Corner Post, Inc. v. Board of Governors of the Federal Reserve System

Andrew Bentz, Colleen M. Heisey & S. Matthew Krsacok*

A decades-old regulation is beyond judicial reach, right? After Corner Post, think again.

I. Why It Made the List

Statutes of limitations provide federal agencies and regulated parties finality and certainty when it comes to regulations and other administrative actions. That is because, for most regulations, if someone wants to challenge it in court, that person must sue within six years of the regulation becoming final. But in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Supreme Court upended this settled expectation, holding that the Administrative Procedure Act’s (APA’s) six-year statute of limitations does not start ticking for the person’s claim until the particular plaintiff is injured by the regulation, rather than when the regulation is promulgated.[1] In other words, before Corner Post, agency regulations were largely untouchable after six years. But now, if an agency applies a 1940s regulation to a person today, that person can challenge that regulation until 2031—even though the regulation has been on the books for eight decades.

Corner Post thus opens the door to challenges of long-established, seemingly settled regulations (even foundational ones) and introduces significant uncertainty. While agencies and industry alike have long operated under the assumption that most regulations were immune from facial challenges after six years, Corner Post means that newly established businesses may be able to challenge decades-old regulations simply because the businesses were not in existence when the regulation was initially promulgated. So regulations from the ’50s setting food standards, drug approvals from the ’70s, and tobacco regulations from a decade ago, all may be up for grabs. The impact of Corner Post on administrative law and particularly FDA regulations will be significant. But will there be a “tsunami of lawsuits against agencies,” as Justice Jackson fears, and will foundational, deep-rooted regulations crumble? The answers depend on how aggressive plaintiffs are and how courts navigate these uncharted waters.

II. Discussion

A. Factual Background

In 2011, the Federal Reserve Board issued a rule capping the fees that payment processors could charge for debit card transactions.[2] Merchants promptly challenged the cap, saying it was too high and cost them too much money. But the D.C. Circuit upheld the cap in 2014, and the Supreme Court denied review.[3]

Fast forward a decade. In 2021—ten years after the Fed issued the cap—two trade associations filed a new lawsuit challenging the cap. The Fed, understandably, moved to dismiss the lawsuit because it was filed more than six years after the rule was promulgated. But the plaintiffs had a plan. They added a truck stop to their ranks. And they argued that because this new plaintiff started operating in 2018, this plaintiff had not missed the six-year statute of limitations.[4] In other words, the six-year limitations period should only start ticking when it suffered injury from the regulation.[5]

The district court and the Eighth Circuit rejected this argument, holding that the statute of limitations for facial APA challenges begins to run on the date of final agency action, not when a particular plaintiff is injured.[6]

B. Supreme Court Decision

The Supreme Court reversed this outcome in a 6–3 decision authored by Justice Barrett. The Court held that under 28 U.S.C. § 2401(a), which requires that complaints be “filed within six years after the right of action first accrues” (emphasis added), an APA claim does not accrue until the agency’s action injures the plaintiff.[7]

This interpretation follows with the “standard rule for limitations periods” in other contexts.[8] Think of a faulty ladder. Normally, the statute of limitations doesn’t start running until you fall off the ladder, even if the ladder has been sitting in your garage unused for ten years (maybe hire someone next time). Corner Post applied that same reasoning to the statute of limitations governing APA claims. The majority was not blind to the implications of the holding—that long-standing regulations might now be vulnerable. But the majority rejected those concerns. Justice Barrett wrote that the caterwauling was “overstated” because regulated parties typically challenge major regulations immediately, and “courts entertaining later challenges often will be able to rely on binding Supreme Court or circuit precedent.”[9]

Justice Kavanaugh filed a concurring opinion addressing remedies, arguing that the APA allows courts to vacate unlawful regulations entirely, not just as applied to the plaintiffs.[10]

Justice Jackson dissented, joined by Justices Sotomayor and Kagan. Justice Jackson accused the majority of ignoring that the term “accrues” is context-specific. In the administrative law context, she explained, statutes of limitations have long been understood to run from the “moment of agency action.”[11] Justice Jackson also warned that, combined with the Court’s recent decision overturning Chevron deference, the ruling would trigger a “tsunami of lawsuits” challenging established regulations.[12]

III.   Impact

A. Numerous Entities Are Eager to Challenge FDA Regulations

Corner Post represents a tectonic shift in administrative law. The decision opens virtually every regulation on the books to challenge. FDA’s regulations are no exception, even those that seemed untouchable.

The incentive for FDA-regulated parties to take advantage of Corner Post is clear, especially in this day and age of dismantling the administrative state. FDA regulations can be burdensome and modeled on outdated data or thinking. Shaking the yoke of oppressive regulations is tantalizing for industry players. And now, even long-standing regulations might be on the chopping block.

But downsizing has its downsides. As Justice Jackson noted, many industries have adjusted their operations around well-established regulations that could now face new challenges from recently formed entities.[13] Thus, while Corner Post creates avenues for industry to challenge overreaching regulations, it also has potential to introduce regulatory instability across industries that have long operated under established rules.

Industry actors are not the only ones that may have an appetite to challenge time-honored rules. Public health groups may well attack what they see as outdated regulations. Those groups may wish to challenge regulations that allow questionable (in the groups’ view) additives in food or approvals for dangerous or ineffective (again in the groups’ view) drugs. Likewise, people with a political ax to grind may be sharpening their weapons. Controversial product approvals or politically motivated regulations may well be in the cross-hairs of future challenges.

Disruption is brewing. Just a few examples of high-value targets paints a compelling picture:

• The Generally Recognized as Safe (GRAS) framework—dating back to the 1958 Food Additives Amendment—has been a cornerstone of food regulation. Relying on Corner Post, a newly established business, public-health organization, or a political group could potentially challenge the entire GRAS framework that was previously considered beyond judicial reach (we’re setting aside questions of Article III standing for now, which is a subject for another day after last Term’s decision in FDA v. Alliance for Hippocratic Medicine[14]). And the appetite (pun intended) for overhauling GRAS is undeniable.[15]
• Controversial drug approvals could also be vulnerable. The recent litigation challenging FDA’s approval of the abortion drug mifepristone, approved over two decades ago, demonstrates the desire among some groups to challenge long-standing drug decisions.[16] Plaintiffs’ challenge to the drug’s initial 2000 approval was time-barred, so plaintiffs challenged FDA’s 2016 amendments and 2021 non-enforcement decision, which were within the statute of limitations. But the Supreme Court ultimately kicked the case, finding plaintiffs lacked Article III standing.[17] Corner Post could make such challenges significantly easier by removing statute of limitations barriers.
• Tobacco regulation presents another fertile ground for challenges. FDA’s 2016 Deeming Rule, which brought e-cigarettes and other next-generation tobacco products (think products other than cigarettes and smokeless tobacco) under FDA jurisdiction, was previously thought to be immune from facial challenges. Now, new market entrants could potentially challenge that rule and upend the entire regulatory framework for the deemed products. There is clearly a drive among some manufacturers to wind back the Deeming Rule. During the limitations period, manufacturers filed numerous challenges.[18] After Corner Post, new entrants may well want their day in court.

B. Corner Post Leaves Important Issues Unresolved

Despite its transformative potential, Corner Post leaves open two crucial questions. How courts answer those will have serious bearing on the disruptive impact of Corner Post.

First, Corner Post did not establish clear boundaries on who qualifies. Can an established business (one that has operated for decades) simply spin off a subsidiary and have the sub file suit? Courts would be understandably skeptical of open attempts to circumvent the statute of limitations and could try to distinguish legitimate new market entrants from “straw litigants” created solely to challenge regulations under Corner Post. But, then again, should the courthouse doors be closed to legitimate, new market players?

Second, Corner Post did not specify what types of challenges are available. In Corner Post, the government argued that certain injuries only exist at the time of the challenged regulation, and thus cannot be asserted by new market entrants. For example, according to the government, challenges to a regulation’s “procedural” defects, like a deficient notice of proposed rulemaking, are not available to litigants challenging the rule years or decades after a rule is promulgated.[19] Yet the majority expressly declined to resolve that question, because there was “no dispute that Corner Post proffered an injury that does not depend on its having existed” when the regulation was first promulgated.[20] The answer to this question could dramatically affect the decision’s impact: If new market entrants can only challenge a regulation’s statutory authority, Corner Post will have limited effect. But if they can argue the regulation was arbitrary or procedurally improper from the jump, virtually every aspect of long-established regulations could be vulnerable to attack.

*  *  *

In sum, for regulated industries, particularly those subject to FDA oversight, Corner Post represents an unprecedented opportunity and a strategic challenge. While questions remain, it is certain that Corner Post has armed industry (and others) with a new weapon to contest regulatory overreach long after rules first take effect.

* Andrew Bentz is a partner at Jones Day, where he provides strategic counseling and advice to clients on compliance with state and federal regulations, including FDA policies. He routinely advises clients subject to FDA regulations in critical areas of their businesses, including developing legal strategies and maneuvering through complex regulatory matters such as issues involving premarket submissions. Andrew also represents clients seeking to challenge federal, state, and local government overreach. He has assisted clients across the country in litigation seeking to set aside laws and regulations on constitutional and statutory grounds. He is able to work with clients at every level, from state trial court to the U.S. Supreme Court.

Colleen Heisey is a partner at Jones Day, where she directs her more than twenty years of experience toward helping clients navigate FDA regulation. Her practice involves strategic counsel to clients navigating near-market and post-market opportunities and obligations, including matters related to product jurisdiction, pathways to market, regulatory exclusivities, accelerated approvals, orphan drug status, product promotion, adverse event reporting, recalls, and managing federal agency inquiries and enforcement actions.

Matt Krsacok is an associate at Jones Day, where he focuses on appellate advocacy, critical motions practice, and providing strategic counsel to clients facing complex legal and regulatory challenges. Matt has represented clients in jurisdictions nationwide, and at all three levels of the federal judiciary, including the U.S. Supreme Court. Matt has played a primary role in drafting numerous successful dispositive motions and appellate briefs addressing statutory, constitutional, and administrative law issues and frequently works on litigation involving federal regulatory agencies.

The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.

[1]   Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799 (2024).

[2]   Id. at 805.

[3]   Id. at 805–06.

[4]   Id. at 806.

[5]   Id.

[6]   Id. at 806–07.

[7]   Id. at 812–13.

[8]   Id. at 811 (citation omitted).

[9]   Id. at 823–24.

[10] Id. at 826–43 (Kavanaugh, J., concurring).

[11] Id. at 843 (Jackson, J., dissenting).

[12] Id. at 864 (Jackson, J., dissenting).

[13] Id. at 863 (Jackson, J., dissenting).

[14] FDA v. All. for Hippocratic Med., 602 U.S. 367, 385–97 (2024).

[15] Even FDA has vowed to reconsider the system. See Press Release, HHS Secretary Kennedy Directs FDA to Explore Rulemaking to Eliminate Pathway for Companies to Self-Affirm Food Ingredients Are Safe, HHS (Mar. 10, 2025), https://tinyurl.com/yey2ucj2.

[16] All. for Hippocratic Med., 602 U.S. at 372–78.

[17] Id. at 396–97.

[18] See, e.g., Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020); In re Cigar Ass’n of Am., 812 F. App’x 128, 132 (4th Cir. 2020).

[19] Corner Post, 603 U.S. at 824 n.8.

[20] Id.