How Can You Miss a Deadline Before You Even Exist?

Thomas A. Berry and Isaiah McKinney

Corner Post is a convenience store and truck stop in Watford City, North Dakota. Like many similar shops, its business model relies on a high volume of small‐​dollar transactions. And when customers pay for those purchases with debit cards, merchants like Corner Post pay a set fee to banks to process the transactions. Although this fee is 21 cents per transaction, the cost adds up quickly over numerous sales and is a significant operating expense for any business model that relies on small‐​dollar purchases.

The rate of 21 cents per transaction was set in 2011, when the Federal Reserve Board issued a regulation establishing that fee amount. The actual cost for banks to process each transaction ranges from 3.6 to 5 cents.

Corner Post opened for business in 2018, and a few years later it challenged this fee‐​setting regulation under the Administrative Procedure Act (“APA”) in the U.S. District Court for the District of North Dakota. Corner Post argued that the 21‐​cent rate set by the regulation was not “reasonable and proportional to the cost” that the banks incurred and that the regulation therefore exceeded the Board’s statutory authority.

But the district court never reached the merits of Corner Post’s legal argument. Instead, the court dismissed Corner Post’s case as being brought too late, holding that the suit was barred by the APA’s statute of limitations. The APA sets a six‐​year time limit for legal challenges to agency rules, and the court held that this time limit started running for Corner Post when the regulation was issued in 2011. The court thus held that Corner Post’s time to challenge the rule expired in 2017, a year before Corner Post opened its doors for business.

The Eighth Circuit affirmed the district court’s decision, and Corner Post petitioned the Supreme Court for review. The Cato Institute has now filed an amicus brief in support of Corner Post’s petition (with thanks to a team of Wiley Rein attorneys who took the lead on drafting our brief: Jeremy Broggi, Michael Showalter, Boyd Garriott, and Hannah Bingham).

Our brief explains that under the text of the APA’s statute of limitations, the six‐​year clock does not start until a particular plaintiff is actually injured (for Corner Post, it did not start until the business opened in 2018). For hundreds of years, the start date for statutes of limitations has traditionally been the date of a plaintiff’s injury, and nothing in the APA’s text contradicts that traditional understanding.

The government argues that since the APA provides for review of “final agency action,” the statute of limitations implicitly begins for all plaintiffs whenever the “final agency action” occurs (in this case, when the regulation was issued in 2011). But nothing in the text of the APA requires this reading; Congress did not explicitly depart from the traditional rule that the clock starts on the date of injury. The better reading of the APA is that the clock does not start until a plaintiff is injured and the agency action is final—in other words, finality is a necessary but not sufficient requirement to start the six‐​year clock.

The government’s argument would impermissibly protect agencies from lawsuits by businesses that did not even exist when a regulation was issued. Since Corner Post opened more than six years after the Board’s regulation was issued, the government’s approach would mean Corner Post never had a chance to challenge these burdensome regulations. The Supreme Court should take this case to correct the Eighth Circuit’s erroneous decision and allow Corner Post and others to challenge unlawful regulations.