Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 60 of 110
603 U.S. 369, 402 (2024). Indeed, the CEA provides that nothing in Section
2 “supersede[s] or limit[s] the jurisdiction conferred on courts of the United
States.” 7 U.S.C. § 2(a)(1)(A). Kalshi asserts (Br. 42-43) that allowing a
State to challenge whether a particular contract is a commodity derivative
outside of an APA action could lead to non-uniform results, but if a court
finally determined that a Kalshi contract is not a swap, that determination
would bind Kalshi nationwide. See In re Palmer , 207 F.3d 566, 568 (9th Cir.
2000).
Further, there is no agency action that could underlie an APA suit.
The APA provides a cause of action to “set aside” an agency’s action or to
“compel agency action.” 5 U.S.C. § 706; see Plaskett v. Wormuth , 18 F.4th
1072, 1082 (9th Cir. 2021). Here, Kalshi self-certified the contracts and im-
mediately started trading them, and the CFTC took no action. 1-ER-8. The
CFTC confirmed that it has not “taken any official action to approve the
listing for trading of sports-related event contracts.” 1-StateSER-41 n.4.
State Defendants also could not seek to compel the CFTC to take ac-
tion. Nothing in the CEA requires the CFTC to formally approve a contract
for trading, or to order a contract delisted from a DCM solely because it is
not a commodity derivative. At most, the Special Rule says that the CFTC
“may” delist contracts that involve gaming. 7 U.S.C. § 7a-2(c)(5)(C)(i). The
CFTC is under no “specific, unequivocal command” that it has not obeyed.
Vietnam Veterans of Am. v. CIA , 811 F.3d 1068, 1075 (9th Cir. 2016).
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