The U.S. Supreme Court has scheduled oral argument for Tuesday, February 20, 2024 in Corner Post, Inc. v Board of Governors of the Federal Reserve System. The question that the Supreme Court will decide is when a right of action first accrues for an Administrative Procedure Act (APA) Section 702 challenge to a final rule issued by a federal agency—when the final rule is issued or when the rule first causes injury. This case involves a merchant who sued the Federal Reserve Board seeking to invalidate its Regulation II which caps debit card interchange fees. The district court and Eighth Circuit ruled that the six-year statute of limitations for bringing facial APA claims (28 U.S.C. § 2401(a)) begins to run when a final rule is issued, which meant that the limitations period had run before the merchant had opened his business.In its brief, Corner Post argues that if the statute of limitations for bringing a facial challenge under the APA can expire before a plaintiff is injured by final agency action, a plaintiff seeking to challenge a regulation beyond the six-year period would be forced to intentionally violate a regulation to induce an enforcement proceeding to manufacture an “as applied” challenge. The Federal Reserve argues in its brief that the tolling provision in 28 U.S.C. § 2401(a) would be unnecessary if the statute of limitations did not begin to run until a final rule first caused injury. Twelve amicus briefs have been filed in the case, including a brief supporting the Petitioner filed by the West Virginia Attorney General and 17 other state AGs. In its reply brief, Corner Post argues that the government’s argument misconstrues § 2401(a) and the standard accru

billion or more in assets) to 21 cents plus 0.05% of the transaction. It also allowed a 1 cent adjustment if the issuer implements fraud-prevention standards. The complaint alleges that banks continue to profit from debit card fees at retailers’ and consumers’ expense notwithstanding the requirement that the fee be reasonable and proportional. It alleges that the average authorization, clearance and settlement costs for covered issuers (excluding fraud losses) have been less than half of the maximum fee of 21 cents every year since 2009. The plaintiffs argue that the Durbin Amendment requires a case-by-case approach to whether an interchange fee is reasonable and proportional, not a single standard as the FRB adopted.The complaint, which was filed 10 years after the FRB issued Regulation II, was dismissed by the District Court as time-barred and the Eighth Circuit agreed with the lower court’s ruling. Claims arising under the APA are subject to a six-year statute of limitations under 28 U.S.C. § 2401(a) (“[E]very 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”). The Eighth Circuit concluded that “when plaintiffs bring a facial challenge to a final agency action, the right of action accrues, and the limitations period begins to run, upon publication of the regulation.” The Eighth Circuit further noted that the plaintiffs failed to show that they were eligible for equitable tolling because they have not shown that they had been diligently pursuing their rights.In April 2023, Corner Post, Inc. filed a Petition for a Writ of Certiorari with the U.S. Supreme Court without the two plaintiff state trade groups. We assume this was a strategic move because Corner Post did not exist when the FRB rule was issued and therefore is in a better position to argue that equitable tolling should apply. The question presented by the Petition is “Does a plaintiff’s APA claim “first accrue[]” under 28

What recent developments in federal preemption for national and state banks mean for bank and nonbank consumer financial services providers,” discussing the implications of the Supreme Court’s review of NBA preemption (other than Section 85 of the NBA which deals with interest which national banks may charge). The case is in the process of being briefed.Timing for Facial Challenge to Regulations: Lastly, in Corner Post, Inc. v Board of Governors of the Federal Reserve System, the Supreme Court agreed to decide when a right of action first accrues for an Administrative Procedure Act (APA) Section 702 challenge to a final rule issued by a federal agency—when the final rule is issued or when the rule first causes injury. This case involves a merchant who sued the Federal Reserve Board seeking to invalidate its Regulation II dealing with capping debit card interchange fees. The district court and Eighth Circuit ruled that the six-year statute of limitations for bringing facial APA claims (28 U.S.C. § 2401(a)) begins to run when a final rule is issued, which meant that the limitations period had run before the merchant had opened his doors for business. In its brief, the Petitioner argues that if the statute of limitations for bringing a facial challenge under the APA can expire before a plaintiff is injured by final agency action, a plaintiff seeking to challenge a regulation beyond the six-year period would be forced to intentionally violate a regulation to induce an enforcement proceeding to manufacture an “as applied” challenge. The Federal Reserve argues in its brief that the tolling provision in 28 U.S.C. § 2401(a) would be unnecessary if the statute of limitations did not begin to run until a final rule first caused injury. Twelve amicus briefs have been filed in the case, including a brief supporting the Petitioner filed by the West Virginia Attorney General and 17 other states. Oral argument has not yet been scheduled.In this New Year, our blog, Consumer Finance Monitor Blog, and

NOVA challenged the VA’s rulemaking under 38 U.S.C. §502, which has no specific statute of limitations. The Court noted that 28 U.S.C. §2401 provides that “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.” While that should have given NOVA six years to challenge the rule, Federal Circuit Rule 15(f) significantly shortened the time for challenges like NOVA’s: “A petition for judicial review of an action of the Secretary of the Department of Veterans Affairs under 38 U.S.C. § 502 must be filed with the clerk of court within sixty (60) days after issuance of the action challenged in the petition.”

Essentially, Odyssey brought the first two challenges too early, and the third challenge too late.Odyssey disagreed with certain PTO decisions and challenged their propriety in the US District Court for the Eastern District of Virginia. The district court dismissed the case, finding that it lacked subject matter jurisdiction as to the first two challenges, and that a six-year statute of limitations under 28 USC §2401 prevented it from hearing the third challenge. The district court thus found that Odyssey failed to state a claim.

For patents granted before January 14, 2013, the statute provided that such suits were to be brought within 180 days of the patent’s grant date. Although the patents at issue were granted before January 14, 2013, and more than 180 days ago, Plaintiffs assert that their suit is timely under 28 USC § 2401, because it was brought within six years of the patents’ grant dates. In particular, Plaintiffs assert that 35 USC § 154(b)(4)(A) applies only to PTA determinations provided with a Notice of Allowance, while the PTA determinations at issue here were not provided until grant.

The Government argues that such statements in the preamble are not part of the rule requiring notice-and-comment rulemaking as that statement was just a policy statement clarifying the rule. The Government further claims that Regenerative’s challenge to the HCT/P rule, which was issued in 2001, is time barred as the chalenge was not filed within six years of the rule being issued as required by 28 U.S.C. § 2401. The Government asserts that Administrative Procedure Act claims are governed by a “catch-all” statute of limitations of six years after the right of action accrues as described in 28 U.S.C. § 2401(a) unless a different statute requires a different timeframe.

Justice Ginsburg, in her dissent, responding to the stare decisis argument, states: "It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions." Justice Ginsburg also notes that 28 U.S.C. Section 2401(a) contains a time limit materially identical to that in Section 2501, and that the Courts of Appeals are divided on the question whether Section 2401(a) is jurisdictional. In conclusion, Justice Ginsburg states: "After today's decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts."For employment lawyers, I think the important question is whether the majority in any way suggests that Irwin, which is only seventeen years old, remains good law.

asked the government’s counsel whether there is “any interaction” between the statute of limitations question in that case and the Court’s consideration of whether to abandon Chevron deference in two cases argued a month earlier.1 The Assistant to the Solicitor General responded cautiously that “a decision for Petitioner here would magnify the effect of any other decisions changing the way that this Court or other courts have approached administrative law questions,” because it could mean retroactively applying new standards to administrative agency actions taken decades earlier.2 The decision in Corner Post could be hugely consequential if the Supreme Court recasts or rejects Chevron, because many regulations that were upheld under a deferential standard would be fair game for renewed challenges under a new and likely more rigorous standard of review.The issue in Corner Post is whether a challenge to agency action accrues for purposes of the general six-year statute of limitations in 28 U.S.C. § 2401(a) when the agency action becomes final—as is true of a host of specific statutes authorizing review of administrative agency decisions—or when a particular plaintiff has a sufficient injury to be aggrieved by the action. Corner Post, a North Dakota truck stop incorporated in 2017 that began operations in 2018, was added as a plaintiff to North Dakota trade associations’ facial challenge of an administrative rule issued in 2011 that allows high interchange fees on debit card transactions; after the district court held the claim was barred by the statute of limitations. If facial challenges to a regulation accrue when the agency issues it, then regulations issued more than six years ago will not be vulnerable to new facial attacks, although challenges to specific applications of a regulation (such as in an enforcement action or the issuance of a new permit) would be timely. But if Corner Post prevails, then the six-year period to bring a facial challenge begins anew for a company that is

nge fee” that merchants pay to the banks that issue the debit cards. Under the Durbin Amendment to the Dodd-Frank Act, the Board is tasked with capping interchange fees for banks with over $10 billion in assets at a cost that is “reasonable and proportional to the cost incurred” by the bank. In 2011, the Board set the interchange-fee cap at 21 cents per transaction.The APA provides that regulated parties can file a challenge to regulations “within six years after the right of action first accrues.” Corner Post is a truck stop and convenience store in North Dakota that opened its doors in March 2018. In 2021, Corner Post joined other plaintiffs in an APA suit in the U.S. District Court for the District of North Dakota challenging the interchange fee rule as not “reasonable and proportional to the cost incurred” by banks for each debit-card transaction. The Board filed a motion to dismiss Corner Post’s claims and the district court granted it holding that “[t]he limitations period under 28 U.S.C. § 2401(a) for bringing a facial challenge to an agency action begins to run at the time of publication of the agency’s action.” Practically, that meant that Corner Post’s statute of limitations expired in 2017, a year before the store was opened. Corner Post appealed the ruling.In affirming the district court’s decision, the Eighth Circuit joined five other circuits holding that the statute of limitations starts running the day that an agency takes a final action regardless of whether that action harms the plaintiff. In contrast, the Sixth Circuit has held that the clock only starts running when the agency action actually “invades a party’s legally protected interest.”In its brief filed in opposition to Corner Post’s petition, the Board argued that “[i]n a variety of circumstances, Congress has established deadlines for suit that run from the defendant’s allegedly unlawful conduct, without regard to any circumstances peculiar to the plaintiff.”As a practical matter, the Sixth Circuit approach w