Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/11

 (Supp. 2011). An "order" means "the final disposition of an agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice and hearing." Ark. Code Ann. § 25-15-202(5). Finally, "rule making" is defined as the "agency process for the formulation, amendment, or repeal of a rule." Ark. Code Ann. § 25-15-202(9). Given these definitions, and the express language of the APA limiting its application to cases of rule making and adjudication by an agency, this exception does not apply to this case.

Second, even if Alpha's factual allegations regarding the Commission's delay or failure to act after sending the cease-and-desist letter are true, the APA does not entitle it to seek the relief it has sought. The express language of the APA only authorizes the Pulaski County Circuit Court to issue an order commanding the agency to act. Alpha did not seek an order from the Pulaski County Circuit Court commanding the Commission to act; instead, it sought declaratory, injunctive, and monetary relief. Nowhere did it assert that it was seeking an order commanding the Commission to act. In any event, the Attorney General's Office did act; it sent a letter declaring its intent not to pursue the ADTPA claim and referring the matter to the Commission. Alpha acknowledges this fact in its pleadings. For these reasons, the APA as a limited exception to the Commission’s sovereign immunity is inapplicable to the case at bar.

Alpha’s arguments that the Commission committed an ultra vires act center on the Attorney General's sending a cease-and-desist letter predicated on violations of the ADTPA, requiring it to take down its website and arrest its advertising activities or face suit. Alpha argues that the Commission was authorized to hold and enforce its trademarks, and as such,