Whether the ordinary summary judgment standard of Rule 56 applies to review of agency action

QUESTIONS PRESENTED ; Petitioner Gilbert Hyatt brought this action to challenge the Patent and Trademark Office’s secret rule, attested to by former agency officials and reflected in its official actions, to deny him further patents irrespective of the merit of his applications. After finding that Hyatt had plausibly alleged this rule’s existence, the district court sua sponte entered summary judgment against him, notwithstanding clear disputes of material fact as to the agency’s actions. Expressly holding that the ordinary summary judgment standard of Federal Rule of Civil Procedure 56 does not apply in agency cases, the district court drew inferences, made credibility determinations, and decided fact disputes in favor of the agency and against Hyatt. It also held that, because there was no basis to “compel agency action unlawfully withheld or unreasonably de; layed,” 5 U.S.C. § 706(1), the agency’s rule could not be : “hfe]ld unlawful and set aside” as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” id. § 706(2). The Federal Circuit upheld the district court’s decision. This Court should grant review to decide: 1. Whether the ordinary summary . judgment standard of Rule 56 applies to review of agency action, as held by the First, Fifth, Ninth, and District of Co, lumbia Circuits. 2. Whether the mandamus standard of Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004), applies to claims seeking to set aside agency action under 5 US.C. § 706(2). . ii .