Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/10

 Alpha claims an exception to sovereign immunity under the Arkansas Administrative Procedure Act (APA). The APA is a limited exception to the State's immunity arising under article V, section 20 of the Arkansas Constitution. ''Ark. Dep't of Envtl. Quality v. Al-Madhoun'', 374 Ark. 28, 33, 285 S.W.3d 654, 659 (2008). Specifically, the APA provides:

In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself or herself injured in his or her person, business, or property by the failure, refusal, or delay may bring suit in the circuit court of any county in which he or she resides or does business, or in Pulaski County Circuit Court, for an order commanding the agency to act.

Ark. Code Ann. § 25-15-214 (Repl. 2002). Thus, the APA authorizes the Pulaski County Circuit Court to command agencies failing or refusing to act to the injury of any person or their property to do so where the agency acts unlawfully, unreasonably, or capriciously.

Alpha asserts that the APA orders the Commission to answer for its ultra vires use of power in a court of equity, and that Alpha exercised the only form of relief it had by bringing suit in the Pulaski County Circuit Court. Alpha seems to argue that the APA entitled it to bring its claims in the circuit court because the Commission, through the Attorney General's Office, failed to act or unreasonably delayed providing Alpha with its "final position" on whether it would bring suit under the Arkansas Deceptive Trade Practices Act (ADTPA) after sending the cease-and-desist letter.

Alpha failed to plead facts sufficient to establish this exception to the sovereign-immunity doctrine for two reasons. First, this matter is not one concerning "rule making" or an "adjudication," to which the APA exception applies. "Adjudication" is defined as an "agency process for the formulation of an order." Ark. Code Ann. § 25-15-202(1)(A)