What Is the Statute of Limitations for Challenging a DOL 401(k) Rule?

The six-year clock belongs to the plaintiff's cause of action, not to the age of the regulation.

That is the central rule after the Supreme Court's 2024 decision in Corner Post.^[2]

For many APA suits against the federal government, 28 U.S.C. 2401(a) supplies a default filing period:

six years after the right of action first accrues.^[1]

Before Corner Post, many courts treated publication of a regulation as the universal start date for a facial challenge.

The Supreme Court rejected that approach.

An APA claim accrues when:

this plaintiff is injured by final agency action.^[2]

That sounds like a technical change.

It materially altered who can challenge an old federal rule.

Start With Four Different Dates

A limitations analysis should not store one date.

Track at least four.

Publication date

When did DOL publish the rule?

Final-agency-action date

When did the Department complete the relevant decisionmaking and create legal consequences?

Plaintiff's first-injury date

When did this particular challenger first suffer a legally cognizable injury from that final action?

Filing date

When was the complaint actually filed?

Corner Post makes the third date decisive for accrual.^[2]

The first two still matter.

They are not automatically identical to it.

What Does Section 2401(a) Actually Say?

Section 2401(a) does not say:

"six years from publication."

It says that a civil action against the United States is barred unless the complaint is filed within six years after the right of action:

first accrues.^[1]

That wording forced the Supreme Court to answer:

When does an APA cause of action exist for a particular plaintiff?

The Court's answer was straightforward.

A plaintiff cannot sue before having:

• a reviewable agency action
• an injury from it.^[2][3][4]

So the filing clock cannot run before the plaintiff has a complete cause of action.

Corner Post Was a New-Business Problem

The Federal Reserve adopted the challenged debit-card rule in:

2011.^[2]

Corner Post did not open for business until:

2018.^[2]

It joined litigation challenging the rule in:

2021.^[2]

Under the old publication-based approach, the challenge was too late because more than six years had passed since 2011.

But Corner Post could not have been injured by the rule before the company existed.

The Supreme Court held the claim timely because the business sued within six years of its own injury.^[2]

That is the practical meaning of plaintiff-specific accrual.

Corner Post Did Not Eliminate the Deadline

This misconception is likely to be expensive.

The decision did not hold:

"Old federal regulations can always be challenged."

It held:

"The deadline runs from when this plaintiff's APA claim accrues."

For a new entrant, that can be years after publication.

For a company already regulated and injured on day one, the date can be much earlier.

A plaintiff that could sue in 2016 does not necessarily get a fresh six years in 2022 simply because enforcement becomes more serious.

The Fourth Circuit confronted that exact problem in 2026.

McMaster v. DOL Shows the Other Side of Corner Post

McMaster v. United States Department of Labor involved an OSHA rule, not a retirement regulation.^[7]

But it is a direct 2026 DOL application of Corner Post.

OSHA issued an interim final rule in:

July 2016.^[7]

The rule required state workplace-safety plans to increase penalty levels in step with federal amounts.

South Carolina did not comply.

The State later argued that it was not really injured until OSHA formally found it noncompliant in:

2022.^[7]

If that were correct, its 2023 suit would fit inside six years.

The Fourth Circuit rejected the theory.

South Carolina Was Already Injured in 2016

The rule itself put South Carolina's program out of compliance when it took effect.^[7]

At oral argument, the challengers acknowledged the first credible legal threat arose with the 2016 rule.^[7]

That mattered.

The Fourth Circuit said the State could have brought its challenge in 2016.

The limitations period therefore ran from that original injury.

The later 2022 enforcement posture did not erase the earlier accrual.

The 2023 APA claims were untimely.^[7]

This is the limit Corner Post places on its own rule:

new plaintiff ≠ old plaintiff with an old injury.

Years of Weak Enforcement Did Not Reset the Clock

South Carolina tried to characterize OSHA's years of limited enforcement as eliminating the earlier injury and making the 2022 event a new one.^[7]

The court disagreed.

Once the cause of action had first accrued, later fluctuations in enforcement posture did not make the original clock disappear.

That is important for DOL retirement regulation.

A rule can be:

• lightly enforced
• politically disfavored
• under reconsideration

while still imposing present legal obligations.

A compliance team should not assume the deadline is suspended until DOL starts issuing penalties.

Pre-Enforcement Injury Can Start the Clock

Abbott Laboratories explains why.^[6]

The Supreme Court allowed regulated manufacturers to challenge an FDA regulation before enforcement because the final rule already forced them to choose between:

• costly compliance changes
• risking legal sanctions.^[6]

That present business dilemma created a live controversy.

The same concept affects limitations.

If a final DOL rule immediately requires a 401(k) provider to:

• rewrite contracts
• change compensation
• rebuild systems
• alter conduct

the first injury may occur before the first examination or penalty.

Waiting for enforcement can consume the filing period rather than start it.

Final Agency Action Still Comes First

The Court's 2024 limitations decision did not erase APA Section 704.^[2][4]

The plaintiff needs injury from:

final agency action.

Bennett v. Spear's familiar finality framework asks whether the agency action:^[5]

1. consummates the agency's decisionmaking
2. determines rights or obligations or creates legal consequences.

A draft rule does not ordinarily start a normal APA limitations period merely because a business begins contingency planning.

The agency may still change the proposal.

Finality and injury work together.

Publication Can Still Be the Accrual Date

The Court's accrual decision did not make publication irrelevant.

For an existing regulated party, publication or the rule's operative date can still be the moment when:

• DOL completes the rulemaking
• legal consequences attach
• the plaintiff is injured.

McMaster demonstrates that possibility.^[7]

The correction is:

publication is not a universal rule for every plaintiff.

It can still be the correct date for a particular one.

That distinction is more useful than replacing one rigid formula with another.

Facial and As-Applied Labels Do Not Change the Core Rule

Before That ruling, courts frequently treated facial rule challenges differently from later challenges to a rule's application.

The 2024 ruling rejected a special publication-based accrual rule merely because the plaintiff attacked the regulation facially.^[2]

The Seventh Circuit applied that point in Society of the Divine Word v. USCIS in 2025.^[8]

It explained that after The Supreme Court's accrual ruling:

facial versus as-applied does not change when the APA claim accrues.

The court still asks when the plaintiff was injured by final agency action.^[8]

The label does not start the clock.

The facts do.

A Later Agency Application Can Still Matter

This does not mean later agency action is irrelevant.

Suppose DOL issued an old regulation years ago.

A service provider was not injured then.

Later, DOL enters a final order applying that rule directly to the provider.

That later order can itself be a reviewable agency action.

Even before The Court's accrual decision, Fifth Circuit cases recognized that a later direct application could create a new claim challenging that application and, in appropriate circumstances, the agency's statutory or constitutional authority.^[9][10]

The Court's decision makes the plaintiff-specific injury analysis even more important.

But the new claim is tied to the later agency action.

It is not a magic revival of every historical objection to the original rule.

Older Publication-Based Cases Need a Warning Label

Dunn-McCampbell and American Stewards contain valuable analysis about later applications of old rules.^[9][10]

They also contain pre-The 2024 ruling language stating that facial challenges generally accrued at publication.

That portion cannot be carried forward mechanically after 2024.

A current article should distinguish:

still useful: later final agency application can matter.

displaced: publication is always the accrual date for a facial challenge.

Old precedent can survive in part.

Citation age is not the issue.

Which holding remains valid is.

A Later Annual Adjustment Does Not Necessarily Restart Everything

McMaster provides another useful lesson.^[7]

South Carolina had previously challenged OSHA's 2022 inflation adjustment.

The district court concluded that the adjustment merely implemented the 2016 rule and was not the new final agency action needed for the challenge the State was trying to bring.^[7]

That is a strong warning for 401(k) rule tracking.

A later document can be:

• mathematically updated
• ministerial
• implementing
• derivative

without reopening the underlying legal issue.

Ask what the later action actually decided.

What If DOL Truly Reopens the Old Rule?

Some circuits recognize a reopening doctrine.

The D.C. Circuit's Public Citizen v. NRC decision is a leading example.^[11]

When an agency genuinely:

• reopens an old issue
• invites renewed consideration
• reexamines the prior policy
• decides to retain it

the new agency action can make the issue reviewable again under that circuit's doctrine.^[11]

But republication is not enough.

A narrow amendment is not automatically enough.

A commenter cannot force reopening merely by discussing an old provision the agency did not put at issue.^[11]

The entire rulemaking context matters.

Reopening Is Not a Universal Reset Button

For a DOL retirement rule, do not write:

"DOL amended one paragraph, so the whole rule now has a new six-year deadline."

That is too broad.

The better questions are:

• What did DOL reopen?
• What did it reconsider?
• What final action did it take?
• What injury did that new action cause this plaintiff?
• What does the governing circuit recognize?

That 2024 decision supplies the baseline accrual rule.

Circuit-specific reopening doctrine can add another layer.

It does not replace the baseline.

New Plaintiff and New Agency Action Are Different Paths

Two different fact patterns can produce a timely challenge to an old regulation.

New plaintiff

Rule is old.

Plaintiff did not exist or was not injured until later.

The Court's claim-start analysis decision can produce a later limitations start date.^[2]

New agency action

Plaintiff may have existed for years.

DOL later issues a distinct final order applying or reconsidering the rule.

That later agency action can create a separate reviewable claim depending on the facts and governing law.^[9][10][11]

Do not merge these theories.

One is plaintiff-centric.

The other is agency-action-centric.

The Supreme Court holding Does Not Give an Existing Plaintiff Endless Restarts

Consider a recordkeeper that was subject to a final DOL rule in:

2020.

It immediately spent money changing its system.

No lawsuit followed.

DOL issues no penalties until:

2028.

The recordkeeper cannot simply say:

"The first injury was the 2028 penalty."

The system-conversion expense and binding legal obligation may show that an APA cause of action existed much earlier.

McMaster is the warning.^[7]

A later enforcement case may create a new challenge to that enforcement action.

That is different from reviving the original stale claim.

The 2024 ruling Does Help a Genuine New Entrant

Change the facts.

DOL issues the same rule in 2020.

A new 401(k) service provider is formed in:

2028.

It enters the regulated market in 2029 and immediately must redesign its product to comply.

The company could not have sued in 2020.

It did not exist.

Under The plaintiff-specific holding, the limitations analysis focuses on when that new plaintiff was injured by the final agency action.^[2]

The age of the regulation alone does not defeat the suit.

That is the decision's real reach.

The Six-Year APA Clock Is Not ERISA Section 413

A 401(k) article can easily confuse two different six-year concepts.

28 U.S.C. 2401(a) concerns civil actions against the United States and commonly supplies the default period for APA review.^[1][2]

29 U.S.C. 1113 is different.^[14]

Section 1113 governs specified actions involving:

• fiduciary breach
• violations of ERISA Part 4.^[14]

It generally bars suit after the earlier of:

• six years from the relevant breach/violation timing described by the statute
• three years after the plaintiff had actual knowledge.^[14]

It also contains a fraud-or-concealment rule.^[14]

That is not the The Court's start-date analysis decision clock.

An APA Rule Challenge Is Not a Fiduciary-Breach Suit

Suppose a trade association sues the Secretary of Labor claiming a new 401(k) regulation exceeds DOL's statutory authority.

That is an agency-law challenge.

Now suppose participants sue a plan committee alleging an imprudent investment decision.

That is fiduciary litigation.

Both cases can involve:

• ERISA
• six years.

They do not use the same limitations analysis.

The defendant, cause of action and statutory source matter.

"ERISA case" is too broad to choose a deadline.

Benefit Claims Can Have Another Clock

Plan benefit litigation can involve still another timing structure.

Heimeshoff upheld a reasonable contractual limitations provision in an ERISA benefit case where no controlling statute made that period unlawful.^[15]

That means a 401(k) participant's deadline can depend on:

• claim type
• plan terms
• governing statute
• circuit law.

Do not use:

the six-year period under The accrual decision

for a benefit claim.

Do not use:

Section 1113

automatically either.

The legal claim determines the clock.

What About Equitable Tolling?

This is a poor place for a universal statement.

The D.C. Circuit has held that Section 2401(a) is:

• nonjurisdictional
• subject to equitable tolling.^[12]

Other circuits have had different or unresolved precedent.

The Fifth Circuit noted in a 2025 decision that its own law on Section 2401(a)'s jurisdictional status remained unsettled and avoided resolving the issue because tolling would not help the plaintiff anyway.^[13]

For a retirement-rule challenge, the practical rule is:

do not plan around tolling.

Check the controlling circuit before assuming it exists.

Tolling Is Not a Substitute for Claim-start analysis Analysis

Even where equitable tolling can apply, it addresses an already running limitations period.

It does not change the first question:

When did the claim accrue?

The 2024 ruling answers that through:

• reviewable final action
• plaintiff injury.^[2]

Only after identifying the start date does a tolling argument make sense.

A weak chronology cannot be repaired by using "equitable tolling" as a catch-all phrase.

Worked Example: Rule Is Eight Years Old, Company Is Two Years Old

DOL rule published:

January 1, 2020.

Service provider formed:

January 1, 2028.

First regulated transaction:

July 1, 2028.

Suit filed:

June 1, 2030.

A statement that the challenge is automatically time-barred because the rule is ten years old ignores The Court's limitations ruling.

The key question is when this provider first suffered injury from the final DOL action.

If that occurred in 2028, the plaintiff-specific clock is materially later than publication.^[2]

Worked Example: Existing Provider Waits for First Penalty

Final rule imposes compliance duties in:

2020.

Existing provider immediately spends:

$2 million

to comply.

DOL issues first penalty in:

2028.

Provider files a facial APA challenge in 2029 and argues the penalty started the clock.

That theory has a serious McMaster problem.^[7]

The plaintiff had a concrete regulated-party injury years earlier.

Later enforcement does not automatically erase first limitations start.

Worked Example: Annual Update Is Treated as a New Rule

DOL regulation establishes a formula.

Each year DOL publishes the updated dollar amount.

A company waits nine years, then challenges the original statutory authority based on the latest table.

The annual update may not be a new final agency decision on the underlying legal issue.

McMaster's treatment of OSHA's later inflation adjustment shows why the later document has to be analyzed for what it actually decides.^[7]

Do not infer reset from a new Federal Register date.

Worked Example: DOL Actually Reconsiders the Old Provision

DOL opens a new rulemaking.

The proposal expressly asks whether an old fiduciary condition should remain.

Comments attack that condition.

The final rule responds to those arguments and deliberately retains the provision.

In a circuit recognizing reopening doctrine, that can present a materially stronger renewed-review argument than a ministerial amendment.^[11]

The issue is genuine reconsideration.

Not mere republication.

Worked Example: Section 1113 Is Used for the Wrong Lawsuit

Trade association challenges a DOL final rule under the APA.

Memo says:

"ERISA provides that six-year window under 29 U.S.C. 1113."

Wrong starting statute.

Section 1113 addresses specified fiduciary-responsibility actions.^[14]

A rule challenge against DOL generally requires the APA/Section 2401(a) framework unless a more specific review statute applies.

Same number.

Different clock.

Limitations Validation Checklist

Before calling a DOL rule challenge timely or untimely, verify:

Governing review statute

Does a special statute provide its own filing period?

If not, is Section 2401(a) the applicable default?

Completed agency action

What DOL action is actually being challenged?

Plaintiff identity

Did this plaintiff exist when the rule was issued?

First injury

When could this plaintiff first have filed suit and obtained relief?

Pre-enforcement burden

Did compliance costs or legal obligations create injury before any penalty?

Later agency action

Is there a new final order, application or genuine reconsideration?

Scope

Does the later action support a new claim—or merely repeat an old rule?

Reopening

Does governing circuit law recognize the theory on these facts?

Different ERISA claim

Is this actually a fiduciary-breach or benefit case using another limitations rule?

Tolling

Does controlling law allow it, and are the facts sufficient?

That ten-part chronology is more reliable than:

"Rule date + the six-year period."

A Practical Deadline Matrix

A reliable database should never collapse those fields into one.

Fast Answers

What is the default limitations period for many APA suits against DOL?

That six-year window after the right of action first accrues under 28 U.S.C. 2401(a).^[1]

Does that always mean the six-year period after publication?

No.

What did Corner Post hold?

An APA claim accrues when the plaintiff is injured by final DOL action.^[2]

Can a company formed after a rule was issued challenge the old rule?

Potentially yes if it sues within the applicable period after its own injury and satisfies the other requirements for review.^[2]

Does The Court's plaintiff-specific rule give existing regulated parties a new clock every time enforcement increases?

No. McMaster rejected that kind of second-injury theory in a 2026 DOL case.^[7]

Can the clock begin before a penalty?

Yes. Present compliance costs and binding legal obligations can create pre-enforcement injury.^[6][7]

Do facial and as-applied labels control start-date analysis?

No. The 2024 ruling's plaintiff-injury rule applies regardless of that label.^[2][8]

Does every later DOL notice restart limitations?

No.

Can a later final agency application matter?

Yes. It can create a separate reviewable agency action and claim depending on the facts.^[9][10]

Can DOL reopen an old rule?

A genuine reconsideration can support renewed review under some circuit doctrines; a minor amendment or republication does not automatically do so.^[11]

Is 29 U.S.C. 1113 the APA rule-challenge deadline?

No.

What does Section 1113 govern?

Specified ERISA fiduciary-breach and Part 4 violation actions.^[14]

Is equitable tolling uniformly available under Section 2401(a)?

No. Circuit treatment is not uniform enough to assume that result.^[12][13]

Does a limitations dismissal mean DOL's rule is valid?

No. It means the court concluded the challenge was filed too late; the merits may remain undecided.

What is the safest one-sentence rule?

For an APA challenge to a DOL 401(k) rule, identify the reviewable final action and the first injury to this plaintiff, then count from that claim-start analysis date—while separately checking for later reviewable agency action, a special statutory deadline and any circuit-specific tolling doctrine.

Sources & References

1. U.S. House of Representatives — Office of the Law Revision Counsel: 28 U.S.C. §2401 — Time for Commencing Action Against United States — https://uscode.house.gov/view.xhtml?edition=prelim&num=0&path=%2Fprelim%40title28%2Fpart6%2Fchapter161&req=granuleid%3AUSC-prelim-title28-section2401
2. Supreme Court of the United States: Corner Post, Inc. v. Board of Governors, 603 U.S. 799 (2024) — https://www.supremecourt.gov/opinions/23pdf/22-1008_1b82.pdf
3. U.S. House of Representatives — Office of the Law Revision Counsel: 5 U.S.C. §702 — Right of Review — https://uscode.house.gov/view.xhtml?req=(title:5%20section:702%20edition:prelim)
4. U.S. House of Representatives — Office of the Law Revision Counsel: 5 U.S.C. §704 — Actions Reviewable — https://uscode.house.gov/view.xhtml?req=(title:5%20section:704%20edition:prelim)
5. Supreme Court / Legal Information Institute: Bennett v. Spear, 520 U.S. 154 (1997) — https://www.law.cornell.edu/supct/html/95-813.ZO.html
6. Supreme Court / Legal Information Institute: Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) — https://www.law.cornell.edu/supremecourt/text/387/136
7. U.S. Court of Appeals for the Fourth Circuit: McMaster v. United States Department of Labor, No. 25-1986, June 24, 2026 — https://www.ca4.uscourts.gov/opinions/251986.P.pdf
8. U.S. Court of Appeals for the Seventh Circuit / Justia: Society of the Divine Word v. USCIS, No. 23-2787, February 24, 2025 — https://law.justia.com/cases/federal/appellate-courts/ca7/23-2787/23-2787-2025-02-24.html
9. U.S. Court of Appeals for the Fifth Circuit / Justia: American Stewards of Liberty v. Department of the Interior, 960 F.3d 223 (2020) — https://law.justia.com/cases/federal/appellate-courts/ca5/19-50321/19-50321-2020-05-29.html
10. U.S. Court of Appeals for the Fifth Circuit / Justia: Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283 (1997) — https://law.justia.com/cases/federal/appellate-courts/F3/112/1283/585003/
11. U.S. Court of Appeals for the D.C. Circuit / Justia: Public Citizen v. Nuclear Regulatory Commission, 901 F.2d 147 (1990) — https://law.justia.com/cases/federal/appellate-courts/F2/901/147/46405/
12. U.S. Court of Appeals for the D.C. Circuit / Justia: Jackson v. Modly, 949 F.3d 763 (2020) — https://law.justia.com/cases/federal/appellate-courts/cadc/18-5180/18-5180-2020-02-14.html
13. U.S. Court of Appeals for the Fifth Circuit: Brook v. Holzerland, Nos. 24-40640 & 25-40014 (2025) — https://www.ca5.uscourts.gov/opinions/unpub/25/25-40014.0.pdf
14. U.S. House of Representatives — Office of the Law Revision Counsel: 29 U.S.C. §1113 — Limitation of Actions — https://uscode.house.gov/view.xhtml?req=(title:29%20section:1113%20edition:prelim)
15. Supreme Court / Legal Information Institute: Heimeshoff v. Hartford Life & Accident Insurance Co., 571 U.S. 99 (2013) — https://www.law.cornell.edu/supremecourt/text/12-729

Educational Disclaimer

ROIStreet publishes educational content about 401(k) plans, ERISA, Department of Labor rulemaking, Administrative Procedure Act review and federal limitations periods. This article is not legal, fiduciary, tax, investment, litigation, appellate, jurisdictional or plan-administration advice. Accrual depends on the particular plaintiff, final agency action, injury, claim, circuit, later agency conduct and any special review statute. ERISA fiduciary-breach claims and benefit claims can use different limitations rules from APA challenges to federal agency action. Current filing deadlines should be verified against controlling statutes, current precedent and the specific procedural history of the challenged DOL action.

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