Corner Post: Helping Hold the Administrative State to Account

Much attention has been paid to the Supreme Court’s recent overrule of the 40-year-old Chevron decision in Loper Bright Enterprises v. Raimondo. Chevron had facilitated the expansion of the administrative state by instructing courts to defer to “reasonable” federal agency interpretations of ambiguous statutes. Now courts, not bureaucrats, will interpret the laws. But a less noted decision four days later in Corner Post v. Board of Governors of the Federal Reserve System — a case examining statutes of limitations that limited challenges to federal regulations — may prove just as important, making it easier for injured parties to challenge erroneous agency actions.

In 2021, Corner Post — a truck stop and convenience store that opened in 2018 — sued under the Administrative Procedures Act (APA), claiming that a 2011 Fed rule regulating debit-card-interchange fees that banks charge merchants allows fees that exceed those permitted by the governing 2010 statute.

The District Court and the Eighth Circuit Court of Appeals dismissed the suit as time-barred. Both cited a general statute of limitations — 28 U.S.C. §2401(a) — requiring actions against the federal government to be “filed within six years after the right of action first accrues.” The Eighth Circuit held that for facial challenges to regulations (challenges asserting that the regulations are unconstitutional under all circumstances and therefore void), the right of action accrues, and the limitations period begins to run, when the regulation is published. Hence, the limitations period for the 2011 regulation expired in 2017, before Corner Post existed.

Section 702 of the APA requires a potential litigant to show he has suffered an injury owing to agency action. Section 704 states that judicial review is available only for “final agency action.” The Fed Board argued that injury is necessary to initiate a lawsuit but irrelevant to the statute of limitations, which begins to run with the “final agency action” of issuing a regulation.

Read the full article at Capital Matters.