Well, only minutes ago I had said Judge Duffey of the District Court for the Northern District of Georgia might still be persuaded by the government’s arguments about jurisdiction, however annoyed he appeared with the FTC. And I was right. He just dismissed LabMD’s complaint, finding that the complaint was not ripe for review because the FTC’s actions do not constitute a reviewable “final agency action.” Here’s a snippet from the beginning of the Legal Analysis section of the opinion and order:
Under § 704 of the APA, “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. “The requirement of a final agency action has been considered jurisdictional. If the agency action is not final, the court therefore cannot reach the merits of the dispute.” Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003) (internal citations and quotation marks omitted).
I’ve uploaded the opinion and order, here (pdf).
Correction: In a previous version, Judge Duffey’s last name was spelled incorrectly.