

meets the requirements of Section 702 and thus has a right of

review under the APA governs when Section 2401(a)’s six-year

clock for bringing APA claims starts ticking.

17

don’t read precedents like statutes.” 13 Herr, 803 F.3d

at 819 (citations omitted). Section 2401(a) “contains

no language suggesting that the limitations period

starts when a plaintiff’s predecessor in interest could

first file a lawsuit.” Id. at 821. The notion “that a right

of action under the APA accrues upon final agency

action regardless of whether that action aggrieved the

plaintiff . . . contradicts the text of the statute and

Supreme Court precedent to boot.” Id. at 819.

III.

Newly Harmed Parties Should Not Have

to Risk Prosecution to Challenge Old

Regulations Carrying Criminal Penalties.

A. Many Untested Regulations

Criminal Penalties.

Carry

The broader context and implications of this case

also warrant discussion. “Today . . . most federal law

is not made by Congress. It comes in the form of rules

issued by unelected administrators.” Biden v.

Missouri, 142 S. Ct. 647, 659 (2022) (Alito, J.,

dissenting). To put this in perspective, “[i]n contrast

to the roughly 200 to 400 laws passed by Congress, the

federal administrative agencies adopt approximately

3,000 to 5,000 final rules each year.” Ronald A. Cass,

The Umpire Strikes Back: Expanding Judicial

Discretion for Review of Administrative Action, 73

Admin. L. Rev. 553, 559 (2021). There are untold

13 Respondent erroneously embraces this case law. See BIO 8–9;

see also Pet. Br. 21–22. The decision below made the same

mistake, apparently linking Section 2401(a)’s six-year

limitations period with Section 704’s finality requirement,

instead of Section 702’s plaintiff-harm requirement. See App. 6.

18

thousands of regulations governing private conduct in

the Code of Federal Regulations, which is over

180,000 pages. See id.; see also Total Pages Published

in the Code of Federal Regulations (1951–2021),

George Washington Regulatory Studies Center.14

Although Petitioner here suffers from downstream

pocketbook harms flowing from the regulation at

issue, it bears considering that violations of

regulations frequently carry draconian civil and

criminal penalties. Indeed, “virtually every regulatory

scheme, . . . includes felony criminal enforcement

provisions to add ‘teeth’ to the costs of noncompliance,

covering such diverse areas as environmental safety,

securities markets, employment practices, consumer

protection, public benefits, and international trade.”

Stuart P. Green, Why It’s a Crime to Tear the Tag Off

A Mattress: Overcriminalization and the Moral

Content of Regulatory Offenses, 46 Emory L.J. 1533,

1544 (1997). “By one estimate, there are over 300,000

federal regulations that may be enforced criminally.”

John C. Coffee Jr., Does “Unlawful” Mean

“Criminal”?: Reflections on the Disappearing

Tort/Crime Distinction in American Law, 71 B. U. L.

Rev. 193, 216 (1991).

B. Ultra Vires Regulations,

Stale, Are Mere Nullities.

However

Here’s the rub: some proportion of these agency

rules of any vintage may well be mere nullities with

no legal force or effect. “An agency, after all, literally

14https://regulatorystudies.columbian.gwu.edu/sites/g/files/zaxd

zs4751/files/2022-11/totalpagescodefedreg_11-01-2022.pdf.

19

has no power to act—including under its

regulations—unless and until Congress authorizes it

to do so by statute.” Ted Cruz for S., 142 S. Ct. at 1649

(cleaned up). It follows that “a regulation initially

unauthorized by statute cannot become authorized by

the mere passage of time.” Dunn-McCampbell, 112

F.3d at 1290 (Jones, J., dissenting). Cf. Kuhnle Bros.,

Inc., v. County of Geauga, 103 F.3d 516, 521–22 (6th

Cir. 1997) (“A law that works an ongoing violation of

constitutional rights does not become immunized from

legal challenge for all time merely because no one

challenges it within two years of its enactment.”). Put

another way, “an agency’s ‘regulation which . . .

operates to create a rule out of harmony with the

statute, is a mere nullity.’” George v. McDonough, 142

S. Ct. 1953, 1966 (2022) (quoting Dixon v. United

States, 381 U.S. 68, 74 (1965)). The same holds true

for regulations out of harmony with the Constitution.

Cf. Collings v. Yellen, 141 S. Ct. 1761, 1788–89 (2020).

Yet many regulations have never been subject to

legal challenge. Regulated entities may decline to

challenge regulations they believe to be unlawful for a

variety of reasons, such as resource constraints, fear

of angering their regulator, or naked self-interest.

And of the subset of regulations that have been tested

in court, it is often the case, as here, that only a single

circuit has weighed in. For that matter, some

regulations are rarely, if ever, enforced or may

otherwise fly under the radar of regulated entities for

decades, some of which may not have even existed

when the regulation was promulgated. See Morse,

supra, 6. Cf. PDR Network, 139 S. Ct. at 2062

(Kavanaugh, J., concurring) (“On some occasions, the

entities against whom an enforcement action is

20

brought may not even have existed back when an

agency order was issued.”). Put simply, there is a vast

body of administrative law promulgated by unelected

agency officials that may well be unlawful, including

regulations backed by hefty civil and even criminal

penalties.

This raises the practical and recurring question

how are law abiding citizens and businesses newly

harmed by burdensome requirements or prohibitions

imposed by long-extant regulations supposed to

determine whether these proclamations are valid

binding rules or, alternatively, nullities? Cf.

Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C.

Cir. 1958) (“[L]imiting the right of review of the

underlying rule would effectively deny many parties

ultimately affected by a rule an opportunity to

question its validity.”).

C. Pre-enforcement Review Is Often The

Only Safe Pathway to Judicial Review.

As discussed above, and explained by Petitioner,

see Pet. Br. 18–19, 30–31, the APA’s plain text

supplies the answer, generally granting newly

harmed persons meeting the requirements of 5 U.S.C.

§ 702 the right to seek declaratory and injunctive

relief from unlawful federal regulations of any vintage

without first risking an enforcement action. In other

words, “[w]hen a party first becomes aggrieved by a

regulation that exceeds an agency’s statutory

authority more than six years after the regulation was

promulgated, that party may challenge the regulation

21

without waiting for enforcement proceedings.” 15 Herr,

803 F.3d at 822.

This makes sense. After all, “[i]n this country,

people should not have to risk prison time in order to

challenge the lawfulness of government action.” CIC

Servs., LLC v. IRS, 936 F.3d 501, 505 (6th Cir. 2019)

(Thapar, J., dissenting from the denial of rehearing en

banc). “Ordinarily, administrative law does not intend

to leave regulated parties caught between a hammer

and an anvil.” CIC Servs., LLC v. IRS, 925 F.3d 247,

259 (6th Cir. 2019) (Nalbandian, J., dissenting)

(cleaned up), rev’d, 141 S. Ct. 1582 (2021). And courts

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

by taking the violative action’ before ‘testing the

validity of the law[.]’” Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd., 561 U.S. 477, 490 (2010)

(quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S.

118, 129 (2007)). The APA’s generally applicable

strong presumption of judicial review of agency action

underscores this point. See Sackett v. EPA, 566 U.S.

120, 128 (2012); Abbott Labs., 387 U.S. at 140; Bowen

v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670

(1986) (noting “strong presumption” in favor of

judicial review under the APA that is only rebutted by

“clear and convincing evidence”).

15 As the decision below recognized, “Herr did not distinguish

between as-applied and facial challenges.” App. 10; see also

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

Herr, 803 F.3d at 820–22). In any event, as here, see App. 84–85,

Herr involved claims seeking facial relief, see Am. Compl. pp.

18–19, Dkt. No. 4, Herr v. U.S. Forest Serv., No. 2:14-cv-105-PLM

(W.D. Mich. June 6, 2014).

22

If it were otherwise, a broad corpus of long-extant

regulations would be effectively insulated from

judicial scrutiny—no matter how ultra vires or

otherwise unlawful. Regulations backed up by

“criminal penalties . . . practically necessitate a preenforcement . . . suit—if there is to be a suit at all.”

CIC Servs., LLC v. IRS, 141 S. Ct. 1582, 1592 (2021).

As this Court has long recognized, to impose on a

party “the burden of obtaining a judicial decision . . .

only upon the condition that, if unsuccessful, he must

suffer imprisonment and pay fines . . . is, in effect, to

close up all approaches to the courts.” 16 Ex parte

Young, 209 U.S. 123, 148 (1908) (holding

unconstitutional the provisions of an act precluding

pre-enforcement judicial review of rates and

associated penalties for failure to comply). The right

to judicial review “is merely nominal and illusory if

the party to be affected can appeal to the courts only

at the risk of having to pay penalties so great that it

is better to yield to orders of uncertain legality rather

than to ask for the protection of the law.” Wadley S.

Ry. Co. v. Georgia, 235 U.S. 651, 661 (1915); see also

Okla. Operating Co. v. Love, 252 U.S. 331, 336–37

(1920) (forcing party to violate regulation and trigger

contempt proceeding to obtain judicial review violates

due process).

In other words, “[t]he price of error may be so

heavy as to erect an unfair barrier against the

endeavor of an honest litigant to obtain the judgment

16 Cf. Herr, 803 F.3d at 822 (“[T]he Forest Service has threatened

criminal action against the Herrs. Does anyone really think that

the Herrs would not be allowed to challenge the Forest Service’s

administrative authority . . . ? That is a steep climb.”).

23

of a court. In that event, the Constitution intervenes

and keeps the court room open.” Life & Cas. Ins. Co.

v. McCray, 291 U.S. 566, 574–75 (1934) (Cardozo, J.);

see also United States v. Nourse, 34 U.S. 8, 28–29

(1835) (Marshall, C.J.). In sum, the Constitution

requires that “judicial review must be substantial,

adequate and safely available[.]” Wadley, 235 U.S. at

661 (emphasis added).

Against this backdrop, this Court has repeatedly

held a party “need not await enforcement proceedings

before challenging final agency action where such

proceedings carry the risk of serious criminal and civil

penalties.” Hawkes, 136 S. Ct. at 1815 (cleaned up).

The question of statutory interpretation this case

presents should be answered consistent with these

principles to keep the courthouse doors open to parties

newly harmed by old regulations. Cf. Cal. Sea Urchin

Comm’n v. Bean, 828 F.3d 1046, 1051 (9th Cir. 2016)

(“[A]n agency should not be able to sidestep a legal

challenge to one of its actions by backdating the action

to when the agency first published an applicable or

controlling rule.”).

IV.

Policy Considerations

Statutory Text.

Cannot

Trump

Policy-based concerns about finality and

government efficiency cannot justify ignoring the

statute. Policy-based parade-of-horribles arguments

cannot override statutory text. Statutes are not

chameleons that can change meaning to accommodate

atextual public policy concerns nowhere to be found in

the words Congress enacted into law. But cf. Lewis

Carroll, Through the Looking Glass (“‘When I use a

word,’ Humpty Dumpty said in rather a scornful tone,

24

‘it means just what I choose it to mean—neither more

nor less.’ ‘The question is,’ said Alice, ‘whether you can

make words mean so many different things.’”). 28

U.S.C. § 2401(a)’s “accrual” language is plaintiffharm-focused in all contexts and does not magically

change meaning for a subset of APA claims. 17

Balancing the government’s interest in finality, or

repose, against the citizenry’s right to challenge

government decisions adversely affecting their lives

or livelihoods in court and resolving this tension

between competing interests is a legislative choice,

subject, of course, to constitutional constraints. “It is

Congress, not this Court, that balances those

interests.” Rotkiske v. Klemm, 140 S. Ct. 355, 361

(2019); see Azar v. Allina Health Servs., 139 S. Ct.

1804, 1815 (2019) (“[C]ourts aren’t free to rewrite

clear statutes under the banner of . . . policy

concerns.”). Whatever the wisdom of a judicially

created APA-only carve-out from Section 2401(a)’s

plaintiff-harm-focused accrual rule, it has no basis

whatsoever in the statute’s text. Whatever the policy

merits a statute of repose for challenges to

regulations, Congress chose instead to write a

traditional statute of limitations subject to the normal

rules. That choice should be respected.

17 Section 2401(a)’s text does not distinguish between facial and

as-applied claims or otherwise draw distinctions between types

of APA claims. See Pet. Br. 34. And an unlawful regulation that

violates the APA is an unlawful regulation and thus a nullity,

regardless of the reason why.

25

CONCLUSION

For these reasons, this Court should reverse the

decision below.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

November 20, 2023