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 AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF RESPONDENT

NICOLAS A. SANSONE

Counsel of Record

ALLISON M. ZIEVE

SCOTT L. NELSON

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

nsansone@citizen.org

Attorneys for Amicus Curiae

December 2023

TABLE OF CONTENTS

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

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

ARGUMENT ............................................................... 3

I. The right of action to mount a facial challenge

to an agency regulation accrues at the time the

regulation becomes final. ...................................... 3

A. The majority accrual rule furthers the dual

goals of agency accountability and regulatory

stability that are manifest in the APA’s text

and structure. ................................................... 4

B. The accrual rule adopted below avoids the

practical dangers of leaving longstanding

regulations forever open to facial attack. ...... 10

II. Corner Post’s view of accrual rests on faulty

assumptions about common-law background

principles. ............................................................ 14

CONCLUSION.......................................................... 17

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Advocates for Highway & Auto Safety v. Federal

Motor Carrier Safety Administration,

429 F.3d 1136 (D.C. Cir. 2005) ......................... 6, 7

Auer v. Robbins,

519 U.S. 452 (1997) ............................................... 7

Camp v. Pitts,

411 U.S. 138 (1973) ............................................... 6

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) .............................................. 5

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) ............................................... 4

Crown Coat Front Co. v. United States,

386 U.S. 503 (1967) ....................... 3, 10, 14, 15, 17

Department of Homeland Security v. Regents of the

University of California,

140 S. Ct. 1891 (2020) ........................................... 4

Dunn-McCampbell Royalty Interest, Inc. v.

National Park Service,

112 F.3d 1283 (5th Cir. 1997) ....................... 11, 12

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ............................................... 5

FPC v. Transcontinental Gas Pipe Line Corp.,

423 U.S. 326 (1976) ............................................... 6

Franklin v. Massachusetts,

505 U.S. 788 (1992) ............................................... 4

iii

International Telephone & Telegraph Corp.,

Communications Equipment & Systems

Division v. Local 134, International

Brotherhood of Electrical Workers,

419 U.S. 428 (1975) ....................................... 14, 15

Long Island Care at Home, Ltd. v. Coke,

551 U.S. 158 (2007) ............................................... 5

McDonough v. Smith,

139 S. Ct. 2149 (2019) ......................................... 15

McMahon v. United States,

342 U.S. 25 (1951) ......................................... 16, 17

Michigan v. EPA,

576 U.S. 743 (2015) ............................................... 4

Motor Vehicle Manufacturers Ass’n v. State Farm

Mutual Automobile Insurance Co.,

463 U.S. 29 (1983) ............................................. 5, 6

NLRB v. Wyman-Gordon Co.,

394 U.S. 759 (1969) ............................................... 5

Outdoor Amusement Business Ass’n v. Department

of Homeland Security,

983 F.3d 671 (4th Cir. 2020) ............................... 11

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) ............................................. 4, 5

Peri & Sons Farms, Inc. v. Acosta,

374 F. Supp. 3d 63 (D.D.C. 2019) ................. 11, 12

Reading Co. v. Koons,

271 U.S. 58 (1926) ..................................... 3, 15, 16

Rotella v. Wood,

528 U.S. 549 (2000) ............................................. 11

Talk America, Inc. v. Michigan Bell Telephone Co.,

564 U.S. 50 (2011) ................................................. 5

iv

United States v. Carlo Bianchi & Co.,

373 U.S. 709 (1963) ............................................... 6

Urie v. Thompson,

337 U.S. 163 (1949) ............................................. 14

Wallace v. Kato,

549 U.S. 384 (2007) ............................................. 17

Wong v. Doar,

571 F.3d 247 (2d Cir. 2009) ................................. 11

Wong Yang Sung v. McGrath,

339 U.S. 33 (1950) ................................................. 4

Statutes

5 U.S.C. § 551 .......................................................... 3, 4

5 U.S.C. § 553 .................................................. 4, 5, 7, 8

5 U.S.C. § 702 ........................................................ 6, 14

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

5 U.S.C. § 704 .............................................................. 3

5 U.S.C. § 706 ........................................................ 6, 12

28 U.S.C. § 2401 .......................... 2, 3, 8, 11, 13, 14, 15

Federal Employers’ Liability Act,

Pub. L. No. 60-100, 35 Stat. 65 (1908) ................ 16

INTEREST OF AMICUS CURIAE1

Amicus curiae Public Citizen is a nonprofit

consumer advocacy organization with members in all

fifty states. Public Citizen regularly appears before

Congress, administrative agencies, and courts to

advocate for laws and policies that protect consumers,

workers, and the general public. Because Public

Citizen frequently takes a role in proposing, defending, or challenging agency regulations, Public Citizen

has a strong interest in the proper application of the

Administrative Procedure Act (APA), and it often

participates as a party or as amicus curiae in cases

that involve the APA.

Public Citizen submits this brief to explain that

petitioner Corner Post’s interpretation of the APA, if

adopted, would undermine the functioning of regulations that protect public health, safety, and consumer

finances, among other things, by rendering regulations forever open to lawsuits raising facial

challenges. While judicial review of final agency action

is a critical feature of the APA’s procedural framework, the APA also reflects Congress’s understanding

that both regulated entities and the public at large

depend on stable regulatory regimes and an orderly,

predictable process for updating, amending, or

repealing existing rules. Public Citizen has a strong

interest in supporting a sensible interpretation of the

APA that honors the statute’s promise of judicial

review while ensuring that the availability of such

review does not open the door to the regulatory

1 This brief was not written in any part by counsel for a party.

No one other than amicus curiae or its counsel made a monetary

contribution to the preparation or submission of the brief.

2

instability that the APA’s procedures are designed to

prevent.

SUMMARY OF ARGUMENT

I. As all but one of the courts of appeals to have

addressed the issue have recognized, the right to bring

a facial challenge to agency action under the APA

accrues when the action becomes final. This

conclusion flows from the text and structure of the

APA and from the practical considerations that inform

the accrual analysis under this Court’s precedents. By

creating a generous six-year window within which

interested persons can seek judicial review of final

agency action, the APA provides an avenue to hold the

agency accountable for its decision-making process.

After that window has closed, the APA promotes

regulatory stability and safeguards the public’s

reliance interests by requiring persons who believe

the regulatory landscape should change to petition the

agency for a new rulemaking, giving the agency an

opportunity to invite public comments and review a

full record of up-to-date evidence. Corner Post’s view

of accrual would upend this statutory plan and create

instability that Congress designed the APA to avoid.

II. Nothing in the relevant statutory text

establishes the perpetual-accrual rule that Corner

Post proposes. Instead of pointing to statutory

language that states when “the right of action” to

bring a facial challenge to an agency regulation “first

accrues” within the meaning of the limitations

provision, 28 U.S.C. § 2401(a), Corner Post asserts

that a right of action cannot accrue before a plaintiff

seeking to invoke it has satisfied the legal

prerequisites to filing a lawsuit. This Court, though,

has rejected that assertion, instead holding that

3

accrual is context-dependent and requires careful

attention to congressional purpose and practical

realities. Here, those factors establish that accrual

does not occur anew every time a new person or other

entity is first affected by an agency regulation. Rather,

accrual occurs when the regulation becomes final.

ARGUMENT

I. The right of action to mount a facial

challenge to an agency regulation accrues at

the time the regulation becomes final.

The APA provides that certain “final agency

action,” including the promulgation of a regulation,

shall be subject to judicial review. 5 U.S.C. § 704; see

id. § 551(13) (defining “agency action”). Because the

APA does not itself specify the time limit for seeking

judicial review, the general statute of limitations for

claims against the government applies, absent a

special statutory review scheme that specifies a

different limitations period. Where the general

limitations statute applies, a claim under the APA

must be filed “within six years after the right of action

first accrues.” 28 U.S.C. § 2401(a).

Neither the APA nor section 2401(a), however,

expressly states when any particular “right of action

first accrues.” To resolve that question, this Court

must construe the statutory reference to accrual “in

the light of the general purposes of the statute and its

other provisions, and with due regard to those

practical ends which are to be served by any limitation

of the time within which an action must be brought.”

Crown Coat Front Co. v. United States, 386 U.S. 503,

517 (1967) (quoting Reading Co. v. Koons, 271 U.S. 58,

62 (1926)). As the overwhelming majority of the courts

of appeals to have considered the issue have

4

recognized, both of these considerations support the

conclusion that the right of action in a facial challenge

to a regulation accrues at the time the regulation

becomes final.

A. The majority accrual rule furthers the

dual goals of agency accountability and

regulatory stability that are manifest in

the APA’s text and structure.

1. Congress enacted the APA in 1946 to create a

“basic and comprehensive regulation of procedures in

many agencies.” Wong Yang Sung v. McGrath, 339

U.S. 33, 36 (1950). Responding to the “[m]ultiplication

of federal administrative agencies” capable of taking

action that could have a “serious impact on private

rights,” id. at 36–37, Congress sought to “introduce

greater uniformity of procedure and standardization

of administrative practice among the diverse

agencies,” id. at 41. The standardized procedures that

Congress accordingly enacted in the APA operate to

ensure that agencies conduct “reasoned decisionmaking” and remain “accountable to the public.” Dep’t

of Homeland Sec. v. Regents of the Univ. of Calif., 140

S. Ct. 1891, 1905 (2020) (first quoting Michigan v.

EPA, 576 U.S. 743, 750 (2015), then quoting Franklin

v. Massachusetts, 505 U.S. 788, 796 (1992)).

As relevant here, the APA sets out a detailed

process that an agency must generally follow when

promulgating a rule that is intended to “have the

‘force and effect of law,’ ” Perez v. Mortg. Bankers

Ass’n, 575 U.S. 92, 96 (2015) (quoting Chrysler Corp.

v. Brown, 441 U.S. 281, 302 (1979)), or when

“amending[ ] or repealing” an existing rule, 5 U.S.C.

§ 551(5); see id. § 553. First, the agency must publish

a notice that describes the substance of the proposed

5

regulatory action. See 5 U.S.C. § 553(b). The agency

must then give “interested persons” the opportunity to

respond with “written data, views, or arguments” and

must consider and address any significant comments

it receives. Perez, 575 U.S. at 96 (quoting 5 U.S.C.

§ 553(c)). Lastly, upon concluding the rulemaking, the

agency must issue a “concise general statement”

explaining the “basis and purpose” of the regulatory

action it has taken. Id. (quoting 5 U.S.C. § 553(c)).

In carrying out this process, an agency “must

examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983). The agency may not “fail[ ] to consider an

important aspect of the problem” or “offer[ ] an explanation for its decision that runs counter to the

evidence before the agency.” Id. And where an agency

amends or repeals an existing rule, it must “take[ ]

into account” any “serious reliance interests” that the

prior rule created. FCC v. Fox Television Stations,

Inc., 556 U.S. 502, 515 (2009).

Taken together, the procedural and substantive

requirements that the APA imposes on agency rulemaking ensure that the public has ample notice of

potential changes to the regulatory landscape and the

opportunity to bring relevant considerations to the

agency’s attention. The APA thus promotes “notice

and predictability” in the regulatory process. Christopher v. SmithKline Beecham Corp., 567 U.S. 142,

158 (2012) (quoting Talk Am., Inc. v. Mich. Bell Tel.

Co., 564 U.S. 50, 69 (2011) (Scalia, J., concurring)).

And it guards against “unfair surprise” that could

accompany abrupt shifts in the governing law. Long

Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170

(2007); see also NLRB v. Wyman-Gordon Co., 394 U.S.

6

759, 764 (1969) (plurality opinion) (observing that

“[t]he rule-making provisions of [the APA] … were

designed to assure fairness and mature consideration

of rules of general application”).

2. The APA also provides that agency action—

including the final output of a rulemaking—is subject

to judicial review and shall be “h[e]ld unlawful and set

aside” if successfully challenged. 5 U.S.C. § 706(2).

Absent a special statutory requirement to the contrary, any person “suffering legal wrong” or otherwise

“adversely affected or aggrieved” by an agency rule

may bring an APA action seeking review of the rule,

irrespective of whether that person participated in the

rulemaking process. Id. § 702. Nonetheless, “the focal

point for judicial review” is the substantive and procedural validity of the rulemaking in light of “the

administrative record already in existence, not some

new record made initially in the reviewing court.”

Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam);

see Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43–44

(noting the significance of the fact that “Congress

required a record of the rulemaking proceedings to be

compiled and submitted to a reviewing court”).

Accordingly, judicial review of a rulemaking is

“confined to ‘consideration of the decision of the

agency … and of the evidence on which it was based.’ ”

FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S.

326, 331 (1976) (omission in original; quoting United

States v. Carlo Bianchi & Co., 373 U.S. 709, 714–15

(1963)). As a result of this principle, “a party will

normally forfeit an opportunity to challenge an agency

rulemaking on a ground that was not first presented

to the agency for its initial consideration.” Advocates

for Highway & Auto Safety v. Fed. Motor Carrier

Safety Admin., 429 F.3d 1136, 1150 (D.C. Cir. 2005);

7

see id. (“[I]t is unsurprising that parties rarely are

allowed to seek ‘review’ of a substantive claim that has

never even been presented to the agency for its

consideration.”).

If a party believes that changed circumstances or

other considerations that are not reflected in the

original rulemaking record undermine the basis for an

existing rule, “[t]he proper procedure,” which is “set

forth explicitly in the APA,” is to submit “a petition to

the agency for rulemaking.” Auer v. Robbins, 519 U.S.

452, 459 (1997) (citing 5 U.S.C. § 553(e)). Following

that path allows the agency to revise the rule by

initiating a new rulemaking, during which it can provide public notice of a potential regulatory change,

seek input from interested parties, and compile a fresh

administrative record. And if the agency denies a

petition requesting a new rulemaking, the petitioner

can seek judicial review of that agency decision. See

id.

The APA thus offers two distinct mechanisms for

ensuring that the regulatory landscape develops in a

deliberate and predictable way through collaboration

between the agency and the public. On the one hand,

it offers a backward-looking avenue for parties to hold

an agency accountable for a procedurally or substantively flawed rulemaking process by seeking judicial

invalidation of the process’s output on the basis of the

administrative record compiled during that process.

On the other hand, it provides a forward-looking

avenue for parties to advocate for regulatory change

by requesting initiation of a notice-and-comment

process during which interested members of the public

have an opportunity to submit evidence and arguments that the agency must consider.

8

3. From this statutory context, it follows that “the

right of action” in a facial APA challenge to an agency

rule “first accrues” when the rule is issued. 28 U.S.C.

§ 2401(a). At that time, the agency’s regulatory action

has become part of the governing law that binds the

public, and the administrative record against which

the action will be assessed is complete. The validity of

the action is thus ascertainable, and the action is open

to APA challenges seeking to have it set aside. As the

vast majority of the courts of appeals that have considered the issue have agreed, this understanding of

accrual honors the APA’s purposes. It honors the

APA’s goal of agency accountability by recognizing

that Congress provided an ample six-year window

within which any member of the public injured by the

rule can obtain judicial review of its substantive and

procedural validity. And at the same time, it honors

the APA’s goal of regulatory stability by requiring

parties seeking to unwind or revisit a regulation after

that window has closed to invoke the right afforded

any “interested person … to petition for the issuance,

amendment, or repeal of a rule.” 5 U.S.C, § 553(e).

In contrast, Corner Post’s view of accrual would

upend the balance Congress struck more than 75

years ago between agency accountability and

regulatory stability. Rather than measuring accrual

from the time at which members of the public can

“first” invoke “the right of action” through which the

APA holds a completed rulemaking open to judicial

review, 28 U.S.C. § 2401(a), Corner Post claims that

Congress intended to open a fresh six-year limitations

window each and every time an additional member of

the public newly gains an interest in invoking that

right of action. Beyond resting on a flawed view of

background accrual principles, see infra Part II, this

9

argument would leave every agency regulation forever

open to facial challenge, given that new entities are

continually entering regulated domains or otherwise

becoming affected by existing agency rules. An interpretation that would create this prospect of perpetual

review, however, would place the APA’s judicialreview provision at odds with the notice-and-comment

process through which the statute otherwise channels

regulatory amendment or repeal. Rather than

petitioning the agency to initiate a new rulemaking

that would foster public dialogue and invite the

submission of up-to-date evidence, any person or

entity newly affected by or subject to the regulations

governing a particular sector—such as an individual

who has reached age 18 or entered a new profession,

or a business that has newly incorporated or changed

its business model—could circumvent the notice-andcomment process by filing a facial challenge against

any feature of the relevant regulatory landscape, no

matter how longstanding and no matter how settled

the industry’s and the public’s expectations.

Indeed, Corner Post’s 2021 challenge to a 2010

Federal Reserve rule underscores why Congress built

the ability to petition for a new rulemaking into the

APA’s design. In arguing that the 2010 rule is

arbitrary and capricious, Corner Post has cited evidence from as late as 2019. See, e.g., Pet. App. 51a

(discussing data “since 2011”). That evidence is

obviously not in the administrative record of the 2010

rule, and a court resolving Corner Post’s APA claim

thus cannot properly consider it. Had Corner Post

petitioned for a new rulemaking, however, the Federal

Reserve would have had the opportunity to consider

Corner Post’s contention that this evidence supports

an amendment to the rule, as well as evidence and

10

arguments from any other interested members of the

public and any reliance interests that might counsel

retention of the existing rule.

Although the APA allows a party the option to seek

judicial review of a past rulemaking rather than to

petition for a new rulemaking before the statute of

limitations has run, judicial review on a facial

challenge becomes increasingly less sensible over

time. Absent some temporal limit on mounting a facial

challenge, courts would have to ignore the reliance

interests of regulated parties and the public, as well

as any contemporary considerations gleaned from the

years of intervening experience, and instead assess

the challenge based on an administrative record

compiled many years earlier.

Congress did not write such a self-defeating

statutory scheme. Rather, as court after court has

held, the APA creates a generous but finite six-year

period for challenging an existing agency rule. Once

that period is over, a party seeking to challenge the

rule must rely on the processes that Congress

provided to govern new rulemakings.

B. The accrual rule adopted below avoids the

practical dangers of leaving longstanding

regulations forever open to facial attack.

In addition to honoring the “general purposes” of

the APA, the accrual rule around which the courts of

appeals have coalesced respects “those practical ends

which are to be served” by having a statute of

limitations in the first place. Crown Coat, 386 U.S. at

517 (citation omitted). As this Court has explained,

“the basic policies of all limitations provisions” include

“repose, elimination of stale claims, and certainty

about a plaintiff’s opportunity for recovery and a

11

defendant’s potential liabilities.” Rotella v. Wood, 528

U.S. 549, 555 (2000). Under Corner Post’s perpetualaccrual theory, though, the APA’s six-year limitations

period would be essentially meaningless. As a result,

agencies and courts could be forced to return

repeatedly to an ever-older administrative record to

defend against and adjudicate repetitive attacks. And

regulated parties and members of the public would

live under the risk that longstanding regulatory rights

and duties might be set aside at any time, without

notice or an opportunity to participate in a publiccomment process in which their interests could be

taken into account.

It is not difficult to imagine how a facial challenge

to a settled regulatory regime could threaten the

reliance interests of the people and entities that have

organized their personal or business affairs around

that regime. For example, courts have relied on

section 2401 to reject a facial challenge to a thenthirty-year-old Department of Health and Human

Services rule governing the calculation of nursing

home residents’ Medicaid benefits, Wong v. Doar, 571

F.3d 247, 262–63 (2d Cir. 2009); a then-eight-year-old

Department of Homeland Security rule governing

employers’ eligibility to secure work visas for certain

temporary foreign workers, Outdoor Amusement Bus.

Ass’n v. Dep’t of Homeland Sec., 983 F.3d 671, 678,

681–82 (4th Cir. 2020); a nearly twenty-year-old

National Park Service rule governing oil and gas

rights within national parklands, Dunn-McCampbell

Royalty Interest, Inc. v. Nat’l Park Serv., 112 F.3d

1283, 1287 (5th Cir. 1997); and a then-nine-year-old

Department of Labor rule establishing the

methodology for calculating the minimum wage for

certain agricultural workers, Peri & Sons Farms, Inc.

12

v. Acosta, 374 F. Supp. 3d 63, 72 (D.D.C. 2019). Had a

court upheld any of these facial challenges, it would

have “h[e]ld unlawful and set aside,” 5 U.S.C. § 706(2),

a rule that had been in effect for many years.

To be sure, some regulations will remain under the

continued threat of effective facial invalidation

irrespective of when the right of action to bring a facial

challenge accrues. Under 5 U.S.C. § 703, “agency

action is subject to judicial review in civil or criminal

proceedings for judicial enforcement” unless “prior,

adequate, and exclusive opportunity for judicial

review is provided by law.” And when an agency seeks

to enforce a regulation against a party, the party can

generally attempt to defend itself by arguing that the

regulation (and thus the enforcement action)

“exceed[s]” the agency’s “constitutional or statutory

authority.” Dunn-McCampbell Royalty Interest, 112

F.3d at 1287.

As Corner Post notes, however, “many regulations

are never used in enforcement proceedings.” Pet’r Br.

37. Moreover, research shows that cases in which an

agency rule is held arbitrary, capricious, or in

violation of law as a result of a challenge in an

enforcement proceeding are rare. Thus, the instability

created by the risk that a regulated party might

successfully defend itself in a particular enforcement

action on grounds that impugn a regulation’s validity

is orders of magnitude less than the instability created

by a perpetual-accrual rule that would permit any

person or entity with a new interest in a regulation to

bring a new lawsuit many years—even decades—after

completion of the rulemaking.

Moreover, it is no answer to say that judicial

precedent would eventually settle the issue of a

13

regulation’s validity and thus end the potential for

additional lawsuits. Even if a court of appeals were to

uphold a challenged rule on the merits, Corner Post’s

rule would allow a new plaintiff to mount a new

challenge in a different circuit, perhaps decades later.

Indeed, that is what Corner Post has done here. See

Pet’r Br. 9 n.1 (acknowledging that the D.C. Circuit

upheld the rule at issue in 2014). And even within a

circuit that has upheld a particular regulation, a new

challenger could evade the adverse precedent by

making arguments that the original challenger did

not present and that the court of appeals accordingly

did not address.

The APA mitigates this potential for perpetual

instability by placing a six-year limit on the public’s

ability to bring affirmative litigation testing the

soundness of an agency rulemaking. Casting this limit

aside would imperil the longstanding reliance

interests of the senior citizen who has made hard

financial choices to ensure that she can receive the

healthcare she needs, the farm owner who has

carefully budgeted for the current growing season,

and countless other people and businesses across any

number of diverse sectors of American life.

If Congress had written the APA to require this

result, this Court would be required to enforce the

statute as written. But as the court below and

numerous others have concluded, nothing in section

2401(a) or the APA evinces a congressional intent to

undermine the reliance that members of the public

justifiably place in well-established agency rules

addressing health and safety, consumer and investor

protections, the environment, and all sorts of other

important subjects.

14

II. Corner Post’s view of accrual rests on faulty

assumptions about common-law background

principles.

Brushing aside the untenable consequences of its

perpetual-accrual rule, Corner Post claims that the

text of the APA and section 2401(a) “clear[ly]” compel

it. Pet’r Br. 13. Corner Post is wrong. Section 2401(a)

states that its six-year limitations period begins to run

when “the right of action” that is being invoked “first

accrues,” but nothing in the text of either the APA or

section 2401(a) states when accrual takes place.

Corner Post attempts to sidestep this statutory silence

by applying what it characterizes as “the standard

rule”: that accrual occurs at the time a given plaintiff

“can sue on his underlying claim.” Pet’r Br. 11. Based

on this belief that accrual must always and

everywhere be plaintiff-specific, Corner Post asserts

that “the right of action” to bring a facial challenge

against a generally applicable regulation must accrue

anew whenever that regulation “adversely affect[s] or

aggrieve[s]” an entity for the first time. Id. (quoting 5

U.S.C. § 702). But the one-size-fits-all approach to

accrual that Corner Post purports to find in commonlaw background principles (and not in any statutory

text) runs headlong into this Court’s precedents.

This Court has recognized “the hazards inherent in

attempting to define for all purposes when a ‘cause of

action’ first ‘accrues,’ ” Crown Coat, 386 U.S. at 517,

and has warned against subjecting the issue of accrual

to a “mechanical analysis” that risks “thwart[ing] the

congressional purpose,” Urie v. Thompson, 337 U.S.

163, 169 (1949). This caveat is particularly potent in

connection with the APA, which creates a right of

action to challenge a wide range of agency actions in a

wide range of contexts. Cf. Int’l Tel. & Tel. Corp.,

15

Commc’ns Equip. & Syst. Div. v. Local 134, Int’l Bhd.

of Elec. Workers, 419 U.S. 428, 439 (1975) (noting that

“[b]ecause [the APA] was designed to regulate

administrative proceedings throughout a wide

spectrum of agency activities, its language is

necessarily abstract in many places,” and its general

provisions must be applied in a context-specific way to

“the particular agency proceeding” at issue). Given the

diverse range of cases to which section 2401(a) and the

APA’s cause of action apply, it is hardly surprising

that the statutes use broad language that must be

interpreted contextually and do not mimic the

statutes Corner Post cites as examples of Congress

explicitly specifying precisely when a statute of

limitations begins to run. See Pet’r Br. 25–27.

Misreading Crown Coat, Corner Post claims that

the opinion interpreted section 2401(a) to hold that a

claim cannot accrue until a particular plaintiff is

“legally entitled to ask the courts to adjudicate his

claim.” Pet’r Br. 3 (quoting Crown Coat, 386 U.S. at

515). Again, however, Crown Coat expressly rejected

the idea that a single notion of accrual applies

inflexibly to all causes of action. See 386 U.S. at 517.

Rather, Crown Coat’s analysis was specific to the

cause of action at issue in the case, and it looked to the

“congressional purpose” of the statute creating that

cause of action and the real-world “impact” of the

competing accrual rules proposed by the parties. Id. at

514. Indeed, belying Corner Post’s contention that a

claim always accrues at the time a given plaintiff’s

cause of action is complete, this Court has explicitly

noted that “the answer is not always so simple.”

McDonough v. Smith, 139 S. Ct. 2149, 2155 (2019).

For example, in Reading Co., the Court addressed

the limitations provision of the Federal Employers’

16

Liability Act, which at that time provided that a claim

must be brought “within two years from the day the

cause of action accrued.” Pub. L. No. 60-100, § 6, 35

Stat. 65, 66 (1908). Specifically, the Court considered

whether a wrongful-death claim under the statute

accrues “at the time of death or on the appointment of

[an] administrator, who is the only person authorized

by the statute to maintain the action.” Reading Co.,

271 U.S. at 60. The Court took the former view,

holding that the cause of action accrues “when all of

the events have occurred which determine the liability

of the [defendant].” Id. at 61. Central to the Court’s

determination that “the [limitations] period should

begin to run from the definitely ascertained time of

death rather than the uncertain time of the

appointment of an administrator” were the “practical

consideration[s] which would lead to the imposition of

any period of limitation” in the first place: the

assurance that “there may be, at some definitely

ascertained period, an end to litigation.” Id. at 64–65.

In McMahon v. United States, 342 U.S. 25 (1951),

the Court considered a statute that gave seamen

employed on government-owned vessels the right to

bring certain admiralty claims against the United

States “within two years after the cause of action

ar[ose],” if those claims had first been “disallowed”

during a prior administrative process. Id. at 26

(citations omitted). The petitioner in McMahon had

filed suit more than two years after the government’s

“actionable wrongs” but within two years of the end of

his administrative proceedings. Id. The Court held

that the petitioner’s lawsuit was untimely, finding it

“clear that the proper construction of the [statutory]

language” was that the cause of action accrued at the

time of the underlying injury and not at the time the

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administrative tribunal disallowed the claims. Id. at

27. Certainly, as the Court explained, the petitioner

“could not sue until his claim had been

administratively disallowed.” Id. at 26. But because

claimants were not required to initiate administrative

proceedings within any particular timeframe, reading

the statute to link accrual to the conclusion of the

administrative process could risk “delay[ing] indefinitely knowledge by the Government that a claim

existed.” Id. at 27; see also Wallace v. Kato, 549 U.S.

384, 391 (2007) (rejecting a view of accrual that would

cause a limitations period to “begin to run only after a

plaintiff became satisfied that he had been harmed

enough” because this view would place accrual “in the

sole hands of the party seeking relief”).2

Contrary to Corner Post’s argument, then, accrual

in some contexts occurs before all the statutory

prerequisites that would enable a particular plaintiff

to file a lawsuit have been satisfied. Rather than look

to the statutory “purposes” and “practical ends” that

establish that a facial APA challenge to an agency

regulation presents one such context, Crown Coat, 386

U.S. at 517 (citation omitted), Corner Post simply

declares that it does not. The courts of appeals have

overwhelmingly declined to follow the analytical

shortcut that Corner Post proposes. This Court should

do the same.

CONCLUSION

The decision below should be affirmed.

2 Wallace at one point refers to the time bar at issue as a

“statute of repose,” 549 U.S. at 391, but the opinion otherwise

correctly identifies it as a “statute of limitations,” id. at 391, 397.

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Respectfully submitted,

NICOLAS A. SANSONE

Counsel of Record

ALLISON M. ZIEVE

SCOTT L. NELSON

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

nsansone@citizen.org

Attorneys for Amicus Curiae

December 2023