The Supreme Court’s Corner Post Ruling: Restoring Justice Where It’s Due
The Supreme Court deserves some additional praise for its decision resolving a circuit split on a fine point of administrative law in Corner Post from its most recent term. Without acknowledging as much, the majority in Corner Post affirmed an elementary proposition of moral and legal justice that had fallen by the wayside.
In one of his Essays on the Active Powers of the Human Mind, 18th-century Scottish philosopher Thomas Reid noted that as a first principle “what is done from unavoidable necessity . . . cannot be the object either of blame or of moral approbation.”[1] Modern-day scholar of jurisprudence Hadley Arkes has recast Reid’s observation in the following way for lawyers and judges: “we do not hold people blameworthy or responsible for acts they were powerless to affect.” As Arkes has pointed out, “That principle may cover a wide variety of things, such as the insanity defense, perhaps racial discrimination, and many other instances where people really had no causal powers over their condition or their acts and should not be held culpable. We may argue in different cases as to how powerless or incapable people actually were, but no one doubts the validity of the principle—or doubts that the principle would hold true in all places, public and private, at any time.” Fidelity to this principle serves as a default baseline for any just system of law, with exceptions only in circumstances made explicit through positive law.
The Supreme Court ruled on a case in June that touched on that default presumption in Corner Post. NCLA filed an amicus brief on behalf of Corner Post, a truck stop harmed by a rule issued by the Federal Reserve. At issue was a split among federal circuit courts on how to treat certain legal challenges as being possibly time-barred. The key dispute was over the meaning of the phrase “after the right of action first accrues” under the Administrative Procedure Act (APA) during facial challenges to a rule involving the United States as a party. The content of the rule at issue in Corner Post was not as important as when the rule could be challenged. The APA provides a statutory maximum of six years within which to file a timely lawsuit against an agency. However, the Court sought to resolve whether “first accrues” means either six years from the moment an agency issues the rule or six yearsfrom the moment that rule injures a party. Six circuit courts, including the Eighth Circuit in which Corner Post litigated, had held that “first accrues” meant six years from the moment an agency issues the rule. Only one circuit court had held that the phrase meant six years from the moment that rule injures a party.
It does not require too much creativity to imagine a scenario where an adopted rule covers a party that was in no position to challenge said rule within six years. Rules are adopted with a prospective scope often of decades. What happens when a founder starts a new business that is injured by a rule more than six years after the rule is adopted? Is that business’s only recourse outside the courts?
Corner Post concerned precisely this scenario. Corner Post did not even exist until more than six years after the issuance of the rule. Does this not implicate Reid’s first principle, that we do not hold one blameworthy for actions or characteristics one is powerless to affect? In other words, should Corner Post be held blameworthy, lacking legal recourse, for not existing within the first six years after the adoption of a rule affecting Corner Post’s business?
Employing a textualist reading of the phrase “accrues” citing common law, dictionaries, and court opinions contemporaneous to the passage of the APA in the late 1940s, the Court held that “a claim does not ‘accrue’ as soon as the defendant acts, but only after the plaintiff suffers the injury required to press her claim in court.” Slip op. at 8. In settling the circuit split, the Court brought the meaning of “first accrues” for purposes of bringing litigation as when a plaintiff is first harmed into harmony with Reid’s first principle.
Congress may of course enact a law contrary to the default presumption for its own reasons. As one of Corner Post’s lawyers noted after the decision, “[T]here are scores of agency-specific statutes—like the well-known Hobbs Act—that expressly tie the time to bring a facial challenge to the day a rule was issued. The Solicitor General cited 29 examples in its brief.” However, the APA was not such an agency-specific statute. Therefore, the default presumption on “first accrues” in the APA remains. Agencies may find it expedient for policy purposes if entities that come into being more than six years after a rule is issued cannot challenge such rules in court. But then those agencies could ignore the first principle and valid presumption against holding entities blameworthy for actions that they are powerless to affect. Thankfully in Corner Post the Court stopped agencies from doing so and restored clarity and coherence to one area of our law.
[1] THOMAS REID, ESSAYS ON THE ACTIVE POWERS OF THE HUMAN MIND 361 (M.I.T. Press 1969)
October 17, 2024