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

No. 22-1008

In the Supreme Court of the United States

CORNER POST INC.,

PETITIONER

v.

BOARD OF GOVERNORS OF THE

FEDERAL RESERVE SYSTEM,

RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

JENNIFER B. DICKEY

MARIA C. MONAGHAN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street NW

Washington, DC 20062

MARK A. PERRY

Counsel of Record

JOSHUA M. WESNESKI

WEIL, GOTSHAL & MANGES LLP

2001 M Street NW

Washington, DC 20036

(202) 682-7000

mark.perry@weil.com

MARK I. PINKERT

WEIL, GOTSHAL & MANGES LLP

1395 Brickell Ave.

Miami, FL 33131

TABLE OF CONTENTS

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

Summary of argument.................................................... 2

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

I. Section 2401(a) by Its Terms Runs from the

Time that the Plaintiff’s Claim Accrues ............... 5

A. The Statutory Text Is Clear ............................ 5

B. The Courts of Appeals Have Improperly

Elevated Policy Over Text ............................... 9

II. The Government’s Proposed Alternatives Are

Inadequate............................................................ 16

Conclusion ..................................................................... 22

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott Lab’ys v. Gardner,

387 U.S. 136 (1967) .............................................. 21

Axon Enter., Inc. v. FTC,

598 U.S. 175 (2023) ................................................ 2

Bay Area Laundry & Dry Cleaning

Pension Tr. Fund v. Ferbar Corp. of

Cal.,

522 U.S. 192 (1997) ................................................ 5

Campbell v. United States,

28 Ct. Cl. 512 (1893) .............................................. 7

CIC Servs., LLC v. IRS,

141 S. Ct. 1582 (2021) .................................... 17, 19

Clark v. Iowa City,

87 U.S. (20 Wall.) 583 (1875) ............................. 6, 7

In re Coinbase, Inc.,

No. 23-1779 (3d Cir.) ............................................ 19

Ctr. for Biological Diversity v.

Hamilton,

453 F.3d 1331 (11th Cir. 2006) ............................ 15

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) .................................................... 6

Dir., Off. of Workers’ Comp. Programs,

Dep’t of Labor v. Newport News

Shipbuilding & Dry Dock Co.,

514 U.S. 122 (1995) ................................................ 9

(ii)

Dunn-McCampbell Royalty Int., Inc. v.

Nat’l Park Serv.,

112 F.3d 1283 (5th Cir. 1997) .............................. 13

Finn v. United States,

123 U.S. 227 (1887) ................................................ 8

Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd.,

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

Gonzalez v. Freeman,

334 F.2d 570 (D.C. Cir. 1964) ................................ 8

Graham Cnty. Soil & Water

Conservation Dist. v. United States

ex rel. Wilson,

545 U.S. 409 (2005) ................................................ 6

Hanger v. Abbott,

73 U.S. (6. Wall.) 532 (1867) .................................. 6

Hardin v. Jackson,

625 F.3d 739 (D.C. Cir. 2010) .............................. 14

Harris v. FAA,

353 F.3d 1006 (D.C. Cir. 2004) ...................... 13, 14

Heimeshoff v. Hartford Life & Acc. Ins.

Co.,

571 U.S. 99 (2013) .................................................. 5

Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Cir. 2015) ................................ 14

Hire Ord. Ltd. v. Marianos,

698 F.3d 168 (4th Cir. 2012) ................................ 13

(iii)

Izaak Walton League of Am., Inc. v.

Kimbell,

558 F.3d 751 (8th Cir. 2009) ................................ 15

Latin Ams. for Soc. & Econ. Dev. v.

Adm’r of the Fed. Highway Admin.,

756 F.3d 447 (6th Cir. 2014) ................................ 14

Massachusetts v. EPA,

549 U.S. 497 (2007) .............................................. 19

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) .............................................. 17

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) .............................................. 12

Oil, Chem. & Atomic Workers Union v.

OSHA,

145 F.3d 120 (3d Cir. 1998) ................................. 19

Oppenheim v. Campbell,

571 F.2d 660 (D.C. Cir. 1978) .............................. 12

Paucar v. Att’y Gen. of U.S.,

545 F. App’x 121 (3d Cir. 2013) .......................... 15

Penn Cent. Transp. Co. v. City of New

York,

438 U.S. 104 (1978) .............................................. 11

Pa. R.R. v. Dillon,

335 F.2d 292 (D.C. Cir. 1964) ................................ 8

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................................ 17

Reiter v. Cooper,

507 U.S. 258 (1993) ................................................ 6

(iv)

Richards v. Jefferson County,

517 U.S. 793 (1996) .............................................. 21

United States ex rel. Schutte v.

SuperValu Inc.,

598 U.S. 739 (2023) .............................................. 10

SEC v. Jarkesy,

143 S. Ct. 2688 (2023) ............................................ 2

SEC v. Jarkesy,

No. 22-859 (Oct. 11, 2023) ................................... 18

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) ............................................ 2

Shiny Rock Mining Corp. v. United

States,

906 F.2d 1362 (9th Cir. 1990) ................ 3, 9, 10, 11

Sierra Club N. Star Chapter v. Kimbell,

2008 WL 3285537 (8th Cir. July 10,

2008) ..................................................................... 15

Sierra Club v. Penfold,

857 F.2d 1307 (9th Cir. 1988) .............................. 10

Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26 (1976) .................................................. 9

Smith v. Bayer Corp.,

564 U.S. 299 (2011) .............................................. 21

Stupak–Thrall v. Glickman,

346 F.3d 579 (6th Cir. 2003) ................................ 15

Taylor v. Sturgell,

553 U.S. 880 (2008) .............................................. 21

(v)

Trafalgar Cap. Assocs. v. Cuomo,

159 F.3d 21 (1st Cir. 1998) .................................. 13

TRW Inc. v. Andrews,

534 U.S. 19 (2001) .................................................. 6

U.S. Steel Corp. v. Astrue,

495 F.3d 1272 (11th Cir. 2007) ............................ 13

United States v. Greathouse,

166 U.S. 601 (1897) ................................................ 8

United States v. Lippitt,

100 U.S. 663 (1879) ................................................ 8

United States v. Tohono O’Odham

Nation,

563 U.S. 307 (2011) .............................................. 10

Wilderness Soc’y v. Griles,

824 F.2d 4 (D.C. Cir. 1987) .................................... 9

Wind River Mining Corp. v. United

States,

946 F.2d 710 (9th Cir. 1991) .................. 3, 9, 11, 12

Wong v. Doar,

571 F.3d 247 (2d Cir. 2009) ................................. 13

WWHT, Inc. v. FCC,

656 F.2d 807 (D.C. Cir. 1981) .............................. 19

Statutes

5 U.S.C. § 702 .................................... 3, 8, 9, 13, 14, 21

28 U.S.C. § 2401 .... 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 22

12 Stat. 765 ch. 92 (1863) ............................................ 7

62 Stat. 971 ch. 646 (1948) .......................................... 8

(vi)

63 Stat. 62 ch. 92 (1949) .............................................. 8

An Act for Limitation of Actions, and for

Avoiding of Suits in Law, 21 Jam., c.

16 (1623) ................................................................. 6

Pub. L. 86–238, § 1(3), Sept. 8, 1959, 73

Stat. 472 ................................................................. 8

Pub. L. 89–506, § 7, July 18, 1966, 80

Stat. 307 ................................................................. 8

Pub. L. 95–563, § 14(b), Nov. 1, 1978, 92

Stat. 2389 ............................................................... 8

Pub. L. 111–350, § 5(g)(8), Jan. 4, 2011,

124 Stat. 3848 ........................................................ 8

Tucker Act, 49 Cong. Ch. 359, 24 Stat.

505 (1887) ............................................................... 7

Other Authorities

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

Donna A. Boswell, The Parameters of

Federal Common Law: The Case of

Time Limitations on Federal Causes

of Action, 136 U. Pa. L. Rev. 1447

(1988) ...................................................................... 6

Giles Bruce, Amazon Launches One

Medical for Prime, Becker’s

Healthcare (Nov. 8, 2023),

https://perma.cc/8RVK-YEGH ............................. 16

(vii)

Cong. Rsch. Service, Counting

Regulations: An Overview of

Rulemaking, Types of Federal

Regulations, and Pages in the

Federal Register (Sept. 3, 2019),

https://sgp.fas.org/crs/misc/R43056.p

df. .......................................................................... 20

Debit Card Interchange Fees and Routing, 76 Fed. Reg. 43394 (July 20,

2011) ....................................................................... 2

Truth in Lending (Regulation Z);

Earned Wage Access Programs, 85

Fed. Reg. 79404 (Dec. 10, 2020) .......................... 17

Todd Haselton, Apple Unveils Streaming TV Services, CNBC (Mar. 25,

2019),

https://www.cnbc.com/2019/03/25/apple-tv-channels-streaming-tv-service-announced.html ............................................ 16

J. Robert Robertson, Administrative

Trials at the Federal Trade Commission in Competition Cases, 14 Sedona Conf. J. 101 (2013). ..................................... 18

Kara McKenna Rollins, Have the SEC’s

Delay Tactics Made Its Petition for

Rulemaking Process Vulnerable to

Challenge?, Yale J. Reg. (May 3,

2023), https://perma.cc/GK54-KJGS ................... 19

(viii)

Jason A. Schwartz & Richard L. Revesz,

Petitions for Rulemaking, Admin.

Conf. of the U.S. (Nov. 5, 2014) ........................... 20

1 H.G. Wood, A Treatise on the

Limitation of Actions at Law and in

Equity (1st ed. 1883) .............................................. 7

2 H.G. Wood, A Treatise on the

Limitation of Actions at Law and in

Equity (4th ed. 1916).............................................. 7

Wright & Miller, Fed. Prac. & Proc.

Juris. (3d ed. April 2023 update) ........................ 21

(ix)

In the Supreme Court of the United States

NO. 22-1008

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 FOR THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every region of the country.

1 No counsel for a party authored this brief in whole or in part and

no person or entity other than amicus and its counsel made a monetary contribution to its preparation or submission. S. Ct. Rule 37.6.

(1)

2

One of the Chamber’s important functions is to represent the interests of its members in matters before

Congress, the Executive, and the Judiciary. To that

end, the Chamber regularly files amicus curiae briefs in

cases that raise issues of concern to the Nation’s business community, including cases involving administrative law. See, e.g., SEC v. Jarkesy, No. 22-859 (2023);

Axon Enter., Inc. v. FTC, 598 U.S. 175 (2023); Seila Law

LLC v. CFPB, 140 S. Ct. 2183 (2020).

This case is about the six-year statute of limitations

for bringing lawsuits against the United States, including lawsuits challenging federal administrative action.

See 28 U.S.C. § 2401(a). The Court’s decision will affect

businesses’ ability to initiate pre-enforcement challenges against old—but unlawful—administrative

rules, when the rule applies to a business that has not

had the ability to challenge it within the six years following its promulgation. This issue is of paramount importance to the Chamber’s members, because businesses need a way to challenge unlawful regulations

that may unfairly burden them.

The Chamber takes no position regarding the lawfulness or wisdom of the rule underlying the statutory issues in this case, the Debit Card Interchange Fees and

Routing, 76 Fed. Reg. 43394, 43397 (July 20, 2011). The

only question addressed herein is the timeliness of the

challenge.

SUMMARY OF ARGUMENT

This Court’s recent jurisprudence has emphasized

the primacy of text in statutory interpretation. When

the plain text of a statute, read in context, yields a clear

answer, the Court need not and does not resort to other

interpretive tools such as legislative history or policy.

3

By construing and applying the actual text that Congress wrote and enacted, this Court ensures that policy

decisions are made by the political branches—the appropriate policymakers—and not by the judiciary.

Here, the statute is clear: A party suing the United

States must file its complaint “within six years after the

right of action first accrues.” 28 U.S.C. § 2401(a). The

Administrative Procedure Act is also clear that a “right

of action” does not “accrue” until the plaintiff “suffer[s]

[a] legal wrong” because of, or is “adversely affected” or

“aggrieved by,” the agency action. 5 U.S.C. § 702. In the

context of an agency rule challenge, a right of action for

a particular plaintiff may not arise until many years after the promulgation of the rule, such as where the

plaintiff enters a new line of business or where, as here,

the plaintiff entity does not even exist until many years

later. Under the plain text, the six-year statute of limitations begins to run from the date the plaintiff’s claim

accrues (i.e., when the plaintiff is personally injured or

its statutory cause of action ripens), not the date of the

rule’s promulgation.

Several courts of appeals have nonetheless interpreted Section 2401(a)’s six-year time-bar as beginning

to run automatically from the time of the promulgation

of the agency regulation. These decisions largely grew

out of two Ninth Circuit opinions, written more than

thirty years ago, in which the court relied on policy considerations instead of statutory text. See Wind River

Mining Corp. v. United States, 946 F.2d 710 (9th Cir.

1991); Shiny Rock Mining Corp. v. United States, 906

F.2d 1362 (9th Cir. 1990). Those cases were wrongly

reasoned at the time and certainly cannot stand under

this Court’s current approach to statutory interpretation. This Court should not put any weight on either of

4

these decisions or similar ones in which lower courts

have improperly allowed abstract policy considerations

to override the statutory text.

The government, too, relies on policy to justify its

atextual interpretation of the limitations provision. But

even if policy could overcome text (it cannot), that consideration only bolsters the plain-text reading. The goal

of the Administrative Procedure Act is to provide a

structured process for challenging unlawful agency action, not to freeze agency regulations in amber after a

six-year window.

Contrary to the government’s insistence, there are

not always other avenues for challenging unlawful rules

after the six-year period following promulgation. Most

businesses cannot afford the drawn-out process of violating a regulation and awaiting a criminal or civil enforcement action to challenge the rule defensively. Likewise, petitioning an agency for a new rulemaking will

often be inadequate because of the high standard for

prevailing on such efforts. And forcing businesses and

agencies to navigate that process solely to trigger a new

six-year window would be a waste of their limited resources. Nor can the government’s anti-textual position

be justified by the mere possibility that other parties

will sue to enjoin agency rules: Our system of litigation

generally affords each injured party their own day in

court.

For these reasons, and others, the Court should reverse the decision below and hold that an APA claim

first “accrues” for purposes of Section 2401(a) when the

plaintiff suffers a legal wrong because of, or is aggrieved

or adversely affected by, an agency rule, regardless of

whether the agency promulgated the rule more than six

years earlier.

5

ARGUMENT

I. Section 2401(a) by Its Terms Runs from the Time that the

Plaintiff’s Claim Accrues

The text of 28 U.S.C. § 2401(a) could not be clearer:

“[E]very 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.”

The statute does not state that the time-bar begins to

run based on when the government (or agency) acts, as

the government now argues it should.

A. The Statutory Text Is Clear

“Right of action” and “accrual” are the key terms in

the statute. As this Court has held, a right of action accrues based on the plaintiff’s rights and injuries, and not

based on the timing of the defendant’s actions. For example, in Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192 (1997),

this Court held that the traditional “accrual” rule means

that a limitation period does not start to run until the

plaintiff has a “complete and present cause of action,”

which in turn means that the plaintiff “can file suit and

obtain relief.” Id. at 201 (citation omitted). Bay Area

Laundry involved employer liability for withdrawing

from an underfunded pension plan, and the Court rejected the petitioner’s argument that the pension withdrawal triggered the statute of limitations; instead, it

held that the limitations period began to run after the

employer missed installment payments, which was

when the plaintiff’s cause of action “ripened” under the

applicable statute. Id. at 202–03; see also Heimeshoff v.

Hartford Life & Acc. Ins. Co., 571 U.S. 99, 105 (2013) (a

cause of action “accrues” when “the plaintiff can file suit

and obtain relief” (quoting Bay Area Laundry, 522 U.S.

6

at 201)); accord CTS Corp. v. Waldburger, 573 U.S. 1, 8

(2014); Graham Cnty. Soil & Water Conservation Dist.

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

Reiter v. Cooper, 507 U.S. 258, 267 (1993).

The accrual-based reading of Section 2401(a) also

finds support in historical practice.

Under the

longstanding, common-law tradition, a statute of limitations began to run at the time of claim-accrual. See

TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J.,

concurring) (the accrual rule is “unquestionably the traditional rule”). The seminal statute of limitations—the

statute of James I—was a general time-bar for claims at

law, and it did not run during the time the plaintiff was

unable to sue because he or she was “within the age of

twenty-one years, feme covert, non compos mentis, imprisoned or beyond the seas.” An Act for Limitation of

Actions, and for Avoiding of Suits in Law, 21 Jam., c. 16

(1623). Many States adopted general statutes of limitations modeled after the statute of James I. See Hanger

v. Abbott, 73 U.S. (6. Wall.) 532, 538 (1867) (“When our

ancestors immigrated here, they brought with them the

statute of 21 Jac I, c. 16, entitled ‘An act for limitation

of actions, and for avoiding of suits in law,’ known as the

statute of limitations.”); see also Donna A. Boswell, The

Parameters of Federal Common Law: The Case of Time

Limitations on Federal Causes of Action, 136 U. Pa. L.

Rev. 1447, 1461 (1988).

Early cases and treatises supported this traditional

accrual rule as the default. In Clark v. Iowa City, 87

U.S. (20 Wall.) 583 (1875), for example, this Court recognized that the standard accrual-based time-bar

“begin[s] to run when the right of action is complete.”

Id. at 589. In Clark, the Court held that an Iowa statute

7

of limitations, as applied to a cause of action on an interest coupon, did not begin to run until the coupon matured, as that was the time when the right of action was

fully ripened. Ibid.; see also Campbell v. United States,

28 Ct. Cl. 512, 516–17 (1893) (“[T]he statute of limitations only runs against a right of action.”). The first edition of Black’s Law Dictionary (1st ed. 1891) defined a

“statute of limitations” as barring suits “unless brought

within a specified period after the right accrued.” And

Professor H.G. Wood’s treatise on statutes of limitations

similarly explained that “at the time when a right of action accrues[,] there must be in existence a party to sue

and be sued, or the statute does not attach thereto.” 1

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

Law and in Equity § 117, at 254 (1st ed. 1883); see also

id. § 54, at 95 (noting that most statutes of limitations

begin to run “from the time of the accrual of the cause of

action”); id. § 252, at 495 (same).2 There is no indication

that Congress intended to depart from the standard,

common-law rule of claim accrual for claims against the

government.

This Court interpreted predecessor statutes of limitations the same way. Before Section 2401(a), there

were the Act of March 3, 1863 (47 Cong. ch. 92, 12 Stat.

765 (March 3, 1863)), and the Tucker Act of 1887 (49

Cong. ch. 359, 24 Stat. 505 (March 3, 1887)), both of

which provided for a six-year statute of limitations for

claims against the government, keyed from the date the

2 See also 2 H.G. Wood, A Treatise on the Limitation of Actions at

Law and in Equity § 122a, at 684 (4th ed. 1916) (a claim first accrues

for purposes of a statute of limitations only when the plaintiff first

“has the right to apply to a court for relief, and to commence proceedings to enforce his rights”)

8

plaintiff’s claim “accrues.”3 With respect to both statutes, this Court has confirmed that a claim must be

brought “within six years after suit could be commenced

thereon against the government.” Finn v. United

States, 123 U.S. 227, 231 (1887) (emphasis added); see

also United States v. Lippitt, 100 U.S. 663, 668 (1879)

(same). In another case, the Court held that because the

plaintiff was “‘beyond the seas’ at the time his demand

first accrued, and had not returned to this country prior

to the institution of this suit, his claim was not barred

by limitation.” United States v. Greathouse, 166 U.S.

601, 606 (1897). The claim accrued when the plaintiff

could file suit, not when the abstract procedural or substantive violation of law occurred.

Within this context, it is apparent that the six-year

statute of limitations to challenge rules under the APA

does not necessarily begin to run from the time of promulgation. A plaintiff’s right to sue under the APA does

not accrue until the plaintiff “suffer[s] [a] legal wrong,”

or is “adversely affected” or “aggrieved by” the agency

action. 5 U.S.C. § 702. A “legal wrong” is “[t]he invasion

of a legally protected right.” Gonzalez v. Freeman, 334

F.2d 570, 575–76 (D.C. Cir. 1964); accord Pa. R.R. v. Dillon, 335 F.2d 292, 294 (D.C. Cir. 1964). The promulgation of a regulation plainly cannot invade the “legally

protected right” of an entity that did not exist at the

time. Likewise, to be “aggrieved” under APA § 702,

plaintiffs must “show that they are personally injured

3 The Tucker Act has since been amended several times, maintain-

ing its accrual-based language. See June 25, 1948, ch. 646, 62 Stat.

971; Apr. 25, 1949, ch. 92, § 1, 63 Stat. 62; Pub. L. 86–238, § 1(3),

Sept. 8, 1959, 73 Stat. 472; Pub. L. 89–506, § 7, July 18, 1966, 80

Stat. 307; Pub. L. 95–563, § 14(b), Nov. 1, 1978, 92 Stat. 2389; Pub.

L. 111–350, § 5(g)(8), Jan. 4, 2011, 124 Stat. 3848.

9

by the challenged action and that their injury is caused

by that action.” Wilderness Soc’y v. Griles, 824 F.2d 4,

11 (D.C. Cir. 1987) (emphasis added); see also Simon v.

E. Ky. Welfare Rights Org., 426 U.S. 26, 59 n.8 (1976)

(an “aggrieved” person under APA § 702 is a person

“whose interest is adversely affected in fact”). Again, a

plaintiff cannot be “personally injured” or “adversely affected in fact” by a regulation until that regulation actually applies to the plaintiff. See also Dir., Off. of Workers’ Comp. Programs, Dep’t of Labor v. Newport News

Shipbuilding & Dry Dock Co., 514 U.S. 122, 127 (1995)

(APA § 702 “require[es] a litigant to show, at the outset

of the case, that he is injured in fact by agency action”).

B. The Courts of Appeals Have Improperly Elevated

Policy Over Text

Despite the clear text and history, a majority of circuits have held that Section 2401(a)’s limitations period

is triggered not by the plaintiff’s claim accrual under the

APA, but by the agency’s conduct. Those decisions arise

out of a misguided focus on policy rather than text.

1. The majority position largely arises out of two decisions from the Ninth Circuit: Shiny Rock Mining

Corp. v. United States, 906 F.2d 1362 (9th Cir. 1990),

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

710 (9th Cir. 1991).

In Shiny Rock, a mining company sought to challenge a public land order that prevented use of certain

lands for mining. 906 F.2d at 1363. The petitioner applied for a mineral permit more than a decade after the

order was adopted, but the Bureau of Land Management denied its application under the earlier order.

Ibid. To avoid the six-year limitations period under Section 2401(a) in a subsequent lawsuit challenging that

10

order for procedural defects, the petitioner argued in relevant part that it had not suffered an injury (or obtained

Article III standing) until its application was denied. Id.

at 1365–66. The Ninth Circuit rejected that argument

and held that “the statute of limitations began to run

when [the order] was published in the Federal Register.” Id. at 1363.

Shiny Rock’s reasoning is not persuasive. First and

foremost, the court of appeals undertook no meaningful

analysis of the actual text of Section 2401(a). Id. at

1365. The court also did not address claim accrual

based on the APA’s reference to “legal wrong,” or being

“aggrieved” or “adversely affected,” nor did it evaluate

whether the plaintiff actually could have filed its claim

any earlier than it did. Instead, the court relied on an

earlier decision (which did not even involve APA claim

accrual) for the proposition that courts should not adopt

an interpretation under which “‘claimants . . . could

challenge regulations . . . when administered by the federal agency, rather than when adopted.’” Id. (quoting

Sierra Club v. Penfold, 857 F.2d 1307, 1316 (9th Cir.

1988)).4 But that circular statement does nothing to explain or justify why claimants should not be allowed to

challenge regulations when applied—it simply restates

the consequence of ruling in favor of the plaintiff. And

of course, “considerations of policy divorced from the

statute’s text and purpose [can]not override its meaning.” United States v. Tohono O’Odham Nation, 563

U.S. 307, 317 (2011); see also, e.g., United States ex rel.

Schutte v. SuperValu Inc., 598 U.S. 739, 758–58 (2023)

4 Penfold merely held that under Federal Rule 15(c), a plaintiff

cannot circumvent the six-year statute of limitations by amending

its complaint to address different conduct or transactions not challenged in the initial complaint. See Penfold, 857 F.2d at 1316.

11

(“policy arguments . . . cannot supersede the clear statutory text” (citation omitted)).

In any event, the Shiny Rock court did not actually

disagree that the statute of limitations does not run until the plaintiff suffers an injury. In the facts of the case

before it, the court assumed that the only “injury required for the statutory period to commence was that

incurred by all persons when, in 1964 and 1965 [i.e.,

when the order was published], the amount of land

available for mining claims was decreased.” Shiny

Rock, 906 F.2d at 1365–66. This reasoning might have

made sense in the context of the case, where the plaintiff

was pursuing a regulatory takings claim under the Fifth

Amendment, and thus any impairment of property interests or “distinct investment-backed expectations” arguably occurred at the time the regulation made the

land unavailable for mining (and thus less valuable).

See Penn Cent. Transp. Co. v. City of New York, 438 U.S.

104, 105 (1978). But that does not lead to the conclusion

that every regulation likewise must be challenged

within six years of its promulgation.

The Ninth Circuit’s later decision in Wind River has

been cited and relied upon even more than Shiny Rock,

but it is no more persuasive. Wind River likewise involved a BLM decision classifying certain land as unavailable for mining. 946 F.2d at 711. Unlike in Shiny

Rock, however, the mining company sought to challenge

the BLM decision, not for procedural deficiencies, but as

exceeding the agency’s substantive authority. Id. at

712. The plaintiff brought its challenge more than six

years after the land classification decision, but within

six years of the BLM’s denial of its application for development of the land. Id. at 711–12.

12

The Ninth Circuit held that the plaintiff’s claim was

timely, agreeing that the claim did not accrue (and the

statute of limitations did not begin to run) until the

agency denied the plaintiff’s application. Wind River,

946 F.2d at 715. But, the court continued, the same was

not true for procedural challenges to an agency decision

or regulation, which had to be brought within six years

of issuance. Ibid. In its view, the grounds for a procedural challenge will “usually be apparent to any interested citizen,” and thus “[t]he government’s interest in

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

agency’s action as a matter of policy or procedure.” Ibid.

This approach, the court of appeals urged, “strikes the

correct balance between the government’s interest in finality and a challenger’s interest in contesting an

agency’s alleged overreaching.” Ibid.5

Although the Ninth Circuit reached the correct ultimate outcome, the errors in the rationale it used to

reach that result are manifest. Under well-settled practice and interpretation, it is the plaintiff’s injury that

triggers accrual and the running of the statute of limitations. Nonetheless, the Ninth Circuit ignored that inquiry altogether and focused its analysis only on competing policy interests. It is not the role of the judiciary

to “balance” competing interests—Congress already

struck that balance in providing for an accrual-based

limitations period in Section 2401(a). See Michigan v.

Bay Mills Indian Cmty., 572 U.S. 782, 794 (2014) (“This

Court has no roving license, in even ordinary cases of

statutory interpretation, to disregard clear language

5 The Ninth Circuit purported to find support in Oppenheim v.

Campbell, 571 F.2d 660 (D.C. Cir. 1978), but that case did not draw

any such distinction between substantive and procedural challenges. See generally ibid.

13

simply on the view that . . . Congress must have intended something broader” (quotation marks omitted)).

2. Since those decisions, several other circuits have

held that a plaintiff’s claim accrues for purposes of Section 2401(a) at the time of the final agency action, not

the time the plaintiff’s claim becomes “complete and present” under APA § 702. Often those decisions rely on

Wind River and/or Shiny Rock directly or indirectly,

though others rely on different cases that have made

similar errors.

The Fifth Circuit, for example, followed Wind River

in Dunn-McCampbell Royalty Interest, Inc. v. National

Park Service, 112 F.3d 1283 (5th Cir. 1997), simply assuming, without regard to statutory text, that the established “rule” is that Section 2401(a) begins to run at the

date of publication of a rule, but that “[i]t is possible . . .

to challenge a regulation after the limitations period has

expired, provided that the ground for the challenge is

that the issuing agency exceeded its constitutional or

statutory authority.” Id. at 1287. Other circuits likewise have treated the Wind River rule as established

law, without any substantial independent analysis. See

Hire Ord. Ltd. v. Marianos, 698 F.3d 168, 170 (4th Cir.

2012); Trafalgar Cap. Assocs. v. Cuomo, 159 F.3d 21, 34

(1st Cir. 1998); see also U.S. Steel Corp. v. Astrue, 495

F.3d 1272, 1280 (11th Cir. 2007) (relying on the First

Circuit’s decision in Trafalgar, which in turn relied on

Wind River).

Other cases erroneously rely on dicta to justify a publication-based accrual rule. In Wong v. Doar, 571 F.3d

247 (2d Cir. 2009), for example, the Second Circuit dispensed with the traditional accrual rule in the context

of the APA, but did so primarily by relying on Harris v.

FAA, 353 F.3d 1006 (D.C. Cir. 2004), in which the D.C.

14

Circuit rejected claims that were brought more than six

years after the plaintiffs’ APA claims had first ripened,

discussed the function of the accrual rule only in dicta,

and resolved the case on narrower grounds. Harris, 353

F.3d at 1011–13.

Courts have also adopted the erroneous rule that the

six-year statute of limitations runs from the date of

promulgation in cases where the accrual question was

immaterial because—as is often true—the plaintiffs’

claims had accrued at the same time of the final agency

action. See, e.g., Hardin v. Jackson, 625 F.3d 739, 743

(D.C. Cir. 2010); Latin Ams. for Soc. & Econ. Dev. v.

Adm’r of the Fed. Highway Admin., 756 F.3d 447, 464

(6th Cir. 2014). Subsequent decisions nonetheless follow that precedent in cases where the claim had ripened

and the action had occurred at separate times, leading

one judge to note “that these cases show why we don’t

read precedents like statutes.” Herr v. U.S. Forest Serv.,

803 F.3d 809, 819 (6th Cir. 2015) (Sutton, J.). In short,

all roads lead back to erroneous circuit precedent, but

none seem to find their way back to the plain text and

history of the statute.

3. In the decision below, the Eighth Circuit followed

other courts of appeals down the garden path by holding

that “when plaintiffs bring a facial challenge to a final

agency action, the right of action accrues, and the limitations period begins to run, upon publication of the regulation.” Pet. App. 11a. Like its predecessors, the

Eighth Circuit did not grapple with the text or history

of Section 2401(a) or APA § 702, and instead relied exclusively on flawed or unpersuasive circuit precedent,

including Shiny Rock, Wind River, and other cases described above. Pet. App. 7–9, 10–11.

15

The Eighth Circuit also relied heavily on its own, earlier decision in Izaak Walton League for the proposition

“that facial challenges to agency actions accrue upon the

publication of the agency action in the Federal Register.” Pet. App. 7a (quoting Izaak Walton League of Am.,

Inc. v. Kimbell, 558 F.3d 751, 761 (8th Cir. 2009)). But

that case held nothing of the sort: The issue in Izaak

Walton League was whether the “continuing violations

doctrine” served to excuse the untimeliness of a plaintiff’s challenge to an agency order that the agency continued to act under years later. 558 F.3d at 759–61; see

also Response & Reply Brief, Sierra Club N. Star Chapter v. Kimbell, 2008 WL 3285537 (8th Cir. July 10,

2008). The Eighth Circuit rejected that argument, but

in doing so, confirmed that it had previously “held that

a right ‘first accrues’ when the plaintiff knows or has

reason to know of the injury complained of.” Izaak Walton League, 558 F.3d at 759 (quoting Stupak–Thrall v.

Glickman, 346 F.3d 579, 584 (6th Cir. 2003)) (emphasis

added); see also Stupak-Thrall, 346 F.3d at 585 (plaintiffs’ claims accrued at the time of agency action because

they “knew that their riparian rights to the use of the

lake were impaired” by that action).6

Thus, the Eighth Circuit’s decision is premised on a

departure from statutory text and reliance on inapposite case law. The so-called “majority rule” in this area

6 None of the other cases on which the Eighth Circuit relied offer

any more support. See, e.g., Paucar v. Att’y Gen. of U.S., 545 F.

App’x 121, 124 (3d Cir. 2013) (challenge untimely because the plaintiff was “capable of challenging the regulation in district court since

at least 2004, but failed to do so”); Ctr. for Biological Diversity v.

Hamilton, 453 F.3d 1331, 1335 (11th Cir. 2006) (continuing violations doctrine not applicable to agency inaction)

16

is not built on any sturdy jurisprudential foundation

and should carry no weight in this Court’s analysis.

II. The

Government’s

Inadequate

Proposed

Alternatives

Are

Eschewing text, the government has relied on policy

arguments to justify its position. Primarily, it argues

that even if direct judicial review is unavailable to aggrieved parties like petitioner, agency rules will not be

“insulated” from scrutiny, because regulated entities

can always challenge a rule as a defense in an enforcement action and affected parties can always petition the

agency for a new rulemaking. Gov’t Br. in Opp’n 14–15.

Even if policy could override text (it cannot), the government’s policy arguments fail to do so.

1. There are myriad reasons why a firm might not

be “aggrieved” by a regulation when it is first promulgated. For example, sometimes, firms move into new

lines of business and thereby come under the purview of

new regulations, or even new agencies. See Giles Bruce,

Amazon Launches One Medical for Prime, Becker’s

Healthcare (Nov. 8, 2023), https://perma.cc/8RVKYEGH (describing Amazon’s expansion into healthcare

industry); Todd Haselton, Apple Unveils Streaming TV

Services,

CNBC

(Mar.

25,

2019),

https://www.cnbc.com/2019/03/25/apple-tv-channelsstreaming-tv-service-announced.html (launch of Apple

TV+ streaming services). Sometimes, agencies issue

new interpretive guidance that clarifies the scope of existing regulations or changes the practical impact of

those regulations in a way that gives rise to the type of

real world harm necessary to support a claim. See, e.g.,

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 100–01

(2015) (agency may issue new interpretation of regula-

17

tion without going through notice-and-comment rulemaking); Fed. Trade Comm’n, CFPB, Truth in Lending

(Regulation Z); Earned Wage Access Programs, 85 Fed.

Reg. 79,404 (Dec. 10, 2020) (offering interpretation of

decades-old regulation). Similarly, an agency may

claim that existing regulations cover new technology.

See FTC Comment, Artificial Intelligence and Copyright, Docket No. 2023-6 (Oct. 30, 2023),

https://perma.cc/KP8M-NLQF (“[T]he FTC has been using its existing legal authorities to take action against

illegal practices involving AI”). And sometimes, as here,

a firm may not even exist at the time a regulation is

promulgated.

In such situations, violating a regulation and then

waiting for agency enforcement action in order to challenge a rule is not a viable option. This Court “normally

do[es] not require plaintiffs to bet the farm by taking the

violative action before testing the validity of the law.”

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561

U.S. 477, 490–91 (2010) (alteration and quotation

marks omitted); see also MedImmune, Inc. v. Genentech,

Inc., 549 U.S. 118, 128–29 (2007) (“[W]here threatened

action by government is concerned, we do not require a

plaintiff to expose himself to liability before bringing

suit to challenge the basis for the threat . . .”). And neither did Congress. See CIC Servs., LLC v. IRS, 141 S.

Ct. 1582, 1588, 1591 (2021). The APA provides an express opportunity for regulated parties to challenge

agency action before they incur compliance costs (see id.

at 1591) and without exposing themselves to an enforcement action that could injure or even end their business.

That choice is all the more important because the

costs and burdens of an administrative enforcement action are significant. Administrative proceedings can be

18

drawn out for many months or years. For example, the

FTC’s “cumbersome and tedious” in-house adjudication

process allows for five to eight months of discovery, followed by a trial of two to three months. J. Robert Robertson, Administrative Trials at the Federal Trade Commission in Competition Cases, 14 Sedona Conf. J. 101,

101 (2013). A decision may not be rendered for another

three months, after which the losing party can appeal to

the full FTC, which can take several months before issuing its decision. See id. at 102, 111–12. As another

example, in a case pending before this Court, the Securities and Exchange Commission took seven years to

render a final decision in an in-house administrative

proceeding. See Brief for Respondents at 3–7, SEC v.

Jarkesy, No. 22-859 (Oct. 11, 2023). And all of this is

before the party ever has an opportunity to challenge the

underlying regulation before an Article III court.

This avenue simply is not practical for the great majority of regulated parties. The cost of the proceedings

themselves and the cost of an adverse enforcement decision at their conclusion are simply too much for most

businesses to bear. By locking entities in administrative purgatory—especially where the in-house administrative law judge is likely to favor the agency—the

agency can forestall judicial scrutiny and force early settlement, foreclosing judicial review as a matter of economic reality.

The APA avoids this very problem by allowing for a

pre-enforcement challenge. Removing that option for

regulated entities that could not challenge the rule

within six years of its promulgation—without any textual basis for doing so—is contrary to Congress’s intent

19

and puts these regulated entities at an unfair disadvantage. The government’s proposed post-enforcement

alternative is no alternative at all.

2. The government’s second proposal—that regulated parties may petition for a new rulemaking—is

similarly inadequate. Like administrative enforcement

actions, petitions for rulemaking can take years to resolve, as agencies have little incentive to act promptly.

As of May 2023, the SEC had responded to just 6.5% of

the petitions for rulemaking submitted to it between

January 2018 and May 2023. See Kara McKenna Rollins, Have the SEC’s Delay Tactics Made Its Petition for

Rulemaking Process Vulnerable to Challenge?, Yale J.

Reg. (May 3, 2023), https://perma.cc/GK54-KJGS. In

one ongoing litigation, a petition for rulemaking has

been pending for 16 months, and the agency has not

committed to providing a response this calendar year.

See generally In re Coinbase, Inc., No. 23-1779 (3d Cir.);

see also Oil, Chem. & Atomic Workers Union v. OSHA,

145 F.3d 120, 124 (3d Cir. 1998) (six-year delay not unreasonable). Once the agency finally acts, that will be

the start of the petitioner’s opportunity to challenge the

legal basis for the agency’s action. All the while, regulated parties will continue to incur substantial and unrecoverable compliance costs. Cf. CIC Servs., 141 S. Ct.

at 1591.

If and when an agency finally does respond, it is

likely to deny any request for rulemaking—particularly

if the request challenges an existing regulation—

prompting a request for judicial review. See Rollins, supra. But judicial review of an agency’s decision not to

initiate a rulemaking is “extremely limited and highly

deferential.” Massachusetts v. EPA, 549 U.S. 497, 527–

28 (2007) (quotation marks omitted); see also WWHT,

20

Inc. v. FCC, 656 F.2d 807, 818 (D.C. Cir. 1981) (“It is

only in the rarest and most compelling of circumstances

that this court has acted to overturn an agency judgment not to institute rulemaking”). Regulated parties

proceeding under this path thus start at a significant

disadvantage, and as a result, petitions for rulemaking

are generally a disfavored means of spurring agency action or obtaining judicial review. See Jason A. Schwartz

& Richard L. Revesz, Petitions for Rulemaking, Admin.

Conf. of the U.S. 41–43 (Nov. 5, 2014).

And even if the agency chooses to grant the request

for a rulemaking, both the petitioner and the agency will

have expended unnecessary resources, all so that the

petitioner can trigger a new six-year limitations period

to mount a challenge. This inefficiency is entirely avoidable and only highlights the flaws in the government’s

promulgation-based standard.

3. Finally, the government contends that industry

associations and other interested parties are likely to

challenge any rules likely to affect significant numbers

of individuals and businesses. Gov’t Br. in Opp’n 14.

The government offers no empirical support for this assertion and points only to the fact that merchant groups

sued in this case. Ibid. In reality, the federal government issues thousands of broadly-applicable rules every

year, and those rules remain on the books as new ones

are promulgated. Cong. Rsch. Service, Counting Regulations: An Overview of Rulemaking, Types of Federal

Regulations, and Pages in the Federal Register (Sept. 3,

2019), https://sgp.fas.org/crs/misc/R43056.pdf. Industry

associations and other interested parties do not (and

cannot) challenge every unlawful agency rule as it is

promulgated, or even within six years.

21

Even if industry associations and other interested

parties did have the capacity to comb through the pages

of the Federal Register and mount a challenge to every

unlawful regulation, that would still not be sufficient.

Our Anglo-American system of justice has a “deeprooted historic tradition that everyone should have his

own day in court.” Richards v. Jefferson County, 517

U.S. 793, 798 (1996) (emphasis added). Thus, a fundamental premise of American litigation is that parties to

a prior action are bound by the judgment while nonparties are not. Smith v. Bayer Corp., 564 U.S. 299, 307–

08 (2011); see also Taylor v. Sturgell, 553 U.S. 880, 892

(2008) (“A person who was not a party to a suit generally

has not had a ‘full and fair opportunity to litigate’ the

claims and issues settled in that suit.”). Each party has

its own unique interests and can be affected by the rule

differently. Each therefore has its own incentives in deciding how best to litigate a case, which arguments to

raise, and if and when to settle. And litigation is “fallible,” often leading to different outcomes based on “the

very identity of the parties.” 18A Wright & Miller, Fed.

Prac. & Proc. Juris. § 4449 (3d ed. April 2023 update).

Congress made a deliberate judgment to provide for

a robust right of judicial review of agency action. The

APA sets forth the “basic presumption” for “judicial review to one ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.’” Abbott Lab’ys v. Gardner, 387 U.S. 136, 140

(1967) (quoting 5 U.S.C. § 702). The alternatives for judicial review the government offers are inadequate substitutes. There is no basis for distinguishing between

parties who are immediately injured by an unlawful

regulation from those who incur no harm until several

years later.

22

***

If Congress believes a different time limitation is better as a matter of policy for certain rules, agencies, industries, entities, or types of claims, it is free to amend

the law to reflect that preference. But Congress enacted

(and has repeatedly amended) Section 2401(a) with text

that is clear on its face. Any subsequent policy-based

adjustments in specific situations should be evaluated

and made by Congress, not the judiciary.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JENNIFER B. DICKEY

MARIA C. MONAGHAN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street NW

Washington, DC 20062

MARK A. PERRY

Counsel of Record

JOSHUA M. WESNESKI

WEIL, GOTSHAL & MANGES LLP

2001 M Street NW

Washington, DC 20036

(202) 682-7000

mark.perry@weil.com

MARK I. PINKERT

WEIL, GOTSHAL & MANGES LLP

1395 Brickell Ave.

Miami, FL 33131

NOVEMBER 2023