North Dakota Retail Assoc. v. Board of Governors, 55 F.4th 634

Background

Plaintiffs: North Dakota Retail Association (NDRA), North Dakota Petroleum Marketers Association (NDPMA), and later Corner Post, Inc. (formed 2017, opened 2018) challenged Regulation II under the Administrative Procedure Act, alleging interchangeable and processing fees for debit-card transactions violate the Durbin Amendment.
The Durbin Amendment directed the Federal Reserve Board to ensure debit interchange fees are "reasonable and proportional." The Board issued Regulation II in July 2011 (21¢ cap plus a 0.05% fraud-adjustment).
Other merchants litigated Regulation II; the D.C. Circuit upheld the rule generally in NACS II but remanded for a Clarification addressing whether transaction-monitoring costs fit in the fraud-prevention adjustment. The Board published that Clarification in August 2015 without changing Regulation II.
NDRA and NDPMA filed this facial APA challenge on April 29, 2021; Corner Post was added by amendment in July 2021. The Board moved to dismiss based on the six-year statute of limitations in 28 U.S.C. § 2401(a).
The district court dismissed, holding the Clarification was not a new final agency action, Corner Post’s claims accrued when Regulation II was published in 2011, and equitable tolling did not apply. The Eighth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board’s 2015 Clarification was a final agency action that restarted the limitations period	Clarification renewed limitations because it addressed and clarified the Board’s treatment of transaction-monitoring costs	Clarification merely explained the existing rule and did not alter rights or obligations, so it was not a new final action	Clarification was not a final agency action and did not restart the limitations period
Whether the D.C. Circuit’s "reopening" doctrine revives time-barred claims	Reopening doctrine should apply to the Clarification to reopen judicial-review window	Reopening doctrine is not adopted by Eighth Circuit and is inapposite here because Clarification was not a reconsideration or new rulemaking	Reopening doctrine not applied; Clarification did not "open the issue anew"
When a facial APA challenge accrues for plaintiffs formed after a regulation’s publication	Accrual should occur when plaintiff first suffers injury (e.g., when Corner Post began paying fees in 2018)	Facial challenges accrue upon publication of a final agency action, giving legal notice to all affected parties	For facial challenges, accrual occurs at publication of the final agency action; Regulation II’s 2011 publication started the limitations clock
Whether equitable tolling saves plaintiffs’ claims	Plaintiffs argue tolling should apply because later plaintiffs like Corner Post only incurred injury after 2011	Government argues plaintiffs had notice and did not diligently pursue rights; § 2401(a) is a nonjurisdictional time bar but tolling requires diligence and extraordinary circumstances	Equitable tolling not available: plaintiffs lacked diligence and did not show extraordinary circumstances; claims time-barred

Key Cases Cited

Bennett v. Spear, 520 U.S. 154 (1997) (establishes two-part test for final agency action)
Williamson Cty. Reg'l Planning v. Hamilton Bank, 473 U.S. 172 (1985) (requires concrete injury for reviewability)
NACS v. Bd. of Governors of Fed. Rsrv. Sys., 746 F.3d 474 (D.C. Cir. 2014) (upheld Regulation II generally and required a Clarification on transaction-monitoring costs)
CTIA—The Wireless Ass’n v. FCC, 466 F.3d 105 (D.C. Cir. 2006) (articulates the D.C. Circuit reopening doctrine)
Izaak Walton League of Am. v. Kimbell, 558 F.3d 751 (8th Cir. 2009) (facial challenges accrue at publication of the regulation)
Hire Order Ltd. v. Marianos, 698 F.3d 168 (4th Cir. 2012) (facial challenges accrue upon publication)
Herr v. United States Forest Serv., 803 F.3d 809 (6th Cir. 2015) (argues accrual may occur upon aggrievement rather than publication)
Kwai Fun Wong v. United States, 575 U.S. 402 (2015) (time bars are generally nonjurisdictional; Congress must clearly state otherwise)
Rassier v. Sanner, 996 F.3d 832 (8th Cir. 2021) (accrual when plaintiff has a complete and present cause of action)