Amicus Curiae Brief — Corner Post, Inc., Petitioner v. Board of Governors of the Federal Reserve System

No. 22-1008

In the

Supreme Court of the United States

_____________________

CORNER POST, INC.,

Petitioner,

v.

BOARD OF GOVERNORS OF THE FEDERAL RESERVE

SYSTEM,

Respondent.

_____________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth

Circuit

_____________________

BRIEF OF LITTLE TUCKER ACT SCHOLARS

IN SUPPORT OF PETITIONER

_____________________

MICHAEL BUSCHBACHER

Counsel of Record

JAMES R. CONDE

BOYDEN GRAY PLLC

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

mbuschbacher@boydengray.com

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND SUMMARY ......................... 2

BACKGROUND ......................................................... 4

ARGUMENT .............................................................. 6

I.

II.

The Eighth Circuit’s Decision Contradicts the

Text of Section 2401(a) ....................................... 6

A.

Section 2401(a) is a Statute of Limitations,

Not a Statute of Repose............................... 6

B.

When Congress Enacted Section 2401(a)’s

Predecessor, Claims Could Not Accrue Until

the Plaintiff Was Capable of Suing ............ 7

C.

This Court’s Precedents Support a PlaintiffFocused Interpretation of Section 2401(a) 10

D.

The “Majority Rule” is Incoherent ............ 11

E.

The Policy Justifications for the Majority

Rule Turn the APA Upside Down............. 14

Garden-Variety Pre-enforcement Suits Are Not

Subject to Section 2401(a) ................................ 16

A.

The Term “United States” Does Not

Embrace Traditional “Officer Suits”......... 17

B.

The Term “Right of Action” Does Not

Include Anticipatory Defenses Raised in

Equity ........................................................ 21

C.

This Reading Harmonizes Section 2401(a)’s

Scope with Abbott Labs ............................. 22

Conclusion ................................................................ 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) ................. 2–3, 15–17, 23–24

Am. Sch. of Magnetic Healing v. McAnnulty,

187 U.S. 94 (1902) ............................................. 18

Bank of Hartford County v. Waterman,

26 Conn. 324 (Conn. 1857).................................. 9

Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corp. of Cal.,

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

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986) ........................................... 15

Crown Coat Front Co. v. United States,

386 U.S. 503 (1967) ....................... 2–3, 10, 23–24

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ................................................. 7

Ex parte Bakelite Corp.,

279 U.S. 438 (1929) ........................................... 18

Ex parte Young,

209 U.S. 123 (1908) ........................................... 19

FAA v. Cooper,

566 U.S. 284 (2012) ........................................... 18

iii

Franconia Assocs. v. United States,

536 U.S. 129 (2002) ........................................... 10

Geyen v. Marsh,

775 F.2d 1303 (5th Cir. 1985) ........................... 21

Graham Cnty. Soil & Water Conservation Dist. v.

U.S. ex rel. Wilson,

545 U.S. 409 (2005) ..................................... 10–11

Herr v. U.S. Forest Service,

803 F.3d 809 (6th Cir. 2015) ....................... 4, 5, 7

Jersey Heights Neighborhood Ass’n v. Glendening,

174 F.3d 180 (4th Cir. 1999) ............................. 21

Jicarilla Apache Tribe v. Andrus,

687 F.2d 1324 (10th Cir. 1982) ........................... 1

King v. Burwell,

576 U.S. 473 (2015) ........................................... 11

Larson v. Domestic & Foreign Com. Corp.,

337 U.S. 682 (1949) ........................................... 16

Marbury v. Madison,

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

Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015) ........................................... 15

PDR Network, LLC v. Carlton & Harris Chiropractic,

Inc.,

139 S. Ct. 2051 (2019) ....................................... 13

iv

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

572 U.S. 663 (2014) ....................................... 7, 23

Philadelphia Co. v. Stimson,

223 U.S. 605 (1912) ..................................... 16, 19

Poindexter v. Greenhow,

114 U.S. 270 (1885) ........................................... 19

Tindal v. Wesley,

167 U.S. 204 (1897) ........................................... 19

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ............................................ 11

Rice v. United States,

122 U.S. 611 (1887) .......................................... 10

Sackett v. EPA,

143 S. Ct. 1322 (2023) ....................................... 14

SCA Hygiene Prod. Aktiebolag v. First Quality Baby

Prod., LLC,

580 U.S. 328 (2017) ........................................... 23

Shipyards Corp. v. U.S. Shipping Bd. Emergency

Fleet Corp.,

258 U.S. 549 (1922) ..................................... 19–20

Sierra Club v. Penfold,

857 F.2d 1307 (9th Cir. 1988) ........................... 21

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

554 U.S. 269 (2008) ........................................... 22

v

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ........................................... 14

United States v. Kubrick,

444 U.S. 111 (1979) ........................................... 10

United States v. Treasury Emps.,

513 U.S. 454 (1995) ........................................... 13

Wind River Mining Corp. v. United States,

946 F.2d 710 (9th Cir. 1991) ......................... 3, 15

Constitutions & Statutes

5 U.S.C. § 702 ......................................... 3, 12, 13, 21

5 U.S.C. § 703 ......................................................... 12

28 U.S.C. § 2401(a) ............................................ 1–24

Act of March 3, 1911, 36 Stat. 1087......................... 5

Act of July 18, 1918, 40 Stat. 913 .......................... 20

Act of June 25, 1948, 62 Stat. 869 ........................... 5

Tucker Act, 24 Stat. 505 (1887) ............................... 4

U.S. Const. art. III, § 2 ........................................... 12

Other Authorities

Annotation, When Statute of Limitation Commences

to Run Against an Action Based on Breach of

Duty by Recording Officer,

10 A.L.R. 1067 (1937) ......................................... 8

vi

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers,

17 Suffolk U. L. Rev. 881 (1983)....................... 14

Antonin Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts (2012) ................... 7

Ballentine’s Law Dictionary (3d ed. 1969) ............ 22

Black’s Law Dictionary (1st ed. 1891) ..................... 7

Black’s Law Dictionary (11th ed. 2019)............. 6, 22

Caleb Nelson, “Standing” and Remedial Rights in

Administrative Law,

105 Va. L. Rev. 703 (2019) ................................ 12

Eric A. Posner & Adrian Vermeule,

The Executive Unbound: After the Madisonian Republic (2010) ...................................................... 16

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

Law and in Equity (1883) ................................... 8

John Harrison, Ex Parte Young,

60 Stan. L. Rev. 989 (2008)............................... 22

John F. Kelly, A Treatise on the Code Limitations of

Actions Under All State Codes (1903) ................ 8

John Kendrick, (Un)limiting Administrative Review:

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

Challenge Federal Agencies,

103 Va. L. Rev. 157 (2017) .............. 1, 5, 8, 10, 15

vii

Kenneth Culp Davis, Suing the Government by

Falsely Pretending to Sue an Officer,

29 U. Chi. L. Rev. 435 (1962)............................ 21

Louis L. Jaffe, Suits Against Governments and

Officers: Sovereign Immunity,

77 Harv. L. Rev. 1 (1963) .................................. 18

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 J. on Reg., Notice & Comment

(Sept. 26, 2023) .................................................. 1

INTEREST OF AMICI CURIAE 1

Amici John Kendrick, Michael Buschbacher, and

James R. Conde are the authors of scholarly works on

the original meaning of the Little Tucker Act’s statute

of limitations: John Kendrick, (Un)limiting Administrative Review: Wind River, Section 2401(a), and the

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

157 (2017) (the first scholarly work on the subject),

and 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 J. on Reg., Notice & Comment (Sept. 26,

2023).

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

no person or entity other than amici or their counsel made a monetary contribution intended to fund its preparation or submission.

2

INTRODUCTION AND SUMMARY

In Abbott Laboratories v. Gardner (Abbott Labs),

the Solicitor General raised what has become a

familiar refrain in pre-enforcement and other “nonstatutory review” cases: “permit[ing] resort to the

courts in this type of case may delay or impede

effective enforcement” and lead to “a multiplicity of

suits in various jurisdictions challenging other

regulations.” 387 U.S. 136, 155 (1967). In other words,

too much judicial review. This Court, however, did

“not find the Government’s argument convincing,”

because “the declaratory judgment and injunctive

remedies are equitable in nature, and other equitable

defenses may be interposed”; specifically, the “defense

of laches could be asserted if the Government is

prejudiced by a delay.” Id. That approach worked. See,

e.g., Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324,

1338 (10th Cir. 1982) (citing cases).

Nevertheless, starting in the 1980s, lower courts

hearing APA pre-enforcement actions began—largely

without explanation—to look not to principles of

equity as this Court had instructed, but to the Little

Tucker Act’s statute of limitations. In its current

incarnation, that Act provides that “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).

A “claim or right to bring a civil action against the

United States” under Section 2401(a) “accrues” at the

point when it is legally actionable—when it

“matures”—and not before, as this Court explicitly

held in Crown Coat Front Co. v. United States, 386

U.S. 503, 514 (1967).

3

Despite this, several lower courts have held that

for APA claims (but no other claims), Section 2401(a)’s

time limit should run from the date of final agency

action. Their explanation: “liability is fixed, and

plaintiffs have a complete and present cause of

action[,] upon publication of the final agency action,”

even if the individual plaintiff was not in fact injured

or did not even exist at that time. App. 12. These

courts justified their approach as a matter of policy

without reference to the text of the statute. Their rule,

they said, purportedly “strikes the correct balance

between the government’s interest in finality and a

challenger’s interest in contesting an agency’s alleged

overreaching.” Wind River Mining Corp. v. United

States, 946 F.2d 710, 715 (9th Cir. 1991).

This whole enterprise was wrong. As we explain

below, this Court got these questions right back in

1967: (1) The original meaning of “accrue” is the one

this Court adhered to in Crown Coat Front Co.; and

(2) Abbott Labs was correct that the proper way of

addressing delay in garden-variety APA declaratory

actions is through laches, not any statute of

limitations.

This second point is especially important because

both Petitioner and the government get it wrong.

Many declaratory suits under Section 702 of the APA

are “officer suits,” not suits “against the United

States.” When the Tucker Act was enacted, and when

Section 2401(a) was recodified, suits against officers

committing legal wrongs were not considered suits

against the sovereign. The Tucker Act’s meaning was

fixed at the time of its enactment, so that remains true

today as well.

4

The parties have not disputed that Petitioner’s

suit is one “against the United States.” So the Court

need not definitively interpret the meaning of that

phrase to decide this case. But the Court should not

prejudge the issue by assuming that all APA claims

are necessarily “against the United States.” Rather, at

the very least, the Court should make clear that

question remains open for another case, another day.

***

Amici agree with Petitioner on the bottom line.

The Eighth Circuit transmogrified a statute of

limitations into a statute of repose, contrary to its

plain text. This Court should reverse.

BACKGROUND

The provision now known as Section 2401(a)

originated in the 1887 Tucker Act, “which waived

some of the federal government’s sovereign immunity,

authorizing a range of private-party lawsuits against

the government for money damages and other relief.”

Herr v. U.S. Forest Service, 803 F.3d 809, 815 (6th Cir.

2015) (Sutton, J.). The Tucker Act vested original

jurisdiction in a “Court of Claims” for several types of

claims where “the party would be entitled to redress

against the United States . . . if the United States were

suable.” Tucker Act, § 1, 24 Stat. 505, 505 (1887).

Section 2, known as the Little Tucker Act, vested

“concurrent jurisdiction” for the same types of claims

in district and circuit courts, as long as the claims did

not exceed a certain monetary amount. Id. § 2. The

Tucker Act’s grant of jurisdiction was, however,

subject to a limiting proviso: “Provided, That no suit

against the Government of the United States, shall be

5

allowed under this act unless the same shall have

been brought within six years after the right accrued

for which the claim is made.” Tucker Act, § 1, 24 Stat.

at 505. The 1887 proviso was limited to suits “under”

the Tucker Act, and the clock began to run only after

a particular claim of right “accrued.”

“In 1911, Congress reorganized several statutes

regulating federal-court procedure. In the process, it

created new, separate statutes of limitations for the

Big and Little Tucker Acts.” Herr, 803 F.3d at 816

(citation omitted). The 1911 Act again vested district

courts with concurrent jurisdiction over certain types

of small-dollar claims that could be brought against

the United States “if the United States were suable,”

and included the same limiting proviso for suits

brought “under this paragraph.” Act of March 3, 1911,

§ 24, 36 Stat. 1087, 1093.

The last change happened when the statute was

recodified in 1948. See Kendrick, supra at 193–95.

That year, Congress divorced the Little Tucker Act

from the statute of limitations and recodified the

latter in its current home. Act of June 25, 1948,

§§ 1346, 2401(a), 62 Stat. 869, 933, 971. As enacted in

1948, the statute of limitations is not limited to claims

brought “under” the Tucker Act. Instead, it reads

“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). The statute, is, therefore, no

longer limited to suits brought under the Little

Tucker Act. It is still, however, limited to civil actions

“against the United States.”

6

ARGUMENT

I.

The Eighth Circuit’s Decision Contradicts

the Text of Section 2401(a)

The question presented is resolved through

straightforward statutory interpretation. Section

2401(a) is a statute of limitations, not one of repose,

and thus its time limit begins to run when the plaintiff

is first injured and their right to sue accrues, not

before. This plaintiff-focused understanding of accrual

is reflected in cases and commentary from the time

the statute was enacted. It is also reflected in this

Court’s precedents, including a case interpreting

Section 2401(a).

In contrast, the government would have claims

accrue for the public at large. That novel, collectivist

approach contradicts the text of Section 2401(a). The

government’s approach also contradicts the APA’s

text, the APA’s strong presumption of judicial review,

and, most fundamentally, the constitutional role of

federal courts in resolving individual cases and

controversies.

A. Section 2401(a) is a Statute of Limitations,

Not a Statute of Repose

Statutes of limitations and statutes of repose are

distinct types of time limits on legal claims. A statute

of limitations sets a time limit based on the date when

the plaintiff’s claim accrued. Statute of Limitations,

Black’s Law Dictionary (11th ed. 2019). “Accrue” in

turn means “to come into existence as an enforceable

claim or right; to arise.” Accrue, Black’s Law

Dictionary (11th ed. 2019). When a claim accrues, it

7

“becomes a piece of intangible personal property”

belonging to the potential plaintiff. Herr, 803 F.3d at

821 (quotation marks omitted). That means accrual

occurs only once the plaintiff “can file suit and obtain

relief.” Petrella v. Metro-Goldwyn-Mayer, Inc., 572

U.S. 663, 670 (2014). In contrast, statutes of repose set

a different type of time limit, “measured not from the

date on which the claim accrues but instead from the

date of the last culpable act or omission of the

defendant.” CTS Corp. v. Waldburger, 573 U.S. 1, 8

(2014) (emphasis added). Thus, a repose time limit

may expire “before the plaintiff has suffered a

resulting injury.” Id. (quotation marks omitted).

Section 2401(a) is and always has been a statute

of limitations—a time limit based on claim accrual to

a particular plaintiff, beginning when “the right of

action first accrues.”

B. When Congress Enacted Section 2401(a)’s

Predecessor, Claims Could Not Accrue

Until the Plaintiff Was Capable of Suing

For over a century, courts and legal commentators have understood that claims cannot accrue under

a statute of limitations until the particular individual

plaintiff is capable of suing.

“Words must be given the meaning they had

when the text was adopted.” Antonin Scalia & Bryan

Garner, Reading Law: The Interpretation of Legal

Texts 78 (2012). When Section 2401(a)’s predecessor

was enacted, “accrue” meant exactly what it means

today: “to arise, to happen, to come into force or

existence.” Accrue, Black’s Law Dictionary (1st ed.

1891) (emphasis omitted). As stated by the leading

8

contemporary treatise: “the uniform result of the

cases decided on the statute of limitations” was “that

it does not deprive a party of his remedy, unless he

has been guilty of the laches or default contemplated

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

Actions at Law and in Equity 11 (1883). Wood

supported this plaintiff-focused understanding of

accrual with an analysis of hundreds of cases in

various areas of the law. See Kendrick, supra at 181–

85. A later (1903) treatise took the same approach.

John Kelly’s Treatise on the Code Limitations of

Actions had an entire chapter on “When the Cause of

Action Accrues.” That began:

The cause of action accrues at the time the party

is entitled to sue, demand relief, or make the

entry. . . . it is logical that the cause accrue when

the party has been “hurt” and not when the other

party has violated the contract or the law, unless

both concur, because there are cases where the

breach or the wrong did not cause the “hurt.”

John F. Kelly, A Treatise on the Code Limitations of

Actions Under All State Codes 91 (1903).

Courts also took a plaintiff-focused interpretation

of accrual in cases against government officials

violating their public duties—analogous to modern

APA claims. Such claims accrued only once the

plaintiff had a legal right to sue. See Kendrick, supra

at 185–89. 2 For example, in Bank of Hartford County

v. Waterman, a bank sued a sheriff for improperly

2 See also Annotation, When Statute of Limitation Commences to

Run Against an Action Based on Breach of Duty by Recording

Officer, 110 A.L.R. 1067 (1937).

9

attaching a debtor’s property. 26 Conn. 324, 325–26

(Conn. 1857). The court held that the bank’s claim

against the sheriff accrued only when the bank

became entitled to that property, not when the sheriff

had earlier made the mistake. There, the

“consequences”—inability to obtain the property to

which the bank had a legal right—were “an

indispensable element of the injury itself, and must

therefore themselves fix, or may fix, the period when

the statute of limitations shall commence to run.” Id.

at 331. The court’s decision was dictated by common

sense: “Authorities can hardly strengthen a

proposition so manifestly just. If we are wrong, some

strictly legal injuries might never for a moment be

capable of redress.” Id. at 331–32. A later passage

foreshadows this case:

[W]here the duty is of a public nature, there is no

direct relation between the public officer and the

party in whose behalf the duty is to be

performed. . . . The duty violated is primarily a

duty to the public; the violation is therefore

unlawful; and when its consequences are the

invasion of an individual right, (and then only,) it

becomes a proper subject of redress by him.

Id. at 336. Waterman, and the cases like it, show that,

even for claims arising out of failure to perform public

duties, courts took a plaintiff-focused approach to

accrual.

10

C. This Court’s Precedents Support a Plaintiff-Focused

Interpretation

of

Section 2401(a)

In keeping with this original understanding, this

Court has consistently interpreted statutes of

limitations to run from the time the plaintiff may sue.

Start with a case decided the same year the

Tucker Act was enacted. In Rice v. United States, the

Court noted in dicta that “[a] claim first accrues,

within the meaning of the statute, when a suit may

first be brought upon it, and from that day the sixyears limitation begins to run.” 122 U.S. 611, 617

(1887).

Later cases are of a piece. Most notably, in Crown

Coat Front Co. the Court interpreted Section 2401(a)

as applied to a contract claim. The Court unanimously

held that the claim “accrued” against the United

States only once the plaintiff could sue. 386 U.S. at

510–11. There, the plaintiff could not sue—and

therefore its claim did not accrue—until it had

exhausted the applicable administrative appeal

process. Id. at 512.

The Court has also adopted a plaintiff-focused

accrual rule when interpreting other statutes of

limitations. 3 And it has repeatedly called this

approach “the standard rule.” Graham Cnty. Soil &

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

See generally Kendrick, supra at 201–02 (discussing United

States v. Kubrick, 444 U.S. 111, 113 (1979); Bay Area Laundry &

Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522

U.S. 192, 200–01 (1997); Franconia Assocs. v. United States, 536

U.S. 129 (2002)).

3

11

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

that Congress legislates against the standard rule

that the limitations period commences when the

plaintiff has a complete and present cause of action.”

(quotations marks omitted)); see also TRW Inc. v.

Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring

in the judgment) (“Absent other indication, a statute

of limitations begins to run at the time the plaintiff

has the right to apply to the court for relief.” (cleaned

up)) (collecting cases).

D. The “Majority Rule” is Incoherent

The text and precedent just discussed are not

new, nor are they secret. And, as this Court has

repeatedly reminded the lower courts, “[i]f the

statutory language is plain, the Court must enforce it

according to its terms.” King v. Burwell, 576 U.S. 473,

474 (2015). It is therefore more than a little odd that

only the Sixth Circuit has followed the statute’s text.

Even more puzzling is that the courts who have taken

the opposite approach do not ever engage with that

text. For example, in the decision below, the Eighth

Circuit chided the Sixth for failing to “distinguish

between as-applied and facial challenges.” App. 10.

But Section 2401(a) does not distinguish between

them either.

Whence comes the majority rule, then? As best we

can tell, it arose at least in part because of an unstated assumption that “facial” APA challenges

against a rule are a special kind of private attorney

general proceeding against the government, such

that—as the Eighth Circuit put it—“liability is fixed

and plaintiffs have a complete and present cause of

action upon publication of the final agency action,”

12

even if the plaintiff actually bringing the case was not

harmed at that time or—as here—did not even exist.

App. 12.

The APA does not work this way. By emphasizing

that a “person suffering legal wrong because of agency

action . . . is entitled to judicial review,” Section 702 of

the APA recognized the pre-existing entitlement to socalled “nonstatutory” review for private legal injuries.

5 U.S.C. § 702; see also Caleb Nelson, “Standing” and

Remedial Rights in Administrative Law, 105 Va. L.

Rev. 703, 727 (2019) (“Scholars largely agree that

rather than expanding judicial review . . . Section

10(a) of the APA was simply meant to codify existing

doctrines and to accommodate the variety of forms of

review that were already in use.”). And the APA left

actual “special statutory review” proceedings as it

found them. 5 U.S.C. § 703. Suits under the APA may

follow “any applicable form of legal action, including

actions for declaratory judgments.” But in all suits, an

individual must first suffer a “legal wrong,” or else, be

“adversely affected or aggrieved within the meaning

of a relevant statute.” Id. § 702. No injury, no lawsuit.

After all, even—and perhaps especially—in cases

of official wrongdoing, “the province of the court is,

solely, to decide on the rights of individuals.” Marbury

v. Madison, 5 U.S. 137, 170 (1803). Anything else

would be incompatible with the “Cases” and

“Controversies” requirement of Article III. U.S. Const.

art. III, § 2. Collective accrual of rights of action, even

for persons that never had a right to walk through the

courthouse door, or did not even exist, is

fundamentally inconsistent with this limited

“province.”

13

The Eighth Circuit’s private attorney general

modality, therefore, misunderstands Section 702 of

the APA and federal jurisdiction under Article III to

boot. Certainly, many questions of public interest to

the Nation are adjudicated, and often permanently

resolved, through APA challenges, but these must

always be teed up through a real “case or controversy”

involving a “legal wrong,” or, at a minimum, an injury

in fact that “adversely affect[s]” the person suing. 5

U.S.C. § 702.

This misunderstanding manifests itself in the

way the courts following the majority rule have used

the terms “facial” and “as applied.” These words can

have different meanings, depending on the context.

Sometimes they just refer to which side of the “v.” a

party is on. See, e.g., PDR Network, LLC v. Carlton &

Harris Chiropractic, Inc., 139 S. Ct. 2051, 2060 (2019)

(Kavanaugh, J., concurring) (distinguishing “facial,

pre-enforcement

challenges”

from

“as-applied

challenge[s] to an agency’s interpretation of a statute

[raised] in an enforcement proceeding”). But more

often the distinction refers to the scope of the remedy.

See United States v. Treasury Emps., 513 U.S. 454,

477–78 (1995) (contrasting “a facial challenge” with “a

narrower remedy”). But the government—and the

APA cases it cites—do not use facial and as-applied in

either of these senses. 4 Instead, according to the

government, a “facial challenge” here refers to an

4 As the government never tires to explain, in its view, remedies

under the APA are limited to “party-specific” relief, even when a

plaintiff’s “legal theory could suggest that the agency regulation

is invalid in all of its applications and as applied to other parties

too.” See Transcript of Oral Argument 69, United States v. Texas,

(No. 22-58).

14

“APA claim[ ] . . . unrelated to a particular plaintiff’s

circumstances,” while an “as-applied” challenge arises

“from application” or threatened application “of a preexisting rule to a specific plaintiff.” BIO 20.

The government’s notion of a “facial challenge” is

a null set. All APA challenges are “as applied” under

the government’s definition because the outcome of

the case always turns on how the challenged standard

applies to the particular circumstances of a plaintiff.

As this Court has noted, even when a plaintiff brings

a “facial challenge” under the APA, it must

nevertheless show that the “application of the

regulations by the Government will affect them.”

Summers v. Earth Island Inst., 555 U.S. 488, 492, 494

(2009) (emphasis omitted). The Court must always

ask the question, “What’s it to you?” Antonin Scalia,

The Doctrine of Standing as an Essential Element of

the Separation of Powers, 17 Suffolk U. L. Rev. 881,

882 (1983).

To prevent continued confusion, the Court should

explain that the “facial” and “as applied” labels are

irrelevant to when a plaintiff’s cause of action accrues.

After all, when a statute “never mentions [the

government’s favored] test,” there is “no statutory

basis to impose it.” Sackett v. EPA, 143 S. Ct. 1322,

1342 (2023).

E. The Policy Justifications for the Majority

Rule Turn the APA Upside Down

Although the Eighth Circuit’s opinion below

doesn’t explicitly offer any policy rationale, it relies on

a long line of cases which appear to spring from Wind

River Mining Corp., 946 F.2d at 710; see also

15

Kendrick, supra at 170–79. There, the Ninth Circuit

concluded that starting the clock at final agency

action for APA challenges alleging “policy-based”

errors, for example, “would make the most sense”

because “grounds for such challenges will usually be

apparent to any interested citizen within a six-year

period following promulgation of the decision.” Wind

River, 946 F.2d at 715.

That court gave no textual defense of this

position, but instead mused that its rule would

“strike[ ] the correct balance between the

government’s interest in finality and a challenger’s

interest in contesting an agency’s alleged

overreaching.” Id. “The government’s interest in

finality outweighs a late-comer’s desire to protest the

agency’s action as a matter of policy.” Id. In other

words, according to Wind River, adhering to the text

of Section 2401(a) would allow too much judicial

review.

This gets things exactly backwards. As Petitioner

explains (at 29–31), there is a strong presumption

favoring judicial review of administrative action. See

Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015)

(quoting Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667, 670 (1986)); Abbott Labs, 387 U.S. at 140

(“judicial review of a final agency action by an

aggrieved person will not be cut off unless there is

persuasive reason to believe that such was the

purpose of Congress.”).

Cutting off pre-enforcement review without any

express statutory instruction would turn this

presumption on its head, making many regulations

more difficult to challenge than the statutes that

16

authorized those regulations in the first place. For

some, perhaps, an “unbound executive,” free from

legal restraints and accountable only to the will of the

people may be beguiling. See generally Eric A. Posner

& Adrian Vermeule, The Executive Unbound: After the

Madisonian Republic (2010). But this is not the

system enacted in either our Constitution or in the

APA. This Court should not countenance it.

II. Garden-Variety Pre-enforcement Suits Are

Not Subject to Section 2401(a)

Setting aside the government’s misinterpretation

of Section 2401(a), there is a more fundamental

problem with circuit precedent. Properly read, the

statute does not apply to many pre-enforcement suits

at all. Instead, as explained by Abbott Labs, such suits

are governed by the equitable time limit of laches.

Three reasons support this conclusion.

First, Section 2401(a) governs only suits “against

the United States.” It is a longstanding precept that

officers violating public law and committing or

threatening to commit a private wrong are not acting

as agents of “the United States.” See Philadelphia Co.

v. Stimson, 223 U.S. 605, 619 (1912); Larson v.

Domestic & Foreign Com. Corp., 337 U.S. 682, 699

(1949). For this reason, these suits are not subject to

Section 2401(a). They are instead subject to laches, as

Abbott Labs explained. Courts that have concluded

otherwise have impermissibly “updated” the statutory

text or overlooked the question entirely.

Second, this reading of “United States” is

reinforced by the term “right of action.” In suits for

pre-enforcement relief brought by regulated parties,

17

the plaintiff has no “right of action.” Rather, the

plaintiff is simply seeking to litigate an anticipatory

defense in advance of the government’s enforcement

action. These plaintiffs are using the Declaratory

Judgment Act and a traditional tool of equity known

as an anti-suit injunction, not asserting a “right of

action” as that term was understood in 1948, when it

was introduced into Section 2401(a).

Third, all of this explains why, in 1967, this Court

correctly explained that pre-enforcement suits for

declaratory relief were subject to laches, not Section

2401(a). The Court should not depart from Abbott

Labs and should correct lower courts’ departure.

Though the parties have not raised this issue and

the Court therefore need not decide it, the Court

should at least make clear that this question remains

open. The Court must not, however, decide that all

suits under the APA are governed by Section 2401(a).

That would be wrong.

A. The Term “United States” Does Not

Embrace Traditional “Officer Suits”

Section 2401(a) does not, by its terms, apply to

any defendant associated with the government.

Instead, it applies only in a “civil action commenced

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

(emphasis added).

By using that precise term, Congress employed a

well-known legal “term of art.” FAA v. Cooper, 566

U.S. 284, 292 (2012). When the Little Tucker Act was

enacted in 1887, and when the statute of limitations

was later amended in 1948, a suit commenced against

the “United States” was a suit naming the United

18

States as a party of record, or one in which the United

States was considered an indispensable party to the

suit because it was the real party in interest, typically

because a judgment against the defendant would

obligate public funds, command specific performance

of a contract, or convey public property. See Louis L.

Jaffe, Suits Against Governments and Officers:

Sovereign Immunity, 77 Harv. L. Rev. 1, 29–32 (1963).

As the Tucker Act put it, the United States was not

“suable,” unless Congress said otherwise. This

immunity raises no constitutional concerns under

Article III: matters implicating claims to the “money,

lands, or other things” of the sovereign are not

constitutionally committed to the judiciary. Ex parte

Bakelite Corp., 279 U.S. 438, 452 (1929).

When Congress used the loaded term “United

States” in the Little Tucker Act, it did not depart from

this legal usage. It did not, for example, use the term

to embrace federal officers committing private wrongs

without legal authority. Those suits were routine

when the Tucker Act was enacted. As this Court put

it: “The acts of all . . . officers must be justified by some

law, and in case an official violates the law to the

injury of an individual the courts generally have

jurisdiction to grant relief.” Am. Sch. of Magnetic

Healing v. McAnnulty, 187 U.S. 94, 108 (1902).

Officer suits were routine because, unlike the

“United States,” officers committing private wrongs

were suable, i.e., not covered by sovereign immunity.

Philadelphia Co., 223 U.S. at 619. An officer who had

committed, or had threatened to commit, a legal

wrong, such as a trespass, was presumably regarded

as a tortfeasor, and was liable at common law and

19

subject to courts’ equity jurisdiction. Ex parte Young,

209 U.S. 123, 192 (1908). 5 The officer could, as an

affirmative defense, argue that the sovereign was the

real party by “produc[ing] a law . . . which constitutes

his commission as its agent, and a warrant for his act.”

Poindexter v. Greenhow, 114 U.S. 270, 288 (1885). If

the officer could not make that showing, however,

then the officer stood “stripped of his official

character,” and had to answer to the courts, like

anyone else. Id.

Less routine were suits against federal

instrumentalities committing legal wrongs. But here

again, not all suits against instrumentalities were

against the United States. A case in point is Sloan

Shipyards Corp. v. U.S. Shipping Bd. Emergency Fleet

Corp., 258 U.S. 549 (1922) (Holmes, J.). In that case,

the Court considered whether a suit brought against

a federal corporation exercising war powers delegated

by the President “so far embodies the United States

that these suits should have been brought in the Court

of Claims.” Id. at 564. There, a federal corporation

“unlawfully took possession of the shipbuilder’s

property,” forcing them to sign a new contract at a

loss. Id. at 565. The shipbuilder sought a variety of

equitable remedies, but the lower court dismissed the

complaint on the ground that it was against the

United States and so belonged exclusively in the

5 Although Ex Parte Young involved state sovereign immunity,

“the question whether a particular suit is one against the state,

within the meaning of the constitution, must depend upon the

same principles that determine whether a particular suit is one

against the United States.” Tindal v. Wesley, 167 U.S. 204, 213

(1897).

20

Court of Claims. Id.; see also Act of July 18, 1918,

§§ 13, 14, 40 Stat. 913, 916.

This Court disagreed with this “dangerous

departure from one of the first principles of our law”:

that all persons “are amenable to the law.” Sloan

Shipyards Corp., 258 U.S. at 566–67. The Court

treated the suit the same as one against “a single

man,” and held that the jurisdiction of the Court of

Claims was not mandatory because “[t]he plaintiffs

are not suing the United States but the Fleet

Corporation.” Sloan Shipyards Corp., 258 U.S. at

567–68. In so holding, as relevant here, the Court

understood the statutory term “United States” as a

legal term of art no different from its use in sovereign

immunity jurisprudence. That is how “United States”

in Section 2401(a) should be read too.

The government’s arguments compel that

reading. The government insists that Section 2401(a)

applies “exclusively against the United States,” and

thus “directly implicates the ‘general proposition’ that

a condition to the waiver of sovereign immunity must

be strictly construed.” BIO 9 (cleaned up). That

argument makes no sense unless the meaning of “the

United States” in Section 2401(a) is coterminous with

the scope of sovereign immunity. The government

cannot have it both ways. If the term “United States”

embraces officer suits not barred by sovereign

immunity, then Section 2401(a) should not be “strictly

construed.”

So, why have courts overlooked the limited scope

of Section 2401(a)? Today, the difference between

officer suits and suits against the United States has

largely fallen into desuetude. In 1976, Congress

21

amended the APA to waive federal sovereign

immunity in suits for “relief other than money

damages.” 5 U.S.C. § 702. Parties may now name “the

United States” as a party, not just officers. Id. The

difference has also come under sustained attack from

some scholars. See, e.g., Kenneth Culp Davis, Suing

the Government by Falsely Pretending to Sue an

Officer, 29 U. Chi. L. Rev. 435 (1962).

It is perhaps for these reasons that modern courts

have come to read Section 2401(a) as an all-purpose

shield for official wrongdoing. For example, the Fifth

Circuit admittedly ignored the contemporaneous

meaning of the phrase “against the United States” in

Section 2401(a) to avoid “reviv[ing] the technical

complexities that Congress sought to eliminate in

1976.” Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir.

1985). 6 Because the law means today what it meant

when it was enacted, however, Section 2401(a) does

not apply to garden-variety officer suits seeking to

redress a legal wrong.

B. The Term “Right of Action” Does Not

Include Anticipatory Defenses Raised in

Equity

Dovetailing with the above, Section 2401(a)

speaks of a plaintiff’s “right of action,” which is—and

was in 1948, when the term was introduced into the

6 See also Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.

1988) (concluding without explanation that a suit seeking to enjoin an officer is “an action is against the United States”); Wind

River, 946 F.2d at 713 (overlooking the question); Jersey Heights

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

1999) (same).

22

law—a legal term of art: more narrowly, a “present

right to commence and maintain an action at law to

enforce the payment or collection of a debt or

demand,” Ballentine’s Law Dictionary (3d ed. 1969),

or more broadly, “[a] remedial right affording redress

for the infringement of a legal right,” id., or a “right

that can be enforced by legal action; a chose in action,”

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

This “right” or “chose” is most naturally

understood in the traditional sense as referring to a

personal property right “to bring an action to recover

a debt, money, or thing.” Id.; accord Sprint Commc’ns

Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 275

(2008). Anti-suit injunctions against government

officials, or similar declaratory suits brought by

regulated parties, by definition do not seek that kind

of relief.

As Professor John Harrison has explained, in

these cases, the plaintiff is not exercising a right to

take possession of money or chattels, but is

preemptively asserting an affirmative defense against

the government’s “right of action,” often before such a

right of action against that party even accrues to the

government. See John Harrison, Ex Parte Young, 60

Stan. L. Rev. 989 (2008).

C. This

Reading

Harmonizes

Section

2401(a)’s Scope with Abbott Labs

This takes us back to where this brief began: the

Court’s statement in Abbott Labs that, “because the

declaratory judgment and injunctive remedies are

equitable in nature,” ordinary “equitable defenses

may be interposed” and—specifically— the “defense of

23

laches could be asserted if the Government is

prejudiced by a delay.” 387 U.S. at 155.

This fits with the text of Section 2401(a)

discussed above. It also honors the principle that

“statutes of limitation are not controlling measures of

equitable relief.” Holmberg v. Armbrecht, 327 U.S.

392, 396 (1946). This Court has recently “confirmed

and restated this long-standing rule,” holding “in

broad terms” that laches “cannot be invoked” “in face

of a statute of limitations enacted by Congress.” SCA

Hygiene Prod. Aktiebolag v. First Quality Baby Prod.,

LLC, 580 U.S. 328, 334, 340 (2017) (quoting Petrella,

572 U.S. at 679) (emphasis added). This is because

“laches is a gap-filling doctrine, and where there is a

statute of limitations, there is no gap to fill.” Id. at

335.

By directing courts to look to laches, Abbott Labs

was necessarily foreclosing reliance on any statute of

limitations for pre-enforcement suits under the

Declaratory Judgment Act and Section 702 of the

APA. This is all the more striking because the Court

was well aware of Section 2401(a), having decided

Crown Coat Front Co. only six weeks before.

The Abbott Labs Court reached its conclusion

because it perceived—correctly—that equitable

remedies apply to equitable claims for declaratory

relief. 387 U.S. at 155. The lower courts that departed

from this approach some twenty years later did not

acknowledge this issue or ever explain why Abbott

Labs was wrong. Their approach should be rejected

both because it is incompatible with the text of Section

2401(a) and with Abbott Labs.

24

CONCLUSION

This Court got it right in 1967 when it held that

Section 2401(a) operates according to its plain text as

an accrual-based statute of limitations. Crown Coat

Front Co., 386 U.S. at 514. This Court also got it right

that same year when it explained in Abbott Labs that

laches is the right defense to a plaintiff’s unreasonable

delay in seeking pre-enforcement relief. 387 U.S. at

155. This Court should reverse in an opinion

congruent with both cases and the plain text of the

APA and Section 2401(a).

November 20, 2023

Respectfully submitted,

/s/ Michael Buschbacher______

MICHAEL BUSCHBACHER

Counsel of Record

JAMES R. CONDE

BOYDEN GRAY PLLC

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

mbuschbacher@boydengray.com