When we filed Corner Post’s lawsuit in 2021, we didn’t expect to end up at the Supreme Court on a threshold statute of limitations question. And we certainly didn’t expect anyone would describe the case as “destabilizing” the administrative state. Corner Post just had a problem with a single regulation and wanted to challenge it under the APA. But now, the case has ballooned in scope to be much more than that, with commentators saying things like “[t]he Corner Post decision further fundamentally alters American administrative law.” I remain as skeptical of that view as I was the day of oral argument. After Corner Post, it is still true that almost all businesses are time barred from challenging regulations that harm them. Only particular plaintiffs bringing particular types of APA claims have timely lawsuits.

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Corner Post is a truck stop and convenience store in Watford City, North Dakota, that opened in 2018. Like most small businesses, it must keep a sharp eye on its expenses to survive. One of its biggest expenses, it turns out, are the fees that it must pay banks whenever one of its customers uses a debit card. And it turns out that the Federal Reserve Board sets those fees. The Board did so in 2011 and set the fees cap at 21 cents per transaction (plus an additional .05% of the transaction’s value).

Corner Post thought the Board exceeded its authority in setting the fee cap so high and challenged it under the APA. The problem? Most circuits had held that the six-year statute of limitations for facial challenges under the APA starts running from the day a regulation is issued—no matter when a business is first harmed by that regulation—and Corner Post opened for business seven years after the Board set the debit-card fee. The district court and Eighth Circuit in Corner Post’s case sided with those circuits—even though Corner Post couldn’t have timely challenged the regulation because it didn’t exist before the clock ran out.

The Supreme Court rejected that reading of the APA’s statute of limitations in Corner Post, Inc. v. Board of Governors. The APA’s limitations period starts “after the right of action first accrues.” “The answer is straightforward,” the majority explained. “A claim accrues when the plaintiff has the right to assert it in court—and in the case of the APA, that is when the plaintiff is injured by final agency action.” Indeed, in a prior decision joined by two of the Corner Post dissenters, the Supreme Court recognized that is how “accrues” has been defined “in dictionaries from the 19th century up until today.” And the Supreme Court had already rejected the notion that “first accrues” should create a different, “special accrual rule for suits against the United States.” Despite all that, the dissent found the majority’s decision “baseless.”

Beyond the interpretive debate, however, the dissent warned of the decision’s consequences. The dissent thought “there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face.” “Allowing every new commercial entity to bring fresh facial challenges to long-existing regulations is profoundly destabilizing for both Government and businesses.” In the dissent’s view, “the Court wreaks havoc on Government agencies, businesses, and society at large.”

The dissent was particularly worried about how Corner Post could work together with the Court’s decision to overturn Chevron deference in Loper Bright Enterprises v. Raimondo. “Now, every legal claim conceived of in [the] last four decades—and before—can possibly be brought before courts newly unleashed from the constraints of [Chevron] deference.” “Any new objection to any old rule must be entertained and determined de novo by judges who can now apply their own unfettered judgment as to whether the rule should be voided.”

Much of the discussion about Corner Post’s import has followed Justice Jackson’s lead. One commentator said that “[i]t’s safe to say that overall, [Loper Bright and Corner Post] together will have some destabilizing effect. But Corner Post is going to be much more destabilizing.” “Taken together,” another commentator said, “these cases are going to have a revolutionary impact.” Some Members of Congress agree and have already proposed the “Corner Post Reversal Act” to amend the APA’s statute of limitations to run from the day a regulation is issued. The sponsors’ claim that “Corner Post destabilizes public agencies’ ability to craft rules” and “has opened the floodgates” to regulatory challenges.

Are these warnings right? Will there be a flood of regulatory challenges to old regulations in the wake of Corner Post and Loper Bright? I don’t think so for several reasons. To start with, Corner Post applies only to APA challenges; it’s the baseline rule. There are scores of agency-specific statutes—like the well-known Hobbs Act—that expressly tie the time to bring a facial challenge to the day a rule was issued. The Solicitor General cited 29 examples in its brief. The dissent found “many, many others.” As a result, the clock has already run out to bring facial challenges against vast swaths of the regulatory state.

Even for APA challenges, however, the universe of viable plaintiffs is still very small. For older regulations, almost everyone is already time barred. Only those businesses that were first harmed by a regulation in the last six years still have a viable facial challenge. That reality is no doubt why the Solicitor General said in Corner Post (at the cert stage) 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.” Take Corner Post’s challenge. Corner Post was first harmed by the debit-card fees in 2018. But any business that opened more than six years ago that is similarly harmed is time-barred from bringing its own facial challenge. The same is true in every other industry.

There is also some ambiguity following Corner Post on whether its decision applies to all APA challenges. The Court explained that “[i]t . . . may be that some injuries can only be suffered by entities that existed at the time of the challenged action.” Procedural challenges like an agency relying on a “deficient notice of proposed rulemaking” may have harmed only businesses that could have participated in the notice-and-comment process. So the APA limitations period for those claims may begin for everyone the day the regulation is issued. The Court found it “need not resolve that issue” because Corner Post’s claim “is a prototypical substantive challenge.” Expect the government to raise that issue in future APA challenges.

There are other reasons to be skeptical that the floodgates are going to open. For example, the Sixth Circuit in 2015 became the only circuit to apply the rule that the Supreme Court ultimately adopted in Corner Post. But there was no uptick in challenges to old regulations in that circuit after that decision. For these reasons, industry leaders should be skeptical that old, unwanted regulations in their field are inevitably going to fall in the wake of Corner Post and Loper Bright. Only particular plaintiffs that bring particular claims against those regulations can get past the statute of limitations and to the merits in a post-Chevron world. It remains to be seen whether viable plaintiffs will bring those challenges.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].