United States Waived Sovereign Immunity with Respect to DJ Patent Suits 10-1546 August 24, 2011 Rodkey, Kevin D. Decision Last Month at the Federal Circuit - September 2011Judges: Bryson (author), Schall, Prost [Appealed from: E.D. Cal., Senior Judge Wanger] In Delano Farms Co. v. California Table Grape Commission, No. 10-1546 (Fed. Cir. Aug. 24, 2011), the Federal Circuit affirmed the district court’s decision that the United States Department of Agriculture (“USDA”) is a necessary party to a DJ suit, reversed the district court’s decision that 5 U.S.C. § 702 does not waive sovereign immunity with respect to DJ suits, reversed the district court’s decision that Delano Farms Co. (“Delano Farms”) failed to properly plead inequitable conduct, and affirmed the district court’s decision that Delano Farms failed to properly plead a violation of the Sherman Act. The USDA is the owner of three table grape patents issued under the Plant Variety Protection Act: PP15,891 (“the Sweet Scarlet patent”); PP16,229 (“the Scarlet Royal patent”); and PP16,284 (“the Autumn King patent”).

297. See supra Section II.B.3. 298. 5 U.S.C. § 702 (2012). 299.

The per curiam opinion focused its discussion of the issues on the availability to a third party of judicial review on a granted patent. Exela stressed the provisions of the APA codified at 5 U.S.C. § 702 for the proposition that any "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action" should have recourse to the courts for review. In addition to the statute, Exela cited Supreme Court case law to the effect that there is a "strong presumption that Congress intends judicial review of administrative action," citing Bowen v. Michigan Academy ofFamily Physicians, 476 U.S. 667, 670 (1986), and later, Block v. Community Nutrition Institute" 467 U.S. 340, 350–51 (1984) ("'where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.'

With respect to prudential standing, the APA requires that the plaintiff be within the “zone of interests” of the statute claimed to have been violated (i.e., Section 1504 of the Dodd-Frank Act). 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review thereof.”) Constitutional standing is required because the U.S. Constitution’s limits the jurisdiction of the federal courts to cases and controversies. (Art.

On September 1, 2023, the Managed Funds Association and a group of private equity and hedge fund trade groups sued the U.S. Securities and Exchange Commission (SEC) in the United States Court of Appeals for the Fifth Circuit, arguing that the SEC overstepped its statutory authority in adopting new private fund adviser rules. The lawsuit was filed under 5 U.S.C. §§ 702–704, 706, 15 U.S.C. § 80b–13(a) and Federal Rule of Appellate Procedure 15(a) as a petition for review of the new rules. The new rules were adopted on August 23, 2023, by a Commission vote of 3-2.Under the new rules, all registered private fund advisers are required to issue enhanced disclosures, perform annual audits, and obtain a fairness opinion in adviser-led secondary transactions. Private fund advisers are also now restricted from engaging in certain activities without disclosure and consent from investors, and are prohibited from providing preferential treatment to some investors.[1]The lawsuit alleges that the rules exceeded the SEC’s statutory authority, were arbitrary and contrary to the law, and were adopted in violation of the Administrative Procedure Act. The trade groups contend that these new rules would “fundamentally change the way private funds are regulated in America,” and asked the court to hold unlawful, vacate, and set aside the rules, and grant additional relief as

on, was a case in the Federal Circuit, Shinyei Corporation of America v. United States, 355 F.3d 1297 (Fed. Cir. 2004). Shinyei was a challenge to liquidation instructions issued by Commerce in violation of its own administrative determination and the CIT’s final judgment. The Government argued that reliquidation was unavailable as a remedy, because only the statutory provision providing for administrative protests of Customs decisions explicitly provides for such relief, and the statutory scheme creates an implied prohibition on reliquidation in Commerce cases. The Federal Circuit disagreed, holding that the protest statute’s discussion of entries becoming “final and conclusive” if not timely protested did not govern in Shinyei, and that the statute’s silence as to reliquidation in Commerce cases cannot be read as a prohibition on ordering such relief.Discussing Shinyei,Judge M. Miller Baker held that the case turned on a reading of the APA’s waiver of sovereign immunity set forth in 5 U.S.C. § 702, which the Supreme Court has held applies unless “Congress has dealt in particularity with a claim and [has] intended a specified remedy—including its exceptions—to be exclusive.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012). In Shinyei, neither the protest statute nor any other statute dealt with reliquidation specifically in cases challenging Commerce decisions, and as a result, the APA’s waiver of sovereign immunity applied. Moreover, the Court explained that properly invoking the CIT’s residual jurisdiction under section 1581(i) necessarily means that no other statute addresses a plaintiff’s particular claim. Thus, Judge M. Miller Baker held that in section 1581(i) cases, including the three cases challenging Commerce’s denial of exclusion requests, the CIT’s broad remedial powers authorized the reliquidation of finally liquidated entries. The Court granted the Government’s motion for voluntary remand, with the condition that Commerce must i

A lawsuit filed on August 10, 2023 against the U.S. Department of Homeland Security alleges that the agency violated the Administrative Procedure Act (APA), 5 U.S.C. § 702, by exceeding its authority and determining that a group of visa applicants were “inadmissible” without reviewing a full record of evidence. The plaintiffs in Sharma et al. v. United States Department of Homeland Security1are nearly 70 former F-1 students who were labeled “inadmissible” for employment authorization after they were defrauded by a group of would-be visa employers, which committed violations of the F-1 program guidelines by asking the students to pay for “pre-employment trainings” to receive offer letters and then failing to provide them with actual work assignments or remuneration.The lawsuit claims that DHS improperly marked the plaintiffs as “inadmissible” on the basis of alleged fraud or willful misrepresentation under 8 U.S.C. § 1182(a)(6)(C)(i), without the chance to prove that they had not, in fact, engaged in fraud or willful misrepresentation while trying to procure immigration benefits. In cases of fraud or misrepresentation, an inadmissibility determination ca

03(a), (b) (providing the concern must also separately serve two SBA officials concurrent with its OHA filing depending on the nature of the appeal (i.e., appeal of a termination from the program or appeal of denial of program admission)). The appeal must be filed by 5 p.m. EST on the 45th day. 13 C.F.R. § 134.204(b)(2). Appeals to OHA can be filed by e-mail, ohafilings@sba.gov, or fax, 202.205.7059, or via the Hearing and Appeals Submission Upload (HASU) Application.OHA's regulations provide that a judge will issue a written decision within 90 calendar days of the appeal date "as practicable." 13 C.F.R. § 134.409(b). If OHA denies a concern's appeal of its termination from the 8(a) Program, the concern may seek judicial review pursuant to the Administrative Procedures Act (APA). The APA provides that a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review[.]" 5 U.S.C. § 702. Here, the termination from the 8(a) Program or the denial of entry to the 8(a) Program would constitute adverse agency action.Options for Protesting an 8(a) Competitor's Social Disadvantage Status if SBA Approves a Personal Social Disadvantage NarrativeIf a competitor remains in the 8(a) Program after SBA's review of the owner's personal social disadvantage narrative, other 8(a) contractors may be tempted to protest the competitor's 8(a) status when selected as the apparent awardee in a future 8(a) set-aside opportunity. However, under SBA's regulations, such a direct protest to SBA is not permitted. Competitors cannot challenge a concern's 8(a) status by filing an 8(a) status protest with OHA – or a bid protest at the Government Accountability Office (GAO), for that matter. 13 C.F.R. § 124.517(a) ("The eligibility of a Participant for a sole source or competitive 8(a) requirement may not be challenged by another Participant or any other party, either to SBA or any administrative for

15 U.S.C. §632. A small business is independently owned, not dominant in its field, satisfies other definitions and standards promulgated by the Small Business Administrator. 5 U.S.C. §603. 5 U.S.C. §604.Id. 5 U.S.C. §611(a)(4).Id. 5 U.S.C. §702. Treas. Dec. 9846 (Feb. 4, 2019).

18 Id. 19 Id. 20 Id. at 5–6. 21 5 U.S.C. § 702. 22 Alarm.com, Case No. 21-2102, slip op. at 6–7; see also 5 U.S.C. § 706(2)(A), (C). 23 Alarm.com, Case No. 21-2102, slip op. at 7. 24 Id.