The judge apparently forgot about (or does not know) Supreme Court and 9th Circuit precedents.
The APA alone does not provide an independent basis for subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 107 (1977). However, jurisdiction is present when the APA is combined with 28 U.S.C. § 1331, which provides: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331."
As for the Administrative Procedure Act (APA), it “authorizes suit by ‘[a] person suffering legalwrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.’” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61 (2004) (quoting 5 U.S.C. § 702). “Failures to act are sometimes remediable under the APA, but not always.” Norton,542 U.S. at 61. “[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Id. at 64 (emphasis in original). The APA itself does not provide an independent basis for subject matter jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107 (1977). But the APA, in conjunction with federal question jurisdiction under 28 U.S.C. § 1331, may vest a federal court with jurisdiction to “compel agency action unlawfully withheld or unreasonably delayed.” See, e.g., Elmalky v. Upchurch, 2007 WL 944330, at*2 (N.D. Tex. 2007); Yu v. Brown, 36 F. Supp. 2d 922, 928-29 (D.N.M. 1999). As the Ninth Circuit explained in Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9th Cir. 2002):
"A good deal of confusion among courts and litigants has been spawned by Congress’ choice of words in the APA. The APA allows that agency actions meeting certain criteria are “subject to judicial review.” 5 U.S.C. § 704. However, the Supreme Court has made it clear that the phrase “subject to judicial review” does not confer a grant of subject matter jurisdiction. In Califano v. Sanders, 430 U.S. 99, 107, . . . (1977), the Supreme Court settled a long standing controversy by holding that 28 U.S.C. § 1331, rather than the APA, confers jurisdiction on federal courts to review agency action. Id. See also Jerry L. Mashaw et al., Administrative Law 833 (1998) (explaining that § 1331 confers jurisdiction for relief against unlawful agency action).
Stated another way, “n the absence of a specific statutory provision to the contrary, district courts have jurisdiction to review agency action as part of their general federal question jurisdiction, 28 U.S.C.§ 1331.” Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1136 n.5 (9th Cir. 1999)
