Courthouse Steps Oral Argument: Corner Post, Inc. v. Board of Governors of the Federal Reserve System

Emily Manning:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Emily Manning, and I’m an Associate Director of Practice Groups with The Federalist Society. Today, we’re excited to host Courthouse Steps Oral Argument for Corner Post, Inc v. Board of Governors of the Federal Reserve System.

 

We’re joined today by Michael Buschbacher, Partner at Boyden Gray, John Kendrick, Associate at Covington, Professor Susan C. Morse, Professor of Law at the University of Texas at Austin School of Law, Molly Nixon, separation of powers attorney at the Pacific Legal foundation. And our moderator today is Professor John F. Duffy, Professor of Law at the University of Virginia School of Law. If you’d like to learn more about today’s speakers, their full bios can be viewed on our website, fedsoc.org.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can.

 

Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today. And Professor Duffy, the floor is yours.

 

Prof. John F. Duffy:  Well, today we’re talking about, I think, a very interesting administrative law case that some articles in the popular media have called a real sleeper case for this term. I’ll talk about why it’s important, but let’s first figure out what exactly is at issue.

 

One of the things that’s taught in standard administrative law is when plaintiffs can sue. And usually, we focus on the beginning of the time when people can sue. We know that they have to have final agency action. There’s case law saying that the action has to be ripe, and they have to have standing. So all those things usually are what lawyers worry about. They worry about starting how early they can sue.

 

Very little attention is given to how late they can sue. Indeed, the APA does not address this issue seemingly at all. It creates a cause of action, but it doesn’t have within it its own statute of limitations. Instead, the lower courts have borrowed a statute of limitations, a general statute of limitations, that applies for all suits against the United States. And that statute says that—and I’m going to quote it because that is the crucial statute that’s an issue here—says, “Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” That last phrase, “six years after the right of action first accrues,” that’s the crucial language that’s at issue in this case.

 

The case in this particular case has a fairly straightforward timeline, and the question is going to be, “Is the -- is this lawsuit challenging some rather old regulations untimely?” The timeline here is fairly straightforward. The board of governors of the Federal Reserve in 2011 published a regulation—known in the litigation as regulation two—that governs what are called “interexchange fees” or more commonly called “swipe fees.” These are fees that retailers have to pay to banks every time one of their customers swipes a credit card—pardon me, a debit card—to make a payment in the retail business.

 

Now, at the time this regulation was promulgated, a trade association called the National Association of Convenience Stores and some others sought judicial review almost right away. The challengers won in the district court of the District of Columbia, and then they lost the next year in 2014 in the D.C. Circuit. The Supreme Court in 2015 denied cert. The board issued a clarification -- a slight clarification in 2015, and then nothing really happened for many years.

 

In 2021, however, a trade association in North Dakota moved to challenge the rule, and the board of governors said, “This is too late. You existed back in 2011. This is 10 years later, and the statute of limitations for you is only 6 years. So you’re many years too late.”

 

Upon the filing of that motion to dismiss, another plaintiff was added, and that’s Corner Post, Inc. This is a corporation that was only created in 2017. So their argument is, “We could not have had our cause of action accrue more than six years ago because we’re four years old. We’re a juvenile corporation; we just were created. So we’re four years old. We can’t be time barred.

 

Corner Post lost on that argument both in the district court and on the -- and in the Eighth Circuit. In 2023, they sought certiorari. They got certiorari. Argument was just held yesterday. And the positions of the two parties—the petitioner, the private party, the small business, and the government—very straightforward, very radically different.

 

Petitioner’s position is, “Look, this statute of limitations has to be analyzed first by examining the petitioner’s cause of action. And that right, the right of this one petitioner, could not have first accrued until this plaintiff had the right and the ability to commence it.” Under that theory, Corner Post wins because they could not have sued prior to 2017 because they didn’t exist prior to 2017. So they’re well within the 6-year period when they were added to this lawsuit in 2021.

 

The government’s position is also equally straightforward to describe. Their position is the cause of action first accrues at the time of final agency action because—and I’m quoting from their brief here—“Any proper plaintiff can assert the right of action established by the Administrative Procedure Act. Note the government’s position does not focus on this plaintiff, and it does not necessarily require that there be any proper plaintiff who could sue at the time of final agency action.

 

Their position is it always runs from final agency action. That was 2011, and therefore, this case, which was filed in 2021, is years late because it was filed 10 years after the agency action.

 

So that’s the two positions. I’m going to turn it over now to Molly Nixon, who’s going to give us a little recap about what happened yesterday at the oral argument and perhaps even read the tea leaves just a tiny bit.

 

Molly Nixon:  Thank you, Professor Duffy. So, yeah. I’ve been following this case for a while. I listened to the oral argument yesterday. I had hoped after listening to it that I would have some sense of where the Court was. And to be honest, I don’t know how the case will go based on the oral argument. So I figured I would make a few observations, and perhaps the other panelists will respond either in their opening remarks or in the question and answer segment.

 

But so, first, I kind of saw the argument as breaking down into three different buckets, the textual analysis of the statutes that we’re looking at, then a second one of a fairness and norms bucket, and then a third one, which a lot of the justices focused on were, the consequences of a decision either way.

 

On text and I guess, to start off with, I was actually surprised at how little of the argument focused on the text of the statutes. But Justice Jackson did seem to be interested in a point that the government, I believe, made in its briefs about whether the petitioner was conflating the elements of a claim with who can sue or the elements of a cause of action with who can sue. So she did dig a little bit in her questioning of both advocates, I believe, on that question.

 

And then Justices Alito and Gorsuch both seemed a bit skeptical of the concept of tying the definition of “accrual” to “context.” They both seemed to indicate -- or at least had questions about whether the word “accrue” should always mean the same thing.

 

And then in the second bucket, the norms of law, how we usually do things, not in the APA context, but in United States justice system and fairness overall, Justice Roberts, I think, came down on both sides of this question, starting off early on saying, “These regulations, they set the ground rules for the regulatory regimes.” There’s this inherent norm or fairness element there.

 

And then later on, when he was questioning, the government seemed baffled that this hadn’t been decided long ago. And doesn’t everyone get their day in court? And what are we doing here? It seems very strange that a plaintiff could be entirely barred in this way when they didn’t exist at the time the regulation was issued. I think also going so far, the government responded to that and pointed to a number of statutes of repose that Congress had passed. And the chief justice at one point said, “Well, maybe they’re all illegal” or something along those lines. So definitely some fairness concepts at play.

 

Justice Sotomayor made another point on the other side of that, saying -- I kind of thought of it as the coming to the nuisance point. The ground rules, they exist. If you start up a business, you’re coming into it knowing what you’re getting. I don’t know if these were her words, but it seems a bit rich to turn around and then say you didn’t like the ground rules that you accepted upon filing for a corporation or something like that.

 

And then on the sort of consequences bucket, which is where a lot of the discussion focused, I think Justice Kagan seemed particularly concerned about this. She raised the point or the question about whether -- doesn’t this -- wouldn’t this just create an incentive to -- for trade associations to start almost a shell or a sham business to challenge a new regulation whenever they found one they wanted to challenge and were otherwise time barred?

 

Justice Kagan and Justice Jackson both talked about whether the Court’s pending decision in Loper Bright and Relentless on the Chevron doctrine, whether that would have any impact on the opening the floodgates argument the government made. And Justice Jackson also, I think, most directly asked about something that a lot of the justices seem to be thinking about, which is the stability of the regulatory world that we all operate in. So those are the three buckets that I set, as I said, the conversation moved around.

 

One thing I was particularly interested in—and maybe -- and I’d love to hear from the other panelists on this—but it seemed to me that the Court was particularly interested in consequences and not surprisingly so. And I thought both advocates did an excellent job, but they both seemed -- I would have thought they would have had pat answers on the consequences. And both times, it kind of veered off into, “Well, we don’t know this, and we don’t know that,” which I think is true. That’s a perfectly accurate argument, but -- or response, but I was a bit surprised by that.

 

I guess, secondly, I want to just talk just a bit about what didn’t really come up in oral argument. And the first one I mentioned was a real grappling with the statutory text. That didn’t seem to be what most justices were focused on. They did talk a lot about, as I said, consequences, fairness, and maybe that goes to whether Congress intended either outcome, whether that’s a reasonable interpretation of Congress’s intent. But with a few exceptions, the justices just didn’t seem to be wanting to delve into the text very much.

 

There was an interesting point raised in the government’s briefs and at the end of oral argument about how the focus was really on rules. And the attorney for the government said, “This is not just rules. This would have the applications in permits and denials of permits.” And that really opens up the scope of what we’re talking about.         And I would say the justices did not  seem particularly interested in pursuing that.

 

One question that I’ve had following this case that no one seemed to talk about was, “How would this work for individuals?” So we’re talking about businesses, and you incorporate after a rule is issued, promulgated, how does that affect you? How does it work for individuals? So if you want to challenge a land use regulation in Colorado, how—and you live in Wyoming—where -- when does your injury accrue for challenging that? But that didn’t seem to come up at all.

 

And finally, I was looking -- or when listening to the oral argument, I was really trying to see if there was any interest, whether it sheds light on whether there was interest for a narrow opinion of some sort. And I have to say, I did not get a strong impression that way. It seemed to me that the three generally more liberal justices—Justice Kagan, Justice Sotomayor, and Justice Jackson—were pretty -- seemed pretty solid in their support for the government’s position here. I didn’t get a lot of sense that they were grappling with the fairness element or that they saw that was the appropriate question to be asking here.

 

And then from the other -- the six other justices, I didn’t really get a sense either way. I’m not a great one for reading tea leaves, so take this all with a giant grain of salt. But I kind of thought that, as I said, the three liberal justices seemed to be in favor of the government. In terms of justices leaning toward Corner Post’s position, I thought -- my read on the argument was that Justice Gorsuch seemed favorable to their position and that, if I had to say, I would say Alito -- Justices Alito and Chief Justice Roberts also seemed sympathetic at least.

 

And then as far as I could tell—and I’m very open to hearing from the other panelists on this—Justice Thomas didn’t tip his hand at all. And Justices Kavanaugh and Barrett seemed very, very interested and had a lot of questions for both sides. But in my view, I didn’t see where either their questions or the answers to those landed in terms of outcome or how a narrow opinion could be crafted here. So that’s all from me, and I look forward to hearing from the other panelists.

 

John Kendrick:  Thanks, Molly. And thanks to Emily for the introduction and the whole FedSoc team for organizing this event. I’m here today, really, because 10 years ago, I asked Professor Duffy for a note topic. He told me about this arcane statute that had apparently been misinterpreted by a lot of courts. I wrote my note on the topic, gained some traction, and here we are.

 

Before getting into the case, just two preliminary points. Obviously, I’m speaking here today in my personal capacity. I don’t speak for Covington & Burling. I don’t speak for any Covington clients. Also, in my day job, I’m an antitrust lawyer. I’m not an administrative lawyer, not an appellate lawyer. My expertise in administrative law, if you can call it that, is really just confined to the issues in this case. But luckily, we have lots of other very qualified panelists here today, so I think we’ll be able to get through it.

 

So with those preliminary points out of the way, just a few thoughts on the Corner Post case and particularly the text and on yesterday’s argument. So starting with the text, yeah, I agree with Molly that the argument didn’t really focus very much on the text. And frankly, I just think that’s because the text is so clear. So there wasn’t much to say. A plaintiff’s claim just can’t accrue until that specific plaintiff can sue. And a lot of times that lines up with when the defendant acted, but that’s not always true.

 

And the word “accrue”—and at least in the statute of limitations context—has had this sort of plaintiff-focused meaning going back to the 1800s. As Justice Gorsuch so colorfully said, that that historical meaning is just encrusted on 2401(a). And it’s not just historical cases either, right? I think more recent cases interpreting the word “accrue” also take a plane of focused approach. Now, I’m not really aware of any case where the word “accrue” has been interpreted the way the government is suggesting here.

 

And back to the argument, it seemed like everyone sort of agreed that was the starting point at least. I think even Justice Kagan acknowledged that’s kind of the default rule, this plaintiff-focused approach, and I think that’s why maybe the argument wasn’t as focused as much on the text. And so that means the case really comes down to whether there’s a good reason to depart from the default rule in this case.

 

And I saw things similar to the way Molly did. I think you can really categorize the government’s responses—their attempts to get around the default rule two ways. I think one of their main arguments was pointing to other statutes in the administrative context with different limitations periods that are key to final agency action. And the government made the argument that those statutes mean that that is the default presumption, at least in the administrative context, for limitations periods. They should always run from final agency action.

 

The problem, as I see it, and as I think some of the justices saw it, is that all those other statutes, they don’t use the word “accrue.” They point to the issuance of the regulation or the promulgation. In fact, all those other statutes really cut against the government. What they show is that Congress uses words other than “accrue” when it wants to draft a time limit that’s based on agency action.

 

So then I think the second main species of arguments that the government made, it’s really -- it was policy, that the petitioner -- that the plaintiff-focused interpretation of accrue would just open the floodgates to APA suits challenging a lot of settled regulations. I think at the argument, the liberal-leaning justices seemed really sympathetic to that concern.

 

But, of course, as Molly said, there’s equities on the other side, too, right? It doesn’t seem fair to say that your claim accrued before you even existed. People in that situation never get their day in court, right? I’m sorry. I thought this was America. I get my day in court. And I think the chief and some of the other conservative justices seemed a lot more focused on that concern.

 

So then it just comes down to, “How do you weigh those concerns?” How do you weigh the opening the floodgates, the cost of that, versus this presumption that individuals get their day in court? And for weighing that, there’s no rule that a court can apply to weigh those two things, right? It’s really a policy judgment.

 

And if you’re a textualist, then you don’t really think courts shouldn’t be making policy judgments like that. That’s Congress’s job. And I think that brings us back to where we started. The text, right. Congress’s policy judgment is reflected in the text they chose, and they chose the word “accrue.”

 

With that said, I think people can have different approaches to statutory interpretation, and if you’re not as much of a textualist, I could see why maybe the context from the other administrative limitations provisions would cut in favor of the government’s approach or why maybe you would be more concerned with the floodgate’s argument. But I think that’s sort of what it comes down to is just your interpretive approach.

 

As for tea leaves, again, I’m not an appellate lawyer, but I think just based on what I said and how I think it’s really a question of one’s interpretive approach, I think it’ll just -- it’ll be a straightforward 6-3 case. I think the six more textualist conservative judges -- justices will rule for the petitioner and take the plaintiff-focus interpretation, and then the three more liberal justices will dissent.

 

And then I guess one last parting thought. Just from a pure politics angle, I think a lot of times, it’s important to remember that a lot of the plaintiffs who were trying to bring these administrative challenges are actually left-leaning plaintiffs, right? There’s cases where environmental groups and others were challenging regulations as insufficiently protective of the environments, and they have gotten blocked by this rule in this statute.

 

I’ve had lawyers who are representing immigrants and asylum petitions contact me about making this sort of argument in their cases, too, because immigration regulations may be having an impact on their case, and they may be time barred from challenging them. So I just want to make sure we keep that in mind, too, and resist the typical left/right framing of this case. And with that, I will pass the mic.

 

Prof. John F. Duffy:  Fine. I’m going to introduce -- our next speaker is Professor Morris from the University of Texas—another flagship state university law school, which, of course, are the best kind of law schools. I think she and I will agree on that.

 

John Kendrick:  Me too. I agree.

 

Prof. John F. Duffy:  And John Kendrick will, too, being one of our great graduates of this law school. Professor Morris, among her other accomplishments, has recently published—and I mean really recently, just a few months ago, maybe two months ago—an article on this very topic. She must have started the project before this case was granted cert because it could not be written that quickly unless she’s far faster a writer than I am.

 

I love the title, too. It’s called Old Regs. I like that, short for old regulations, which is really what’s at issue here in this case. And I think she has one of the best formulations about the rule, and I’ll read it to you. And I think the government actually channeled her a little in the oral argument. I thought the government had not really focused too much on the text.

 

She writes, “Pursuant to the APA, a cause of action arises at promulgation of the -- or other final agency action and then exists and continues waiting on change for an eligible plaintiff to come along and raise the claim.” I think that is one way to look at the text, that the cause of action sort of accrues, meaning it arises. And then it’s a completely different issue to have an eligible plaintiff who can come along and take advantage of that cause of action.

 

And she draws on -- among other things, she has expertise in tax law. She draws and gives a nice example on tax law that oftentimes the Anti-Injunction Act prohibits people from raising facial challenges to tax regulations. And she says, even in that context, the cause of action accrues, meaning it arises at the time of promulgating the regulations. She takes on this, I think, hard hypothetical, that the cause of action could arise and accrue when no one can sue. She takes that on in her article straight away and sort of gives the other side its due on this hard hypothetical.

 

With that introduction, I’m going to turn it over to her. She can probably explain her position much better and also perhaps give her view of how the argument went yesterday for the government.

 

Prof. Susan C. Morse:  Well, thank you very much. It’s such a pleasure to be here. I have indeed been thinking about this statute for a while. I understand not quite as many years as some others on the panel, but it’s -- it was kind of a neat experience to see it come up at the Court yesterday.

 

I agree with the government, basically, or with the result that the government seeks. I quibble with some of its reasoning, which I’ll mention as I go through a couple of remarks here. But that’s the basic outlook that I have.

 

I had a three-bucket way of shaping the argument, too. The buckets overlap in some ways but not perfectly. My three buckets are text, precedent, and policy. And I think that one thing that thread through the argument for me on the text side was the idea that “first accrues” means when the claim arises, when all the elements of the claim are present, and the plaintiff being able to sue is just not part of that. I thought that Justice Kagan came again, back to that again and again, through the course of the argument, and I’m not sure that any justice really contested that idea in some sense, in order to open up that analysis.

 

What had to happen was that there had to be an acknowledgment that “accrue” can depend on context. And I think that the justices settled on that at their oral argument, that the precedent of Crown Coat, for example, was essentially argued to a draw, which basically opens up the possibility for the Court to decide the question of what “first accrues” means based on precedent and on policy as well as the text. In other words, they’ve made this textual analysis open and available.

 

The government received an unexpected assist in its definition or explanation of “first accrues” from a textualist perspective. As “first” arises, all the elements of the claim are present, even if the plaintiff has not yet identified by the petitioners themselves in their reply brief because they conceded somewhat unexpectedly, I think, that for some kinds of procedural claims—specifically notice and comment violations—they say, “Likely that claim does accrue at the time of promulgation.”

 

And it seems to me that once they have made that concession, they have made the textual concession that is necessary for the Court to produce the result to come to the decision that “first accrues” means “first arises.” All elements of the claim are present because, of course, in a notice and comment claim, also, it is the case that what’s available for the claim at the time of promulgation is the elements of the claim, the administrative record. You didn’t consider a comment; the preamble was not sufficient in its response, and so forth. But that doesn’t mean that a plaintiff is available for a notice and comment claim.

 

So that, I think, was a really important logic step and is really going to help the government’s argument in this case, assuming the Court is attentive and cares about that concession. There was some evidence that they did.

 

Once you are there with the notice and comment claim, the other two pieces of the argument—which happen to track the two claims that Corner Post makes—one, that the regulation was arbitrary and capricious, and second, an ultra vires claim that it exceeded the statutory authority. Follow along, it seems to me, the same textual analysis because once the textual analysis is there for notice and comment, it is basically the same textual analysis for arbitrary and capricious and for ultra vires.

 

At the time of promulgation, all of the information is there to decide whether or not a claim -- excuse me -- the regulation is arbitrary and capricious. The claim just sits there waiting for the eligible plaintiff to come along and similarly with a facial claim about in excess of statutory authority. So I think that that’s kind of where I see that textualist piece of the argument, and I want to move on to the second idea, which is precedent.

 

This was a very interesting one, I thought, at argument yesterday. One of the very first interactions that petitioner’s counsel had with Justice Thomas was, to me, very telling with respect to precedent. Thomas asked and asked repeatedly, basically, “Is there a case that you can give me where a court has arrived at the result that the petitioners seek?” There was no such case. The petitioners could not produce one.

 

The best they can come up with is this Herr case in the Sixth Circuit. But Herr doesn’t really say what the petitioners want the Court to decide in this case. In other words, even though this was really stressed at briefing—and here, I think the government made an error in accepting this characterization—I don’t think there’s a circuit split. And the government suggested that maybe it thought there was, and then the petitioners ran with that.

 

But the thing about the Herr case is that it is a case that doesn’t involve an ultra vires claim, doesn’t involve a Chevron claim, as the Corner Post case does. Instead, it really involves a claim that a federal regulation violated a state property, right? And in addition, it’s just this close to being an as-applied claim because the federal agency sent a letter saying that it was going to enforce in Herr, even though it didn’t actually stop—it was a motorboat case—stop the motorboat on the lake and try to assess a fine.

 

So it’s really just not the same kind of case. So we don’t have a circuit split, I don’t think, in this case, let alone a broad and deep circuit split of the kind that would allow the government -- excuse me -- the Court to appreciate the different viewpoints developed in the lower courts. The overwhelming weight of precedent here is in the government’s favor.

 

It’s even true, as the solicitor general office, the representative, pointed out yesterday that even district courts in the Sixth Circuit are not reading Herr to require accrual at the time -- at the later time when the plaintiff acquires standing. The very same regulation was time barred as far as the challenge goes in a case involving a pizzeria, which the government pointed out yesterday.

 

So that brings me to my third bucket, which is policy. I agree completely with Ms. Nixon’s approach of contrasting the two things that were going on in the case as far as policy: on the one hand, fairness, that is, that a plaintiff should have its day in court, on the other hand, the question of consequences or stability in the law.

 

And so the issue with those two things and contrasting them, I think, is important. The government had a nice example on the stability in law point, which had to do with this example of someone visiting a dam for the first time and being sad. The dam had been erected despite their interest in seeing the snail darter or something like that, some kind of wildlife or endangered species concern perhaps.

 

This question of land use and land-use stability is really important. It’s not just tens of thousands of dams but also tens of thousands of roads and other land improvements that have been approved through various administrative actions—doubtless some with procedural footfalls. And that will be presumably open to challenge if the government rules in favor of the petitioners. Indeed, this whole area of case law began with two decisions relating to land use orders issued by the Bureau of Land Management in the ‘60s and ‘70s. So I think that the stability of law point is an important one.

 

I also agree that the access to court point is an important one. And here, I want to make two points that I wish had been emphasized a bit more in the government’s presentation because I think that what the government says about the very limited access to court in as-applied actions, which, of course, under prevailing case law arise -- the statute of limitations accrues later for as-applied actions, not for administrative procedure claims, but for ultra vires claims.

 

So the as-applied avenue to court, I think, is a little bit broader than the government claimed. The government suggested it had to proceed from an enforcement action. But there actually are examples of cases where a plaintiff can get into court even though the government action does not directly impact them.

 

A key Supreme Court precedent here is Allen v. Wright. Standing didn’t exist in that case, but there’s been found in other cases where there’s a sufficiently close causal link between a regulation and a third party’s action. So a nice example is a couple of cases where male athletes who were aggrieved by Title 9, substantial proportionality guidance in the 1990s, their teams were cut: wrestling teams, for example, or swimming teams. And they sued their universities.

 

And they also, in some cases, were able to join the Department of Education. The theory was that it was really the Department of Education substantial proportionality safe harbor guidance that had caused the universities to cut the teams. And so I don’t think it’s necessarily impossible for a plaintiff like Corner Post to get the Federal Reserve into court on an as-applied basis. I do think that we have to work a little harder to do it.

 

Final point—also with respect to possibly an expanded route to getting to court—is equitable tolling. So this used to be an issue of some controversy in terms of whether 2401(a) was subject to equitable tolling and other equitable exceptions. Now, I think that is largely resolved, although the Supreme Court has not ruled squarely on it after a 1990 precedent, Erwin, which interpreted a related statute.

 

And so here, the point is, if it is the case that, for example, the government’s misconduct or a particular action taken by the government in some way prevents a plaintiff from suing who would otherwise be eligible, then equitable tolling could provide relief or equity, I think. I’m in the group of people that thinks that equity is going to become more and more important at the Supreme Court and federal courts, and this may be an example of where it does what equity has always been meant to do, which is to provide adjustments in appropriate cases. Thank you so much again for including me in this.

 

Prof. John F. Duffy:  Thank you. Thank you, Susan. I actually just want to ask you one follow-up question because we’ve got one more minute, which is you talked a lot about whether there’s a circuit split. Do you think there’s any chance that the Court will dig this case, dismisses improvidently granted, or do you think that perhaps what the chief justice said, “This is pretty fundamental. It should have been decided a long time ago.” Do you think they’re going to decide it, or do you think they might just say, “Well, we look closer. There’s not a circuit split. Maybe we shouldn’t decide it.”

 

Prof. Susan C. Morse:  I wish they hadn’t granted it, and I think they do, too. On the other hand, a dig is an acknowledgment that their process for accepting cases has imperfections, and they should have been able to see perhaps that there was, at least, a clean and deep circuit split in the beginning. So I don’t know that I’m enough of a court watcher to really predict, but I feel like that would be the trade-off.

 

Prof. John F. Duffy:  Yeah. I think they’d never admit that the process for cert—that’s run mainly by law clerks just a few years out of law school—that that has any imperfections whatsoever. I think that they would not want to even hint that.

 

Our third panelist is Michael Buschbacher, who is an appellate lawyer. We’ve had people disclaim being appellate lawyers, but he is an appellate lawyer. And he also is a graduate of Notre Dame Law School, if I’m correct about that, which I had the great fortune to teach as a visitor last year there. So I think it’s a wonderful law school and great place to get your education. Certainly, as a former Irish Catholic altar boy, I thought it was a highlight of my career to have an ID from the University of Notre Dame. So I’ll turn it over to you as our appellate expert.

 

Michael Buschbacher:  I’m Dutch Reformed, so that was an interesting experience in other ways—though I loved it. I want to take off what Susie was just talking about with the point about equity. And I have thoughts on some of her other points as well that I’ll get to.

 

But I think there’s lurking in the background here a very interesting issue about the scope of equitable relief. So the rule is if you’re in equity, you’re talking about latches, and there’s equitable tolling, which is an extension of statute of limitations. But you’re in the land of equity. You get latches. If you’re in the land of law, you get a statute of limitations.

 

And one of the things that’s very interesting to me about the argument is how much confusion about what was Congress thinking trying to figure that out. And if you look even closer, it’s very strange, the saga that gets you here. Going back to this statute—the Little Tucker Act where this statute of limitations comes from—originally codified in the nineteenth century was recodified in the ‘40s with a few little tweaks.

 

And then that’s right around the same time that the APA was enacted. And you would think these would be coming up all the time together, but they don’t. No one even thought to apply 2401(a) to an APA pre-enforcement claim until the ‘80s. I looked for this. The earliest cases I could find were from the ‘80s, which is very strange.

 

And then when you read the quintessential cases about pre-enforcement review, like Abbott Labs, the same complaints we heard the government talking about with the floodgates and the challenges of being the best funded and best resourced litigant in the world by being the federal government, they said the same thing back in Abbott Labs, right?

 

So this is 1967. The Supreme Court says, “If the government -- solicitor general raises complaints that if you allow non-statutory review here permitting -- they will permit resort to the courts in this type of case and may delay or impede effective enforcement and lead to a multiplicity of suits in various jurisdictions challenging other regulations.” And the Court said that’s not a problem. It’s an equitable suit, right? It’s a declaratory judgment action, and it’s subject to equitable protections for abusive litigation, including -- they explicitly say, “latches.”

 

Now, no one applies latches to this kind of thing anymore. And what I think happened is a strange change elsewhere in the APA shifted focus in a way that changed the ultimate kind of way people think about this, and that is getting rid of sovereign immunity in the APA and also the changes in the Federal Tort Claims Act that got rid of the idea of suits against the United States.

 

The United States historically is protected by sovereign immunity as a litigant, but individual officers were not. You could sue an individual officer. This is the Ex parte Young case—many other cases following on this. And they say, “Look. If you are acting outside of your legal authority, you’re just subject to suit. You can’t claim the mantle of sovereign immunity.”

 

And just look at the captions of cases that talk about this, right? It’s not Abbott Labs v. United States. It’s Abbott Labs v. Gardner. By contrast, the Crown Coat Front Co. case, that is versus The United States, right? It was a claim. It was a money claim, a contract claim. And so that’s why 2401(a) applied. So that distinction has fallen into desuetude with the changes to the federal statutes governing federal tort claims and sovereign immunity in the APA context. But I think it still actually has a lot of meaning here.

 

Now, this isn’t something the Court got into, and it’s not necessary because the parties agreed that this was a suit against the United States on the theory, I think, that the Federal Reserve Board is an instrumentality that’s functionally equivalent to the U.S. But I think that distinction does matter. And it brings me to the second point, which is the phrase in the statute—and I think this is something that didn’t get enough attention yesterday.

 

It’s not when something first accrues. It’s when the right of action first accrues. I’ll push back a little on Professor Morse’s point. The notion that something can accrue as a right in the abstract makes no sense to me, unless you’re talking about some kind of public right, something that accrues the public at large. But there is no case. I don’t think there’s anything in Professor Morse’s article—certainly nothing in the government’s brief or anything they pointed out at argument—that interpreted “accrue” and “right of action” in that kind of way.

 

But to get back to my equity point, I think the right of action also has another little clue to the meaning of 2401(a) that I think folks have missed, and that is that a right of action is a right to obtain property, money, chattel, that kind of thing. It’s sometimes referred to as a chosen inaction. The Herr case, actually, in a different section has a very nice discussion of this by Judge Sutton.

 

And the notion that an APA pre-enforcement suit involves that kind of right makes very little sense. What you actually do in a pre-enforcement suit is you raise an affirmative defense in advance, right? You say, “Look. If you were to apply this regulation to me, my affirmative defense would be, ‘Your regulation is invalid.’” And the Ex parte Young theory applied to pre-enforcement review and administrative law is that you can bring that affirmative defense as a pre-enforcement claim.

 

Little odd to have it come up in a case, Corner Post, that doesn’t involve any potential enforcement because it is someone who’s an object of the regulation but who has -- is never going to be the subject of enforcement. Banks get to set these swipe fees, and then these folks have to pay them, and the cap is set by the government.

 

But in any event, I think that the Court got it right back in Abbott Labs, and I do think it is a strange move to have applied 2401(a) across the board to APA suits. I think a lot of the puzzles and head-scratching things from yesterday’s argument come down to it’s just kind of evolved in this weird way.

 

A few other thoughts on the argument. The notion that there’s some kind of textual basis that you could plausibly argue for the government’s position, I think Justice Jackson’s question where she tried to make this point shows why it doesn’t work. She said, “Just because it says, ‘The cause of action accrues’ doesn’t make it an accrual-based statute.” It’s a direct quote.

 

I mean, statutes either mean things or they don’t. And it’s fine if you think that they should mean different things depending on what you want. But the notion that accrual is somehow being -- plaintiff-focused accrual is somehow being projected onto the statute from outside, I think is just very hard to defend.

 

And I guess I’ll close with one very interesting point, probably to me, the most interesting part of argument. I thought argument wasn’t actually that interesting. But Justice Kavanaugh said, “What remedy is appropriate here?” because it seems like in order to get what they wanted, you’re going to have to vacate the rule and set it aside. And so it doesn’t apply to anybody because it applies to these folks only indirectly.

 

And the government is not challenging standing, and so that led the government’s lawyer to make a rather odd concession where he said, even though they’ve been saying vacatur is not a thing to say, “Well, in some circumstances, maybe vacatur is what’s potentially necessary to get relief under the APA.” And Justice Kavanaugh said, “Well, that’s a plot twist.” Of course, the response was, “I didn’t intend that as a plot twist,” which I thought was hilarious.

 

So the upshot of this case, I think, plays into a bigger debate about what the APA remedies are because I don’t think most folks would have any problem with following the text if all you had was some plaintiff-specific kind of relief where, “Hey, look. Why should you have to wait for an enforcement action and defend against it? You can just do what happened in Ex parte Young as long as you meet the normal requirements.” That seems very normal and fair to me, at least, in accordance with the text. It seems to me all of the difficulty here arises because of the scope of the remedies that are available under the APA, at least as currently interpreted.

 

So how this ties into all those things and what the Court ends up doing is, to me, going to be very interesting. And I also hope—though it didn’t come up at argument, and I’m sure they didn’t read my amicus brief—but I do hope that this idea of equity and that latches might apply to officer suits under the APA that that gets left open for another day because I think it’s a very interesting question.

 

Prof. John F. Duffy:  Yes. And we have 20 minutes now for a moderated discussion before we get to the questions. I might start getting -- moving questions from the audience into the discussion, too.

 

I do want to say I think this is -- because I teach ad law, I think—administrative law—I think this is just a fascinating case because it links up a whole bunch of other issues. In fact, one of the things I think is most fascinating about this case -- and I try to instill in my students in administrative law that there’s a big difference between suing the officers and suing the agency, which is what is named as the defendant in this case. They sued the board of governors, not any officers.

 

With respect to the officers historically, first of all, for the first 30 years of the Administrative Procedure Act, you had to sue the officers. If you made the mistake of either suing the agency by name—which is part of the government, or the government the United States by name—you got your case dismissed on sovereign immunity grounds. The APA was amended in 1976 to change that, as Michael mentioned.

 

The lead person at the Justice Department for that change was Antonin Scalia, then an on-leave professor from the University of Virginia, which I think is very interesting. And that led to -- that’s the reason why this statute never got applied before the 1980s. I’ve looked, too. You don’t see this issue arising until after the 1976 amendment because no one would think that an APA suit was against the United States because if it was against the United States, it would get dismissed. So it’s a fascinating question about whether latches should still apply if you name the officers.

 

I teach my students, and here’s a little practical point that comes out of deep theory, I think, that always sue both. We’re in the United States. You don’t have to just sue one. Sue everybody. Grab them all, and let God figure that out. Sue it all, and you might have different options based on the different parties in your suit. And I think that’s kind of an interesting thing to think about. And if it’s latches, I’m not sure latches reaches a different result in this case, but it might. And Professor Morris brought up those equity points, too.

 

So now, I’m going to -- let’s see. So that’s actually, I think, part of that little exegesis there was about why the chief justice -- an answer to the chief justice’s question about why it took 60 years. It really hasn’t taken 60 years. The first 30 years of the Administrative Procedure Act, this could not come up. And then for the remainder of time, it’s been percolating in the lower courts as courts have tried to apply this statute.

 

A big deal—and I want to throw this out to all panelists but especially Professor Morris—is that in the briefing and in the Sixth Circuit Herr case -- which I must say was written by Judge Sutton, and I think that might be why the Court thought there’s a circuit split. Multiple circuits versus Sutton. They think that’s a real circuit split because Sutton has such a reputation on the Court. So a lot was made about the difference between statutes of repose and statutes of accrual-based statutes of limitations and repose.

 

With the basic, I think, gist of this being that “repose” looks to the defendant’s conduct and starts the time period running then, and “accrual” looks to the plaintiff’s ability to sue and starts the time period running then. This case tries to, I think, blur that line quite a bit. And so I want to ask—maybe starting with Professor Morris. Is that a distinction, or is that distinction itself very blurry?

 

Prof. Susan C. Morse:  Thanks for the question. I think that the idea of statutes of repose versus statute of limitations is a valuable and good distinction. I also think that it arose out of concepts of private law, where the thing that produced the cause of action or produced the lawsuit was an interaction between two people: the plaintiff and the defendant.

 

Of course, with the Tucker Act and other developments, that model of a transactional breach or atrocious encounter and so forth between a plaintiff and defendant has moved so that, of course, the government can now be a defendant in the suit, just as a private party is. And in that binary context, it does make some sense to have a distinction between the two, that a statute of limitations would -- is -- one way you can describe a limitations period that depends on when the plaintiff can sue, and a statute of repose is a way of describing a limitations period—usually shorter—that depends on what the defendant did -- excuse me, usually longer is what I mean to say. It depends on what the defendant did when the defendant acted.

 

But the thing about this is that it’s about the action of an agency that could affect many people. I have thought a bit about this public rights question, and it does seem -- and indeed, there is language not only in, for example, Wind River, but also in Sutton’s opinion, in her, that is supportive of the idea that administrative procedure is a matter of public right. It’s a democratic adjacent process that promotes participation and tries to get to high-quality rules for the sake of us all.

 

And that is different from a situation where a lawsuit arises from between a plaintiff and defendant. And I think that that is the reason why the statute of repose, statute of limitation vocabulary is not adequate to the task in this case.

 

Prof. John F. Duffy:  John or Michael, either of you want to comment on that?

 

[CROSSTALK]

 

John Kendrick:  I was going to say, I did have a couple of thoughts. This relates to what she just said in the earlier comments, I think, and the concession that looks like they made, that petitioners made, that this rule wouldn’t apply to procedural claims.

 

I think with the concession, if I understand correctly, isn’t necessarily that those claims accrued for everybody at that time. It’s more that plaintiffs that weren’t in existence when the rule was promulgated just weren’t harmed at all because the nature of the harm is lack of ability to participate in the process, and they just would never have been able to participate anyway.

 

I also think in terms of -- so blurriness and blurriness between when the defendant acted and when the plaintiff was harmed, and the Crown Coat case, I think, in that case, everyone was asking the same question. It was, “When is the plaintiff harmed?” And what was blurry is sorting through the facts and figuring out when exactly that was. But I think the legal meaning was clear. And what that quote means is just that depending on different contexts, it can apply in different ways.

 

Prof. John F. Duffy:  Michael?

 

Michael Buschbacher:  Yeah. I’m not sure what’s democratic about the agency rulemaking process. But insofar as it has a public aspect to it, I do agree with John that noticing comment injury—insofar as that’s an injury—if you’re saying I should have been able to comment on something but I didn’t, well, that doesn’t make any sense if you didn’t exist, right? You can’t say, “Well, I wasn’t around, and therefore, you have to reopen the comment period.” That’s not how it works.

 

If they’re saying something broader than that, I think I disagree with them. If they’re just saying there are certain process injuries that happen through the administrative process and those are by their very nature the kind of things that wrap up with final agency action, then that sounds right to me. But that, again, is completely consistent with the notion that John and I have put forward in the brief that we did, and John put in his article of a plaintiff-focused, harm-focused question for the Court to look at. Go ahead.

 

Prof. John F. Duffy:  Well, I would say -- and I must say I also submitted an amicus brief on the side of the petitioners. So if you think I’m being an unbiased moderator, I do apologize for that. It’s hard; it’s very difficult for me to be moderate. You can ask any of my colleagues.

 

But I will say that I think that my view is, with respect to statutes of repose and statutes of limitations, accrual-based statute of limitations is that there is a range of meaning with respect to “accrual,” just like there’s a range of meaning with respect to the word “dog,” right? You could have a chihuahua, and you can have a German shepherd or an Irish wolfhound. Those are very, very different. But still, dog is not cat, and there is a difference there. So I look at it that way.

 

But maybe because I try to be a textualist that maybe that’s the way I look at it. And when the Court in this earlier case was talking about the shades of meaning, I think it’s more like there are shades of meaning. We have to figure out when the action -- when the plaintiff can sue. You can’t get across that fundamental distinction. I read Judge Sutton’s opinion in the lower court Herr case—the one that at least arguably created the circuit split—as trying to sort of sharpen that distinction.

 

John Kendrick raised one issue that has come up in the audience questions, too. And I want to give -- it was directed to Professor Morris, and I want to give her a chance to respond both to what John said and what our questioner from the audience.

 

The question from the audience from Michael Showalter is—it’s a statement, but I’ll just put a question mark at the end of it. He said, “Petitioner did not concede that the right of action accrues before the injury in the notice and common context”—in other words, for procedural claims. “The petitioner just said their client would have no injury in that case for that years-ago violation.”

 

At least both John Kendrick and our -- and Michael Showalter in our audience thinks that the concession wasn’t quite what you said it is. I wanted to give you a chance to respond to that, Professor Morris.

 

Prof. Susan C. Morse:  Oh, thank you. So the thing about a claim that notice and comment wasn’t followed is that although it’s true that the people who have the ability to notice and -- to submit comments and participate in notice and comment have to exist at the time of the rulemaking. There isn’t any limitation in the APA that says that it’s those people that can raise the claim that notice and comment isn’t followed.

 

You get to court through 706. It says, “If the question is presented that an eligible plaintiff can claim that a regulation was made without observance of procedure required by law.” And so what that means is that people who could comment can’t always raise the claim in court. And also, people who did not have the chance to comment can raise the claim in court. They’re just not equivalent.

 

Here’s an example. And finally, I get to talk about tax, which, of course, makes me very happy. In tax, it is very typical for people to make comments on regulations that say, “Please, government, be tougher on this taxpayer. Please tighten this regulation. Please make them pay more tax.” This is the right policy.

 

If the government disregards this policy comment and makes the nice regulation that allows the taxpayer to pay less in tax, the person that wanted the good policy result, in their view, pay more in tax can never sue. And that’s just the way the tax works, is there’s no general taxpayer standing. You have to actually be injured.

 

Similarly, on the other side, if it’s the case that someone didn’t have a chance to comment but they come into being or are injured within the six years and they make some kind of claim challenging the regulation, they can make the notice and comment procedural challenge as part of their litany of things consistent with putting everything you can into your complaint along the notice and comment is no good; it’s arbitrary and capricious; it’s in violation of substantive statute, and they all go kind of in the same place.

 

So I don’t really see that as relevant. I mean, to the extent it is relevant, there’s no personalized injury from notice and comment. I mean, you don’t like the reg. The injury is because you don’t like the reg. You don’t like the reg, and it’s a bad notice and comment thing, well, that seems just as much of an injury as, “I don’t like the reg because it’s arbitrary and capricious. I really think that that comment in the petitioner’s brief was an unforced error.

 

Prof. John F. Duffy:  Other panelists here, John, Michael?

 

John Kendrick:  Well, I mean, like I said at the onset, I’m  not an administrative lawyer and certainly not a tax lawyer. I mean, I don’t even do our taxes at home. My wife does the taxes. So I won’t get too in the weeds.

 

I will say maybe the issue isn’t as much the injury but redressability, right? It’s not an APA limit. It’s just Article Three, right? How could you redress the injury of not getting access or not having your comments considered if you just didn’t exist at the time? So it just seems sort of tricky, and there’s a lot to unpack.

 

Prof. Susan C. Morse:  There is some recent tax authority because a case -- Hewitt, for example, is a recent tax court case where the court simply said the regulation violated notice and comment, and therefore, it’s not applicable to the taxpayer in the case.

 

Prof. John F. Duffy:  Michael?

 

Michael Buschbacher:  No, I do think there is -- I’m not sure if this is exactly responsive to that. But this notion of facial and as applied, which I think ties into the notice and comment aspect of stuff, that gets -- and I think yesterday’s argument showed this. There’s a lot of unclarity and confusion about what people mean. Sometimes, it means who’s on which side of the V, right? Justice Kavanaugh did that in his PDR concurrence, PDR Networks concurrence.

 

Other times, people mean like, “You’re a defendant, and ‘as-applied’ means you’re not actually raising a claim. You’re raising an affirmative defense.” And I wish someone had said this at argument, but there is no statute of limitations for affirmative defenses. So the notion that you have a claim that could be barred by -- makes no sense because an affirmative defense is not a claim. There’s nothing to limit that when you bring it up. And that’s an important doctrinal point that I think was missed yesterday.

 

And then the government seems to use this to mean—and I think this is Professor Morse’s usage, too—to mean if there’s -- if the circumstances of the plaintiff matter to the case, and I -- and that’s how the government puts it at least. Maybe I’m misremembering something from your article [inaudible 01:04:50].

 

But that doesn’t make any sense to me because no case is like that. You always have to show that you’ve been adversely affected or aggrieved or suffered illegal wrong, and you have to have an injury in fact, right? There are lots of APA cases going back to toilet goods where someone wasn’t allowed to bring a suit because they -- even though everything else -- there’s final agency action, but they didn’t have a ripe claim or standing or whatever.

 

So in that sense, everything is “as applied” because everything ties into the plaintiff’s situation in some respect or another. So I just have never quite understood that distinction. I think that maps on some extent with the procedure versus substance thing. I wouldn’t draw that -- I wouldn’t introduce that distinction into how I read the statute.

 

Prof. John F. Duffy:  I actually have a question from the audience that I think follows on this discussion quite nicely. It’s directed to Professor Morris. It begins with the statement, and then I’ll get to the question.

 

So it says, “Professor Morris argues that the” -- oh, I should say this from John Lassoer (sp). I hope I’m pronouncing that right in our audience. “Professor Morris argues that the petitioner’s argument is too strong to differentiate between procedural claims, which -- versus substantive claims”—I’m editing here a little bit on the fly.

 

Then the question is, “Isn’t the government’s argument too strong to allow for ultra vires claims that are brought more than six years after the final agency action? Maybe you want to say those don’t get brought, or maybe there’s an out there.” Professor Morris?

 

Prof. Susan C. Morse:  I think there’s an out. I’m going to go back to the language of 706, which allows a reviewing court to hold unlawful and set aside an agency action. And in the case, which is maybe the paradigm as applied case, where the government is enforcing the laws entering into an enforcement action, that’s the government action.

 

So I think that, in that sense then, that the as-applied piece actually works quite well with the government’s argument, which Justice Kagan, again, emphasized that the question is, “When do you have all the elements of the claim?” If what you’re arguing is that the government injured me in this enforcement action, then one of the elements of the claim is that injury, the tax audit or -- and so forth. So that doesn’t seem so problematic to me.

 

I think that it is a little bit more difficult to see why the as-applied piece is better, is -- I mean, is different, I mean to say, and accrues properly later in the case of -- like an Allen v. Wright example of a plaintiff suing not only the person that harmed them but also the government that made the regulation that caused the person to harm them. And I gave that Title 9 example of a plaintiff suing a university and the department of education.

 

There, maybe it’s a little bit more difficult to see because it’s the university, for example, that has hurt the plaintiff. But the argument has to be, “Okay, but the reason that the government gets into the case is because the government’s regulation caused the third party to harm the plaintiff, and that happened currently and later. And it’s that action that produces the cause of action and begins the limitations period running.”

 

Prof. John F. Duffy:  Okay. Other panelists want to comment on that issue? John or Michael?

 

Michael Buschbacher:  I’ll just point out that enforcement actions are not usually considered to be final agency action by an agency.

 

Prof. John F. Duffy:  So you’d have to wait for the enforcement action to be done and then seek judicial review once --

 

Michael Buschbacher:  Yeah. But even a court action against you is not final agency action.

 

Prof. John F. Duffy:  But then you could raise it as a defense.

 

Michael Buschbacher:  You could, yes, but it’s not the notion that you then get a restart. Sometimes, the government says, “Oh, that’s the new thing.” They go back and forth about this if you read their briefs in different cases. It’s a strange point for them to make, I think.

 

Prof. John F. Duffy:  Yeah. I think they raised issues like FOIA and other things like that, which I think they have an answer to, which is their answer would be -- well, let’s say we had some old regs about FOIA, and maybe they’re suspect. Maybe we did something wrong with those regs. But when you apply for -- get certain information out of the government, the government says no, that’s a new final agency action. And then all bets are -- then you can raise any claim that you want to.

 

Frankly, I think that’s a little bit of a big concession. I’m not so sure all the lower courts think that that’s the way this statute of limitations works. They might be willing to bar some of those arguments, but I think the government is willing to throw that under the bus. Is that right, Professor Morris? I see you might be --

 

Prof. Susan C. Morse:  Yeah, I am thinking about that. I think that what -- as I read the precedent, in an as-applied action, an as-applied action doesn’t open up, for example, the claim that notice and comment was faulty. It doesn’t do that.

 

Prof. John F. Duffy:  Right.

 

Prof. Susan C. Morse:  It opens up the ultra vires claims for sure. And then as we saw an oral argument yesterday, there’s some back and forth about whether an arbitrary and capricious claim is a procedural claim, or is it closer to an ultra vires claim? And I think it’s the former, but there was back and forth about that.

 

But just staying with notice and comment on the one hand and ultra vires on the other, there’s case law in both the Second and the Ninth Circuits—really good, clear facts that, at least in those two circuits, that an enforcement action does not open up a pure administrative procedure claim, but it would open up the ultra vires claim. That makes sense to me because if an agency applies a regulation and that violates a statute, I think there should be a cause of action later on.

 

Prof. John F. Duffy:  Well, that raises another question from an audience member.

 

Michael Buschbacher:  I mean, if you fail to go through notice and comment, that violates the APA, which is a statute.

 

Prof. Susan C. Morse:  Yes, that is true, but there is no new procedural action later that starts the clock running again. And in addition, the policy argument for starting the limitations period earlier for administrative procedure claims, I think, is particularly strong to start it and then close it.

 

Prof. John F. Duffy:  Well, I think I know the answer that people will give to this question, but I want to read the question from the audience. The question from the audience says that could interpreting the Little Tucker Act to prevent pre-enforcement challenges on ultra vires grounds raise constitutional questions? Possibly, the chief justice might have suggested that, although I think it’s quite ambiguous, that portion of the oral argument. And so I wanted to ask about that.

 

Now, obviously, this question is focused just on the pre-enforcement. We’re not talking about if the government comes after you, yeah, you can definitely raise the ultra vires claim. But could it be that it’s -- there’s a constitutional question, or given that we construe statutes to avoid even serious constitutional questions, is there a serious constitutional question that curtailing pre-enforcement rule review on ultra vires grounds is problematic? That’s the question from the audience, not my question.

 

So, John and Michael, do you want to lead off on that? I keep picking on my fellow professor. Several of the questions were directed to her, which I always view as a good thing. I think if you get a lot of questions, people are engaged with your ideas.

 

Prof. Susan C. Morse:  I am having a good time with this panel. This is great.

 

Michael Buschbacher:  John, you want to go?

 

John Kendrick:  I guess. I mean, I guess the question is, “Is it a constitutional avoidance issue” or something like that? And maybe as part of that, it sort of drives home the point that it’s weird to say that the same word has different meanings depending on the claim that’s at issue because there’s nothing in the text of 2401(a) that distinguishes between the types of claims.

 

And I think the tangential issue that raises the issue of if you have canons of avoidance or the rule of lenity that apply in one context in which the statute is applied, whether that means you also have to have it in another context. I think Judge Sutton actually has an opinion about this, too, about how if you have a statute that has multiple applications, one of them criminal, other civil and if you apply the rule of lenity in the criminal context, whether you also take that same meaning in the civil context, too. So maybe that’s a bit tangential, but that was my reaction.

 

Michael Buschbacher:  Yeah, I agree with that. And I also think the -- if you look at Ex parte Young, it does say that if you fail to raise -- if you fail to allow that kind of pre-enforcement review, that can run into a due process issue. I think Thunder Basin and some of these other cases suggest much the same.

 

And it’s consistent with the kind of underlying grundnorm for interpreting the APA, which came up a lot yesterday. It was like, “This is a judicial review favoring statute, has a strong presumption”—the Court says in Abbott Labs and other cases—“in favor of judicial review.” And one of the things that’s always struck me about the response, “Oh, we need to curtail this” is why are we afraid of too much judicial review? That seems odd to me.

 

It’s very hard to be an agency. I get that. And it’s hard to defend a bunch of suits. And I’ve done that before. And nevertheless, it seems like if an agency is breaking the law and that’s harming you, you should at least have a chance to go to court. And to the extent that the statutory construction is up in the air—which I don’t think it is. But to the extent it is, I do think that constitutional norm and the APA norms put a thumb on the scale, pointing it towards more judicial review and not less.

 

Prof. John F. Duffy:  So I have a question, not from the audience, but I think I’m going to take us even a little bit more broadly because there are a lot of other cases on administrative law up at the Court this year -- this term, I should say.

 

And I thought one of the most interesting things in oral argument was Justice Jackson’s question, which I think described the Chevron doctrine exclusively in the past tense. For Court tea leaf readers to -- this had my ears just lighting on fire when I was listening to the oral argument live.

 

The question was, “Would there be more upticks in litigation if the Court changed or said that the petitioners are right about how they read the statute?” And they said, “Well, maybe” -- the petitioner said, “No, the Sixth Circuit had its rule.” And one of the arguments Justice Jackson said was -- or question says, “Well, maybe there was no avalanche of cases because we had other doctrines.”

 

For example, the Chevron existed past tense. And I thought like, “Oh, really?” It did exist past tense. I think that that’s very interesting. I have a forthcoming article and also in the George Mason Law Review from a symposium. I’ve been against Chevron since the early -- since the late ‘90s. I never thought it was very good doctrine, so I would like to see it tossed overboard.

 

But did any other people think this was a tell, and this is part of -- with respect to this case, I thought it was actually perhaps a brilliant maneuver by Justice Jackson because I think that the chief justice, more than all the other justices, cares about stability and not seeming too radical. And if, in fact, Justice Jackson knows that Chevron is being not overruled so much as disavowed because the answer -- the outcome in the case is still probably correct, Paul Clement actually said they expressly agree that there’s no challenge to the outcome, but the framework is being gotten rid of.

 

If that’s true, I think maybe this is a great question from Jackson, who seems favorable to the government’s position, because it does suggest that keeping this statute of limitations will allow the Court to overrule Chevron but not destabilize things too much. So I wonder. First of all, if people think this was a kind of tell in the oral argument, and second of all, whether they think it was this, I think, perhaps brilliant gambit on Justice Jackson’s point to sort of try to get what could be a swing vote in this case.

 

Michael Buschbacher:  Well, since there’s silence -- oh, go ahead. Go ahead, Professor Morse.

 

Prof. Susan C. Morse:  Well, I also noticed that later in the argument, Justice Kagan took care to try to walk that back. She asked a question about Chevron but was very, very careful to frame it in the, “if” hypothetical format. The focus on Chevron has been very interesting, I think, because, of course, there’s so much else going on at the Court with respect to administrative law. It’s always been a set, as I think Professor Duffy has suggested a couple times this hour, of overlapping doctrines that interact with each other.

 

And I guess what I would say is, I think her point -- if we take that point to be as a descriptive matter, if we unleash one doctrine and then others at the same time, we may really have an unpredictable mess on our hands. And that would be more risky than simply relaxing one of them and keeping the other one where it is. That seems descriptively correct to me. So I guess if that’s what she was doing, I think that I liked it.

 

John Kendrick:  I’ll also say if it was a ploy to get the chief to go to her side, it seemed like he did not take it because he seemed almost the most strongly in favor of the petitioner. His reaction, like, “Why wasn’t this decided 60 years ago?” That was [CROSSTALK  01:19:45].

 

Michael Buschbacher:  Yeah, I agree with that. If I’m going to say who’s wearing the strategery cap, is it Kagan, or is it Justice Jackson? I suspect Kagan is the more of an operator, but that’s just speculation.

 

I think Chevron has been dead at the Court for a long. From that perspective, they did have Chevron, but when’s the last time they had a Chevron case that was a Chevron case? It’s been a very long time. I don’t know, FCC v. Fox or something like that. It’s been a while. I guess Kaiser sort of talked about Chevron like it was still alive. But since then, it’s been ignored, kind of like the lemon test or something like that.

 

So I didn’t read into it too much because I think it’s also just -- it’s a way of speaking about it. We did have it in previous cases, but it’s up for grabs, and everyone knows that. And I just interpret it as her saying -- much the same as Kagan, just slightly less precisely. I don’t think it was too much of a tell.

 

I think there’s a pretty good chance that Chevron goes. I’m not exactly sure how far you’re going to go. I’m not sure what happens to the next bubble rule. I mean, it seems to me that that’s probably still going to be okay, but I’m just guessing at that point.

 

Prof. John F. Duffy:  Yeah. Well, I think if you actually look at the details of the Chevron case, first of all, it was promulgated by Justice Gorsuch’s mother. That’s the actual rule that was at issue and unanimously upheld by the Court. I don’t think Justice Gorsuch is going to join an opinion that says, “Anne Gorsuch was behaving illegally.” I think the reasoning of Chevron is -- was really the problem. The implicit delegation theory is especially a good target, given that the government in its brief explicitly quoted the explicit delegation of rulemaking power that the agency in that case had.

 

But I don’t want to get this too off on Chevron. One of the things I think is a theoretical issue that -- maybe just it’s about how the Court should think about lower court precedent. And Professor Morris, this is going to come to you, this question. I think I gave it to you in advance, so it’s -- you’re well primed for it.

 

But one of the things that when I was clicking on the Court that I found most amazing was how little the Supreme Court typically cared about lower court precedent. You can see that in their opinions. They cite their own opinions very, very highly. They don’t cite circuit court opinions very much, especially if you exclude citations that -- where it’s just a statement of the facts that says, “This is why there’s a split,” and there’s a footnote that gives the split.

 

But you said in your George Mason Law Review article, the Old Regs article, you said that the lower court case law neither provides a careful examination of the statutory text nor considers the policy issues presented by the limitations period. So I guess I wonder. How much should the Court care about this, I think, certainly lopsided lower court case law that is in favor of the government?

 

Should they care about that a lot, or should they look at that as, “Well, a lot of that didn’t look at the statutory text. It’s from an earlier era when many courts didn’t look at the statutory text too carefully.” Or should they just weigh that with some sort of stare decisis metric, even if it’s not their own jurisprudence or their own precedent?

 

Prof. Susan C. Morse:  Yeah. The article certainly does say that. Of course, it was intended as a friendly amendment. The lower courts may not have had the energy to fully provide a reasoned explanation, so I will seek in this article to help you out.

 

But it’s certainly true that that doesn’t -- the words are still not there. There’s some policy. The examples of Wind River and Shiny Rock and Sutton in Herr, I think, are exemplars of that. But the textual analysis has historically not been a big focal point.

 

So I think that what I think I heard at oral argument both in the -- why hasn’t this been resolved? We’ve had six decades to do it. And in the Thomas exchange, looking for any court that had decided the way that the government -- excuse me, the way that the petitioners wanted was, I think, a curiosity about why it was that the lower courts had done what they had done.

 

And I thought I heard a fair amount of seeking on the part of the justices to try to understand why that would be the case. If they are frustrated because the lower courts didn’t say exactly why, I can understand that, too, but that’s kind of how I read them, as trying to kind of respect what this weight of precedent was and also looking for the explanation for it.

 

Prof. John F. Duffy:  Other panelists?

 

Michael Buschbacher:  Go ahead, John.

 

John Kendrick:  I was going to say, I remember having dug through all these cases way back when writing my note, and there definitely was not much, really, if any, reasoning based on the text. It was basically Wind River did some sort of policy analysis, and lots of other circuits sort of decided Wind River and took it without really any further thought. So I think if you’re the Supreme Court, maybe if it’s a lower court opinion that’s very well-reasoned, that can be persuasive, but I don’t think we have that in this case.

 

Prof. John F. Duffy:  I think that’s why your academic advisor thought it was a good note topic, if I recall correctly.

 

John Kendrick:  Yes, yes.

 

Prof. John F. Duffy:  Michael?

 

Michael Buschbacher:  I agree. It’s not that they have weak text. They don’t have any textual analysis at all. They just sort of assume the issue and move on, or they have a policy basis for rewriting it. Very curiously, Wind River was a judge O’Scannlain opinion, which Judge O’Scannlain is not some squishy purposivist kind of guy. So it’s an odd thing. I’ve never figured out why -- what he thought was good about that.

 

Prof. John F. Duffy:  Well, maybe I can -- we’ve got one minute left or at most two. Maybe we should do -- actually, on just that point, I’d say I do think there’s been this gigantic shift in 40 years of the left favoring judicial review on the right, skeptical, and I think that’s clearly the other way now. But rapid fire. Your prediction. Put you on the spot. Let’s go in alphabetical order. Michael Buschbacher.

 

Michael Buschbacher:  It’s going to be 6-3. It’s going to be focused on the text of right of action first accrues. That’s it.

 

Prof. John F. Duffy:  John?

 

John Kendrick:  Yeah. Same prediction with the majority written by Chief Justice Roberts and the dissent written by Justice Kagan. So I’ll even give you the justices, too.

 

Prof. John F. Duffy:  Susan?

 

Prof. Susan C. Morse:  I think the government can get to five with Kagan, Sotomayor, and Jackson, plus Thomas, who really, I think, was troubled by the fact that there was not a case in the lower courts on the government’s -- on the petitioner’s side, excuse me. Then one of Barrett, Kavanaugh, or Roberts, and I would think likely Barrett or Kavanaugh. But I think the government can pull this one out.

 

Prof. John F. Duffy:  All right. I think I am ending on time, which The Federalist Society will think that I’m a decent moderator.

 

Emily Manning:  On behalf of The Federalist Society, thank you all for joining us for this great discussion today. Thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website fedsoc.org, or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in, and we are adjourned.

 

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