No.

22-1008

IN THE
Supreme Court of the United States
_______________

CORNER POST, INC.,

Petitioner,
v.

BOARD OF GOVERNORS OF THE FEDERAL RESERVE

SYSTEM,

Respondent.
_______________

On Petition for a Writ of Certiorari

to the United States Court of Appeals
for the Eighth Circuit
_______________

BRIEF OF THE CATO INSTITUTE

AS AMICUS CURIAE SUPPORTING PETITIONER
_______________

THOMAS A. BERRY JEREMY J. BROGGI

ISAIAH MCKINNEY Counsel of Record
CATO INSTITUTE MICHAEL J. SHOWALTER
1000 Mass. Ave., N.W. BOYD GARRIOTT
Washington, DC 20001 HANNAH BINGHAM
WILEY REIN LLP
2050 M Street NW
Washington, DC 20036
(202) 719-7000
[email protected]

Counsel for Amicus Curiae

 QUESTION PRESENTED
In 1887, Congress established a six-year statute of
limitations for civil actions against the United States
that starts when “the right of action first accrues.”
28 U.S.C. § 2401(a). All agree that as originally
understood, a right of action first accrues when the
unlawful act injures the plaintiff.
Six decades later, the Administrative Procedure
Act (APA) established a right of action for persons
“suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action.”
5 U.S.C. § 702; see also id. § 704 (limiting the cause of
action to “final agency action”).
The question presented in the petition is whether
a plaintiff’s APA claim first accrues when an agency
issues a rule or when the rule first causes a plaintiff
to suffer a legal wrong. Pet. i. The answer to this
important question dividing the circuits turns on
whether the APA implicitly repeals Section 2401(a)’s
accrual rule with respect to certain claims of
administrative injury.
 ii

TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE ......................... 1
SUMMARY OF ARGUMENT .................................. 1
ARGUMENT ............................................................ 3
I. WHEN AN APA RIGHT OF ACTION
ACCRUES IS AN IMPORTANT QUESTION
DIVIDING LOWER COURTS. .......................... 3
A. THE DECISION BELOW DISREGARDS
FUNDAMENTAL PRINCIPLES OF
STATUTORY INTERPRETATION. .......... 4
B. THE LOWER COURTS’ POLICY
ARGUMENTS ARE UNFOUNDED ....... 10
II. THE ADMINISTRATIVE STATE SHOULD
NOT BE PERMITTED TO ELUDE JUDICIAL
OVERSIGHT WHEN UNLAWFULLY
IMPOSING NEW INJURIES .......................... 14
CONCLUSION ....................................................... 20
 iii

TABLE OF AUTHORITIES
Cases Page(s)

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ................................................ 5

Alabama Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) .......................................... 15

Albernaz v. United States,

450 U.S. 333 (1981) ............................................ 2, 7

Auction Co. of Am. v. FDIC,

132 F.3d 746 (D.C. Cir. 1997) ................................ 4

Biden v. Nebraska,
143 S. Ct. 477 (2022) ............................................ 16

Bowen v. Michigan Acad. of Family

Physicians,
476 U.S. 667 (1986) .......................................... 5, 16

CIC Servs., LLC v. IRS,

141 S. Ct. 1582 (2021) .......................................... 17

City of Arlington, Tex. v. FCC,

569 U.S. 290 (2013) ........................................ 14, 15

Clark v. Martinez,
543 U.S. 371 (2005) ........................................ 13, 14

Cohens v. Virginia,
19 U.S. (6 Wheat.) 264 (1821) ................................ 5

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) .................................................. 11
 iv

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ...................................... 9, 10

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ........................................ 14, 17

George v. McDonough,
142 S. Ct. 1953 (2022) ............................................ 4

Guedes v. ATF,
140 S. Ct. 789 (2020) ............................................ 16

Harris v. FAA,
353 F.3d 1006 (D.C. Cir. 2004) .............................. 9

Hernandez v. Mesa,
140 S. Ct. 735 (2020) .............................................. 1

Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Cir. 2015) .......................... 10, 12

Jersey Heights Neighborhood Ass’n v.

Glendening,
174 F.3d 180 (4th Cir. 1999) .................................. 9

Kisor v. Wilkie,
139 S. Ct. 2400 (2019) .................................... 15, 16

Kremer v. Chem. Constr. Corp.,

456 U.S. 461 (1982) ............................................ 4, 6

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,
572 U.S. 118 (2014) ................................................ 5

Marx v. Gen. Revenue Corp.,

568 U.S. 371 (2013) ................................................ 5
 v

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

Wildlife,
551 U.S. 644 (2007) ................................................ 5

New Jersey v. New York,

523 U.S. 767 (1998) ................................................ 7

NFIB v. OSHA,
142 S. Ct. 661 (2022) ............................................ 16

Outdoor Amusement Bus. Ass’n, Inc. v.

DHS,
983 F.3d 671 (4th Cir. 2020) ................................ 18

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc.,
139 S. Ct. 2051 (2019) ...................................... 7, 12

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................................ 14

Preminger v. Sec’y of Veterans Affairs,

517 F.3d 1299 (Fed. Cir. 2008) ............................ 10

Ret. Sys. v. ANZ Sec., Inc.,

137 S. Ct. 2042 (2017) .......................................... 11

Rotkiske v. Klemm,
140 S. Ct. 355 (2019) .............................................. 9

Sackett v. EPA,
566 U.S. 120 (2012) .............................................. 17

Sekhar v. United States,

570 U.S. 729 (2013) ................................................ 7
 vi

Shaughnessy v. Pedreiro,
349 U.S. 48 (1955) ................................................ 14

Spannaus v. DOJ,
824 F.2d 52 (D.C. Cir. 1987) .......................... 12, 13

Staples v. United States,

511 U.S. 600 (1994) ................................................ 7

Tilton v. SEC,
824 F.3d 276 (2d Cir. 2016) ................................. 18

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

159 F.3d 21 (1st Cir. 1998) .................................. 18

United States v. Madigan,

300 U.S. 500 (1937) ................................................ 4

United States v. Morton Salt Co.,

338 U.S. 632 (1950) .............................................. 14

United States v. Santos,

553 U.S. 507 (2008) .............................................. 13

Va. Office for Prot. & Advocacy v.

Stewart,
563 U.S. 247 (2011) .............................................. 12

W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) .................................................. 5

W. Virginia v. EPA,
142 S. Ct. 2587 (2022) .......................................... 16

Wilkie v. Robbins,
551 U.S. 537 (2007) .............................................. 18
 vii

Wind River Mining Corp. v. United

States,
946 F.2d 710 (9th Cir. 1991) ................ 6, 10, 13, 19

Wong v. Doar,
571 F.3d 247 (2d Cir. 2009) ................................... 9

Yellow Freight Sys., Inc. v. Donnelly,

494 U.S. 820 (1990) ................................................ 9

Ex parte Young,
209 U.S. 123 (1908) .............................................. 17

Statutes

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

5 U.S.C. § 704 .............................................................. 7

16 U.S.C. § 7804(d)(1) ................................................. 9

28 U.S.C. § 2401(a) ...................................................... 2

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

869 (1948) ............................................................... 4

Legislative Materials

92 Cong. Rec. 2149 (1946) ......................................... 14

S. Rep. No. 79-752 (1945) .......................................... 14

 viii

Administrative Materials

Luis A. Aguilar, Comm’r, SEC, A

Stronger Enforcement Program to
Enhance Investor Protection (Oct. 25,
2013) ..................................................................... 18

DOJ, Attorney General’s Manual on the

Administrative Procedure Act (1947) .................. 10

Comments of Andrew N. Vollmer on

Office of Mgmt. & Budget Request
for Information, OMB-2019-0006
(Mar. 9, 2020) ....................................................... 18

Other Authorities

Clyde Wayne Crews, Jr., How Many

Federal Agencies Exist?, Forbes (July
5, 2017, 4:03 PM) ................................................. 15

John Kendrick, (Un)limiting

Administrative Review: Wind River,
Section 2401(a), and the Right to
Challenge Federal Agencies, 103 Va.
L. Rev. 157 (2017) ............................................ 8, 13

Paul J. Larkin, Jr. & GianCarlo

Canaparo, Gunfight at the New Deal
Corral, 19 Geo. J.L. & Pub. Pol’y 477
(2021) .................................................................... 15

Susan C. Morse, Old Regs, 31 Geo.

Mason L. Rev. (forthcoming 2023) .................. 8, 10
 INTEREST OF AMICUS CURIAE1

The Cato Institute (“Cato”) is a nonpartisan public

policy research foundation founded in 1977 and
dedicated to advancing the principles of individual
liberty, free markets, and limited government. Cato’s
Robert A. Levy Center for Constitutional Studies was
established in 1989 to help restore the principles of
limited constitutional government that are the
foundation of liberty. Toward those ends, Cato
publishes books and studies, conducts conferences,
and produces the annual Cato Supreme Court Review.
This case interests Cato because the decision
below deprives persons newly injured by old agency
action of access to the federal courts in clear
contravention of the pertinent statutory text, and
thus allows unlawful agency action to evade judicial
correction. Cato respectfully urges this Court to grant
the petition for a writ of certiorari and reverse the
judgment below.

SUMMARY OF ARGUMENT

For a time, federal courts were quick to read

statutes as “implying” legal rules absent from the text
but perceived as sensible policy. This Court has long
since renounced that “freewheeling approach.”
Hernandez v. Mesa, 140 S. Ct. 735, 751 (2020)
(Thomas, J., concurring). But as this case illustrates,

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

no person or entity other than amicus or its counsel made a
monetary contribution to fund the brief’s preparation or
submission. All parties were provided timely notice of amicus’s
filing of this brief.
 2

the courts of appeals have not always followed this

Court’s lead. For policy reasons—when reasons are
given at all—six circuit courts have interpreted the
APA as repealing Section 2401(a)’s plaintiff-focused
statute of limitations with respect to certain
administrative-law claims and replacing it with a
defendant-focused statute of repose. According to
these courts, while a right of action accrued at injury
when Section 2401(a)’s accrual rule was enacted in
1887 all the way until the APA’s enactment in 1946—
and still does in all contexts outside of administrative
law—the APA implicitly changed Section 2401(a)’s
accrual rule to start the clock at the defendant’s last
act for certain administrative-law claims. But that
“read[s] much into nothing,” Albernaz v. United
States, 450 U.S. 333, 341 (1981), because the APA
implies nothing of the sort.
Perhaps recognizing the need to cite some
statutory text somewhere to support their policy-
driven conclusion, these lower courts have asserted
that APA Section 704’s limitation on the APA cause of
action to “final agency action” makes Section 2401(a)
a statute of repose for certain APA claims. That is
absurd. To the extent Section 704 implies anything
about accrual of the APA right of action, it creates an
additional condition necessary to start the clock (that
the agency action be final) on top of the normal accrual
rules. Section 704 cannot conceivably be understood
to subtract from the centuries-old understanding that
a right of action does not accrue before the plaintiff
has been injured. These lower courts have never
explained their invocation of Section 704, probably
because it can only be explained as a fig leaf for
policymaking.
 3

The lower courts’ policy arguments, moreover,

make no sense. In the (rare) instances lower-court
analysis has extended beyond ipse dixit, the courts
have reasoned that the textual approach leaves
federal agencies without repose because for perpetuity
their actions might be challenged by someone newly
injured. But it is undisputed that agency action is
forever vulnerable to judicial invalidation regardless
of whose interpretation prevails. Agency action—no
matter how old—often can be challenged in an
enforcement proceeding. The action is never safe on
anyone’s position. Nor should it be.
If the decision below is allowed to stand, the
Americans who are newly injured by old agency action
each year will have no meaningful opportunity to
contest the lawfulness of the injurious action unless
the agency brings an enforcement action against
them. And this Court has time and again explained
that the possible opportunity to defend an
enforcement action is an inadequate remedy.
Particularly because of the immense and growing
reach of the administrative state, the APA cause of
action authorizing direct review by any newly injured
party is essential to ensure that Americans are not
unlawfully injured by overzealous bureaucrats.

ARGUMENT

I. WHEN AN APA RIGHT OF ACTION

ACCRUES IS AN IMPORTANT QUESTION
DIVIDING LOWER COURTS.

The decision below joins the wrong side of a circuit

split that deprives many Americans of access to the
federal courts to remedy harm caused by the
ubiquitous administrative state. This injustice is the
 4

result of lower courts elevating certain (mistaken)

policy judgments over clear statutory text.

A. THE DECISION BELOW DISREGARDS

FUNDAMENTAL PRINCIPLES OF
STATUTORY INTERPRETATION.

At bottom, this case presents a pure question of

statutory interpretation: whether the APA implicitly
modifies Section 2401(a)’s accrual rules. No party,
court, or commentator has disputed that under
Section 2401(a)’s original meaning the limitations
clock starts when the plaintiff is injured. 2 Yet six
courts of appeals have held, opposite the Sixth Circuit,
that in 1946 the APA implicitly modified that
meaning with respect to certain administrative-law
claims. See Pet. 4.
One would expect a careful parsing of text to
precede such a determination of partial repeal by
implication. After all, “repeals by implication” are
“not favored.” Kremer v. Chem. Constr. Corp., 456
U.S. 461, 468 (1982); see also, e.g., United States v.
Madigan, 300 U.S. 500, 506 (1937) (“[T]he
modification by implication of the settled construction

2 Section 2401(a)’s original meaning dates to 1887, when its

predecessor was enacted as part of the Little Tucker Act. See
Auction Co. of Am. v. FDIC, 132 F.3d 746, 749 (D.C. Cir. 1997).
In 1948, Congress “made minor changes in the wording and
relocated [the statute of limitations] to 28 U.S.C. § 2401(a),
where it was to function as a catch-all limit for non-tort actions
against the United States.” Id. That organizational
recodification was meant to “continu[e] . . . existing law.” Act of
June 25, 1948, ch. 646, § 2680, sec. 2(b), 62 Stat. 869, 985 (1948).
And at any rate, statutory language “obviously transplanted
from another legal source” “brings the old soil with it.” George v.
McDonough, 142 S. Ct. 1953, 1959 (2022).
 5

of an earlier and different section is not favored.”).3

That is particularly true when court access is at stake,
because the federal courts have a “virtually
unflagging” “obligation” to “hear and decide cases
within [their] jurisdiction.” Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 126
(2014) (quotation marks omitted); see also Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)
(Marshall, C.J.) (“We have no more right to decline the
exercise of jurisdiction which is given, than to usurp
that which is not given. The one or the other would
be treason to the constitution.”). Courts therefore
“restrict access to judicial review” “only upon a
showing of ‘clear and convincing evidence’ of a
contrary legislative intent.” Abbott Labs. v. Gardner,
387 U.S. 136, 141 (1967); see also Bowen v. Mich.
Acad. of Family Physicians, 476 U.S. 667, 670 (1986)
(courts may not preclude judicial review under the
APA unless “there is persuasive reason to believe”
that Congress intended that outcome). And this Court
has repeatedly explained that “[t]he best evidence of
congressional intent . . . is the statutory text that
Congress enacted.” Marx v. Gen. Revenue Corp., 568
U.S. 371, 392 n.4 (2013) (Sotomayor, J. dissenting)
(citing W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83,
98 (1991)). But the circuits’ consideration of statutory
text has ranged from cursory to nonexistent. They
have instead balanced interests and settled on a

3 It “does not matter” whether the implied alteration “is

characterized as an amendment or a partial repeal” because
“[e]very amendment of a statute effects a partial repeal to the
extent that the new statutory command displaces earlier,
inconsistent commands,” and the Supreme Court has “repeatedly
recognized that implied amendments are no more favored than
implied repeals.” Nat’l Ass’n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 664 n.8 (2007).
 6

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

Wind River Mining Corp. v. United States, 946 F.2d
710, 715 (9th Cir. 1991).
The court below, for example, did not merely reach
the wrong interpretive answer—it failed even to ask
the pertinent interpretive questions. The court below
never inquired into Section 2401(a)’s original
meaning, or what specific part of the APA might
implicitly modify that meaning (a question clearly
antecedent to any implicit-modification conclusion), or
whether evidence of implicit modification is “clear and
convincing.” Instead, the panel listed quotations from
cases on both sides of the conflict—which themselves
do not ask any of those questions—and then simply
announced that “[t]his court concludes
that . . . [Petitioner’s] right of action
accrue[d] . . . upon publication of the regulation.”
App. 11.
That perfunctory conclusion is demonstrably and
grievously wrong. Because the APA nowhere says
that a claim can accrue before injury, the decision
below requires the view that the APA modified
Section 2401(a)’s accrual rules implicitly. But implied
modification occurs only when (1) “provisions in the
two acts are in irreconcilable conflict,” or (2) “the later
act covers the whole subject of the earlier one and is
clearly intended as a substitute.” Kremer, 456 U.S. at
468. In “either case,” “the intention of the legislature
to repeal must be clear and manifest.” Id. And
neither requisite is remotely present here.
Far from clearly and manifestly altering the
original understanding of Section 2401(a) accrual, the
APA says nothing that even plausibly could do so. The
APA’s judicial-review provisions merely create a
cause of action for persons aggrieved by final agency
 7

action. 5 U.S.C. §§ 702, 704. Those provisions cannot

conceivably be understood as establishing a break
from accrual norms—if anything, to the contrary, they
affirmatively indicate that the normal accrual rules
do apply to APA claims by stating that a right of
action exists only once the plaintiff is aggrieved. At
best for Respondent, the APA is silent on accrual.
The APA’s limitations-period “silence” “means
that ordinary background law applies.” New Jersey v.
New York, 523 U.S. 767, 813 (1998) (Breyer, J.,
concurring); see also, e.g., Albernaz, 450 U.S. at 341–
42 (“[I]f anything is to be assumed from the
congressional silence . . . , it is that Congress was
aware of the [background] rule and legislated with it
in mind.”); id. at 341 (Congress is “predominantly a
lawyer’s body,” and it is appropriate “to assume that
our elected representatives . . . know the law.”). That
includes both the original semantic meaning of the
phrase “right of action first accrues” and the “cluster
of ideas that were attached to [the phrase]”
“accumulated [in] the legal tradition and meaning of
centuries of practice.” Sekhar v. United States, 570
U.S. 729, 733 (2013); see also, e.g., Staples v. United
States, 511 U.S. 600, 605 (1994) (“[W]e must construe
the statute in light of the background rules of the
common law.”). Statutory silence signals
congressional “satisfaction with widely accepted
definitions, not a departure from them.” Beck v.
Prupis, 529 U.S. 494, 501 (2000); see also PDR
Network, LLC v. Carlton & Harris Chiropractic, Inc.,
139 S. Ct. 2051, 2061 (2019) (Kavanaugh, J.,
concurring in the judgment) (congressional “silence”
“should not be read to preclude judicial review”).
As the petition and academic commentary have
shown, “every source” reflecting the cluster of ideas
 8

attached to accrual “points the same way”: “[a] party’s

right of action cannot accrue until he or she has
actually been harmed by the defendant.” John
Kendrick, (Un)limiting Administrative Review: Wind
River, Section 2401(a), and the Right to Challenge
Federal Agencies, 103 Va. L. Rev. 157, 159 (2017); see
also id. at 180–192 (examining enactment-era cases,
dictionaries, and treatises); Pet. 22. Even the leading
commentary defending the majority approach
concedes that “the text of 28 U.S.C.
§ 2401(a) . . . suggests . . . that accrual should begin
separately for each specific plaintiff’s claim” and thus
further concedes that accrual based on “when the
plaintiff can sue” “does apply to cases first
contemplated by 28 U.S.C. § 2401(a).” Susan C.
Morse, Old Regs, 31 Geo. Mason L. Rev. (forthcoming
2023) (manuscript at 4), ssrn.com/abstract=4191798;
see also id. (conceding that under the majority
approach “accrual is triggered by an action of the
defendant, not a claim of the plaintiff, contrary to the
plaintiff-focused approach taken when interpreting
28 U.S.C. § 2401(a)’s application [in other contexts]”).
Because that commentary fares no better than the
circuit courts at identifying any text in the APA
implying modification of that background rule, those
concessions are fatal.4

4 This commentator rests her defense of the majority approach

on her unsubstantiated assertion that APA claims are different
because the unlawful action “arises at promulgation (or other
final agency action), then exists and continues, waiting
unchanged for any eligible plaintiff to come along and raise it.”
Morse, Old Regs, at 5. That does not, in fact, make APA claims
different—it is true any time there is a temporal gap between
unlawful conduct and injury.
 9

The lower courts’ “atextual judicial

supplementation” is “particularly inappropriate,”
moreover, because “Congress has shown that it knows
how to adopt the omitted language.” Rotkiske v.
Klemm, 140 S. Ct. 355, 361 (2019) (capitalization
altered). Congress has shown that “it knows exactly
how to specify” the kinds of limitations rules the lower
courts have written into the APA, but itself chose to
do “nothing like that” in the APA. Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1617 (2018). Congress easily
could have provided that the limitations period for
APA claims starts once the regulation is “published in
the Federal Register,” for example, as it did in
16 U.S.C. § 7804(d)(1), see also Pet. 24 & n.4
(collecting additional examples). The “omission of any
such provision is strong, and arguably sufficient
evidence that Congress had no such intent.” Yellow
Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 823
(1990).
When the majority-approach courts have cited
any statutory text at all, they have pointed to the
APA’s limitation of its cause of action to “final agency
action” in Section 704. See, e.g., Wong v. Doar, 571
F.3d 247, 263 & n.15 (2d Cir. 2009) (“Under the APA,
the statute of limitations begins to run at the time the
challenged agency action becomes final. See 5 U.S.C.
§ 704.”); Jersey Heights Neighborhood Ass’n v.
Glendening, 174 F.3d 180, 186 (4th Cir. 1999) (holding
without analysis that APA right of action accrues
“upon ‘final agency action,’ 5 U.S.C. § 704”); Harris v.
FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004) (“The right
of action first accrues on the date of the final agency
action.” (citing 5 U.S.C. § 704)). But Section 704
plainly does not alter the rule that a right of action
cannot accrue until the plaintiff has been injured.
Rather, Section 704 simply states that an APA claim
 10

does not accrue until the plaintiff is injured and the

agency action is final—in other words, finality “is
another necessary, but not by itself a sufficient,
ground for stating a claim under the APA.” Herr v.
U.S. Forest Serv., 803 F.3d 809, 819 (6th Cir. 2015).
The APA largely “restate[d] the law governing judicial
review of administrative action,” DOJ, Attorney
General’s Manual on the Administrative Procedure
Act (1947) 5 ; it certainly did not upend long-settled
accrual rules by providing that only final agency
action is reviewable.
Because there is no indication—let alone one that
is clear and manifest—that Congress intended to
implicitly modify Section 2401(a) through the APA,
the majority approach is textually indefensible. The
Court should grant certiorari to remind lower courts
that when interpreting Section 2401(a) they should
“ask only what the statute means.” Epic Sys. Corp.,
138 S. Ct. at 1631.

B. THE LOWER COURTS’ POLICY

ARGUMENTS ARE UNFOUNDED.

Though the lower courts have taken a much closer

look at policy than text, their policy arguments reflect
fundamental misunderstandings of both statutes of
limitation and the APA. The lower courts’ primary
policy concern is that under the textual approach
“there effectively would be no statute of limitations.”
Preminger v. Sec’y of Veterans Affairs, 517 F.3d 1299,
1307 (Fed. Cir. 2008) (citing Wind River, 946 F.2d at
714)); see also Morse, Old Regs, at 25 (arguing that “an
indefinite limitations period would defeat the purpose
of a limitations period in the first place”). That is

5 tinyurl.com/yxyfvuk8.
 11

undeniably incorrect—if Petitioner had filed this

lawsuit more than six years after its alleged injury,
Section 2401(a) would bar the suit just like any other
statute of limitations. What these courts really mean
is that there effectively is no repose for the defendant.
And that is indeed true—because Section 2401(a) is
not a statute of repose.
A statute of repose does exactly what the lower
courts want Section 2401(a) to do: it provides the
defendant with “freedom from liability” and the
assurance that “past events [are] behind him.” CTS
Corp. v. Waldburger, 573 U.S. 1, 9 (2014). An
“absolute . . . bar on a defendant’s temporal liability,”
a statute of repose “puts an outer limit on the right to
bring a civil action” that is “measured not from the
date on which the claim accrues but instead from the
date of the last culpable act or omission of the
defendant.” Id. at 8 (internal quotation marks
omitted). That is, a statute of repose bars suit even if
its limitations period “ends before the plaintiff has
suffered a resulting injury.” Id.
Because a statute of repose limit is “not related to
the accrual of any cause of action,” id., and Section
2401(a) is related to accrual, 28 U.S.C. § 2401(a) (limit
based on when right of action “accrues”), Section
2401(a) is not a statute of repose. Rather, because it
is based on accrual, Section 2401(a) is a “statute of
limitations.” CTS Corp., 573 U.S. at 7. And a statute
of limitations begins to run “when the injury occurred
or was discovered.” Id. at 8. That means statutes of
limitation consciously do not provide a defendant with
“freedom from liability” and the assurance that “past
events [are] behind him.” Id. at 9; see also Cal. Pub.
Emp.’s Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042,
2049 (2017) (statutes of repose give “more explicit and
 12

certain protection to defendants” than statutes of

limitation). A statute cannot ensure both repose for
defendants and remedy for plaintiffs because there
sometimes is a temporal gap between last culpable act
and injury; statutes of limitation like Section 2401(a)
accept some loss of repose to ensure that all injured
plaintiffs are able to bring suit. See Spannaus v. DOJ,
824 F.2d 52, 56 n.3 (D.C. Cir. 1987) (it is “virtually
axiomatic” that “a statute of limitations cannot begin
to run against a plaintiff before the plaintiff can
maintain a suit” even though that is not true of
statutes of repose). To say that Section 2401(a) must
provide federal agencies with repose ignores that
Congress chose the other side of that tradeoff.
Federal agencies do not have absolute repose,
moreover, even under the majority approach. No
matter what, so long as the agency enforces its action,
the action is never safe because “[r]egulated parties
may always assail a regulation as exceeding the
agency’s statutory authority in enforcement
proceedings against them.” Herr, 803 F.3d at 821; see
also PDR Network, 139 S. Ct. at 2060 (Kavanaugh, J.).
And the scope of judicial review under the APA is the
same regardless whether the issue arises in a
declaratory-judgment action or as an enforcement
defense. Cf. Va. Office for Prot. & Advocacy v.
Stewart, 563 U.S. 247, 262 (2011) (Kennedy, J.,
concurring) (pre-enforcement review is “nothing more
than the pre-emptive assertion in equity of a defense
that would otherwise have been available
in . . . enforcement proceedings at law.”). In both
situations, judicial review considers the purely legal
question of the agency action’s validity based on the
law and the closed universe of the agency’s action and
record of decision. See, e.g., PDR Network, 139 S. Ct.
at 2066–67 (Kavanaugh, J.). Any judicial decision in
 13

an enforcement proceeding, therefore, is just as

sweeping as in an APA lawsuit. That means there is
little daylight between the degree of agency repose
under the majority approach and under the textual
approach.
The majority approach, moreover, has policy
problems itself. For one, it eliminates certain rights
of action before they even arise, as this case
illustrates. That contravenes the central purpose for
enacting a statute of limitations rather than a statute
of repose. See Spannaus, 824 F.2d at 56 n.3 (“virtually
axiomatic” that a statute of limitations “cannot begin
to run against a plaintiff before the plaintiff can
maintain a suit”). Americans should not be shut out
of court because, for example, they failed to be born
within six years of unlawful agency action that harms
them.
The majority approach also jettisons a uniform
standard and creates bifurcation in multiple ways.
Under the textual approach, the Section 2401(a)
limitations period operates uniformly across all
claims. Under the majority approach, by contrast, the
limitations period operates differently inside the APA
versus outside, and also depends on what sort of APA
claim is brought. See Wind River, 946 F.2d at 715;
Kendrick, (Un)limiting Administrative Review, 103
Va. L. Rev. at 199 (courts apply the textual approach
in “every other type of claim that [Section 2401(a)]
covers”). That violates this Court’s admonition that
statutory language cannot be given “different
meanings in different factual contexts.” United States
v. Santos, 553 U.S. 507, 522 (2008); see also Clark v.
Martinez, 543 U.S. 371, 386 (2005) (notion that
“judges can give the same statutory text different
meanings in different cases” is a “dangerous
 14

principle”). The lower courts have impermissibly

“render[ed]” Section 2401(a) “a chameleon.” Clark,
543 U.S. at 382. Their policy arguments are both
procedurally improper and substantively impotent.

II. THE ADMINISTRATIVE STATE SHOULD

NOT BE PERMITTED TO ELUDE JUDICIAL
OVERSIGHT WHEN UNLAWFULLY
IMPOSING NEW INJURIES.

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

thousands of Americans whose affairs are controlled
or regulated” by federal agencies. 92 Cong. Rec. 2149
(1946) (statement of Sen. McCarran). It was designed
to serve as “a check upon administrators whose zeal
might otherwise have carried them to excesses not
contemplated in legislation creating their offices.”
Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 109 (2015)
(Scalia, J., concurring) (quoting United States v.
Morton Salt Co., 338 U.S. 632, 644 (1950)); see also S.
Rep. No. 79-752, at 212 (1945) (APA judicial review is
designed to prevent Congress’s statutes from
becoming “blank checks drawn to the credit of some
administrative officer or board”); Shaughnessy v.
Pedreiro, 349 U.S. 48, 51 (1955) (APA was intended in
part to “remove obstacles to judicial review of agency
action”).
The APA’s guarantees have become all the more
critical as the administrative state has transformed
into leviathan. Today, “the Executive Branch . . .
wields vast power and touches almost every aspect of
daily life.” Free Enter. Fund v. PCAOB, 561 U.S. 477,
499 (2010). Much of the federal government’s
operation now consists of “hundreds of federal
agencies poking into every nook and cranny of daily
life.” City of Arlington, Tex. v. FCC, 569 U.S. 290, 315
 15

(2013) (Roberts, C.J., dissenting); see also Clyde

Wayne Crews, Jr., How Many Federal Agencies Exist?,
Forbes (July 5, 2017) (government estimates of the
number of federal agencies in existence vary from 71
to 454).6 Our Constitution’s founders “could hardly
have envisioned today’s ‘vast and varied federal
bureaucracy’ and the authority administrative
agencies now hold over our economic, social, and
political activities.” City of Arlington, 569 U.S. at 313
(Roberts, C.J.). These agencies “produce[] reams of
regulations—so many that they dwarf the statutes
enacted by Congress.” Kisor v. Wilkie, 139 S. Ct. 2400,
2446–47 (2019) (Gorsuch, J., concurring in the
judgment) (quotations marks omitted). The Code of
Federal Regulations contained 18,000 pages near the
close of the New Deal in 1938 but now contains more
than 175,000 pages. Paul J. Larkin, Jr. & GianCarlo
Canaparo, Gunfight at the New Deal Corral, 19 Geo.
J.L. & Pub. Pol’y 477, 488 (2021). And agencies “add
thousands more pages of regulations every year.”
Kisor, 139 S. Ct. at 2446–47 (Gorsuch, J.).
Unfortunately, the administrative state’s rapid
expansion has not led agencies to exercise greater care
in respecting constitutional boundaries. To the
contrary, in recent years agencies have aggressively
pushed the limits of their authority in ways that
impact every aspect of American society. For
example, the CDC—an agency tasked with preventing
“communicable diseases”—recently claimed power to
“impose[] a nationwide moratorium on evictions” in
counties covering “[a]t least 80% of the country.”
Alabama Ass’n of Realtors v. HHS, 141 S. Ct. 2485,
2486, 2489 (2021). The EPA claimed that the “vague

6 bit.ly/2HyrFrP.
 16

language of an ancillary provision of the [Clean Air

Act]” granted it authority to unilaterally demand “a
shift throughout the power grid from one type of
energy source to another.” W. Virginia v. EPA, 142 S.
Ct. 2587, 2610–12 (2022) (quotation marks and
alterations omitted). After stating “[f]or years” that
bump stocks are not machine guns, ATF “changed its
mind” and has placed the specter of criminal sanctions
on scores of law-abiding citizens. Guedes v. ATF, 140
S. Ct. 789, 789 (2020) (statement of Gorsuch, J.).
OSHA—“tasked with ensuring occupational safety”—
imposed a vaccine mandate on approximately 84.2
million employees during the Covid-19 pandemic.
NFIB v. OSHA, 142 S. Ct. 661, 663 (2022). This Court
recently heard argument on “a situation [it has] seen
before”: “an old statute with kind of general language,
Congress specifically considering the present issue
repeatedly but not . . . passing legislation that would
authorize the specific action and then . . . the
executive, nonetheless, doing a massive new
program”—this time a Department of Education
student-loan forgiveness program costing half a
trillion dollars. Tr. of Oral Argument at 45, Biden v.
Nebraska, 143 S. Ct. 477 (2022) (No. 22-506)
(Kavanaugh, J.). And that is not to mention the SEC’s
recent activity.
For all these reasons, “the cost of . . . deny[ing]
citizens an impartial judicial hearing” when injured
by agency action “has increased dramatically.” Kisor,
139 S. Ct. at 2447 (Gorsuch, J.); see also Bowen, 476
U.S. at 670 (citing this Court’s “insist[ence]” that the
availability of judicial review of executive action is
part of “‘[t]he very essence of civil liberty’”). And while
unlawful agency action often imposes immediate
injury, agencies should not escape judicial oversight
 17

whenever their action causes injury more than six

years later.
While aggrieved persons always can challenge
agency action when defending an enforcement action,
see supra, nothing in Section 2401(a) or the APA
suggests that persons newly injured by old agency
action should be confined to defense review, and this
Court does not “consider” the availability of defense
review “a ‘meaningful’ avenue of relief,” Free Enter.
Fund, 561 U.S. at 490–91. That is for good reason—
the time, cost, and reputational ruin accompanying
enforcement actions often “practically necessitate a
pre-enforcement . . . suit” “if there is to be a suit at
all.” CIC Servs., LLC v. IRS, 141 S. Ct. 1582, 1592
(2021); see also Free Enter. Fund, 561 U.S. at 490 (“We
normally do not require plaintiffs to ‘bet the farm . . .
by taking the violative action’ before ‘testing the
validity of the law.’”); cf. Ex parte Young, 209 U.S. 123,
148 (1908) (forcing a business to risk penalties to
challenge a rule in court violates due process).
In Sackett v. EPA, for example, this Court rejected
an attempt by the EPA to duck the APA cause of
action after issuing an administrative compliance
order by arguing that the plaintiffs could contest the
order in an enforcement action. 566 U.S. 120, 124–25,
127 (2012). The plaintiffs would have “accrue[d], by
the Government’s telling, an additional $75,000 in
potential liability” “each day they wait[ed] for the
Agency to [bring an enforcement action].” Id. at 127.
In that case and many others, “the potential fines”
could “easily . . . reach[] the millions.” Id. at 132
(Alito, J., concurring). Defense review, in many
instances, is simply unrealistic.
The SEC, for example, has been able to coerce
settlement in the “vast majority of [its] cases” just by
 18

threatening an enforcement action. Tilton v. SEC,

824 F.3d 276, 298 n.5 (2d Cir. 2016) (Droney, J.,
dissenting); see also Luis A. Aguilar, Comm’r, SEC, A
Stronger Enforcement Program to Enhance Investor
Protection (Oct. 25, 2013) (98 percent of those
threatened with enforcement settle). That is partly
because, according to a former SEC Deputy General
Counsel, most defendants’ “business, job, or personal
relationships will not survive sustained adverse
publicity repeating the SEC’s allegations over and
over during the long life of litigation.” Comments of
Andrew N. Vollmer on Office of Mgmt. & Budget
Request for Information, OMB-2019-0006, at 4 (Mar.
9, 2020).7 “[E]ndless battling depletes the spirit along
with the purse,” especially when interacting with “a
series of public officials bent on making life difficult.”
Wilkie v. Robbins, 551 U.S. 537, 555 (2007).
Many persons aggrieved by unlawful agency
action, moreover, will never have the opportunity to
participate in an enforcement action. In this case, for
example, there will never be an enforcement action
because Petitioner’s injury is caused by private
persons regulated by Respondent’s 21-cent standard.
See Pet. 28–29. And this case is no fluke—injurious
agency action will not involve enforcement in many
contexts, for example when persons are aggrieved by
“rules requiring that employers receive a favorable
labor certification . . . before obtaining a[n] [H-2B]
visa,” Outdoor Amusement Bus. Ass’n, Inc. v. DHS,
983 F.3d 671, 675–76 (4th Cir. 2020) (dismissing as
time-barred), or an agency’s decision “to subsidize a
portion of tenants’ rents,” Trafalgar Cap. Assocs., Inc.
v. Cuomo, 159 F.3d 21, 24 (1st Cir. 1998) (same); see

7 tinyurl.com/y5qcknzx.
 19

also Pet. 29 (agency actions that injure one person by

regulating someone else are so common that they have
their own Article III standing rules). The possibility
of “filing [a] petition to rescind regulations” and then
“appealing the denial of the petition,” Wind River, 946
F.2d at 714, does not solve the problem because the
agency may not have a procedure for a petition to
rescind the action at issue, and even if it does, it may
simply decline to issue a decision on the petition or
delay such action indefinitely. When an agency takes
injurious action outside the enforcement context,
therefore, the APA’s cause of action is usually the only
mechanism to contest the action.
* * *
If left undisturbed, the decision below will deprive
many Americans of access to the federal courts in the
face of a behemothic and ever-growing administrative
state. And this injustice is a creation of the courts—a
relic of a time when judges read their own policy
judgments into the white spaces of the U.S. Code.
This Court should reaffirm that those days are gone
and the lower courts must simply apply the law as
written.
 20

CONCLUSION

The petition for a writ of certiorari should be

granted.
Respectfully submitted.

THOMAS A. BERRY JEREMY J. BROGGI

ISAIAH MCKINNEY Counsel of Record
MICHAEL J. SHOWALTER
CATO INSTITUTE BOYD GARRIOTT
1000 Mass. Ave., HANNAH BINGHAM
N.W. Washington, DC WILEY REIN LLP
20001 2050 M Street, NW
Washington, DC 20036
(202) 719-7000
[email protected]

Counsel for Amicus Curiae

May 17, 2023