221639P.pdf   12/14/2022  North Dakota Retail Assoc.  v.  Board of Governors
   U.S. Court of Appeals Case No:  22-1639
   U.S. District Court for the District of North Dakota - Western   
   [PUBLISHED] [Benton, Author, with Smith, Chief Judge, and Shepherd, 
   Circuit Judge] 
   Civil case - Consumer finance. Plaintiff brought this action against the 
   Board of Governors of the Federal Reserve System, alleging that fees for 
   merchants in debit card transactions violated the Durbin Amendment to the 
   Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 - 15 
   U.S.C. Sec 1639o; in response to the Amendment, the Federal Reserve Board 
   issued Regulation II, setting a maximum interchange fee per transaction 
   and an ad valorem allowed for each transaction to account for fraud loss. 
   In 2015, the Board issued a "Clarification, Debit Card Interchange Fees 
   and Routing" explaining its treatment of transaction monitoring costs 
   without amending Regulation II. Plaintiffs challenged Regulation II as a 
   violation of the APA in that it was contrary to law, arbitrary, and 
   capricious; the Clarification was not a final agency action and did not 
   restart the statute of limitations for challenging Regulation II; the 
   court holds that when a plaintiff brings a facial challenge to a final 
   agency action, the right of action accrues, and the statute of limitations 
   - 28 U.S.C. Sec. 2401(a) - begins to run upon publication of the 
   regulation; here, the statute began to run in 2011, when Regulation II was 
   published, and the plaintiffs' facial challenge is untimely; relying on 
   U.S. v. Kwai Fun Wong, 575 U.S. 402, 408 (2015) and cases from other 
   circuits, the court holds that 28 U.S.C. Section 2401(a)'s time bar is not 
   jurisdictional and can be equitably tolled; however, plaintiffs' equitable 
   tolling argument is without merit here, as plaintiffs failed to show they 
   have diligently pursued their rights.