Miss the Deadline to Challenge a Regulation?

This session, the U.S. Supreme Court overturned the Chevron doctrine, a longstanding policy under which lower courts almost always sided with regulatory agency decisions where the intent of Congress was not clear. Overturning Chevron opened the door, many legal experts believe, to allowing challenges against many existing regulations.

The U.S. Supreme Court also decided another case which may serve as a template to challenge federal regulations. The justices ruled 6-3 in favor of a truck stop in North Dakota that wants to sue over a Federal Reserve regulation on debit card swipe fees that the federal appeals court in Washington upheld 10 years ago.

The trouble for the truck stop was that federal law sets a six-year deadline for broad challenges to regulations. In this case, the swipe fee regulation took effect in 2011, meaning that legal challenges to it needed to be filed by 2017. However, the truck stop itself did not go into business until 2018 and so had no way to challenge the regulation at that time.

No doubt courts will look closely at whether plaintiffs have simply missed a deadline to challenge a regulation, or, as in the North Dakota case, have only recently come under the regulation’s impact. But in concurring with the majority decision, Chief Justice Roberts said the legal principle that everybody is entitled to their day in court, “doesn’t say unless somebody else had a day in court.”