By contrast, Tucker Act jurisdiction is not exclusive for claims founded upon the Constitution, federal laws, or regulations.107 Thus, while the Tonkawa may file (and, indeed have filed) breach of trust claims in the CFC, the Tucker Act does not confer upon that court exclusive jurisdiction over all such claims. Defendants rely extensively on opinions and analysis involving contract actions, i.e., actions in which Tucker Act jurisdiction is in fact exclusive, to support their flawed argument that the Tucker Acts preclude § 702 jurisdiction in this Court. But the Tonkawa have not asserted contract claims.

Plaintiffs have failed to take the required administrative appeals for their non-monetary asset accounting claims and therefore these claims may not be heard under the APA. In their complaints, Plaintiffs seek accountings for non-monetary assets, citing to 5 U.S.C. § 702 of the APA as the requisite waiver of sovereign immunity. Plaintiffs allege that Interior has failed to produce certain documents and information related to its real property.

Plaintiffs have failed to take the required administrative appeals for their non-monetary asset accounting claims and therefore these claims may not be heard under the APA. In their complaints, Plaintiffs seek accountings for non-monetary assets, citing to 5 U.S.C. § 702 of the APA as the requisite waiver of sovereign immunity. Plaintiffs allege that Interior has failed to produce certain documents and information related to its real property.

Mitchell, 930 F.2d at 896 (internal citations omitted). Accordingly, Huff's claim falls comfortably within section 704's limitation on the waiver of sovereign immunity set forth in section 702. If Huff is in fact seeking judicial review of his discharge, he is therefore precluded from bringing his claim under the APA. C. Huff's Claims Under the Federal Tort Claims Act:

ECF 051-1 at 9. 5 U.S.C. §702 waives sovereign immunity for Plaintiffs’ DJA and constitutional claims, but does not transform the DJA and Mandamus Act claims into APA claims. See Alabama- Coushatta, 757 F.3d at 488 (§702 provides a general waiver of “sovereign immunity for actions against federal government agencies, seeking nonmonetary relief.”)

Nutrition 21, 930 F.2d at 864. Just as in Nutrition 21, Plaintiffs do not seek monetary damages from the United States or its agencies, but merely a declaration that patents owned by a U.S. government agency – the USDA – are invalid and unenforceable. Such relief falls squarely within the waiver provided under 5 U.S.C. §702, which allows parties to bring “a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” In the words of the statute, these claims “shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.” Id. Thus, even if the United States is a necessary and indispensable party (which it is not) joinder of the United States is feasible and not subject to sovereign immunity.

14. Jurisdiction is proper in this Court under the Administrative Procedures Act, 5 U.S.C. § 702, and under 28 U.S.C. § 2201, which states that actions involving controversies with federal Case 1:06-cv-02131-RMC Document 10-4 Filed 02/16/2007 Page 5 of 22 6 agencies may be pursued in any United States District Court, and under 28 U.S.C. §§ 1331 and 1346. FACTUAL BACKGROUND A. Licensing History of Anthrax Vaccine Adsorbed 15.

The claim therefore falls outside the APA’s limited waiver of sovereign immunity, both because it seeks “money damages,” and because the Tucker Act “impliedly forbids the relief which is sought.” 5 U.S.C. § 702. The Tucker Act’s grant of exclusive jurisdiction in the Court of Federal Claims also divests all other courts, including this one, of jurisdiction, 28 U.S.C. §§ 1346, 1491; Int’l Science & Tech.

Plaintiff cannot sweep her wide range of claims within the APA. The APA provides a general cause of action to “person[s] suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U.S.C. § 702; Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984). However, only a final agency action is reviewable under the APA.

Mem. Op. at 4-5 n.6. That being the case, the Plaintiffs’ allegations are “even less colorable”— and are thus insufficient to establish standing—than those the Supreme Court recently found wanting in a suit “concern[ing] the same statutory provision.” Id. (citing Amnesty Int’l, 133 S. Ct. 1138). Accordingly, so far as the Plaintiffs’ claims are predicated upon alleged content- collection under Section 702, they are foreclosed for lack of standing “as squarely dictated” by recent Supreme Court precedent.