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

No. 22-1008

IN THE

Supreme Court of the United States

_______________

CORNER POST, INC.,

Petitioner,

v.

BOARD OF GOVERNORS OF THE FEDERAL RESERVE

SYSTEM,

Respondent.

_______________

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

_______________

BRIEF OF THE CATO INSTITUTE

AS AMICUS CURIAE SUPPORTING PETITIONER

_______________

ANASTASIA P. BODEN

THOMAS A. BERRY

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

JEREMY J. BROGGI

Counsel of Record

MICHAEL J. SHOWALTER

BOYD GARRIOTT

HANNAH BINGHAM

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

(202) 719-7000

JBroggi@wiley.law

Counsel for Amicus Curiae

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................... 1

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

ARGUMENT ............................................................ 4

I.

THE DECISION BELOW DISREGARDS

FUNDAMENTAL PRINCIPLES OF STATUTORY INTERPRETATION. .............................. 4

II. THE LOWER COURTS’ POLICY ARGUMENTS ARE UNFOUNDED. ......................... 11

III. THE ADMINISTRATIVE STATE SHOULD

NOT BE PERMITTED TO ELUDE JUDICIAL

OVERSIGHT WHEN UNLAWFULLY IMPOSING NEW INJURIES. ..................................... 15

CONCLUSION ....................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ................................................ 7

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) .......................................... 17

Albernaz v. United States,

450 U.S. 333 (1981) ............................................ 3, 9

Auction Co. of Am. v. FDIC,

132 F.3d 746 (D.C. Cir. 1997) ................................ 5

Beck v. Prupis,

529 U.S. 494 (2000) ................................................ 9

Biden v. Nebraska,

143 S. Ct. 477 (2022) ............................................ 17

Bowen v. Mich. Acad. of Fam.

Physicians,

476 U.S. 667 (1986) .............................................. 18

Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec.,

Inc.,

582 U.S. 497 (2017) .............................................. 13

CIC Servs., LLC v. IRS,

141 S. Ct. 1582 (2021) .......................................... 18

City of Arlington v. FCC,

569 U.S. 290 (2013) .............................................. 16

Clark v. Martinez,

543 U.S. 371 (2005) .............................................. 15

iv

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ................................ 6

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ............................................ 12, 13

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) .................................... 11, 12

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ........................................ 16, 18

Functional Music, Inc. v. FCC,

274 F.2d 543 (D.C. Cir. 1958) .......................... 4, 14

George v. McDonough,

142 S. Ct. 1953 (2022) ............................................ 5

Groff v. DeJoy,

600 U.S. 447 (2023) ................................................ 2

Guedes v. ATF,

140 S. Ct. 789 (2020) ............................................ 17

Harris v. FAA,

353 F.3d 1006 (D.C. Cir. 2004) .............................. 8

Hernandez v. Mesa,

140 S. Ct. 735 (2020) .............................................. 3

Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Cir. 2015) .................... 4, 5, 8, 13

Jersey Heights Neighborhood Ass’n v.

Glendening,

174 F.3d 180 (4th Cir. 1999) .................................. 7

v

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................... 16, 18

Kremer v. Chem. Constr. Corp.,

456 U.S. 461 (1982) ................................................ 6

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

572 U.S. 118 (2014) ................................................ 6

Marx v. Gen. Revenue Corp.,

568 U.S. 371 (2013) ................................................ 7

Nat’l Ass’n of Home Builders v. Defs. of

Wildlife,

551 U.S. 644 (2007) ................................................ 6

New Jersey v. New York,

523 U.S. 767 (1998) ................................................ 9

NFIB v. OSHA,

595 U.S. 109 (2022) .............................................. 17

Outdoor Amusement Bus. Ass’n, Inc. v.

DHS,

983 F.3d 671 (4th Cir. 2020) ................................ 20

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc.,

139 S. Ct. 2051 (2019) ...................................... 9, 14

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................................ 15

Preminger v. Sec’y of Veterans Affairs,

517 F.3d 1299 (Fed. Cir. 2008) ............................ 12

vi

Rotkiske v. Klemm,

140 S. Ct. 355 (2019) ............................................ 11

Sackett v. EPA,

566 U.S. 120 (2012) .............................................. 18

Sekhar v. United States,

570 U.S. 729 (2013) ................................................ 9

Shaughnessy v. Pedreiro,

349 U.S. 48 (1955) ................................................ 16

Spannaus v. DOJ,

824 F.2d 52 (D.C. Cir. 1987) .......................... 13, 14

Staples v. United States,

511 U.S. 600 (1994) ................................................ 9

Tilton v. SEC,

824 F.3d 276 (2d Cir. 2016) ................................. 19

Trafalgar Cap. Assocs., Inc. v. Cuomo,

159 F.3d 21 (1st Cir. 1998) .................................. 20

United States v. Madigan,

300 U.S. 500 (1937) ................................................ 6

United States v. Santos,

553 U.S. 507 (2008) .............................................. 15

Va. Off. for Prot. & Advoc. v. Stewart,

563 U.S. 247 (2011) .............................................. 14

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .......................................... 17

vii

Wilkie v. Robbins,

551 U.S. 537 (2007) .............................................. 19

Wind River Mining Corp. v. United

States,

946 F.2d 710 (9th Cir. 1991) ...................... 7, 15, 20

Wong v. Doar,

571 F.3d 247 (2d Cir. 2009) ................................... 7

Yellow Freight Sys., Inc. v. Donnelly,

494 U.S. 820 (1990) .............................................. 11

Ex parte Young,

209 U.S. 123 (1908) .............................................. 18

Statutes

5 U.S.C. § 702 ........................................................... i, 8

5 U.S.C. § 704 ....................................................... i, 3, 7

16 U.S.C. § 7804(d)(1) ............................................... 11

28 U.S.C. § 2401(a) ............................................. i, 2, 13

Act of June 25, 1948, ch. 646, 62 Stat.

869 (1948) ............................................................... 5

Legislative Materials

92 Cong. Rec. 2149 (1946) ......................................... 15

S. Rep. No. 79-752 (1945) .......................................... 15

viii

Administrative Materials

Luis A. Aguilar, Comm’r, SEC, A

Stronger Enforcement Program to

Enhance Investor Protection (Oct. 25,

2013) ..................................................................... 19

DOJ, Attorney General’s Manual on the

Administrative Procedure Act (1947).................... 8

Comments of Andrew N. Vollmer on

Office of Mgmt. & Budget Request

for Information, OMB-2019-0006

(Mar. 9, 2020) ....................................................... 19

Other Authorities

Clyde Wayne Crews, Jr., How Many

Federal Agencies Exist?, Forbes (July

5, 2017, 4:03 PM) ................................................. 16

John Kendrick, (Un)limiting

Administrative Review: Wind River,

Section 2401(a), and the Right to

Challenge Federal Agencies, 103 Va.

L. Rev. 157 (2017) ...................................... 5, 10, 15

Paul J. Larkin, Jr. & GianCarlo

Canaparo, Gunfight at the New Deal

Corral, 19 Geo. J.L. & Pub. Pol’y 477

(2021) .................................................................... 16

Susan C. Morse, Old Regs, 31 Geo.

Mason L. Rev. (forthcoming 2023) ................ 10, 11

INTEREST OF AMICUS CURIAE

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was established in 1989 to help restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences, and produces the annual Cato Supreme Court Review.

This case interests Cato because the decision below deprives persons newly injured by old agency action of access to the federal courts in clear contravention of the pertinent statutory text, and thus allows

unlawful agency action to evade judicial correction.

The Federal Reserve argues that the limitations period to challenge the rule at issue in this case ended

before Corner Post even existed. On that view, Corner

Post (and many small businesses like it) never had a

chance to challenge the rule. The Federal Reserve argues that Corner Post ran out of time before it even

opened its doors. The question presented is whether

the limitations period began running when the rule

was issued (seven years before Corner Post opened) or

when Corner Post was injured. And the answer is

clear: Corner Post’s clock did not start until it was injured by the rule. 1

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

no person or entity other than amicus or its counsel made a monetary contribution to fund the brief’s preparation or submission.

2

SUMMARY OF ARGUMENT

Statutory interpretation must “heed . . . what a

statute actually says,” Groff v. DeJoy, 600 U.S. 447,

468 (2023), and that makes this case easy. Section

2401(a) says that its limitations period starts when a

right of action “first accrues.” 28 U.S.C. § 2401(a). No

one has ever disputed that as originally understood,

that language connoted a limitations period starting

at plaintiff’s injury. Instead, the court below and the

Federal Reserve have asserted that Section 2401(a)’s

limitations period no longer starts at injury with respect to certain APA claims and, for those claims, instead starts at final agency action. See Gov’t BIO 8.

Because no one has ever suggested that the APA explicitly says anything about a limitations period, the

Federal Reserve must be arguing that the APA implicitly modified Section 2401(a)’s accrual rule. But the

Federal Reserve’s theory comes nowhere near this

Court’s demanding standard for implicit modification.

The Federal Reserve’s position has been sustained

by lower courts only through inattention to statutory

text. For a time, federal courts were quick to read

statutes as “implying” legal rules that were absent

from the text but perceived as sensible policy. This

Court has long since renounced that “freewheeling approach.” Hernandez v. Mesa, 140 S. Ct. 735, 751

(2020) (Thomas, J., concurring). But as this case illustrates, not all lower-court doctrines have caught

up. For policy reasons—when reasons are given at

all—six circuit courts have interpreted the APA as

modifying Section 2401(a)’s statute of limitations.

These courts have read the APA to start the clock at

the defendant’s last act for certain administrative-law

3

claims. But that “read[s] much into nothing,” Albernaz v. United States, 450 U.S. 333, 341 (1981), because the APA implies nothing of the sort.

Perhaps recognizing the need to cite some statutory text somewhere to support their policy-driven

conclusion, these lower courts have asserted that APA

Section 704’s limitation on the APA cause of action to

“final agency action” converts Section 2401(a) into a

statute of repose for certain APA claims. See also

Gov’t BIO 8 (same). That is indefensible. To the extent Section 704 implies anything about accrual of the

APA right of action, it creates an additional condition

necessary to start the clock (that the agency action be

final) on top of the normal accrual rules. Section 704

cannot conceivably be understood to subtract from the

centuries-old understanding that a right of action

does not accrue before the plaintiff has been injured.

These lower courts have never explained their invocation of Section 704, probably because it can only be

explained as a fig leaf for policymaking.

The lower courts’ policy arguments, moreover, are

unpersuasive. In the (rare) instances lower-court

analysis has extended beyond ipse dixit, the courts

have reasoned that the textual approach leaves federal agencies without repose because their actions

might be challenged by newly injured parties for perpetuity. But it is undisputed that agency action is forever vulnerable to judicial invalidation regardless of

whose interpretation prevails in this case. Agency action—no matter how old—often can be challenged in

an enforcement proceeding. An action never reaches

any “promised land” on anyone’s position. Herr v. U.S.

Forest Serv., 803 F.3d 809, 821 (6th Cir. 2015); see also

Functional Music, Inc. v. FCC, 274 F.2d 543, 546–47

(D.C. Cir. 1958).

4

If the lower court’s approach stands, the Americans who are newly injured by old agency action each

year will have no meaningful opportunity to contest

the lawfulness of the injurious action unless the

agency brings an enforcement action against them.

And this Court has explained time and again that the

potential opportunity to defend an enforcement action

is an inadequate remedy. Particularly because of the

immense and growing reach of the administrative

state, the APA cause of action authorizing direct review by any newly injured party is essential to ensure

that Americans are not unlawfully injured by overzealous bureaucrats.

ARGUMENT

I. THE DECISION BELOW DISREGARDS

FUNDAMENTAL PRINCIPLES OF STATUTORY INTERPRETATION.

At bottom, this case presents a pure question of

statutory interpretation: whether the APA implicitly

modifies Section 2401(a)’s accrual rules. Under Section 2401(a)’s original meaning, the limitations clock

starts when the plaintiff is injured. 2 See John

2

Section 2401(a)’s original meaning dates to a statute of limitations enacted in 1863. See Herr v. U.S. Forest Serv., 803 F.3d

809, 815–16 (6th Cir. 2015) (recounting Section 2401(a)’s history). In the time since, Congress has made “minor changes in

the wording and relocated [the statute of limitations] to

28 U.S.C. § 2401(a).” Auction Co. of Am. v. FDIC, 132 F.3d 746,

749 (D.C. Cir. 1997). But these organizational changes were

meant to “continu[e] . . . existing law.” Act of June 25, 1948, ch.

646, § 2680, sec. 2(b), 62 Stat. 869, 985 (1948). And at any rate,

statutory language “obviously transplanted from another legal

source” “brings the old soil with it.” George v. McDonough, 142

S. Ct. 1953, 1959 (2022).

5

Kendrick, (Un)limiting Administrative Review: Wind

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

Federal Agencies, 103 Va. L. Rev. 157, 180–192 (2017).

Indeed, no party, court, or commentator has ever disputed that Section 2401(a)’s limitations period started

at injury when Section 2401(a) was enacted and in the

decades that followed.

Yet the Eighth Circuit, following other circuits,

has concluded that this accrual rule no longer applies

to certain administrative-law claims after the APA’s

enactment. Because the APA nowhere says that a

claim can accrue before injury, the Eighth Circuit’s

position requires the view that the APA modified Section 2401(a)’s accrual rules implicitly.

One would expect a careful parsing of text to precede such a determination of partial repeal by implication. After all, “repeals by implication” are “not favored.” Kremer v. Chem. Constr. Corp., 456 U.S. 461,

468 (1982); see also, e.g., United States v. Madigan,

300 U.S. 500, 506 (1937) (“[T]he modification by implication of the settled construction of an earlier and

different section is not favored.”). 3 Implied modification occurs only when (1) “provisions in the two acts

are in irreconcilable conflict,” or (2) “the later act covers the whole subject of the earlier one and is clearly

intended as a substitute.” Kremer, 456 U.S. at 468.

3

It “does not matter” whether the implied alteration “is characterized as an amendment or a partial repeal” because “[e]very

amendment of a statute effects a partial repeal to the extent that

the new statutory command displaces earlier, inconsistent commands,” and this Court has “repeatedly recognized that implied

amendments are no more favored than implied repeals.” Nat’l

Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 664 n.8

(2007).

6

In “either case,” “the intention of the legislature to repeal must be clear and manifest.” Id.

That demanding standard is even more demanding when court access is at stake, because the federal

courts have a “virtually unflagging” “obligation” to

“hear and decide cases within [their] jurisdiction.”

Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 126 (2014) (quotation marks omitted);

see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,

404 (1821) (Marshall, C.J.) (“We have no more right to

decline the exercise of jurisdiction which is given,

than to usurp that which is not given. The one or the

other would be treason to the constitution.”). Courts

therefore “restrict access to judicial review” “only

upon a showing of ‘clear and convincing evidence’ of a

contrary legislative intent.” Abbott Labs. v. Gardner,

387 U.S. 136, 141 (1967). And this Court has repeatedly explained that “[t]he best evidence of congressional intent . . . is the statutory text that Congress

enacted.” Marx v. Gen. Revenue Corp., 568 U.S. 371,

392 n.4 (2013) (Sotomayor, J., dissenting) (citing W.

Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98

(1991)).

But the circuits’ consideration of statutory text

has ranged from cursory to nonexistent. They have

instead balanced interests and settled on a framework

that to them “make[s] the most sense.” Wind River

Mining Corp. v. United States, 946 F.2d 710, 715 (9th

Cir. 1991). The court below, for example, did not

merely reach the wrong interpretive answer—it failed

even to ask the pertinent interpretive questions. The

court below never inquired into Section 2401(a)’s original meaning, or what specific part of the APA might

implicitly modify that meaning (a question clearly antecedent to any implicit-modification conclusion), or

7

whether evidence of implicit modification is “clear and

convincing.” Instead, the court below simply announced that “[t]his court concludes that . . . [Petitioner’s] right of action accrue[d] . . . upon publication

of the regulation.” App. 11.

When these lower courts have cited any statutory

text at all, they have pointed to the APA’s limitation

of its cause of action to “final agency action” in Section

704 without explaining that provision’s relevance.

See, e.g., Wong v. Doar, 571 F.3d 247, 263 & n.15 (2d

Cir. 2009) (“Under the APA, the statute of limitations

begins to run at the time the challenged agency action

becomes final. See 5 U.S.C. § 704.”); Jersey Heights

Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186

(4th Cir. 1999) (holding without analysis that the APA

right of action accrues “upon ‘final agency action,’

5 U.S.C. § 704”); Harris v. FAA, 353 F.3d 1006, 1010

(D.C. Cir. 2004) (“The right of action first accrues on

the date of the final agency action.” (citing 5 U.S.C.

§ 704)). And the Federal Reserve has resorted to the

same sort of unexplained ipse dixit before this Court.

Opposing certiorari, it simply noted that “the APA establishes a cause of action to challenge ‘final agency

action’” and then stated its conclusion: “Accordingly,

when an agency makes a final decision that [satisfies

this Court’s test for finality], the ‘right of action’ established by the APA ‘accrues.’” Gov’t BIO 8.

This bare observation that the APA limits its

cause of action to final agency action does nothing to

support a conclusion that accrual occurs at final

agency action rather than at injury. Section 704

plainly does not alter the longstanding rule that a

right of action cannot accrue until the plaintiff has

been injured. Rather, Section 704 simply states that

an APA claim cannot be brought until the plaintiff is

8

injured and the agency action is final—in other words,

finality “is another necessary, but not by itself a sufficient, ground for stating a claim under the APA.”

Herr, 803 F.3d at 819. The APA largely “restate[d] the

law governing judicial review of administrative action,” DOJ, Attorney General’s Manual on the Administrative Procedure Act 124 (1947); 4 it certainly did

not upend centuries-old accrual rules by providing

that only final agency action is reviewable.

The Federal Reserve has also discussed APA Section 702, see Gov’t BIO 10–11, but this Court should

not lose sight of the fact that in this discussion the

Federal Reserve is playing only defense. Because Section 702 creates a cause of action that can be brought

only when a person is “aggrieved” by final agency action, if anything it indicates that the normal accrual

rules do apply to APA claims. The APA’s judicial-review provisions cannot conceivably be understood as

establishing a break from accrual norms. Far from

clearly and manifestly altering the original understanding of Section 2401(a) accrual, the APA says

nothing that even plausibly could alter it. At best for

the Federal Reserve, the APA is silent on accrual.

The APA’s limitations-period “silence” “means

that ordinary background law applies.” New Jersey v.

New York, 523 U.S. 767, 813 (1998) (Breyer, J., concurring); see also, e.g., Albernaz, 450 U.S. at 341–42

(“[I]f anything is to be assumed from the congressional

silence . . . , it is that Congress was aware of the [background] rule and legislated with it in mind.”); id. at

341 (Congress is “predominantly a lawyer’s body,” and

it is appropriate “to assume that our elected representatives . . . know the law.”). This background law

4 Available at tinyurl.com/4nu4mtxw.

9

includes both the original semantic meaning of the

phrase “right of action first accrues” and the “cluster

of ideas that were attached to [the phrase]” “accumulated [in] the legal tradition and meaning of centuries

of practice.” Sekhar v. United States, 570 U.S. 729,

733 (2013); see also, e.g., Staples v. United States, 511

U.S. 600, 605 (1994) (“[W]e must construe the statute

in light of the background rules of the common law.”).

Statutory silence signals congressional “satisfaction

with widely accepted definitions, not a departure from

them.” Beck v. Prupis, 529 U.S. 494, 501 (2000); see

also PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051, 2061 (2019) (Kavanaugh,

J., concurring in the judgment) (congressional “silence” “should not be read to preclude judicial review”).

As Petitioner and academic commentary have

shown, “[e]very source” reflecting the cluster of ideas

attached to nineteenth-century accrual “points the

same way”: “[a] party’s right of action cannot accrue

until he or she has actually been harmed by the defendant.” Kendrick, (Un)limiting Administrative Review, 103 Va. L. Rev. at 159; see also id. at 180–192

(examining enactment-era cases, dictionaries, and

treatises). And even under the view of the court below, that holds true to this day in all other contexts.

See id. at 199 (courts apply the textual approach in

“every other type of claim that [Section 2401(a)] covers”).

Even the leading commentary defending the

Eighth Circuit’s approach concedes that “the text of

28 U.S.C. § 2401(a) . . . suggests . . . that accrual

should begin separately for each specific plaintiff’s

claim” and thus further concedes that accrual based

on “when a specific plaintiff can sue” “does apply to

10

cases first contemplated by 28 U.S.C. § 2401(a).” Susan C. Morse, Old Regs, 31 Geo. Mason L. Rev. (forthcoming 2023) (manuscript at 4); 5 see also id. at 4–5

(conceding that under the Eighth Circuit’s approach

“accrual is triggered by an action of the defendant, not

a claim of the plaintiff, contrary to the plaintiff-focused approach taken when interpreting 28 U.S.C.

§ 2401(a)’s application [in other contexts]”). Because

that commentary fares no better than the circuit

courts at identifying any text in the APA implying

modification of that background rule, those concessions are fatal. 6

The lower courts’ “atextual judicial supplementation” is “particularly inappropriate,” moreover, because “Congress has shown that it knows how to adopt

the omitted language.” Rotkiske v. Klemm, 140 S. Ct.

355, 361 (2019) (capitalization altered). Congress has

shown that “it knows exactly how to specify” the kinds

of limitations rules that the lower courts have written

into the APA. But Congress chose to do “nothing like

that” in the APA. Epic Sys. Corp. v. Lewis, 138 S. Ct.

1612, 1617 (2018). Congress easily could have provided that the limitations period for APA claims starts

once the regulation is “published in the Federal Register,” for example, as it did in 16 U.S.C. § 7804(d)(1).

See also Gov’t BIO 11 (recognizing that “[i]n a variety

5 Available at ssrn.com/abstract=4191798.

6

This commentator rests her defense of the Eighth Circuit’s approach on her unsubstantiated assertion that APA claims are different because the unlawful action “arises at promulgation (or

other final agency action), then exists and continues, waiting unchanged for any eligible plaintiff to come along and raise it.”

Morse, Old Regs, 31 Geo. Mason L. Rev. at 5. That does not, in

fact, make APA claims different—it is true any time there is a

temporal gap between unlawful conduct and injury.

11

of circumstances, Congress has established deadlines

for suit that run from the defendant’s allegedly unlawful conduct”). The “omission of any such provision is

strong, and arguably sufficient, evidence that Congress had no such intent.” Yellow Freight Sys., Inc. v.

Donnelly, 494 U.S. 820, 823 (1990).

Because there is no indication—let alone one that

is clear and manifest—that Congress intended to implicitly modify Section 2401(a) through the APA, the

Eighth Circuit’s approach is textually indefensible.

This Court should reverse and instruct lower courts to

“ask only what the statute means,” Epic Sys. Corp.,

138 S. Ct. at 1631, when interpreting Section 2401(a).

II. THE LOWER COURTS’ POLICY

MENTS ARE UNFOUNDED.

ARGU-

Though the lower courts have taken a much closer

look at policy than text, their policy arguments reflect

fundamental misunderstandings of both statutes of

limitation and the APA. The lower courts’ primary

policy concern is that under the textual approach

“there effectively would be no statute of limitations.”

Preminger v. Sec’y of Veterans Affairs, 517 F.3d 1299,

1307 (Fed. Cir. 2008) (citing Wind River, 946 F.2d at

714). That is undeniably incorrect—if Petitioner had

filed this lawsuit more than six years after its alleged

injury, Section 2401(a) would bar the suit just like any

other statute of limitations. What these courts really

mean is that there effectively is no repose for the defendant. And that is indeed true—because Section

2401(a) is not a statute of repose.

A statute of repose does exactly what the lower

courts want Section 2401(a) to do: it provides the defendant with “freedom from liability” and the assurance that “past events [are] behind him.” CTS Corp.

12

v. Waldburger, 573 U.S. 1, 9 (2014). An “absolute . . .

bar on a defendant’s temporal liability,” a statute of

repose “puts an outer limit on the right to bring a civil

action” that is “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.” Id. at 8

(internal quotation marks omitted). That is, a statute

of repose bars suit even if its limitations period “ends

before the plaintiff has suffered a resulting injury.”

Id.

Because a statute of repose limit is “not related to

the accrual of any cause of action,” id., and Section

2401(a) is related to accrual, 28 U.S.C. § 2401(a) (limit

based on when right of action “accrues”), Section

2401(a) is not a statute of repose. Rather, because it

is based on accrual, Section 2401(a) is a “statute of

limitations.” Id. at 7. And a statute of limitations begins to run “when the injury occurred or was discovered.” Id. at 8. That means statutes of limitation purposely do not provide a defendant with “freedom from

liability” and the assurance that “past events [are] behind him.” Id. at 9; see also Cal. Pub. Emps.’ Ret. Sys.

v. ANZ Sec., Inc., 582 U.S. 497, 505 (2017) (statutes of

repose give “more explicit and certain protection to defendants” than statutes of limitation). A statute cannot ensure both repose for defendants and remedy for

plaintiffs because there is sometimes a temporal gap

between the last culpable act and the injury; statutes

of limitation like Section 2401(a) accept some loss of

repose to ensure that all injured plaintiffs are able to

bring suit. See Spannaus v. DOJ, 824 F.2d 52, 56 n.3

(D.C. Cir. 1987) (it is “virtually axiomatic” that “a statute of limitations cannot begin to run against a plaintiff before the plaintiff can maintain a suit” even

though that is not true of statutes of repose). To say

that Section 2401(a) must provide federal agencies

13

with repose ignores that Congress chose the other side

of that tradeoff.

Federal agencies do not have absolute repose,

moreover, even under the Eighth Circuit’s approach.

No matter what, so long as the agency enforces its action, the action never “enter[s] a promised land” because “[r]egulated parties may always assail a regulation as exceeding the agency’s statutory authority in

enforcement proceedings against them.” Herr, 803

F.3d at 821; see also PDR Network, 139 S. Ct. at 2060

(Kavanaugh, J.). And the scope of judicial review under the APA is the same regardless whether the issue

arises in a declaratory-judgment action or as an enforcement defense. Cf. Va. Off. for Prot. & Advoc. v.

Stewart, 563 U.S. 247, 262 (2011) (Kennedy, J., concurring) (pre-enforcement review is “nothing more

than the pre-emptive assertion in equity of a defense

that would otherwise have been available in . . . enforcement proceedings at law.”). In both situations,

judicial review considers the purely legal question of

the agency action’s validity based on the law and the

closed universe of the agency’s action and record of decision. See, e.g., PDR Network, 139 S. Ct. at 2066–67

(Kavanaugh, J.); Functional Music, 274 F.2d at 546–

47. Any judicial decision in an enforcement proceeding, therefore, is just as sweeping as in an APA lawsuit. That means there is little daylight between the

degree of agency repose under the Eighth Circuit’s approach and under the textual approach.

The Eighth Circuit’s approach, moreover, itself

has policy problems. For one, it eliminates certain

rights of action before they even arise, as this case illustrates. That contravenes the central purpose for

enacting a statute of limitations rather than a statute

14

of repose. See Spannaus, 824 F.2d at 56 n.3 (it is “virtually axiomatic” that a statute of limitations “cannot

begin to run against a plaintiff before the plaintiff can

maintain a suit”). Americans should not be shut out

of court because, for example, they failed to be born

within six years of unlawful agency action that harms

them.

The Eighth Circuit’s approach also jettisons a uniform standard and creates bifurcation in multiple

ways. Under the textual approach, the Section

2401(a) limitations period operates uniformly across

all claims. Under the Eighth Circuit’s approach, by

contrast, the limitations period operates differently

inside the APA versus outside, and also depends on

what sort of APA claim is brought. See Wind River,

946 F.2d at 715; Kendrick, (Un)limiting Administrative Review, 103 Va. L. Rev. at 199 (courts apply the

textual approach in “every other type of claim that

[Section 2401(a)] covers”). That violates this Court’s

admonition that statutory language cannot be given

“different meanings in different factual contexts.”

United States v. Santos, 553 U.S. 507, 522 (2008) (plurality) (emphasis omitted); see also Clark v. Martinez,

543 U.S. 371, 386 (2005) (the notion that “judges can

give the same statutory text different meanings in different cases” is a “dangerous principle”). The lower

courts have impermissibly “render[ed]” Section

2401(a) “a chameleon.” Clark, 543 U.S. at 382. Their

policy arguments are both methodologically improper

and substantively ineffective.

15

III. THE ADMINISTRATIVE STATE SHOULD

NOT BE PERMITTED TO ELUDE JUDICIAL

OVERSIGHT WHEN UNLAWFULLY IMPOSING NEW INJURIES.

The APA is a “bill of rights” for “the hundreds of

thousands of Americans whose affairs are controlled

or regulated” by federal agencies. 92 Cong. Rec. 2149

(1946) (statement of Sen. McCarran). It was designed

to serve as “a check upon administrators whose zeal

might otherwise have carried them to excesses not

contemplated in legislation creating their offices.” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 109 (2015)

(Scalia, J., concurring) (quoting United States v. Morton Salt Co., 338 U.S. 632, 644 (1950)); see also S. Rep.

No. 79-752, at 212 (1945) (APA judicial review is designed to prevent Congress’s statutes from becoming

“blank checks drawn to the credit of some administrative officer or board”); Shaughnessy v. Pedreiro, 349

U.S. 48, 51 (1955) (APA was intended in part to “remove obstacles to judicial review of agency action”).

The APA’s guarantees have become all the more

critical as the administrative state has transformed

into leviathan. Today, “the Executive Branch . . .

wields vast power and touches almost every aspect of

daily life.” Free Enter. Fund v. PCAOB, 561 U.S. 477,

499 (2010). Much of the federal government’s operation now consists of “hundreds of federal agencies poking into every nook and cranny of daily life.” City of

Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts,

C.J., dissenting); see also Clyde Wayne Crews, Jr.,

How Many Federal Agencies Exist?, Forbes (July 5,

16

2017) 7 (government estimates of the number of federal agencies in existence vary from 71 to 454). Our

Constitution’s founders “could hardly have envisioned

today’s ‘vast and varied federal bureaucracy’ and the

authority administrative agencies now hold over our

economic, social, and political activities.” City of Arlington, 569 U.S. at 313 (Roberts, C.J.). These agencies “produce[] reams of regulations—so many that

they dwarf the statutes enacted by Congress.” Kisor

v. Wilkie, 139 S. Ct. 2400, 2446–47 (2019) (Gorsuch,

J., concurring in the judgment) (quotations marks

omitted). The Code of Federal Regulations contained

18,000 pages near the close of the New Deal in 1938

but now contains more than 175,000 pages. Paul J.

Larkin, Jr. & GianCarlo Canaparo, Gunfight at the

New Deal Corral, 19 Geo. J.L. & Pub. Pol’y 477, 488

(2021). And agencies “add thousands more pages of

regulations every year.” Kisor, 139 S. Ct. at 2447

(Gorsuch, J.).

Unfortunately, the administrative state’s rapid

expansion has not led agencies to exercise greater care

in respecting constitutional boundaries. To the contrary, in recent years agencies have aggressively

pushed the limits of their authority in ways that impact every aspect of American society. For example,

the CDC—an agency tasked with preventing “communicable diseases”—recently claimed power to “impose[] a nationwide moratorium on evictions” in counties covering “[a]t least 80% of the country.” Ala. Ass’n

of Realtors v. HHS, 141 S. Ct. 2485, 2486, 2489 (2021).

The EPA claimed that the “vague language of an ancillary provision of the [Clean Air Act]” granted it authority to unilaterally demand “a shift throughout the

7 Available at bit.ly/2HyrFrP.

17

power grid from one type of energy source to another.”

West Virginia v. EPA, 142 S. Ct. 2587, 2610–12 (2022)

(quotation marks and alterations omitted). After stating “[f]or years” that bump stocks are not machine

guns, ATF “changed its mind” and has placed the

specter of criminal sanctions on scores of law-abiding

citizens. Guedes v. ATF, 140 S. Ct. 789, 789 (2020)

(statement of Gorsuch, J.). OSHA—“tasked with ensuring occupational safety”—imposed a vaccine mandate on approximately 84.2 million employees during

the Covid-19 pandemic. NFIB v. OSHA, 595 U.S. 109,

114 (2022). The Department of Education “canceled

roughly $430 billion of federal student loan balances”

and “created a novel and fundamentally different loan

forgiveness program” by invoking “a few narrowly delineated situations specified by Congress” and then

“rewrit[ing] that statute from the ground up.” Biden

v. Nebraska, 143 S. Ct. 2355, 2362, 2368, 2369 (2023).

In light of the administrative state’s rapidly expanding scope, “the cost of . . . deny[ing] citizens an

impartial judicial hearing” when injured by agency action “has increased dramatically.” Kisor, 139 S. Ct. at

2447 (Gorsuch, J.); see also Bowen v. Mich. Acad. of

Fam. Physicians, 476 U.S. 667, 670 (1986) (citing this

Court’s “insist[ence]” that the availability of judicial

review of executive action is part of “[t]he very essence

of civil liberty”). And while unlawful agency action often imposes immediate injury, agencies should not escape judicial oversight whenever their action causes

injury more than six years later.

While aggrieved persons always can challenge

agency action when defending an enforcement action,

see supra, nothing in Section 2401(a) or the APA suggests that persons newly injured by old agency action

should be confined to defense review. And this Court

18

does not “consider” the availability of defense review

“a ‘meaningful’ avenue of relief,” Free Enter. Fund,

561 U.S. at 490–91. That is for good reason—the time,

cost, and reputational ruin accompanying enforcement actions often “practically necessitate a pre-enforcement . . . suit” “if there is to be a suit at all.” CIC

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

also Free Enter. Fund, 561 U.S. at 490 (“We normally

do not require plaintiffs to ‘bet the farm . . . by taking

the violative action’ before ‘testing the validity of the

law.’”); cf. Ex parte Young, 209 U.S. 123, 148 (1908)

(forcing a business to risk penalties to challenge a rule

in court violates due process).

In Sackett v. EPA, for example, this Court rejected

an attempt by the EPA to duck the APA cause of action after issuing an administrative compliance order

by arguing that the plaintiffs could contest the order

in an enforcement action. 566 U.S. 120, 124–25, 127

(2012). The plaintiffs would have “accrue[d], by the

Government’s telling, an additional $75,000 in potential liability” “each day they wait[ed] for the Agency to

[bring an enforcement action].” Id. at 127. In that

case and many others, “the potential fines” could “easily . . . reach[] the millions.” Id. at 132 (Alito, J., concurring). Defense review, in many instances, is

simply unrealistic.

The SEC, for example, has been able to coerce settlement in the “vast majority of [its] cases” just by

threatening an enforcement action. Tilton v. SEC,

824 F.3d 276, 298 n.5 (2d Cir. 2016) (Droney, J., dissenting); see also Luis A. Aguilar, Comm’r, SEC, A

Stronger Enforcement Program to Enhance Investor

Protection (Oct. 25, 2013) (98 percent of those threatened with enforcement settle). That is partly because,

according to a former SEC Deputy General Counsel,

19

most defendants’ “business, job, or personal relationships will not survive sustained adverse publicity repeating the SEC’s allegations over and over during

the long life of litigation.” Comments of Andrew N.

Vollmer on Office of Mgmt. & Budget Request for Information, OMB-2019-0006, at 4 (Mar. 9, 2020). 8

“[E]ndless battling depletes the spirit along with the

purse,” especially when interacting with “a series of

public officials bent on making life difficult.” Wilkie v.

Robbins, 551 U.S. 537, 555 (2007).

Many persons aggrieved by unlawful agency action, moreover, will never have the opportunity to participate in an enforcement action. In this case, for example, there will never be an enforcement action because Petitioner’s injury is caused by private persons

regulated by Respondent’s 21-cent standard. See Corner Post Br. 34. And this case is no fluke—injurious

agency action will not involve enforcement in many

contexts, for example when persons are aggrieved by

“rules requiring that employers receive a favorable labor certification . . . before obtaining a[n] [H-2B] visa,”

Outdoor Amusement Bus. Ass’n, Inc. v. DHS, 983 F.3d

671, 675–76 (4th Cir. 2020) (dismissing as timebarred), or an agency’s decision “to subsidize a portion

of tenants’ rents,” Trafalgar Cap. Assocs., Inc. v.

Cuomo, 159 F.3d 21, 24 (1st Cir. 1998) (same); see also

Corner Post Br. 35 (agency actions that injure one person by regulating someone else are so common that

they have their own Article III standing rules). The

possibility of “filing [a] petition to rescind regulations”

and then “appealing the denial of the petition,” Wind

River, 946 F.2d at 714, does not solve the problem be-

8 Available at tinyurl.com/y5qcknzx.

20

cause the agency may not have a procedure for a petition to rescind the action at issue, and even if it does,

it may simply decline to issue a decision on the petition or delay such action indefinitely. When an agency

takes injurious action outside the enforcement context, therefore, the APA’s cause of action is usually the

only mechanism to contest the action.

*

*

*

The Eighth Circuit’s approach deprives many

Americans of access to the federal courts in the face of

a behemothic and ever-growing administrative state.

And this injustice is a creation of the courts—a relic of

a time when judges read their own policy judgments

into the white spaces of the U.S. Code. This Court

should reaffirm that those days are gone and the federal courts must simply apply the law as written.

21

CONCLUSION

This Court should reverse.

Respectfully submitted.

ANASTASIA P. BODEN

THOMAS A. BERRY

CATO INSTITUTE

1000 Mass. Ave.,

N.W. Washington, DC

20001

JEREMY J. BROGGI

Counsel of Record

MICHAEL J. SHOWALTER

BOYD GARRIOTT

HANNAH BINGHAM

WILEY REIN LLP

2050 M Street, NW

Washington, DC 20036

(202) 719-7000

JBroggi@wiley.law

Counsel for Amicus Curiae

November 20, 2023