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.,

v.

Petitioner,

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 AMICUS CURIAE OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF PETITIONER

Richard A. Samp

Counsel of Record

Kara M. Rollins

Mark S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

rich.samp@ncla.legal

Counsel for Amicus Curiae

November 20, 2023

QUESTION PRESENTED

Does a plaintiff’s claim under the Administrative

Procedure Act “first accrue[]” under 28 U.S.C. § 2401(a)

when an agency issues a rule, without regard to

whether the rule has injured the plaintiff on that date

(as the Eighth Circuit and five other circuits have

held), or when the rule first causes the plaintiff to

“suffer[] legal wrong” or be “adversely affected or

aggrieved” (as the Sixth Circuit has held)?

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 4

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

I.

CORNER POST’S CLAIM DID NOT “ACCRUE”

UNTIL 2018, WHEN IT COMMENCED

O PERATIONS AND W AS A DVERSELY

AFFECTED BY REGULATION II FOR THE

FIRST TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

CORNER POST’S RIGHT TO PETITION THE

BOARD IS HOLLOW AND CANNOT SERVE AS

AN ALTERNATE PATHWAY TO JUDICIAL

REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A.

Agencies Often Avoid Review of

Petitions Through Delay. . . . . . . . . . . 12

B.

Review from Denial of a § 553(e)

Petition Is Not Equivalent to the

Direct Review Corner Post Seeks. . . . 15

iv

Page

III.

THE GOVERNMENT PERSISTENTLY RAISES

INSUBSTANTIAL PROCEDURAL DEFENSES TO

APA CLAIMS TO PREVENT MERITS-BASED

RULINGS ON SUCH CLAIMS . . . . . . . . . . . . . . . 17

A. Final Agency Action . . . . . . . . . . . . . . . . . 17

B. Committed to Agency Discretion. . . . . . . 19

C. Anti-Injunction Act . . . . . . . . . . . . . . . . . 20

D. Statutory Limitations on Jurisdiction . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

v

TABLE OF AUTHORITIES

Cases:

Page(s)

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) . . . . . . . . . . . . . . . . . . . . . . . . 19

Axon Enterprise, Inc. v. FTC,

598 U.S. 175 (2023) . . . . . . . . . . . . . . . . . . . . . . . . 24

Bennett v. Spear,

520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 17

Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 5

CIC Services, LLC v. IRS,

141 S. Ct. 1582 (2021) . . . . . . . . . . . . . . . . . . . . . . 21

Da Costa v. Immigr. Inv. Program Off.,

80 F.4th 330 (D.C. Cir. 2023) . . . . . . . . . . . . . . . . 14

Dep’t of Homeland Security v.

Regents of University of California,

140 S. Ct. 1891 (2020) . . . . . . . . . . . . . . . . . . . . . . 20

Direct Marketing Assn. v. Brohl,

575 U.S. 1 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Free Enterprise Fund v. Public Company

Accounting Oversight Bd.,

561 U.S. 477 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 23

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) . . . . . . . . . . . . . . . . . . . . . . . 7

Harper v. Rettig,

46 F.4th 1 (1st Cir. 2022) . . . . . . . . . . . . . . . . 21, 22

Herr v. U.S. Forest Service,

803 F.3d 809 (6th Cir. 2015) . . . . . . . . . . . . . . . . . . 8

Horne v. Dep’t of Agriculture,

576 U.S. 350 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 8

In re Am. Rivers & Idaho Rivers United,

372 F.3d 413 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . 15

vi

Page(s)

In re Nat. Res. Def. Council,

645 F.3d 400 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . 13

Li v. Jaddou,

No. 22-50756, 2023 WL 3431237

(5th Cir. May 12, 2023) . . . . . . . . . . . . . . . . . . . . . 14

Lincoln v. Vigil,

508 U.S. 182 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 19

Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Minn. State Bd. for Cmty. Colls. v. Knight,

465 U.S. 271 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 10

Nat’l Customs Brokers & Forwarders

Ass’n of Am., Inc. v. United States,

883 F.2d 93 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . 16

Nat’l Tank Truck Carriers, Inc. v. Fed. Highway

Admin., No. 96-1339, 1997 WL 150088

(D.C. Cir. Feb. 27, 1997) . . . . . . . . . . . . . . . . . . . . 14

Oil, Chem. & Atomic Workers Union v.

Occupational Safety & Health Admin.,

145 F.3d 120 (3d Cir. 1998). . . . . . . . . . . . . . . . . . 15

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc., 139 S. Ct. 2051 (2019) . . . 15, 16

Public Citizen v. Heckler,

602 F. Supp. 611 (D.D.C. 1985) . . . . . . . . . . . . . . 14

Reno v. Catholic Social Services, Inc.,

509 U.S. 43, 64 (1993) . . . . . . . . . . . . . . . . . . . . . . . 7

Sackett v. EPA,

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

SEC v. Novinger,

40 F.4th 297 (5th Cir. 2022) . . . . . . . . . . . . . . . . . 15

Shiny Rock Mining Corp v. United States,

906 F.2d 1362 (9th Cir. 1985) . . . . . . . . . . . . . . . . . 4

Smith v. Berryhill,

139 S. Ct. 1765 (2019) . . . . . . . . . . . . . . . . . . . . . . . 6

vii

Page(s)

Telecommunications Research & Action Center

(TRAC) v. FCC, 750 F.2d 70 (D.C. Cir. 1984) . . . 14

U.S. Army Corps of Engineers v. Hawkes Co.,

578 U.S. 590 (2016) . . . . . . . . . . . . . . . . . . . . . 18, 19

We the People Found., Inc. v. United States,

485 F.3d 140 (D.C. Cir. 2007) . . . . . . . . . . . . . 10, 11

Weyerhaeuser Co. v. U.S. Fish and Wildlife Service,

139 S. Ct. 361 (2018) . . . . . . . . . . . . . . . . . . . . 19. 20

Wind River Mining Corp. v. United States,

946 F.2d 710 (9th Cir. 1991) . . . . . . . . . . . . . . . . 4, 7

WWHT, Inc. v. FCC,

656 F.2d 807 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . 16

Statutes and Constitutional Provisions:

U.S. Const., amend. I . . . . . . . . . . . . . . . . . . . . 8, 9, 10

Administrative Procedure Act . . . . . . . . 3, 4, 5, 8, 11,

17, 20, 25

5 U.S.C. § 553(e) . . . . . . 5, 8, 11, 12, 13, 15, 16

5 U.S.C. § 555(b) . . . . . . . . . . . . . . . . . . . . . . 13

5 U.S.C. § 701(a)(2) . . . . . . . . . . . . . . . . . 19, 20

5 U.S.C. § 702. . . . . . . . . . . . . . . . . . . . . . . . . . 7

5 U.S.C. § 704. . . . . . . . . . . . . . . . . . . . . . . . . . .

5 U.S.C. § 706(1) . . . . . . . . . . . . . . . 2, 6, 17, 18

Anti-Injunction Act,

26 U.S.C. § 7421(a) . . . . . . . . . . . . . . . . . . . . . 20, 21

Dodd-Frank Wall Street Reform and Consumer

Protection Act of 2010, Durbin Amendment,

15 U.S.C. § 1693o-2(a)(1), (2) . . . . . . . . . . . . . . . . . 3

viii

Page(s)

Endangered Species Act,

16 U.S.C. § 1531 et seq. . . . . . . . . . . . . . . . . . . . . . 19

15 U.S.C. § 78y(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 23

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

28 U.S.C. § 2401(a). . . . . . . . . . . . . . . . . . 3, 4, 7, 8, 24

Miscellaneous:

The Declaration of Independence (U.S. 1776). . . 9, 10

Kara McKenna Rollins, Have the SEC’s Delay

Tactics Made Its Petition for Rulemaking

Process Vulnerable to Challenge? A Look at

In re Coinbase Inc. and SEC’s Nullification

of 5 U.S.C. § 553(e) by Inaction, YALE

NOTICE & COMMENT BLOG (May 3, 2023) . . . . . . . 13

Norman B. Smith, “Shall Make No Law

Abridging...”: An Analysis of the Neglected,

but Nearly Absolute, Right of Petition,

54 U. CIN. L. REV. 1153 (1986) . . . . . . . . . . . . . 9, 10

Julie M. Spanbauer, The First Amendment Right

to Petition Government for A Redress of

Grievances: Cut from A Different Cloth,

21 HASTINGS CONST. L.Q. 15 (1993) . . . . . . . . . 9, 10

ix

Page(s)

Jason A. Schwartz and Richard L. Revesz,

Petitions for Rulemaking, Final Report to the

Administrative Conference of the United States

(Nov. 5, 2014). . . . . . . . . . . . . . . . . 11, 12, 13, 14, 16

Fed.R.Civ.P. 12(b)(1) and 12(b)(6) . . . . . . . . . . . . . . . 3

INTERESTS OF AMICUS CURIAE

The New Civil Liberties Alliance (NCLA) is a

nonpartisan, nonprofit civil-rights organization

devoted to defending constitutional freedoms from

violations by the administrative state.1 The “civil

liberties” of the organization’s name include rights at

least as old as the U.S. Constitution itself, such as jury

trial, due process of law, the right to be tried in front of

an impartial and independent judge, freedom of

speech, and the right to live under laws made by the

nation’s elected lawmakers through constitutionally

prescribed channels. Yet these self-same rights are

also very contemporary—and in dire need of renewed

vindication—precisely because Congress, federal

administrative agencies, and even sometimes the

courts have neglected them for so long.

NCLA aims to defend civil liberties—primarily

by asserting constitutional constraints on the

administrative state. Although Americans still enjoy

the shell of their Republic, there has developed within

it a very different sort of government—a type, in fact,

that the Constitution was designed to prevent. This

unconstitutional administrative state within the

Constitution’s United States is the focus of NCLA’s

concern.

The Administrative Procedure Act creates a

right to judicial review of “final agency action for which

1

Pursuant to Supreme Court Rule 37.6, NCLA states that

no counsel for a party authored this brief in whole or in part; and

that no person or entity, other than NCLA and its counsel, made

a monetary contribution intended to fund the preparation and

submission of this brief.

2

there is no other adequate remedy in a court.” 5 U.S.C.

§ 704.

Despite that statutory right, federal

government administrators persist in doing whatever

they can to prevent individuals aggrieved by agency

action from obtaining judicial review of their

grievances. The federal government has taken its

obstructionism to new heights in this case. It seeks to

block judicial review by contending that Petitioner

Corner Post, Inc.’s claims were time-barred as of

2017—long before Corner Post opened for business and

long before it was adversely affected by the agency

action it seeks to challenge. NCLA is concerned that a

decision upholding Respondent’s position would create

a major gap in the right to judicial review.

NCLA takes little comfort from the alternative

procedure suggested by Respondent. It suggests that

Corner Post can file a rulemaking petition seeking

amendment of the challenged regulation and then seek

federal-court relief if the petition is denied.

Rulemaking petitions provide no assurance that

Corner Post would ever have its day in court. Such

petitions can languish for years; indeed, no statute

specifically requires Respondent to respond to such

petitions. Moreover, the federal government has taken

the position that even denial of a rulemaking petition

does not guarantee a right to judicial review.

NCLA is filing this brief because it agrees with

Corner Post that its claims did not accrue until it was

injured by the regulation it challenges. NCLA takes no

position on the merits of those claims.

3

STATEMENT OF THE CASE

The facts of this case are largely uncontested.

Respondent Board of Governors of the Federal Reserve

System (the Board) adopted the challenged Regulation

II in 2011. Regulation II establishes maximum

interchange fees that debit card issuers may charge

merchants in connection with debit card transactions.

Corner Post opened for business in 2018, seven

years after adoption of Regulation II. Its complaint

against the Board, filed in 2021, alleges that

Regulation II is arbitrary and capricious, in violation

of the APA, because it authorizes interchange fees in

excess of those mandated by the Durbin Amendment to

the Dodd-Frank Wall Street Reform and Consumer

Protection Act of 2010. See 15 U.S.C. § 1693o-2(a)(1),

(2). Corner Post alleges injury in the form of excessive

interchange fees it has been paying on debit card

transactions since 2018, fees it claims it would not

have incurred but for the excessive interchange fees

authorized by Regulation II.

The district court granted the Board’s motion to

dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). It

ruled that Corner Post’s complaint was time-barred by

28 U.S.C. § 2401(a), which 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.” App.36. The

court held that Corner Post’s claim “first accrue[d]” in

2011 when the Board published Regulation II in the

Federal Register, not in 2018 when Corner Post

commenced operations and first became subject to

Regulation II. App.33-36. The court held that, to be

4

timely, Corner Post’s complaint needed to be filed by

2017, six years after publication of Regulation II,

App.36—notwithstanding that Corner Post did not

suffer any injury-in-fact (and thus lacked standing to

file an APA suit) until 2018.

The Eighth Circuit affirmed. App.1-15. The

court held, “[W]hen 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.” App.11. The court stated that “[t]he

government’s interest in finality outweighs a late

comer’s desire” to bring a facial challenge to a longstanding regulation. Ibid. (quoting Wind River Mining

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

1991)).

It “declin[ed] ‘to accept [Corner Post’s]

suggestion that standing to sue is a prerequisite to the

running of the limitations period’ because ‘[t]o hold

otherwise would render the limitation on challenges to

agency orders we adopted ... meaningless.’” App.8

(quoting Shiny Rock Mining Corp v. United States, 906

F.2d 1362, 1365 (9th Cir. 1990)).

SUMMARY OF ARGUMENT

For purposes of the six-year statute of

limitations applicable to APA claims, the limitations

period does not begin to run until the plaintiff’s claim

“first accrues.” 28 U.S.C. § 2401(a) (stating that claims

against the United States are barred “unless the

complaint is filed within six years after the right of

action first accrues”). It is uncontested that Corner

Post could not have challenged Regulation II before it

commenced operations in 2018; before that date it was

not adversely affected by the regulation. Corner Post

5

filed suit against the Board in 2021, significantly less

than six years later. To accept the Board’s contention

that Corner Post’s claims are nonetheless time-barred,

one must accept the Eighth Circuit’s counter-intuitive

holding that Corner Post’s claims “first accrued” in

2011, seven years before it suffered the injury that was

a prerequisite to maintaining an APA suit. That

holding cannot be squared with “the strong

presumption that Congress intends judicial review of

administrative action.” Bowen v. Michigan Academy of

Family Physicians, 476 U.S. 667, 670 (1986).

The Board asserts that there is an alternative

means by which Corner Post can challenge Regulation

II in court: it can petition the Board to initiate a

rulemaking proceeding, and then challenge a denial of

the petition. BIO.23. That policy argument cannot

justify ignoring the text and context of § 2401(a).

Moreover, the argument vastly oversells the utility of

such petitions. The petition rights created by APA

§ 553(e) have been so severely circumscribed by the

courts or obstructed by the agencies that they fail to

provide meaningful and timely judicial review.

The federal government’s efforts to prevent

Corner Post from having its claims heard on the merits

follows an all-too-familiar pattern. In case after case,

attorneys representing the United States have raised

every possible argument for dismissing administrative

claims on procedural grounds, no matter how

insubstantial the argument and no matter how

decisively this Court has rejected similar arguments in

previous cases. Its argument that Corner Post’s claims

are barred by § 2401(a) is based on a mangled reading

of that statute—that the claims somehow “accrued”

6

seven years before Corner Post opened for business and

seven years before it was aggrieved by Regulation II.

That argument and similarly insubstantial efforts by

the United States to dismiss claims on procedural

grounds are unwarranted when, as here, it cannot

point to any statutory language that rebuts the

presumption of reviewability.

ARGUMENT

I.

CORNER POST’S CLAIM DID NOT “ACCRUE”

U N T I L 2018, W H E N I T C O M M E N C E D

OPERATIONS AND WAS ADVERSELY AFFECTED

BY REGULATION II FOR THE FIRST TIME

Corner Post’s opening brief explains at length

why its claim did not accrue until 2018—and thus that

its 2021 complaint was filed well within the six-year

limitations period. NCLA will not repeat those

arguments here. We write separately to focus on two

points that make Corner Post’s position particularly

compelling.

Most importantly, the Eighth Circuit’s ruling

runs counter to the APA’s promise of a right to judicial

review of “final agency action for which there is no

other adequate remedy in a court.” 5 U.S.C. § 704. In

light of § 704, this Court recognizes a “strong

presumption that Congress intends judicial review of

administrative action.” Smith v. Berryhill, 139 S. Ct.

1765, 1776 (2019). While that presumption can be

rebutted, the government bears a “heavy burden” in

attempting to do so. Mach Mining, LLC v. EEOC, 575

U.S. 480, 486 (2015). The presumption can be

overcome only by “‘clear and convincing evidence’ of

7

congressional intent to preclude judicial review.”

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069

(2020) (quoting Reno v. Catholic Social Services, Inc.,

509 U.S. 43, 64 (1993)). The Board contends that

Congress intended to deprive Corner Post of any

opportunity to contest Regulation II—that Corner

Post’s APA claim was time-barred under § 2401(a) one

year before it first acquired standing to file suit—but

it has provided no evidence (let alone clear and

convincing evidence) that Congress so intended.2

Second, the Eighth Circuit justified its decision

to deny Corner Post an opportunity to seek judicial

review by stating that “[t]he government’s interest in

finality outweighs late-comers’ desire” to bring a facial

challenge to a long-standing regulation. App.11

(quoting Wind River Mining, 946 F.2d at 715). That

rationale misunderstands § 2401(a). The provision is

not a statute of repose that protects the Board’s

interest in finality by precluding all review of a

regulation after a specified number of years have

elapsed. Rather, as the Sixth Circuit explained:

A federal regulation that makes it six

years without being contested does not

enter a promised land free from legal

challenge [by virtue of § 2401(a)].

Regulated parties may always assail a

2

The Board does not contest that Corner Post could not

have stated an APA claim until such time as it had been aggrieved

by Regulation II. See 5 U.S.C. § 702 (“A person suffering legal

wrong because of agency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant statute, is

entitled to judicial review thereof”).

8

regulation as exceeding the agency’s

statutory authority in enforcement

proceedings against them. ... That is true

of old and new regulations. See Horne v.

Dep’t of Agriculture, 576 U.S. 350, 354-57

(2015) (regulatory regime dating back to

1937).

Herr v. U.S. Forest Service, 803 F.3d 809, 821-22 (6th

Cir. 2015) (Sutton, J.).

Because § 2401(a) provides no special protections

for long-standing regulations, the Eighth Circuit erred

when it assigned controlling weight to the Board’s

“interest in finality.” In determining the date of

“accrual” of Corner Post’s cause of action, courts should

focus solely on Corner Post’s circumstances. And

because Corner Post could not have stated an APA

claim before it began to be adversely affected by

Regulation II in 2018, the 2021 filing of its lawsuit

occurred well before the six-year limitations period

expired.

II.

CORNER POST’S RIGHT TO PETITION THE

BOARD IS HOLLOW AND CANNOT SERVE AS AN

ALTERNATE PATHWAY TO JUDICIAL REVIEW

In theory, the right to petition the government

is clearly protected by both the First Amendment and

APA Section 553(e).

But in practice, these

straightforward petition rights have been so severely

circumscribed by the courts or obstructed by the

agencies that they merely provide the public with the

right to scream into the void of government

bureaucracy but not necessarily to receive a response,

9

let alone meaningful and timely judicial review.

Accordingly, Corner Post’s theoretical right to petition

the Board cannot serve as a rationale for rejecting

Corner Post’s claim as time-barred.

The First Amendment provides a right to

petition the government: “Congress shall make no law

… abridging … the right of the people … to petition the

Government for a redress of grievances.” U.S. Const.

amend. I. The right to petition traces its roots to

Magna Carta. See Julie M. Spanbauer, The First

Amendment Right to Petition Government for A Redress

of Grievances: Cut from A Different Cloth, 21 HASTINGS

CONST. L.Q. 15, 22 (1993) (Spanbauer) (“By signing the

Magna Carta in 1215, King John granted the right to

petition the crown to his barons.”); see also Norman B.

Smith, “Shall Make No Law Abridging...”: An Analysis

of the Neglected, but Nearly Absolute, Right of Petition,

54 U. CIN. L. REV. 1153, 1155 (1986) (Smith)

(“Petitioning as a right was specifically recognized in

Magna Carta”). Over time, the limited right to petition

the crown expanded. “By the time of the American

Revolution, Delaware, New Hampshire, North

Carolina, Pennsylvania, and Vermont [in addition to

Massachusetts] provided explicit protection for the

right of colonists to petition local governing bodies for

redress of both individual and collective grievances.”

Spanbauer at 28.

Indeed, King George III’s failure to address

“Petitions” was a central indictment against the crown,

and the Declaration of Independence’s language bears

striking resemblance to the First Amendment’s later

formulation of the right, stating “We have Petitioned

for Redress[.]” The Declaration of Independence para.

10

1 (U.S. 1776) (“In every stage of these Oppressions We

have Petitioned for Redress in the most humble terms:

Our repeated Petitions have been answered only by

repeated injury.”); see also Smith at 1173-74 (colonists’

“claim” was not that “petitioning itself had been

punished, only that the petitions had not met with

favorable response”).

Historically, the right to petition included the

right to a response, and that understanding was

“firmly embedded in pre-Revolutionary colonial

America.” Spanbauer at 34; Smith at 1174. At the

time the First Amendment was ratified, Congress

understood that the right to petition included “a

concomitant right to receive a response.” Spanbauer at

38, 49.

But this Court—never having received briefing

on the “contemporary historical understanding” of the

Petition Clause—has circumscribed the petition right

by declining to find that it encompasses a right to a

response or even the government’s consideration. We

the People Found., Inc. v. United States, 485 F.3d 140,

149 (D.C. Cir. 2007) (Rogers, J., concurring); see also

id. at 145 (noting that existing Supreme Court

precedent regarding the right to a response “does not

refer to the historical evidence and we know from the

briefs in [Minn. State Bd. for Cmty. Colls. v. Knight,

465 U.S. 271 (1984)] that the historical argument was

not presented to the Supreme Court”). And while some

commentators take the opposing view—that

historically the First Amendment right did not include

a right to consideration or a response—this Court has

never been presented with the historical materials.

The D.C. Circuit, despite receiving extensive briefing

11

on whether the Framers intended the First

Amendment to encompass a right to receive a response

to one’s petition, declined to “resolve this debate” over

history—concluding that “binding Supreme Court

precedent” required rejection of the First Amendment

claim. Id. at 144 (Kavanaugh, J.).

The APA codified the right to petition in 5 U.S.C.

§ 553(e), which provides that “Each agency shall give

an interested person the right to petition for the

issuance, amendment, or repeal of a rule.” The APA’s

statutory “right to petition” reflects the constitutional

right. Jason A. Schwartz and Richard L. Revesz,

Petitions for Rulemaking, Final Report to the

Administrative Conference of the United States 9 (Nov.

5, 2014) (ACUS Report).3 However, the § 553(e) “right

is distinct from the constitutional right in some key

ways that may more clearly obligate agencies to

consider and respond to petitions[.]” Id. Importantly,

the statutory right shows that “Congress clearly

intended that, under the APA, agencies would consider

and respond to public petitions for rulemaking.” Id. at

11. Thus, even though the constitutional right may

have been limited in such a way as to not require a

response, the APA and the courts have recognized a

petitioner’s right to a response. Id. at 13 n.55

(collecting cases).

But having a statutory right to a response and

receiving a timely, meaningful response are different

things entirely, and federal agencies have routinely

shown they are incapable of providing either.

3

https://www.acus.gov/projects/petitions-rulemaking.

12

A.

Agencies Often Avoid Review of

Petitions Through Delay

The APA contemplates, indeed encourages,

interested parties to directly petition agencies to

change regulations that they deem problematic or

propose new ones. But the ability to petition means

nothing when agencies can, and often do,

systematically ignore the petitions they receive in an

apparent attempt to avoid judicial scrutiny.

The agencies’ processes to review, consider, and

respond to § 553(e) petitions they receive are not

widely known or understood outside the agencies

themselves. The most recent comprehensive study of

how agencies handle petitions is nearly a decade old

but indicates that, at most agencies, the process is

opaque at best. One commentator has likened the

process to a “black hole.” ACUS Report at 56. Few

agencies, including the Federal Reserve System, have

any formalized processes for handling the § 553(e)

petitions they receive. Id. at 47-48, Appendix C1.

Fewer publish the petitions they receive—making it

nearly impossible, in real time, to understand how

many petitions agencies receive or to determine how

long they linger.4

4

The ACUS Report suggests that “many [agencies] receive

relatively few [petitions] or none at all” and that “among [the]

agencies with moderate or high numbers of petitions,” many of the

petitions can be categorized as “specific requests” rather than

“policy-oriented petitions for legislative rules[.]” Id. at 41,

Appendix C3.

13

The Securities and Exchange Commission (SEC),

to its credit, is the only agency (to NCLA’s knowledge)

that publishes a public docket of all the § 553(e)

petitions it receives. But the accolades stop there;

information one can glean from SEC’s petition docket

does not reflect favorably on SEC’s handling of the

petitions it receives. See Kara McKenna Rollins, Have

the SEC’s Delay Tactics Made Its Petition for

Rulemaking Process Vulnerable to Challenge? A Look

at In re Coinbase Inc. and SEC’s Nullification of 5

U.S.C. § 553(e) by Inaction, YALE NOTICE & COMMENT

BLOG (May 3, 2023).5 A review of SEC’s practices

suggests that the Commission routinely ignores

petitions for rulemaking. Between January 1, 2018

and May 3, 2023, SEC only substantively responded to

five of the 77 petitions for rulemaking (6.5%) that it

received. Id. Even excluding petitions filed in 2023,

SEC’s numbers do not improve much, as SEC only

substantively responded to five of the 72 petitions

(6.9%) filed in 2018-2022. Id.

The cases addressing claims that agencies

unreasonably delayed their responses to petitions

suggest that SEC is not an outlier in its

gamesmanship. When an agency fails to respond to a

petition, petitioners may bring a suit “seeking to

‘compel agency action unlawfully withheld or

unreasonably delayed,’ 5 U.S.C. § 706(1), when the

agency has failed to act within a ‘reasonable time,’ id.

§ 555(b)[.]” In re Nat. Res. Def. Council, 645 F.3d 400,

5

https://www.yalejreg.com/nc/have-the-secs-delay-tacticsmade-its-petition-for-rulemaking-process-vulnerable-to-challengea-look-at-in-re-coinbase-inc-and-secs-nullification-of-5-u-s-c%C2%A7-553e-by-inacti/.

14

406 (D.C. Cir. 2011); see also ACUS Report at 12 n.48

(collecting cases). But what constitutes “unreasonable

delay” in this context “is ever evolving, is not always

crystal clear, and is based on so many vague factors as

to allow courts to support virtually any conclusion they

want to reach.” ACUS Report at 14.

Generally, courts seem to apply the D.C.

Circuit’s six-prong test articulated in

Telecommunications Research & Action Center (TRAC)

v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984). See ACUS

Report at 14; but see Li v. Jaddou, No. 22-50756, 2023

WL 3431237, at *1 (5th Cir. May 12, 2023) (Fifth

Circuit has never adopted the TRAC factors). The

TRAC factors are not without their own complications,

including the fact that there has been no consistent,

reasoned approach to how the factors interact with

each other or are weighed. See ACUS Report at 14-15;

see, e.g., Da Costa v. Immigr. Inv. Program Off., 80

F.4th 330, 340 (D.C. Cir. 2023) (indicating that the

D.C. Circuit sometimes affords two of the six “nonexclusive TRAC factors” special weight when

undertaking an unreasonable-delay analysis).

Thus, it comes as no surprise that how long a

delay must last to become “unreasonable” is entirely

unpredictable. As the ACUS Report highlights, courts

have found that five months was unreasonable when

the agency has been studying the issue for two years.

ACUS Report at 15 (discussing Public Citizen v.

Heckler, 602 F. Supp. 611, 613 (D.D.C. 1985)). But

another court found a 20-month delay “disturbing” but

not unreasonable. Id. (discussing Nat’l Tank Truck

Carriers, Inc. v. Fed. Highway Admin., No. 96-1339,

1997 WL 150088 (D.C. Cir. Feb. 27, 1997) (per

15

curiam)). One court found a delay of more than six

years “nothing less than egregious,” while a different

court ruled that an equally long delay was reasonable.

Id. at 16 (discussing In re Am. Rivers & Idaho Rivers

United, 372 F.3d 413, 419 (D.C. Cir. 2004), and Oil,

Chem. & Atomic Workers Union v. Occupational Safety

& Health Admin., 145 F.3d 120, 124 (3d Cir. 1998)).

These findings and the cases reviewing delayed

responses to § 553(e) petitions track with NCLA’s own

experience filing such petitions with multiple

government agencies.6 Since 2018, NCLA has filed

over 20 petitions with more than 20 agencies, seeking

either adoption of new rules or amendments to existing

ones. Most of those petitions are still unanswered.

These delays persist despite Judges Jones and Duncan

of the Fifth Circuit chiding SEC for four years of

inaction on a petition to review and revoke the agency’s

policy of imposing perpetual gag orders on settling

defendants. See SEC v. Novinger, 40 F.4th 297, 308

(5th Cir. 2022) (Jones, J., joined by Duncan, J.,

concurring).

B.

Review from Denial of a § 553(e)

Petition Is Not Equivalent to the

Direct Review Corner Post Seeks

As Justice Kavanaugh has observed, petition

processes are “convoluted[.]” PDR Network, LLC v.

Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051,

2065 (2019) (Kavanaugh, J., concurring in the

judgment). And, given the history of agency inaction

6

https://nclalegal.org/petitions/

16

and delay, the petition process cannot possibly provide

the “ample” opportunity for review that the

government suggests, BIO.15. But filing a § 553(e)

petition to access judicial review rings hollow for

another reason: The standard of review of an agency’s

decision to deny a petition is limited and deferential,

and denials are virtually never overturned. See ACUS

Report at 18.

“[R]efusals to institute rulemaking proceedings”

are subject to an “extremely limited, highly deferential

scope of ... review.”

Nat’l Customs Brokers &

Forwarders Ass’n of Am., Inc. v. United States, 883

F.2d 93, 96 (D.C. Cir. 1989). That is because “[courts]

will overturn an agency’s decision not to initiate a

rulemaking only for compelling cause, such as plain

error of law or a fundamental change in the factual

premises previously considered by the agency.” Id. at

96-97. And, “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.” WWHT, Inc. v. FCC, 656 F.2d 807, 818

(D.C. Cir. 1981). The Government has admitted as

much in the past. See PDR Network, 139 S. Ct. at

2065-66 (Kavanaugh, J., concurring in the judgment).

As the § 553(e) pathway to judicial review is hollow, it

cannot “supply a basis for denying judicial review”

here. Id. at 2066.

17

III.

THE GOVERNMENT PERSISTENTLY RAISES

INSUBSTANTIAL PROCEDURAL DEFENSES TO

APA CLAIMS TO PREVENT MERITS-BASED

RULINGS ON SUCH CLAIMS

Despite Congress’s determination that APA

review of final agency action should be broadly

available, federal government attorneys persistently

seek to prevent such review. Indeed, government

attorneys routinely invoke alleged procedural bars to

APA review even after this Court has rejected the very

same defense under substantially similar

circumstances. The Board’s reliance on a statute-oflimitations defense in this case continues that pattern;

the Board can seek dismissal under § 2401(a) only by

advancing a mangled interpretation of that statute.

NCLA urges the Court to admonish government

attorneys to temper their reflexive efforts to prevent

aggrieved litigants from obtaining the judicial review

promised them by 5 U.S.C. § 704. The litany of cases

that follows well illustrates the need for government

attorneys to deliberate more carefully before asserting

all potential procedural defenses in every APA case.

A.

Final Agency Action

The APA grants a right to judicial review of

“final” agency action for which there is no other

adequate remedy in a court—that is, an agency action

that determines the claimant’s “rights or obligations”

or marks the “consummation” of the agency’s decisionmaking process. Bennett v. Spear, 520 U.S. 154, 178

(1997). The Court has repeatedly rejected government

18

assertions that challenged administrative action is not

subject to APA review because it is not “final.”

In Sackett v. EPA, 566 U.S. 120 (2012), the

Court unanimously rejected EPA’s argument that it

did not engage in “final” agency action when it issued

a compliance order to Idaho property owners. The

order: (1) determined that the property was a wetland

subject to restrictions imposed by the Clean Water Act

(CWA); (2) directed the property owners to stop a

construction project on the site and to restore the site

to its pre-construction condition; and (3) threatened

enhanced fines for any violations of the order. Id. at

124-25. The Court had no difficulty determining that

the compliance order determined the owners’ rights

and obligations and marked the consummation of

EPA’s decision-making process—and thus that EPA

had engaged in “final” agency action. Id. at 126-27.

Despite the Sackett ruling, government

attorneys—in an effort to prevent review of

administrative action under the APA—continued to

assert lack of finality in factually analogous

circumstances. Four years later, the Court again

unanimously rejected the government’s challenge to

finality in U.S. Army Corps of Engineers v. Hawkes

Co., 578 U.S. 590 (2016). The Army Corps of Engineers

had issued a “jurisdictional determination” (JD) that

property owned by the respondent contained “waters of

the United States,” as defined by the CWA. Adopting

the identical approach to finality employed in Sackett,

the Court rejected the government’s contention that

issuance of the JD did not satisfy 5 U.S.C. § 704’s “final

agency action” requirement. 578 U.S. at 597-600. The

Court held that issuance of the JD marked the

19

consummation of the Corps’s decision-making process

and had direct and immediate legal consequences for

the property owner. Id. at 597-98.

B.

Committed to Agency Discretion

Although the APA establishes a “basic

presumption of judicial review [for] one suffering legal

wrong because of agency action,” Abbott Laboratories

v. Gardner, 387 U.S. 136, 140 (1967), that presumption

can be rebutted by a showing that the “agency action is

committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2). The Court has repeatedly held that the

§ 701(a)(2) exception to judicial review should he read

very narrowly.

The government nonetheless

reflexively invokes § 701(a)(2) in an effort (almost

always unsuccessful) to prevent review of

administrative action.

In Weyerhaeuser Co. v. U.S. Fish and Wildlife

Service, 139 S. Ct. 361 (2018), a landowner challenged

the Fish and Wildlife Service’s (FWS) decision to

designate its land as “critical habitat” for an

endangered species of frog. Citing § 701(a)(2), FWS

argued that its decision was not subject to judicial

review because it was “committed to agency discretion”

by the Endangered Species Act.

The Court

unanimously rejected that argument. It explained that

it has read the committed-to-agency-discretion

exception “quite narrowly, restricting it to ‘those rare

circumstances where the relevant statute is drawn so

that a court would have no meaningful standard

against which to judge the agency’s exercise of

discretion.’” Id. at 370 (quoting Lincoln v. Vigil, 508

U.S. 182, 191 (1993)). The Court concluded that the

20

issue raised by the landowner’s claim—whether its

land was properly designated as critical

habitat—“involves the sort of routine dispute the

federal courts regularly review.” Ibid.

Despite its Weyerhaeuser setback, the federal

government continues to assert § 701(a)(2) defenses in

factually analogous circumstances. For example, in

Dep’t of Homeland Security v. Regents of University of

California, 140 S. Ct. 1891 (2020), the Department of

Homeland Security (DHS) argued that its decision to

rescind the Deferred Action for Childhood Arrivals

(DACA) program was “committed to agency discretion”

and thus not subject to challenge under the APA. In

rejecting that contention, the Court simply reiterated

what it said in Weyerhaeuser: the § 701(a)(2) exception

to APA judicial review must be read “quite narrowly”

and only “rare[ly]” applies. 140 S. Ct. at 1905. The

Court explained that because DACA was not “simply a

non-enforcement policy” but rather granted substantial

benefits to eligible individuals, neither DACA nor the

subsequent decision to repeal DACA could be

categorized as an unreviewable action committed to

agency discretion. Id. at 1906-07.

C.

The Anti-Injunction Act

Court injunctions that prevented the collection

of income tax seriously disrupted the flow of revenue to

the federal government during the Civil War and

threatened to undermine government operations. In

response, Congress in 1867 adopted the AntiInjunction Act; only slightly modified in subsequent

years, the Act as currently written states, “[N]o suit for

the purpose of restraining the assessment or collection

21

of any tax shall be maintained in any court by any

person.” 26 U.S.C. § 7421(a).

The Court has repeatedly made clear that the

Anti-Injunction Act applies only to IRS efforts to assess

or collect taxes. It does not apply to suits seeking to

restrain other activities of taxing authorities, such as

information gathering. See, e.g., Direct Marketing

Assn. v. Brohl, 575 U.S. 1 (2015). The IRS has

nonetheless regularly invoked the Act in an effort to

dismiss lawsuits that do not seek to prevent tax

assessment and collection. For example, in CIC

Services, LLC v. IRS, 141 S. Ct. 1582 (2021), the Court

unanimously rejected the IRS’s claim that the Act

required dismissal of a challenge to an IRS regulation

that required taxpayers to report information about

certain types of insurance agreements. The Court

explained:

A reporting requirement is not a tax, and

a suit brought to set aside such a rule is

not one to enjoin a tax’s assessment or

collection. That is so even if the reporting

rule will help the IRS bring in future tax

revenue—here, by identifying sham

insurance transactions.

Id. at 1588-89.

The IRS apparently did not take CIC Services to

heart. Only months after issuance of that decision, the

IRS argued in the First Circuit that the AntiInjunction Act required dismissal of a suit that sought

to limit the use of John Doe summonses for

information-gathering purposes. Harper v. Rettig, 46

22

F.4th 1 (1st Cir. 2022). The First Circuit unanimously

ruled against the IRS; it held that IRS summonses

issued for the purpose of determining whether

taxpayers are properly reporting their income “clearly

fall within the category of information gathering,

which the Supreme Court has distinguished from acts

of assessment and collection.” Id. at 8.

The IRS sought to distinguish CIC Services by

asserting that the relief sought by the taxpayer (an

injunction requiring the IRS to return to the taxpayer

information that it could use to determine his tax

liability) showed that the purpose of his suit was to

prevent the assessment and collection of taxes. Ibid.

The First Circuit rejected that argument out of hand,

finding that the two case were indistinguishable. Ibid.

It noted that in both cases, the IRS’s informationgathering functions were at least several steps

removed from a decision to assess additional taxes on

the plaintiff. Id. at 8-9. As illustrated by its efforts to

dismiss Harper under the Anti-Injunction Act, the IRS

repeatedly invokes the Act to seek dismissal of any

claim for injunctive relief against the agency, without

regard to whether the claim seeks to prevent

“assessment or collection” of a tax.

23

D.

Statutory Limitations on Jurisdiction

As a general matter, federal district courts

possess subject-matter jurisdiction over any claims

“arising under the Constitution, laws, or treaties of the

United States.” 28 U.S.C. § 1331. Congress has

created limited statutory exceptions to that grant when

a party seeks review of a final decision of a federal

administrative agency.

For example, 15 U.S.C.

§ 78y(a)(1) provides that subject-matter jurisdiction

over petitions for review of an SEC final order reside in

the federal appeals courts, not the district courts.

Administrative agencies have frequently sought

to bootstrap those statutory exceptions into an

argument that Congress has implicitly stripped the

district courts of § 1331 jurisdiction over constitutional

challenges to ongoing administrative proceedings, even

when the challenge is wholly collateral to the subject

matter of the administrative proceeding. The Court

rejected that argument in Free Enterprise Fund v.

Public Company Accounting Oversight Bd., 561 U.S.

477 (2010), ruling that such implicit repeals of districtcourt jurisdiction should not be recognized when,

among other things, the party raising constitutional

objections to administrative proceedings would be

deprived of a “meaningful avenue of relief” if its access

to federal courts were limited to an appeals-court

petition following an adverse determination by the

administrative agency. Id. at 490.

Undeterred by Free Enterprise Fund, federal

agencies have repeatedly sought dismissal of

constitutional challenges to ongoing proceedings, based

on an argument that Congress has somehow implicitly

24

eliminated district courts’ § 1331 subject-matter

jurisdiction over such claims. The Court unanimously

rejected that argument in Axon Enterprise, Inc. v. FTC

and SEC v. Cochran, 598 U.S. 175 (2023). The Court

held that when a plaintiff challenges the constitutional

legitimacy of administrative proceedings, she is

suffering a “here-and-now injury” that, Congress

understood, could be remedied only by making judicial

review immediately available in the district courts. Id.

at 191. It explained:

[The Petitioner’s] claim ... is about

subjection to an illegitimate proceeding,

led by an illegitimate decisionmaker. And

as to that grievance, the court of appeals

can do nothing: A proceeding that has

already happened cannot be undone.

Judicial review of Axon’s (and Cochran’s)

structural claims would come too late to

be meaningful.

Ibid.

***

The federal government’s record in these and

other cases demonstrates its commitment to raising

every possible procedural defense that even arguably

precludes judicial review of the merits of claims filed

against the government. The Board’s invocation of 28

U.S.C. § 2401(a) in this case should be viewed as just

the latest example of the federal government’s

assertion of a procedural defense without regard

whether it is meritorious.

25

CONCLUSION

The Court should reverse the judgment of the

Eighth Circuit that Petitioner’s challenge to Regulation

II is time-barred. It should hold that Petitioner’s

claims under the APA first accrued in 2018, when

Petitioner opened for business and was first adversely

affected by Regulation II.

Respectfully submitted,

Richard A. Samp

Counsel of Record

Kara M. Rollins

Mark S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

rich.samp@ncla.legal

Counsel for Amicus Curiae

Dated: November 20, 2023