Apologies for the delay in discussing Corner Post. I began this post in July and finally finished it before classes resume next week.
Corner Post may have been the sleeper case of the term in terms of impact. While much attention has been given to Loper Bright and the overturning of Chevron deference, Loper Bright only allows challenges to new regulations that deviate from old ones. However, Corner Post changed the timing of when APA suits can be filed. Justice Barrett’s majority opinion states that a claim accrues “when the plaintiff is injured by final agency action.”
An APA plaintiff does not have a complete cause of action until they are injured by final agency action, so the statute of limitations does not start until the injury occurs.
Under Corner Post, new regulated entities could claim injury from agency actions that occurred much earlier. This opens the door for challenges to old regulations under the new statute of limitations. Additionally, regulations that have changed over time are no longer entitled to Chevron deference due to Loper Bright and Corner Post combined.
But is there a third aspect to this challenge? Corner Post allows challenges to old regulations, Loper Bright eliminates Chevron, and the remedy of “vacatur” removes the rule from the federal register. The Court is split on this issue, with Justices Gorsuch and Thomas arguing against vacatur under the APA, while Justice Kavanaugh supports it. The majority opinion tables the vacatur question.
Footnote 2 addresses the possibility of as-applied challenges and the ongoing vacatur debate. The distinction between as-applied and facial challenges remains a point of confusion. The Court’s treatment of the vacatur debate is referred to as a “thoughtful debate,” indicating disagreement among the Justices.
Justice Kavanaugh’s concurrence addresses the Government’s argument against vacatur under the APA, highlighting the implications for entities not directly regulated by a rule. Without vacatur, these entities would have limited recourse for challenging regulations. Kavanaugh points out the lack of discussion on suits by unregulated but affected parties in academic and judicial circles.
Justice Kavanaugh raises the issue of remand-without-vacatur, noting its use in cases where additional explanation or regulation is required. The discussion surrounding these topics continues to evolve in legal circles.
Remand without vacatur is essentially keeping a rule in place while requiring the agency to take additional action, such as providing more explanation or issuing a stricter rule. The practice of remand without vacatur has been debated, but is not addressed here. Justice Kavanaugh raises concerns about the consequences of eliminating vacatur, suggesting that it could delay relief for regulated parties. However, he acknowledges that eliminating vacatur may not have as severe consequences for regulated parties as it would for unregulated parties. The debate on this issue is ongoing.
Justice Barrett’s opinion suggests that if there are concerns about the current statute of limitations in the APA, Congress should address the issue by enacting a new statute. She emphasizes that the judiciary should not dictate legislative action and that Congress has the authority to make changes to the law if needed.
Justice Jackson’s dissent references previous cases, including Alliance for Hippocratic Medicine, to argue against the majority’s ruling. She points out that the distinction between who can bring a claim and the elements of the claim itself is important, using constitutional standing doctrine as an example. Jackson raises concerns about the potential for legal challenges to old agency decisions if the majority’s ruling stands. In the case of 4th 210, 242 (CA5 2023), it was determined that the plaintiffs had standing to challenge the FDA’s approval of mifepristone, despite the action happening more than six years ago. Judge Kacsmaryk’s reasoning, based on the principle in Corner Post, was that the plaintiffs only experienced the injury within the statute of limitations period. Additionally, Justice Kavanaugh’s concurrence supported the idea that the plaintiffs, who were not directly regulated by the FDA, could still claim recent injury from the FDA’s actions. Judge Ho upheld Judge Kacsmaryk’s decision on appeal, even though the rest of the Fifth Circuit panel found the older claims to be past the statute of limitations. If Justice Jackson’s perspective is accurate, then Judges Kacsmaryk and Ho’s stance on the statute of limitations for challenging mifepristone is supported.
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