In recent terms, the Supreme Court has had its nose to the grindstone, transforming American administrative law. In a series of striking decisions, it has created the major questions doctrine, overruled Chevron and reined in Auer, shifted toward the elimination of independent agencies and a full-throated endorsement of the unitary executive theory, come close to remaking the nondelegation doctrine, reinvigorated arbitrary-and-capricious review, and opened the courthouse doors to challenges to regulations issued long ago. Most of these developments have spawned a flurry of academic commentary. The major questions doctrine in particular has created an itch it seems everyone needs to scratch. And overruling Chevron has given all those who had written about the case in the past (which is practically everyone) a chance now to write about its demise.
In the face of this tsunami, what is a poor JOTWELL reviewer to do? How to select the best from among them? It can’t be done. (Though, as Jack Beermann has written, if you want to understand the major questions doctrine you can’t go wrong by starting with Anita Krishnakumar.) But there is one exception. When it comes to Corner Post, there is a standout article. While others have been hypnotized by the shiny new objects of the MQD and Loper Bright, an undistracted Susan Morse has kept her attention focused where it has been for a couple of years. Her latest, Time Bars for Administrative Procedure Claims After Corner Post is a standout not only because, let’s be honest, there is not a lot of competition, but because it is so good.
Reading the article, one wonders why Corner Post has not received more attention. After all, its potential consequences are both significant (it could subject a large swath of regulations understood to be valid to re-examination, often under standards of judicial review more searching than those applied initially) and uncertain. Morse lays out the background, describes the decision’s significance, and argues that it should be read narrowly.
The basics are widely known, but here’s a primer. Many statutes impose specific time limits during which regulations adopted thereunder can be challenged. But absent such a restriction, the catchall statute of limitations for actions against the United States requires that the complaint be “filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Corner Post held that in a challenge to a regulation the right of action “accrues” not when the regulation is issued but when the challenger is first subject to it. Thus, if, as in Corner Post, the plaintiff did not exist when a regulation was promulgated, began operations seven years later, and challenged the regulation in court three years after that, the suit is timely. As to this plaintiff, the right of action only accrued when it began operating.
As Morse describes, prior to Corner Post the courts of appeals had developed a fairly clear and stable body of law. Latecomers could challenge old regulations, but (a) they did so as a defense to an enforcement action (i.e., an as-applied challenge) and (b) the challenge was limited to claims that the regulation violated a statute or the constitution (was ultra vires), not that it was procedurally defective. Corner Post indisputably changed the law regarding point (a). It allowed a facial challenge—just the sort of claim one generally sees in a pre-enforcement challenge brought immediately after a rule is promulgated—to be brought a decade after the rule was issued. The great uncertainty about Corner Post involves point (b): does its holding also apply to challenges that do not rest on an ultra vires theory? The holding of Corner Post might but does not necessarily reach that far, and a frustratingly vague footnote in the majority opinion arguably leaves open the possibility that it does not.
Here then is the current state of the law as set out in a chart Morse provides:
Morse accepts as-applied ultra vires challenges to a regulation long after promulgation. She acknowledges a plausible constitutional argument (sounding in due process as well as separation of powers) that such review must be available to entities that did not exist at the time a regulation was promulgated. And she predicts that in two Hobbs Act cases being heard by the Supreme Court in its 2024-2025 Term, NRC v. Texas and McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, the Court will carve out an exception for ultra vires challenges tracking the Corner Post holding.
Procedural challenges are a different matter. (Except in her title, Morse sticks with “ultra vires” and “non-ultra vires” rather than “substantive” and “procedural.” Because of an allergy to law Latin, I prefer the latter terms, but when I use them I do not mean to depart from her categories. She spends several pages pinning down the difference between the two types of challenges. The trickiest edge cases involve arbitrary and capricious challenges, which can be kind of procedural (a failure of explanation) or kind of substantive (failure to consider a statutorily relevant factor).) Morse’s essential claim is that procedural challenges “accrue” when the regulation is adopted, period.
Morse develops three arguments for a time-bar on procedural claims. First, in light of various practical and conceptual problems, Congress simply could not have intended down-stream procedural review to be available. For one thing, allowing a court to retroactively set aside a decades-old regulation on the ground that the agency violated procedural requirements that courts developed after the rulemaking in question is unfair if not nonsensical. In addition, procedural harms are generally conceptualized as occurring at a specific moment in time; they do not persist into the future.
Second, powerful reliance interests, which increase over time, argue against allowing challenges to longstanding regulations. Of course, reliance interests argue just as powerfully against challenges on substantive grounds. Morse does not say so explicitly, but the necessary implication is that the justifications for such review are more substantial than for review of procedural claims – sufficiently so as to outweigh reliance interests.
Third, “it is unbearably costly to evaluate and correct long-ago rulemaking process.” Stale evidence, the challenges judges would face evaluating cold records from long ago and out of context, and, one might add to Morse’s list, the likelihood that none of the advocates will have been present at the creation, create such a risk of error that the game is not worth the candle.
The article’s final section addresses where to go from here. The simplest alternative, of course, is to read Corner Post and its confounding footnote eight to apply only to substantive claims. But if that does not happen? At a minimum, Morse says, if courts are to find a procedural error long after a rule’s promulgation, they should remand without vacating, which would minimize the disruption and allow agencies to cure the defect. Alternatively, and far preferable in her view, the courts or Congress could directly bar distant procedural claims.
The judicial route could rely on standing doctrine. One possibility is to find that a challenger who did not even exist at the time of an alleged procedural error did not suffer a (procedural) injury in fact. Morse rejects this theory, because courts generally find standing to make procedural claims rests on the harm from the final action itself, not the procedural error. More promising, in her view, would be to deny standing because the challenger is not within the zone of interests of the procedural requirements relied on. (I will say I am not persuaded that the latter argument succeeds where the first fails; if the downstream harm from the regulation is an injury in fact, then it would seem also that those suffering such an injury are within the zone of interests protected by the procedural requirements.)
The cleanest resolution, of course, would be new legislation. Morse offers a tidy proposal: an amendment to the APA, limited to arbitrary-and-capricious or procedural challenges, that tracks the statute of limitations in the Hobbs Act, though with a 6-year rather than a 60-day limit. The success of this strategy will depend on just what the Court does this term with the two Hobbs Act cases mentioned above. Morse predicts, with a good deal of (no doubt well-founded) confidence, that the Court will carve out an ultra vires exception, but only an ultra vires exception, to the flat 60-day limit. If it does so, then identical new language in the APA would presumably be read the same way: facial and as applied substantive challenges could be brought a century after the regulation was promulgated if the challenger had first been harmed in the last six years, but procedural challenges could only be brought within some specified period (she suggests also the “tried and true” six years) after the regulation is promulgated.
Seems pretty sensible, no?
