On July 1, 2024, the Supreme Court decided Corner Post, Inc. v. Board of Governors of the Federal Reserve System, No. 22-1008, holding that a facial claim against enforcement of a regulation accrues under the Administrative Procedure Act when the plaintiff is injured by the final agency action and therefore has a right to assert the claim in court. This case concerns the interchange fees merchants must pay to payment networks when customers use debit cards as payment at their establishments. The Durbin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 directed the Federal Reserve Board to set standards for assessing whether any interchange transaction fee was reasonable and proportional. In response, in 2011, the Board promulgated Regulation II, which set the maximum interchange fee at $0.21 per transaction plus 0.05% of the transactions value. Trade associations and retailers sued the Board, claiming that Regulation II violates the underlying statute. The D.C. Circuit rejected the claim, holding that the regulation was based on a reasonable construction of the statute.
Corner Post is a truck stop and convenience store that did not exist at the time of the 2011 lawsuit. In 2021, it filed a separate suit challenging Regulation II under the Administrative Procedure Act (APA). Under the APA, suits against the United States must be brought within “six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Based on this statute, the District Court dismissed Corner Post’s suit as time-barred; and the Eighth Circuit affirmed, holding the statute of limitations for facial claims regarding the enforcement of a regulation began to accrue when the regulation was promulgated.
The Supreme Court reversed, holding that such a claim does not accrue until the plaintiff is injured by the final agency decision under 5 U.S.C. § 702 of the APA. The Court reasoned that the APA permits only persons injured by a final agency action to obtain judicial review of a regulation. Because litigants can bring a civil action against the government challenging the regulation only after are injured, their claims cannot accrue before that date.
The opinion did not decide whether vacatur (i.e., ruling the regulation was unenforceable and therefore vacated as a whole) was a remedy available under the APA, but it assumed that it was.
Justice Barrett delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh joined. Justice Kavanaugh filed a concurring opinion. Justice Jackson filed a dissenting opinion which Justices Sotomayor and Kagan joined.
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