Reply 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

REPLY BRIEF FOR PETITIONER

Stephanie A. Martz

NATIONAL RETAIL

FEDERATION

1101 New York Ave., NW

Suite 1200

Washington, DC 20005

Tyler R. Green

Counsel of Record

CONSOVOY MCCARTHY PLLC

222 S. Main St., 5th Fl.

Salt Lake City, UT 84101

(703) 243-9423

tyler@consovoymccarthy.com

Bryan Weir

Frank H. Chang*

Seanhenry VanDyke*

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

January 12, 2024

*Supervised by principals of

the firm who are members of

the Virginia bar.

Counsel for Petitioner

i

TABLE OF CONTENTS

Table of Cited Authorities.......................................... ii

Introduction ................................................................. 1

Argument ..................................................................... 2

I. The statute of limitations for APA claims does

not start until a plaintiff can sue under §702......2

A. Because §2401(a) is an accrual-based

limitations period, it starts only when a

plaintiff has a “complete and present cause

of action.”.............................................................2

B. An APA claim is not complete and present

until the plaintiff “suffer[s] legal wrong” or is

“adversely affected or aggrieved” by agency

action. ................................................................ 11

II. Policy considerations support starting

§2401(a)’s limitations period when APA

plaintiffs are first injured by final agency

action. .................................................................. 16

Conclusion ................................................................. 25

ii

Cases

TABLE OF CITED AUTHORITIES

Abbott Lab’ys v. Gardner,

387 U.S. 136 (1967) ....................................... 16, 18

Adamo Wrecking Co. v. United States,

434 U.S. 275 (1978) ............................................. 23

Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp.,

522 U.S. 192 (1997) ................................. 4, 7, 8, 12

Block v. Cmty. Nutrition Inst.,

467 U.S. 340 (1984) ............................................. 13

Cada v. Baxter Healthcare Corp.,

920 F.2d 446 (7th Cir. 1990) .................................5

Citizens for Resp. & Ethics in Washington v. NARA,

No. 20-739, 2021 WL 950142 (D.D.C. Mar. 12,

2021) .................................................................... 20

Coal River Energy, LLC v. Jewell,

751 F.3d 659 (D.C. Cir. 2014) ................... 6, 19, 24

Crown Coat Front Co. v. United States,

386 U.S. 503 (1967) ..................................... 7, 8, 10

CRST Van Expedited, Inc. v. EEOC,

578 U.S. 419 (2016) ............................................. 17

CTIA-Wireless Ass’n v. FCC,

466 F.3d 105 (D.C. Cir. 2006) ............................. 23

Darby v. Cisneros,

509 U.S. 137 (1993) ....................................... 13, 16

Dir., Off. of Workers’ Comp. Programs, Dep’t of Lab.

v. Newport News Shipbuilding & Dry Dock Co.,

514 U.S. 122 (1995) ............................................. 12

iii

Franconia Assocs. v. United States,

536 U.S. 129 (2002) ..................................... 8, 9, 10

Gabelli v. SEC,

568 U.S. 442 (2013) ......................................... 3, 11

Goeway v. United States,

612 F.2d 539 (Ct. Cl. 1979) ...................................5

Graham Cnty. Soil & Water Conservation Dist. v.

U.S. ex rel. Wilson, 545 U.S. 409 (2005)........... 7, 8

Green v. Brennan,

578 U.S. 547 (2016) ...............................................8

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) ............................................... 10

Herr v. U.S. Forest Service,

803 F.3d 809 (6th Cir. 2015) ..................... 3, 13, 17

Holland v. Florida,

560 U.S. 631 (2010) ...............................................5

JEM Broadcasting Co. v. FCC,

22 F.3d 320 (D.C. Cir. 1994) .................................6

Johnson v. United States,

544 U.S. 295 (2005) ...............................................8

Little Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 140 S.Ct. 2367 (2020).................. 19

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................. 22

Lujan v. Nat’l Wildlife Federation,

497 U.S. 871 (1990) ............................................. 13

Merck & Co. v. Reynolds,

559 U.S. 633 (2010) ............................................. 21

iv

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ............................................. 11

Oklahoma v. Castro-Huerta,

142 S.Ct. 2486 (2022) ............................................1

PDR Network, LLC v Carlton & Harris Chiropractic,

Inc., 139 S.Ct. 2051 (2019)...................... 18, 22, 23

Pennsylvania Department of Public Welfare v. HHS,

101 F.3d 939 (3d Cir. 1996) ................................ 21

Porter v. CIA,

579 F. Supp. 2d 121 (D.D.C. 2008) ..................... 16

Reading Co. v. Koons,

271 U.S. 58 (1926) .................................................8

Reiter v. Cooper,

507 U.S. 258 (1993) ...............................................7

Rotkiske v. Klemm,

140 S.Ct. 355 (2019) .......................... 1, 3, 6, 24, 25

Smith v. City of Jackson, Miss.,

544 U.S. 228 (2005) ...............................................9

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ............................................. 19

U.S. Steel Corp. v. EPA,

595 F.2d 207 (5th Cir. 1979) ............................... 19

United States v. Lippitt,

100 U.S. 663 (1879) ...............................................3

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,

139 S.Ct. 361 (2018) ............................................ 24

WJG Tel. Co. v. FCC,

675 F.2d 386 (D.C. Cir. 1982) ............................. 19

v

Statutes

5 U.S.C. §553(c) ......................................................... 19

5 U.S.C. §702 ........................... 2, 12, 13, 14, 15, 16, 17

5 U.S.C. §704 ....................................................... 12, 13

28 U.S.C. §2344 ......................................................... 15

28 U.S.C. §2401(a) .......... 1-8, 10, 11, 12, 14, 15, 16, 21

28 U.S.C. §2501 ....................................................... 8, 9

30 U.S.C. §1276(a)(1) ..................................................6

44 U.S.C. §3101 ......................................................... 20

Other Authorities

1 A. Burrill, A Law Dictionary and Glossary

(1850) .....................................................................3

Nat’l Archives, Appraisal Policy (Sept. 2007) .......... 20

U.S.Br., Health Care Serv. Corp. v. Pollitt (No. 0938), 2010 WL 360215 (Feb. 2010) ....................... 13

U.S.Br., Mach Mining, LLC v. EEOC (No. 13-1019),

2014 WL 5464087 (Oct. 2014) ...................... 13, 14

U.S.Br., U.S. Dep’t of Army v. Blue Fox, Inc. (No. 971642), 1998 WL 541980 (Aug. 1998) .................. 14

1

INTRODUCTION

The government’s arguments confuse what statute this case is about. It’s about 28 U.S.C. §2401(a),

an accrual-based statute of limitations that governs

APA claims. But in trying to construe §2401(a), the

government looks not to its operative text—“first accrues”—but to other limitations periods in statutes

like the Hobbs Act. It does so no fewer than seven

times. See U.S.Br.15, 18, 20, 29, 30, 31, 34. Those

other statutes, however, do not contain the word “accrue.” Rather, Congress specifically started those limitations periods on the date of agency action. Despite

those plain textual differences, the government now

wants this Court to construe §2401(a)’s accrual rule to

work like those limitations periods.

That gets things backwards. Two bedrock rules of

statutory construction confirm that the textual differences mean Congress wanted a different rule for APA

claims than for claims under statutes like the Hobbs

Act. First, “absent provisions cannot be supplied by

the courts,” and doing so is “particularly inappropriate when, as here, Congress has shown that it knows

how to adopt the omitted language or provision.” Rotkiske v. Klemm, 140 S.Ct. 355, 360-61 (2019) (cleaned

up). Second, “Congress expresses its intentions

through statutory text” and, “[a]s this Court has repeatedly stated, the text of a law controls over purported legislative intentions unmoored from any statutory text.” Oklahoma v. Castro-Huerta, 142 S.Ct.

2486, 2496 (2022). No matter how hard the government tries, it cannot escape Congress’s choice to make

2

§2401(a) an accrual rule. That means standard accrual rules—not date-of-agency-action rules—govern

the limitations period for APA claims.

The rest of the government’s brief, reduced to its

essence, amounts to little more than fearmongering—

a warning that applying §2401(a) according to its text

will unleash a flood of regulatory challenges. The

problem with that argument? The government urged

the exact opposite view when opposing certiorari, saying then that it was “relatively uncommon” for “a person who was not injured when the rule was promulgated [to] become[] injured at a later date.” BIO.11. So

it is. No evidence exists—the government cites none—

that applying §2401(a) according to its text will substantially burden agencies or courts. And if that happens, it’s up to Congress—not this Court—to decide

whether that warrants a new limitations rule. The

Court should reverse the judgment below and hold

that §2401(a)’s clock starts for an APA plaintiff no

sooner than the day a regulation first harms that

plaintiff.

ARGUMENT

I.

The statute of limitations for APA claims

does not start until a plaintiff can sue under

§702.

A. Because §2401(a) is an accrual-based

limitations period, it starts only when

a plaintiff has a “complete and present

cause of action.”

The government and Corner Post agree on this

much: “[A]ll APA suits are subject to Section 2401(a)’s

3

general limitation on claims against the United

States.” U.S.Br.12. But that’s where our agreement

ends. The rest of the government’s brief offers a goodfor-this-case-only view of §2401(a)’s limitations period

that bears no resemblance to modern statutory construction.

1. Under §2401(a), plaintiffs must file their APA

claims “within six years after the right of action first

accrues.” The question presented here is when do APA

claims “first accrue[]” for purposes of §2401(a). And

attempts to “interpret[] limitations provisions” must

“always” “begin by analyzing the statutory language.”

Rotkiske, 140 S.Ct. at 360.

Corner Post did so and explained (Petr.Br.14-17)

that since the nineteenth century—when Congress

first passed the text now recodified in §2401(a), see

Herr v. U.S. Forest Service, 803 F.3d 809, 815-16 (6th

Cir. 2015)—it has been commonly understood that “an

action accrues when the plaintiff has a right to commence it.” 1 A. Burrill, A Law Dictionary and Glossary

17 (1850). This Court’s precedent confirms that general understanding: “In common parlance a right accrues when it comes into existence.” Gabelli v. SEC,

568 U.S. 442, 448 (2013) (citing dictionaries and treatises “from the 19th century up until today”). The

Court has thus interpreted “accrue” in §2401(a)’s predecessors to mean that a “claim” must be filed “within

six years after suit could be commenced thereon

against the government.” United States v. Lippitt, 100

U.S. 663, 668 (1879); Chamber.Br.6-8 (collecting

cases). That also comports with the background inter-

4

pretive principle “that the limitations period commences when the plaintiff has a ‘complete and present

cause of action.’” Bay Area Laundry & Dry Cleaning

Pension Tr. Fund v. Ferbar Corp., 522 U.S. 192, 201

(1997). And “a cause of action does not become ‘complete and present’ for limitations purposes until the

plaintiff can file suit and obtain relief.” Id.

2. The government, however, all but ignores

§2401(a)’s operative text—“right of action first accrues.” The closest the government comes to analyzing

§2401(a)’s text is an argument halfway through its

brief faulting Corner Post’s rule for being “inconsistent with the second sentence of Section 2401(a).”

U.S.Br.23. On its terms, that does not answer Corner

Post’s arguments (Petr.Br.14-17) about what “first accrues” means, effectively conceding the point.

Nor does Corner Post’s textual analysis of “first

accrues” conflict with §2401(a)’s second sentence.

That sentence tolls the limitations period for “any person under legal disability or beyond the seas at the

time the claim accrues.” 28 U.S.C. §2401(a) (emphasis

added). Even the government agrees: “[T]he direct effect of that sentence is to ‘toll the statute of limitations,’ not to ‘provide an accrual rule.’” U.S.Br.24

(cleaned up).

But the government still insists that under the

second sentence “a claim can ‘accrue[]’ for purposes of

Section 2401(a) at a time when a person … is unable

to ‘sue on that claim’” or “is legally unable to sue.”

U.S.Br.24. That contention simply fails to “distinguish between the accrual of the plaintiff’s claim and

5

the tolling of the statute of limitations.” Holland v.

Florida, 560 U.S. 631, 647 (2010) (quoting Cada v.

Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.

1990)). “Accrual is the date on which the statute of

limitations begins to run.” Cada, 920 F.2d at 450.

“Tolling doctrines stop the statute of limitations from

running even if the accrual date has passed.” Id.

Contrary to the government’s view, a plaintiff under “disability” or “beyond the seas” can “legally” sue

when he is first harmed; his “personal handicap or impediment” simply “prevent[s] him from bringing a

timely suit.” Goeway v. United States, 612 F.2d 539,

544 (Ct. Cl. 1979). So although his claim “accrues,”

Congress has tolled the limitations period until his

impairment ceases. Id. Corner Post, on the other

hand, wasn’t harmed until 2018. Because it was “legally unable to sue” until then, that is when its claim

“first accrue[d].”

3. With no analysis of §2401(a)’s operative text,

what does the government rest its affirmative case on?

This theory: That because Congress has in other statutes—such as the Hobbs Act—adopted limitations periods that expressly run from the date of agency action, this Court should hold that §2401(a)’s accrualbased limitations period also runs from the date of

agency action. See U.S.Br.15-18, 29-31. This theory

flouts bedrock interpretive principles and fails for at

least four reasons.

First, accepting the government’s theory would violate the “fundamental principle of statutory interpretation that absent provisions cannot be supplied by

6

the courts.’” Rotkiske, 140 S.Ct. at 360-61 (cleaned

up). Over two pages of text and a 38-line footnote, the

government identifies 29 examples of limitations periods that run from the “entry” or “promulgation” or

“publication” or “issu[ance]” of an agency action.

U.S.Br.15-16 & n.4. But not one of those 29 statutes

contains the word “accrue.” And §2401(a) does not contain the words “entry” or “promulgation” or “publication” or “issu[ance].”

As a result, reading those absent words into

§2401(a) as the government urges “‘is not a construction of [§2401(a)], but, in effect, an enlargement of it

by the court.” Rotkiske, 140 S.Ct. at 361. Such “[a]textual judicial supplementation is particularly inappropriate when, as here, Congress has shown”—at least

29 times—“that it knows how to adopt the omitted

language or provision.” Id.

The government’s repeated reliance on Coal River

Energy, LLC v. Jewell, 751 F.3d 659 (D.C. Cir. 2014),

fails for the same reason. U.S.Br.29-30, 34, 36 n.9. In

the statute at issue in Coal River, Congress said that

“[a] petition for review of any action … shall be filed

in the appropriate Court within sixty days from the

date of such action.” 30 U.S.C. §1276(a)(1). Because

that limitations period runs from a rule’s promulgation, Coal River sheds no light on what “accrue” means

under §2401(a). So too for JEM Broadcasting Co. v.

FCC, 22 F.3d 320 (D.C. Cir. 1994) (discussing agency

action subject to Hobbs Act).

The government’s second error is a variant of its

first. It contends that because “Congress has rejected”

7

the standard accrual rule “in the Hobbs Act and other

statutes,” that rule should not apply to §2401(a).

U.S.Br.30. But that is not how the standard accrual

rule works. Only if “Congress has told us otherwise in

the legislation at issue,” Ferbar, 522 U.S. at 201 (emphasis added), will the Court reach the “odd result” of

starting the limitations period before a plaintiff can

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

legislation at issue here is §2401(a)—not the Hobbs

Act or other statutes. And nothing in §2401(a) indicates that Congress wanted its accrual-based limitations period to start before a plaintiff could sue. In

fact, this Court already stated that Congress intended

the opposite with §2401(a). See Crown Coat Front Co.

v. United States, 386 U.S. 503, 514 (1967).

Third, the government asks for a special exemption from the Court’s background accrual rules. The

government acknowledges (U.S.Br.25-32) that the

Court has “repeatedly recognized that Congress legislates against the ‘standard rule that the limitations

period commences when the plaintiff has a complete

and present cause of action.’” Graham Cnty. Soil &

Water Conservation Dist. v. U.S. ex rel. Wilson, 545

U.S. 409, 418 (2005). But those precedents shouldn’t

apply here, the government contends, because they

are “accrual rules” from “different contexts.”

U.S.Br.25. “None of those decisions involved administrative-law claims like the one at issue here.”

U.S.Br.26 & n.8.

That argument can’t clear the starting blocks.

Crown Coat itself was an administrative-law case. It

8

applied §2401(a) to a dispute over whether an equitable contract adjustment “was arbitrary, capricious, or

not supported by substantial evidence.” 386 U.S. at

513. And the Court applied the presumption that a

limitations period cannot start before a plaintiff can

sue. A contrary outcome was “not an appealing result,

nor in [the Court’s] view, one that Congress intended.”

Id. at 514.

Beyond that, the government errs by suggesting

that the Court has applied the “standard rule” only in

narrow circumstances. U.S.Br.26, 28. The Court has

applied it to ERISA claims, Ferbar, 522 U.S. at 201; to

claims under the False Claims Act, Graham Cnty.,

545 U.S. at 419; to Title VII claims, Green v. Brennan,

578 U.S. 547, 554-55 (2016); and to an inmate’s collateral attack on his sentence, Johnson v. United States,

544 U.S. 295, 305 (2005), among others, U.S.Br.26 n.8.

This breadth of contexts only further underscores that

the government is seeking a special rule just for it. 1

And this Court has already said that the phrase

“first accrues” does not “create[] a special accrual rule

for suits against the United States.” Franconia Assocs. v. United States, 536 U.S. 129, 145 (2002). Section 2501(a) uses that exact language for other claims

1 The government also misreads Reading Co. v. Koons, 271

U.S. 58 (1926). Reading followed the standard rule, holding that

the limitations period for a wrongful-death claim accrued on the

decedent’s death because the cause of action really belonged to

the beneficiaries: “At the time of death there are identified persons for whose benefit the liability exists and who can start the

machinery of law in motion to enforce it.” Id. at 62.

9

against the United States. 28 U.S.C. §2501. In Franconia the government argued that “the ‘first accrues’

qualification ensures that suits against the United

States are filed on ‘the earliest possible date,’ thereby

providing the Government with ‘reasonably prompt

notice.’” 536 U.S. at 144 (internal citation omitted).

This Court disagreed, finding that text “unexceptional: A number of contemporaneous state statutes of

limitations applicable to suits between private parties

also tie the commencement of the limitations period to

the date a claim ‘first accrues.’” Id. at 145. And the

Court said that “limitations principles should generally apply to the Government ‘in the same way that’

they apply to private parties.” Id.

Undeterred, the government repeats its Franconia arguments here. The government wants “prompt

resolution of disputed issues.” U.S.Br.15. And it

thinks its policy arguments “have special force in the

context of challenges to agency action,” which is a “distinct context.” U.S.Br.17, 26. So, the government contends, it deserves a different rule than “whatever the

usual accrual rule may be in suits between private

parties.” U.S.Br.29.

Adopting those arguments here after rejecting

them in Franconia would flout the longstanding rule

“that when Congress uses the same language in two

statutes having similar purposes … it is appropriate

to presume that Congress intended that text to have

the same meaning in both statutes.” Smith v. City of

Jackson, Miss., 544 U.S. 228, 233 (2005). Franconia

forecloses the government’s view that it deserves spe-

10

cial rules for claims against it. Franconia also forecloses the argument that §2401(a) should be read narrowly because it is a waiver of sovereign immunity.

U.S.Br.32; see Petr.Br.24.

Finally, the government’s rule would result in the

meaning of “accrue” changing based on the type of underlying claim. According to the government, “accrue”

in §2401(a) could take its established meaning

“[o]utside of the administrative-law context,” but

mean something entirely different when applied to

“facial challenges to agency regulations.” U.S.Br.31.

But nothing in §2401(a)’s text suggests that the meaning of “accrue” varies based on the nature of the claim

subject to it. Instead, the government’s theory (again)

invokes what “Congress has enacted” in separate “special judicial-review schemes governing discrete categories of agency action” and pleads with this Court to

“[a]pply[] that same approach” to §2401(a). U.S.Br.15;

see also, e.g., U.S.Br.31 (“consideration of more specific review provisions”). No case from this Court, however, supports that rudderless approach to construing

“accrue” in §2401(a). Contrary to the government’s

suggestion, U.S.Br.28, 31, Crown Coat did the opposite and adopted Corner Post’s view by holding that

§2401(a)’s limitations period starts only once a plaintiff can sue. 386 U.S. at 514. At bottom, then, the government’s theory is that “any result consistent with

[its] account of the statute’s overarching goal must be

the law.” Henson v. Santander Consumer USA Inc.,

582 U.S. 79, 89 (2017). Not so.

11

*****

Corner Post doesn’t want “to delay the running of

Section 2401(a)’s limitations period” (U.S.Br.10) or a

“delayed-accrual approach” (U.S.Br.31). It only wants

this Court to interpret §2401(a) like every other accrual statute. The government’s few additional reasons why the Court should interpret “accrue” in

§2401(a) differently than it has interpreted “accrue”

in every other statute do not change that. Perhaps

“[k]eying the deadline for seeking judicial review to

the date on which the challenged agency action occurs” does “serve[] important purposes.” U.S.Br.17.

And Congress might well have wanted to serve those

purposes when it enacted other limitations periods expressly tied to the date of agency action. U.S.Br.29-31.

But in the APA, “Congress chose not to do so.” Nat’l

Ass’n of Mfrs. v. Dep’t of Def., 583 U.S. 109, 128 (2018).

That irrefutable textual difference amply justifies rejecting the discredited purpose-driven, “functional interpretive approach” the government invokes. Id. The

Court should “decline[] the Government’s invitation to

override Congress’ considered choice by rewriting the

words of the statute.” Id.

B. An APA claim is not complete and present until the plaintiff “suffer[s] legal

wrong” or is “adversely affected or aggrieved” by agency action.

1. Accrual-based statutes of limitations like

§2401(a) do not work in a vacuum. Because “a right

accrues when it comes into existence,” Gabelli, 568

U.S. at 448, an accrual-based limitations period’s

start date depends on the specific underlying claim.

12

Here, §702 provides the cause of action for APA

claims. It entitles a plaintiff “suffering legal wrong” or

“adversely affected or aggrieved by agency action” to

“judicial review thereof.” 5 U.S.C. §702. This Court

has “interpreted §702 as requiring a litigant to show,

at the outset of the case, that he is injured in fact by

agency action.” Dir., Off. of Workers’ Comp. Programs,

Dep’t of Lab. v. Newport News Shipbuilding & Dry

Dock Co., 514 U.S. 122, 127 (1995). An APA plaintiff

thus can “file suit and obtain relief,” Ferbar, 522 U.S.

at 201, only after a regulation harms it. Only then

does §2401(a)’s limitations period start.

2. The government now contends that the APA’s

cause of action arises from 5 U.S.C. §704, and that

§702 is a mere “statutory restriction[] that Congress

has imposed on that cause of action.” U.S.Br.2. Without expressly saying so, the government’s pivot implies that if an APA claim arises from §704, then an

APA claim is complete—meaning §2401(a)’s clock

starts running—upon final agency action alone. The

only problems with the government’s apparent new

view—which it did not press below—are that it contradicts the statutes’ text, this Court’s precedent, and

the government’s prior arguments to this Court.

Start with the statutes’ text. Section 702 is titled

“[r]ight of review” and provides that “[a] person suffering legal wrong because of agency action, or adversely

affected by agency action …, is entitled to judicial review thereof.” 5 U.S.C. §702 (emphasis added). Section 704, in contrast, is titled “[a]ctions reviewable”

and provides that only “[a]gency action made reviewable by statute and final agency action for which there

13

is no other adequate remedy in a court are subject to

judicial review.” 5 U.S.C. §704 (emphasis added). Section 704 is primarily an exhaustion requirement that

prevents a plaintiff “aggrieved” by a “preliminary,

procedural, or intermediate agency action” from filing

a premature challenge. Id. That is why “final agency

action” is a “necessary, but not by itself a sufficient,

ground for stating a claim under the APA.” Herr, 803

F.3d at 819.

Next review this Court’s cases. They repeatedly

recognize §702 as “a general cause of action” for those

“‘adversely affected or aggrieved by agency action.’”

Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345

(1984) (quoting 5 U.S.C. §702); Lujan v. Nat’l Wildlife

Federation, 497 U.S. 871, 882-83 (1990) (outlining the

elements of §702’s cause of action). In other words,

§702 “provides the general right to judicial review of

agency actions under the APA.” Darby v. Cisneros, 509

U.S. 137, 146 (1993). In turn, this Court has recognized that §704 requires the “‘agency action’ in question must be ‘final agency action.’” Lujan, 497 U.S. at

882; see also Darby, 509 U.S. at 146 (stating that §704

“establishes when such review [under §702] is available”).

Finally, the government’s prior briefs in this

Court have argued that the “APA … provide[s] a cause

of action to persons aggrieved by final agency action.

5 U.S.C. 702.” U.S.Br. 13, Health Care Serv. Corp. v.

Pollitt (No. 09-38), 2010 WL 360215 (Feb. 2010) (Kagan, S.G.). That’s no accident; government briefs over

the last twenty-five years repeatedly say the same

thing. See, e.g., U.S.Br. 34, Mach Mining, LLC v.

14

EEOC (No. 13-1019), 2014 WL 5464087 (Oct. 2014)

(Verrilli, S.G.) (identifying §702 as a “cause of action”);

U.S.Br. 42, U.S. Dep’t of Army v. Blue Fox, Inc. (No.

97-1642), 1998 WL 541980 (Aug. 1998) (Waxman,

S.G.) (identifying §702 as the APA’s “cause of action”).

The upshot? The government’s ipse dixit here does

nothing to undermine the textual conclusion—borne

out by precedent and the government’s own prior

briefing—that §702 provides the “right of action” to

discern when an APA challenge “first accrues.” 28

U.S.C. §2401(a). And §702 means what it says: APA

claims cannot accrue before a plaintiff is injured or aggrieved by final agency action.

3. The government offers just two brief textual arguments on §702 itself. First, the government points

out that statutes like the Hobbs Act have an “aggrieve[ment]” requirement too. U.S.Br.21. “Congress

thus has perceived no inconsistency between requiring a party-specific showing of aggrievement and

treating the date of the challenged agency action as

triggering the limitations period for all plaintiffs.” Id.

But this argument conflates a cause of action with a

limitations period, and (again) ignores the intentional

textual differences between §2401(a) and statutes like

the Hobbs Act.

Unlike the APA, the statutes the government cites

house both the cause of action and the limitations period. The Hobbs Act, for example, provides the cause

of action: “Any party aggrieved by the final order may

… file a petition to review the order in the court of

15

appeals.” 28 U.S.C. §2344. And it provides the limitations period: Filing must occur by “60 days after [the

final order’s] entry.” Id. The “aggrievement” requirement appears in the cause of action, not the limitations period. Because the Hobbs Act’s limitations period is expressly tied to the agency action, the cause of

action’s “aggrievement” requirement plays no role in

when that limitations period starts.

The APA works differently. Like the Hobbs Act,

its cause of action has an “aggrievement” requirement. 5 U.S.C. §702. But unlike the Hobbs Act (and

the government’s other examples), its limitations period is not tied to the date of agency action. Instead,

Congress tied it to when the “right of action first accrues.” 28 U.S.C. §2401(a). That link between claim

accrual and the date a party is “aggrieved” means no

one can know the date of the former without first

knowing the date of the latter. See supra 11-12. Again,

Congress could have adopted an APA limitations period that runs like the Hobbs Act’s. But it chose an

accrual-based rule instead.

The government’s second argument about §702’s

text fares no better. U.S.Br.21-23. It begins by pointing to §702’s text that “[n]othing herein … affects

other limitations on judicial review.” It then argues

(correctly) that §2401(a) is a “limitation on judicial review.” U.S.Br.22. But the conclusion the government

tries to draw—that §2401(a)’s accrual rule cannot be

tied to §702’s aggrievement requirement because §702

itself would then “affect[]” §2401(a)—does not follow.

16

To start, Congress added the “[n]othing herein”

proviso when it amended the APA in 1976 to “eliminat[e] the defense of sovereign immunity in APA

cases.” Darby, 509 U.S. at 152. The phrase was meant

to ensure that “[t]he elimination of the defense of sovereign immunity did not affect any other limitation on

judicial review that would otherwise apply under the

APA.” Id. It was not meant to alter §2401(a)’s standard accrual rule or §702’s aggrievement requirement.

Perhaps more to the point, the APA does not alter

how §2401(a) works. Like all accrual-based limitations periods, §2401(a) starts running when a plaintiff

has a “complete and present cause of action” and can

sue. Supra 2-4. That analysis necessarily turns on the

underlying cause of action. For example, a FOIA

“cause of action first accrues when the plaintiff has

actually or constructively exhausted his administrative remedies and therefore ‘can institute and maintain a suit in court.’” Porter v. CIA, 579 F. Supp. 2d

121, 126 (D.D.C. 2008). That doesn’t mean a FOIA

claim somehow “affects” how 28 U.S.C. §2401(a)

works. It is an application of that statute of limitations. So too with §702 claims and §2401(a).

II. Policy considerations support starting

§2401(a)’s limitations period when APA

plaintiffs are first injured by final agency

action.

The government does not openly dispute this

Court’s teachings that the APA “embodies the basic

presumption of judicial review,” Abbott Lab’ys v.

Gardner, 387 U.S. 136, 140 (1967) (citing 5 U.S.C.

17

§702), and that the APA’s “‘generous review provisions’ must be given a ‘hospitable’ interpretation,” id.

at 141. But almost every one of the government’s policy arguments contradicts those principles.

A. The government primarily worries that ruling

against it will “impose substantial burdens on agencies and reviewing courts” and “allow a far broader set

of potential plaintiffs to pursue belated challenges to

agency regulations.” U.S.Br.39-40. That represents a

“change[]” in the government’s “argument between

the certiorari and merits stages.” CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 434 (2016). In opposing certiorari, the government told the Court that

it is a “relatively uncommon … circumstance where a

person who was not injured when the rule was promulgated becomes injured at a later date.” BIO.11 (emphasis added and parenthesis removed). The Court

should see this opportunistic change of heart for what

it is.

As the government’s original position implicitly

acknowledges, most APA challenges “involve[] settings in which the right of action happened to accrue

at the same time that final agency action occurred.”

Herr, 803 F.3d at 819-20. That will still be true under

Corner Post’s rule. And experience has shown that

challenges like Corner Post’s will remain “relatively

uncommon.” It has been almost ten years since the

Sixth Circuit rejected the government’s preferred accrual rule in Herr, yet there has been no escalation in

challenges to old regulations in that circuit.

NFIB.Br.21-22. And the government doesn’t dispute

18

that rules governing standing, alter egos, and equitable defenses will stop end-runs around expired limitations periods. See Petr.Br.38-40.

B. The government’s remaining policy complaints

purport to show examples of its flawed overarching

premise—how ruling for Corner Post will substantially burden agencies and reviewing courts.

U.S.Br.39-46. Those examples fail on their own terms

too.

1. The government laments that siding with Corner Post “would give every newly aggrieved regulated

party a six-year window for pursing such a challenge,

whether or not that entity is ever actually made a defendant in an enforcement action.” U.S.Br.40. But the

government lost that battle in Abbott Labs. The “key

aim of [that] decision … was to expand the opportunities for judicial review by allowing both facial, pre-enforcement challenges and as-applied challenges to

agency action.” PDR Network, LLC v Carlton & Harris Chiropractic, Inc., 139 S.Ct. 2051, 2060 (2019) (Kavanaugh, J., concurring in the judgment). The question presented here gives this Court no basis to revisit

Abbott Labs, no matter how much the government

would like to do so.

2. The government also worries that adopting Corner Post’s rule will open the doors to substantive and

procedural attacks on agency rules more than six

years after they become final. See U.S.Br.41 (collecting cases). Even under Corner Post’s rule, however,

the procedural attacks mentioned in the government’s

cases will likely still be barred six years after a rule

19

becomes final. Such “procedural” challenges address

“the method used in promulgating the regulation,

such as that it was issued without adequate notice, or

that the government inadequately responded to comments.” Coal River, 751 F.3d at 664. Those types of

procedural failures necessarily harm only those parties that could have participated in that process.

For example, “[t]he function of notice and comment rulemaking is to give interested parties ‘an opportunity to participate’ in the rulemaking process,”

WJG Tel. Co. v. FCC, 675 F.2d 386, 389 (D.C. Cir.

1982); 5 U.S.C. §553(c). It “is designed to ensure that

affected parties can influence agency decision making

at an early stage.” U.S. Steel Corp. v. EPA, 595 F.2d

207, 214 (5th Cir. 1979). If an agency ignores that requirement, existing members of the public suffer a

“procedural” injury because “they have been denied

the ability to file comments.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009).

But it is hard to see how nonexistent entities could

be deemed “interested parties” whose procedural

rights were violated. They cannot “demonstrat[e] that

they experienced any harm” because they could not

have submitted comments. Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 140 S.Ct.

2367, 2385 (2020). What’s more, nonexistent parties

cannot satisfy the APA’s harmless error rule because

nothing would change for them had the agency acted

properly; again, they still could not have submitted

comments. Id.

20

That fact also answers the government’s concerns

that “procedural challenges to agency actions taken

decades ago would also create a[n] … evidentiary

problem.” U.S.Br.44. And even if procedural objections could proceed after six years, any evidentiary

problems would be the agency’s own making for disregarding its obligations under the Federal Records Act.

Petr.Br.41. The government incorrectly suggests

(without citation) that the Federal Records Act “has

never entailed the permanent retention of all the materials that agencies consider in determining whether

to take particular actions.” U.S.Br.44. Such materials

are precisely the type of records that the Act requires

the government to preserve. See 44 U.S.C. §3101.

Whatever types of “federal records are” properly

“deemed ‘temporary’ and can be destroyed after a certain period approved by the National Archives and

Records Administration,” U.S.Br.44-45, rulemaking

records fall outside that list. The National Archives

has provided “granular categories of records that

should be permanently retained,” including “records

that … ‘[p]rovide evidence of significant policy formulation and business processes of the Federal Government’; and ‘[p]rovide evidence of Federal deliberations, decisions, and actions relating to major social,

economic, and environmental issues.” Citizens for

Resp. & Ethics in Washington v. NARA, No. 20-739,

2021 WL 950142, at *2 (D.D.C. Mar. 12, 2021) (quoting Nat’l Archives, Appraisal Policy §8 (Sept. 2007)).

In particular, the National Archives “seeks to retain

that portion” of records “containing significant documentation of Government activities and essential to

understanding and evaluating Federal actions.” Appraisal Policy §7 (emphasis added). At any rate, this

21

argument has no relevance in cases like this one,

which hinge on the meaning of statutory text and the

scope of agency authority.

3. The government also complains that starting

§2401(a)’s accrual-based limitations period from the

date of injury or aggrievement would “require courts

to perform backward-looking inquiries about when a

plaintiff first became sufficiently aggrieved by agency

action to be entitled to sue.” U.S.Br.43. But courts do

that sort of analysis all the time. The “discovery rule,”

for example, requires courts to look back to discern

when “a plaintiff actually discovers the facts” underlying his claim and “also when a hypothetical reasonably diligent plaintiff would have discovered them.”

Merck & Co. v. Reynolds, 559 U.S. 633, 646-47 (2010).

This Court rejected the notion that such a “discovery

rule” was “too complicated for judges to undertake.”

Id. at 652. That sort of retrospective and “hypothetical” analysis is far more difficult than asking when a

regulation first “aggrieved” a plaintiff.

Undeterred, the government again points to Pennsylvania Department of Public Welfare v. HHS, 101

F.3d 939 (3d Cir. 1996), for support. As Corner Post

already explained (Petr.Br.40-41 n.3), that case addressed ripeness, not when a plaintiff first suffered an

injury. The inquiries are distinct and employ different

analyses. 101 F.3d at 945-46 (outlining the ripeness

factors). And the Public Welfare court had no trouble

pinpointing when the plaintiff in that case was first

“aggrieved” by the agency action. Id. at 947.

22

The government’s real problem is this: As the defendant in APA cases, it wants the limitations period

to start as early as possible—when the injury is “imminent” rather than when it becomes “actual.” Lujan

v. Defs. of Wildlife, 504 U.S. 555, 564 (1992). Yet as

the government seems to acknowledge (U.S.Br.43),

distinguishing between those two moments would be

necessary only in an exceptionally rare case—if the

short time between when an injury matures from “imminent” to “actual” would be outcome determinative.

And in that rare instance—when the limitations period would expire when measured from “imminent” injury but not from “actual” injury—the government has

all the discovery tools it needs to make its case.

4. That leaves a final point on fairness. The government agrees that Corner Post “will never be a defendant” in an enforcement action related to Regulation II because Regulation II does not directly regulate

merchants. U.S.Br.38. The government thinks that

fact makes it “more reasonable, not less, to require petitioner to use the petition-for-rulemaking mechanism.” U.S.Br.38-39. That the government continues

to take this position after previously “acknowledg[ing]

that judicial review may not always be available under that route” is extraordinary. PDR Network, 139

S.Ct. at 2065-66 (Kavanaugh, J., concurring in the

judgment).

Look no further than this case to see why petitioning for a rulemaking is futile. After the Court granted

certiorari, the Board issued an NPRM proposing to

amend Regulation II. The Board has proposed

changes to many parts of the rule, but it apparently is

23

refusing to revisit the part that Corner Post challenges. Petr.Br.10-11; U.S.Br.8. Why the Board is

striving to avoid that part of the rule is no secret: It

wants to avoid changes to the most vulnerable part of

Regulation II that would trigger a new statute of limitations for new challenges under the “reopening” doctrine. See CTIA-Wireless Ass’n v. FCC, 466 F.3d 105,

109-10 (D.C. Cir. 2006). Whether the Board’s gambit

succeeds, it still shows that the Board exercises control over every path to judicial review except this one—

and the Board wants to kill even this one to prevent

Corner Post from receiving its own day in court.

Members of this Court have long highlighted the

unfairness inherent in cutting off all avenues to judicial review this way. See, e.g., Adamo Wrecking Co. v.

United States, 434 U.S. 275, 289-91 (1978) (Powell, J.,

concurring). And “that unfairness raises a serious constitutional issue.” PDR Network, 139 S.Ct. at 2062

(Kavanaugh, J., concurring in the judgment). For example, “[b]arring defendants in as-applied enforcement actions from raising arguments about the reach

and authority of agency rules enforced against them

raises significant questions under the Due Process

Clause.” Id. Those same questions exist here too. Corner Post is subject to Regulation II every day via the

debit-card interchange fees it pays. But the government would have this Court bar Corner Post from

seeking any relief from Regulation II solely because it

did not “exist[] back when [the] agency order was issued.” Id. Not even federal statutes enjoy that kind of

repose. See States.Br.13-19 (explaining how the government’s rule elevates regulations above statutes).

24

Trying to ameliorate that unfairness, the government cites other statutes like the Hobbs Act where

Congress actually cut off facial challenges to some regulations after a specific set time. U.S.Br.33-34. If

those statutes are fair, the government’s argument

goes, then it is fair to foreclose review here. The government’s premise is questionable; even where Congress has expressly cut off facial challenges for “a new

… company that was not in existence at the time the

regulation was promulgated,” that choice is at least

“superficially troubling” and the arguments against

doing so are “by no means insubstantial.” Coal River,

751 F.3d at 662-63. Courts enforce those limits, however, because Congress made that express choice in

the statute. And allowing later facial challenges

would “frustrate Congress’s objective that facial challenges to the regulation be confined to a limited period.” Id. at 663.

But Congress made no such express choice with

APA claims. And because the APA “creates a basic

presumption of judicial review for one suffering legal

wrong because of agency action,” Weyerhaeuser Co. v.

U.S. Fish & Wildlife Serv., 139 S.Ct. 361, 370 (2018)

(cleaned up), the Court should not impose that unfairness on Corner Post when Congress has declined to do

so.

Indeed, “[i]t is not [the Court’s] role to secondguess Congress’ decision to include a[n accrual-based]

provision, rather than a[n] [agency-action based] provision.” Rotkiske, 140 S.Ct. at 361. “The length of a

limitations period ‘reflects a value judgment concern-

25

ing the point at which the interests in favor of protecting valid claims are outweighed by the interests in

prohibiting the prosecution of stale ones.” Id. “It is

Congress, not this Court, that balances those interests.” Id. For statutes like the Hobbs Act, Congress

has chosen repose over litigation of “valid claims.” For

the APA, Congress has chosen the opposite. All that’s

left for this Court to do is enforce that “value judgment[].” Id.

CONCLUSION

The Court should reverse the judgment of the

court of appeals.

Respectfully submitted,

Stephanie A. Martz

NATIONAL RETAIL

FEDERATION

1101 New York Ave., NW

Suite 1200

Washington, DC 20005

Tyler R. Green

Counsel of Record

CONSOVOY MCCARTHY PLLC

222 S. Main St., 5th Fl.

Salt Lake City, UT 84101

(703) 243-9423

tyler@consovoymccarthy.com

Bryan Weir

Frank H. Chang*

Seanhenry VanDyke*

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

January 12, 2024

*Supervised by principals of

the firm who are members of

the Virginia bar.

Counsel for Petitioner