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 AMICI CURIAE

GOVERNOR HENRY MCMASTER AND

THE SOUTH CAROLINA DEPARTMENT OF

LABOR, LICENSING & REGULATION

IN SUPPORT OF PETITIONER

Susan M. Boone

General Counsel

S.C. DEP’T OF LABOR,

LICENSING &

REGULATION

110 Centerview Drive

Columbia, SC 29210

Counsel for Amicus

Curiae LLR

Thomas A. Limehouse, Jr.

Chief Legal Counsel

Wm. Grayson Lambert

Senior Litigation Counsel

Counsel of Record

Erica W. Shedd

Deputy Legal Counsel

OFFICE OF THE GOVERNOR

South Carolina State House

1100 Gervais Street

Columbia, SC 29201

(803) 734-2100

glambert@governor.sc.gov

Counsel for Amicus Curiae

Governor McMaster

November 20, 2023

i

QUESTION PRESENTED

Does a plaintiff’s APA claim “first accrue[]” under

28 U.S.C. § 2401(a) when an agency issues a rule—

regardless of whether that rule injures the plaintiff on

that date (as the Eighth Circuit and five other circuits

have held)—or when the rule first causes a plaintiff to

“suffer[] legal wrong” or be “adversely affected or aggrieved” (as the Sixth Circuit has held)?

ii

TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE.............................. 1

SUMMARY OF ARGUMENT .................................... 2

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

I.

II.

Based on the decision below, federal agencies

can delay enforcement of a rule to avoid legal

challenges to that rule ........................................ 3

A.

South Carolina has successfully administered its state OSHA plan for decades ....... 3

B.

In 2016, OSHA promulgated a rule requiring that state plans increase their civil penalties to match federal civil penalties ........ 4

C.

For years, OSHA made no attempt to enforce this mandate ...................................... 6

D.

OSHA argues that challenges to the mandate on state civil penalties are time

barred .......................................................... 8

First principles and well-established Article III

case law support reversal ................................. 11

CONCLUSION.......................................................... 13

iii

TABLE OF AUTHORITIES

Cases

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ............................................12

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) ............................................13

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

561 U.S. 477 (2010) ................................................10

Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743 (2019) ..............................................3

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ................................................13

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ..................................12

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) ..............................................6

Nat’l Park Hosp. Ass’n v. Dep’t of Interior,

538 U.S. 803 (2003) ................................................11

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ..................................................3

Toilet Goods Ass’n, Inc. v. Gardner,

387 U.S. 158 (1967) ................................................11

iv

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021) ..............................................12

Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc.,

454 U.S. 464 (1982) ................................................12

West Virginia v. Env’t Prot. Agency,

142 S. Ct. 2587 (2022) ............................................12

Constitutional Provisions

S.C. Const. art. IV, §15 ................................................1

S.C. Const. art. VI, §5 ..................................................1

U.S. Const. art. I ........................................................12

U.S. Const. preamble.................................................12

Statutes

5 U.S.C. § 702 ............................................................13

29 U.S.C. § 666 ............................................................5

29 U.S.C. § 667 ............................................................4

29 U.S.C. § 667(c)(2) ................................................4, 6

S.C. Code Ann. § 1-30-10(A)(12) .................................2

S.C. Code Ann. § 40-1-40(D)........................................2

v

S.C. Code Ann. § 41-15-320 .........................................4

Other Authorities

Arizona State Plan for Occupational Health and

Safety; Proposed Reconsideration and Revocation,

87 Fed. Reg. 23,783 (Apr. 21, 2022) .........................8

Department of Labor Federal Civil Penalties

Inflation Adjustment Act Annual Adjustments for

2017, 82 Fed. Reg. 5373 (Jan. 18, 2017) ..................6

Department of Labor Federal Civil Penalties

Inflation Adjustment Act Annual Adjustments for

2022, 87 Fed. Reg. 2328 (Jan. 14, 2022) ..................9

Department of Labor Federal Civil Penalties

Inflation Adjustment Act Annual Adjustments for

2023, 88 Fed. Reg. 2210 (Jan. 13, 2023) ..................7

Department of Labor Federal Civil Penalties

Inflation Adjustment Act Catch-Up Adjustments,

81 Fed. Reg. 43,430 (July 1, 2016) ...........................5

OSHA, FY 2021 South Carolina FAME Report .........7

OSHA, State Plan Policies and Procedures Manual

(May 6, 2020) ............................................................8

OSHA, U.S. Department of Labor Announces Plan to

Withdraw Proposal to Reconsider, Revoke Arizona

State OSHA Plan’s Final Approval

(Feb. 14, 2023) ..........................................................8

vi

South Carolina Developmental Plan, 37 Fed. Reg.

25,932 (Dec. 6, 1972) ................................................4

South Carolina State Plan: Final Approval

Determination, 52 Fed. Reg. 48,103

(Dec. 18, 1987) ..........................................................4

South Carolina: Certification of Completion of

Developmental Steps, 41 Fed. Reg. 32,424 (Aug. 3,

1976) .........................................................................4

The Federalist No. 37 ................................................11

The Federalist No. 52 ................................................11

Legsilative Acts

Federal Civil Penalties Inflation Adjustment Act of

2015, Pub. L. 114-74, Title VII, 129 Stat. 584 (Nov.

2, 2015) .................................................................5, 7

Occupational Safety and Health Act of 1970, Pub. L.

91-596, 84 Stat. 1590 (Dec. 29, 1970) ..................4, 5

Omnibus Reconciliation Act of 1990, Pub. L. 101-508,

104 Stat. 1388 (Jan. 23, 1990) .................................5

1

INTERESTS OF AMICI CURIAE

Henry McMaster is Governor of the State of

South Carolina.1 He has at least two distinct interests

in this case. First, he has sworn to “preserve, protect,

and defend” both the South Carolina Constitution and

the United States Constitution, S.C. Const. art. VI,

§ 5, and to “take care that the laws be faithfully executed,” id. art. IV, § 15. He therefore has a strong interest in ensuring that an unlawful federal mandate

does not usurp South Carolina’s sovereign authority

to enforce its duly enacted laws.

Second, Governor McMaster is the lead plaintiff

in a lawsuit challenging the U.S. Department of Labor

Occupational Safety and Health Administration’s recent attempt to force States with state plans to increase their statutory civil penalties to match federal

civil penalties without complying with the Administrative Procedure Act. See McMaster v. U.S. Dep’t of

Labor, No. 3:22-cv-2603 (D.S.C.) (McMaster I);

McMaster v. U.S. Dep’t of Labor, No. 3:23-cv-1038

(D.S.C.) (McMaster II). One issue directly raised in

this litigation is when § 2401(a)’s six-year limitations

period begins to run. The facts of this litigation provide an excellent illustration of the dangers of holding

that a claim accrues when an agency issues a rule, rather than when a plaintiff suffers a harm.

1 Pursuant to Supreme Court Rule 37.6, amici curiae state

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

part and that no entity or person, aside from amici curiae and

their counsel, made any monetary contribution intended to fund

the preparation or submission of this brief.

2

The South Carolina Department of Labor, Licensing & Regulation (“LLR”) is a department within

the executive branch of state government and is part

of the Governor’s Cabinet. S.C. Code Ann. § 1-3010(A)(12). LLR’s director “supervise[s] the department under the direction and control of the Governor”

and “exercise[s] other powers and perform[s] other duties as the Governor requires.” Id. § 40-1-40(D).

LLR has successfully administered South Carolina’s state OSHA plan for decades. It is a plaintiff

with the Governor in these lawsuits, and it has a special interest in ensuring that federal OSHA cannot enforce mandates that exceed federal OSHA’s authority

on South Carolina’s state OSHA plan.

SUMMARY OF ARGUMENT

Corner Post presents a compelling fact pattern

showing why the decision below makes no sense. After

all, how could a plaintiff possibly sue when the plaintiff doesn’t even exist?

This amicus brief presents another persuasive

fact pattern for reversal: An agency can promulgate a

rule, take no action to enforce it, and then—when the

limitations period to challenge the rule has almost expired—begin enforcing the rule.

For the Governor and LLR, this fact pattern

arose in the OSHA context. In a 2016 interim final

rule, OSHA announced that state plans must increase

their state civil penalties to meet (or exceed) increased

federal civil penalties. Yet years went by without

OSHA enforcing that mandate. Only as the

3

limitations period was set to expire did OSHA take the

first step to begin enforcing the mandate.

First principles and well-established case law require rejecting such a result. As a matter of constitutional theory, government should be responsive and

accountable to the People, so administrative agencies

(and their unelected officials) ought not have any incentive to run out the clock on challenges to their rules

before enforcing them. And as a matter of constitutional law, this Court has “often explained that federal

courts are courts of limited jurisdiction.” Home Depot

U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019)

(cleaned up). Part of that limited jurisdiction under

Article III is a plaintiff showing that he has suffered a

“concrete and particularized” injury. Spokeo, Inc. v.

Robins, 578 U.S. 330, 339 (2016). A plaintiff cannot

suffer an injury either when a plaintiff does not exist

or when government officials have not taken steps to

enforce a particular rule.

ARGUMENT

I.

Based on the decision below, federal agencies can delay enforcement of a rule to

avoid legal challenges to that rule.

South Carolina’s recent experience with OSHA

demonstrates the perverse incentive structure that

the decision below creates.

A.

South Carolina has successfully administered its state OSHA plan for decades.

As part of the Occupational Safety and Health

Act of 1970, Pub. L. 91-596, 84 Stat. 1590 (Dec. 29,

4

1970), Congress gave States two options for regulating

workplaces. States could permit workplaces in their

borders to be governed directly by federal standards

and OSHA, or States could create and administer

their own plans for workplace safety and health. See

29 U.S.C. § 667. If a State chooses the latter option,

its plan must meet certain criteria, including providing “for the development and enforcement of safety

and health standards relating to one or more safety or

health issues, which standards (and the enforcement

of which standards) are or will be at least as effective

in providing safe and healthful employment and

places of employment as the standards promulgated”

by OSHA. Id. § 667(c)(2) (emphasis added).

Like many other States, South Carolina chose to

create its own state plan, which received final approval from the Secretary of Labor. See South Carolina State Plan: Final Approval Determination, 52

Fed. Reg. 48,103 (Dec. 18, 1987); see also South Carolina Developmental Plan, 37 Fed. Reg. 25,932 (Dec. 6,

1972); South Carolina: Certification of Completion of

Developmental Steps, 41 Fed. Reg. 32,424 (Aug. 3,

1976). LLR has successfully administered the state

plan for decades. In South Carolina, the civil penalties

for violating the state plan are set by statute and are

the same as those found in 29 U.S.C. § 666. See S.C.

Code Ann. § 41-15-320.

B.

In 2016, OSHA promulgated a rule requiring that state plans increase their

civil penalties to match federal civil

penalties.

Federal civil penalties for violations of the OSH

Act and related regulations were set originally by the

5

OSH Act in 1970. See OSH Act, § 17, 84 Stat. at 1606–

07. Congress increased these penalties in 1990. See

Omnibus Reconciliation Act of 1990, Title III, § 3101,

Pub. L. 101-508, 104 Stat. 1388, 1388-29 (Jan. 23,

1990). These penalty levels remain codified today. See

29 U.S.C. § 666.

But despite being part of the U.S. Code, those are

not actually the maximum penalty amounts that

OSHA uses today and now seeks to impose on States.

Instead, the amounts of federal civil penalties are

found in the Code of Federal Regulations after Congress required annual updates to these federal penalties in the Federal Civil Penalties Inflation Adjustment Act of 2015, Pub. L. 114-74, Title VII, 129 Stat.

584, 599 (Nov. 2, 2015) (2015 Federal Penalties Act).

This legislation required a one-time adjustment to the

federal civil penalties “through an interim final rulemaking” process. Id. § 701(b)(1)(D), 129 Stat. at 599.

OSHA issued an interim final rule in July 2016.

See Department of Labor Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments, 81

Fed. Reg. 43,430 (July 1, 2016). In that rule, OSHA

demanded that state plans “increase their penalties to

reflect the federal penalty increases at the state levels

in order to maintain this ‘at least as effective’ status.”

Id. at 43,446. OSHA further declared that “State

Plans will also be required to increase their penalties

regularly in the future to maintain at least as effective

penalty levels.”2 Id. at 43,447.

2 The OSH Act requires only that “the enforcement” of a

state plan’s standards “be at least as effective in providing safe

and healthful employment and places of employment as the

6

OSHA used the 2017 annual adjustment to address comments it received on the 2016 interim final

rule. OSHA claimed that its new rule reflected its

“long-standing position” “that ‘at least as effective,’ in

this context, means that State Plans must have maximum and minimum penalty levels that are at least as

high as OSHA’s maximum and minimum penalty levels.”3 Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2017,

82 Fed. Reg. 5373, 5375 (Jan. 18, 2017).

C.

For years, OSHA made no attempt to

enforce this mandate.

In addition to the 2016 interim final rule, the

2015 Federal Penalties Act also requires OSHA to

make annual adjustments to these federal penalties

for inflation, and it exempts these adjustments from

standards promulgated” by OSHA. 29 U.S.C. §667(c)(2). That’s a

results-oriented requirement. The 2016 interim final rule, however, included no discussion of how this statutory text implicitly

mandates matching penalties without any regard for whether

those penalties result in safer and healthier workplaces or

whether lower penalty amounts might accomplish the same goal.

The only rationale in the 2016 interim final rule for requiring

increased penalties was a “deterrence principle[]” that “rational

actors are less likely to commit violations when faced with higher

penalties,” 81 Fed. Reg. at 43,445 (emphasis omitted), yet it fails,

for example, to account for things like cost-of-living differences

across the country or why South Carolina’s workplaces have been

safer than the national average over the past seven years, despite

lower civil penalties than the federal ones.

3 Once again, OSHA did not engage with the statutory text

in the 2017 annual adjustment. This matters because “to the extent later history contradicts what the text says, the text controls.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.

2111, 2137 (2022).

7

the

APA’s

notice-and-comment

requirements.

§ 701(b)(1)(D), 129 Stat. at 599. Every year since 2017,

OSHA has issued that annual adjustment. See, e.g.,

Department of Labor Federal Civil Penalties Inflation

Adjustment Act Annual Adjustments for 2023, 88 Fed.

Reg. 2210 (Jan. 13, 2023). Each of these annual adjustments has included the claim that “State Plans

are required to increase their penalties in alignment

with OSHA’s penalty increases to maintain at least as

effective penalty levels.” E.g., 88 Fed. Reg. at 2213.

Despite these annual adjustments and repeated

declarations, OSHA did not take any steps to require

state plans to increase their civil penalties or risk loss

of their state plans.4 Significantly, OSHA did not

make the failure to increase civil penalties a “finding”

in South Carolina’s Federal Annual Monitoring Evaluation Report (better known as a FAME Report) in FY

2016. Or FY 2017. Or FY 2018. Or FY 2019. Or FY

2020.

Only in the FY 2021 FAME Report (issued in August 2022) did OSHA determine that South Carolina’s

statutory civil penalties constitute a “finding.” See

OSHA, FY 2021 South Carolina FAME Report, at 18,

https://tinyurl.com/26dfz8s2. Findings in a FAME Report are significant because they are “limited to those

4 The increases in civil money penalties that OSHA is forcing on state plans are significant. Just the jump in federal civil

penalties from 2022 to 2023 was more than 7%. Since the first

annual adjustment in 2016 to 2023, the increase is more than

20%. And if South Carolina were required to increase its state

civil penalties from the interim final rule to align with federal

civil penalties, South Carolina would initially have to raise its

statutory penalties on employers by more than 120% (and do so

annually thereafter).

8

issues that warrant corrective action by the State Plan

to ensure it is [at least as effective]” as the federal

standards. OSHA, State Plan Policies and Procedures

Manual

74

(May

6,

2020),

https://tinyurl.com/2p93wtfv.

This was also the time period in which OSHA began to take action against other state plans. Most notably, OSHA published a notice that it was reconsidering final approval of Arizona’s state plan, based in

part on the fact that Arizona had not increased its civil

penalties since the 2016 interim final rule. See Arizona State Plan for Occupational Health and Safety;

Proposed Reconsideration and Revocation, 87 Fed.

Reg. 23,783, 23,786–87 (Apr. 21, 2022). OSHA withdrew this notice only after Arizona passed a state law

to increase those penalties. See OSHA, U.S. Department of Labor Announces Plan to Withdraw Proposal

to Reconsider, Revoke Arizona State OSHA Plan’s Final

Approval

(Feb.

14,

2023),

https://tinyurl.com/3z2vpjns.

D.

OSHA argues that challenges to the

mandate on state civil penalties are

time barred.

Just days after OSHA included this finding in the

FY 2021 Fame Report, Governor McMaster and LLR

sued in the District of South Carolina. In McMaster I,

the Governor and LLR took a narrow focus and challenged the 2022 annual adjustment, which, like previous adjustments, included the language claiming that

state plans must increase their civil penalties to align

with federal civil penalties to comply with the OSH

Act. See Compl., McMaster I (D.S.C. Aug. 8, 2022),

ECF No. 1; see also Department of Labor Federal Civil

9

Penalties Inflation Adjustment Act Annual Adjustments for 2022, 87 Fed. Reg. 2328, 2331–32 (Jan. 14,

2022). Ultimately, the district court concluded that

the “mandate” that the Governor and LLR challenged

in 2022 annual adjustment was not a final agency action under § 702 of the APA because it was simply restating OSHA’s position from the 2016 interim final

rule. Order 8–9, McMaster I (D.S.C. Mar. 2, 2023),

ECF No. 34.

Accepting the district court’s conclusion for the

sake of focusing on the merits of OSHA’s argument,

the Governor and LLR filed a second lawsuit less than

two weeks later—this time challenging OSHA’s mandate in the 2016 interim final rule that state civil penalties had to match the federal ones. See Compl.,

McMaster II (D.S.C. Mar. 14, 2023). OSHA moved to

dismiss again, arguing that certain claims were untimely under § 2401(a). OSHA argued that it had responded to the public comments to the 2016 interim

final rule in the 2017 annual adjustment on January

18, 2017, and McMaster II was filed in March 2023—

a little more than six years later. See Mot. to Dismiss

13–15, McMaster II (D.S.C. May 22, 2023), ECF No.

12.

The Governor and LLR responded to this argument in two ways. First, they explained why that limitations period should be equitably tolled. See Resp. to

Mot. to Dismiss 8–12, McMaster II (D.S.C. June 5,

2023), ECF No. 14. Second, they sought leave to reopen McMaster I and file an amended complaint that

related back to the August 2022 filing date. See Rule

60(b) Mot., McMaster I (D.S.C. June 5, 2023), ECF No.

36. After this Court granted cert in this case, the

10

Governor and LLR moved to stay both McMaster I and

McMaster II. Those motions are pending.

Notwithstanding the procedural complexities of

McMaster I and McMaster II, a critical issue is the

same as the issue in this case. Are the Governor and

LLR precluded from challenging OSHA’s mandate on

state civil penalties because their “APA claim first accrue[d] under 28 U.S.C. §2401(a) when [OSHA] issued

its rule?” Pet. 1 (cleaned up). Or may they challenge

the rule now that OSHA has decided to enforce it,

causing the Governor and LLR to “suffer legal wrong”

and be “adversely affected or aggrieved”? Id. (cleaned

up).

OSHA’s delayed enforcement has resulted in a

situation that, absent correction of the decision below,

prevents a direct challenge to OSHA’s belated enforcement of the mandate on state plans. This leaves the

Governor and LLR in a position either to capitulate to

OSHA’s mandate or to refuse to comply and face revocation of the state plan (only at which point, says

OSHA, can the mandate be challenged). But this latter option does not provide a meaningful chance for

judicial review. This Court has refused to allow the

only avenue to the courthouse to be “bet[ting] the

farm,” “incur[ring] a sanction,” and facing “severe

punishment should its challenge fail.”5 Free Enter.

Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477,

490 (2010).

5 To be sure, the Governor and LLR don’t know why OSHA

decided to start enforcing the mandate in the 2016 interim final

rule when it did, but they have no reason to believe that OSHA’s

nonenforcement was driven by § 2401(a).

11

This fact pattern is not limited to OSHA and

state plans. Any federal agency could delay, ignore, or

somehow put off enforcing a new rule until the limitations period for challenging it expires. During that

time, if anyone challenged the rule, an agency could

insist the claim was not ripe because it was not clear

whether or how the agency would enforce the rule, see

Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 163

(1967), particularly if, for instance, a few years had

already elapsed since the rule was published, thereby

undermining any argument that the rule was “felt immediately by those subject to it in conducting their

day-to-day affairs,” Nat’l Park Hosp. Ass’n v. Dep’t of

Interior, 538 U.S. 803, 810 (2003). Then, after six

years had passed, an agency could begin enforcing the

rule. And when the next lawsuit was filed, the agency

could insist that § 2401(a) barred that claim. The law

should not create such a perverse incentive nor deny

a plaintiff the ability to pursue meaningful review of

a ripe claim.

II.

First principles and well-established Article III case law support reversal.

A. A core principle of our constitutional design is

that “government in general should have a common

interest with the people” and, when it comes to making law and policy, government “should have an immediate dependence on, and an intimate sympathy

with, the people.” The Federalist No. 52, p. 324 (A.

Hamilton or J. Madison) (C. Rossiter & C. Kelser eds.

2003); see also id., No. 37, p. 223 (J. Madison) (frequent elections keep government accountable to the

People).

12

Agencies can be the least responsive part of the

federal government. No one elects them, and only toplevel officials are appointed by the President, who is

politically accountable. When agencies have the power

to promulgate rules “more or less at whim,” “[i]ntrusions on liberty” are “easy and profuse.” West Virginia

v. Env’t Prot. Agency, 142 S. Ct. 2587, 2618 (2022)

(Gorsuch, J., concurring).

Judicial review of agency action ensures that

agencies utilize only the authority that Congress has

given them. “We the People” gave the power to write

laws to Congress—not to federal agencies. U.S. Const.

preamble; see also id. art. I. To the extent Congress

continues to delegate lawmaking power to those agencies, the People must have a way to hold agencies accountable. And the most direct way is for courts to use

their “province and duty . . . to say what the law is”

and avoid agencies escaping having to defend their

rules. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803).

B. This Court’s standing jurisdiction points in

the same direction. Article III’s “bedrock requirement”

of standing, Valley Forge Christian Coll. v. Americans

United for Separation of Church & State, Inc., 454

U.S. 464, 471 (1982), includes “an injury in fact,”

Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797 (2021).

Such an injury must be “a concrete and imminent

harm to a legally protected interest” that gives a

plaintiff a “personal stake in the case.” Biden v. Nebraska, 143 S. Ct. 2355, 2365 (2023) (internal quotation mark omitted).

This is—and has been—black-letter law for decades. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–

13

61 (1992) (explaining old case law in the now-familiar

three-element test). There is no reason to depart from

this rule now. Indeed, it works as well in a challenge

to an agency rule as in any other case: A plaintiff can

sue when a plaintiff has suffered a harm. True, the

APA may impose additional requirements for a plaintiff to meet (such as an “agency action,” 5 U.S.C.

§ 702), but nothing in the APA does—or can—supplant constitutional requirements. The Court should

therefore reject the decisions by the circuit courts that

have created what amounts to a departure from normal constitutional rules. Such ventures rarely prove

successful. See, e.g., Dobbs v. Jackson Women’s Health

Org., 142 S. Ct. 2228, 2275 (2022) (lamenting how Roe

and Casey had “led to the distortion of many important but unrelated legal doctrines”).

CONCLUSION

For these reasons, the Court should reverse the

judgment below.

14

Respectfully submitted,

Thomas A. Limehouse, Jr.

Chief Legal Counsel

Wm. Grayson Lambert

Senior Litigation Counsel

Counsel of Record

Erica W. Shedd

Deputy Legal Counsel

OFFICE OF THE GOVERNOR

South Carolina State House

1100 Gervais Street

Columbia, SC 29201

(803) 734-2100

glambert@governor.sc.gov

Counsel for Amicus Curiae

Governor McMaster

Susan M. Boone

General Counsel

S.C. DEP’T OF LABOR,

LICENSING & REGULATION

110 Centerview Drive

Columbia, SC 29210

Counsel for Amicus Curiae

LLR