In the absence of express statutory authority to the contrary, an agency cannot delay judicial review of otherwise final agency action by requiring exhaustion of intra-agency remedies unless the agency action is rendered inoperative during the resolution of the intra-agency remedies. 5 U.S.C. §704. FACTUAL BACKGROUND 63. Plan B’s active ingredient (levonorgestrel) is a synthetic progestogen hormone.

Furthermore, the statute does not explicitly provide – or prohibit – judicial review, so she would have no other adequate remedy in court. 5 U.S.C. § 704. Under those specific circumstances, Hinojosa would have a valid APA claim; but those are not the circumstances currently presented in this case.

But the only administrative remedies that must be exhausted before an agency action is subject to judicial review are procedures that are (1) mandated by statute, or (2) mandated by agency rule, as long as that agency rule also makes the challenged agency action inoperative pending the mandated procedure. 5 U.S.C. § 704; Darby, 509 U.S. at 146-48 (recognizing that the APA “has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates,” but that an agency rule can only mandate administrative review of agency decision if the “administrative decision meanwhile is inoperative”). The MHA Nation does not point to any statute or agency rule establishing an administrative procedure Slawson needed to exhaust before seeking judicial review of the IBLA Stay Order.

Because the gist of Plaintiff’s dispute is with the regulatory veto power wielded by the Coastal Commission – not with FWS’ factual predictions concerning take – these state remedies provide the best and only avenues for Plaintiff’s claims. Plaintiff’s ability to invoke adequate state court remedies precludes APA review under 5 U.S.C. § 704. See Shell Oil, 585 F.2d at 409.

While Synopsys’ present claims focus on the Patent Office’s estoppel determination, the basis for those claims is Synopsys’ underlying objection to Mentor’s ’376 patent. The Patent Act channels that objection into other processes—including inter partes review and Federal Circuit appeals—and thus provides Synopsys with “other adequate remed[ies],” 5 U.S.C. § 704. Accordingly, there is no basis to override Congress’s choice not to grant Synopsys, as an ex parte reexamination requester, another bite at the apple.

B. Plaintiffs Do Not Challenge Any Final Agency Action Subject to Judicial Review Under the APA The APA limits judicial review to final agency action. See 5 U.S.C. § 704. Finality “is a jurisdictional requirement to obtaining judicial review under the APA . . . .” Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 2008).

In Idaho Sporting Congress, the Ninth Circuit noted that “[t]he [APA] requires Case 2:12-cv-09861-GW-SS Document 136 Filed 02/01/16 Page 202 of 217 Page ID #:6012 EXHIBIT 2 Case 2:16-cv-08390-GW-SS Document 30-5 Filed 12/07/16 Page 203 of 218 Page ID #:1083 202 that plaintiffs exhaust available administrative remedies before bringing their grievances to federal court.” 305 F.3d at 965 (citing 5 U.S.C. §704). Similar to the explanation provided in L.A. Tucker, it explained that “[t]he rationale underlying the exhaustion requirement is to avoid premature claims and to ensure that the agency possessed of the most expertise in an area be given first shot at resolving a claimant’s difficulties.”

8 (authorizing BIA, upon request, to perform and provide a land title examination). As far as Defendants can determine, Plaintiffs have failed to seek relief under these regulations before filing the present lawsuits, and their failure is a fatal flaw in their non-monetary asset claims as Interior Department regulations require exhaustion: “No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department, shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. § 704 unless when an appeal is filed, the official to whom the appeal is made determines that . . . the decision be made effective immediately.” 25 C.F.R. § 2.

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:

During this conversation, I explained to Ms. Costa that Defendants intended to file a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that the Court lacks subject matter jurisdiction over Plaintiffs’ Complaint. Specifically, Ms. Costa and I discussed Defendants’ argument that Plaintiffs cannot seek review under the Administrative Procedure Act (“APA”) of the November 21, 2016 letter from the Department of Health and Human Services advising Plaintiffs that they were not entitled to coverage under the Federal Tort Claims Act (the “Denial Letter”) because the Denial Letter is not “final agency action” under 5 U.S.C. § 704. 3.