Case 2:25-cv-00575-APG-BNW Document 237 Filed 11/24/25 Page 8 of 29
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court to ‘compel agency action unlawfully withheld or unreasonably delayed.’” Plaskett v. Wormuth , 18 F.4th 1072, 1081 (9th Cir. 2021) (quoting 5 U.S.C. § 706(1)). 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. (quoting Norton v. Southern Utah Wilderness All. , 542 U.S. 55, 63-64 (2004)). But here, the CEA does not require the CFTC to act on self-certifications. See 7 U.S.C. § 7a-2(c)(1). Rather, the self-certified contracts go forward unless the CFTC acts to prohibit them. See id. Alternatively, the registered entity can ask the CFTC for pre-approval or the CFTC can initiate a review. See id. §§ 7a-2(c)(5)(B), (c)(5)(C). That is consistent with the CFTC’s letter indicating that it has not acted to approve or disapprove any of the self-certified contracts because nothing in the CEA requires it to do so. Kalshi relies on Big Lagoon Rancheria v. California to argue that the Board must file suit under the APA and not “use a collateral proceeding to end-run the procedural requirements governing appeals of administrative decisions.” 789 F.3d 947, 953-54 (9th Cir. 2015) (en banc) (quotation omitted). But in Big Lagoon , the federal Bureau of Indian Affairs, had made final decisions to take land into trust for an Indian tribe and to include a tribe on a list of recognized Indian tribes. Id. at 950-51. The Ninth Circuit held that challenges to the Bureau of Indian Affairs’ decisions to take land into trust and to recognize an Indian tribe are “garden-variety” APA claims that must be brought under the APA and not as a defense in a separate case. Id. at 953-54 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 220 (2012)). Here, the CFTC has not made a final decision regarding Kalshi’s listing of sports-related event contracts, nor was it required to do so. Challenging the CFTC’s inaction under these circumstances is not “a garden-variety APA claim.” Big Lagoon , 789 F.3d at 953
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