s v. Eldridge, 424 U.S. 319, 328 (1976). Second, the claimant must have exhausted administrative remedies following the initial denial of its legal claim, although such exhaustion may be waived by a court over the objection of the Secretary under certain circumstances. See id. at 330.In short, a substantial argument can be made that the two prerequisites to judicial review under §405(g) do not apply to RADV overpayment determinations because §405(g) does not govern judicial review of such determinations.Exhaustion Otherwise Required?Assuming for the sake of discussion that the presentment and exhaustion requirements of §405(g) do not apply in the RADV context, CMS may nonetheless argue that a MA organization must still exhaust its administrative remedies before filing suit under the federal-question statute.In relevant part, the Administrative Procedure Act (APA) provides that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. §704. Section 704 goes on to state: “Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.” Id. This latter provision, the Supreme Court has explained, “explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency rule; it would be inconsistent with the plain language of [§704] for courts to require litigants to exhaust optional appeals as well.” Darby v. Cisneros, 509 U.S. 137, 147 (1993).The answer to the threshold question whether a RADV overpayment determination constitutes “final agency action” is beyond the scope of this installment. Needless to say, a substantial argument can be made that such an overpayment

[4]Deerfield Plantation Phase II-B Prop. Owners Ass’n v. Corps, 801 F. Supp. 2d 446, 458–59 (D.S.C. 2011).[5] 132 S. Ct. 1367 (2012).[6] 5 U.S.C. § 704.[7]Bennett v. Spear, 520 U.S. 154, 177–78 (1997).[8] 5 U.S.C. § 704; Sackett, 132 S. Ct. at 1372.

In addition, the agency points to the incompatibility between granting review and the congressional intent that post-grant review proceedings provide a rapid, cost-efficient alternative to district-court litigation, as evidence that 35 U.S.C. § 324(e) impliedly precludes review.The agency also argues that APA review is precluded because the PTAB’s decision to institute a PGR — though final under 35 U.S.C. § 324(e) — is not final within the meaning of APA, 5 U.S.C. § 704. Here, the agency relies on the Supreme Court’s decision in FTC v. Standard Oil Co., 449 U.S. 232 (1980), in which the Court held that “final agency action” under the APA requires the “consummation of the agency’s decision-making process,” which results in the determination of “rights or obligations . . . or from which legal consequences will flow.”

At oral argument, the government further refined its argument, noting that under the APA, judicial review is available for both “[a]gency action made reviewable by statute and final agency action.” 5 U.S.C. §704. The government noted that section 824(d) plainly authorized judicial review of the ISO and suggested that review in the district court could lie under the “reviewable by statute” prong of section 704 of the APA.

Justice Scalia delivered the Court’s opinion, stating that “[t]here is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”Section 704 of the APA, 5 U.S.C. § 704, provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” On the issue of whether the ACO was final agency action, the Court said “it ha[d] all of the hallmarks of APA finality….”

e that equitable tolling should apply. The question presented by the Petition is “Does a plaintiff’s APA claim “first accrue[]” under 28 U.S.C. §2401(a) when an agency issues a rule—regardless of whether that rule injures the plaintiff on that date (as the Eighth Circuit and five other circuits have held)—or when the rule first causes a plaintiff to “suffer[] legal wrong” or be “adversely affected or aggrieved” (as the Sixth Circuit has held)?” Corner Post argues the circuit courts are split on when the six-year clock starts for a challenge to rulemaking. The Eighth Circuit’s holding aligns with holdings from the Fourth, Fifth, Ninth, D.C. and Federal Circuits. The Sixth Circuit has ruled that the clock for an APA challenge starts to run when the alleged injury arises from an agency action. In its Opposition to the Petition, the FRB argued that “a ‘right of action first accrues’ within the meaning of Section 2401(a) when the relevant agency rule becomes final and thus reviewable under 5 U.S.C. 704.” The FRB distinguished the Sixth Circuit case on the grounds that the plaintiffs in that case did not allege that the rule in question was facially invalid and instead challenged the enforcement of the rule, which accrues at the time of enforcement.If the Supreme Court follows the majority circuits, the dismissal will be upheld. If the Supreme Court follows the Sixth Circuit, the ruling could open the door for more APA challenges. Should the Supreme Court reverse the dismissal and remand the case to the district court, the FRB may ultimately need to defend Regulation II on the merits. If the challenge to the rule is successful, the FRB may be required to engage in a new rulemaking to change the calculation of debit card interchange that could further shift the merchants’ risk of loss on financial institutions. A year ago, the FRB expanded Regulation II to require two unaffiliated networks on card not present transactions, which provided merchants the ability to further reduce costs o

entitled “A Recent Entrance to Paradise.”Thaler sought to register the work with the Copyright Office. The copyright application described the art as “autonomously created by a computer algorithm running on a machine,” identified the Creativity Machine as the author and listed Thaler as the copyright claimant under the work-for-hire doctrine. The Copyright Office denied Thaler’s application because the work lacked human authorship, which is an essential element of a valid US copyright. Thaler twice requested reconsideration of the copyright application, and the Copyright Office twice refused to register the work because of the human authorship requirement. Thaler timely appealed the Copyright Office’s denial to the District Court for the District of Columbia, and both parties moved for summary judgment.Under the authority of the Administrative Procedure Act, the district court reviewed the Copyright Office’s final agency action through the arbitrary and capricious standard of review (5 U.S.C. § 704). The district court first analyzed whether the AI computer system could own the copyright, then determined whether Thaler was a proper claimant under the work-for-hire doctrine. The district court held that the Copyright Office did not err in denying Thaler’s copyright registration application because US copyright law only protects works of human—not machine—creation. Although copyright law was designed to adapt with the times, the district court stated that there is an underlying and consistent understanding that human creativity is the driving force of copyrightability. While the tools humans use to create copyrightable works (fixed in tangible mediums) are ever evolving and range from pencils to computers, human authorship is a bedrock requirement to copyrightability such that the tools themselves cannot be listed as copyright authors. The district court further held that the plain text of the 1976 Copyright Act requires human authorship since it states that the originator of the

2 U.S.C. §1395w-26(b)(4) (“The Secretary may not implement, other than at the beginning of a calendar year, regulations under this section that impose new, significant regulatory requirements on a [MA] organization or plan.”). This contractual language and the sources of law on which it is based arguably limit CMS’s authority to implement its RADV program, including through the use of the Medicare Act’s general grant of retroactive-rulemaking authority (a topic we discussed in more detail in an earlier blog post here).Importantly, both the contract-related nature of the MA program and the contract-specific nature of RADV audits present a potential threshold legal question not found in most disputes over federal agency action. That threshold legal question involves the interaction of two statutes: the Administrative Procedure Act (APA) and the Tucker Act.Recall that the APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court ....” 5 U.S.C. §704. As described by the Supreme Court, this provision “makes it clear that Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988).The Tucker Act, in turn, provides that the Court of Federal Claims in Washington, D.C., “shall have jurisdiction to render judgment upon any claim against the United States founded ... upon any express ... contract with the United States ....” 28 U.S.C. §1291(a)(1). This jurisdiction is exclusive for contract claims in excess of $10,000. See 28 U.S.C. §1346(a)(2) (providing district courts and the Court of Federal Claims with concurrent jurisdiction over contract claims against the United States “not exceeding $10,000 in amount”). And save for certain limited exceptions not relevant here, the Court of Federal Claims does not have authority to grant equitable remedies such as an injunction. See Richardson v. Morris, 409 U.S. 464, 465 (1973).Co

35 U.S.C. § 156(c)(3). 5 U.S.C. § 704.[View source.]

Third, Odyssey filed a “facial” challenge to the PTO’s 2011 amendments to its rules of practice in ex parte appeals, which were first published as a notice of proposed rulemaking in the Federal Register in November 2010. The amendments were published in final form in November 2011 and apply to all ex parte appeals filed on or after January 23, 2012.Upon appeal, the Federal Circuit first addressed whether Odyssey satisfied the APA’s finality requirement (5 U.S.C. § 704). Supreme Court precedent dictates that an action is considered final under the APA if it both (1) marks the consummation of the agency’s decision making process and (2) is one by which rights or obligations have been determined, or from which legal consequences will flow.Accordingly, the Federal Circuit found that until the PTAB issued its rehearing decision as to the first application or denied Odyssey’s arguments for exceeding the permissible scope of a reply brief as to the second application, the PTO had not consummated its decision making process, nor had Odyssey’s rights or obligations as to the applications been determined. Although the PTAB reversed the examiner’s rejection on appeal, it could reconsider its decision as to the allowance of the claims since the examiner had requested rehearing, and Supreme Court precedent holds that a rehearing request renders an underlying order non-final for purposes of judicial review.