Time Bars for Administrative Procedure Claims After Corner Post

Amid the avalanche of recent important administrative law decisions, one case has received almost no scholarly attention: Corner Post, Inc. v. Board of Governors of the Federal Reserve System. This case changes the application of the six-year statutory period that used to time bar administrative procedure claims. In part, Corner Post expands judicial review for claims that an agency regulation violates the authorizing statute or the Constitution by allowing such substantive claims indefinitely. Last Term, in McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, the Court similarly allowed a substantive claim to proceed despite the sixty-day time limit of the Hobbs Act.

Corner Post produces unfortunate collateral damage for procedural claims, including claims that an agency’s action violated notice-and-comment requirements or was arbitrary or capricious under the Administrative Procedure Act (APA). Similarly, in McLaughlin, the Court’s analysis might allow review of procedural claims, as well as substantive claims, after the expiration of the Hobbs Act time limit. Yet a strong argument—stronger than for substantive claims—favors time barring procedural challenges to old regulations.

Congress should implement a six-year time bar for administrative procedure claims that accrues at the time of agency action, so that procedural claims would be allowed only for six years following a rulemaking. Otherwise, a court might invalidate a longstanding regulation because of an agency’s years-old violation of procedural requirements, even if the regulation perfectly implements the authorizing statute and is consistent with the Constitution. Allowing procedural claims indefinitely would rest on the far-fetched premise that Congress wants to ensure that regulations promulgated in, say, 1975 are promulgated using all of the procedures required by courts in, say, 2025—even though courts have changed and increased the required procedures dramatically over time. Indefinitely allowing procedural claims would unnecessarily disrupt reliance interests and carry large error and administrative costs because of stale evidence, changing procedural norms, and the expense of replicating procedures at under-resourced agencies.

Table of Contents Show

Introduction

In its July 2024 decision in Corner Post v. Board of Governors of the Federal Reserve System, the Supreme Court rejected established precedent interpreting a six-year default limitations period for Administrative Procedure Act (APA) claims.[1] The Court held that the six-year time bar[2] of Section 2401(a) accrues later, on a plaintiff-specific basis rather than at the time of agency action.[3] The Court wrote that the six-year period begins when a plaintiff “has the right to assert [the claim] in court,” meaning, “in the case of the APA, . . . when the plaintiff is injured by final agency action.”[4] The time of injury means the time when the plaintiff experiences harm because of a regulation. It can come later, by years or even decades, than the time when an agency promulgates the regulation.

Plaintiffs can always come into existence later and become subject to regulations, as petitioner Corner Post did in this case.[5] When new plaintiffs challenge old regulations, they can base their claims on modern administrative procedure precedents like Loper Bright Enterprises v. Raimondo[6] and Ohio v. Environmental Protection Agency.[7] Each case generally makes it easier for courts to invalidate agency actions—Loper Bright because it holds that courts should not defer to agency statutory interpretations,[8] and Ohio v. EPA because it articulates strict requirements for an agency’s response to comments received during the rulemaking process.[9]

Indefinitely allowing challenges to old regulations makes some sense when a plaintiff makes a substantive claim—a claim that an agency action violates the authorizing statute or the Constitution.[10] The Court refused to time bar such a substantive claim not only in Corner Post but also in a 2025 decision, McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, which considered the sixty-day statute of repose of the Hobbs Act.[11] Such substantive claims trace to the ultra vires claims pursued through nonstatutory suits against government officials before the APA authorized judicial review. Even today, a court may allow some such claims when no statute specifically authorizes them.[12] Consistency with the authorizing statute, as well as consistency with the Constitution, has become a requirement for a valid regulation no matter how old the regulation is.[13]

But procedural cases are different. The use of APA-prescribed procedure, like the fulfillment of notice-and-comment requirements[14] and the absence of arbitrary-or-capricious promulgation,[15] should not be a requirement for the validity of an old regulation. The pre-Corner Post case law followed a sensible approach. It applied a six-year limitations period for procedural APA challenges that began at promulgation, after which eligible plaintiffs could challenge procedural illegality for six years.[16]

In Corner Post, the question of time barring procedural APA claims was a victim of collateral damage. As the Court’s opinion acknowledged, Corner Post’s central claim was a substantive claim that the agency had exceeded the authority of the authorizing statute.[17] But the Court’s interpretation of Section 2401(a) did not distinguish substantive from procedural claims. Instead, the Court’s analytical approach tied the accrual for all APA claims to the moment of a plaintiff’s “injury,” when the plaintiff acquires the right to sue.[18] Similarly, although McLaughlin involved a substantive claim, the Court’s analysis did not distinguish between substantive and procedural claims, raising the possibility that McLaughlin’s grant of judicial review despite the sixty-day time limit in the Hobbs Act might apply to procedural claims, too.[19]

Letting the six-year period for procedural claims begin to run later, when a regulation first harms a plaintiff, would, as a practical matter, allow procedural APA challenges indefinitely. For instance, a plaintiff might become subject to a regulation promulgated in 1975 in, say, 2025. Later accrual for procedural claims would allow the plaintiff to challenge the agency’s 1975 procedure fifty years after the fact.

This later-accrual result for procedural claims does not make sense, for three reasons: congressional intent, reliance, and costs.

First, allowing the six-year period for procedural claims to begin running later, at the time a plaintiff is first harmed by a regulation, should fail because it rests on an implausible assumption about congressional intent. Judicial review of procedural APA claims, like those relating to rulemaking that is arbitrary or capricious or that violates notice-and-comment requirements, is not constitutionally required.[20] Instead, it proceeds from the premise that Congress intended the APA to provide for broad judicial review.[21] But courts—not Congress—have articulated and expanded the terms of this broad review. Over time, courts have steadily increased procedural requirements.[22] Later accrual suggests that Congress meant to require agencies in 1975[23] to meet procedural requirements that courts did not develop until 2025.[24] But this crystal-ball approach does not make sense.

Second, with respect to reliance, entire industries and regulatory programs affecting millions of people are built on the assumption that existing regulations correctly state the law.[25] The longer regulations are in place, the greater the reliance interests the regulations produce. If a court invalidates a regulation, it disturbs these reliance interests.

Of course, invalidation disturbs reliance interests whether based on a substantive claim or a procedural claim. But less important interests are at stake for procedural claims. In contrast to a substantive claim, a procedural claim does not suggest that the existing regulation violates the substantive statute or the Constitution.[26] If a procedurally illegal but substantively legal regulation were vacated and re-promulgated subject to proper APA procedure, the substance of the regulation presumably would be the same as before. But in the meantime, the absence of the regulation would harm those who relied on it.[27]

Third, with respect to costs, long delay causes evidence to become stale and challenges more difficult for courts to correctly adjudicate. This raises the prospect of increased errors.[28] Even though plaintiffs must litigate procedural challenges based on the written administrative record, courts benefit from an understanding of the context of the rulemaking as they consider issues like whether a comment was significant and whether the agency adequately responded.[29] This sort of contextual understanding fades with time.

All of this is not meant to contest the importance of procedural requirements or to deny that they increase the quality of rules.[30] But plaintiffs do have a mechanism to ensure the legality of APA procedure, even if their ability to sue is limited to the six years after promulgation. In addition, other factors exist to ensure the quality of rules. One such factor is courts’ responsibility to ensure that regulations correctly interpret statutes, generally without according deference to agencies’ interpretations.[31] Another is the availability of equitable exceptions for statutory time limits.[32]

The pre-Corner Post case law provided a practical mechanism for ensuring the legality of agency procedure while respecting concerns about congressional intent, reliance, and error costs. It applied a six-year limitations period for procedural challenges and started the six-year timer at the moment of promulgation.[33] This rule sensibly delegated to timely plaintiffs access to the courts to monitor and challenge the procedural legality of a regulation.

The Court’s Corner Post opinion, authored by Justice Amy Coney Barrett, included a footnote that tried to reserve the possibility of earlier accrual for procedural claims.[34] Footnote 8 appeared to suggest that standing law defining the timing of injury could support earlier accrual for procedural claims.[35] But only weak doctrinal support exists to require earlier accrual for procedural claims based on injury timing. Article III does not provide a discernible path to this goal because it ties standing to the time when a plaintiff suffers harm rather than to the timing of a defendant’s action. Procedural violations do not constitute injury for purposes of the law of standing,[36] although a plaintiff could argue for earlier accrual based on an interpretation of the related zone-of-interests test.[37] At best, the law relating to accrual timing for procedural claims is unsettled.

Courts could use the remedy of remand without vacatur to address long-ago procedural illegality. This remedy, which Justice Brett Kavanaugh mentioned in his concurrence in Corner Post, allows an old regulation to continue to apply after a court concludes that the old regulation’s promulgation process was illegal. In Kavanaugh’s formulation, the court vacates the regulation but stays the vacatur pending the agency’s fix of the procedural problem.[38] This avoids disturbing the status quo, but at significant cost in judicial and agency resources.

Another alternative is for Congress to step in. The Constitution allows Congress to time bar claims about procedural APA violations with a clear and explicit statute of repose. Congress should enact such a statute. It should amend Section 2401(a) to time bar challenges to agency action after a period of six years, consistent with pre-Corner Post law.[39]

This legislative proposal would limit plaintiffs’ ability to challenge long-ago procedural illegality. Plaintiffs would generally have to bring suit within six years of the moment when the agency committed the procedural illegality. But, consistent with Corner Post’s holding on the facts of that case, the rule would be different for substantive claims. Reinstating a six-year limitations period that begins with a promulgation, order, or other agency action allows plaintiffs to bring substantive challenges so long as they can locate an enforcement or other agency action within the last six years. This would work to allow judicial review even in cases like Corner Post, where an unregulated plaintiff brought a facial claim.

Part I describes the subject of this Article: statutory procedural claims in administrative law. Part II sets out the law of timeliness for claims under the APA before and after Corner Post. Part III argues that a time bar for procedural claims should accrue at the time of agency action, such as the time of promulgation, for reasons of congressional intent, reliance, and error costs. Part IV explores the judicial and legislative avenues that might achieve this result.

I. “Procedural” Administrative Law Claims

A.      Defining Procedural Claims

In Corner Post, the Court wrote that the six-year time bar under Section 2401(a) accrues when a plaintiff “has the right to assert [the claim] in court,” meaning, “in the case of the APA, when the plaintiff is injured by final agency action.”[40] Corner Post involved a facial challenge brought by a convenience store to Regulation II, a Federal Reserve regulation limiting the swipe fees that banks could charge retailers when customers used debit cards.[41] Corner Post made a classic substantive claim—that the Federal Reserve’s regulation violated the Durbin Amendment because the agency misinterpreted the statute.[42] But the Court did not limit its holding to this substantive claim.

Because the Court wrote generally of claims “in the case of the APA,” its holding appears to sweep in procedural claims, too.[43] This Article, in response, advocates a stricter time limit for procedural claims, including through the mechanism of accrual at promulgation, rather than accrual at the later moment of plaintiff injury. Thus, a key initial task is to define “procedural” administrative law claims.

Claims directed at the process used to promulgate a regulation or issue an order are procedural claims.[44] They involve an alleged error committed during the process of making a rule. A claim that an agency has not followed procedures such as notice and comment is a procedural claim.[45] A claim of illegal arbitrary-or-capricious action during the promulgation of a regulation or the issuance of an order also is a procedural claim for purposes of the analysis in this Article.[46] But a claim that an agency has exceeded the authority of an authorizing statute is a substantive claim, not a procedural claim.[47]

Some sections of the APA group procedural and substantive claims together when describing judicial review. Section 702, for instance, does not distinguish between these two groups of claims when it authorizes judicial review.[48] Section 706(2) bundles different kinds of claims together in a laundry list of possible illegalities that a plaintiff may challenge. It appears to give a reviewing court the same instruction to “hold unlawful and set aside agency action” no matter what variety of transgression the agency has committed—whether its action is (A) “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” (B) unconstitutional, (C) “in excess of statutory . . . authority,” or (D) “without observance of procedure required by law.”[49]

Despite the APA’s listing of procedural and substantive claims together, historically they have been treated differently. The historic practice of equitable suits against government officials offered special access to judicial review for substantive claims in enforcement actions. Such suits were allowed for ultra vires challenges that an agency acted outside constitutional or statutory authority.[50] These “officer suits”[51] were brought individually against government officials[52] to circumvent the sovereign immunity barrier,[53] particularly before the explicit waiver of sovereign immunity from suit under the APA in 1976.[54] They were equitable actions typically sought to prevent or remedy an action that an officer had taken in an enforcement action against the plaintiff.[55]

These nonstatutory suits allowed a court to provide relief if an officer harmed a plaintiff in an unauthorized manner. If the officer had acted ultra vires, meaning in violation of an authorizing statute or the Constitution, then sovereign immunity did not protect him.[56] The logic of these suits was that the official would be treated as a private party, not as a government official protected by sovereign immunity, if he acted outside the bounds of the law.[57] Therefore, nonstatutory officer suits allowed a court to grant relief, for instance in tort, if a plaintiff proved that the officer’s action was ultra vires—that is, “that the defendant officer . . . proceed[ed] under an unconstitutional statute or in excess of his statutory authority.”[58]

Nonstatutory officer suits primarily sought to protect “common-law property and liberty interests.”[59] They required that the plaintiff suffered actionable injury, typically through enforcement.[60] Courts have extended the idea of injury in such a lawsuit somewhat beyond common law interests, in that the deprivation of a specific statutory right has supported such a suit.[61] But an illegality in rulemaking procedure, such as a lack of notice and comment, would not be treated as causing injury to a plaintiff.[62]

B.      Arbitrary-or-Capricious Claims as Procedural Claims

Commentators and courts have struggled with the issue of whether arbitrary-or-capricious claims are procedural.[63] This Article categorizes arbitrary-or-capricious claims as procedural claims if they relate to challenges to actions taken during the regulation promulgation process. Such procedural claims include claims that courts have developed by applying arbitrary-or-capricious reasoning to each step of the notice-and-comment process.[64] In contrast, a claim that an enforcement action is arbitrary or capricious is not a claim about rulemaking procedure.[65]

The logic of most arbitrary-or-capricious claims about the rulemaking process supports categorizing them, along with notice-and-comment claims, as procedural claims. Arbitrary-or-capricious claims often are less serious allegations compared to notice-and-comment claims. Consider an arbitrary-or-capricious allegation that an agency did not adequately respond to a public comment[66] or inadequately explained its reasoning in a notice-and-comment rulemaking.[67] Either of these is a less serious allegation compared to a claim that an agency illegally omitted required notice-and-comment altogether. The notice-and-comment claim alleges that the agency completely ignored a public participation requirement. But the arbitrary-or-capricious claim points out an imperfection in the public participation notice-and-comment process.

In Corner Post, for example, the plaintiff made an arbitrary-or-capricious challenge that alleged that, during promulgation, the Federal Reserve had not adequately considered whether Regulation II’s limits to debit card swipe fees set “reasonable and proportional” rates, in accordance with the language of the Durbin Amendment.[68] The Corner Post Court wrote that this claim “might be procedural,” but that the core of the complaint was a “prototypical substantive challenge” that the regulation exceeded the authority of the authorizing statute.[69] To the extent that the Corner Post arbitrary-or-capricious claim was another way of stating the substantive challenge, a court could consider it as part of its analysis of whether the regulation correctly interpreted the Durbin Amendment.[70] But insofar as the Corner Post arbitrary-or-capricious challenge claimed that the rulemaking procedure was illegal even if the rule perfectly interpreted the statute, this Article’s taxonomy categorizes the challenge as a procedural claim.[71]

For another illustration of a procedural arbitrary-or-capricious claim, consider Halliburton v. United States, a case in the Southern District of Texas.[72] The case involved Halliburton’s claimed income tax deduction for a $35 million payment made to a foreign government to settle a claim of illegal bribery.[73] A Treasury regulation promulgated in 1975 provided that the statutory disallowance of deductions for “any fine or similar penalty”[74] applied to amounts paid to settle “actual or potential liability.”[75] Halliburton claimed that the Treasury acted arbitrarily when it promulgated the regulation because its 1975 Preamble dismissed an industry group’s significant comment too quickly.[76]

If the Halliburton Court had followed Corner Post and begun the limitations period when Halliburton suffered injury and acquired the right to sue, then that period would have begun to run in 2022, when the IRS denied Halliburton’s refund claim.[77] Under this analysis, the arbitrary-or-capricious claim would have been timely, and, on the basis of a too-brief preamble, the regulation might have been held invalid and set aside for a procedural illegality that was fifty years old. Allowing an old procedural illegality to invalidate current regulations would amount to making up-to-date administrative procedure a valid rule-like requirement for agency regulations.[78]

C.      Constitutional Procedural Claims

For purposes of this Article, the “procedural claims” label refers to statutory procedural claims and not to constitutional procedural claims. APA procedural requirements are statutory, not constitutional, except to the extent that they duplicate constitutional procedure requirements such as due process.[79] For a rulemaking with general and broad effect, due process requirements are minimal and do not include any requirement for public notice and comment.[80] In fact, the Supreme Court has held that APA requirements for agency rulemaking strictly exceed the procedural requirements of the Due Process Clause.[81]

Yet some constitutional requirements for general rulemaking may remain. For instance, in one case frequently cited for the proposition that due process generally does not apply to rulemaking, the Court argued “that the proper state machinery ha[d] been used” for the property tax valuation at issue, perhaps suggesting that there is some baseline constitutional requirement for rulemaking procedure.[82] In another case, Justice Louis Brandeis suggested that agency fraud in rulemaking would be actionable as a due process violation.[83] It is not impossible that other structural constitutional elements, such as the separation of powers, would be held to constrain rulemaking procedure.[84]

Time barring constitutional procedural claims may present different issues from time barring statutory procedural claims. Perhaps such constitutional claims are important enough, and cover such extreme cases, that they should not be subject to a limitations period. Indeed, it is not clear from case law that any statutory limitations period limits challenges based on violations of the Origination Clause[85] or the Appointments Clause[86] or challenges to presidential line-item vetoes.[87]

This Article is concerned with statutory procedural claims, not constitutional procedural claims. Because the Constitution does not require (most) statutory procedures, Congress can amend the APA’s statutory procedural requirements, including the APA’s notice-and-comment requirements and (as applied to rulemaking process) its arbitrary-or-capricious provisions.[88] Because the Constitution, in general, does not require statutory procedures like those under the APA, the Constitution also should not require judicial review of these procedures.[89] Under this logic, Congress can limit judicial review of statutory procedural claims, as this Article proposes.[90]

D.     Substantive Statutory Claims and the Constitution

The constitutional analysis of time bars for substantive claims—for instance, that an agency’s rule misinterprets an authorizing statute—differs from the analysis for procedural claims. Both scholars and judges have expressed concerns that the Constitution requires access to judicial review for substantive claims. This would mean that Congress cannot time bar such substantive claims, at least in certain circumstances, such as agency enforcement actions. However, neither scholarly nor case law analysis squarely addresses this constitutional issue.

The legal scholarship on time bars for claims against administrative agencies generally concludes that Congress may impose time bars for statutory procedural claims and expresses uncertainty over whether Congress may impose time bars for substantive claims.[91] Professor Paul Verkuil writes that constitutionally required review generally should not extend to “complaints that relate to the rulemaking process,”[92] although such review might apply to “those that relate to the ultimate legality of the rule itself.”[93] Under the Verkuil argument, since the Constitution might require the availability of review for statutory substantive claims, particularly in as-applied enforcement cases, the best approach for Congress is to preserve judicial review for such claims.[94]

The scholarly line that due process and separation-of-powers arguments might require review of substantive statutory claims invokes concerns expressed in Supreme Court cases such as Yakus v. United States[95] and Adamo Wrecking Co. v. United States.[96] Yakus, decided in 1944, involved the Emergency Price Control Act of 1942, which only allowed judicial review of rules imposing wartime price limits within sixty days and in a special, emergency appellate court.[97] The Court upheld this statutory limitations period as applied in the case, but sidestepped the question of whether the statute was unconstitutional.[98] It reasoned that since the petitioners had not pursued all remedies available to them, they could not show that their rights would have been violated if they had pursued those remedies.[99]

Adamo Wrecking, decided in 1978, involved the Clean Air Act’s thirty-day time bar for review of EPA emission standards, including in enforcement proceedings.[100] The EPA imposed criminal penalties on the petitioner for failing to follow rules designed to limit asbestos exposure during building demolition.[101] The Court found a way to allow the petitioner’s suit to proceed by concluding that the EPA’s rules were not “emission standards,” despite the EPA’s effort to title them as such, and as a result, the thirty-day time bar did not apply.[102] In concurrence, Justice Powell wrote that if the petitioner had challenged the constitutionality of the thirty-day time limit under the due process clause, “it would have merited serious consideration,” particularly since the case involved a criminal prosecution.[103]

E.      Substantive and Procedural Claims in Current Case Law

Courts generally have followed the substantive/procedural distinction advanced by Verkuil and others, even without a clear constitutional directive to do so. Courts have allowed substantive claims while restricting procedural claims, including in case law developed under the Hobbs Act.[104] However, recent Supreme Court cases have muddied this distinction. This includes not only Corner Post, discussed in Part II, but also the 2025 decision in McLaughlin, which is the latest entry in the Hobbs Act case law.

The Hobbs Act is a time-bar statute enacted in 1950[105] that applies to the adjudications and rulemakings of agencies, including the Federal Communications Commission (FCC), the Department of Transportation, and the Department of Agriculture.[106] The Hobbs Act requires challenges to be filed “within 60 days after . . . entry” of the agency action in question,[107] linking the start of the limitations period to the agency’s action, not to the plaintiff’s claim.[108] It shares with Section 2401(a) the project of time barring some challenges to administrative action.

Under D.C. Circuit case law, the Hobbs Act’s sixty-day time bar generally has firmly constrained procedural claims, while substantive claims have been subject to a number of exceptions.[109] In JEM Broadcasting v. Federal Communications Commission, the D.C. Circuit announced a rule strictly applying the sixty-day Hobbs Act statute of repose for “challenges to the procedural lineage of agency regulations.”[110] The earlier-accrual JEM Broadcasting approach for procedural claims applied even in an enforcement action.[111] The D.C. Circuit interpreted the Hobbs Act as a default sixty-day statute of repose subject to exceptions for some substantive claims.

Last Term, in McLaughlin, the Supreme Court built on this pattern of exceptions under the Hobbs Act. McLaughlin saw a medical office sue a healthcare company for sending promotions to the medical office via online fax.[112] The plaintiff brought suit under a private right of action in the Telephone Consumer Protection Act[113] (TCPA) and claimed that the TCPA prohibits solicitation by online fax.[114] After the McLaughlin suit was filed, the FCC issued an unrelated order stating that the TCPA’s prohibition did not apply to online faxes.[115] The McLaughlin case did not involve a direct challenge to the FCC’s order.[116] Rather, the issue in the case was whether the district court could consider the validity of the order, and thus the validity of the FCC’s statutory interpretation, despite the Hobbs Act time bar.[117]

The Court established a default rule that applies if a time bar statute does not specifically bar judicial review. It wrote that “[i]n an enforcement proceeding, a district court must independently determine for itself whether the agency’s interpretation of a statute is correct.”[118] The Court further explained that private-party suits fit the definition of “enforcement proceedings.”[119] As applied in the case, this rule preserved judicial review for McLaughlin’s substantive claim even after the expiration of the sixty-day period.

McLaughlin relied heavily on a strong presumption in favor of judicial review. The Court cited Section 703 of the APA[120] and Corner Post for this proposition.[121] The Court concluded that the Hobbs Act grant of “exclusive jurisdiction” to federal courts of appeal to “determine the validity” of orders[122] related to pre-enforcement suits only and did not interfere with district courts’ ability to review the agency’s statutory interpretation in subsequent enforcement proceedings.[123] In footnote 2, the Court wrote that judicial review “may also include review of whether the rule or order was arbitrary and capricious under the APA or otherwise was unlawful.”[124]

Given the longstanding Hobbs Act case law that interprets its time bar strictly for procedural claims but not for substantive claims, one might have expected the Court to cabin its exception to the sixty-day time bar so that its holding allowing judicial review applied only to substantive claims and not to procedural claims. Instead, McLaughlin’s dicta in footnote 2 seems to sweep in procedural claims, or at least arbitrary-or-capricious claims that relate to an agency’s process for issuing an order.

If McLaughlin’s footnote 2 allows procedural claims outside the sixty-day Hobbs Act period, it presents a tension with several Justices’ previously expressed constitutional concerns with time bar statutes for substantive claims. In 2019, the Court decided PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.,[125] which presented the same issue about interpreting the Hobbs Act time bar as in McLaughlin. The Court did not reach the issue in PDR Network, but two Justices’ concurrences revealed their thinking about the issue. In one concurrence, Justice Thomas, joined by Justice Gorsuch, argued that prohibiting judicial review presents a separation-of-powers concern because of federal courts’ absolute responsibility to interpret the authorizing statute.[126] This argument clearly aims to preserve substantive claims.

In another PDR Network concurrence, Justice Kavanaugh, joined by three other Justices, expressed his concern that due process is violated if judicial review of the “reach and authority of agency rules” is prohibited in an “as-applied” enforcement action.[127] Perhaps “reach and authority” could be read to mean the procedural legality of the process used to promulgate a rule. However, a more reasonable interpretation is that “reach and authority” refers to whether the rule was authorized by the substantive statute. Justice Kavanaugh repeats this due process concern in McLaughlin, writing in footnote 5 that the opinion’s statutory-interpretation approach, which allows judicial review, “avoid[s] . . . due process concerns.”[128] Even though the above-the-line text of the opinion suggests that Congress could broadly time bar judicial review for all challenges to agency action,[129] footnote 5 worries that if a statute tried to prohibit “agency legal interpretations in enforcement actions,” it would be unconstitutional.[130] This language in footnote 5 focuses on preserving judicial review for substantive claims, not for procedural claims. Yet McLaughlin jeopardizes the Hobbs Act time bar not only for substantive claims like that presented in the case, but also for procedural claims. Corner Post, as discussed in Part II, does the same thing.

II. Corner Post

A.      Section 2401(a)

Corner Post, like McLaughlin, allowed judicial review of a substantive claim despite a time bar statute that courts had consistently read differently. The case involved 28 U.S.C. § 2401(a), first enacted in 1887[131] as part of a waiver of sovereign immunity that allowed certain lawsuits against the government.[132] This time bar statute originally set forth the time allowed for a plaintiff to bring Tucker Act cases, typically contract cases seeking money damages, against the federal government.[133] After 1976, the general availability of suits against the United States for APA violations made the six-year time bar of Section 2401(a) a relevant statute of limitations in administrative law.[134] Before Corner Post, courts allowed defendants to raise the six-year time bar of Section 2401(a) as an affirmative defense against claims under the APA and the time limit typically began to run at promulgation.[135]

Section 2401(a) provides that a “civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”[136] This language is awkward as applied to administrative law claims, and the non-administrative law origins of the provision help to explain why. In a contract case like those contemplated by the Tucker Act, a claim arises from a specific transaction between a private plaintiff and the government, and the moment of accrual is a moment specific to that transaction, such as the moment when the contract is breached. But, in an administrative law case, there is no transaction that forms a specific connection between the defendant and the plaintiff. Instead, a federal agency action, such as the promulgation of a rule, might occur many years before the plaintiff suffers harm resulting from the rule’s application. The plaintiff might not even exist when the federal agency takes action that eventually, years later, causes injury to the plaintiff.

B.      Pre-Corner Post Case Law

Since 1976, courts have used the default or “outside” constraint of Section 2401(a) to limit APA challenges where no specific statutory limitations period applies.[137] Until Corner Post, most precedent held that this six-year period began to run at the earlier time of final agency action, such as the promulgation of a regulation. The case law allowed only one exception to this earlier-accrual rule, for as-applied ultra vires claims. Table 1 summarizes the pre-Corner Post precedent:

Table 1: Section 2401(a) Accrual for APA Challenges Before Corner Post

	Facial Challenge	As-Applied Challenge
Procedural Challenge	EARLIER: When the regulation is promulgated. E.g. Alliance for Hippocratic Medicine (5th Cir.2024)[138]	EARLIER: When the regulation is promulgated. E.g. Sai Kwon Wong (2nd Cir. 2009)[139], Preminger (Fed. Cir. 2008)[140]
Substantive Challenge	EARLIER: When the regulation is promulgated. E.g. Hire Order Ltd. (4th Cir. 2012)[141]	LATER: When the agency enforces the regulation. E.g. Sai Kwon Wong (2nd Cir. 2009)[142], Preminger (Fed. Cir. 2008)[143], Wind River (9th Cir. 1991)[144]

Table 1 is a descriptive account of the pre-Corner Post case law interpreting Section 2401(a). This precedent also categorizes cases according to whether they bring facial or as-applied challenges. A facial challenge is one that is brought against a rule as such, without any agency enforcement action directed against the plaintiff—like the challenge in Corner Post.[145] An as-applied challenge targets an agency enforcement action.[146]

The later-accrual exception for as-applied ultra vires challenges was known as the Wind River doctrine and came from two Ninth Circuit cases from the 1990s.[147] Both involved Bureau of Land Management (BLM) orders.[148] In the first, Shiny Rock Mining Corp. v. United States, the plaintiff, Shiny Rock, challenged the procedural validity of a 1964 BLM order that had designated some land ineligible for mining.[149] Shiny Rock argued that the limitations period could not start running until 1983, when the BLM rejected its mining application, for that was when Shiny Rock acquired the right to sue.[150]

The Shiny Rock court responded with an analysis exactly opposite to the rationale of the Corner Post Court. The Ninth Circuit wrote that the injury complained of “was that incurred by all persons when, in 1964 . . . the amount of land available for mining claims was decreased.”[151] It further explained that “[a]doption of Shiny Rock’s rationale would virtually nullify the statute of limitations.”[152]

Thus, the Ninth Circuit’s theory in Shiny Rock was that the claim related to public process rights that were allegedly violated when the BLM produced the 1964 public land order.[153] The court held that the six-year limitations period started running in 1964, when the BLM issued the order.[154] Shiny Rock could not renew the public rights objection to the 1964 procedure through an objection to the BLM’s 1983 denial of its mining permit.[155] Instead, the alleged procedural defect arose solely from the 1964 order.[156] Moreover, the fact that the Shiny Rock lacked standing to sue in 1964 did not change the result that the limitations period began to run at the time of the 1964 agency action.[157] As the court explained, “a party must make a showing that it has standing and that the cause of action was filed within six years of the publication [of the order].”[158]

Just one year after the Shiny Rock decision, case law recognized the exception for as-applied ultra vires claims in another Ninth Circuit case involving the BLM. In Wind River Mining Corp. v. United States, the BLM had established a Wilderness Study Area in 1979 and denied Wind River’s mining permit application in 1987.[159] Wind River made a substantive statutory-interpretation argument that the 1979 order was ultra vires and therefore void because Wilderness Study Areas must, under the applicable statute, be “roadless,” which, it argued, the established area was not.[160]

In Wind River, the plaintiff’s claim would have been time barred if it had accrued when the BLM’s decision was announced in 1979.[161] The BLM relied on the district court’s analysis in Shiny Rock, under which the announcement of the BLM’s decision would have been the right moment of accrual because the burden of the decision came into existence then and would have been priced into transactions thereafter.[162] Concern for certainty and repose would still weigh in favor of starting the limitations period earlier, not later, for an ultra vires claim.

But, in Wind River, the Ninth Circuit rejected the BLM’s position and instead established an exception to the Shiny Rock earlier-accrual rule for as-applied ultra vires claims. The court held that an adverse agency enforcement action taken directly against a specific plaintiff particularly interests that plaintiff and continues to be open to challenge “as exceeding constitutional or statutory authority.”[163] Thus the Wind River court explained that an as-applied ultra vires challenge involves an injury uniquely felt by the plaintiff. In contrast, the court wrote, interested persons would likely exist “to challenge a mere procedural violation” or make “a policy-based facial challenge” within six years.[164]

The Wind River court also relied on a D.C. Circuit case, Oppenheim v. Campbell, in which the D.C. Circuit time barred consideration of an initial agency decision,[165] but considered (and vacated) a later action based on the earlier decision.[166] Oppenheim thus offers a different rationale based on final agency action for the as-applied ultra vires exception. This contrasts with the Wind River theory that as-applied ultra vires claims involved an injury uniquely felt by the plaintiff.

Pre-Corner Post cases generally omit any commitment to the Oppenheim analysis, the Wind River analysis, or another theory of the case.[167] But, even if the case law was undertheorized, it was uniform as to its earlier-accrual treatment of procedural challenges.[168] The cases show the application of the accrual-at-promulgation rule for both notice-and-comment and arbitrary-or-capricious claims. They demonstrate courts generally did not apply accrual at promulgation for substantive claims but rather allowed as-applied ultra vires cases to proceed. Finally, they show that courts considered, but rarely granted, equitable tolling of the six-year time bar.

Sai Kwan Wong v. Doar[169] illustrates the result of earlier accrual, at promulgation, for procedural claims compared to later accrual for substantive claims. This case involved a Medicaid recipient who became subject to a 1980 regulation in 2006.[170] He challenged the regulation for two reasons: first, because it had been issued without notice and comment and, second, because it misinterpreted the authorizing statute.[171] The Second Circuit held that the Section 2401(a) six-year period began running in 1980 and time barred the procedural claim.[172] On the other hand, the court considered (but rejected) the substantive claim under the Wind River exception for as-applied ultra vires claims.[173]

Cases have applied earlier accrual for procedural claims for arbitrary-or-capricious claims as well as for notice-and-comment claims. The Fifth Circuit decision in Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration provides an example.[174] The plaintiff doctors in the case objected to the FDA’s approval of the abortion medication mifepristone, including through a claim that the FDA’s approval was arbitrary or capricious.[175] The case chronology included the FDA’s approval of mifepristone in 2000, its denial of a related citizen petition in March 2016, and the filing of the complaint in November 2022.[176] The Fifth Circuit held the arbitrary-or-capricious claim under Section 2401 likely time-barred,[177] even though the named plaintiff in the case was created in 2022 and thus newly exposed to the FDA’s regulatory scheme.[178] It was enough for the Fifth Circuit that six years had passed since both the FDA’s original approval and its disposition of a citizen petition filed by plaintiffs other than the named plaintiff.[179]

Equitable tolling of the six-year time bar is possible,[180] although it is rare. One case that granted equitable tolling of the Section 2401(a) period involved the disclosure of previously concealed evidence about World War II internment camps.[181] In comparison, in cases that have considered an agency’s delay[182] or an agency’s failure to enforce its own announced policy,[183] courts have refused to equitably toll the six-year period.

C.      Herr and Facial Substantive Claims

The lower courts’ consensus around the Wind River doctrine, with its limited exception to earlier accrual for as-applied substantive claims only, raises the question of why the Supreme Court even took the Corner Post case. At least part of the answer is that the Corner Post petition for certiorari presented the case law as if it reflected a circuit split,[184] even though it did not. The later-accrual case that the Corner Post plaintiffs pointed to was Herr v. U.S. Forest Service.[185]

Herr did not involve a procedural claim, and Chief Judge Jeffrey Sutton even specifically wrote in the opinion that later accrual would not have applied if the claim had been procedural.[186] Instead, the Herrs made a substantive claim that the Forest Service’s motorboat prohibition infringed their Michigan state property rights.[187] The opinion does not clearly say whether a Forest Service letter like the one the Herrs received should be treated as enforcement or not,[188] so it is not clear whether the Sixth Circuit treated the Herrs’ claim as an as-applied claim following government enforcement or as a facial claim made in the absence of government enforcement.

The category of facial substantive challenges is the heart of the issue in Corner Post. Such a challenge alleges the illegality of an agency rule or guidance without any enforcement action taken by the government. A facial plaintiff might or might not face the future possibility of enforcement.[189] For example, consider Hire Order Ltd. v. Marianos, a 2012 case in which a gun dealer challenged 1969 guidance that required in-state licenses for out-of-state sellers.[190] The plaintiff argued—without having experienced any enforcement action or threat of enforcement action—that the guidance exceeded the authority of the Gun Control Act.[191] The Fourth Circuit time barred the claim under Section 2401(a), even though the plaintiff did not exist until 2008.[192]

Reading Herr as a facial challenge would make it inconsistent with Hire Order and thus would present a Sixth Circuit/Fourth Circuit split regarding the timing of accrual for a facial substantive challenges. But this circuit split would not show that any court disagreed with earlier accrual for procedural claims. In any case, whether or not Herr produced a circuit split, the issue of accrual timing for facial substantive claims certainly is at the core of Corner Post’s holding on the Corner Post facts. Whatever Corner Post means for the statutory procedural claims of interest in this Article, it overrules Hire Order and instead requires courts to begin the six-year limitations period of Section 2401(a) later, when plaintiffs are harmed, for facial ultra vires challenges.

D.     Corner Post

In Corner Post, the Court allowed a convenience store that opened for business in 2018 to challenge Regulation II, a maximum debit card swipe fee regulation promulgated by the Federal Reserve in 2011.[193] The Court rejected the government’s invocation of the six-year time bar of Section 2401(a), even though Corner Post came into existence more than six years after the regulation was promulgated.[194] It held, in an opinion authored by Justice Amy Coney Barrett, that under the six-year limitation period of Section 2401(a), “a claim brought under the Administrative Procedure Act” accrues “when the plaintiff has the right to assert it in court.”[195]

Corner Post’s challenge was a facial substantive claim that focused on Regulation II’s alleged inconsistency with the authorizing statute, the Durbin Amendment. The statute requires debit card swipe fees or “interchange transaction fee[s] . . . to be reasonable and proportional to the cost incurred by the issuer with respect to the transaction.”[196] The regulation capped debit card swipe fees at 21 cents per transaction, plus 0.05 percent of the transaction’s value.[197] Corner Post argued the underlying costs of each transaction for the banks were far less than these maximum fees.[198]

Corner Post’s complaint had two counts. One, under APA Section 706(2)(C), alleged that the regulation exceeded the authority of the Durbin Amendment.[199] The other, under APA Section 706(2)(A), alleged that the Federal Reserve’s action in promulgating the regulation was arbitrary and capricious because the Fed failed to sufficiently consider the statute’s requirement of reasonable and proportional costs.[200] As the Court recognized, Corner Post’s “central claim—that the regulation violates the statute—is a prototypical substantive challenge.”[201]

As Justice Ketanji Brown Jackson explained in dissent, the facts of Corner Post themselves illustrate the potential for plaintiffs to game the Court’s rule.[202] The origins of the challenge to the maximum debit card swipe-fee regulation lie in a suit brought by a trade association of convenience stores and like businesses soon after the Fed promulgated Regulation II.[203] The D.C. Circuit handed the association a loss in 2014.[204] Later, Corner Post, which opened for business in 2018, joined a similar suit in order to “do an end run around” the six-year time bar and try again in the Eighth Circuit.[205] As Corner Post itself illustrates, APA claims covered by the Corner Post holding have no practical time limit, since it is always possible for a new plaintiff to come into existence and suffer harm because of a preexisting regulation.

Corner Post aligns with the Wind River doctrine that favors access to judicial review for ultra vires claims.[206] Both cases involve the same concern for the interests of a plaintiff specifically injured by the existence of an agency regulation. The important difference between the Wind River facts and the Corner Post facts, however, is that in Wind River, the agency took an affirmative enforcement action by denying an application for a mining permit.[207] Corner Post was an “unregulated plaintiff,”[208] since the Federal Reserve did not enforce the maximum debit card swipe fee regulation against it. In fact, it could not have done so, since the regulation applied not to Corner Post but rather to banks who participate in the debit card financial network.[209] Corner Post was affected only indirectly by Regulation II because intermediate third parties—merchant banks—charged Corner Post the maximum fees allowed by the regulation when Corner Post’s customers used debit cards.[210] Corner Post thus made a facial claim as an unregulated plaintiff.

Corner Post adds to prior law, including the Wind River doctrine, not so much because the Corner Post Court refused to time bar a substantive claim but rather because it refused to time bar a facial substantive claim.[211] Corner Post clearly extends access to court not only to plaintiffs who have as-applied substantive claims against old regulations, but also to plaintiffs who have facial substantive claims against old regulations. It thereby overrules case law such as Hire Order, where the Fourth Circuit time barred a plaintiff’s facial claim that old guidance violated the authorizing statute.[212]

But Corner Post is less clear about when a claim based on a long-ago procedural illegality accrues. The text of the opinion suggests that the Section 2401(a) time period for any APA claim, whether substantive or procedural, begins later, when a plaintiff “has the right to assert [the claim] in court,” meaning, “in the case of the APA, when the plaintiff is injured by final agency action.”[213] Yet the issue of accrual timing for procedural claims was not presented by the facts of the case, and even Corner Post’s briefing expresses the expectation that a later-accrual holding would not apply to procedural claims.[214]

In addition, footnote 8 of Corner Post offers a specific reservation about whether challenges to “procedural” shortcomings are covered by the Corner Post holding. The footnote explains that it “may be that some injuries can only be suffered by entities that existed at the time of the challenged action,” and acknowledges Corner Post’s suggestion “that only parties that existed during the rulemaking process can claim to have been injured by a ‘procedural’ shortcoming.”[215] Yet footnote 8 does not reveal what doctrinal argument would support the result of earlier accrual for procedural claims but not for substantive ones. As described below, the doctrinal path to an earlier-accrual exception for procedural claims is difficult, although not frivolous.[216]

In summary, the Corner Post holding clearly changes the law with respect to the start of the limitations period for facial substantive challenges. But as to procedural claims, its result is unclear. This leaves the following as a summary of the doctrine under Section 2401(a) after Corner Post.

Table 2: Section 2401(a) Accrual for APA Challenges After Corner Post

	Facial Challenge	As-Applied Challenge
Procedural Challenge	UNCLEAR whether earlier, when the regulation is promulgated, or later.	UNCLEAR whether earlier, when the regulation is promulgated, or later.
Substantive Challenge	EARLIER: When the regulation is promulgated. LATER: When the plaintiff suffers injury and acquires the right to sue.	LATER: When the agency enforces the regulation and the plaintiff   acquires the right to sue.

III. In Defense of a Time Bar for Procedural Claims

In Corner Post and McLaughlin, the Supreme Court departed from longstanding case law by disregarding time bars for administrative procedure claims. Insisting on judicial review for substantive claims makes some sense. It squares with the view that regulations and agency orders have a continued obligation to comply with authorizing statutes and the Constitution. But refusing to time bar judicial review for procedural claims makes less sense. Policy favors a time limit for procedural claims.

The argument for time barring procedural claims is threefold.[217] First, a time bar would correctly reflect congressional intent, because, among other reasons, it would not impute to Congress the crystal-ball intention to require agencies to comply with procedures that courts only determine decades later. Second, regulations produce enormous reliance interests, which increase over time. Third, it is extremely costly to evaluate and correct a long-ago rulemaking process.

A.      Congressional Intent

Two goals are typically cited to explain why Congress requires administrative procedure: producing high-quality rules and encouraging public participation.[218] Given Loper Bright,[219] the goal of high-quality rules is assumed here to mean correct statutory interpretation rather than wise exercise of agency discretion. The public participation value considers administrative procedure a benefit for the “public at large,” as the pre-Corner Post case law acknowledged.[220] Public participation has come to encompass the ideas of accountability, legitimacy, and fostering public debate.[221]

A time bar for procedural claims would not interfere materially with the quality-rule justification because procedural claims are but one of several available mechanisms for ensuring that an agency’s regulations appropriately implement statutes.[222] Loper Bright increases courts’ responsibility for ensuring quality rules, and limiting procedural challenges is even more appropriate given that courts must now independently resolve all questions of statutory interpretation without deferring to agency constructions of ambiguous statutes.[223] If plaintiffs may reach back indefinitely to challenge procedural violations, a court could invalidate an old regulation even if the court decided, applying Loper Bright, that the regulation perfectly interprets the statute.

As time passes after an agency first issues a regulation, the importance of procedural claims as a quality check decreases because the relevance of other quality checks increases. For instance, under Loper Bright, judges engaged in statutory interpretation may give due “respect” to a regulation’s content.[224] Longstanding regulations may attract more respect, and the absence (or failure) of earlier challenges or legislative and administrative reversal efforts can provide evidence of the regulations’ quality and justification for giving them more weight.[225]

A time bar for procedural claims aligns with the public participation justification for administrative procedure because this justification relates specifically to the moment in time when the rulemaking process occurs. The public participation exercise—“to provide interested members of the public an opportunity to comment in a meaningful way on the agency’s proposal”[226]—can only occur while the agency is promulgating its rule or issuing an order. Whatever the agency can do to pursue the goal of reason-giving[227] happens at the earlier moment of final agency action, not at the later moment of enforcement or application.

This connection between the moment of public participation harm and the moment of administrative procedure illegality was explicitly noted in pre-Corner Post case law. In Shiny Rock, the Ninth Circuit explained that any injury “was that incurred by all persons when, in 1964 . . . the amount of land available for mining claims was decreased.”[228] Similarly, the Sixth Circuit in Herr identified an administrative procedure violation as a “denial of [administrative] process to the public at large” and explained that a “classic example” of accrual of an APA claim at the time of promulgation is when “an agency . . . issues a rule without following all requirements of notice-and-comment rulemaking.”[229]

Substantive claims last because agency regulations and orders have a continuing obligation to correctly interpret substantive statutes. The statute continues to impose its requirements over time. But procedural claims do not continue through time in the same way. Instead, a statute setting forth process requirements imposes responsibilities that an agency can only meet at a particular moment in time. The requirement of notice-and-comment and the required absence of arbitrary-or-capricious decision-making exist only at the moment of promulgation.

Time barring procedural claims also aligns with congressional intent because the requirements of APA procedure have changed substantially over time.[230] Congress has not set the specifics of administrative procedure requirements. Instead it has left these to the courts.[231] Courts have, in turn, built a doctrinal edifice of administrative procedure requirements on the foundational assumption that Congress wants to provide broad judicial review.[232] Congress did not object to the judicial view that brief 1970s-style preambles sufficed, and it has not objected to the judicial view that lengthy 2020s-style preambles are required.[233] But it makes no sense to assume that Congress in the 1970s wanted agencies in the 1970s to follow administrative procedure requirements developed by courts decades into the future.[234]

If procedural claims are not time barred, a court could “set aside” a regulation not because the agency did anything inadequate under contemporaneous law, but rather because its 1975 process was inadequate when measured by 2025 standards. This cannot plausibly match congressional intent. One Supreme Court case suggests that less exacting contemporaneous process could be adequate,[235] but the general rule of case law retroactivity suggests otherwise.[236] Moreover, even if it were the right approach to judge old procedures based on old norms, both the content of those old, required procedures and the question of whether the rulemaking met those requirements would be difficult or impossible to determine.[237]

B.      Reliance

When it comes to deciding whether and when to allow claims challenging procedures used to promulgate regulations or issue orders, the policy exercise is to balance two offsetting concerns. One goal is certainty and reliance on the rule of law, which, as just mentioned, involves many diverse interests. The other goal is legal administrative procedure, which in turn rests on the justifications of high-quality rules and public participation.

As soon as an agency promulgates a regulation or issues an order, reliance begins.[238] Some reliance interests are held by those directly affected by the agency action, such as the company hired to design an authorized highway,[239] the individuals who rely on food stamp support,[240] or the banks that set their fees in accordance with agency regulations.[241] Other reliance interests are held by regulatory beneficiaries, such as the drivers who use a highway, the grocery stores that accept food stamps and claim reimbursement from the government, and the convenience stores whose bank fees are capped by the agency’s rule. Some reliance interests are held by third-party intermediaries, who build the regulations’ requirements into their systems and who benefit from any assurance that these regulations will not change. These include makers of navigation systems that route drivers onto the new highway and payment systems that process food stamp reimbursements or swipe fees. Reliance interests are also held by the government, since its policies and enforcement procedures are articulated in countless additional guidance outlets, from websites to internal manuals, all of which build a pattern of practice that assumes the certainty of the law going forward.

All these reliance interests increase over time. The older the regulation, the more the systems that assume its legality grow in their assumption that the regulation is the law. Courts sometimes take reliance into account even when they consider regulatory challenges.[242] A limitations period is one available tool that can acknowledge increasing reliance interests over time.

Several procedural cases illustrate reliance interests. For instance, in the land use context, the Fourth Circuit in 1999 held that Section 2401(a) time barred a procedural challenge to a 1989 Federal Highway Administration decision about the location of a highway.[243] The procedural challenge faced strong reliance interests because planners had already submitted permit applications and secured state funding for the highway. As another example, consider Alliance for Hippocratic Medicine, where the Fifth Circuit time barred an arbitrary-and-capricious challenge to the FDA’s two-decades-old approval of the abortion medication mifepristone.[244] Drug manufacturers in that case emphasized the importance of their reliance on FDA approval decisions in making long-term business commitments.[245] As a final example of this tension, consider Halliburton, in which the oil company challenged the procedure used to promulgate a 1975 regulation that bars deducting amounts paid to settle disputes about fines.[246] After fifty years, the 1975 regulation had been fully incorporated into Treasury and IRS guidance, case law, business tax planning, settlement negotiations, accounting models, and tax preparation software.[247]

Sometimes, barring a procedural challenge to an old agency regulation or order means that procedural illegality will stand unaddressed. Consider the countless land-use decisions made over time by the federal government, including decisions about highway siting,[248] bridge building,[249] and pipeline construction.[250] Such decisions can present difficult cases for this Article’s argument that procedural administrative law claims should be time barred. On one hand, land use decisions are often very costly to fix, in part because of the entrenched and inflexible investments made because of the placement of a highway. On the other hand, plaintiffs who challenge procedures in land-use decisions sometimes raise important concerns of bias and discrimination, and the proposal here would limit the plaintiffs’ ability to use procedural claims to raise this concern.[251] If government malfeasance concealed evidence about the procedure or otherwise blocked the ability to pursue a lawsuit, equitable tolling might be available.[252] But it is also true that, in most cases, the information about the procedural illegality would be available at the time it is committed, and the limitations period proposed in this Article would begin to accrue then.

C.      Costs and Benefits

As time goes by, the cost of remedying administrative procedure illegalities increases. It is more effective to remedy an administrative procedure illegality that occurred a few years ago than an administrative procedure illegality that occurred a few decades ago. Long delay causes error costs, as challenges become stale and more difficult to correctly adjudicate as evidence ages.[253] Even though plaintiffs must litigate procedural challenges on the basis of the written administrative record, courts benefit from an understanding of the context of the rulemaking as they consider issues like whether a comment was significant and whether the agency adequately responded.

Stale evidence presents a problem even where claims are meant to be judged based on a closed administrative record because context can illuminate the meaning of the record. For instance, context can show whether the contemporaneous audience of commenters understood an agency response. This may validate the response even if its meaning is opaque to readers several decades later.[254] Decades later, a court is more likely to misunderstand the regulatory project and incorrectly decide the case.

Agency resource constraints also pose a problem for challenges to old regulations. The more time passes from the time of the original promulgation, the more difficult it is for the agency to redo its work, because it becomes harder and harder to replicate the conditions of the initial rulemaking process. When the agency tries to do so, it will find that the process is very costly, in terms of both resource and error costs.

Another factor in the cost-benefit analysis has to do with greater benefit of new-reg challenges as compared to old-reg challenges. The independent public participation value of administrative procedure relates not only to the specific regulation at issue, but to the value of legal administrative procedure in general. In other words, judicial review of procedural claims is important for its precedential effect, and this is likely more valuable to challenges to more recent regulations.

Consider the choice between reviewing a claim that, in 1975, an agency wrote an incomplete response to a single ten-page industry comment or reviewing a claim that, in 2025, an agency illegally used artificial intelligence to write a response to thousands of pages of comments. It is better to take the second case. This is partly because error costs will be higher in the first case. But it is also because the 2025 case will progress toward an answer to a question that is novel and pressing for agencies today, as they face voluminous comments and the efficiency incentives of AI tools. In comparison, the 1975 case would answer a dusty question that bears less resemblance to agencies’ contemporary challenges.

Even though the costs of challenging an old regulation or order increase over time, there may be circumstances in which it makes sense to allow such a challenge. In that event, a court can extend the time-bar period through equitable tolling or equitable estoppel. Government misconduct and a plaintiff’s diligent pursuit of rights are two factors that weigh in favor of granting equitable tolling[255] or equitable estoppel.[256] Such equitable exceptions to limitations periods require fact-specific analyses. For instance, equitable tolling has been available when the federal government concealed information about World War II-era internment camps,[257] but not when the federal government failed to enforce a new rule.[258] Even though equitable exceptions are contextual and unusual, they provide an important safety valve that can help ensure that important procedural claims receive judicial review.

IV. Judicial and Legislative Responses

A.      Addressing the Standing Riddle in Footnote 8

One way to implement this Article’s recommended time bar for procedural claims would be for courts to make a procedural claim exception to the later-accrual holding of Corner Post. Corner Post itself refers to this possible solution in footnote 8, where the Court suggests that the moment-of-promulgation procedural injury might be the source of a person’s right to sue, which would mean earlier accrual.[259] The problem is that, despite this suggestion, existing standing doctrine does not support the proposed result.

If the government sought to contend that a procedural APA claim accrued at the moment of promulgation under Section 2401(a), its argument would emphasize this footnote:

It also may be that some injuries can only be suffered by entities that existed at the time of the challenged action. Corner Post suggests that only parties that existed during the rulemaking process can claim to have been injured by a “procedural” shortcoming.[260]

Footnote 8’s emphasis on injury and its suggestion that a procedural injury might require a plaintiff to exist at the time of promulgation suggest that its doctrinal theory is grounded in standing. At first, standing analysis seems to come up empty. That is, Article III standing law does not provide the limit suggested by the footnote. But another standing concept—the “zone of interests” requirement—would at least allow the government to make a nonfrivolous argument in favor of earlier accrual.

Consider the Article III concern in connection with a prototypical procedural claim that an agency has violated notice-and-comment requirements prescribed by Section 553 of the APA. When a plaintiff alleges a notice-and-comment violation, the plaintiff typically proceeds under Section 706(2)(D) of the APA, which allows a court to “set aside” agency action found to be “without observance of procedure required by law.”[261] In turn, the plaintiff alleges that the agency violated Section 553 of the APA, which provides notice-and-comment process requirements. Section 553 provides, for instance, that “notice of proposed rule making shall be published in the Federal Register,”[262] and that “the agency shall give interested persons an opportunity to participate in the rule making.”[263] It also requires that the agency must provide “a concise general statement of [the rule’s] basis and purpose.”[264]

Yet a plaintiff must do more than point to a procedural illegality like an agency’s violation of Section 553 in order to establish Article III standing.[265] Instead, the plaintiff must meet the Constitution’s case or controversy requirement.[266] This shifts the analysis toward the later-in-time question of how the resulting regulation has hurt the plaintiff. When courts analyze the injury element of Article III standing for notice-and-comment procedural claims, they focus on the later concrete harm caused by the regulation, not on the moment of promulgation. In addition, courts considering notice-and-comment claims have assumed, and not analyzed, causation and redressability.

To illustrate courts’ readiness to find or assume standing,[267] consider Mendoza v. Perez,[268] involving a challenge brought by U.S. sheepherders to Department of Labor Training and Employment Guidance Letters (TEGLs). The TEGLs provided certain certifications for employers seeking to hire foreign sheepherders.[269] The plaintiffs’ claim was that the TEGLs should have been issued with notice and comment.[270] The D.C. Circuit explained that to establish Article III standing, the plaintiffs had to demonstrate that “the TEGLs cause[d] them some personal injury—such as increased competition or lost opportunity.”[271] Based on the doctrine of competitor standing, the D.C. Circuit held that Article III requirements were met.[272] The court assumed satisfaction of causation and redressability and emphasized that the plaintiffs had standing without any requirement to prove that the missing procedure would have caused any difference in the herding certification requirements.[273]

So far, the discussion of standing law has not helped unravel the riddle of footnote 8 of Corner Post. Footnote 8 alludes to standing doctrine when it suggests that only persons in existence at the time of promulgation might be “injured” by illegal notice-and-comment procedure.[274] But, as illustrated by Mendoza, the Article III analysis of injury clearly focuses on the later-in-time impact of the regulation that results from the illegal procedure—not on the illegal procedure itself.

Yet the government could argue that another requirement related to standing—known as the “zone of interests” test—constrains procedural claims under the APA to plaintiffs in existence at the time of promulgation. This doctrine developed as an additional prudential requirement connected to Section 702 of the APA.[275] In 1970, the Supreme Court wrote that the test required that a plaintiff’s interest fall “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”[276] The zone-of-interests test generally is lenient, supported by the idea that agency actions are presumptively reviewable.[277] But the presumption is rebuttable, and the zone-of-interests test is not always satisfied.[278] In addition, the test is flexible[279] and focuses on the “intent” of Congress.[280]

If the notice-and-comment provisions of Section 553, together with Section 706(2)(D), were considered the “statute or constitutional guarantee in question,”[281] the zone-of-interests test could operate to allow a plaintiff to sue only if the plaintiff was in existence at the time of promulgation—as footnote 8 suggests. Section 553 is only capable of offering notice-and-comment rights to those that exist during the promulgation process. Those that come later cannot take advantage of the rights directly offered by Section 553, even if they can experience the regulatory results of the notice-and-comment process. The zone of interests of notice-and-comment arguably extends only to those in existence when the agency promulgated the regulation.

Applying the zone-of-interests test to Section 553 directly in this way would dramatically shift the case law. Typically, in a procedural APA challenge to a regulation, the zone-of-interests test applies by reference to the substantive statute the agency acts pursuant to—not by reference to procedural requirements. For instance, in Mendoza, the D.C. Circuit concluded that the plaintiff sheepherders satisfied the zone-of-interests test because they fell within the zone of interests of the underlying substantive labor law statute.[282] The court did not consider whether the plaintiffs fell within the zone of interests of the APA’s notice-and-comment statute.

The idea of applying the zone-of-interests test by reference to the notice-and-comment statute rather than to the substantive statute arguably draws support from Lexmark International, Inc. v. Static Control Components.[283] In Lexmark, the Supreme Court clarified that the purpose of the zone-of-interests test was to determine whether “a legislatively conferred cause of action encompasses a particular plaintiff’s claim.”[284] In a challenge to the adequacy of notice-and-comment process, the cause of action arises from APA Sections 553 and 706. In Mendoza, the D.C. Circuit may have recognized the possibility of applying zone-of-interests based on the notice-and-comment statutory requirement.[285] After explaining the Lexmark zone-of-interests test, the court explained that the plaintiffs’ cause of action arose under the APA, not under the substantive statute.[286] But the court “[n]evertheless” applied the zone-of-interests test broadly, by reference to the substantive labor statute rather than to Section 553 of the APA.[287]

The main reason given in Mendoza for the application of the zone-of-interests test to the substantive statute rather than the procedural statute—despite Lexmark’s zone-of-interests focus on a plaintiff’s “legislatively conferred cause of action”—is the assumption that Congress prefers judicial review of agency action.[288] Yet it is a stretch to assume that Congress wishes plaintiffs to have an indefinite ability to bring APA procedural claims. Courts have used the six-year time bar to limit plaintiffs’ procedural APA challenges for decades, and without a time bar, regulations promulgated decades ago would be subject to increased process requirements that Congress could not have anticipated. Moreover, Congress might be even more reluctant today to open the doors wide to procedural APA challenges, under the assumption that post-Loper Bright courts will presumably do more to ensure that regulations correctly interpret statutes.[289]

There is a strong policy argument in favor of a time bar for procedural administrative law claims.[290] But despite the suggestion in footnote 8 of Corner Post that only those would-be plaintiffs who exist at the promulgation of a regulation might have standing, it is clear that Article III standing does not rest on such a procedural injury. An argument could be made that only those plaintiffs who exist at promulgation meet the requirements of the supplemental zone-of-interests test, but this argument is a reach—not certain to win and subject to the risk of disrupting the law of standing.

B.      Utilizing Remand Without Vacatur

Remand without vacatur is another possible judicial avenue to protect old regulations against years-later procedural claims. A line of case law concentrated in the D.C. Circuit has long distinguished procedural challenges for the purposes of fashioning an appropriate remedy. The D.C. Circuit has applied the special remedy of “remand without vacatur” to address procedural illegalities such as notice-and-comment flaws.

Before getting to the details of the D.C. Circuit’s “remand without vacatur” doctrine, a review of the vacatur debate is in order. Vacatur is a “judicial order declaring that the rule shall no longer have legal effect.”[291] The APA authorizes vacatur in Section 706, which instructs reviewing courts to “hold unlawful and set aside agency action” that, for instance, violates a statute or the Constitution, is arbitrary or capricious, or is “without observance of procedure required by law.”[292] The “set aside” instruction allows courts to refuse the agency action any legal effect, or, in other words, to vacate it.[293]

An energetic current debate about vacatur compares party-specific vacatur to universal vacatur. On the side of party-specific vacatur, some argue that the APA’s “set aside” language should be understood in the context of the equitable power of a court and should authorize and prefer remedies that are not universal. This argument emphasizes that vacatur is an equitable remedy and that courts should follow the equitable tradition of granting remedies as between plaintiff and defendant—not more broadly or universally.[294]

Under the universal-effect analysis, vacatur produces similar effects to a nationwide injunction, and when a court vacates a rule, an agency cannot enforce it against anyone.[295] For example, sometimes an agency’s rules state that penalties will apply if a regulated party violates a regulation. Under the universal vacatur theory, such an agency cannot apply these penalties if any regulated party violates a vacated regulation.

In 2025, the Supreme Court restricted federal courts’ ability to issue nationwide injunctions under equitable powers authorized by the Judiciary Act of 1789.[296] But the Court expressly reserved on the question of whether the Constitution would prohibit the authorization of a similar remedy under a different statute.[297] Party-specific versus universal vacatur under the “set aside” language of Section 706 of the APA remains an open issue.

Remand without vacatur is a further gloss that could be added to either party-specific or universal vacatur.[298] As described by Justice Kavanaugh in his Corner Post concurrence, “Remand without vacatur is . . . a shorthand way of vacating a rule and staying the vacatur pending the agency’s completion of an additional required action, such as providing additional explanation or issuing a new, more stringent rule.”[299] The remand without vacatur remedy may appear to present a tension with the APA’s instruction for courts to “set aside” illegal agency actions.[300] But the remedy finds support in judges’ equitable discretion to fashion remedies.[301] Under Justice Kavanaugh’s formulation, a court can stay its own vacatur based on its own equitable power.[302]

Remand without vacatur is also of more specific interest for the analysis in this Article as it relates to the possibility of drawing a line between substantive and procedural claims. It suggests that even if judicial review is available for procedural claims, the resulting remedy might be narrower. Remand without vacatur is a gentler remedy available for more minor procedural illegalities compared to conclusions that an agency exceeded the authority of a statute.[303] It requires the consideration of two factors: “the seriousness of the . . . deficiencies” and “the disruptive effect” of vacatur.[304]

Remand without vacatur was used when the Department of Agriculture issued food stamp regulations without notice and comment. While the agency worked on issuing replacement regulations, the original regulations remained in force so that the food stamp program could continue uninterrupted.[305] It was used when the FCC could probably provide a legal, i.e., not arbitrary-or-capricious, reason for its regulation that supported viewpoint diversity in broadcasting.[306] Similarly, a related, modified remedy was used to allow the U.S. Army Corps of Engineers to prepare a required environmental impact statement for an oil pipeline so that the pipeline would not be emptied of oil in the meantime.[307]

Remand without vacatur illustrates that, when a regulation correctly interprets the statute but has been issued without adequate procedure, a proportionate remedy might request the addition of the missing procedure but not vacate the regulation. The remedy is a way of mitigating the practical and administrative disadvantages of vacating a regulation that applies to “thousands or millions” of people and that may provide the foundation for a major and longstanding regulatory framework.[308] The remedy is available for procedural errors because these may be fixed without changing the substantive effect of the rule that thousands or millions of people have come to expect.

Remand without vacatur is one tool that courts retain after Corner Post to manage procedural administrative law challenges such as those based on illegal notice-and-comment or arbitrary-or-capricious rulemaking process. This tool would not precisely answer this Article’s call for an earlier start to the time bar for procedural claims. But it would allow courts to mitigate the problem of disrupting existing rule-of-law and stability interests where an old regulation was promulgated without legal procedure but nevertheless complies with the authorizing statute and the Constitution. It is a way to treat procedural claims more gently and to enable courts to prevent claims about long-ago administrative procedure from disrupting the certainty and reliance interests that have developed in the years since promulgation. As the D.C. Circuit and other courts have recognized, remand without vacatur is a good match for procedural claims.[309]

Remand without vacatur allows regulations to continue in force unchanged. As a result, it both protects reliance interests and minimizes the costs of error if a court mistakenly decides that an agency has made a procedural error. But the downside of remand without vacatur is the resource cost. If procedural challenges are available indefinitely, then plaintiffs indefinitely can claim both judicial resources to adjudicate those challenges and administrative agency resources to re-do the procedure.

C.      Revising the Statutory Limitations Period

In contrast to remand without vacatur, a legislative fix could limit procedural challenges and minimize burdens on courts and agencies. Congress should enact a statute of repose for procedural claims—a limitations period that accrues when an agency promulgates a regulation or issues an order. This would represent a policy judgment that the value of legal administrative procedure is adequately protected by the ability of plaintiffs to bring procedural claims within the statutory time period, given limited judicial and administrative resources.

Just ten days after the Court’s decision in Corner Post, a group of representatives introduced such a statute of repose, the Corner Post Reversal Act.[310] Members of Congress might consider introducing a similar proposal in the future. Such a proposal should consider three key points. First, a revised statute should amend Section 2401(a), not the APA. Second, it should feature a six-year limitations period or something similar. Third, it should use a statute of repose design that accrues the limitations period starting with “agency action.” For instance, it might add the following sentence to Section 2401(a)[311]:

For a civil claim against the United States that seeks judicial review of agency action, including a claim under the Administrative Procedure Act, such right of action shall accrue at the time of agency action.

It is best to amend Section 2401(a), even though the Corner Post Reversal Act instead proposed an amendment to the APA. Amending Section 2401(a) would reclaim its historic function as a broadly applicable outer time limit that does not disturb shorter limitations periods. In contrast, amending the APA would be both too narrow and too broad.

Amending the APA is too narrow because procedural challenges to administrative action can arise outside the APA. To see why, consider the developing case law under the Hobbs Act. The Court’s 2025 decision in McLaughlin appears to authorize plaintiffs to pursue both procedural and substantive claims against administrative actions, such as FCC orders, outside the sixty-day time limit of the Hobbs Act.[312] Plaintiffs pursue some such claims through private rights of action, as in the McLaughlin suit.[313] That case arose under the Telephone Consumer Protection Act,[314] not the APA, and a limitations period added to the APA might not constrain it.[315] But a backup, outside limit statute of repose in Section 2401(a) should do so.

Amending the APA might also be too narrow if it missed a potential cause of action under the APA itself. The proposed Corner Post Reversal Act referred to Section 702 and did not mention Sections 706 or 703.[316] Although Section 702 authorizes judicial review, other sections in the APA provide the vehicle for causes of action. Section 706 defines the scope of review named in Section 702, authorizing arbitrary-or-capricious, constitutional, statutory interpretation, and illegal procedure claims. Because complaints, like that in Corner Post, commonly cite Section 706 as the source of a cause of action, amending some sections of the APA but failing to amend Section 706 could jeopardize the statutory revision.

Similarly, Section 703 offers another basis for a plaintiff to bring its claim. Section 703 provides that “except to the extent that prior, adequate, and exclusive opportunity is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.”[317] As drafted, the Corner Post Reversal Act risks missing claims brought under Section 703. Amending Section 2401(a) avoids such accidental pitfalls entirely.

Amending the APA directly is also too broad because some actions arise under the APA but are subject to shorter, more restrictive time limits. For example, the Clean Water Act provides a 120-day limitations period, even in an enforcement action.[318] If Congress amends the APA directly to add a six-year statute of repose, a question may arise regarding whether an earlier-enacted shorter period or the later-enacted longer period applies. Amending Section 2401(a) rather than the APA should not raise a similar question about whether the new, longer period overrides shorter, specific periods. Ample case law supports the understanding of Section 2401(a) as a time limit that applies to backstop, not override, other statutory limitations periods.[319] Congress presumably would not intend its Corner Post fix to disturb other, shorter limitations periods, which are common. One brief, for instance, named twenty limitations periods of less than a year.[320]

A revised Section 2401(a) statute of repose should have a limitations period of six years or so, even though many limitations periods are shorter. To see why, consider three kinds of claims. First, there are substantive claims that an agency regulation or order is a substantive violation of the Constitution or an authorizing statute. Second, there are claims that an agency used illegal procedure within the last six years. Third, there are claims that an agency used illegal procedure more than six years ago.

Among these categories, substantive claims about constitutionality and the interpretation of authorizing statutes are the most important, as evidenced by their availability, particularly for enforcement actions, even when the APA does not authorize such claims.[321] Next are recent procedural claims filed in the six years following the promulgation of a regulation or the issuance of an order. Finally, older procedural claims are the least important of these three groups of claims. A limitations period accomplishes the policy goal of deprioritizing such older procedural claims, even while equitable exceptions provide a safety valve to ensure that courts can still hear such claims in appropriate cases.[322]

A six-year period is appropriate partly because of the importance of procedural claims. Such claims indirectly support the quality-control goal of ensuring that agency regulations and orders are substantively correct.[323] Procedural claims are also independently important for public participation reasons, which support accountability, legitimacy, and debate.[324] These reasons are independent from the quality of the regulation. Even if a regulation perfectly interprets a statute, an agency breaks the law if it ignores procedure. Because of both the quality-control goal and the public-participation goal, at least some plaintiffs should have the ability to raise procedural claims. The limitations period should therefore be set to allow some such claims, not to unreasonably limit them.

Some plaintiffs may be quick to bring a procedural claim. An alert industry can challenge objectionable regulations directly and quickly, sometimes even before they go into effect. In several famous administrative law cases, the complaint was filed so quickly that the initial court decision in the case came the year after the challenged final agency action.[325] These cases came from industry plaintiffs who were closely following every detail of the regulatory process, so that filing a lawsuit was simply the next step in a sustained effort to obtain a certain regulatory result.[326]

But other plaintiffs need more time to bring a claim. Not all cases arise from harms to alert industries. Sometimes, regulatory challenges arise in disputes between private parties. For example, the validity of a regulation under the Fair Labor Standards Act might arise only after an employee sues an employer. But the employee might not even know about the regulation until they seek a legal frame to pursue a grievance.[327] In addition, there is at least one area—tax—in which the ability to challenge rulemaking procedure requires a plaintiff to navigate a series of subject-matter-specific hurdles, which typically takes years to accomplish.[328] A longer time frame increases the ability of plaintiffs with fewer resources or more constraints to seek review for procedural claims.

After six years, it is likely that the concerns of congressional intent, reliance, and cost will generally overwhelm the benefit of calling out administrative procedure illegalities. Case law developments over six years can materially change the standard for reviewing agency actions, making it less likely that the Congress of six years ago expected contemporaneous judicial review requirements to apply. Significant reliance develops over six years, as relevant users will have adjusted their habits, businesses their prices, drivers their routes, agencies their guidance, and so forth. After six years, changes in agency personnel may mean that it is difficult to reconstruct exactly what was going on at the time of the initial rulemaking; six years is longer, for instance, than a presidential term. Finally, the six-year period is tried and true in the case law from 1976 to the present and might be used simply because it has seemed to work well enough in the past.[329]

Another key provision of the proposed statute of repose would accrue the six-year period starting with “agency action.” This starting point matches the event that prompts review under Section 702, Section 703, and Section 705 under the APA. This focus on agency action differs from the Corner Post focus on when the plaintiff “has the right to assert” a claim in court.[330] For procedural claims in particular, accrual at the time of “agency action” means earlier accrual. The time of promulgation or issuance is the time when adequate procedure has or has not taken place, whether based on a notice-and-comment claim or an arbitrary-or-capricious challenge to the rulemaking process. Thus, this result aligns with the argument throughout this Article that procedural claims should accrue earlier for reasons of congressional intent, reliance, and costs.

Accruing a six-year limitations period at the time of agency action also makes sense for substantive claims. This is easiest to see for as-applied substantive claims that follow an agency’s direct enforcement action against a regulated party. In these cases, starting the statute with the enforcement action gives a plaintiff six years from the time of that action to claim that the action violated the statute or the Constitution. This is consistent with the Wind River doctrine that preceded Corner Post,[331] with the historic availability of ultra vires actions,[332] and with the constitutional concern that courts should be able to check the statutory interpretation and constitutionality of agency action.[333]

If the statute begins the limitations period starting with an “agency action,” substantive facial challenges brought by unregulated plaintiffs, including those created after promulgation, pose greater difficulty. This is the kind of challenge involved in Corner Post, since Corner Post, as a retailer rather than a bank, would not have been directly subject to any swipe fee enforcement action by the government.[334] Justice Kavanaugh wrote in his concurrence that it was important not to accrue Corner Post’s facial claim earlier because otherwise Corner Post, as an unregulated plaintiff, would not be able to access judicial review.[335] But this is not correct. Substantive facial claims brought by unregulated plaintiffs like Corner Post would still have a pathway to court under the proposed statute of repose.

One way for an unregulated plaintiff to seek relief for a substantive facial claim is to sue the third party that caused it harm. For instance, Corner Post could presumably sue its merchant-bank contract counterparty under an illegal contract theory, allege that fees charged exceeded the amounts authorized by statute, and argue that the regulation did not control because it exceeded statutory authority.[336] It will not always be the case that an unregulated plaintiff will be able to sue the third party whose regulatory implementation hurts the plaintiff, but sometimes this should work.[337]

Another way for an unregulated plaintiff to seek judicial review of a facial substantive claim is to sue the government. This is what Corner Post did. In order to demonstrate standing to sue an agency after being injured by a third party, there needs to be a sufficient causal connection between the agency action and the injury caused by the third party.[338] In a separate challenge to Regulation II, the debit card swipe fee regulation at issue in Corner Post, a court considered this standing question for retailers challenging the regulation.[339] It concluded that there was ample evidence that the swipe-fee regulation “directly affected” retailers and led to “Article III injury”[340] because the regulation caused the injurious fee.

Using the same logic, a court could treat the imposition of the fee as an agency action for purposes of accruing the proposed six-year statute of repose. If Corner Post first paid a swipe fee in 2018, it could be treated as subject to an agency action, implemented through a third party, in 2018.[341] Corner Post would then have until 2024 to challenge the substantive validity of Regulation II. But Corner Post would not be able to raise procedural claims in 2018, because those accrued in 2011, when the regulation was promulgated.[342]

The judicial review framework of the APA focuses on “agency action,”[343] and so should a revised statute of repose for APA claims. Such a revision properly would time bar procedural claims outside the six-year period following promulgation while allowing substantive claims made within six years of the agency action causing plaintiff injury. This approach should provide appropriate judicial review for facial substantive claims brought by unregulated plaintiffs, because these claims are available when agencies cause third parties to cause harm, and a court could treat that harm as caused by “agency action.”

Revising Section 2401(a) to restore the pre-Corner Post time bar for administrative procedure claims makes good sense. Congress should amend Section 2401(a) to provide for a six-year statute of repose that accrues at the time of agency action. This would restore the pre-Corner Post time bar for procedural claims, since such claims would accrue at the promulgation of a regulation or the issuance of an order. Six years is enough time to allow procedural challenges to develop and appropriately prioritizes procedural challenges to new regulations.

Conclusion

Procedural APA claims, like notice-and-comment and arbitrary-or-capricious challenges, have previously been limited by the six-year time bar of Section 2401(a). The law should restore this limitation. Otherwise, courts would be required to reach back in time to enforce ever-changing, judicially created administrative procedure norms against decades-old regulations. This would conflict with any reasonable view of congressional intent, disturb important reliance interests, and carry overwhelming error costs while providing relatively small benefits.

The recent Supreme Court decision in Corner Post discarded the six-year time bar not only for substantive claims but, probably, for procedural claims as well. The law should be corrected to reinstate the time bar for procedural claims, including notice-and-comment and arbitrary-or-capricious challenges. The government might argue in litigation, based on Corner Post footnote 8, that the six-year time bar should accrue at promulgation for procedural claims. In the alternative, courts can consider the remedy of remand without vacatur for such claims. But the best approach is for Congress to amend Section 2401(a) to provide a six-year statute of repose that accrues at the time of agency action.

Copyright © 2026 Susan C. Morse, Mark G. and Judy G. Yudof Chair in Law and Associate Dean for Academic Affairs, University of Texas School of Law. Many thanks for comments to workshop participants at Duke University School of Law and University of Texas School of Law and to John Golden, Tara Grove, Michael Herz, Lee Kovarsky, Arti Rai, Teddy Rave, Larry Sager, Jack Townsend, Melissa Wasserman, and Ernie Young; and for terrific research assistance to Sydney Jean Gottfried, University of Texas J.D. Class of 2025. Finally, thank you to this Article’s team at the California Law Review for your exceptionally committed and careful editing.

          [1].     144 S. Ct. 2440, 2448 (2024).

          [2].     A time bar is a legal rule that prevents individuals from making a claim after a certain amount of time has passed. See Time-bar, Black’s Law Dictionary (12th ed. 2024).

          [3].     Corner Post, 144 S. Ct. at 2448.

          [4].     Id.

          [5].     See id. at 2471 (Jackson, J., dissenting) (noting that Corner Post was not a party to an earlier challenge to the Federal Reserve regulation and had been added to a later complaint “to do an end run around the statute of limitations”). See generally Susan C. Morse, Old Regs: The Default Six-Year Time Bar for Administrative Procedure Claims, 31 Geo. Mason L. Rev. 191 (2024) (arguing that the Court should have time barred Corner Post’s claim).

          [6].     144 S. Ct. 2244 (2024).

          [7].     144 S. Ct. 2040 (2024).

          [8].     See Loper Bright, 144 S. Ct. at 2261 (concluding that “agency interpretations of statutes . . . are not entitled to deference”); see also Cary Coglianese & Daniel E. Walters, The Great Unsettling Administrative Governance After Loper Bright, 77 Admin. L. Rev. 1, 17–20 (2025) (arguing that Corner Post might exacerbate the effect of Loper Bright by opening the door to more claims).

          [9].     See Ohio v. EPA, 144 S. Ct. at 2054 (explaining that for purposes of deciding preliminary injunction motion, “EPA offered no reasoned response” to a comment raising the issue of the possible omission of some states from the EPA’s regulatory plan); id. at 2061 (Barrett, J., dissenting) (objecting that the comment did not in fact raise that issue).

        [10].     See, e.g., Paul R. Verkuil, Congressional Limitations on Judicial Review of Rules, 57 Tul. L. Rev. 733, 748–49 (1983) (“There is no reason to accept misapplication of a rule to a respondent’s conduct in circumstances where one would not accept comparable misapplication of a statute.”).

        [11].     See McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 2006, 2015–17 (2025) (holding that statutes will be presumed to authorize later judicial review in enforcement proceedings unless they explicitly prohibit such review).

        [12].     See, e.g., Leedom v. Kyne, 358 U.S. 184, 188–89 (1958) (allowing judicial review although review was not authorized by statute); see also Nuclear Regul. Comm’n v. Texas, 145 S. Ct. 1762, 1775–76 (2025) (noting narrow avenue to suit under Leedom v. Kyne).

        [13].     Morse, supra note 5, at 229–30 (defining a possible “valid regulation doctrine” and arguing that it should apply if a regulation were unconstitutional but not if a regulation were procedurally invalid). The idea of a valid regulation requirement builds on the concept of a “valid rule.” See Henry Paul Monaghan, Harmless Error and the Valid Rule Requirement, 1989 Sup. Ct. Rev. 195, 196 (1989) (“The claim that the Constitution forbids the imposition of sanctions except in accordance with a constitutionally valid rule . . . seems to me embedded in our conception of the ‘rule of law.’”).

        [14].     See 5 U.S.C. § 553 (requiring notice-and-comment process for rulemaking); id. § 706(2)(D) (directing courts to “set aside” agency action “found to be . . . without observance of procedure required by law”).

        [15].     See id. § 706(2)(A) (directing courts to “set aside” agency action “found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

        [16].     See infra Part II.B (explaining pre-Corner Post case law).

        [17].     See Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2459 n.8 (2024) (“Even if some of Corner Post’s claims might be procedural, its central claim—that the regulation violates the statute—is a prototypical substantive challenge.”).

        [18].     See id. at 2448 (stating that the claim accrues when the plaintiff acquires the right to sue).

        [19].     See McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 2006, 2017 n.5 (2025).

        [20].     See infra Part I.C (explaining that the Constitution imposes minimal requirements under the Due Process Clause and does not prevent Congress from time-limiting plaintiffs’ ability to challenge procedural claims made under the APA).

        [21].     See, e.g., Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399 (1987) (noting the “evident intent” of Congress “to make agency action presumptively reviewable”).

        [22].     See, e.g., Robert S. Shwarts, Delineation in the Exceptions to the Notice and Comment Provisions of the Administrative Procedure Act, 57 Geo. Wash. L. Rev. 1069, 1091 (1989) (noting change in the D.C. Circuit’s case law applying notice-and-comment statutory requirements).

        [23].     See, e.g., Complaint at 4–8, Halliburton Co. v. United States, No. 4:24-cv-02149 (S.D. Tex. June 6, 2024) (No. 4:24-cv-02149) [hereinafter Halliburton Complaint] (alleging that a 1975 Treasury regulation banning the deduction of amounts paid to settle a government fine did not respond to a significant comment made during the promulgation process).

        [24].     See, e.g., Ohio v. EPA, 144 S. Ct. 2024, 2054 (2024) (developing the case law requirement of a “reasoned response” to a significant comment).

        [25].     See, e.g., Brief for the Pharmaceutical Research & Manufacturers of America as Amicus Curiae in Support of Petitioners at 19–21, FDA v. All. for Hippocratic Med., 144 S. Ct. 1540 (2024) (No. 23–25) (emphasizing reliance interests of pharmaceutical manufacturers in FDA drug approvals like the approval of the abortion medication mifepristone); see also Susan C. Morse & Leah R. Butterfield, Too Late: Why Most Abortion Pill Administrative Procedure Challenges Are Untimely, 76 Stan. L. Rev. Online 123, 129 (2024) (presenting diagram of time-bar analysis in Alliance for Hippocratic Medicine).

        [26].     See Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 344 (2003) (noting that setting aside a regulation may support the APA’s procedural policy objectives but simultaneously undermine the objectives of Congress set forth in the authorizing statute, so that “congressionally endorsed values typically press in more than one direction”).

        [27].     See, e.g., Rodway v. United States Dep’t of Agric., 514 F.2d 809, 813–17 (D.C. Cir. 1975) (remanding without vacating a regulation authorizing food stamps).

        [28].     See, e.g., Richard A. Epstein, The Temporal Dimension of Tort Law, 53 U. Chi. L. Rev. 1175, 1182–83 (1986) (giving error avoidance as key reason for limitations period).

        [29].     See, e.g., Altera Corp. v. Comm’r, 926 F.3d 1061, 1087 (9th Cir. 2019) (rejecting arbitrary-or-capricious challenge to Treasury transfer pricing regulations), reh’g en banc denied, 941 F.3d 1200, 1202 (2019).

        [30].     See, e.g., Peter J. Henning, An Analysis of the General Statement of Policy Exception to Notice and Comment Procedures, 73 Geo. L.J. 1007, 1012–15 (1984) (citing APA Legislative History, S. Doc. No. 79-248, at 313 (2d Sess. 1946)) (giving policy rationales for notice and comment).

        [31].     See Loper Bright Enters. v Raimondo, 144 S. Ct. 2244, 2261 (concluding that “agency interpretations of statutes . . . are not entitled to deference”).

        [32].     See infra notes 180–183 and accompanying text (explaining availability of equitable tolling and equitable estoppel under 28 U.S.C. § 2401(a)); Morse, supra note 5, at 253–60 (same).

        [33].     See infra Part I.B (explaining pre-Corner Post case law).

        [34].     See Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2459 n.8 (2024) (“It also may be that some injuries can only be suffered by entities that existed at the time of the challenged action.”).

        [35].     See Susan C. Morse, Corner Post Broadens Loper Bright, But Footnote 8 Offers a Limit, Regulatory Rev. (July 30, 2024), https://www.theregreview.org/2024/07/30/morse-corner-post-broadens-loper-bright-but-footnote-8-offers-a-limit/ [https://perma.cc/VP8W-NZBG].

        [36].     See Spokeo, Inc. v. Robins, 578 U.S. 330, 341–42 (2016) (holding that a procedural violation does not support standing).

        [37].     See infra Part IV.A (explaining the weakness of the standing-related argument for earlier accrual of procedural APA claims).

        [38].     Corner Post, 144 S. Ct. at 2466 n.6 (2024) (Kavanaugh, J., concurring) (noting availability of remand without vacatur).

        [39].     See infra Part IV.C (recommending action by Congress).

        [40].     Corner Post, 144 S. Ct. at 2448.

        [41].     See Debit Card Interchange Fees and Routing, 76 Fed. Reg. 43394, 43420 (July 20, 2011).

        [42].     Corner Post, 144 S. Ct. at 2448–50.

        [43].     Id. at 2448.

        [44].     Typically, such a claim arises under the APA, but procedural challenges to rulemakings may also arise under other statutes. See 5 U.S.C. § 706(2)(D); see also, e.g., Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 185 (4th Cir. 1999) (using Section 2401(a) to time bar a challenge to agency’s failure to meet procedural requirements of the Federal-Aid Highway Act and the National Environmental Policy Act).

        [45].     See 5 U.S.C. § 706(2)(D) (providing for judicial review for action “without observance of procedure required by law”).

        [46].     See id. § 706(2)(A) (providing for judicial review for challenge to action that is arbitrary or capricious).

        [47].     See id. § 706(2)(B) (providing for judicial review for constitutional challenges); id. § 706(2)(C) (providing for judicial review to consider challenge that action exceeds statutory authority).

        [48].     See id. § 702 (providing for judicial review when “agency action” causes a “legal wrong”).

        [49].     See id. § 706(2).

        [50].     See Roger C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L. Rev. 387, 391 (1970) (proposing a removal of sovereign immunity barriers to courts’ review of federal administrative action).

        [51].     See Kenneth Culp Davis, Suing the Government by Falsely Pretending to Sue an Officer, 29 U. Chi. L. Rev. 435, 436 (1962) (pointing out some of the absurdities of allowing suits against government officials but not the government). Some subsequent Supreme Court case law gave sovereign immunity more emphasis and suggested that government officials would be immune from suit if their actions were wrong but within their discretion. See, e.g., Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 687, 696 (1949). But case law did not confirm sovereign immunity as a broad bar to suing government officials for illegal actions; for example, it generally was not invoked in land use cases. See Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 Mich. L. Rev. 867, 885 (1970) (analyzing land use cases).

        [52].     See Louis L. Jaffe, The Right to Judicial Review I, 71 Harv. L. Rev. 401, 433 (1958) (arguing that law dating from the 1700s established the right to sue an English monarch’s officers for violations of the law despite the doctrine of sovereign immunity); see, e.g., Ex parte Young, 209 U.S. 123, 144–45 (1908) (allowing an individual suit against a state official in his individual capacity to prevent the enforcement of an unconstitutional state law).

        [53].     See Kathryn E. Kovacs, Scalia’s Bargain, 77 Ohio St. L.J. 1155, 1162 (2016) (noting that Congress began to include waivers of sovereign immunity in the years leading up to 1976 but that these generally did not cover established agencies); Scalia, supra note 51, at 922 (noting that a waiver of sovereign immunity could be implied from the text of 5 U.S.C. § 702 but that neither the legislative history of the statute nor the Supreme Court’s interpretation of the statute supported that conclusion).

        [54].     In 1976, Congress waived sovereign immunity for APA cases, so long as the suits sought “relief other than money damages.” Act of Oct. 21, 1976, Pub. L. No. 94-574, 90 Stat. 2721 (codified at 5 U.S.C. § 702). After this sovereign immunity waiver, plaintiffs could sue the United States directly under the APA. See 5 U.S.C. § 702 (granting the right to judicial review). Plaintiffs began to name federal agencies, not federal officers as such. The waiver applied to all suits seeking judicial review of agency action under APA Section 702, whether ultra vires or not.

        [55].     See Kovacs, supra note 53, at 1159–60 (explaining that “nonstatutory review” suits against an officer who acts ultra vires are allowed, even though no statute waives sovereign immunity, on the theory that if the officer acted ultra vires, he did not act on behalf of the sovereign and therefore is not protected by sovereign immunity).

        [56].     See John F. Duffy, Sovereign Immunity, the Officer Suit Fiction, and Entitlement Benefits, 56 U. Chi. L. Rev. 295, 298–99 (1989) (explaining that the officer suit fiction found support in the Supremacy Clause and “allow[ed] the federal courts to issue injunctions against federal officers when they are acting in violation of federal statutory or constitutional law”).

        [57].     Id. at 302.

        [58].     Joseph D. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060, 1080–81 (1946); see also Cramton, supra note 50, at 401 (characterizing pre-Larson case law as refusing sovereign immunity protection when an officer exceeded delegated congressional authority or acted under an unconstitutional statute).

        [59].     Duffy, supra note 56, at 305.

        [60].     See Louis L. Jaffe, Judicial Control of Administrative Action 384 (1965) (arguing that the strongest claim to judicial review of administrative action exists “when a person is the object of an administrative order which will be enforced by a writ levying upon his property or person”); see also, e.g., Phila. Co. v. Stimson, 223 U.S. 605, 619–20 (1912) (explaining that sovereign immunity does not protect government officers against liability for a wrongful invasion of property rights, as allegedly resulted from the enforcement of a building line preventing pier construction in a harbor).

        [61].     See, e.g., Leedom v. Kyne, 358 U.S. 184, 188–89 (1958) (holding that judicial review was available absent any statutory authorization of review when plaintiffs disputed the National Labor Relations Board’s inclusion of professional employees in a bargaining unit without requiring a vote of such employees); see also Texas v. Nuclear Regul. Comm’n, 145 S. Ct. 1762, 1775–76 (2025) (explaining that the Kyne exception survives as a narrow avenue to nonstatutory ultra vires review). No general statute of limitations applies to such suits, although the equitable doctrine of laches could apply to time bar a delayed claim. See, e.g., Brief of Professors Aditya Bamzai & John Duffy as Amici Curiae in Support of Petitioner at 8–9, Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024) (No. 22-1008) (citing Tom C. Clark, U.S. Dep’t of Just., Attorney General’s Manual on the Administrative Procedure Act 93 (1947)) (“[T]he time within which review must be sought will be governed, as in the past, by relevant statutory provisions or by judicial application of the doctrine of laches.”). Laches is an equitable doctrine that allows courts to deny relief to a claimant who has a valid claim but waited an unreasonable amount of time to assert it, resulting in prejudice to the opposing party. See Laches, Black’s Law Dictionary (12th ed. 2024).

        [62].     See Spokeo, Inc. v. Robins, 578 U.S. 330, 341–42 (2016) (holding that a mere procedural injury does not produce a case or controversy under Article III).

        [63].     The argument has been made that the Constitution requires some elements of arbitrary-or-capricious review under a separation-of-powers analysis. See Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 Duke L.J. 387, 425–27 (1987) (tracing judicial development of “hard look” review to judicial replacement of minimum rationality review for agency decisions with procedural requirements). But this is hard to square with the varying interpretations of the APA’s statutory requirements over time, as the same authors recognize. See Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1073–74 (1995) (criticizing the imprecision of arbitrary-or-capricious review). Other defenders of hard look review base their argument on the statute, not on the Constitution. See, e.g., Kristin E. Hickman & Mark R. Thomson, Textualism and the Administrative Procedure Act, 98 Notre Dame L. Rev. 2071, 2109 (2023) (explaining that supporters argue that “some form of [hard look review] is arguably required by the APA’s judicial review provisions, including but not limited to § 706(2)(A)”).

        [64].     1 Kristin E. Hickman & Richard J. Pierce, Jr., Administrative Law Treatise § 5.4 (7th ed. 2025) (“[T]he courts have developed a version of the arbitrary and capricious test that has been greatly influenced by the rulemaking procedure mandated by APA § 553.”).

        [65].     See, e.g., Phx. Herpetological Soc’y, Inc. v. U.S. Fish & Wildlife Serv., 998 F.3d 999, 1004–05 (D.C. Cir. 2021) (challenging agency denial of permits to export blue iguanas to a Danish zoo but not challenging related regulations).

        [66].     See, e.g., Ohio v. EPA, 144 S. Ct. 2040, 2054 (2024) (holding that upwind state petitioners were likely to prevail on arbitrary-and-capricious challenge to regulatory process because the EPA “offered no reasoned response” to a comment).

        [67].     See, e.g., United States v. N.S. Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) (holding regulatory preamble inadequate because it failed to disclose scientific evidence relied on in setting fish-processing requirements).

        [68].     Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2448 (2024).

        [69].     Id. at 2459 n.8.

        [70].     Id.

        [71].     See, e.g., Daniel T. Deacon, Responding to Alternatives, 122 Mich. L. Rev. 671, 689–90 (2024) (giving substantive value of rule quality and procedural values of accountability and legitimacy for agency rulemaking).

        [72].     See Halliburton Complaint, supra note 23.

        [73].     See id. at 4–6.

        [74].     I.R.C. § 162(f) (1975). In 2017, Congress amended the statute to, among other things, explicitly preclude deduction of certain “settlement” amounts. See Tax Cuts and Jobs Act, Pub. L. No. 115-97, § 13306, 131 Stat. 2054, 2126–27 (2017).

        [75].     Treas. Reg. § 1.162-21(b)(1)(iii).

        [76].     See Halliburton Complaint, supra note 23, at 9–10 (noting the International Association of Ice Cream Manufacturers’ comment that a payment should not be disallowed unless the illegality of the payment is proven).

        [77].     Id. at 3.

        [78].     Morse, supra note 5, at 229–35.

        [79].     See, e.g., Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 518 (2010) (arguing that “many core doctrines and administrative requirements are simultaneously constitutional and nonconstitutional”).

        [80].     See, e.g., Bi-Metallic Inc. v. State Bd. of Equalization, 239 U.S. 441, 443–45 (1915) (finding no due process violation when the property tax board of Denver increased all property tax valuations by 40 percent without holding a hearing). There are more stringent due process requirements for a rulemaking that has a disproportionate effect on a specific person or group of persons. See, e.g., United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 244–45 (1973) (distinguishing between rulemaking with general application and rulemaking with specific application); Londoner v. City of Denver, 210 U.S. 373, 385–86 (1908) (requiring a hearing for a local levy where a small number of persons would be adversely impacted).

        [81].     See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978) (holding that the APA established “maximum procedur[es]” required, but the APA’s procedures sometime subsume or contain due process elements).

        [82].     Bi-Metallic, 239 U.S. at 445.

        [83].     See also St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (Brandeis, J., concurring) (distinguishing between required judicial review of “whether the proceeding . . . was conducted regularly” and not-required judicial review of facts found, such as valuations decided, in such a proceeding).

        [84].     See supra note 63 (discussing Shapiro and Levy’s argument that the separation of powers requires some elements of hard look review); cf. John M. Golden & Thomas H. Lee, Congressional Power, Public Rights, and Non-Article III Adjudication, 98 Notre Dame L. Rev. 1113, 1176–78 (2023) (outlining due process and separation-of-powers checks on non-Article III adjudication); Henry P. Monaghan, Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has to Teach Us, 69 Duke L.J. 1, 58 (2019) (emphasizing the likely minimum constitutional requirement of ultra vires review).

        [85].     See, e.g., United States v. Munoz-Flores, 495 U.S. 385, 408–10 (1990) (Scalia, J., concurring) (writing that an authenticated enrolled act is sufficient evidence that Congress followed the Constitution’s Origination Clause); Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. Rev. 1908, 1934 n.141 (2015) (explaining that the Court has adopted a rule of evidence for purposes of deciding Origination Clause cases).

        [86].     See, e.g., Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2193–94 (2020) (noting the 2010 legislation creating the Consumer Financial Protection Bureau and the 2017 demand issued to the plaintiff in the case).

        [87].     See Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 934–35 (1983) (noting the 1952 enactment of the unicameral legislative veto at issue in the case).

        [88].     In Corner Post, both the majority opinion authored by Justice Barrett and the dissent authored by Justice Jackson agreed that “the ball is in Congress’s court.” Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2460 (2024); id. at 2483 (Jackson, J., dissenting).

        [89].     See Verkuil, supra note 10, at 744–45.

        [90].     Cf. Morse, supra note 5, at 239–40 (giving the example of narrowly written Texas election law challenge rules as an example of a statutory limit to a procedural claim).

        [91].     See Ronald Levin, Statutory Time Limits on Judicial Review of Rules: Verkuil Revisited, 32 Cardozo L. Rev. 101, 102–03 (2011) (crediting the development of procedural time bar law to Verkuil’s article and a companion Administrative Conference of the United States recommendation drafted by Verkuil); see also John M. Hindley, Time Is Not the Enemy, 88 Geo. Wash. L. Rev. 1193, 1199 (2020) (noting courts’ adoption of the procedural/substantive distinction proposed by Verkuil).

        [92].     See Verkuil, supra note 10, at 762–63, 763 n.117 (arguing that challenges to the rulemaking process are not constitutional challenges as they do not involve the application of a rule to a particular plaintiff’s conduct).

        [93].     Id. at 762–63.

        [94].     See id. at 752–53 (arguing that judicial review of ultra vires claims should be preserved because they are “close enough” to constitutionally required); see also Jaffe, supra note 60, at 388 (arguing that impairment of liberty and property interests requires judicial review under due process, that the “class of highly protected interests” may not be closed, and that the “probable constitutional contours of judicial review” were “baffling” and “flui[d]”).

        [95].     321 U.S. 414, 446–47 (1944); Emergency Price Control Act of 1942, Pub. L. No. 77-421, § 204(d), 56 Stat. 23, 32–33. See generally Jacob D. Hyman & Nathaniel L. Nathanson, Judicial Review of Price Control: The Battle of the Meat Regulations, 42 Ill. L. Rev. 584 (1947).

        [96].     434 U.S. 275 (1978).

        [97].     See 50 U.S.C. § 924 (1944) (repealed 1947); Yakus, 321 U.S. at 418.

        [98].     Yakus, 321 U.S. at 446–47; id. at 469 (Rutledge, J., dissenting) (arguing that the Court did not consider constitutional claims based on due process and separation-of-powers: “Clearly Congress could not require judicial enforcement of an unconstitutional statute. The same is true of an unconstitutional regulation.”); see Lawrence Sager, Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17, 19 n.6 (1981) (explaining that this caveat “avoided potential constitutional difficulties”); Verkuil, supra note 10, at 742 (arguing that the Yakus approach “caution[s] against a total denial of subsequent constitutional review”).

        [99].     See Yakus, 321 U.S. at 434 (noting petitioners’ failure to prove that due process would have been lacking had they pursued all available remedies).

      [100].     See Adamo Wrecking, 434 U.S. at 277 (citing Clean Air Act, 84 Stat. 1708, § 307(b) (1970) (codified at 42 U.S.C. § 1857h-5(b))).

      [101].     See id.

      [102].     See id. at 285–89.

      [103].     See id. at 289.

      [104].     See Levin, supra note 91, at 116–17 (describing case law under the Hobbs Act and Section 2401(a) that follows the procedural/substantive distinction).

      [105].     Administrative Orders Review Act (Hobbs Act), Pub. L. No. 81-901, 64 Stat. 1129 (1950), (codified at 28 U.S.C. §§ 2341–2351).

      [106].     See 28 U.S.C. § 2342.

      [107].     See id. § 2344; see also Brief for the Respondent at 15–16, Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024) (No. 22-1008) (listing a number of other Hobbs Act-style statutes of repose).

      [108].     See John Kendrick, (Un)Limiting Administrative Review: Wind River, Section 2401(a), and the Right to Challenge Federal Agencies, 103 Va. L. Rev. 157, 209 (2017) (comparing Hobbs Act statute of repose language to Section 2401(a) language).

      [109].     See Hindley, supra note 91, at 1199–1201 (noting procedural/substantive distinction in D.C. Circuit case law, including time bar exceptions for substantive claims based on lack of notice, reopening, and ripeness).

      [110].     JEM Broad. Co. v. FCC, 22 F.3d 320, 324–25 (D.C. Cir. 1994) (citing NLRB Union v. Fed. Lab. Rels. Auth., 834 F.2d 191, 196 (D.C. Cir. 1987)). But see Kiewit Power Constructors Co. v. Dep’t of Lab., 959 F.3d 381, 391 (D.C. Cir. 2020) (noting longstanding procedural/substantive distinction, accruing procedural claims later based on the Occupational Safety and Health Act’s statutory interpretation, and acknowledging a circuit split).

      [111].     See JEM Broad., 22 F.3d at 324–25.

      [112].     See McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 2006, 2012 (2025).

      [113].     See id. at 2011 (citing 47 U.S.C. § 227(b)(3)).

      [114].     The statute prohibits sending an “unsolicited advertisement” through a “telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C), (2)(D).

      [115].     See McLaughlin, 145 S. Ct. at 2012 (citing In re Amerifactors Financial Group, LLC, 34 FCC Rcd. 11950 (2019)).

      [116].     See True Health Chiropractic, Inc. v. McKesson Corp., No. 22-15710, 2023 WL 7015279 at *2 n.1 (9th Cir. Oct. 25, 2023) (noting a separate direct challenge to the Amerifactors order and explaining that the separate challenge was not relevant in the case).

      [117].     See McLaughlin, 145 S. Ct. at 2013.

      [118].     Id. at 2015.

      [119].     Id. at 2014 n.1.

      [120].     See id. at 2015 (citing Section 703 of the APA, which, “[e]xcept to the extent that prior, adequate, and exclusive opportunity for judicial review is provided,” subjects agency action to “judicial review in . . . proceedings for judicial enforcement”).

      [121].     Id. at 2015–16 (citing Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2458 (2024)); see also id. at 2030 (Kagan, J., dissenting) (arguing that the Corner Post cite states a general rule and does not defend the default statutory interpretation question of Yakus).

      [122].     28 U.S.C. § 2342.

      [123].     See McLaughlin, 145 S. Ct. at 2013–14.

      [124].     See id. at 2015 n.2.

      [125].     139 S. Ct. 2051 (2019).

      [126].     Id. at 2057 (Thomas, J., concurring).

      [127].     Id. at 2062 (Kavanaugh, J., concurring).

      [128].     McLaughlin, 145 S. Ct. at 2017 n.5.

      [129].     See id. at 2016 (noting that the Clean Water Act, Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and the Clean Air Act all expressly preclude judicial review in enforcement proceedings).

      [130].     Id. at 2017 n.5.

      [131].     See Tucker Act, ch. 359, 24 Stat. 505 (1887) (codified at 28 U.S.C. §§ 1346(a), 1491).

      [132].     See Brief of Professors Bamzai & Duffy, supra note 61, at 3–6 (explaining the origins of Section 2401(a) in the Tucker Act, which allowed contract and other suits against the United States for money damages, and connecting Section 2401(a) to the development of the Court of Claims).

      [133].     Kendrick, supra note 108, at 181–89 (noting historical accrual of tort and contract claims when the plaintiff acquires the right to sue).

      [134].     See Brief of Professors Bamzai & Duffy, supra note 61, at 14 (noting that the 1976 amendment made APA claims “plainly subject to [S]ection 2401(a),” “[w]hether intentionally or not”). See Oppenheim v. Campbell, 571 F.2d 660, 662 (D.C. Cir. 1978) (applying § 2401(a) despite “frown[ing] upon the government’s apparent decision not to argue [it] to the district court” and not considering the officer suit status of the litigation). But this application faced a textual obstacle, since Section 2401(a) specifies that the six-year time bar applied to suits “against the United States” and APA suits before 1976 were against officers, not against the United States.

      [135].     See United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 8–9 (2008) (calling Section 2401(a) six-year period an “outside limit”).

      [136].     28 U.S.C. § 2401(a).

      [137].     See, e.g., Clintwood Elkhorn Mining Co., 553 U.S. at 8–9 (calling Section 2401(a) an “outside limit”).

      [138].     All. for Hippocratic Med. v. FDA, 78 F.4th 210, 222–23 (5th Cir. 2023) (time barring arbitrary-or-capricious challenge to 2000 approval of the abortion medication mifepristone), rev’d on other grounds, 602 U.S. 367, 396–97 (2024) (holding that plaintiffs lacked standing).

      [139].     Sai Kwan Wong v. Doar, 571 F.3d 247, 262–63 (2d Cir. 2009) (time barring notice-and-comment challenge to 1980 Medicaid regulation but considering ultra vires statutory authority claim).

      [140].     Preminger v. Sec’y of Veterans Affs., 517 F.3d 1299, 1307–11 (Fed. Cir. 2008) (time barring notice-and-comment challenge to 1973 election regulation but considering First Amendment claim).

      [141].     See Hire Order Ltd. v. Marianos, 698 F.3d 168, 170 (4th Cir. 2012) (refusing to consider whether 1969 Revenue Ruling exceeded the authority of the Internal Revenue Code).

      [142].     See supra note 139 (explaining Sai Kwan Wong).

      [143].     See supra note 140 (explaining Preminger).

      [144].     See, e.g., Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) (distinguishing Shiny Rock and refusing to time bar as-applied ultra vires statutory authority claim).

      [145].     See Abbott Lab’ys v. Gardner, 387 U.S. 136, 139–40 (1967) (establishing presumption of availability for pre-enforcement review); Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2449–50 (2024) (explaining that Corner Post, which was not directly regulated by the Federal Reserve regulation at issue, brought a facial challenge).

      [146].     See Corner Post, 144 S. Ct. at 2448–49 (noting case law distinction between “facial” and “as-applied” challenges).

      [147].     See Kendrick, supra note 108, at 191–92 (explaining Wind River doctrine).

      [148].     Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364 (9th Cir. 1990); Wind River Mining. Corp. v. United States, 946 F.2d 710, 711 (9th Cir. 1991).

      [149].     Shiny Rock Mining Corp. v. United States, 629 F. Supp. 877, 879 (D. Or. 1986). The challenge was made under the Due Process Clause. See id. at 881 (“Plaintiff’s right to due process has not been violated because it did not challenge the validity of the withdrawal at the proper time.”).

      [150].     Shiny Rock, 906 F.2d at 1365–66.

      [151].     Id.

      [152].     Id. at 1365 (citing Sierra Club v. Penfold, 857 F.2d 1307, 1316 (9th Cir. 1988)) (stating that adopting Shiny Rock’s rationale would lead to the result the court avoided in Penfold and allow for a new challenge every time a mining application is denied).

      [153].     See id. at 1366.

      [154].     Id. at 1363, 1366.

      [155].     Id. at 1365–66.

      [156].     Id.

      [157].     Id. at 1365.

      [158].     Id.

      [159].     Wind River Mining Corp. v. United States, 946 F.2d 710, 711 (9th Cir. 1991).

      [160].     Id. at 711–12.

      [161].     See id. at 714.

      [162].     BLM’s argument in Wind River that the six-year period should accrue at the time of the order even for as-applied ultra vires claims followed the reasoning of the Shiny Rock district court decision, which held that a land management doctrine known as the “notation rule” blocked later challenges. See Shiny Rock Mining Corp. v. United States, 629 F. Supp. 877, 879, 881 (D. Or. 1986) (explaining and applying the notation rule). The notation rule prohibited later recognition of any conflicting use, unless the BLM itself changed the agency record. See Sam Kalen, An 1871 Mining Law for the New Millenium, 71 U. Colo. L. Rev. 343, 394 (2000) (explaining that the notation rule would refuse to void even an egregiously mistaken earlier claim). The notation rule would have bound later interested parties to old agency decisions, as property law recording rules bind subsequent purchasers. See Carol M. Rose, Crystals and Mud in Property Law, 40 Stan. L. Rev. 577, 586–87 (1988) (explaining early recording acts’ refusal to recognize any claim other than the first-recorded claim). The reasoning is based on notice. In other words, either a plaintiff is burdened by the legal transition that arises at the time of the agency rule or order, or the plaintiff should know about the burden of the existing regulation when it decides to enter into the regulated activity, in which case the plaintiff assumes the risk and adjusts prices accordingly. Cf. Corner Post v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2481 (2024) (Jackson, J., dissenting) (“No matter how entrenched, heavily relied on, or central to the functioning of our society a rule is, the majority has announced open season.”).

      [163].     Wind River, 946 F.2d at 715.

      [164].     Id.

      [165].     The court held that the six-year limitations period had run for a challenge to “the putative wrong . . . suffered in 1946,” when the plaintiff was not automatically re-hired by the civil service on his return from military duty, but that he “sought timely review of the Board’s [1975] decision,” when the Board denied his application for increased retirement credits. Oppenheim v. Campbell, 571 F.2d 660, 661–63 (1978) (reciting facts and procedural history).

      [166].     See id. at 663 (giving disposition of case and using “arbitrary” and “capricious” to label the agency’s violation but reaching its decision on an ultra vires theory resting on the agency exceeding the authority of the statute rather than following inadequate procedure).

      [167].     See Morse, supra note 5, at 195–99 (explaining that the Wind River case law is undertheorized and proposing different justifications for the holding).

      [168].     See id. at 193 n.18 (collecting cases); see, e.g., Preminger v. Sec’y of Veterans Affs., 517 F.3d 1299, 1304, 1307–11, 1316, 1318–19 (Fed. Cir. 2008) (considering a case involving Democratic Party’s 2004 effort to register voters at a VA hospital, time barring under Section 2401(a) claim that 1973 Federal Election Commission regulation barring such efforts should have been issued with notice and comment, and considering (but rejecting) a claim that the regulation violated the First Amendment); Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 185–87 (4th Cir. 1999) (time barring a claim that the Federal Highway Administration had failed in 1989 to meet process requirements including notifying neighbors of a planned highway where the claim included allegations of racial bias and had been diligently pressed through administrative channels prior to the filing of court complaint).

      [169].     571 F.3d 247 (2d Cir. 2009).

      [170].     See id. at 254 (explaining dates). The regulation treated the Social Security income of a disabled individual as a required contribution for nursing home care. See id. at 250–51.

      [171].     See id. at 262–63 (stating claims).

      [172].     See id. at 263–64 (holding that the procedural challenge is time barred under Section 2401(a) as the statute of limitations began to run upon final agency action in 1980).

      [173].     See id. at 261.

      [174].     78 F.4th 210 (5th Cir. 2023), rev’d on other grounds, 144 S. Ct. 1540, 1564–65 (2024) (holding that plaintiffs lacked standing).

      [175].     The allegedly arbitrary-or-capricious actions included failing to study the psychological effects of mifepristone and allowing clinical trial results that had required a specific ultrasound procedure to detect ectopic pregnancies to support approval of the medication without requiring that specific procedure as one of the conditions of prescription. See All. for Hippocratic Med. v. FDA, 668 F. Supp. 3d 507, 550–51 (N.D. Tex. 2023) (describing claim).

      [176].     See Morse & Butterfield, supra note 25, at 129 (presenting the timeline from Alliance for Hippocratic Medicine).

      [177].     See All. for Hippocratic Med., 78 F.4th at 242–45.

      [178].     See All. for Hippocratic Med., 668 F. Supp. 3d. at 521 (noting that two plaintiffs, American Association of Pro-Life Obstetricians and Gynecologists and Christian Medical & Dental Association, filed a petition in 2002 challenging the FDA’s 2000 approval of mifepristone). The named plaintiff in the case, Alliance for Hippocratic Medicine, was not formed until 2022.

      [179].     Other Fifth Circuit precedent also took a strict view of earlier accrual under Section 2401(a) for procedural claims. See, e.g., Texas v. Rettig, 987 F.3d 518, 523 (5th Cir. 2021) (rejecting a notice-and-comment challenge to a 2002 Health and Human Services rule despite the intervening passage of the Affordable Care Act in 2010 and an actuarial board’s application of the rule in 2015). The court concluded that the 2002 action was the reviewable final agency action. Id. at 529–30 (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)) (internal quotation marks omitted) (explaining that the final agency action must “mark the ‘consummation’ of the agency’s decisionmaking process” and be an action “by which rights or obligations have been determined”).

      [180].     At one time, 28 U.S.C, § 2401(a) was considered a jurisdictional statute, so that it barred courts from granting equitable tolling. See Spannaus v. U.S. Dep’t of Just., 824 F.2d 52, 55 (D.C. Cir. 1987) (connecting statute to waiver of sovereign immunity). But Supreme Court precedent expanded equitable-tolling access through an interpretive rule that holds a limitations period statute nonjurisdictional unless the statute clearly states that it is jurisdictional. See Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 91, 95–96 (1990) (allowing consideration of equitable tolling of thirty-day period to challenge an EEOC decision); United States v. Kwai Fun Wong, 575 U.S. 401, 412 (2015) (holding Section 2401(b) was not jurisdictional). Subsequent cases acknowledged that the six-year time bar of Section 2401(a) is not jurisdictional and is subject to equitable tolling. See Jackson v. Modly, 949 F.3d 763, 965–66 (D.C. Cir. 2020) (“We . . . recognize that our longstanding interpretation of . . . 28 U.S.C. § 2401(a) as jurisdictional is no longer correct.”); see also, e.g., Desuze v. Ammon, 990 F.3d 264, 269–71 (2d Cir. 2021) (holding the six-year time bar not jurisdictional); Chance v. Zinke, 898 F.3d 1025, 1033 (10th Cir. 2018) (same); Herr v. U.S. Forest Serv., 803 F.3d 809, 822 (6th Cir. 2015) (same).

      [181].     See Hohri v. United States, 782 F.2d 227, 231–33 (D.C. Cir. 1986), reh’g en banc denied, 793 F.2d 304, vacated on other grounds, 782 F.2d 227 (1987) (noting government’s “fraudulent concealment of evidence indicating that there was no rational basis for the mass evacuation program” and allowing plaintiffs’ claim for money damages and declaratory relief to proceed).

      [182].     See All. for Hippocratic Med. v. FDA, 78 F.4th at 242–45 (rejecting “reopening” and equitable tolling arguments to extend limitations period).

      [183].     See Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1128–30 (9th Cir. 1999) (refusing equitable tolling for a notice-and-comment claim where Health and Human Services released guidance limiting Medicare coverage in 1986 but did not enforce the limit until 1994).

      [184].     See Petition for Writ of Certiorari at 4, Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024) (No. 22-1008) (claiming that the case law showed an “entrenched, square” circuit split).

      [185].     Herr v. U.S. Forest Service, 803 F.3d 809 (6th Cir. 2015).

      [186].     See id. at 819–20 (explaining that a “classic example” of accrual of an APA claim at the time of promulgation is when “an agency . . . issues a rule without following all requirements of notice-and-comment rulemaking” and reasoning that such procedural violations amount to “denial of process to the public at large”).

      [187].     See id. at 812–13 (noting a ban on motorboats except those with electric motors of less than four horsepower).

      [188].     See id. at 813 (noting the letter’s statement of intent to enforce and writing that until 2013, the Forest Service “had not enforced” the order).

      [189].     See, e.g., Abbott Lab’ys v. Gardner, 387 U.S. 136, 140–41 (1967) (establishing presumption of availability for pre-enforcement review).

      [190].     See 698 F.3d 168, 170 (4th Cir. 2012).

      [191].     See id. at 169 (noting plaintiffs’ facial challenge to the Gun Control Act, 18 U.S.C. §§ 921–934).

      [192].     See id. at 169–70.

      [193].     See Debit Card Interchange Fees and Routing (Regulation II), 76 Fed. Reg. 43394 (July 20, 2011) (codified at 12 C.F.R. pt. 235) (promulgating maximum swipe fee); 12 C.F.R. § 235.3(b) (2025) (establishing a cap of twenty-one cents per transaction plus 0.01 percent of transaction’s value); 12 C.F.R. § 235.4 (2025) (allowing a one-cent fraud prevention adjustment).

      [194].     See Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2448–49 (2024).

      [195].     Id. at 2447–48. The Court’s reasoning rested heavily on dictionary and historical meanings of “accrual” for a statute of limitations. It distinguished statutes of repose like the Hobbs Act, which runs sixty days from the “entry” of an agency order. The Court interpreted the text of Section 2401(a)—which requires that “the complaint is filed within six years after the right of action first accrues”—to refer to a plaintiff-specific cause of action because a complaint is plaintiff-specific and the statute “use[s] the definite article ‘the’ to link ‘the complaint’ to ‘the right of action.’” Id. at 2445.

      [196].     15 U.S.C. § 1693o-2.

      [197].     See Corner Post, 144 S. Ct. at 2461 (Kavanaugh, J., concurring).

      [198].     See supra note 193 (setting forth Regulation II).

      [199].     Complaint at 34, Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., No. 1:21-CV-00095, 2022 WL 909317 (D.N.D. Mar. 11, 2022) (No. 1:21-CV-00095) (raising a “contrary to law” claim).

      [200].     See id. at 36 (raising an “arbitrary and capricious” claim).

      [201].     Corner Post, 144 S. Ct. at 2459 n.8.

      [202].     See id. at 2471–72.

      [203].     See id.

      [204].     NACS v. Bd. of Governors of the Fed. Rsrv. Sys., 746 F.3d 474, 496 (D.C. Cir. 2014).

      [205].     Corner Post, 144 S. Ct. at 2471 (Jackson, J., dissenting).

      [206].     See Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) (emphasizing specific plaintiff harm from as-applied ultra vires illegality). In contrast, Corner Post takes a radically different approach to the question of judicial review as compared to the pro-repose approach advanced in the district court in Shiny Rock. See supra note 149 (describing the notation rule and notice-based reasoning favored by the Shiny Rock district court).

      [207].     See, e.g., Wind River, 946 F.2d at 715.

      [208].     Corner Post, 144 S. Ct at 2460 (Kavanaugh, J., concurring) (defining “unregulated plaintiff” as a person harmed because “an allegedly unlawful agency rule that regulates others . . . has adverse downstream effects on the plaintiff” and writing that Corner Post’s suit as an “unregulated plaintiff” was a “typical APA suit”).

      [209].     The concept of “unregulated plaintiffs” is the mirror image of the concept of “regulatory beneficiaries” who benefit from a government rule even though the rule directly applies to a third person. See Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 Corn. L. Rev. 397, 397 (2007) (defining “regulatory beneficiaries” as “those who expect to benefit from government regulation of others”).

      [210].     Corner Post, 144 S. Ct. at 2448.

      [211].     See id. at 2458–59 (noting that allowing a facial challenge to an old regulation to proceed paralleled the already-existing permission for as-applied challenges to old regulations).

      [212].     See Hire Order Ltd. v. Marianos, 698 F.3d 168, 170 (4th Cir. 2012) (time barring claim that 1969 Revenue Ruling exceeded the authority of the Internal Revenue Code).

      [213].     Corner Post, 144 S. Ct. at 2448.

      [214].     See Reply Brief for Petitioners at 18–19, Corner Post, 144 S. Ct. 2440 (No. 22-1008) (writing that procedural challenges to “the method used in promulgating the regulation” should not be barred because “[t]hose types of procedural failures necessarily harm only those parties that could have participated in the process”).

      [215].     Corner Post, 144 S. Ct. at 2459 n.8.

      [216].     See infra Part IV.A (explaining that the standing riddle in Corner Post offers no clear doctrinal path to an earlier-accrual result for procedural claims).

      [217].     See also Verkuil, supra note 10, at 762–63 (noting two factors that favor limiting review to the pre-enforcement stage for procedural claims: “(1) . . . challenges should be heard before the events surrounding promulgation become stale and difficult to reconstruct; and (2) . . . challenges should be heard early so that there is no doubt as to the rule’s procedural regularity by those who must enforce or comply with the rule”).

      [218].     See, e.g., Peter J. Henning, An Analysis of the General Statement of Policy Exception to Notice and Comment Procedures, 73 Geo. L.J. 1007, 1012–14 (1984) (giving policy rationales for notice and comment) (citing APA Legislative History, S. Doc No. 248).

      [219].     See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).

      [220].     See, e.g., Herr v. U.S. Forest Serv., 803 F.3d 809, 819–20 (6th Cir. 2015) (explaining that a claim about defective notice-and-comment would be a claim about the “denial of [administrative] process to the public at large” and a “classic example” of accrual of an APA claim when “an agency . . . issues a rule”).

      [221].     See Deacon, supra note 71, at 689–90 (summarizing the literature); see also Ronald M. Levin, The Duty to Respond to Rulemaking Comments, 134 Yale L.J.F. 821, 828–29 (2025) (citing Jonathan Weinberg, The Right to Be Taken Seriously, 67 U. Mia. L. Rev. 149, 163–78 (2012)) (acknowledging doubt about whether public participation enhances democracy).

      [222].     See Morse, supra note 5, at 235–40 (noting congressional and executive oversight mechanisms as well as private litigation checks on rule quality).

      [223].     But see, e.g., Adrian Vermeule, Chevron by Any Other Name, New Digest (June 28, 2024), https://thenewdigest.substack.com/p/chevron-by-any-other-name [https://perma.cc/AQN9-32XX] (arguing that, if the grant of authority is specific, the statute should be interpreted by a court to delegate interpretive discretion to the agency).

      [224].     See Loper Bright, 144 S. Ct. at 2257–58, 2265, 2267 (acknowledging that courts may accord “respect” to agency determinations).

      [225].     See Thomas W. Merrill, The Demise of Deference—and the Rise of Delegation to Interpret?, 138 Harv. L. Rev. 227, 260 (2024) (noting that Loper Bright allows courts to consider longstanding agency interpretations and adding that courts consistently considered these under Chevron as well).

      [226].     1 Hickman & Pierce, supra note 64, § 5.3; see also Kenneth Culp Davis, Administrative Law and Government 121 (2d ed. 1975) (“The system prescribed by § 553 of the APA . . . is probably one of the greatest inventions of modern government. The system is informal and efficient, and yet it gives affected parties a chance to influence the content of rules.”).

      [227].     See, e.g., Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy 116 (2018) (explaining the reason-giving purposes of agency rulemaking and adjudication process).

      [228].     Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1365–66 (9th Cir. 1990).

      [229].     Herr v. U.S. Forest Serv., 803 F.3d 809, 820 (6th Cir. 2015).

      [230].     See, e.g., Shwarts, supra note 22, at 1091–92 (describing notice-and-comment changes over time).

      [231].     See 1 Hickman & Pierce, supra note 64, at § 5.4 (describing the difference between the original “concise general statement” requirement and the current “extremely demanding judicial definition”).

      [232].     See, e.g., Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 156–57 (1970) (noting tendency to increase judicial review and to read statutes to suggest that Congress intended courts to have broad judicial review authority).

      [233].     See Anthony Moffa, Strength in Numbers (of Words): Empirical Analysis of Preambles and Public Comments, 22 Nev. L.J. 99, 117–40 (2021) (finding increasing rule and preamble length and a correlation between volume of comments and length of rule and preamble but no statistically significant correlation with ability to withstand judicial review).

      [234].     See 1 Hickman & Pierce, supra note 64, § 5.4 (explaining increasingly onerous requirements due to factors including detailed judicially developed procedural requirements, requirements for responses to comments, and requirements for reasoned explanations under State Farm hard look review).

      [235].     See, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007) (concluding that a Department of Labor explanation of a regulation for home companionship work “remains a reasonable, albeit brief, explanation” “more than 30 years later”), rev’g Coke v. Long Island Care at Home, Ltd., 462 F.3d 48, 52 (2d Cir. 2006).

      [236].     See Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 89–90 (1993) (citing James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991)).

      [237].     See infra Part III.C.

      [238].     See Haiyun Damon-Feng, Administrative Reliance, 73 Duke L.J. 1743, 1775–78 (2024) (explaining reliance on administrative guidance).

      [239].     See Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186 (4th Cir. 1999) (noting “final design” and “property acquisition” plans following approval of highway siting).

      [240].     Rodway v. U.S. Dep’t of Agric., 514 F.2d 809, 813–17 (D.C. Cir. 1975) (noting reliance interests of food stamp recipients).

      [241].     See Corner Post v. Bd. of Governors of the Fed. Rsrv. Sys., No. 1:21-cv-00095, 2022 WL 909317, at *2 (D.N.D. Mar. 21, 2022) (describing fees charged by banks).

      [242].     See, e.g., Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222–23 (2016) (holding that agency had to consider reliance interests when changing labor regulation); FCC v. Fox Television, 556 U.S. 502, 515–16 (2009) (stating that agency must sometimes consider reliance interests).

      [243].     See Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186–87 (4th Cir. 1999).

      [244].     See All. for Hippocratic Med. v. FDA, 78 F.4th 210, 222–23 (5th Cir. 2023).

      [245].     See Brief for the Pharm. Rsch. & Mfrs. of Am. as Amicus Curiae in Support of Petitioners at 19–21, FDA v. All. for Hippocratic Med., 144 S. Ct. 1540 (2024) (emphasizing reliance interests).

      [246].     See Halliburton Complaint, supra note 23, at 7–10 (alleging that Treasury violated the APA when it promulgated Treas. Reg. § 1.162-21(b)(1)(iii)).

      [247].     See, e.g., I.R.C. § 6050X(a)(1)(A) (requiring the reporting of amounts required to be paid by suit or agreement described in I.R.C. § 162(f)(1)). See generally IRS, Instructions for Form 1098-F (Mar. 20, 2025), https://www.irs.gov/instructions/i1098f [https://perma.cc/ALJ3-LFYX].

      [248].     See, e.g., Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 185 (4th Cir. 1999) (considering claims brought by community group relating to required neighborhood meetings prior to highway siting in Maryland).

      [249].     See, e.g., D.C. Fed’n of Civic Ass’ns, Inc. v. Volpe, 434 F.2d 436, 441–44 (D.C. Cir. 1970) (considering claims relating to hearing process for proposed bridge over Potomac River).

      [250].     See, e.g., Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1039–42 (D.C. Cir. 2022) (describing claim relating to environmental impact statement requirement for proposed pipeline running from North Dakota to Illinois).

      [251].     In Glendening, a neighborhood association representing Black residents claimed that the federal agency failed to provide required notice and a hearing for discriminatory reasons. See 174 F.3d at 185; cf. Richard Rothstein, The Color of Law 63–67 (2017) (describing Federal Housing Administration decisions that encouraged segregated land use).

      [252].     See supra notes 180–183 and accompanying text (explaining availability of equitable tolling and equitable estoppel for a time bar statute); Morse, supra note 5, at 253–60 (same).

      [253].     See Epstein, supra note 28, at 182–83 (giving error avoidance as key reason for limitations period).

      [254].     See, e.g., Altera Corp. v. Comm’r, 926 F.3d 1061, 1087 (9th Cir. 2019) (rejecting arbitrary-or-capricious challenge to Treasury transfer pricing regulations).

      [255].     See, e.g., Irwin v. Dep’t of Veteran Affs., 498 U.S. 89, 95–96 (1990) (holding equitable tolling was available but not granting it in the case).

      [256].     See, e.g., Schwebel v. Crandall, 967 F.3d. 96, 104–07 (2d Cir. 2020) (applying equitable estoppel in the immigration context).

      [257].     See Hohri v. United States, 782 F.2d 227, 233, 235, 246 (D.C. Cir. 1986) (equitably tolling Section 2401(a)).

      [258].     See Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1130 (9th Cir. 1999) (refusing equitable tolling).

      [259].     Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2459 n.8 (2024).

      [260].     Id.; see Amended Complaint for Declaratory and Injunctive Relief at 32–37, Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., No. 1:21-CV-00095, 2022 WL 909317 (D.N.D. Mar. 11, 2022) (No. 1:21-CV-00095). Although the second claim used “arbitrary and capricious” language, that claim relied heavily on the argument that the regulation deviated from the statute.

      [261].     5 U.S.C. § 706 (“To the extent necessary to decision and when presented, . . . the reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . without observance of procedure required by law.”).

      [262].     Id. § 553(b).

      [263].     Id. § 553(c).

      [264].     Id.

      [265].     See Spokeo, Inc. v. Robins, 578 U.S. 330, 341–42 (2016) (holding that the plaintiff “cannot satisfy the demands of Article III by alleging a bare procedural violation” even if that person has a statutory right to the procedure).

      [266].     See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (requiring a concrete injury, causation, and redressability).

      [267].     In other cases, Article III standing is so obvious—or so unobjected to—that a court assumes that it exists for a notice-and-comment challenge. This appears to have been the approach in pre-Corner Post cases that applied the six-year limitations period of Section 2401(a) to notice-and-comment procedural challenges. See, e.g., Sai Kwan Wong v. Doar, 571 F.3d 247, 262–63 (2d Cir. 2009) (time barring notice-and-comment challenge to 1980 Medicaid regulation regarding Social Security offset for a disabled individual starting in 2006, without analyzing Article III standing); Preminger v. Sec’y of Veterans Affs., 517 F.3d 1299 (Fed. Cir. 2008) (time barring notice-and-comment challenge to 1973 election regulation that barred voter registration activist from a VA hospital, without analyzing Article III standing); Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126 (9th Cir. 1999) (time barring notice-and-comment challenge to 1986 Health and Human Services manual that blocked payments for certain devices in 1994 without analyzing Article III standing).

      [268].     754 F.3d 1002 (D.C. Cir. 2014).

      [269].     See id. at 1008 (describing TEGL issuance).

      [270].     See id. at 1009 (explaining allegation that TEGLs constituted “rule making” under the APA and required notice and comment).

      [271].     Id. at 1010.

      [272].     See id. at 1015 (noting that the plaintiffs had established that they were looking for work as herders).

      [273].     See id. at 1012–13 (noting that the courts will “assume” a “causal link”).

      [274].     Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2459 n.8 (2024).

      [275].     See Jonathan R. Siegel, Zone of Interests, 92 Geo. L.J. 317, 318 (2004).

      [276].     See Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).

      [277].     See Curtis A. Bradley & Ernest A. Young, Unpacking Third-Party Standing, 131 Yale L.J. 1, 34–36 (2021) (acknowledging the zone-of-interests test as a “generous” “preliminary screen” and recommending it as a way to identify those who have a first-party right to sue).

      [278].     See, e.g., Air Courier Conf. of Am. v. Am. Postal Workers Union, 498 U.S. 517, 530–31 (1991) (holding that postal workers did not meet the zone-of-interests test and lacked standing to bring an arbitrary-and-capricious challenge to a United States Postal Service decision to use private carriers for international mail); Block v. Cmty. Nutrition Inst., 467 U.S. 340, 348, 351 (1984) (holding that milk consumers did not meet the zone-of-interests test and lacked standing to challenge pricing orders issued by the Secretary of Agriculture because allowing suit would “disrupt [the] complex and delicate administrative scheme”).

      [279].     2 Hickman & Pierce, supra note 64, § 18.8 (relating the Lexmark modification to the zone-of-interests test and offering post-Lexmark cases holding that plaintiffs fell within or outside the statute’s zone of interest).

      [280].     Siegel, supra note 275 at 318 (noting that courts may focus on a narrower or broader portion of a statute).

      [281].     Camp, 397 U.S. at 153.

      [282].     Mendoza v. Perez, 754 F.3d 1002,1016–18 (D.C. Cir. 2014).

      [283].     572 U.S. 118 (2014).

      [284].     Id. at 125–28.

      [285].     Mendoza, 754 F.3d at 1016.

      [286].     Id.

      [287].     Id. (citing Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224–25 (2012)).

      [288].     See id. (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014)).

      [289].     See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2261 (2024).

      [290].     See supra Part III.A.

      [291].     Ronald M. Levin, Vacatur, Nationwide Injunctions, and the Evolving APA, 98 Notre Dame L. Rev. 1997, 1999 (2023).

      [292].     5 U.S.C. § 706.

      [293].     See Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1178 (2020) (noting the authorization for vacatur).

      [294].     See William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153, 181–83 (2023) (criticizing universal vacatur because “[c]ourts redress the plaintiff’s injury by giving the plaintiff a remedy against the defendant”).

      [295].     See Mila Sohoni, The Past and Future of Universal Vacatur, 133 Yale L.J. 2305, 2355–60 (2024) (arguing that district courts have long applied universal vacatur as a remedy for an invalid regulation).

      [296].     See Trump v. CASA, Inc., 145 S. Ct. 2540, 2551–53 (2025) (referring to historical equity practices and concluding that they would not authorize nationwide injunctions).

      [297].     See id. at 2550 n.4 (noting that the analysis related to the scope of judicial authority under the 1789 statute rather than to any constitutional limit under Article III).

      [298].     See Alisa B. Klein, The Judicial Restraint Trilogy: Why the Supreme Court’s Decisions from Last Term Offer New Hope for Remedial Discipline, 47 Campbell L. Rev. 1, 26–30 (2024) (arguing that Kavanaugh’s concurrence leaves open the possibility of either party-specific or universal remand without vacatur).

      [299].     Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2466 n.6 (2024) (Kavanaugh, J., concurring).

      [300].     See Checkosky v. SEC, 23 F.3d 452, 490–93 (D.C. Cir. 1994) (separate per curiam opinion of Randolph, J.) (arguing that the set aside remedy is mandatory); Marin Audubon Soc’y v. FAA, 121 F.4th 902, 919–20 (2024) (Randolph, J., concurring) (same).

      [301].     See Levin, supra note 26, at 335, 343–44 (arguing that judges retain equitable discretion sufficient to allow the remedy of remand without vacatur).

      [302].     The Kavanaugh formulation is more restrained with respect to judges’ remedial discretion compared to one formulation of the remand without vacatur advanced by the D.C. Circuit. See Checkosky, 23 F.3d at 464 (describing the remand without vacatur remedy as appropriate if a court, “unsure of the agency’s reasoning, remands for a fuller explanation without expressing a view as to whether the agency’s action is unlawful”).

      [303].     See Andrew Slottje, Remand Without Vacatur in a Changing Environment, 132 Yale L.J.F. 932, 934–35 (2023) (noting that the remedy of remand without vacatur first appeared in the D.C. Circuit in the 1970s and has been applied in the First, Second, Third, Fifth, Eighth, Ninth, Tenth, Eleventh, and Federal Circuits).

      [304].     Allied-Signal, Inc. v. U.S. Nuclear Reg. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993).

      [305].     See, e.g., Rodway v. U.S. Dep’t of Agric., 514 F.2d 809, 813–17 (D.C. Cir. 1975). The harm caused to reliance interests by vacatur increases because regulations generally will not have retroactive effect absent a specific congressional authorization. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (articulating presumption against retroactivity); Richard J. Pierce, Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59, 76–78 (1995) (arguing that the limitation on retroactive regulations prompted the D.C. Circuit’s to rely more on remand without vacatur as a remedy).

      [306].     See Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1048–49 (D.C. Cir. 2002).

      [307].     See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1039, 1053–54 (D.C. Cir. 2022) (reversing district court injunction that would have required pipeline operator to empty pipeline while preparing missing environmental impact statement).

      [308].     See Levin, supra note 26, at 298–99 (explaining that concern about reliance interests helps justify remand without vacatur).

      [309].     See, e.g., Kristina Daugirdas, Evaluating Remand Without Vacatur: A New Judicial Remedy for Defective Agency Rulemaking, 80 N.Y.U. L. Rev. 278, 286 (2005) (noting the appropriateness of remand without vacatur for inadequate explanation during the rulemaking process).

      [310].     The bill proposed adding a single sentence to Section 702 of the APA, as follows: “Except as otherwise expressly provided by law, an action under this section shall be commenced within 6 years after the date on which the relevant agency action was finalized.” Corner Post Reversal Act, H.R. 9014, 118th Cong. § 2 (2024); see Ranking Members Correa, Nadler Introduce Corner Post Reversal Act to Strengthen, Support Work of Public Agencies, Lou Correa, https://correa.house.gov/news/press-releases/ranking-members-correa-nadler-introduce-corner-post-reversal-act-to-strengthen-support-work-of-public-agencies [https://perma.cc/BT5N-JSUH]. A similar bill was introduced in the Senate. See Agency Stability Restoration Act of 2024, S. 4751, 118th Cong. (2024).

      [311].     Currently, Section 2401(a) reads: “Except as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.” 28 U.S.C. § 2401(a).

      [312].     See supra Part I.D (explaining McLaughlin).

      [313].     See McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 2006, 2011 (2025) (citing 47 U.S.C. § 227(h)(3)).

      [314].     See id.

      [315].     Section 2401(a) sometimes applies when a claim resembles a claim under the APA, but it is not clear whether this logic would extend to a claim brought under a statute that separately provides its own right of action and a limitations period. See, e.g., Sierra Club v. Slater, 120 F.3d 623, 629–31 (6th Cir. 1997) (applying Section 2401(a) to a claim under the National Environmental Policy Act, which does not provide a separate cause of action).

      [316].     See Corner Post Reversal Act, H.R. 9014, 118th Cong. (2024).

      [317].     5 U.S.C. § 703.

      [318].     See 33 U.S.C. § 1369(b)(1), (b)(2).

      [319].     See, e.g., United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 8–9 (2008) (explaining that Section 2401(a) is a default limitations period).

      [320].     See Brief for the Respondent at 15–16, Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024) (No. 22-1008) (collecting limitations periods of less than one year each).

      [321].     See supra Part I.A.

      [322].     This Article’s argument in favor of time barring procedural claims has focused on statutory claims brought under the APA. It acknowledges, though, that in a rare case, for instance involving fraud, plaintiffs might be able to challenge general rulemaking procedure on a constitutional basis. See supra Part I.C. Such a case might be a good candidate for an equitable exception.

      [323].     See supra Part III.A.

      [324].     See id.

      [325].     See, e.g., Loper Bright Enters., Inc. v. Raimondo, 544 F. Supp. 3d 82, 98 (D.D.C. 2021) (explaining that final agency action occurred on February 7, 2020 and that plaintiffs filed their complaint on February 19, 2020); Nat. Res. Def. Council v. Gorsuch, 685 F.2d 718, 720 (D.C. Cir. 1982), rev’d sub nom., Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (challenging 1981 final agency action); Abbott Lab’ys v. Celebrezze, 228 F. Supp. 855, 858 (D. Del. 1964), rev’d sub nom., Abbott Lab’ys v. Gardner, 387 U.S. 136 (1967) (challenging 1963 final agency action).

      [326].     State Farm Mut. Auto. Ins. Co. v. Dep’t of Treasury, 680 F.2d 206, 213 (D.C. Cir. 1982), vacated sub nom., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (challenging 1981 final agency action and describing prior sequence of objections to regulatory actions).

      [327].     Navarro v. Mercedes Benz of Encino, No. CV 12-08051-RGK, 2013 WL 518577, at *1–2 (C.D. Cal. Jan. 25, 2013), vacated sub nom., Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016) (explaining that the challenge to an April 2011 regulation arose in a lawsuit filed by employees in September 2012).

      [328].     See Morse, Old Regs, supra note 5, at 249 (describing the steps of filing an initial return, filing a refund action, and challenging the government’s failure to issue a refund in order to get a procedural challenge to a tax regulation into court absent government enforcement against a taxpayer).

      [329].     The analysis is similar for the equitable doctrine of laches, which typically looks to a related limitations period to discern whether the delay in the case has gone on for too long.

      [330].     Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2447 (2024).

      [331].     See supra Part II.B.

      [332].     See supra Part I.A.

      [333].     See supra Part I.D.

      [334].     See Corner Post, 144 S. Ct. at 2248–49.

      [335].     See id. at 2460 (Kavanaugh, J., concurring).

      [336].     See, e.g., Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77–79 (1982) (holding illegal and therefore unenforceable a provision of a corporation’s pension-contribution contract). For an example of an unregulated plaintiff suit against an implementing third party, see Equity in Athletics v. Dep’t of Educ., 639 F.3d 91, 101 n.7 (4th Cir. 2011) (explaining that cut male athletes properly sued their universities and only allowing them to sue the federal government because the universities were also named defendants).

      [337].     For instance, the plaintiff may not be connected to the third party in a way that supports a contract, tort, or statutory claim. See Susan C. Morse, The Truth About Safe Harbors, 92 Tenn. L. Rev. 743, 796–97 (2025) (explaining limited avenues to court for plaintiffs in cases involving third-party implementation of Title IX and E-Verify).

      [338].     See, e.g., Allen v. Wright, 468 U.S. 737, 758–59 (1984) (denying standing due to inadequate causation for Black families who sought to challenge grant of tax-exempt status to discriminatory private schools); see also Morse, supra note 337, at 797–804 (considering standing to sue the government in similar unregulated-plaintiff cases involving the intermediation of a third party directly subject to a regulation).

      [339].     NACS v. Bd. of Governors of the Fed. Rsrv. Sys., 958 F. Supp. 2d 85, 98–99 (D.D.C. 2013).

      [340].     Id.

      [341].     Some courts recognize the idea of attributing third-party action to agencies. For instance, the Corner Post district court stated that the plaintiff framed the claim as an “as-applied” claim. See Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., No. 1:21-CV-00095, 2022 WL 909317, at *8 n.8 (D.N.D. Mar. 11, 2022). In McLaughlin, the Supreme Court wrote that a lawsuit resulting from a private right of action would be treated as an “enforcement proceeding.” McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 2006, 2014 n.1 (2025).

      [342].     See supra Part II.D (giving facts of Corner Post).

      [343].     See 5 U.S.C. §§ 702, 703 & 706 (all using “agency action” to label the target of judicial review).