The National Federation of Independent Business (NFIB) has submitted an amicus brief to the United States Supreme Court in the case of Corner Post, Inc. v. Board of Governors of the Federal Reserve System. This case centres on the determination of when the six-year statute of limitations for challenging an agency rule under the Administrative Procedure Act (APA) commences. The crux of the matter lies in whether the clock starts ticking from the date the final rule takes effect, irrespective of whether a business was in existence at that time or subject to the rule’s provisions.
Beth Milito, Executive Director of NFIB’s Small Business Legal Center, expressed concerns about the current APA rule, stating, “The current rule under the APA leaves existing and would-be small business owners in an impossible situation.” She highlighted the predicament where businesses are denied the right to challenge agency regulations that are over six years old, even if these regulations predate the establishment of the business. Milito argued that small businesses face overwhelming regulatory challenges from the outset, and the current rule allows agencies to implement and maintain potentially harmful regulations without opposition.
NFIB is urging the Supreme Court to overturn the Eighth Circuit’s judgment and challenge the majority rule. The amicus brief outlines four key points: Firstly, it argues that the majority rule incorrectly starts the statute of limitations for APA claims from the date of final agency action rather than when the legal injury is suffered. Secondly, it contends that enforcement proceedings are not always a viable option for judicial review, especially when agencies target entities in the supply chain. Thirdly, the majority rule hampers businesses from challenging the validity of a regulation if more than six years have elapsed between the final rule and the business’s opening, forcing new businesses to comply with burdensome fees and regulations. Lastly, it asserts that a favourable outcome for Corner Post would align with established legal duties and would not lead to litigation abuse.
NFIB collaborated on the brief with the Restaurant Law Center, the Buckeye Institute, and the Manhattan Institute. The NFIB Small Business Legal Center actively safeguards the rights of small business owners in various legal cases, currently participating in over 40 cases in federal and state courts across the nation, including the U.S. Supreme Court.