Amicus Curiae Brief — Corner Post, Inc., Petitioner v. Board of Governors of the Federal Reserve System
Supreme Court briefNov 20, 2023
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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 STATE OF
WEST VIRGINIA AND 17 OTHER STATES
IN SUPPORT OF PETITIONER
PATRICK MORRISEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS
Principal Deputy
Solicitor General
GRANT A. NEWMAN
Assistant Solicitor General
Counsel for Amicus Curiae State of West Virginia
[additional counsel listed after signature page]
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—or
when the rule first causes a plaintiff to “suffer[] legal
wrong” or be “adversely affected or aggrieved”?
II
TABLE OF CONTENTS
Question Presented .............................................................. I
Introduction and Interests of Amici Curiae ..................... 1
Summary of Argument ........................................................ 3
Argument .............................................................................. 5
I.
The Majority Rule Ignores The Principles,
Presumptions, and Purposes Behind Statutes
of Limitation .................................................................. 5
II. The Majority Rule Improperly Elevates
Regulations—and The Administrative State—
Above All Else ............................................................. 13
III. The Majority Rule Produces Everyday Harms
For States and Others ................................................ 19
Conclusion ........................................................................... 26
III
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott Lab’ys v. Gardner,
387 U.S. 136 (1967) ....................................................... 13
Alabama v. PCI Gaming Auth.,
801 F.3d 1278 (11th Cir. 2015) ..................................... 10
Alaska v. U.S. Dep’t of Agric.,
772 F.3d 899 (D.C. Cir. 2014) ................................ 11, 25
Alden v. Maine,
527 U.S. 706 (1999) ....................................................... 16
Artis v. District of Columbia,
583 U.S. 71 (2018) ........................................................... 7
Ass’n of Data Processing Serv. Orgs., Inc.
v. Camp,
397 U.S. 150 (1970) ....................................................... 13
Auer v. Robbins,
519 U.S. 452 (1997) ........................................... 17, 18, 23
Bond v. United States,
572 U.S. 844 (2014) ....................................................... 21
Bowen v. Massachusetts,
487 U.S. 879 (1988) ....................................................... 13
Buckley v. Valeo,
424 U.S. 1 (1976) ........................................................... 12
Burnett v. N.Y. Cent. R. Co.,
380 U.S. 424 (1965) ..................................................... 5, 6
California v. Azar,
911 F.3d 558 (9th Cir. 2018) ........................................... 7
IV
TABLE OF AUTHORITIES
(continued)
Page(s)
Carter v. Welles-Bowen Realty, Inc.,
736 F.3d 722 (6th Cir. 2013) ......................................... 18
Cedars-Sinai Med. Ctr. v. Shalala,
177 F.3d 1126 (9th Cir. 1999) ....................................... 19
Chase Sec. Corp. v. Donaldson,
325 U.S. 304 (1945) ......................................................... 1
City of Arlington v. FCC,
569 U.S. 290 (2013) ....................................................... 14
City of Saint Paul v. Evans,
344 F.3d 1029 (9th Cir. 2003) ....................................... 10
Credit Suisse Sec. (USA) LLC v.
Simmonds,
566 U.S. 221 (2012) ......................................................... 5
CTS Corp. v. Waldburger,
573 U.S. 1 (2014) ......................................................... 2, 8
Decker v. Nw. Env’t Def. Ctr.,
568 U.S. 597 (2013) ....................................................... 18
Dickerson v. United States,
530 U.S. 428 (2000) ....................................................... 16
Dunn-McCampbell Royalty Int., Inc. v.
NPS,
112 F.3d 1283 (5th Cir. 1997) ......................................... 2
Elgin v. Dep’t of Treasury,
567 U.S. 1 (2012) ........................................................... 10
FEC v. Cruz,
596 U.S. 289 (2022) ....................................................... 11
V
TABLE OF AUTHORITIES
(continued)
Page(s)
Fed. Mar. Comm’n v. S.C. State Ports
Auth.,
535 U.S. 743 (2002) ....................................................... 15
Franconia Assocs. v. United States,
536 U.S. 129 (2002) ..................................................... 6, 8
Geier v. Am. Honda Motor Co.,
529 U.S. 861 (2000) ....................................................... 21
Gen. Inv. Co. v. N.Y. Cent. R. Co.,
271 U.S. 228 (1926) ......................................................... 8
Graceba Total Commc’ns, Inc. v. FCC,
115 F.3d 1038 (D.C. Cir. 1997) .................................... 14
Green v. Brennan,
578 U.S. 547 (2016) ..................................................... 5, 6
Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020) ................................................... 14
Harris v. FAA,
353 F.3d 1006 (D.C. Cir. 2004) ...................................... 2
Herr v. U.S. Forest Serv.,
803 F.3d 809 (6th Cir. 2015) ................................. 2, 4, 16
Hire Order Ltd. v. Marianos,
698 F.3d 168 (4th Cir. 2012) ........................................... 2
Ill. Cent. Gulf R. Co. v. ICC,
720 F.2d 958 (7th Cir. 1983) ......................................... 14
Kirkpatrick v. Lenoir Cnty. Bd. of Educ.,
216 F.3d 380 (4th Cir. 2000) ......................................... 15
VI
TABLE OF AUTHORITIES
(continued)
Page(s)
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) ................................................... 17
Kissinger v. Reps. Comm. for Freedom of
the Press,
445 U.S. 136 (1980) ......................................................... 9
Lozano v. Montoya Alvarez,
572 U.S. 1 (2014) ............................................................. 5
Mohamad v. Palestinian Auth.,
566 U.S. 449 (2012) ....................................................... 12
Moore v. Harper,
600 U.S. 1 (2023) ........................................................... 10
Morris v. Gressette,
432 U.S. 491 (1977) ....................................................... 14
N.J. Dep’t of Env’t Prot. v. EPA,
626 F.2d 1038 (D.C. Cir. 1980) .................................... 11
Nat’l Credit Union Admin. v. First Nat’l
Bank & Tr. Co.,
522 U.S. 479 (1998) ......................................................... 2
Nw. Tissue Ctr. v. Shalala,
1 F.3d 522 (7th Cir. 1993)............................................. 14
PDR Network, LLC v. Carlton & Harris
Chiropractic, Inc.,
139 S. Ct. 2051 (2019) ......................................... 8, 12, 18
Perez v. Mortg. Bankers Ass’n,
575 U.S. 92 (2015) ......................................................... 18
Reed v. Goertz,
598 U.S. 230 (2023) ......................................................... 1
VII
TABLE OF AUTHORITIES
(continued)
Page(s)
Rotkiske v. Klemm,
140 S. Ct. 355 (2019) ....................................................... 6
Sackett v. EPA,
566 U.S. 120 (2012) ....................................................... 13
Shelby Cnty. v. Holder,
570 U.S. 529 (2013) ....................................................... 21
Sierra Club v. Flowers,
276 F. Supp. 2d 62 (D.D.C. 2003) .................................. 8
Talk Am., Inc. v. Mich. Bell Tel. Co.,
564 U.S. 50 (2011) ......................................................... 19
Texas v. Rettig,
987 F.3d 518 (5th Cir. 2021) ................................... 18, 19
Texas v. United States,
300 F. Supp. 3d 810 (N.D. Tex. 2018) ......................... 18
In re Trade-Mark Cases,
100 U.S. 82 (1879) ......................................................... 16
TRW Inc. v. Andrews,
534 U.S. 19 (2001) ........................................................... 5
Underwood Cotton Co. v. Hyundai Merch.
Marine (Am.), Inc.,
288 F.3d 405 (9th Cir. 2002) ........................................... 9
United States v. Briggs,
141 S. Ct. 467 (2020) ....................................................... 5
United States v. George,
228 U.S. 14 (1913) ......................................................... 17
VIII
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Pa. Indus. Chem. Corp.,
411 U.S. 655 (1973) ....................................................... 12
United States v. Windsor,
570 U.S. 744 (2013) ....................................................... 16
Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) ....................................................... 17
Vispisiano v. Ashland Chem. Co.,
527 A.2d 66 (N.J. 1987) ................................................ 10
West Virginia v. EPA,
142 S. Ct. 2587 (2022) ............................................. 15, 24
Wolin v. Smith Barney Inc.,
83 F.3d 847 (7th Cir. 1996) ............................................. 1
Wyeth v. Levine,
555 U.S. 555 (2009) ....................................................... 23
Statutes
1 U.S.C. § 7 .......................................................................... 16
18 U.S.C. § 3501 .................................................................. 16
28 U.S.C. § 2401 ................... 1, 2, 3, 4, 6, 8, 11, 12, 14, 19, 26
28 U.S.C. § 2501 .................................................................... 6
33 U.S.C. § 1369 .................................................................. 12
44 U.S.C. § 2901 .................................................................... 9
IX
TABLE OF AUTHORITIES
(continued)
Page(s)
Regulation
44 C.F.R. § 1222.22 ............................................................... 9
Other Authorities
Alexander Avery,
Foreign Corrupt Practices Act:
Pleading Parent-Subsidiary Liability,
35 J. NAT’L ASS’N ADMIN. L. JUDICIARY
131 (2015) ......................................................................... 7
Alexander Nabavi-Noori,
Agency Control and Internally
Binding Norms,
131 YALE L.J. 1278 (2022) ........................................... 15
Amanda Frost,
Judicial Review of FDA Preemption
Determinations,
54 FOOD & DRUG L.J. 367 (1999) ................................ 21
Ann Woolhandler & Michael G. Collins,
Reining in State Standing,
94 NOTRE DAME L. REV. 2015 (2019) ......................... 22
Ann Woolhandler,
Governmental Sovereignty Actions,
23 WM. & MARY BILL RTS. J. 209 (2014) .................... 22
Anthony Johnstone,
Hearing the States,
45 PEPP. L. REV. 575 (2018) ......................................... 20
X
TABLE OF AUTHORITIES
(continued)
Page(s)
Bradford Mank & Michael E. Solimine,
State Standing and National
Injunctions,
94 NOTRE DAME L. REV. 1955 (2019) ......................... 22
CFPB Invokes Dormant Authority to
Examine Nonbank Companies Posing
Risks to Consumers,
CFPB (Apr. 25, 2022) ................................................... 24
Charles Davant IV,
Sorcerer or Sorcerer’s Apprentice?:
Federal Agencies and the Creation of
Individual Rights,
2003 WIS. L. REV. 613 (2003) ....................................... 21
Christopher J. Walker,
Inside Agency Statutory
Interpretation,
67 STAN. L. REV. 999 (2015)......................................... 17
CLYDE WAYNE CREWS, JR.,
COMPETITIVE ENTER. INST., TEN
THOUSAND COMMANDMENTS: AN
ANNUAL SNAPSHOT OF THE FEDERAL
REGULATORY STATE (2022) ......................................... 15
David Sandler,
Forget What You Learned in Civics
Class: The “Enrolled Bill Rule” and
Why It’s Time to Overrule Field v.
Clark,
41 COLUM. J.L. & SOC. PROBS. 213
(2007) .............................................................................. 16
XI
TABLE OF AUTHORITIES
(continued)
Page(s)
David Zaring,
Reasonable Agencies,
96 VA. L. REV. 135 (2010) ............................................. 24
Elbert Lin,
States Suing the Federal Government:
Protecting Liberty or Playing
Politics?,
52 U. RICH. L. REV. 633 (2018) .................................... 20
Exec. Order No. 12,866 of Sept. 30, 1993,
Regulatory Planning and Review,
58 Fed. Reg. 51,735 (Oct. 4, 1993) ............................... 15
Ezra Rosser,
Affirmatively Resisting,
50 FLA. ST. U. L. REV. 123 (2022) ............................... 18
F. Andrew Hessick & William P. Marshall,
State Standing to Constrain the
President,
21 CHAP. L. REV. 83 (2018) .......................................... 20
Harry G. Hutchison,
Protecting Liberty? State Secret Ballot
Initiatives in the Shadow of
Preemption and Federalism,
6 NYU J.L. & LIBERTY 409 (2012) .............................. 23
J. Harvie Wilkinson III,
Assessing the Administrative State,
32 J.L. & POL. 239 (2017) ............................................. 25
XII
TABLE OF AUTHORITIES
(continued)
Page(s)
Jamelle C. Sharpe,
Toward (a) Faithful Agency in the
Supreme Court’s Preemption
Jurisprudence,
18 GEO. MASON L. REV. 367 (2011) ............................. 22
Jeffrey J. Polich,
Judicial Review and the Small
Business Regulatory Enforcement
Fairness Act,
41 WM. & MARY L. REV. 1425 (2000) .......................... 25
John F. Manning,
Constitutional Structure and Judicial
Deference to Agency Interpretations of
Agency Rules,
96 COLUM. L. REV. 612 (1996) ..................................... 17
John J. Coughlin,
The History of the Judicial Review of
Administrative Power and the Future
of Regulatory Governance,
38 IDAHO L. REV. 89 (2001).......................................... 15
Jonathan David Shaub,
Delegation Enforcement by State
Attorneys General,
52 U. RICH. L. REV. 653 (2018) .................................... 20
Kimberly L. Wehle,
Defining Lawmaking Power,
51 WAKE FOREST L. REV. 881 (2016) ......................... 17
XIII
TABLE OF AUTHORITIES
(continued)
Page(s)
Margaret H. Lemos & Ernest A. Young,
State Public-Law Litigation in an Age
of Polarization,
97 TEX. L. REV. 43 (2018)............................................. 21
Mark C. Miller,
State Attorneys General, Political
Lawsuits, and Their Collective Voice in
the Inter-Institutional Constitutional
Dialogue,
48 J. LEGIS. 1 (2021) ..................................................... 20
The Path of the Law,
10 HARV. L. REV. 457 (1897) .......................................... 1
Richard J. Pierce, Jr.,
The Combination of Chevron and
Political Polarity Has Awful Effects,
70 DUKE L.J. ONLINE 91 (1995) .................................. 25
S. Candice Hoke,
Preemption Pathologies and Civic
Republican Values,
71 B.U. L. REV. 685 (1991) ..................................... 23, 24
Timothy Sandefur,
The Timing of Facial Challenges,
43 AKRON L. REV. 51 (2010) ........................................ 16
U.S. DEP’T OF JUST.,
MODERNIZING THE ADMINISTRATIVE
PROCEDURE ACT (2020) ............................................... 25
INTRODUCTION AND
INTERESTS OF AMICI CURIAE
Statutes of limitation may not seem like the most
exciting of legal subjects—maybe that’s why Justice
Holmes once observed that they “never have been
explained or theorized about in any adequate way.” The
Path of the Law, 10 HARV. L. REV. 457, 476 (1897). But
they prove to be vital. Many a litigant has seen his or her
otherwise solid case stumble at the start because too much
time has gone by. At the same time, though, these statutes
often seem “difficult to fit … into a completely logical and
symmetrical system of law.”
Chase Sec. Corp. v.
Donaldson, 325 U.S. 304, 313 (1945). That’s especially so
when statutes of limitation are applied in an arbitrary and
unreasonable way. And as it turns out, it’s easier to fall
into this time trap than one might expect, as “the law
concerning statutes of limitations fairly bristles with
subtle, intricate, often misunderstood issues.” Wolin v.
Smith Barney Inc., 83 F.3d 847, 849 (7th Cir. 1996).
The potential for unjustifiable outcomes flowing from a
misunderstood statute of limitations is what this case is all
about.
For years now, federal agencies have convinced certain
courts that 28 U.S.C. § 2401(a) bars an Administrative
Procedure Act challenge brought more than six years
after an agency issues a rule. As Petitioner has explained,
Opening.Br.20-23, that understanding is hard to square
with the statute’s text. The statute says that the clock
starts running only when a claim “accrues”—that is, when
the plaintiff “has a complete and present cause of action.”
Reed v. Goertz, 598 U.S. 230, 235 (2023) (cleaned up). And
a cause of action under the APA does not accrue until the
plaintiff has “suffered a sufficient injury in fact,” which
2
doesn’t necessarily happen the day the rule issues. Nat’l
Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522
U.S. 479, 488 (1998). Yet these courts insist that the clock
must march ahead anyway, transforming an expressly
accrual-based statute of limitations into an impliedly datebased statute of repose. See CTS Corp. v. Waldburger,
573 U.S. 1, 16 (2014).
By choosing to rewrite Section 2401(a)’s terms in this
way, these courts have produced unfair outcomes in many
APA challenges. In this case, for example, the agency
shut out a convenience store that didn’t even exist when
the challenged rule was implemented. Pet.App.7-12.
Elsewhere, the National Park Service shut down a suit by
developers who reacquired mineral interests four years
too late. Dunn-McCampbell Royalty Int., Inc. v. NPS,
112 F.3d 1283, 1288 (5th Cir. 1997). Firearms dealers
licensed in the 21st century could not challenge an ATF
regulation promulgated during the Vietnam era. Hire
Order Ltd. v. Marianos, 698 F.3d 168, 170 (4th Cir. 2012).
Grievances of air-traffic controllers filed against the FAA
were too little too late because the controllers were hired
after the limitations period expired. Harris v. FAA, 353
F.3d 1006, 1010-12 (D.C. Cir. 2004). And on and on.
Altogether, the majority rule’s twisted understanding of
the statute of limitations for APA claims has created a sort
of “promised land” for regulations, in which otherwise
unlawful rules will stand if they can sneak by long enough.
Herr v. U.S. Forest Serv., 803 F.3d 809, 821 (6th Cir. 2015).
Yet “a regulation initially unauthorized by statute cannot
become authorized by the mere passage of time.” DunnMcCampbell, 112 F.3d at 1290 (Jones, J., dissenting).
The amici States urge the Court to reject this reading
of Section 2401(a) as both wrong and wrongheaded. If text
is not reason enough to reject the majority rule, then
3
many background principles that apply to statutes of
limitation would be. What’s more, by insulating a new
batch of regulations each year, the majority rule all but
guarantees the administrative state’s power will continue
to swell. The majority rule also elevates regulations to the
top of the hierarchy of law—a backwards result. And by
doing so within a scheme that already defers to agency
interpretations of their own regulations, the majority rule
motivates agencies to craft regulations with an eye for
creative enforcement decisions that can be made outside
Section 2401(a)’s six-year limitations period. These shifts
do not occur in a vacuum. Entire existing doctrines (like
preemption) risk pinning the regulated public down
indefinitely if agencies are permitted to expand their
authority by tweaking their interpretation once the sixyear period has lapsed. This get-out-of-jail-after-sixyears card chills both current efforts and future growth
that would have otherwise occurred in the amici States to
the direct benefit of their citizens.
The Court has made the right call in giving this
sometimes-unexciting topic a little much-needed
attention. The Court should now send the majority rule
packing and replace it with one that honors both the text
of Section 2401(a) and the interests the statute serves.
The Court should reverse.
SUMMARY OF ARGUMENT
I. The Court could decide this case on Section
2401(a)’s text alone, but none of the principles,
presumptions, and purposes behind statutes of limitation
support the Board’s reading of Section 2401(a), either.
The majority rule does not align with the ordinary accrual
rules that must be the presumptive favorite. The Board’s
approach undermines the interests of justice by limiting
4
review of actions that implicate important public interests.
It does not serve the ordinary purposes of these
statutes—nobody is sleeping on their rights here, and
evidence preservation is not a material concern in this
unique context. And the majority rule does not even
advance interests that the Board asserts, such as reliance
and definiteness. So even if one ignores the administrative
context in which this case arises, the majority rule should
not prevail.
II. But the administrative context of this case further
confirms that the majority rule is the wrong reading of
Section 2401(a). Our growing administrative state is
nothing if not creative. By swaying a handful of circuit
courts to read Section 2401(a) their way, federal agencies
have put in place a system where their regulations are
insulated from future APA challenges by no more than the
passage of time. This elevation of regulation above all else
is not compatible with several of our key governing
principles.
Federalism, separation of powers, and
individual liberty suffer and decline.
III. This incompatibility has real consequences for
everyday Americans and the amici States. The majority
rule discourages state litigators from bringing APA
actions to protect States’ rights. It also discourages
lawmakers and enforcers from any effort that could
trigger federal preemption or previously dormant federal
enforcement authority that has been locked in place under
Section 2401(a). And it throttles innovative growth from
new and existing business that would have flowed to the
States had regulations not already been ushered into the
“promised land free from legal challenge.” Herr, 803 F.3d
at 819-21. This Court should level the playing field by
eliminating that built-in barrier altogether.
5
ARGUMENT
I.
The Majority Rule Ignores The Principles,
Presumptions, and Purposes Behind Statutes of
Limitation.
Text is always the starting point when construing a
statute, but the Court must also “examine the purposes
and policies underlying the limitation provision, the
[Administrative Procedure] Act itself, and the remedial
scheme developed for the enforcement of the rights given
by the Act.” Burnett v. N.Y. Cent. R. Co., 380 U.S. 424,
427 (1965). For instance, the Court has rejected one
understanding of tolling in the securities context where
that understanding was “inequitable and inconsistent
with the general purpose of statutes of limitations.”
Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221,
227 (2012) (emphasis in original). Other times, the Court
has considered the “background” principles against which
Congress legislates. Lozano v. Montoya Alvarez, 572
U.S. 1, 10 (2014); see also, e.g., TRW Inc. v. Andrews, 534
U.S. 19, 38 (2001) (Scalia, J., concurring) (describing a
“background rule” that confirmed the meaning of a
statute of limitations). And on still other occasions, the
Court has accounted for what it is “reasonable
to presume” about Congress’s intent for such statutes.
United States v. Briggs, 141 S. Ct. 467, 471 (2020).
The majority rule—which runs the clock from the
moment the rule hits the Federal Register—ignores many
of these important guides. Far from supporting the
Board’s reading, “practical considerations” should lead
the Court to reject it. Contra BIO.11.
Start with an idea already mentioned: Limitation
periods generally won’t start running until plaintiffs have
everything they need to “file suit and obtain relief.” Green
6
v. Brennan, 578 U.S. 547, 554 (2016). This general rule is
so strong that, where “two plausible constructions of a
statute of limitations” exist, the Court will typically “adopt
the construction that starts the time limit running
when … the plaintiff has a complete and present” claim.
Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019). The Court
will infer the opposite “odd result”—that is, a limitations
period starting to run at some earlier time—only when the
text mandates it. Green, 587 U.S. at 554.
The ordinary presumption is not overcome here. No
court embracing the majority rule has said that the Sixth
Circuit’s contrary (and correct) reading is implausible.
And no case has suggested that a plaintiff can jump the
gun and “file suit” without an injury. That philosophy
would gut the APA—and ordinary rules of standing to
boot. As for any text-mandated result, not even the Board
can identify something in the statute that would rise to the
level of a clear statement endorsing its view. Instead, the
Board and most courts prefer broad policy notions. Yet
nothing suggests that Section 2401(a) “creates a special
accrual rule for suits against the United States.”
Franconia Assocs. v. United States, 536 U.S. 129, 145
(2002) (construing analogous limitations provision in 28
U.S.C. § 2501).
The majority-rule courts also forget another central
idea behind these statutes: The interests supporting
hardline use of statutes of limitation are “frequently
outweighed … where the interests of justice require
vindication of the plaintiff’s rights.” Burnett, 380 U.S. at
428. True, in a private dispute over private interests,
vindicating a single private party’s one-off claims might
not justify cracking the door to more claims. But the
“interests of justice” are more substantial in the public
context of APA cases. At the micro-level, agency rules and
7
regulations most often affect a broader class of regulated
entities, so denying a right of review to one often denies a
right of review to many. And at the macro-level, the
interests of justice are served by ensuring that agencies
perform their work consistent with congressional
mandates and constitutional constraints. In other words,
“[t]he public interest is served by compliance with the
APA.” California v. Azar, 911 F.3d 558, 581 (9th Cir.
2018). For reasons like these, the Court should be
reluctant to give a narrow gloss to provisions purporting
to limit APA review. A “system in which [administrative
actions are taken] without a judicial reading of the
arguments … seems counterintuitive to the interests of
justice.” Alexander Avery, Foreign Corrupt Practices
Act: Pleading Parent-Subsidiary Liability, 35 J. NAT’L
ASS’N ADMIN. L. JUDICIARY 131, 133 (2015).
Redefining accrual to mean rule publication here also
does not serve “the primary purposes of limitations
statutes: preventing surprises to defendants and barring
a plaintiff who has slept on his rights.” Artis v. District of
Columbia, 583 U.S. 71, 91 (2018) (cleaned up).
As to the former purpose of preventing surprise,
agencies should never be surprised to see those affected
question their rules—in or out of the six-year window.
Perhaps more than any other actor, the federal
government (intentionally) operates under intense
scrutiny from all quarters, such that challenges are
inevitable. Beyond that, the Board itself catalogues how
“[j]udicial review remains available [after six years from
publication] in numerous ways.” BIO.14. It’s unclear why
a suit like Corner Post’s would be any more of a “surprise”
to the agency than any of those avenues. Ultimately, “if
the [Board] supports judicial review after the initial [sixyear] period, then why force review into [other]
8
convoluted route[s]?” PDR Network, LLC v. Carlton &
Harris Chiropractic, Inc., 139 S. Ct. 2051, 2065 (2019)
(Kavanaugh, J., concurring) (examining the limitations
period in the Hobbs Act).
As for the latter justification of punishing sleepy
plaintiffs, that rationale is even more unsustainable in
cases like this one. Parties like Corner Post cannot
reasonably be accused of “sleeping on their rights” when
those parties did not even exist at the time that the Board
insists that clock began to run. More to the point, the word
“right” must be given real meaning—and parties have no
“rights” to sleep on until they suffer injury. Cf. Gen. Inv.
Co. v. N.Y. Cent. R. Co., 271 U.S. 228, 230 (1926) (noting
how a plaintiff has “no right to complain” where a
“violation of law” “will not injure him”). And if parties are
forced to file within the six-year period before they have
any claim of injury, then “[t]he Government would thus
find itself defending against highly speculative damages
claims in a profusion of lawsuits.” Franconia Assocs., 536
U.S. at 147.
The Court also should not rewrite Section 2401(a) out
of concern that “evidence [might] be[] lost, memories
[might] fade[], and witnesses [might] disappear[].” CTS
Corp., 573 U.S. at 8; see also BIO.16 (worrying that “the
passage of time” might make it hard for agencies to
assemble the administrative record).
States are
experienced APA litigants, so they understand perhaps
better than most how these proceedings play out. And in
the States’ experience, evidence-preservation concerns
are lessened in APA review. Because APA review is based
on the administrative record, witnesses—particularly on
the defense side—are rarely needed at all. See, e.g.,
Sierra Club v. Flowers, 276 F. Supp. 2d 62, 69 (D.D.C.
2003). As for fading memories and lost evidence, those
9
concerns are also less substantial for the federal
government. Unlike private parties, federal agencies are
required to document and memorialize their decision
processes. See 44 U.S.C. § 2901, et seq. (Federal Records
Act); see also 44 C.F.R. § 1222.22(a) (FRA implementing
regulations that provide that agencies must retain
sufficient documentation to allow for legal challenges and
judicial review). And “once a document achieves the
status of a ‘record’ as defined by the [Record Disposal]
Act, it may not be alienated or disposed of without the
consent of the Administrator of General Services.”
Kissinger v. Reps. Comm. for Freedom of the Press, 445
U.S. 136, 147 (1980). So there’s far more assurance that
the evidence will still be around in an APA case than in the
usual one.
The Board also complains that a traditional accrual
rule—rather than the supposed date-certain rule that it
favors—could make the filing deadline effectively
indefinite. See BIO.11, 16. The Board’s gripe is with
Congress, as it was Congress that chose to write a
plaintiff-focused statute of limitations premised on accrual
rather than a defendant-focused statute of repose
premised on publication date. See Underwood Cotton Co.
v. Hyundai Merch. Marine (Am.), Inc., 288 F.3d 405, 409
(9th Cir. 2002) (describing how a statute of limitations is
“concerned with the plaintiff’s diligence” while a statute of
repose is “concerned with the defendant’s peace”).
It’s also hard to see why the Board is more troubled by
a degree of “indefiniteness” in the accrual rule but seems
fine with “indefiniteness” in the other post-six-year
actions to which the Board acquiesces. See BIO.14-15.
After all, depending on the flavor of majority rule that
we’re talking about, courts applying that rule might
consider whether a given APA challenge is facial versus
10
as-applied, substantive versus procedural, or declaratory
versus defensive. Those questions don’t supply easy,
definite answers. “The line between procedural and
substantive law is hazy.” Moore v. Harper, 600 U.S. 1, 31
(2023). Likewise, the line between “facial and as-applied”
challenges is “hazy at best and incoherent at worst”—
although “as-applied” has a slightly different spin here.
Elgin v. Dep’t of Treasury, 567 U.S. 1, 15 (2012); see also
Pet.17 (explaining what “as-applied” means in this
context). As for the defensive versus declaratory line,
courts will occasionally find that defenses are “simply
time-barred [declaratory] claims masquerading as
defenses [that] are likewise subject to the statute of
limitations.” City of Saint Paul v. Evans, 344 F.3d 1029,
1035-36 (9th Cir. 2003); see also, e.g., Alabama v. PCI
Gaming Auth., 801 F.3d 1278, 1292 (11th Cir. 2015)
(concluding that a State’s response to an affirmative
defense was a time-barred collateral APA claim). So the
majority rule promises at least as much ambiguity and
indefiniteness as the proper reading does.
Truth be told, the rule that Corner Post advances
provides more definiteness—for each potential plaintiff.
The Board’s real complaint is that the correct reading of
the statute doesn’t provide sufficient definiteness for the
entire class of potential plaintiffs—but that broad
immunity would be far from the norm for statutes of
limitation. See, e.g., Vispisiano v. Ashland Chem. Co., 527
A.2d 66, 72 (N.J. 1987) (rejecting an application of a
statute of limitations that would “deprive[]” “an entire
class of plaintiffs … of its claims”). And fundamentally,
although agencies might insist that they can operate more
freely if they could only stop worrying about what courts
think after some time, “such occasional impairments are
the price we pay to preserve the integrity of the APA.”
11
N.J. Dep’t of Env’t Prot. v. EPA, 626 F.2d 1038, 1048 (D.C.
Cir. 1980).
The Board—and at least some courts applying the
majority rule—also fret that the statute of limitations will
no longer present any real time limit at all if accrual is to
be the trigger. See BIO.15-16; but see, e.g., Alaska v. U.S.
Dep’t of Agric., 772 F.3d 899, 900 (D.C. Cir. 2014)
(Kavanaugh, J.) (reversing a decision declaring an APA
action untimely even though “it may seem anomalous that
a legal challenge to a regulation may be filed considerably
after the initial expiration of [the six-year] period”). But
remember that neither Corner Post nor the States are
asking the Court to ignore (or even toll) that statute of
limitations. Corner Post would still be barred from
bringing any claims six years after those claims accrued
even when Section 2401(a) is applied properly.
Recognizing this reality, the district court imagined
that a party could get around even that limit by creating a
new entity that becomes subject to the rule. The district
court supposed that the new entity could restart the clock,
an outcome the district court thought was untenable.
Pet.App.35-36. Nothing suggests that this case (or any
other) presents unusual facts like that. And even if the
problem were a real one, plenty of tools are available to
suss out sham plaintiffs and claims. See Opening.Br.3840. But anyway, this Court has resisted the notion that a
party’s right to sue should hinge on whether “the injury
could be described in some sense as willingly incurred.”
FEC v. Cruz, 596 U.S. 289, 297 (2022). So courts should
not twist limitations statutes like Section 2401(a) into
knots to foreclose claims for that same (impermissible)
reason.
Lastly, “reliance interests” are no reason to embrace
the majority rule. BIO.12. The Board never explains why
12
these reliance interests will not have already taken hold
by years three, four, five, or six after a rule is adopted. Yet
Congress allows litigants to sue then. Nor does the Board
explain why reliance interests are not a concern for the
other “numerous ways” in which judicial review remains
available after six years even under the majority rule.
BIO.14. And the Board seems to forget that courts can in
other ways protect third-party reliance interests in
administrative-review actions, such as by shaping a
remedy that accounts for those interests, Buckley v.
Valeo, 424 U.S. 1, 142-43 (1976), or allowing reasonable
reliance to be presented as a defense, United States v. Pa.
Indus. Chem. Corp., 411 U.S. 655, 673-75 (1973).
In any case, Section 2401(a)’s language undermines the
idea that Congress was deeply concerned with these
reliance interests. When Congress wanted to protect
those interests in administrative-review statutes, it paired
express language starting the limitations period at the
agency action with much shorter limitation periods
(usually days or weeks). Pet.24; BIO.12-13. It chose to do
neither in Section 2401(a). In some of these statutes,
Congress even precluded review in enforcement actions.
See, e.g., 33 U.S.C. § 1369(b)(2). Again, Congress didn’t
go that route in Section 2401(a). The Court should thus
give effect to Congress’s textual signals, which reflect that
reliance interests are less substantial in the general APA
context. “[D]ifferent terms” and approaches across
related statutes should be treated differently. Mohamad
v. Palestinian Auth., 566 U.S. 449, 456 (2012).
All in all, these principles, purposes, and “practical
consequences likewise support a default rule of allowing
review” up to six years from the actual accrual date—not
the legally fictitious accrual date of publication. PDR
Network, 139 S. Ct. at 2061 (Kavanaugh, J., concurring)
13
(describing the unfairness of foreclosing review,
particularly as to “entities … [that] may not even have
existed back when an agency order was entered”).
II.
The Majority Rule Improperly Elevates
Regulations—and The Administrative State—
Above All Else.
Beyond its incongruence with statute-of-limitations
principles, the majority rule also threatens to create a
permanent reservoir of unreviewable power for agencies.
Indeed, the rule elevates broad swaths of the Code of
Federal Regulations above the statutes that authorize
them to exist. And with the deck already stacked against
the
regulated
public’s
challenges
to
agency
interpretations of their own regulations, the majority rule
makes an untenable situation even worse. The Court
should fix that.
Start again with first principles. “The APA … creates
a presumption favoring judicial review of administrative
action.” Sackett v. EPA, 566 U.S. 120, 128 (2012) (cleaned
up); see also Abbott Lab’ys v. Gardner, 387 U.S. 136, 140
(1967). In the Act, Congress created “a broad spectrum of
judicial review of agency action.”
Bowen v.
Massachusetts, 487 U.S. 879, 903 (1988). Thus, as Corner
Post notes, this Court has rejected “agencies’
machinations to evade judicial scrutiny of their
regulations.” See Pet.26. So has Congress. Cf. Ass’n of
Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,
154 (1970) (noting the “trend” toward “enlarg[ing] … the
class of people who may protest administrative action”).
In line with those preferences, this Court has said it
should generally favor the reading of a statute that
provides more review “when [the] statutory provision is
reasonably susceptible to divergent interpretation,” at
14
least without “clear and convincing evidence” otherwise.
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020)
(cleaned up); see also Morris v. Gressette, 432 U.S. 491,
501 (1977) (explaining that there must be “persuasive
reason to believe” that Congress intended to foreclose
review).
An overly rigorous reconstruction of Section 2401(a)
forecloses review in contravention of the presumption of
reviewability. Concerned with that conflict, at least some
courts have properly held that “a statutory time limit on
judicial review cannot cut off forever all review of
administrative decisions.” Ill. Cent. Gulf R. Co. v. ICC, 720
F.2d 958, 961 (7th Cir. 1983). And “[p]roper promulgation
does not necessarily render a regulation valid for all time
or for all purposes,” either. Nw. Tissue Ctr. v. Shalala, 1
F.3d 522, 530 (7th Cir. 1993). “Because administrative
rules and regulations are capable of continuing
application, limiting review of a rule to the period
immediately following rulemaking would effectively deny
many parties ultimately affected by a rule an opportunity
to question its validity.” Graceba Total Commc’ns, Inc. v.
FCC, 115 F.3d 1038, 1040 (D.C. Cir. 1997) (cleaned up).
Yet the majority rule at least takes a step—or more
accurately, a leap—in that direction.
Right now is a bad time to take a step backwards when
it comes to judicial review of administrative actions.
Never in our country’s history has “[t]he
administrative state wield[ed]” as much “power and
touche[d]” as many “aspect[s] of daily life” as it does
today. City of Arlington v. FCC, 569 U.S. 290, 315 (2013)
(Roberts, C.J., dissenting).
This description isn’t
hyperbole. Regulations “vastly outpace the legislative
output of Congress and, together with ordinary statutes,
create a web of requirements that regulated parties must
15
adhere to” without knowing “what the law requires.”
Alexander Nabavi-Noori, Agency Control and Internally
Binding Norms, 131 YALE L.J. 1278, 1281 (2022); see
CLYDE WAYNE CREWS, JR., COMPETITIVE ENTER. INST.,
TEN THOUSAND COMMANDMENTS: AN ANNUAL
SNAPSHOT OF THE FEDERAL REGULATORY STATE 7, 45
(2022), https://bit.ly/43WCKaS (documenting how the
40,000 agency rules published over the last decade have
outpaced the laws that Congress enacted at a rate of 26to-1). Quite simply, “[t]he Framers, who envisioned a
limited Federal Government, could not have anticipated
the vast growth of the administrative state.” Fed. Mar.
Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 755 (2002).
And “judicial review of administrative agency action”
is also supposed to be “a fixture of our modern
administrative state.” Kirkpatrick v. Lenoir Cnty. Bd. of
Educ., 216 F.3d 380, 386 (4th Cir. 2000). It should be the
counterbalance to the “explosive” growth of agencies.
West Virginia v. EPA, 142 S. Ct. 2587, 2619 (2022)
(Gorsuch, J., concurring); see also John J. Coughlin, The
History of the Judicial Review of Administrative Power
and the Future of Regulatory Governance, 38 IDAHO L.
REV. 89, 92-94 (2001). Yet the majority rule undermines
that function.
If the majority rule becomes the universal one, then the
administrative state won’t just keep getting bigger—it’ll
also grow perpetually more powerful. In 2016, for
example, federal agencies placed 3,853 final rules on the
books. Crews, supra, at 46. Among these rules, “486 were
deemed ‘significant,’” id., meaning they substantially
affected the economy or key government programs,
interfered with another agency’s ambit, or “raise[d] novel
legal or policy issues,” Exec. Order No. 12,866 of Sept. 30,
1993, Regulatory Planning and Review, 58 Fed. Reg.
16
51,735 (Oct. 4, 1993). Yet under the majority’s rule, the
year 2023 will have sent all of them—the “[t]he highest
count … over the past two decades,” Crews, supra, at 46—
to the “promised land free from legal challenge,” Herr, 803
F.3d at 821.
Now contrast the majority rule’s treatment of
regulations with how statutes are reviewed. A party can
challenge the constitutionality of a statute whenever it’s
injured—whether it be the day after or the century after
the law was put on the books. See David Sandler, Forget
What You Learned in Civics Class: The “Enrolled Bill
Rule” and Why It’s Time to Overrule Field v. Clark, 41
COLUM. J.L. & SOC. PROBS. 213, 260 (2007). From time to
time, a court ruling reminds us that time just isn’t a factor
for such challenges. See, e.g., Alden v. Maine, 527 U.S.
706, 760 (1999) (invalidating provisions of the Fair Labor
Standards Act of 1938); Dickerson v. United States, 530
U.S. 428, 442-44 (2000) (holding 18 U.S.C. § 3501 was
unconstitutional over 30 years after Congress passed it);
United States v. Windsor, 570 U.S. 744, 752 (2013)
(holding amendment of 1 U.S.C. § 7 unconstitutional 17
years later); In re Trade-Mark Cases, 100 U.S. 82, 88
(1879) (holding the first federal trademark registration
law unconstitutional 9 years after it was passed). And
although statutes of limitation might apply to the causes
of action that implicate the challenge to a statute, “mere
enactment is [still] rarely, if ever, the ripening event or the
moment of accrual for a case in which a party mounts a
facial challenge to a law.” Timothy Sandefur, The Timing
of Facial Challenges, 43 AKRON L. REV. 51, 52 (2010). So
the majority rule for challenges to regulations is a foreign
concept as to challenges to statutes.
It makes no sense that the majority rule coats
regulations in special protection that isn’t even available
17
to statutory law.
Our system of government treats
regulations and legislation differently, and rules and
regulations are supposed to get less respect, not more.
“The Constitution is the highest-order law, followed by
statutes, then common law and regulations.” Kimberly L.
Wehle, Defining Lawmaking Power, 51 WAKE FOREST L.
REV. 881, 915 (2016).
The ranking reflects our
Constitution’s assignment of responsibilities: “Congress
makes laws and the President, acting at times through
agencies …, faithfully executes them.” Util. Air Regul.
Grp. v. EPA, 573 U.S. 302, 327 (2014) (cleaned up). And
considering the “distinction between the legislative and
administrative function,” United States v. George, 228
U.S. 14, 22 (1913), the majority rule cuts against the
hierarchy of law on which our system of government
depends.
Agencies can take even more advantage of this role
reversal by pairing their time-derived immunity from
review with administrative deference. Especially before
this Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400
(2019), agency interpretations of their own regulations
received near-complete deference under Auer v. Robbins,
519 U.S. 452 (1997). And the rule-drafters knew it—39%
of them thought about Auer deference when drafting
regulations. Christopher J. Walker, Inside Agency
Statutory Interpretation, 67 STAN. L. REV. 999, 1065
(2015). Even though Kisor tried to fix some of Auer’s
biggest problems, Auer deference still lives on. And when
“imprecision, obfuscation, or change[s] of heart” might
receive significant deference, agencies have little
“incentive to draft clear, straightforward rules when
[they] choose[] to engage in rulemaking.” John F.
Manning, Constitutional Structure and Judicial
Deference to Agency Interpretations of Agency Rules, 96
COLUM. L. REV. 612, 668-69 (1996).
18
Quite the opposite: Agencies operating under the
majority rule have the incentive to “speak vaguely and
broadly” in each new rule, wait for six years to run, and
then recast the rule through new interpretations or
“clarifications” with “retroactive effect.” Decker v. Nw.
Env’t Def. Ctr., 568 U.S. 597, 620 (2013) (Scalia, J.,
concurring in part and dissenting in part); see also Perez
v. Mortg. Bankers Ass’n, 575 U.S. 92, 110 (2015) (Scalia,
J., concurring in the judgment). No one can be heard to
complain because their APA challenge will be timebarred; the agency will insist there’s nothing new and use
Auer to wave away any suggestion otherwise. “[T]he
District Court would have to afford the agency not mere
Skidmore deference or Chevron deference, but absolute
deference.” PDR Network, 139 S. Ct. at 2066. The
bottom-line result? “Any government lawyer with a
laptop could create a new federal crime by adding a
footnote to a friend-of-the-court brief.” Carter v. WellesBowen Realty, Inc., 736 F.3d 722, 733 (6th Cir. 2013)
(Sutton, J., concurring). Throw into the mix the reality of
“congressional gridlock []elevat[ing] the significance of
executive
agency
rulemaking,”
Ezra
Rosser,
Affirmatively Resisting, 50 FLA. ST. U. L. REV. 123, 176
(2022), and it’s a recipe for disaster.
These problems aren’t imagined ones—the States have
seen them play out this way before. In Texas v. Rettig,
987 F.3d 518 (5th Cir. 2021), six States sued the
Department of Health and Human Services and the
Internal Revenue Service over a rule requiring the States
to pay certain “provider fees” to Medicaid managed care
organizations. The States maintained that they came to
understand that they were required to pay these fees only
in 2015. Id. at 527; see also Texas v. United States, 300 F.
Supp. 3d 810, 821 (N.D. Tex. 2018) (noting that a 2015
Actuarial Standard of Practice “effectively changed” the
19
States’ prior exemption from paying the fees). Even
though the States filed suit the same year, the Fifth
Circuit found their suit untimely under Section 2401(a).
Rettig, 987 F.3d at 529. According to the court, the 2015
standard change changed nothing from a 2002
certification rule—even though nobody seemed to have
understood that 2002 rule required States to pay provider
fees back when the rule was implemented. Id. at 530. So
despite having acted diligently, the States were locked out
for having filed seven years too late. This kind of outcome
is not a fluke, even if one looks no further than other HHS
cases. See, e.g., Cedars-Sinai Med. Ctr. v. Shalala, 177
F.3d 1126, 1129-30 (9th Cir. 1999) (finding that claims
were untimely brought even though suit was filed just
after HHS began implementing the challenged policy, as
policy was purportedly put in place through an ambiguous
change in an earlier provider manual).
In other words, the majority rule takes an agency’s
“power, in future adjudications, to do what it pleases” to a
whole new (and permanent) level. Talk Am., Inc. v. Mich.
Bell Tel. Co., 564 U.S. 50, 69 (2011) (Scalia, J., concurring).
But there’s nothing that suggests Congress meant for
Section 2401(a) to do that.
III.
The Majority Rule Produces Everyday Harms
For States and Others.
All this might sound a bit academic. But make no
mistake: The majority rule imposes real consequences on
the States and our citizens.
A. Most obviously, adopting the majority rule
nationwide could stifle the States as litigants; they’ll
sometimes be prevented from bringing APA suits. Some
might dismiss that concern as an self-serving complaint
from a disgruntled group of putative plaintiffs—but it’s
20
not. “[S]tate-led litigation against the federal government
is valuable.” Elbert Lin, States Suing the Federal
Government: Protecting Liberty or Playing Politics?, 52
U. RICH. L. REV. 633, 652 (2018). “States have a unique
federalism interest in ensuring that federal executive
officers comply with the Constitution and federal laws,
and they have the resources and sophistication to bring
successful suits of this sort.” F. Andrew Hessick &
William P. Marshall, State Standing to Constrain the
President, 21 CHAP. L. REV. 83, 103 (2018).
Unsurprisingly, then, States “are increasingly using their
collective voices to influence”—though litigation—“the
inter-institutional federal conversation about federal
policymaking and constitutional meaning.” Mark C.
Miller, State Attorneys General, Political Lawsuits, and
Their Collective Voice in the Inter-Institutional
Constitutional Dialogue, 48 J. LEGIS. 1, 29 (2021). Most
obviously, States, speaking through their Attorneys
General, “are uniquely qualified” to call out federalism
concerns. Anthony Johnstone, Hearing the States, 45
PEPP. L. REV. 575, 599 (2018). Put another way, state-led
APA actions, like other slate-led lawsuits against the
federal government, “benefit[] the constitutional
structure and separation of powers.” Jonathan David
Shaub, Delegation Enforcement by State Attorneys
General, 52 U. RICH. L. REV. 653, 656 (2018). They act “as
a necessary constitutional check on the modern executive
branch.” Id.
Preserving federalism through state-led litigation is no
small thing. “The vertical separation of powers between
the national government and the States”—paired with the
horizontal separation among the federal branches—
“provide[s] the soundest protection of liberty any people
has known.”
JEFFREY SUTTON, 51 IMPERFECT
SOLUTIONS: STATES AND THE MAKING OF AMERICAN
21
CONSTITUTIONAL LAW 11 (2018). As this Court has
explained, “federalism secures to citizens the liberties that
derive from the diffusion of sovereign power.” Shelby
Cnty. v. Holder, 570 U.S. 529, 543 (2013); accord Bond v.
United States, 572 U.S. 844, 863 (2014). So knocking the
legs out from under one of the few “political safeguards of
federalism”—a state-led APA action—is undesirable to
say the least. Margaret H. Lemos & Ernest A. Young,
State Public-Law Litigation in an Age of Polarization, 97
TEX. L. REV. 43, 117 (2018).
B. The APA also strangles States as lawmaking
institutions.
Agencies can struggle to account for States’ interests
in rulemaking, especially as to preemption. “[U]nlike
Congress, administrative agencies are clearly not
designed to represent the interests of States.” Geier v.
Am. Honda Motor Co., 529 U.S. 861, 908 (2000) (Stevens,
J., dissenting). Rather, the “‘political safeguards’ that
give [S]tates a voice in Congress’s lawmaking” do not
extend to a “voice in the executive branch’s activities.”
Charles Davant IV, Sorcerer or Sorcerer’s Apprentice?:
Federal Agencies and the Creation of Individual Rights,
2003 WIS. L. REV. 613, 640 (2003). So agencies may be “too
quick” to “displace state law” precisely “because, unlike
Congress, agencies are not accountable directly to the
States.” Amanda Frost, Judicial Review of FDA
Preemption Determinations, 54 FOOD & DRUG L.J. 367,
368 (1999).
The APA gives States one of the few meaningful
opportunities to strike back against broad federal
preemption resulting from administrative actions. “When
states, … conclude that … the President … ha[s]
unlawfully and adversely affected state laws, interests, or
policy choices in a preemptive manner, it is an appropriate
22
check for a state to resist that change in federal court.”
Bradford Mank & Michael E. Solimine, State Standing
and National Injunctions, 94 NOTRE DAME L. REV. 1955,
1969-70 (2019). And “judicial review of agency decisions”
then “ensure[s] that agencies take all preemption policy
considerations into account.” Jamelle C. Sharpe, Toward
(a) Faithful Agency in the Supreme Court’s Preemption
Jurisprudence, 18 GEO. MASON L. REV. 367, 429 (2011).
Thankfully, “states have been allowed to challenge agency
action that preempts state law” through those actions.
Ann Woolhandler & Michael G. Collins, Reining in State
Standing, 94 NOTRE DAME L. REV. 2015, 2021 (2019); see
also Ann Woolhandler, Governmental Sovereignty
Actions, 23 WM. & MARY BILL RTS. J. 209, 219 (2014)
(detailing times when “states have been able to use
sovereignty interests as the basis for APA or related
actions attacking agency determinations that purport to
preempt state law”).
If the majority rule takes hold, then it will be harder
for States to push back against overly aggressive agency
preemption.
Absent internal changes within the federal agency,
once the six-year clock runs, all federal views of
preemption are etched in stone. State lawmaking will then
be hamstrung. Take just a few examples. An agency
might, for instance, put a new spin on its rules and
regulations after the six-year mark, which gives it an
unexpectedly broader reach. States might then find
themselves out of luck if they cannot convince a court this
reinterpretation constituted a new action. Sometimes,
later agency action wouldn’t even be needed to trap the
States. For example, an agency might write a broad
preemption regulation, and a State might conclude at that
point that none of its laws are affected (even if the
23
regulation happens to be unlawful). But seven years later,
the State might decide to pass a law that would fall under
the agency’s preemption provision. The State then has
only two choices: abandon its legislative effort or try to
mount a futile APA challenge. Most likely, the State will
just choose the first option, and legislators will be done
with their legislative effort before it even begins.
Even when there’s no dead-on-point preemptive
regulation or the like, the “stiflingly murky federal law
regime” might just dissuade state legislators from
approaching a potentially preempted subject area
anyway. Harry G. Hutchison, Protecting Liberty? State
Secret Ballot Initiatives in the Shadow of Preemption
and Federalism, 6 NYU J.L. & LIBERTY 409, 419 (2012).
Knowing that preemption regulations from more than six
years ago are locked in, and knowing that Auer deference
could empower agencies to construe those regulations
broadly, legislators might prefer to avoid the headache
entirely. State lawmaking would thus be impeded and
effectively preempted, even if only indirectly.
Paving the way for even more administrative
preemption would not be a good outcome for anyone. Our
“federalist structure of joint sovereigns” is meant to
“preserve[] to the people numerous advantages.” Wyeth
v. Levine, 555 U.S. 555, 584 (2009) (Thomas, J., concurring
in the judgment).
That structure includes “a
decentralized government that will be more sensitive to
the diverse needs of a heterogeneous society” and
“increase[d] opportunity for citizen involvement in
democratic processes.” Id. And when it comes to
regulation, our nation has likewise employed a
“decentralized, overlapping system” for most of its
history. S. Candice Hoke, Preemption Pathologies and
Civic Republican Values, 71 B.U. L. REV. 685, 719 (1991).
24
For good reason. Among other things, state regulatory
efforts, working alongside their federal counterparts,
“function[] as a stabilizing device when federal regulators
are ‘captured.’” Hoke, supra, at 718-19. And they
safeguard “the intended functions of republican
federalism” by “prevent[ing] the transformation of states
and localities into mere administrative instruments of
federal political policy.” Id.
But without tools like APA actions to help police the
limits of preemption, all these values are threatened.
C. These problems affect more than litigators and
lawmakers. They hurt our economies, too.
As it insulates more regulations from judicial review
with each passing year, the majority rule broadly
encourages agencies to dig up, dust off, and wield dormant
authority—without having to promulgate new rules—
covering a host of issues. Last year, the Court noted again
the similar danger from an agency’s “claim[] to discover in
a long-extant statute an unheralded power” to spur
“transformative expansion in its regulatory authority.”
West Virginia, 142 S. Ct. at 2610 (cleaned up). Even now,
we see agencies invoking “dormant” regulations to
constrain entire industries that may not have even existed
when the regulations were first implemented. See, e.g.,
CFPB Invokes Dormant Authority to Examine Nonbank
Companies Posing Risks to Consumers, CFPB (Apr. 25,
2022), https://bit.ly/3Fzl5fQ (agency announcing that it
intended to invoke 2013 implementing regulations for the
first time to regulate new “fintech” companies nine years
later). If the Court adopts the majority rule, we should
expect to see this tactic become more pervasive. If these
actions were subject to ordinary judicial review, then the
past suggests that courts would strike about a third of
them down. See David Zaring, Reasonable Agencies, 96
25
VA. L. REV. 135, 137 (2010). But under the majority rule,
all of them would stand.
Greenlighting more aggressive regulatory efforts
imposes real costs. Even without the majority rule, these
requirements are expensive. See Crews, supra, at 6, 33
(estimating $1.9 trillion in overall annual costs due to
federal regulations). They also tend to scare investors in
regulated industries away, as those investors become
spooked by the prospect of “reduce[d] or eliminate[d] ...
return[s]” due to “[r]adical and vacillating changes in [the]
law.” Richard J. Pierce, Jr., The Combination of Chevron
and Political Polarity Has Awful Effects, 70 DUKE L.J.
ONLINE 91, 92, 99 (1995). And these are only some costs
and harms—delay, capriciousness, and “imperiousness”
are others. J. Harvie Wilkinson III, Assessing the
Administrative State, 32 J.L. & POL. 239, 251-55 (2017).
In short, as the Department of Justice has recognized
before, “an entire [federal] regulatory apparatus lays
claim to an extraordinary amount of private resources,
imposing costs that are as consequential as the costs of
taxes for the private parties who must bear them.” U.S.
DEP’T OF JUST., MODERNIZING THE ADMINISTRATIVE
PROCEDURE ACT 2 (2020), https://bit.ly/3u3x9CA.
By limiting judicial review, the majority rule silences
parts of the business community affected by these
burdensome costs. Most obviously, businesses looking to
open will crash into a brick wall of unassailable federal
regulation that came to be before they even arrived on the
scene. See NFIB.Pet.Br.11-15. That’s an especially bad
result given how small businesses already bear the brunt
of federal regulation—63% of the total cost by one
estimate. See Jeffrey J. Polich, Judicial Review and the
Small Business Regulatory Enforcement Fairness Act,
41 WM. & MARY L. REV. 1425, 1432 (2000). And the Court
26
needn’t even look beyond this case to see how that will play
out day-to-day. Here, a small convenience store in a little
North Dakota town says that it must now pay hundreds of
thousands of dollars in fees that would be 400% lower if
the agency had only acted lawfully. Pet.App.70. But
according to the Eighth Circuit—and other majority-rule
courts like it—the little store in Watford City now has no
way to resist. It purportedly should have sued the Board
before the store even opened for business. Business
communities deserve a fairer outcome than that.
* * * *
The amici States want to see real opportunities for
state litigants to seek judicial review, real freedom for
state legislators to operate, and real breathing room for
economies to function. The Court should put aside the
majority rule. It should restore fairness through a
reading of Section 2401(a) that serves everyone—not just
federal agencies.
CONCLUSION
This Court should reverse.
27
Respectfully submitted.
PATRICK MORRISEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS
Principal Deputy
Solicitor General
GRANT A. NEWMAN
Assistant Solicitor General
Counsel for Amicus Curiae State of West Virginia
28
ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General
State of Alabama
JEFF LANDRY
Attorney General
State of Louisiana
TIM GRIFFIN
Attorney General
State of Arkansas
ANDREW BAILEY
Attorney General
State of Missouri
ASHLEY MOODY
Attorney General
State of Florida
AUSTIN KNUDSEN
Attorney General
State of Montana
CHRIS CARR
Attorney General
State of Georgia
MICHAEL T. HILGERS
Attorney General
State of Nebraska
RAÚL LABRADOR
Attorney General
State of Idaho
DAVE YOST
Attorney General
State of Ohio
THEODORE E. ROKITA
Attorney General
State of Indiana
ALAN WILSON
Attorney General
State of South Carolina
BRENNA BIRD
Attorney General
State of Iowa
JONATHAN SKRMETTI
Attorney General and
Reporter
State of Tennessee
DANIEL CAMERON
Attorney General
Commonwealth of
Kentucky
KEN PAXTON
Attorney General
State of Texas
29
SEAN D. REYES
Attorney General
State of Utah
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.