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Notes -
Ledbetter v Corner Post
In Corner Post, the Supreme Court ruled that the statute of limitations to challenge an action by a federal agency begins to run when the plaintiff is injured by the action, even if – as happened in this case – that happens long after the agency’s action occurs.
By contrast in Ledbetter, the Supreme Court rules that the statute of limitations against (allegedly) discriminatory pay starts at the point when the action was made, even if the plaintiff alleges that they were continually injured (e.g. they continued to be paid less due to that action in the past, which is plausibly every paycheck).
I'm quite sympathetic to both plaintiffs, I think an applicable regulation and discriminatory pay between employees are both continuing injuries that ought to be actionable. And while I don't want to undermine Corner Post because it seems totally correct, it does seem that the Court was more solicitous of their complaint despite the similarities.
Corner Post, Inc v. Board of Governors, FRS
6-3. Barrett writes for the majority (all the conservatives join), Kavanaugh concurs, and Jackson, with the other liberals, dissents.
The case is over when a suit may be brought to challenge a rule, under the Administrative Procedures Act section 2401(a), which allows suits only 6 years after the right of action accrues. Perhaps relevant background to this case is how it was brought: a suit was filed illegally that the regulation on debit fees was allowing fees higher than the statute, courts ruled that it was too late, and so they amended it by bringing in a truck stop, Corner Post, which opened in 2018, and so, they argued, accrued its right of action recently enough. So the question, essentially, is: can rules still be challenged after six years from the passing of the rule, but within six years of some injury having taken place?
Barrett, writing for the court, with the other conservatives, says yes. Section 702 says, in effect, that those injured by agency action can sue the agency, or a few other relevant parties. Section 704 requires that (with some exceptions) judicial review is only available for final agency action. 2401(a) says 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." The Board reads accrues as when a claim is final, regardless of injury. But the Court disagrees; it accrues when there is a complete cause of action, which requires both.
2401 came originally from the Little Tucker Act, referring to non-tort monetary claims. It was subsequently changed into a generic statute of limitations. In 1948, the meaning of accrue, as also the case both before and after, understands the right of action according to this meaning (citing several Supreme Court cases and legal dictionaries). This has been recognized as the standard rule, and so, this is the "strong background presumption." And Congress new how to make other formulations, but this uses the standard language. 2401 is a statute of limitations (based on when it accrued), not of repose (measuring not from when the claim accrued, but from last action). An example of the latter is the Hobbs Act, which sets a deadline 60 days from the entry of the agency order.
The Board, and the dissent, agree that some claims accrue only when they have a complete cause of action, but not facial challenges of agency rules. Both they and Jackson find the many statutes that start at finality show that the standard administrative law rule is that it starts there. But that is not what the text supports. Further, given that Congress knew how to speak otherwise, that is actually evidence against it. And the statute reflects a broadening of language from the Little Tucker Act, which was clearly a plaintiff-focused context. The dissent argues that these existed before the act, and so it exists in that context. But it misses that the statutes that Jackson cites generally have to do with orders directly attached to one party. These do not contradict a plaintiff-centric accrual rule, because they suffer an injury at the same time as the promulgation of that order. So its history is not supportive. Instead, it is better to stick to the text.
The rule is plaintiff-specific. While the dissent rightly points out that it does not say "the plaintiff's right of action first accrues," it does still make sense to read "the cause of action" as connected to "the complaint" which precedes it in the statutory text, which is tied to the plaintiff. And the Court has explained in the past that the rule refers to the plaintiff. 2401 also clearly refers to the plaintiff in other contexts, as is conceded by all, and it would be odd for the same statute to have different meanings for different suits. (Barrett also footnotes that it would also be easy for agencies to avoid scrutiny entirely under Jackson's rule, by delaying enforcement for six years.)
The Board and the dissent cite two pieces of precedent: Koons and Crown Coat. Koons has to do with the federal employers' liability act, and requires action within two years within when "the cause of action accrued." This was held to accrue when the employee died, even if the estate's administrator was not appointed yet, and the administrator was the only person authorized by the statute to take action. But Koons said that the suit could still be brought immediately, and would just have to be amended afterwards. And so the parties in interest could seek relief immediately, and so this does not contradict Barrett's interpretation of the text. Crown Coat also does not disagree: they held there that the right of action accrued when the Armed Services Board denied their claim, because they had the right to resort to the courts only once that decision was made. And so it reads 2401 in a way that fits with what they do. But the Board and dissent try to argue from its dicta (nonbinding language of the case) that "accrue" does not have a fixed meaning, but should consider the practical purposes of the statute. But the Court there was not saying that it might have different meanings within a single statute, but distinguishing it from another case. Subsequent precedent has reinforced the traditional understanding.
The Board, and the dissent, also raise policy concerns: the agencies and so forth need the finality of a 6-year cutoff. But that does not justify departing from the statute's text. And that is somewhat overstated: there are other ways suits could be made over the same regulations—there is no finality either way. And of course, the opportunity to challenge does not mean that they will win; and often there will be precedent making handling the case easy. And this neglects the other side of policy arguments: in general, the APA presumes that anyone can have judicial review. This would leave parties with no recourse. And Barrett rejects the dissents worry that this will "devastate the functioning of the Federal Government"—does it think that many of the statutes on the books are full of illegal regulations? Or that courts will be flooded with too many meritless challenges?
Kavanaugh, concurring, addresses "vacatur", the ability to void a rule. That is required for Corner Post to have a cause of action here, as they are not a regulated party, but one harmed by the law being (they claim) insufficiently regulated. The Government recently argued that vacatur is not allowed under the APA, reading that "set aside" in the text does instead should be read as only referring to preventing from enforcing a rule against the plaintiff. This would revolutionize administrative law; shutting the door on many sorts of claims. Specifically, this case regards fee rules for banks (regarding debit cards). Corner Post is harmed by charges. They are challenging the regulation, which they argue is higher than is permissible; that it must be lower. They can only obtain relief through vacatur, because the rule is not enforced against them.
The APA, Kavanaugh argues, does authorize vacatur, in light of text and history, precedent, and consequences. The text and history allows vacatur. "Set aside" has that meaning, and it was often used that way in statutes that clearly considered vacatur of agency actions. The APA incorporated that. Precedent confirms this, as this court, and the DC circuit, have long handled it accordingly, allowing vacatur in these contexts. This is also needed for unregulated parties to bring suit at all, and so it is needed for the "basic presumption of judicial review" for parties harmed by agency action. This would insulate many rules from judicial review, which is perhaps why the Government suggested it. It would make it asymmetric, as regulated parties could challenge things to try to relax the rules, but other parties could not challenge to try to argue that they are insufficiently applied, in such a way that it harms them. It would remove entire classes of administrative litigation: suits alleging underregulation, often of their competitors. These are ubiquitous. This also includes other, non-competitor cases, like that of an insurance company challenging the removal of safety standards. It would apply also to the usual way to bring environmental suits. Or workers challenging rules loosening workplace safety standards.
The Government argued against that, saying first that vacatur is like a national injunction, but those are only available when authorized by Congress. But, Kavanaugh responds, they have been authorized by Congress, with "set aside." Second, it argues that they're looking in the wrong portion, which Kavanaugh argues is wrong. Third, they argue from legislative history that it was not intended to create new remedies, but this was not a new remedy. Fourth, they object to the real-world consequences of rules getting voided, which Kavanaugh appreciates, but that's not reason enough to scrap it. But the Government stepped back during oral arguments to argue that it might still be possible if it is the only way possible; but that is nowhere in the text.
Jackson dissents. She thinks it might be worth mentioning that this was a suit that had had a new party grafted onto it in order to defeat the statute of limitations. Jackson emphasizes that 2401 is a catchall, meant to apply to different sorts of statutes, and that the phrases "right of action" and "accrues" are not fixed in meaning, but depend on the context. 2401 is a catchall, applying when no other provision does. Its "right of action first accrues" is broad. Jackson notes that "first" means that we should generally look toward earlier interpretations. Jackson thinks that "the right of action" means different things in different contexts. She cites Koons and Crown Coat to show that accrues can refer to other meanings. She points out that when the majority acknowledges its characterization as the "standard rule," but it can be displaced. Jackson points to two contexts where accrue was read differently from each other, the latter of which being Crown Coat. Jackson emphasizes that 2401 does not specify that it is the plaintiff's right of action which accrues; it just says the right. Jackson acknowledges that many cases do say claims accrue when they have a complete cause of action, but those were made in particular plaintiff-specific cases, unlike this facial challenge, so they do not actually show what they purport to. She also thinks that statutes of limitations and repose are more similar than might be thought—in fact, one dictionary the majority cites treats the one as a form of the other—and then Jackson doesn't say her conclusion from this, but I assume it's that therefore it makes sense that 2401 could be both at once. The passage should be understood in context.
Jackson turns to the right of action. In various laws, the clock starts running from some government actions, like the Hobbs Act, for example, where suits are to be brought within 60 days after the entry of any final agency order, and many, many others. The majority does not note any other example, besides 2401 purportedly, where a right of action accrues in administrative law that poses it the way Barrett would prefer. And so the expectation for administrative-law should be that the timeline starts with administrative action. This was the case before 1948 as well as after. We should take this as the default intent of Congress. Jackson does not think Barrett's attempt to claim lack of the more explicit judgment elsewhere sufficient here: in general, negative inferences are risky. It is also relevant that 2401 is a catchall. One cannot expect it to be explicit in a catchall, and neither was it necessary, since that is the default rule. Jackson reads 702, limiting who may act, as restricting who may challenge, not as a component of the right of action. Jackson does not consider the injury an element of the claim (whether the agency acted in a way "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"), but rather is a threshold requirement about who may bring suit. Courts that follow do not look at the injury, only at the rule.
Jackson argues also that following the rule she suggests makes more sense. Statutes of limitations are enacted to provide, among other things, repose and certainty. But that does not exist whenever new entities can challenge every agency regulation. This harms both of those.
Additionally, this ruling is quite consequential, as now essentially everything can be challenged. Any new entity can spring up and challenge them. This harms entities that depend on stability in the rules. This is worsened in combination with Loper-Bright, and the overturning of Chevron, as it is now the courts are exercising more judgment, rather than deferring to the agencies. Jackson calls on Congress to fix this, by adding a separate statute of repose.
My thoughts: I wish more time was spent, especially by Barrett, on "right of action" rather than "accrues," as it seems like that is closer to where the difference is. I didn't look in detail, but my guess is that both mostly defeat the other's arguments as to history and precedent. I think Barrett is more likely right, but she does occasionally present some of her reasoning more forcefully than is warranted; Jackson successfully rebuts several of her arguments.
Should this be read as a continuation of sackett(?) v. EPA and the fight over ability to sue federal agencies at all? With the liberals continuing the push for "no, there should be no individual right to challenge agency rulings"?
The remark about dodging judicial review by delaying enforcement could have used a few examples, because iirc it's pretty common for an agency to change a rule but announce a "grace period" in enforcement. That's a pretty good divide and conquer tactic already, but letting them also run out the clock on review is ridiculous.
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So what's the difference? "Continually injured" has a starting point; in both cases the SoL begins at the time of first injury. This seems consistent to me.
I think the intent of Congress in both cases that a decision can be challenged when an individual entity is affected by application of a (regulation OR discriminatory compensation decision). Indeed, a supermajority of Congress expressly opined that the statutory construction in Ledbetter was not what they had intended:
For what it's worth, I fully concede that legislative intent is not the end-all of statutory construction (cue Gorsuch "we are governed by laws, but not by intent") so this is not a dispositive point. And I'm fine if people say the original version of 42USC§2000 did not properly enact that intent while the APA language at issue in Corner Post did.
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In both cases it seems to turn on the particular wording of the statute. But though Ledbetter is sympathetic, I think the decision is reasonable or at least consistent. In both cases, the statute starts running when the plaintiff is able to sue. In Corner Post, the plaintiff could not sue before they were injured; they would not have standing. Here, Ledbetter could have made her claim when the discriminatory action first happened, and she did not.
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