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

Supreme Court briefDec 20, 2023

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No. 22-1008

In the

Supreme Court of the United States

CORNER POST, INC.,

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 OF SMALL BUSINESS ASSOCIATIONS

AS AMICI CURIAE IN SUPPORT OF

RESPONDENT

SKYE L. PERRYMAN

Counsel of Record

AMAN T. GEORGE

ROBIN F. THURSTON

Democracy Forward

Foundation

P.O. Box 34553

Washington, DC 20043

(202) 383-0794

sperryman@democracyforward.org

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTERESTS OF THE AMICI CURIAE ...............1

INTRODUCTION AND SUMMARY OF

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

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

I. Regulatory certainty is essential for

small businesses to grow, thrive, and

compete. ......................................................7

II. The majority rule, as urged by the

government, only curbs the most

disruptive judicial remedies, leaving in

place other possibilities for relief.............13

III. Petitioner’s approach would facilitate

jurisdictional mischief without

meaningfully advancing useful judicial

review........................................................18

CONCLUSION ....................................................23

TABLE OF AUTHORITIES

Cases

Camp v. Pitts, 411 U.S. 138 (1973) ........................... 19

Chamber of Comm. of U.S.A. v. Consumer Fin. Prot.

Bureau, No. 6:22-cv-00381, 2023 WL 5835951

(E.D. Tex. Sep. 8, 2023) ......................................... 23

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467

U.S. 837 (1984)....................................................... 22

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

402 (1971) ............................................................... 19

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013). 22

Ctr. For Food Safety v. Becerra, 565 F.Supp.3d 519

(S.D.N.Y. 2019) ...................................................... 20

Dep’t of Fish and Game v. Fed. Subsistence Bd., No.

3:20-cv-00195-SLG, 2023 WL 7282538 (D. Ala.

Nov. 3, 2023) .......................................................... 23

Herr v. U.S. Forest Serv., 803 F.3d 809 (6th Circ.

2015) ....................................................................... 20

Linney’s Pizza, LLC v. Bd. of Governors of Fed. Rsrv.

Sys., 3:22-cv-00071-GVFT, 2023 WL 6050569 (E.D.

Ky. Sep. 15, 2023) .................................................. 20

Loper Bright Enters. v. Raimondo, 45 F.4th 359 (D.C.

Cir.), cert. granted, 143 S.Ct. 429 (2023) (No. 22451) ......................................................................... 22

iii

Louisiana v. Biden, 55 F.4th 1017 (5th Cir. 2022) .. 23

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139

(2010) ...................................................................... 13

N.C. Coastal Fisheries Reform Grp. v. Capt. Gaston

LLC, 76 F.4th 291 (4th Cir. 2023) ......................... 22

N.C. v. EPA, 531 F.3d 896 (D.C. Cir. 2008).............. 14

N.C. v. EPA, 550 F.3d 1176 (D.C. Cir. 2008)............ 14

NACS v. Bd. of Governors of Fed. Rsrv. Sys., 574

U.S. 1121 (2015)..................................................... 21

NACS v. Bd. of Governors of Fed. Rsrv. Sys., 746

F.3d 474 (D.C. Cir. 2014) ....................................... 21

Nat’l Env’t Dev. Assoc.’s Clean Air Project v. EPA,

891 F.3d 1041 (D.C. Cir. 2018) .............................. 20

Penn. v. N.J., 426 U.S. 660 (1976) ............................ 22

Relentless Inc. v. Dep’t of Comm., 62 F.4th 621 (1st

Cir.), cert. granted, 2023 WL 6780370 (2023) (No.

22-1219) .................................................................. 22

Tex. v. Biden, No. 6:22-CV-00004, 2023 WL 6281319

(S.D. Tex. 2023)...................................................... 23

Tex. v. Nuclear Regul. Comm’n, 78 F.4th 827 (5th

Cir. 2023)................................................................ 22

TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) .. 22

U.S. v. Tex., 599 U.S. 670 (2023) .............................. 15

W.V. by and through Morrissey v. U.S. Dep’t of

Treasury, 59 F.4th 1124 (11th Cir. 2023) ............. 23

Watters v. Wachovia Bank, N.A., 550 U.S. 1

(2007)…………………………………………………..11

Statutes

Pub. L. No. 104-121 §§ 201-202, 110 Stat. 847, 857

(1996) ........................................................................8

Other Authorities

A Win for Deregulation: NFIB Defends the President’s

2 for 1 Policy, NFIB (Mar. 5, 2018),

https://www.nfib.com/content/legalblog/regulatory/a-win-for-deregulation-nfibdefends-the-presidents-2-for-1-policy/ .................. 10

Average Debit Card Interchange Fee by Payment

Card Network, Bd. Of Governors of the Fed. Rsrv.

Sys. (last updated Oct. 25, 2023),

https://www.federalreserve.gov/paymentsystems/re

gii-average-interchange-fee.htm ........................... 16

Bipartisan Pol’y Ctr., The Role of Government in

Small Business Finance (Feb. 9, 2023),

https://bipartisanpolicy.org/blog/government-rolein-sbf/. .......................................................................7

Giovanni Favara et al., Uncertainty, Access to Debt,

and Firm Precautionary Behavior, 141 J. Fin.

Econ. 436 (2021),

https://tinyurl.com/3ysmp7ss.......................…..9, 10

Jessica Elliott, 10 Ways to Reduce Your Credit Card

Processing Fees, U.S. Chamber of Comm. (Sept. 13,

2023),

https://www.uschamber.com/co/run/finance/how-toreduce-credit-card-processing-fees ........................ 17

John Arensmeyer, Founder & CEO, Small Business

Majority, Comment Letter onr Federal Register

1235-AA39, Division of Regulations, Legislation,

and Interpretation, Wage and Hour Division (Nov.

7, 2023),

https://www.regulations.gov/comment/WHD-20230001-25965 ...............................................................9

Leland D. Crane, et al, Fed. Rsrv. Bd., Business Exit

During the COVID-19 Pandemic: Non-Traditional

Measures in Historical Context (2021),

https://tinyurl.com/3kvpwjnp. .................................5

Maxine Joselow, ‘Deregulation is not always helpful

for manufacturing jobs,’ E&E News (Nov. 30,

2018),

https://www.eenews.net/articles/deregulation-isnot-always-helpful-for-manufacturing-jobs/ ......... 10

McGuireWoods, Reversal of Fortune: DC Circuit

Vacates CAIR Vacatur (Dec. 23, 2008),

https://www.mcguirewoods.com/clientresources/alerts/2008/12/reversal-of-fortune-dccircuit-vacates-cair-vacatur/ .................................. 14

Office of Advoc., U.S. Small Bus. Admin., 2022 Small

Business Profile for the United States (2022),

https://tinyurl.com/3u93bxjv. ..................................4

Office of Advoc., U.S. Small Bus. Admin., Frequently

Asked Questions (Dec. 2021),

https://tinyurl.com/32r2xuuv ............................... 4, 5

Office of Advoc., U.S. Small Bus. Admin., Frequently

Asked Questions (Mar. 2023),

https://advocacy.sba.gov/wpcontent/uploads/2023/03/Frequently-AskedQuestions-About-Small-Business-March-2023508c.pdf. ................................................................. 12

Randall S. Billingsley and Carl J. Ullrich, Regulatory

Uncertainty, Corporate Expectations, and the

Postponement of Investment: The Case of Electricity

Market Deregulation (2011),

https://ssrn.com/abstract=1944217 ....................... 10

Robert W. Fairlie and Alicia M. Robb, U.S. Dep’t of

Com., Disparities in Capital Access between

Minority and Non-Minority-Owned Businesses

(Jan. 2010), https://tinyurl.com/mr94tr82. .............9

Seth A. Blumsack et al., Lessons from the Failure of

U.S. Electricity Restructuring (Carnegie Mellon

Elec. Ind. Ctr. Working Paper CEIC-05-09 2009),

https://www.cmu.edu/ceic/assets/docs/publications/

working-papers/ceic-05-09.pdf............................... 10

Small Bus. Majority, Small Businesses Share

Concerns with Recent Banking Closures, Access to

Capital Challenges (May 3, 2023),

vii

https://tinyurl.com/4rmphh7f ..................................9

Small Business Owners Say Commonsense

Regulations Needed To Ensure A Modern,

Competitive Economy, Small Business Majority

(May 22, 2018), https://tinyurl.com/4kkx5fxn. .......8

U.S. Dept. of Agric. Off. of Commc’ns., USDA

Announces Decision to Fully Deregulate Roundup

Ready Alfalfa (Feb. 1, 2011),

https://tinyurl.com/4a4ybc4a. ................................ 14

Vivek Ghosal and Yang Ye, Uncertainty and the

Employment Dynamics of Small and Large

Businesses (Int’l Monetary Fund, WP/15/4, 2015),

https://www.imf.org/external/pubs/ft/wp/2015/wp15

04.pdf ........................................................................9

BRIEF OF SMALL BUSINESS ASSOCIATIONS

AS AMICI CURIAE IN SUPPORT OF

RESPONDENT

INTERESTS OF THE AMICI CURIAE1

Amici curiae represent businesses across the nation that recognize the value of a stable and predictable federal regulatory structure to small business

growth and competition.

Amicus curiae Small Business Majority is a national small business organization with a network of

more than 85,000 small businesses and 1,500 business and community organizations. Small Business

Majority aims to empower America’s diverse entrepreneurs to build a thriving and equitable economy. To

that end, Small Business Majority delivers resources

to entrepreneurs and advocates for public policy solutions that promote inclusive small business growth.

Amicus curiae American Sustainable Business

Council (ASBC) is building a business association by

partnering with business organizations, companies,

and investors. ASBC and its association members collectively represent more than 250,000 businesses,

many of which are small businesses. ASBC advocates

for solutions and policies that support a just, sustainable stakeholder economy. Its mission is to educate,

connect, and mobilize business leaders and investors

to transform the public and private sectors and the

overall economy.

Pursuant to Rule 37.6, no party’s counsel authored this brief

in whole or in part, no party or party’s counsel contributed money

intended to fund this brief, and no person other than amici, their

members, and their counsel contributed money to fund this brief.

Amicus curiae South Carolina Small Business

Chamber of Commerce is a statewide advocacy organization with more than 5,000 supporters. The Chamber provides leadership in making South Carolina

friendlier to small businesses in areas such as taxation, regulation, worker training, workers compensation insurance, utility costs, health insurance, energy/conservation, and economic development. The

Chamber has also worked at the federal level on access to capital, federal regulations, health insurance,

coastal environmental protection, and democracy.

Amicus curiae Businesses for Conservation and

Climate Action (BCCA) is a coalition of Indigenous-led

and community-based businesses, many of which are

small businesses. BCCA’s mission is to establish national policies that recognize sustainable small businesses as compatible with healthy lands and oceans,

and to enhance the participation of these sustainable

businesses in conversations about resource access.

Amicus curiae Main Street Alliance (MSA) is a national network of small businesses, which represents

approximately 30,000 small businesses across 15

states. MSA helps small business owners realize their

full potential as leaders for a just future that prioritizes good jobs, equity, and community through organizing, research, and policy advocacy on behalf of small

businesses. MSA also seeks to amplify the voices of its

small business membership by sharing their experiences with the aim of creating an economy where all

small business owners have an equal opportunity to

succeed.

Amici have a strong interest in ensuring the right

conditions exist for entrepreneurs to grow their small

businesses into thriving forces in local economies.

Federal regulations can foster such conditions in two

ways. First, federal regulations bring much needed

predictability, nationwide consistency, and stability to

the business landscape, allowing small business owners to more confidently plan and prepare for the future. Second, regulations play an important role in ensuring small businesses can compete against large

corporations: Appropriately tailored regulations can

level the playing field to allow all businesses to compete and thrive, producing a more equitable and just

economy.

Amici recognize that an interpretation of the Administrative Procedure Act’s (“APA”) statute of limitations that would allow for new facial challenges to

longstanding regulatory regimes as urged by Petitioner would needlessly expand regulatory uncertainty and destabilize business expectations. Amici

write to express their concern about the particularly

harmful consequences for small businesses if Petitioner’s interpretation of the APA is embraced by the

Court.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The question before this Court—whether to discard the longstanding interpretation of the Administrative Procedure Act’s (“APA”) statute of limitations provisions—has profound implications for the

nation’s small businesses and the country’s economy

as a whole. Adopting Petitioner’s invitation to disregard the APA’s six-year statute of limitations for facial challenges to federal regulations as beginning

to accrue when a federal agency takes final agency

action would create chaos, uncertainty, and inconsistent regulatory regimes for the nation’s regulated

industries and the American people the regulations

seek to serve. It would enable a host of regulations

to be challenged decades after they were finalized,

creating an unstable regulatory environment. While

such an environment would have negative consequences for all of the nation’s regulated industries,

much of the burden would fall on small businesses,

which rely on regulatory certainty to grow, thrive,

and compete in the United States economy. Amici

therefore urge the Court to reject Petitioner’s attempt to undermine the APA’s statute of limitations

and regulatory certainty and to affirm the lower

court’s ruling.

Small businesses are critical to the United States

economy. The vast majority—99.9 percent—of businesses in the United States are small. 2 Small businesses also employ nearly half of the nation’s workers.3 Likewise, small businesses have created the

majority of new jobs in the United States since

1995.4 Small businesses are especially important for

the advancement of women and people of color, who

own more than 40 and 30 percent of such businesses,

respectively.5

2 Office of Advoc., U.S. Small Bus. Admin., 2022 Small Business

Profile for the United

nyurl.com/3u93bxjv.

States

(2022),

https://ti-

3 Id.

Office of Advoc., U.S. Small Bus. Admin., Frequently Asked

Questions 1 (Dec. 2021), https://tinyurl.com/32r2xuuv (“From

1995 to 2020, small businesses created 12.7 million net new jobs

while large businesses created 7.9 million (Figure 2). Small businesses have accounted for 62% of net new job creation since

1995.”).

5 2022 Small Business Profile, supra note 2, at 3.

Opening and sustaining a small business, however, is not easy, particularly in recent years. Small

businesses face risk and challenges at every turn,

from securing the capital necessary to open their

doors to making payroll each month. Many small

businesses are unable to surmount these challenges.

Less than half survive to the five-year mark.6 And

small businesses’ survival can be even more challenging when forced to weather changing economic

and political conditions, such as the COVID-19 pandemic, supply chain disruptions, inflation, or a tight

labor market.7

Stability, predictability, and consistency can enable small businesses to survive and thrive. In a stable environment, entrepreneurs considering opening a business can evaluate likely compliance obligations and build systems and business models that

efficiently account for these obligations from the

start. Business owners in a stable environment can

more confidently allocate scarce resources to the

next best strategic investments for their business.

And a well-structured regulatory environment can

help put small businesses on more even footing with

larger corporations, allowing Main Street to compete with Wall Street.

Petitioner’s attempt to dramatically expand the

use of facial legal challenges to longstanding

6 Frequently Asked Questions, supra note 4, at 2.

7 Indeed, the Federal Reserve estimates that there were 130,000

excess small business closures (i.e., above and beyond pre-pandemic rates) between March 2020 and February 2021. Leland D.

Crane, et al, Fed. Rsrv. Bd., Business Exit During the COVID-19

Pandemic: Non-Traditional Measures in Historical Context 4

(2021), https://tinyurl.com/3kvpwjnp.

regulatory regimes would introduce substantial uncertainty and instability into existing regulatory

frameworks. While amici certainly believe some federal regulations could be revisited, altered, or

strengthened in ways that would be favorable to small

businesses, permitting new facial challenges to settled

regulatory regimes does not achieve those goals.

On the contrary, expanding judicial review of

longstanding regulatory regimes is likely to contribute to the sorts of instability that can be fatal to small

businesses. Ruling for Petitioner would subject rules

to which small businesses have long adapted (and

many that they may have fought for) to challenge and

potential vacatur, either inconsistently across different federal jurisdictions, or nationwide, creating sudden and substantial changes in businesses’ rights and

obligations, and new and uncertain timelines for replacement regulations. Other vehicles for regulatory

changes exist that are more deliberative, more tailored, and less disruptive to the needs of small businesses. In contrast to Petitioner’s proposed approach,

these other vehicles are also consistent with the law.

This Court should embrace the rule that controls in a

majority of the nation’s circuit courts (including all

but one of the circuit courts to have examined this issue) and affirm the judgment of the Eighth Circuit

that the APA’s limitations period for facial challenges

begins to run at final agency action.

ARGUMENT

Petitioner urges this Court to reshape the APA

and disregard the widely-understood trigger for the

law’s six-year statute of limitations—the date that an

agency took a challenged action. Petitioner instead argues for a rule that would enable new facial challenges

years—even decades— after a regulation has been finalized. Petitioner’s interpretation was rightfully rejected by the lower court and a majority of the nation’s

circuit courts that have considered this issue.

As outlined below, if endorsed by this Court, Petitioner’s view would threaten the viability of small

businesses throughout the nation and create a chaotic

economic and regulatory ecosystem. The Court

should, therefore, affirm the Eighth Circuit and reject

Petitioner’s invitation to unwind the proper limits on

facial challenges under the APA.

Regulatory certainty is essential for

small businesses to grow, thrive, and

compete.

Every business must manage its day-to-day operations while also planning for the future, making decisions about investments, savings, growth, and resilience. Small businesses are no exception.

Federal regulation can affect many aspects of a

small business’s plans and operations, ranging from

regulatory lending programs that provide necessary

capital to requirements that small businesses report

their beneficial owners. Some of these regulations,

such as those that implement lending programs, directly facilitate the success of small businesses.8 Others may impose compliance requirements, which must

be designed to be predictable and fair to avoid unduly

burdening small businesses.

8 See, e.g., Bipartisan Pol’y Ctr., The Role of Government in Small

Business Finance (Feb. 9, 2023),

icy.org/blog/government-role-in-sbf/.

https://bipartisanpol-

Polling data has shown that small business owners believe in the need for some regulation of business

in our modern economy.9 Many small businesses owners recognize that federal regulation of Wall Street

and the financial services industry is necessary to protect their businesses from unfair competition.10 Regulations—and the certainty they provide—can help all

small businesses navigate a complex business environment.

Congress has recognized the need for small businesses to have a voice in federal regulation. To mitigate the disproportionate regulatory burdens on small

businesses, Congress passed the 1996 Small Business

Regulatory Enforcement Fairness Act (“SBREFA”) to

better engage small businesses in the regulatory process and find constructive solutions to manage the

regulatory burden. Pub. L. No. 104-121 §§ 202-203,

110 Stat. 847, 857 (1996). While regulatory changes

can be destabilizing, federal rulemaking at least affords small businesses an important opportunity to

shape forthcoming regulations in ways that are

thoughtful about different stakeholders’ needs. Indeed, amici have frequently worked through the comment process provided under federal law to help tailor

regulatory changes to account for the particular needs

of small businesses, by encouraging, for example,

later effective dates to allow small businesses time to

adapt to compliance with new regulations, and

9 Small Business Owners Say Commonsense Regulations Needed

To Ensure A Modern, Competitive Economy, Small Business Majority (May 22, 2018), https://tinyurl.com/4kkx5fxn.

10 Id.

greater outreach and education efforts to small businesses to facilitate compliance.11

Uncertainty, regulatory or otherwise, hinders the

ability of businesses to plan effectively. The impacts

of uncertainty are particularly acute for small businesses, which often operate on exceedingly thin margins and lack the resources to hire a stable of experts

to monitor and advise on the consequences of every

state or federal regulatory action. Research has repeatedly found that the economic and employment effects of uncertainty are higher for small businesses

than large ones, in part because small businesses

have more constrained access to finance and credit (a

particularly acute problem for businesses owned by

people of color and women).12 Businesses with

stronger access to capital during periods of uncertainty are less likely to be forced into precautionary

behavior that can affect their long-term prospects,

11 See, e.g., John Arensmeyer, Founder & CEO, Small Business

Majority, Comment Letter on Federal Register 1235-AA39, Division of Regulations, Legislation, and Interpretation, Wage and

Hour Division (Nov. 7, 2023), https://www.regulations.gov/comment/WHD-2023-0001-25965.

12 See Vivek Ghosal and Yang Ye, Uncertainty and the Employ-

ment Dynamics of Small and Large Businesses, 1, 8–9, 20–23

(Int’l Monetary Fund, WP/15/4, 2015), https://www.imf.org/external/pubs/ft/wp/2015/wp1504.pdf; Giovanni Favara et al., Uncertainty, Access to Debt, and Firm Precautionary Behavior, 141 J.

Fin. Econ. 436 (2021), https://tinyurl.com/3ysmp7ss; Small Bus.

Majority, Small Businesses Share Concerns with Recent Banking

Closures, Access to Capital Challenges 2 (May 3, 2023), https://tinyurl.com/4rmphh7f; Robert W. Fairlie and Alicia M. Robb, U.S.

Dep’t of Com., Disparities in Capital Access between Minority and

Non-Minority-Owned Businesses 5 (Jan. 2010), https://tinyurl.com/mr94tr82.

such as delaying investments in order to build cash

reserves.13

While “deregulation” is sometimes portrayed as

an unqualified good for businesses,14 research has

shown that hasty or thoughtless deregulation can contribute to uncertainty, and make the business environment more challenging for regulated entities.15

Uncertainty associated with litigation over regulations can have similar negative effects on the abilities

of businesses to plan and make long-term investments.16 And the sudden withdrawal of federal regulations designed to provide national standards can

leave businesses newly-subject to a patchwork of inconsistent state and local requirements. Cf., e.g.,

13 Favara et al., supra n. 12, at 438.

14 See, e.g., A Win for Deregulation: NFIB Defends the President’s

2 for 1 Policy, NFIB (Mar. 5, 2018), https://www.nfib.com/content/legal-blog/regulatory/a-win-for-deregulation-nfib-defendsthe-presidents-2-for-1-policy/.

15 See, e.g., Randall S. Billingsley and Carl J. Ullrich, Regulatory

Uncertainty, Corporate Expectations, and the Postponement of

Investment: The Case of Electricity Market Deregulation 1, 12,

22–23 (2011), https://ssrn.com/abstract=1944217 (finding that

market deregulation initially decreased investments in energy

markets for years until additional rules and guidance concerning

implementation were finalized); Seth A. Blumsack et al., Lessons

from the Failure of U.S. Electricity Restructuring 1 (Carnegie

Mellon Elec. Ind. Ctr. Working Paper CEIC-05-09 2009),

https://www.cmu.edu/ceic/assets/docs/publications/working-papers/ceic-05-09.pdf (finding that electricity market deregulation

caused “a large increase in the cost of capital due to increased

uncertainty.”).

16 See Maxine Joselow, ‘Deregulation is not always helpful for

manufacturing jobs,’ E&E News (Nov. 30, 2018), https://www.eenews.net/articles/deregulation-is-not-always-helpful-for-manufacturing-jobs/.

Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11 (2007)

(upholding the power of the Office of the Comptroller

of the Currency to issue regulations preempting the

application of state banking laws to state-based affiliates of national banks, in part to “shield[] national

banking from unduly burdensome and duplicative

state regulation.”).

After a federal agency finalizes a regulation, the

APA authorizes challenges to that regulation to ensure that the agency acted reasonably and in accordance with law. These challenges can lead to revisions

on remand or regulations being vacated altogether.

Under the majority approach and longstanding interpretation of the APA, facial challenges to a regulation

may be brought up to six years after the agency takes

final action. This statutory limit ensures some stability in the regulatory landscape, enabling judicial review of an agency’s action but cabining the opportunity for untimely and destabilizing judicial intervention.

After regulations are finalized and any facial challenges are resolved, businesses can adapt their business models as necessary, with reasonable confidence

in future stability. Such adaptations may be significant—for example, implementing training and procedures for handling potentially hazardous substances,

displaying legally-required information about employees’ labor rights, or collecting and maintaining information that will be required for regulatory filings or

tax obligations. Many small businesses prefer to make

such changes once, adapting to a stable and known

regulatory regime, rather than deal with frequent regulatory whiplash, even if whiplash sometimes results

in ostensibly deregulatory results.

The remedies the petitioner in this case seeks to

expand undermines the important limits Congress

placed on APA litigation. See Resp. Br. 15–20 (cataloging Congress’s consistent choice of repose for administrative litigation). Petitioner’s approach will likely

cause more frequent and substantial changes in regulatory regimes by opening up decades of settled law to

new facial challenges across the country, resulting in

frequent, inconsistent, judicially-driven policy

changes that do not involve the sort of careful balancing envisioned in the normal process of regulatory

change.

This uncertainty will disproportionately harm

small businesses, which by and large lack the resources to identify, understand, and adapt to such

sudden and unexpected changes. According to the

SBA, 81.7 percent of small businesses (amounting to

over 27 million businesses nationwide) have no employees besides their owner,17 let alone expansive inhouse legal or compliance departments to facilitate

constant adaptation to changing rules, or armies of

lobbyists to continually push for more favorable regimes.

17 Office of Advoc., U.S. Small Bus. Admin.,

Frequently Asked

Questions (Mar. 2023), https://advocacy.sba.gov/wp-content/uploads/2023/03/Frequently-Asked-Questions-About-Small-Business-March-2023-508c.pdf.

II.

The majority rule, as urged by the government, only curbs the most disruptive

judicial remedies, leaving in place other

possibilities for relief.

The well-established understanding of the APA’s

time bar for facial challenges has helped provide certainty for businesses and government—certainty that

particularly benefits small businesses. Petitioner is

asking this Court to undermine that certainty by exposing decades of settled regulations to belated judicial review and asking this Court to bless the use of

the judiciary’s most disruptive tools—injunctions and

vacaturs—against previously settled rules.

Injunctions against, or vacaturs of, agency rules

in response to facial challenges can have substantial

immediate effects that give businesses and agencies

little-to-no time to adapt, even where more modest

changes to agency policy may be desirable or legal. For

example, in Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010), this Court reviewed the vacatur

of an Animal Plant Health Inspection Service

(APHIS)’s decision to deregulate a type of genetically

engineered alfalfa called “RRA.”). In that case, the effect of the District Court’s decision that APHIS’s deregulation was improper for failure to prepare an Environmental Impact Statement was that “virtually no

RRA can be grown or sold until such time as a new

deregulation decision is in place.” Id. at 164. That disruptive status quo—the wholesale withdrawal of a

crop from the market—persisted until APHIS issued

a new EIS later that year, clearing renewed sales of

the product early the following year.18 Similarly, in

N.C. v. EPA, 531 F.3d 896, 929–930 (D.C. Cir. 2008),

the D.C. Circuit vacated the EPA’s Clean Air Interstate Rule regulating nitrogen oxide (NOx) and sulfur

dioxide (SO2). This remedy “all but crashed the market in NOx and SO2 credits [] [and] frustrated long

term planning for electric power,”19 and was later itself vacated on rehearing. N.C. v. EPA, 550 F.3d 1176

(D.C. Cir. 2008).

Depending on how these remedies are crafted,

they can create substantial regional variability in regulatory application, as district or circuit courts invalidate regulations within their respective jurisdictions.

Similarly, these remedies may leave regulated entities suddenly subject to a patchwork of state and local

laws that had previously been displaced by a consistent nationwide regulatory regime.

In some cases, a reviewing court may impose nationwide relief, which raises separate concerns. Indeed, members of this Court have already expressed

concerns about the scope and frequency of vacatur as

a remedy, and the granting of nationwide injunctions,

as such decisions can “stymie the orderly review of important questions, lead to forum shopping, render

meaningless rules about joiner and class actions, and

facilitate efforts to evade the APA’s normal rulemaking process.” See, e.g., U.S. v. Tex., 599 U.S. 670, 703

18 U.S. Dept. of Agric. Off. of Commc’ns., USDA Announces Deci-

sion to Fully Deregulate Roundup Ready Alfalfa (Feb. 1, 2011),

https://tinyurl.com/4a4ybc4a.

19 McGuireWoods, Reversal of Fortune: DC Circuit Vacates CAIR

Vacatur (Dec. 23, 2008), https://www.mcguirewoods.com/clientresources/alerts/2008/12/reversal-of-fortune-dc-circuit-vacatescair-vacatur/.

(2023) (Gorsuch, J., concurring). These concerns are

amplified in the context of late challenges to

longstanding regulations, inviting challengers to develop legal strategies that could last years across multiple judicial fora, and reducing the incentive to ever

shift focus from litigation to the APA’s normal rulemaking process. This Court should decline Petitioner’s invitation to dramatically widen the playing

field for challenges that seek such disruptive relief.

The particular facts of this case effectively illustrate how new retroactive facial challenges can create

damaging uncertainty for businesses. While many

small businesses are harmed by high interchange fees

charged by financial institutions,20 a victory for the

petitioner in this case would not provide swift or certain relief. As the government noted in its brief opposing certiorari, Petitioner seeks to enjoin the Federal

Reserve’s current standards for reasonable and proportional interchange fees—the “immediate effect” of

which “would be to leave interchange fees unregulated, potentially subjecting petitioners” (and every

other retailer in the United States) “to higher fees

than it currently pays.” Br. for Resp’t in Opp’n at 23;

see also Resp. Br. at 5 (noting that the D.C. Circuit in

2014 had declined to vacate Regulation II to avoid

such effects).

Indeed, data maintained on interchange fees by

the Federal Reserve shows that many interchange

fees currently exempted from Regulation II are

roughly three times higher than their covered

20 And, indeed, amici take no position here on the wisdom of Reg-

ulation II.

counterparts.21 Prior to Regulation II, these two classes of transactions had similar rates;22 enjoining the

application of Regulation II may well return interchange fees to the 2011 status quo, sharply increasing

fees charged to retailers for these transactions until

the Federal Reserve manages to finalize a replacement rule. Small businesses could be subjected to a

years-long waiting period for new rules, during which

they may pay even higher interchange fees in hopes

that a more favorable replacement regulation would

result from a new rulemaking and take effect over

whatever litigation from the financial industry may

follow.

The resulting fluctuations in interchange fees

would likely complicate small businesses’ contractual

relationships and operations in myriad ways. For example, the U.S. Chamber of Commerce recommends

that merchants take a number of operational steps to

minimize the financial burden of interchange fees,

such as selecting credit card processors with surcharge programs, implementing customer discounts

for cash purchases (or a convenience fee for card purchases), settling transactions daily to guarantee the

lowest rates, collecting more customer ID verification

information at the point of sale, or implementing

21 See Average Debit Card Interchange Fee by Payment Card Net-

work, Bd. Of Governors of the Fed. Rsrv. Sys. (last updated Oct.

25,

2023),

https://www.federalreserve.gov/paymentsystems/regii-average-interchange-fee.htm (“dual message”

fees).

22 See id.

various best practices for fraud detection.23 Following

these recommendations may become more urgent if

interchange fees suddenly spike, and may involve investing time and resources to change vendor contracts, re-train employees, purchase new technologies,

or redesign daily workflows.

But uncertainty about the timeline for a replacement rule, and about its substance, will make it more

difficult for small businesses to predict the return on

any investments of time or resources that they might

make to minimize interchange fees. And re-tooling a

business to keep up with oscillating interchange rates

will compete for a business owner’s focus and resources with core tasks like developing new products,

hiring employees, or improving customer service. For

many of the reasons described in the previous section,

the effects of this sort of uncertainty will have disproportionately harmful effects on smaller businesses,

who have fewer resources (such as easy access to finance, well-resourced lobbyists, or sophisticated legal

and compliance departments) to minimize the harmful effects of uncertainty on their businesses’ trajectories. Small businesses would be ill-served by an interpretation of the APA that would open up decades of

legacy regulations to such destabilizing changes.

Importantly, declining Petitioner’s invitation to

expand the six-year time window for bringing facial

challenges would not leave regulated entities without

recourse to challenge or change regulations they

23 Jessica Elliott, 10 Ways to Reduce Your Credit Card Processing

Fees, U.S. Chamber of Comm. (Sept. 13, 2023),

https://www.uschamber.com/co/run/finance/how-to-reduce-credit-card-processing-fees.

question. Regulated entities would always be permitted to challenge regulations as applied to them. If they

still seek broader changes to the regulatory regime,

they have the power to lobby Congress for legislative

changes, seek new rulemakings or interpretive guidance from agencies, and work to elect political leaders

sympathetic to their preferred policy changes. And all

of these tools are more likely to result in more gradual,

factually rigorous, consensus-driven, and politically

responsive policy changes to longstanding regulatory

regimes, with more flexibility in implementation,

than the blunt instrument of facial challenges and regional or nationwide injunctions or vacatur of existing

regulations.

III.

Petitioner’s approach would facilitate jurisdictional mischief without meaningfully advancing useful judicial review.

While amici strongly believe that this Court

should not adopt Petitioner’s destabilizing approach

to the APA, amici also recognize that regulatory certainty is not this Court’s only consideration, and in

some cases judicial review may be necessary to safeguard other important values. This is not one of those

cases. The Petitioner’s approach would not meaningfully advance useful judicial review under the APA,

and would instead merely create a new tool for litigants to engage in needless gamesmanship and abuse

of the judicial process.

The APA is primarily a check on the government’s

decision-making process. The Court has repeatedly

cautioned that, for example, arbitrary and capricious

review under the APA must focus only on the administrative record before an agency at the time they

made its decision. Citizens to Pres. Overton Park, Inc.

v. Volpe, 401 U.S. 402, 420 (1971). And a party harmed

by an agency’s decision generally may not seek review

of extra-record evidence in evaluating the decision. Cf.

Camp v. Pitts, 411 U.S. 138, 142 (1973) (judicial review of an agency decision could not invite petitioners

to present “any other relevant evidence,” as doing so

would improperly “put aside the extensive administrative record already made and presented to the reviewing court.”).

The APA provides a snapshot-in-time review of

the agency’s decision-making and affords potential

plaintiffs six years in which to bring a challenge to

those decisions. For those six years and forever afterwards, the record subject to judicial review remains

exactly the same—that which was before the agency

at the time of its decision. No facts developed after or

outside that record—such as experience gained from

the regulation’s implementation or later developed

scientific knowledge—are considered legally relevant

to evaluating the agency’s decision under the APA.

Extending that review period indefinitely past six

years does not meaningfully advance or serve the

APA’s purposes.

Instead, the primary effect of an indefinite review

period would be to allow entities opposed to certain

regulations to test a variety of different venues and an

ever-evolving judicial landscape in search of a vacatur

decision. Under Petitioner’s proposed rule, one could

imagine a homeowner who moves into a new neighborhood near an infrastructure project that was once

subject to NEPA review deciding to re-litigate a yearsold environmental impact statement; new industries

like cryptocurrency seeking to invalidate legacy financial regulations because their business model is

predicated on avoiding existing legal regimes; a new

consumer advocacy organization calling into question

whether the Food & Drug Administration has been legally approving food additives since 2016, see Ctr. For

Food Safety v. Becerra, 565 F.Supp.3d 519 (S.D.N.Y.

2019) (upholding an FDA regulation creating a

streamlined process for introduction of food additives

generally recognized as safe into the market); or a new

environmental non-profit or energy company seeking

to invalidate the Environmental Protection Agency’s

clarifying guidance on how it will apply clean air regulations in the event of a circuit split. See Nat’l Env’t

Dev. Assoc.’s Clean Air Project v. EPA, 891 F.3d 1041

(D.C. Cir. 2018).

These concerns are not theoretical.24 This case exists in its current form only because two trade

24 One amicus brief filed in support of Petitioner argued that con-

cerns about “litigation abuse” should be treated as speculative,

because the Sixth Circuit’s decision in Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Circ. 2015), has not given rise to a large volume

of similar attempts to evade the APA’s statute of limitations. See

Br. of National Federation of Independent Business Small Business Legal Center, Inc. et al. at 21-22. But this argument is far

from conclusive, as the rule announced in Herr (and contemplated by Petitioner) has not been adopted in any other Circuit,

including the D.C. Circuit, the most frequent forum for APA

cases. Indeed, even within the Sixth Circuit, District Courts have

not consistently embraced an expansive interpretation of Herr’s

approach, meaning the predictive power of litigation post-Herr is

limited. See, e.g., Linney’s Pizza, LLC v. Bd. of Governors of Fed.

Rsrv. Sys., 3:22-cv-00071-GVFT, 2023 WL 6050569 at *3 (E.D.

Ky. Sep. 15, 2023) (rejecting a challenge to Regulation II similar

to the one in this case by a company that was not incorporated

until 2021 because “it is evident that [Herr] involved an as-applied challenge” and so did not control the APA’s statute of limitations for facial challenges.).

associations, which were aware of and commented on

a proposed regulation in 2011, inexplicably declined to

litigate that regulation for a decade after it was finalized. See Pet. App.3–4, 22–23. Faced with the prospect

of dismissal for failing to diligently litigate their

claims, these trade associations amended their claims

to substitute a recently-incorporated member corporation as the lead plaintiff in their lawsuit. See Pet.

App.23–24.

Importantly, the exact arguments these trade associations and their member corporation raise on the

merits were already litigated, in timely fashion, by

other similarly-situated trade associations and retailers. See NACS v. Bd. of Governors of Fed. Rsrv. Sys.,

746 F.3d 474, 479 (D.C. Cir. 2014), and this Court denied certiorari to review that result, NACS v. Bd. of

Governors of Fed. Rsrv. Sys., 574 U.S. 1121 (2015).

Even after that point, the trade associations in this

case had at least another two years to file their own

challenge before the six year statute of limitations

ran, and did not do so. While Petitioner argues that

the government’s interpretation of the APA “leaves no

meaningful avenue for judicial review of APA claims

for parties like Corner Post,” Pet’r’s Br. at 31, the record in this case shows precisely the opposite—parties

making the same arguments as Corner Post obtained

judicial review of these claims in federal court. The

arguments were tested unsuccessfully. In the time

since, businesses have adapted to the rule and continued to do business.

Notably, the courts below found that there were

no grounds to excuse the trade associations’ failures

to diligently pursue their rights and declined to find

them eligible for equitable tolling of the APA’s time

bar. Pet. App.14–15. This Court should not endorse

their workaround of the APA’s time bar, particularly

for claims that were already fully and diligently litigated in another Federal Court of Appeals.

This Court has often cautioned against adopting

rules of review that are more likely to facilitate jurisdictional gamesmanship than promote efficient and

evenhanded administration of the law. See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013)

(plaintiffs “cannot manufacture standing merely by

inflicting harm on themselves based on their fears of

hypothetical future harm that is not certainly impending;” otherwise, “an enterprising plaintiff would

be able to secure a lower standard for Article III

simply by making an expenditure based on a nonparanoid fear.”); Penn. v. N.J., 426 U.S. 660, 664 (1976)

(declining to find standing where the plaintiff’s injuries were “self-inflicted, resulting from decisions by

their respective state legislatures.”); TransUnion LLC

v. Ramirez, 594 U.S. 413 (2021) (Congressionally-created causes of action do not by themselves create Article III standing). It should again decline to encourage such gamesmanship here, particularly given the

destabilizing effects that virtually unlimited retroactive review could have when coupled with potential

shifts in administrative law jurisprudence. See Loper

Bright Enters. v. Raimondo, 45 F.4th 359 (D.C. Cir.),

cert. granted, 143 S.Ct. 429 (2023) (No. 22-451);, Relentless Inc. v. Dep’t of Comm., 62 F.4th 621 (1st Cir.),

cert. granted, 2023 WL 6780370 (2023) (No. 22-1219)

(considering whether to overrule standard of review

established in Chevron U.S.A., Inc. v. Nat. Res. Def.

Council, 467 U.S. 837 (1984)); see also Tex. v. Nuclear

Regul. Comm’n, 78 F.4th 827 (5th Cir. 2023), N.C.

Coastal Fisheries Reform Grp. v. Capt. Gaston LLC,

76 F.4th 291 (4th Cir. 2023), Dep’t of Fish and Game

v. Fed. Subsistence Bd., No. 3:20-cv-00195-SLG, 2023

WL 7282538 (D. Ala. Nov. 3, 2023), W.V. by and

through Morrissey v. U.S. Dep’t of Treasury, 59 F.4th

1124 (11th Cir. 2023), Chamber of Comm. of U.S.A. v.

Consumer Fin. Prot. Bureau, No. 6:22-cv-00381, 2023

WL 5835951 (E.D. Tex. Sep. 8, 2023), Tex. v. Biden,

No. 6:22-CV-00004, 2023 WL 6281319 (S.D. Tex.

2023), Louisiana v. Biden, 55 F.4th 1017 (5th Cir.

2022) (lower courts vacating or enjoining various regulatory actions based on the Major Questions Doctrine).

While well-resourced large corporations may be

able to withstand, or even cheer, the adoption of a rule

that would facilitate more frequent disruptions to

longstanding regulatory regimes, small businesses, by

and large, must adapt to the regulatory regimes in

which they find themselves. A rule of review inviting

frequent, needless disruptions to those regimes would

be extraordinarily harmful to the needs of American

small businesses. Particularly given the underlying

facts of this case, this Court should reject Petitioner’s

destabilizing approach, and instead encourage timely

and diligent litigation of APA claims.

CONCLUSION

The Court should affirm the judgment of the

Eighth Circuit Court of Appeals.

Respectfully submitted.