Notice & Comment

The Little Tucker Act’s Statute of Limitations Does Not Govern Garden-Variety Pre-enforcement Suits Under the APA, by James R. Conde & Michael Buschbacher

The law known as the “Little” Tucker Act authorizes federal district courts to entertain small dollar civil claims against the United States, “in cases not sounding in tort.”[1] It also sets out a statute of limitations. As amended, the limitations period provides that “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.”[2] The statute clearly sets an expiration date for civil actions requiring “resort to the federal fisc,” such as a breach of contract claim against the United States, that would have been traditionally barred by sovereign immunity.[3]

Over the past five decades, federal courts have also read the Little Tucker Act’s statute of limitations to govern suits against federal officers under the Administrative Procedure Act (APA).[4] As a result, when an agency promulgates an unlawful rule, regulated parties ordinarily have six years to sue.[5] If the regulated party fails to do so, they may have to raise the invalidity of a rule as a defense in an enforcement action, risking liability if its argument for invalidity turns out to be wrong. In some circuits, that may be so even if the plaintiff is a new entrant in the industry or was not even born when a rule was first promulgated, and would have therefore lacked any ability to bring suit within six years.[6] As John Kendrick has explained at length, this reading is indefensible—from the time the Little Tucker Act was enacted until the present day, a “claim” or “right of action” has always been understood as “accruing” to a particular person or entity no earlier than when that person could actually bring suit.[7] So far, however, only Sixth Circuit has explicitly rejected this approach.[8]  A petition for certiorari in Corner Post v. Board of Governors of the Federal Reserve (22-1008), discusses the circuit split and asks the Supreme Court to clean up some of this confusing precedent.

But there is a more fundamental problem with the way the Little Tucker Act has been applied to APA suits, namely, that both sides in this dispute have misread or overlooked the limited scope of the phrase “against the United States.”[9] When the Little Tucker Act was enacted in 1887, and when the statute of limitations was later amended in 1948, a suit “against the United States” was a suit naming the United States as a party in its collective capacity, or one in which the United States was considered an indispensable party to the suit, typically because a judgment against the defendant would obligate public funds, command specific performance of a contract, or convey public property.[10] Federal sovereign immunity barred such suits unless Congress waived sovereign immunity, as it did in the Tucker Act. 

By contrast, a tort action against a federal official acting without authority was not a suit “against the United States.”[11]Similarly, a suit in equity against a government official seeking to prevent an enforcement action or tortious conduct was not a suit “against the United States.”[12] Federal officials had no sovereign immunity for unlawful conduct sounding in tort, and had to rely on state statutes of limitations (in tort suits) or on the equitable doctrine of laches (in equity) to raise an affirmative timeliness defense for long-delayed civil actions.

The distinction between officer suits and suits against the United States has fallen into desuetude. In 1976, Congress broadly waived federal sovereign immunity in suits for “relief other than money damages.”[13] In 1988, a century after the Tucker Act, Congress also made the Federal Tort Claims Act the “exclusive” remedy in tort suits brought against federal officials.[14] As a result, the critical distinction between suits brought against federal officials and suits brought against the United States is of little relevance today. 

Perhaps for this reason, modern courts have read the Little Tucker Act’s statute of limitations as an all-purpose shield for official wrongdoing. Indeed, the Fifth Circuit admittingly ignored the contemporaneous meaning of the phrase “against the United States” in the Little Tucker Act to avoid “reviv[ing] the technical complexities that Congress sought to eliminate in 1976.”[15] Because the law means today what it meant when it was enacted, however, the Little Tucker Act’s statute of limitations simply does not apply to garden-variety suits seeking declaratory or injunctive relief against the enforcement of allegedly unlawful agency rules. Courts that have held otherwise have ignored the contemporaneous meaning of the statutory text, or, in the case of the Fifth Circuit, impermissibly updated statutory text to avoid tough questions about the scope of the phrase. 

It is not too late to recognize the error.[16] The Supreme Court has once assumed the statute of limitations applied generally in an unreasoned dictum, but it has yet to decide this question on the merits.[17] In Abbott Labs, for example, the Supreme Court presumed that laches, not the Little Tucker Act, would apply.[18]

Adhering to the original meaning of “against the United States” would also solve a related textual problem with applying the Little Tucker Act, as amended, to officer suits. The Little Tucker Act speaks of a plaintiff’s “right of action,” which is—and was in 1948, when the term was introduced into the law—a legal term of art: more narrowly, a “present right to commence and maintain an action at law to enforce the payment or collection of a debt or demand,”[19] or more broadly, “[a] remedial right affording redress for the infringement of a legal right,”[20] or a “right that can be enforced by legal action; a chose in action.”[21] This “right” or “chose” is most naturally understood in the traditional sense as referring to a personal property right “to bring an action to recover a debt, money, or thing.”[22] Anti-suit injunctions against government officials, or similar declaratory suits brought by regulated parties, do not seek that kind of relief.[23] As Professor John Harrison has explained, in these cases, the plaintiff isn’t exercising a right to take possession of money or chattels, but is preemptively asserting an affirmative defense against the Government’s “right of action,” often before such a right of action against that party even accrues to the Government.[24]

If it takes up the question now or in the future, the Supreme Court should give the phrase “against the United States” its contemporaneous meaning, and hold that pre-enforcement challenges brought by regulated parties are governed by the flexible doctrine of laches, not the Little Tucker Act. Doing otherwise is not just bad statutory interpretation; it threatens the rule of law and raises difficult constitutional questions by depriving potential defendants of a viable way to challenge unlawful rules without risking draconian liability.[25]

James R. Conde is Counsel at Boyden Gray PLLC. Michael Buschbacher is a Partner at Boyden Gray PLLC.

Mr. Buschbacher filed an amicus brief on behalf of John Kendrick in Corner Post, and both Mr. Buschbacher and Mr. Conde represent parties in pending litigation that could potentially benefit from a reversal in that case.

[1] 28 U.S.C. § 1346(a)(2).

[2] Id. § 2401(a). 

[3] See, e.g.Saffron v. Dep’t of the Navy, 561 F.2d 938, 941–42 (D.C. Cir. 1977) (“Relief of that character would have been possible only by resort to the federal fisc, and the effort in court to obtain it, nominally against named federal officials, was in every sense a ‘civil action commenced against the United States.’”).

[4] Wind River Min. Corp. v. United States, 946 F.2d 710, 713 (9th Cir. 1991). As enacted, the statute of limitations was tied together with the Tucker Act’s waiver, so no court had occasion to apply it except in suits under the Tucker Act, a classic suit against the United States. But in 1948, the statute was recodified as a standalone provision, and is no longer necessarily tied to suits brought under the Little Tucker Act. Herr v. U.S. Forest Serv., 803 F.3d 809, 815–17 (6th Cir. 2015) (Sutton, J.) (reviewing the history). Despite this change, however, courts did not apply the Little Tucker Act’s limitations period to suits brought under the APA until the 1980s—some four decades after the APA was enacted and the Little Tucker Act recodified. 

[5] See Dunn-McCampbell Royalty Int., Inc. v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997).

[6] See, e.g., N. Dakota Retail Ass’n v. Bd. of Governors of the Fed. Rsrv. Sys., 55 F.4th 634, 641 (8th Cir. 2022) (collecting cases). These courts have improvised to ameliorate this harsh result, creating distinctions between “policy-based” challenges and legal challenges as well between “facial” and “as applied” APA challenges. These distinctions are ill-defined and inconsistently applied and make no pretense of having a textual basis in the Little Tucker Act, but rather arise from courts’ desire to “strike[] the correct balance between the government’s interest in finality and a challenger’s interest in contesting an agency’s alleged overreaching.” Wind River, 946 F.2d at 715. 

[7] John Kendrick, (Un)limiting Administrative Review: Wind River, Section 2401(a), and the Right to Challenge Federal Agencies, 103 Va. L. Rev. 157, 179–202 (2017).

[8] Herr, 803 F.3d at 812 (The argument that “a right of action under the APA accrues upon final agency action regardless of whether that action aggrieved the plaintiff contradicts the text of the statute and Supreme Court precedent to boot.”). The Third Circuit has similarly concluded that courts may measure timeliness by considering when a pre-enforcement suit ripened. Pa. Dep’t of Pub. Welfare v. U.S. Dep’t of Health & Human Servs., 101 F.3d 939, 941–42 (3d Cir. 1996) (Alito, J.). 

[9] Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985) (reading the term “United States” to include officers suits based on a 1976 sovereign immunity waiver); Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988) (concluding without explanation that a suit seeking to enjoin an officer is “an action is against the United States”); Wind River, 946 F.2d at 713 (overlooking the question); Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186 (4th Cir. 1999) (same).

[10] See generally United States v. Lee, 106 U.S. 196 (1882); Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963); Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827 (1957).

[11] Philadelphia Co. v. Stimson, 223 U.S. 605, 619–20 (1912) (citing cases).

[12] See id.Cf. Ex Parte Young, 209 U.S. 123 (1908).

[13] 5 U.S.C. § 702.

[14] 28 U.S.C. § 2679(b)(1).

[15] Geyen, 775 F.2d at 1307.

[16] Cf. Transcript of Oral Argument at 38:7–10, United States. v. Texas, 143 S. Ct. 1964 (2023) (22-58) (“I don’t think it’s ever too late for this Court to give the statute its proper construction when you actually look at its text, context, and history.”).

[17] Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 626–27 (2018) (stating that APA “suits generally must be filed within six years after the claim accrues”).

[18] Abbott Lab’ys v. Gardner, 387 U.S. 136, 155 (1967). This is notable because laches “cannot be invoked” “in face of a statute of limitations enacted by Congress.” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 679 (2014); see also United States v. Mack, 295 U.S. 480, 489 (1935) (“Laches within the term of the statute of limitations is no defense at law.”).

[19] James A. Ballentine, Ballentine’s Law Dictionary (3rd ed. 1969).

[20] Id.

[21] Black’s Law Dictionary (11th ed. 2019). 

[22] Id.accord Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 275 (2008).

[23] 5 U.S.C. § 702. 

[24] See John Harrison, Ex Parte Young, 60 Stan. L. Rev. 989 (2008). Relatedly, at least one decision has held that Section 2401(a) does not apply to purely equitable claims. Saffron, 561 F.2d at 943. This likely misses the mark, as many equitable suits do involve a chose in action. But there is a subset of equitable claims that is purely prospective and negative. For example, Pomeroy notes that when a court is asked to construe a will or partition a parcel of real property, suit is proper in equity even though there has been no “violation of the plaintiff’s primary rights.” John Norton Pomeroy, Code Remedies: Remedies and Remedial Rights by the Civil Action 551 (4th ed. 1904). “These classes of suits are prosecuted, not because there has been any denial of right or duty, but because in the absence of an accurate knowledge of their rights, or of power to arrange and adjust them by voluntary proceedings, an appeal to the courts becomes necessary in order to solve the problem or to accomplish the adjustment.” Id. The same preventive rationale would seem to obtain for anti-suit injunctions or similar declaratory relief.

[25] This does not mean the Little Tucker Act does not apply to any suits under the APA. The APA authorizes suits to redress a classic “legal wrong” by a federal officer. 5 U.S.C. § 702. But it also authorizes suits by those “adversely affected or aggrieved within the meaning of a relevant statute.” Id. The Supreme Court, probably mistakenly and even unwittingly, has read that latter phrase to authorize broad statutory standing to vindicate public rights. Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703 (2019). Those suits raise tough questions, as they are not analogous to traditional officer suits brought by the objects of a regulation.

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