Interference No. 104,646 Paper139
SKB (Johnson) v. Rasmusson, now Rasmusson v. SKB Page 4
B. This judgment is "final" appealable decision
1 . finality is determined pragmatically
Finality is required for judicial review. Barton v. Adang, 162 F.3d 1140, 1143, 49
USPQ2d 1128, 1131 (Fed. Cir. 1998). "For purposes of review, an agency action is
final if it (1) represents'a terminal, complete resolution of the case before the agency,'
...and (2) "determine[s] rights or obligations, or ha[s] some legal consequence" (Capital
Network System, Inc. v. F.C.C., 3 F.3d 1526, 1530 (C.A.D.C. 1993) (citations ornifted).
"To determine whether an agency action is to be deemed 'final'for purposes of judicial
review, we look'in a pragmatic way' to whether the challenged agency action is
'definitive' and to whether it has a 'direct and immediate ...effect on the day-to-day
business'of the challenger." Chicago Truck Drivers, Helpers and Warehouse Workers
Union (independent) v. National Mediation Bd., 670 F.2d 665, 668 (C.A. 7 (111.) 1981)
(citations onnitted).
As set forth in Hells Canyon Preservation Council v. Richmond, 841 F.Supp.
1039 (D.Or. 1993):
[t]he "finality" requirement mandates that a plaintiff identify a "final
agency action" and is designed to (1) avoid premature interruption of the
administrative process; (2) let the agency develop the necessary factual
background upon which decisions should be based; (3) permit the agency
to exercise its discretion or apply its expertise; (4) improve the efficiency
of the administrative process; (5) conserve scarce judicial resources,
since the plaintiff may be successful in vindicating rights in the
administrative process and the courts may never have to intervene; (6)
give the agency a chance to discover and correct its own errors; and (7)
avoid the possibility that flouting of administrative processes could
weaken the effectiveness of an agency by encouraging people to ignore
its procedures. United States Postal Service v. Notestine, 857 F.2d 989,
993 (5th Cir. 1988) (citations ornifted).
2. this action is final for purposes of judicial review
According to 37 CFR § 1.654, "parties will be given an opportunity to appear
before the Board to present oral argument at a final hearing" "[a]t an appropriate stage
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007