Petition for Writ of Certiorari — Baoming Chen, Petitioner v. Markwayne Mullin, Secretary of Homeland Security, et al.

No.

In the Supreme Court of the United States

BAOMING CHEN, PETITIONER,

v.

KRISTI NOEM, IN HER OFFICIAL CAPACITY AS

SECRETARY OF THE DEPARTMENT OF HOMELAND

SECURITY; UR M. JADDOU, IN HER OFFICIAL CAPACITY AS

DIRECTOR OF U.S. CITIZENSHIP & IMMIGRATION

SERVICES.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ANDREW T. TUTT

Counsel of Record

SAMUEL F. CALLAHAN

SAMUEL I. FERENC

SPENCER J. FABER

ERNESTO M. HERNANDEZ

JENNIFER F. KAPLAN

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

QUESTIONS PRESENTED

1. Whether a claim alleging unreasonable agency

delay under 5 U.S.C. § 706(1) becomes nonjusticiable

when the Government takes the delayed action while the

case is pending on appeal.

2. Whether courts should adjudicate unreasonabledelay claims under 5 U.S.C. § 706(1) using the six-factor

framework set forth in Telecommunications Research &

Action Center v. FCC (TRAC), 750 F.2d 70 (D.C. Cir.

1984), or instead apply the APA’s text as written.

(i)

RELATED PROCEEDINGS

U.S. District Court for the Eastern District of New York

(E.D.N.Y.):

Chen v. Mayorkas, No. 23-CV-1357 (June 5, 2024)

(opinion and order dismissing the complaint)

U.S. Court of Appeals for the Second Circuit (2d Cir.):

Chen v. Noem, No. 24-2058 (May 22, 2025) (affirming

district court)

Chen v. Noem, No. 24-2058 (Sept. 10, 2025) (denying

rehearing en banc and panel rehearing)

Supreme Court of the United States:

Chen v. Noem, No. 25A564 (Nov. 14, 2025) (granting

application for extension of time to file petition for

a writ of certiorari)

(ii)

TABLE OF CONTENTS

Page

Opinions Below ..................................................................... 1

Jurisdiction ........................................................................... 1

Statutory Provisions Involved ............................................ 1

Statement of the Case.......................................................... 1

Reasons for Granting the Petition ..................................... 8

I. The Justiciability Question Warrants This

Court’s Review .............................................................. 9

A. History and Tradition Show that Article III

Permits Judicial Review in this Posture ............ 10

B. Prudence and Presumed Legislative Intent

Favor Finding Justiciability In This Posture .... 11

II. The Merits Question Also Warrants the Court’s

Review .......................................................................... 14

A. TRAC Replaces the APA’s Reasonableness

Standard with an Atextual “Egregiousness”

Requirement ......................................................... 16

B. TRAC Defines “Unreasonable Delay” by

Treating Agency Practice as the Benchmark ... 20

C. TRAC Improperly Treats Agency

“Competing Priorities” as a Justification for

Delay ...................................................................... 23

III. The Questions Presented Are Important and

Warrant Review In This Case ................................... 27

Conclusion ........................................................................... 29

(iii)

iv

Appendix A: Second Circuit Court of Appeals

Summary Order (May 22, 2025) ............... 1a

Appendix B: District Court Memorandum and

Order (June 5, 2024)................................... 9a

Appendix C: Second Circuit Court of Appeals

Order Denying Petition for Rehearing

En Banc (Sept. 10, 2025).......................... 26a

Appendix D: 5 U.S.C. § 555 ............................................ 28a

Appendix E: 5 U.S.C. § 706 ............................................ 30a

Appendix F: Complaint (Feb. 21, 2023)........................ 31a

TABLE OF AUTHORITIES

Cases

Page(s)

Am. Auto. Mfrs. Ass’n v. Mass. Dep’t of

Env’t Prot.,

163 F.3d 74 (1st Cir. 1998) ......................................... 20-21

Ames v. Ohio Dep’t of Youth Servs.,

605 U.S. 303 (2025) .......................................................... 16

In re Barr Lab’ys, Inc.,

930 F.2d 72 (D.C. Cir. 1991) ........................................... 25

Caswell v. Califano,

583 F.2d 9 (1st Cir. 1978) .......................................... 24, 26

Cheney v. U.S. Dist. Ct. for Dist. of

Columbia,

542 U.S. 367 (2004) .......................................................... 18

Coit Indep. Joint Venture v. Fed. Sav. &

Loan Ins. Corp.,

489 U.S. 561 (1989) .......................................................... 18

Ctr. for Sci. in the Pub. Interest v. FDA,

74 F. Supp. 3d 295 (D.D.C. 2014) ................................... 21

Cutler v. Hayes,

818 F.2d 879 (D.C. Cir. 1987) ......................................... 20

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .......................................................... 19

FCC v. Prometheus Radio Project,

592 U.S. 414 (2021) .......................................................... 18

Honig v. Doe,

484 U.S. 305 (1988) .................................................... 10, 13

Hulli v. Mayorkas,

549 F. Supp. 3d 95 (D.D.C. 2021) ................................... 21

Independence Mining Co. v. Babbitt,

105 F.3d 502 (9th Cir. 1997) ........................................... 15

(v)

vi

Cases—Continued

Page(s)

Interstate Nat. Gas Ass’n of Am. v. FERC,

285 F.3d 18 (D.C. Cir. 2002) ........................................... 21

Jefrey v. INS,

710 F. Supp. 486 (S.D.N.Y. 1989) .................................. 26

Judulang v. Holder,

565 U.S. 42 (2011) ............................................................ 24

Liberty Fund, Inc. v. Chao,

394 F. Supp. 2d 105 (D.D.C. 2005) ................................. 21

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

591 U.S. 657 (2020) .......................................................... 19

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .......................................................... 18

Mills v. Green,

159 U.S. 651 (1895) .......................................................... 10

Oil, Chem. & Atomic Workers Union v.

OSHA,

145 F.3d 120 (3d Cir. 1998) ............................................. 21

Palakuru v. Renaud,

521 F. Supp. 3d 46 (D.D.C. 2021) ............................. 21, 22

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ............................................................ 19

Ramirez v. Blinken,

594 F. Supp. 3d 76 (D.D.C. 2022) ................................... 21

Safeway Stores v. Brown,

138 F.2d 278 (Emer. Ct. App. 1943) .............................. 18

Salameda v. INS,

70 F.3d 447 (7th Cir. 1995) ............................................. 24

SEC v. Almagarby,

92 F.4th 1306 (11th Cir. 2024) ........................................ 17

vii

Cases—Continued

Page(s)

Skalka v. Kelly,

246 F. Supp. 2d 147 (D.D.C. 2017) ................................. 25

South Carolina v. United States,

907 F.3d 742 (4th Cir. 2018) ..................................... 17, 25

Southern Pacific Terminal Co. v. ICC,

219 U.S. 498 (1911) .................................................... 10, 11

Stenson Tamaddon, LLC v. United States

Internal Revenue Serv.,

742 F. Supp. 3d 966 (D. Ariz. 2024) ............................... 15

Telecommunications Research & Action

Center v. FCC (TRAC),

750 F.2d 70 (D.C. Cir. 1984) ............ 1, 2, 5, 6, 8, 9, 14, 15,

16, 17, 19, 20, 21,

22, 23, 25, 26, 27, 28

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .......................................................... 24

Wisconsin v. EPA,

938 F.3d 303 (D.C. Cir. 2019) ......................................... 24

Statutes

Page(s)

5 U.S.C.

§ 555(b) ..................................................... 12, 16, 17, 19, 27

§ 706 .................................................................... 1, 3, 19, 27

§ 706(1)............................................. 3, 4, 6, 8, 9, 12, 13, 14,

15, 16, 17, 18, 19, 20, 22,

23, 24, 25, 26, 27, 28

§ 706(2)(A) .......................................................................... 1

§ 1254(1).............................................................................. 1

Administrative Procedure Act,

Pub. L. 79-404, 60 Stat. 237 (1946) ................................ 19

Legislative Materials

89 Cong. Rec. app. (1940) .................................................. 20

92 Cong. Rec. 5657 (1946) .................................................. 20

viii

Legislative Materials—Continued

Page(s)

H.R. Rep. No. 79-1980 (1946) ...................................... 17, 20

H.R. Rep. No. 89-901 (1965) .............................................. 19

S. Rep. No. 79-752 (1945)....................................... 17, 20, 24

S. Rep. No. 89-1380 (1966)................................................. 19

Other Authorities

Aram A. Gavoor & Steven A. Platt, Agency

Delay and the Courts,

77 Admin. L. Rev. 761 (2025) ......................................... 15

Matthew I. Hall, The Partially Prudential

Doctrine of Mootness, 77 Geo. Wash. L. Rev.

562 (2009).......................................................................... 10

Daniel E. Walters, Symmetry’s Mandate:

Constraining the Politicization of American

Administrative Law,

119 Mich. L. Rev. 455 (2020) .......................................... 19

Howard I. Rubin, Judicial Review of Agency

Delay: The District of Columbia Moves

Towards a More Deferential Standard—A

Survey of Recent Cases,

3 Admin. L.J. 725 (1989) ................................................. 21

Sant’Ambrogio, Agency Delays: How a

Principal-Agent Approach Can Inform

Judicial and Executive Branch Review of

Agency Foot-Dragging,

79 Geo. Wash. L. Rev. 1381 (2011) ................................ 15

Marisa Sylvester, Note, Compelling

Compliance: Disciplining Agencies Through

Statutory Deadlines,

47 Harv. J.L. Pub. Pol’y 265 (2024) ............................... 15

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit (Pet. App. 1a-8a) is unpublished but

available at 2025 WL 1466205. The decision of the United

States District Court for the Eastern District of New

York (Pet. App. 9a-25a) is published at 736 F. Supp. 3d 151

(E.D.N.Y. 2024).

JURISDICTION

The judgment of the court of appeals was entered on

May 22, 2025. The Second Circuit denied a petition for

rehearing and rehearing en banc on September 10, 2025.

On November 14, 2025, Justice Sotomayor granted

petitioner an extension of time to file the petition to

February 9, 2026. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reproduced in

the petition appendix (Pet. App. 28a-30a).

STATEMENT OF THE CASE

This case presents a pair of important questions

relating to the basic enforcement of the provisions of the

Administrative Procedure Act (APA) that have evaded

this Court’s review for 80 years. Those questions center

on the provision in 5 U.S.C. § 706 authorizing individuals

aggrieved by agency inaction to seek aid of the federal

courts to “compel agency action unlawfully withheld or

unreasonably delayed.”

Since 1984 that important provision, which sits right

next to the oft-invoked 5 U.S.C. § 706(2)(A), has been

largely a dead letter as a result of the D.C. Circuit’s

decision in Telecommunications Research & Action

Center v. FCC (TRAC), 750 F.2d 70 (D.C. Cir. 1984). The

(1)

2

standard set out in that decision, which virtually every

federal court of appeals now follows, makes it virtually

impossible for litigants to win judicial relief compelling

egregiously delayed agency action. The TRAC test is

inconsistent with the APA’s text and history, and destroys

one of the APA’s key pillars.

Efforts to obtain reconsideration of the TRAC

standard have been stymied by a feature of unreasonable

delay itself—namely, that the time it takes to litigate an

unreasonable delay case often results in the United States

taking the underlying action before the case can reach an

adjudication on the merits. The United States has the

unilateral power to take unreasonably delayed actions at

any time and it has taken advantage of the authority in a

manner that thwarts judicial review of unreasonable

delay claims. Notwithstanding their clear statutory and

constitutional authority to decide these cases, federal

courts of appeals have held that when the United States

takes the underlying action the lawsuit sought to compel

that makes the case moot.

This case is the prototypical case demonstrating the

flaws in the TRAC standard and the thwarted appellate

review of an effort to challenge it. After two years waiting

for USCIS to adjudicate his nine-page immigration

waiver application, petitioner sued to compel the agency

to act. More than a year after petitioner filed suit the

district court dismissed it as premature under TRAC.

Then, miraculously, on the very first business day after

petitioner noticed his appeal the agency granted his

application. The Second Circuit therefore dismissed the

case as moot and not within any mootness exceptions—

rejecting without discussion his argument that the APA

renders such claims justiciable even when the United

States takes the underlying delayed action while the case

is pending on appeal.

3

These are tremendously important questions that

warrant this Court’s review. In the United States’ highly

regulated economy, agency action unlawfully withheld

can inflict harms as significant as unlawful action itself.

The inability to timely obtain necessary permits, licenses,

or approvals can be the difference between operating and

shutting down, safety and catastrophe, or life and death.

When agencies fail to act promptly, construction projects

stall while housing shortages deepen; disaster-relief funds

sit idle while communities struggle to rebuild; hospitals

and laboratories wait for approvals needed to deploy

lifesaving treatments; and energy, transportation, and

communications infrastructure remains offline despite

urgent public need. Businesses cannot hire, workers

cannot work, and public services cannot be delivered

without timely government action. In these contexts,

delay is not a neutral choice—it is a substantive

regulatory decision with immediate and irreversible

consequences. Congress recognized this in the APA and

provided a solution in the form of 5 U.S.C. § 706(1). But

that essential safety valve is currently inaccessible.

This is an exceptionally important question that

warrants this Court’s review. The appropriate standard

for adjudicating unreasonable delay claims is an issue of

major economic and political significance that affects the

entire structure of the United States federal government.

The courts of appeals have largely aligned on a standard

that reads 5 U.S.C. § 706(1) out of the APA and

justiciability rules that make it virtually impossible to

challenge. This Court has the power to correct the lower

federal courts’ incorrect holdings as to both issues. The

petition for certiorari should be granted.

1. Petitioner Baoming Chen is a native and citizen of

the People’s Republic of China. Pet. App. 10a. He arrived

in the United States on July 20, 2002 through the Mexican

border, entering without inspection.

Pet. App. 33a.

4

Following removal proceedings, an immigration judge

granted petitioner withholding of removal on November

1, 2006. Id.

On October 20, 2004, petitioner’s sister, a U.S. citizen,

filed a Form I-130 for petitioner, as well as his wife and

two children, who still reside in China. Pet. App. 10a.

USCIS approved the petition on January 11, 2010.

Pet. App. 10a.

To obtain his visa, petitioner was required to return

to China for an interview at a U.S. consulate.

Pet. App. 10a.

However, because petitioner was

inadmissible due to the circumstances of his arrival in the

United States and pending removal order, he risked not

being able to reenter the United States lawfully unless he

received an unlawful presence waiver. Pet. App. 10a.

To obtain the waiver, petitioner first filed a Form I212 on May 4, 2019, which USCIS approved on December

11, 2020. Pet. App. 10a-11a. Petitioner then filed a Form

I-601A Provisional Unlawful Presence Waiver on April 12,

2021. Pet. App. 11a.

2. On February 21, 2023, after nearly two years had

passed without adjudication of his application, petitioner

filed this action seeking a declaration that Defendants—

the DHS Secretary and USCIS Director—failed to

perform a duty owed to petitioner, warranting a writ of

mandamus, and “unlawfully withheld or unreasonably

delayed” acting on his application, violating the APA, 5

U.S.C. § 706(1). Pet. App. 11a. Petitioner included

exhibits documenting that the delay or denial of

processing of his application caused extreme hardship to

his parents, who are lawful permanent residents in the

United States and were diagnosed with major depressive

disorder and anxiety disorder due to petitioner’s

unsettled immigration status. Pet. App. 11a.

5

Fifteen months later the district court dismissed the

suit as premature. Pet. App. 9a-25a. The district court

considered the merits of petitioner’s APA claim by

applying the factors identified by the D.C. Circuit for

evaluating

allegedly

unreasonable

delay

in

Telecommunications Research & Action Center v.

Federal Communications Commission (TRAC), 750 F.2d

70 (D.C. Cir. 1984). Pet. App. 18a-23a. The district court

rendered the factors as follows:

“(1) [T]he time agencies take to make decisions must

be governed by a rule of reason…

(2) [W]here Congress has provided a timetable or

other indication of the speed with which it expects the

agency to proceed in the enabling statute, that

statutory scheme may supply context for this rule of

reason…;

(3) [D]elays that might be reasonable in the sphere of

economic regulation are less tolerable when human

health and welfare are at stake;…

(4) [T]he court should consider the effect of

expediting delayed action on agency activities of a

higher or competing priority…;

(5) [T]he court should also take into account the

nature and extent of the interests prejudiced by

delay…; and

(6) [T]he court need not find any impropriety lurking

behind agency lassitude in order to hold that agency

action is unreasonably delayed.”

Pet. App. 18a-19a (alterations in original) (quoting TRAC,

750 F.2d at 80).

The district court found that the first and fourth

factors favored respondents. Pet. App. 20a-21a. On the

first factor, the court accepted respondents’ assertions in

their briefing that USCIS “generally adjudicates I-601A

applications on a first-in-first-out basis,” which the court

6

found was “a sufficient rule of reason under the TRAC

analysis.” Pet. App. 20a. On the fourth factor, the court

relied on district court precedents reasoning that courts

may “refuse” to rule for a plaintiff if granting relief would

simply place the plaintiff at the head of a queue of

similarly situated applicants “and produce no net gain.”

Pet. App. 20a (quoting L.M. v. Johnson, 150 F. Supp. 3d

202, 213 (E.D.N.Y. 2015)). The court found that rule

applies “even if all of the other TRAC factors militate in

favor of relief,” and accepted Defendants’ litigation

position that the relief petitioner requested would merely

place him “at the front of the adjudication line.”

Pet. App. 20a-21a. (quoting L.M., 150 F. Supp. 3d at 213).

Examining the third and fifth factors next, the

district court acknowledged that “human welfare is

undoubtedly at stake,” seemingly favoring petitioner.

Pet. App. 22a. Nonetheless, relying on cases describing

USCIS’s backlog and lack of resources and holding that

similar wait times to petitioner’s were not “unreasonable,”

the court granted Defendants’ motion to dismiss

petitioner’s § 706(1) claim. Pet. App. 22a-23a. The district

court also granted the motion to dismiss petitioner’s

mandamus claim, reasoning that it was moot because the

alternative remedy of petitioner’s APA claim was

available. Pet. App. 23a-24a.

Petitioner filed a notice of appeal on Friday, August

2, 2024. On Tuesday, August 6, 2024, Defendants’ counsel

emailed petitioner’s counsel a notice that petitioner’s I601A application for an unlawful presence waiver had

been approved the previous day, Monday, August 5.

3. The Second Circuit dismissed the appeal in a

summary order holding that the agency’s action rendered

the appeal nonjusticiable. Pet. App. 1a-9a.

The court held that petitioner no longer had a “legally

cognizable interest in the outcome” because the

government had taken the action he sought to compel.

7

Pet. App. 4a (quoting Already, LLC v. Nike, Inc., 568 U.S.

85, 91 (2013)).1

The court rejected petitioner’s reliance on various

recognized exceptions to mootness. Pet. App. 4a-6a, 7a.

The court rejected petitioner’s argument that this case

falls

within

the

voluntary-cessation

doctrine.

Pet. App. 4a-6a. It held that petitioner had not shown a

reasonable likelihood that the government would again

delay adjudication of an I-601A application, reasoning

that petitioner’s application was no longer pending and

that any future delay would depend on a speculative chain

of events. Pet. App. 5a-7a.

The court also rejected petitioner’s argument that the

case fell within the “capable of repetition, yet evading

review” exception to mootness, holding that petitioner

lacked a reasonable expectation of being subjected to the

same challenged conduct again. Pet. App. 7a-8a. It

additionally held that petitioner’s potential eligibility for

attorney’s fees under the Equal Access to Justice Act

could not preserve Article III jurisdiction. Pet. App. 7a.

In his briefing, petitioner argued that “the Court

should recognize a new exception to mootness for

unreasonable delay claims.” Court of Appeals Reply Brief

at 1, Dkt. 73.1; see also id. at 10-11. The court did not

specifically address the argument, but stated that the

The court erroneously stated that petitioner “[did] not dispute

that his unreasonable delay claim was mooted when the Government

granted his then-pending I-601A waiver." Pet. App. 4a. In fact

petitioner strenuously maintained in his briefing that “the case is

not moot.” Court of Appeals Reply Brief at 1, Dkt. 73.1 (emphasis in

original); id. at 4 n.2. And later in its order, the court rejected

petitioner’s argument that petitioner “continues to suffer . . .

adverse effects from the length of time taken by USCIS to approve

his application,” Pet. App. 6a, and has a vested interest in future

EAJA fees, Pet. App. 7a.

1

8

court had “considered [petitioner’s] remaining arguments

and [found] them to be unpersuasive.” Pet. App. 7a.

The court thus dismissed the appeal as moot, vacated

the district court’s judgment, and remanded with

instructions to dismiss the complaint for lack of subjectmatter jurisdiction. Pet. App. 8a-9a.

The Second Circuit denied a timely petition for

rehearing and rehearing en banc.

REASONS FOR GRANTING THE PETITION

This Court should grant the petition to resolve two

recurring, exceptionally important questions that

together have made the APA’s unreasonable-delay

remedy largely illusory.

First, the decision below holds that the United States

may unilaterally defeat Article III review of an APA

§ 706(1) unreasonable-delay claim—at any stage,

including on appeal—simply by taking the delayed action

after years of inaction, thereby ensuring that the legality

of the delay never receives appellate review. That

justiciability rule invites strategic mooting, frustrates

uniform enforcement of § 706(1), and leaves regulated

parties without a meaningful judicial check on unlawful

agency inaction.

Second, the petition squarely presents the governing

merits standard for “unreasonably delayed” agency

action: whether courts should continue to apply the TRAC

framework—which, as applied by most courts, elevates

agency backlog and “competing priorities” into neardispositive defenses—or instead apply the APA’s

statutory reasonableness standard as Congress wrote it.

Both questions are exceptionally important,

frequently recurring across the federal government, and

cleanly presented here in the prototypical posture in

which they otherwise evade review.

9

I.

THE JUSTICIABILITY QUESTION WARRANTS THIS

COURT’S REVIEW

This case cleanly presents a recurring jurisdictional

question that has become a structural obstacle to the

enforcement of 5 U.S.C. § 706(1): whether the United

States may defeat appellate review of an unreasonabledelay claim simply by taking the delayed action after the

plaintiff has litigated for years and after an appeal is

underway. The Second Circuit held that it can.

Pet. App. 4a-9a. That rule allows the Government to run

out the clock on judicial review of unlawful delay while

insulating both the legality of the delay and the governing

standard for judging it from meaningful appellate

scrutiny.

This Court should grant review because that

justiciability rule systematically prevents the merits

question presented here—whether Telecommunications

Research & Action Center v. FCC (TRAC) properly

implements

§ 706(1)’s

“unreasonably

delayed”

standard—from ever reaching this Court. As petitioner

explained below, the ordinary timeline of unreasonabledelay litigation enables the Government to moot appeals

as a matter of course by acting belatedly once review is

imminent. The Second Circuit’s decision confirms that

practice and leaves plaintiffs without any means of

obtaining authoritative review of whether prolonged

agency inaction violated the APA.

History, doctrine, and structure all confirm that

Article III permits judicial resolution of cases in this

posture. And prudence—together with the APA’s evident

design—strongly favors holding that unreasonable-delay

claims remain justiciable when the Government acts only

after appellate review is underway.

10

A.

History and Tradition Show that Article III

Permits Judicial Review in this Posture

From its origins, the mootness doctrine has never

operated as an absolute constitutional bar to the

adjudication of cases that were live when initiated. As

Chief Justice Rehnquist explained, the connection

between mootness and Article III’s case-or-controversy

requirement is “attenuated,” and the Court’s reluctance

to decide technically moot cases has historically rested on

prudential judgments rather than constitutional

compulsion. Honig v. Doe, 484 U.S. 305, 331 (1988)

(Rehnquist, C.J., concurring).

Early mootness decisions did not purport to derive

the doctrine from Article III at all. And the Court’s later

recognition of exceptions—most notably for cases

“capable of repetition, yet evading review”—would be

“incomprehensible” if Article III itself imposed a rigid

requirement that a plaintiff retain a live personal stake at

every stage of appellate review. Id. at 330-31 (discussing

Mills v. Green, 159 U.S. 651 (1895), and Southern Pacific

Terminal Co. v. ICC, 219 U.S. 498 (1911)). As Chief

Justice Rehnquist observed, the very existence of those

exceptions confirms that mootness doctrine is not dictated

by the constitutional text. Id. at 330.

Historical practice confirms that understanding. For

more than a century, federal courts treated mootness as a

discretionary doctrine grounded in instrumental concerns

rather than constitutional limitation. See Matthew I. Hall,

The Partially Prudential Doctrine of Mootness, 77 Geo.

Wash. L. Rev. 562, 569-71 (2009). Nineteenth-century

decisions dismissing moot cases did not suggest a lack of

judicial power; instead, they employed discretionary

language focused on conserving judicial resources,

preserving institutional authority, ensuring genuine

adversity, and avoiding collusive litigation. Id. Only in the

mid-twentieth century did the Court begin to describe

11

mootness as a constitutional requirement—and it did so

without identifying any supporting authority in Article

III’s text or original understanding. Id. at 571-72.

That history matters here. Where intervening events

eliminate only the plaintiff’s immediate interest in

prospective relief, but leave a concrete, adversarial

dispute over the legality of completed government

conduct, Article III permits adjudication. The

Constitution requires a live controversy capable of

judicial resolution—not the continued availability of

coercive relief in every case.

That principle applies directly here. Although the

Government’s belated action eliminated petitioner’s need

for the adjudication he sought, it did not extinguish the

live controversy over whether the Government violated

the APA by unreasonably delaying that adjudication.

Petitioner continues to allege that the delay was unlawful;

the Government continues to deny it. A declaratory

judgment resolving that dispute would not be advisory. It

would be a binding adjudication of legality based on a

completed course of conduct, with concrete legal

consequences for both parties. An adjudication of delay

has collateral consequences for petitioner and numerous

other individuals subject to the same unlawful delay.

Under settled history and doctrine, Article III poses

no obstacle to judicial review in this posture.

B. Prudence and Presumed Legislative Intent Favor

Finding Justiciability In This Posture

The absence of any Article III constraint means that

the relevant question is whether federal courts should

adjudicate unreasonable-delay claims when the

Government acts only after appellate review is underway.

Prudence and presumed legislative intent point decisively

in favor of doing so.

12

Congress enacted the APA against the backdrop of

widespread concern that agency inaction could inflict

harms as serious as unlawful agency action. Section 706(1)

therefore directs courts to “compel agency action

unlawfully withheld or unreasonably delayed,” and

§ 555(b) independently commands agencies to “conclude a

matter presented to it” “within a reasonable time.” Those

provisions reflect a considered legislative judgment that

delay itself is a form of legal injury subject to judicial

correction. They also presuppose meaningful judicial

review—not merely at the threshold, but through the

ordinary appellate process by which federal law is

authoritatively interpreted.

Allowing the Government to defeat appellate review

by acting belatedly once an appeal is filed undermines

that design. If post-appeal compliance automatically

extinguishes jurisdiction, § 706(1) becomes enforceable

only at the sufferance of the very agencies it was meant to

constrain. Agencies may delay for years, litigate in the

district court, and then—once review threatens to

produce precedent—moot the appeal by finally acting.

Nothing in the APA suggests that Congress intended to

vest agencies with that unilateral power to insulate their

delays from appellate scrutiny.

To the contrary, the APA’s structure confirms that

Congress expected courts to adjudicate the legality of

agency delay even after the delayed action is complete.

Section 706(1) is not limited to prospective relief. It

authorizes courts to determine whether action was

“unlawfully withheld or unreasonably delayed”—a legal

determination that often can be made only after the

agency has acted and the full duration of the delay is

known. Treating belated compliance as jurisdictiondestroying therefore frustrates, rather than effectuates,

the statute’s operation.

13

Prudential considerations reinforce that conclusion.

First, refusing to adjudicate cases in this posture invites

strategic manipulation of appellate jurisdiction. The

Government alone controls the timing of agency action. A

rule that allows post-appeal compliance to moot the case

rewards delay and encourages agencies to time

compliance so as to avoid appellate review. Courts have

long been wary of doctrines that permit a prevailing party

to unilaterally destroy federal jurisdiction in order to

prevent authoritative resolution of legal questions. That

concern applies with particular force here, where the

Government’s conduct is both the subject of the suit and

the mechanism by which review is defeated.

Second, declining review in these cases squanders

judicial resources and destabilizes the law. Unreasonabledelay cases often require years of litigation to reach the

appellate stage. When appeals are dismissed as moot and

district court judgments are vacated, the governing legal

standard remains unsettled, and identical issues recur

without resolution. As Chief Justice Rehnquist observed,

once substantial judicial resources have been expended

and the Court has undertaken review, rigid adherence to

mootness doctrine can be more wasteful than frugal.

Honig, 484 U.S. at 332 (Rehnquist, C.J., concurring).

Congress could not have intended § 706(1) to operate in a

way that systematically prevents the development of

appellate precedent.

Third, holding these cases justiciable aligns with the

APA’s core purpose of ensuring uniform, law-bound

administration across the federal government. Section

706(1) applies to all agencies and all forms of legally

required action. If appellate courts are routinely barred

from reviewing whether delays were unlawful, the

meaning of “unreasonably delayed” will continue to vary

across circuits, shaped by fact-specific dismissals rather

than by appellate guidance. That fragmentation is

14

incompatible with the APA’s role as a unifying framework

for administrative law.

Finally, adjudicating these cases poses no separationof-powers concern. Courts need not supervise agency

dockets or dictate priorities to decide whether a

completed delay violated the law. They need only do what

the APA directs: determine whether the time the agency

took exceeded what reason permits under the

circumstances. Any equitable considerations about how to

remedy delay—or how relief might affect third parties—

can be addressed at the remedial stage. They do not

justify refusing to decide whether the statute was violated

in the first place.

In short, prudence and congressional design point in

the same direction. The APA reflects a deliberate choice

to make unreasonable agency delay judicially reviewable.

That choice would be hollow if agencies could defeat

appellate review simply by acting at the last possible

moment. The Court should grant certiorari and hold

unreasonable-delay claims justiciable when the

Government’s belated compliance occurs only after

appellate review is underway.

II. THE MERITS QUESTION ALSO WARRANTS THE

COURT’S REVIEW

The Court should also grant review to determine the

appropriate test for adjudicating claims of unreasonable

delay under 5 U.S.C. § 706(1). For decades, courts

adjudicating claims of agency delay under the APA have

relied

on

a

six-factor

test

derived

from

Telecommunications Research & Action Center v. FCC,

750 F.2d 70 (D.C. Cir. 1984). TRAC involved a petition for

a writ of mandamus, yet its framework has come to

dominate litigation under 5 U.S.C. § 706(1), which

commands courts to “compel agency action . . .

unreasonably delayed.” The TRAC test transforms that

15

statutory inquiry. It elevates the basic threshold for relief

far above what Congress prescribed and directs courts to

balance a set of extratextual considerations that do not

bear on whether a particular delay is unreasonable. That

mandamus-derived approach, untethered to the language

Congress enacted, has displaced § 706(1) in the lower

courts.

TRAC’s effects are not confined to any one agency or

regulatory context: from individuals seeking immigration

relief to businesses awaiting regulatory approvals or

trying to vindicate their property rights, TRAC has

become a pervasive obstacle to obtaining relief from

prolonged

administrative

inaction.

See,

e.g.,

Independence Mining Co. v. Babbitt, 105 F.3d 502 (9th

Cir. 1997) (delay in adjudicating mineral patent claims);

Stenson Tamaddon, LLC v. United States Internal

Revenue Serv., 742 F. Supp. 3d 966, 997 (D. Ariz. 2024)

(delay in processing refunds for Employee Retention Tax

Credit).

As commentators have recognized,2 the TRAC test is

fundamentally flawed in several respects. At the

threshold, it raises the bar for relief far above what

Congress specified in the APA by asking whether delay is

“egregious” rather than whether it is “unreasonable.”

That alone sharply narrows the category of cases in which

§ 706(1) can provide relief as Congress intended. TRAC

then compounds that error by distorting what counts as

“unreasonable” delay in two ways. First, it measures

E.g., Aram A. Gavoor & Steven A. Platt, Agency Delay and the

Courts, 77 Admin. L. Rev. 761, 825-29 (2025); Sant’Ambrogio,

Agency Delays: How a Principal-Agent Approach Can Inform

Judicial and Executive Branch Review of Agency Foot-Dragging,

79 Geo. Wash. L. Rev. 1381, 1411-14 (2011); see also Marisa

Sylvester, Note, Compelling Compliance: Disciplining Agencies

Through Statutory Deadlines, 47 Harv. J.L. Pub. Pol’y 265, 274

(2024).

2

16

delay against the agency’s existing practice rather than

against any objective or external standard, allowing

systemic slowness to justify itself. Second, it instructs

courts to credit the agency’s asserted “competing

priorities,” even though such considerations are

irrelevant to whether a particular delay is unreasonable.

In practice, the priorities invoked are often nothing more

than the agency’s accumulated delays in similar matters,

so that delay in one case is excused by delay in others. The

result is to invert § 706(1): the more an agency delays

across the board, the harder it becomes to show that any

single delay is unlawful.

In short, TRAC substitutes a judge-made framework

for the statutory standard Congress enacted in § 706(1).

See Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 313

(2025) (Thomas, J., concurring) (“Judge-made doctrines

have a tendency to distort the underlying statutory text,

impose unnecessary burdens on litigants, and cause

confusion for courts.”). This Court’s review is warranted

to determine whether § 706(1) means what it says, or

whether unreasonable-delay claims may continue to be

adjudicated under a mandamus-based test that raises the

bar for relief and excuses prolonged inaction.

A.

TRAC Replaces the APA’s Reasonableness

Standard with an Atextual “Egregiousness”

Requirement

The APA establishes a single, familiar threshold for

relief: whether agency action has been unreasonably

delayed. Section 706(1) commands courts to “compel

agency action . . . unreasonably delayed,” and § 555(b)

correspondingly directs an agency to “conclude a matter

presented to it” “within a reasonable time.” Those

provisions leave no gap for courts to fill and no heightened

showing to invent. Yet TRAC supplants that statutory

threshold by demanding that delay be “egregious” before

17

judicial relief is available—a requirement drawn from

mandamus doctrine rather than from the APA itself. By

elevating the standard in this way, TRAC rewrites the

statute’s operative term and transforms a legal command

into a rarely available form of relief.

The difference between those standards is not

semantic. “Unreasonable” is an ordinary, workaday term

that calls for an objective assessment of whether the time

taken exceeds what reason permits under the

circumstances—a meaning it has carried consistently

since the APA’s enactment in 1946. See Forkosch, A

Treatise on Administrative Law § 318, at 643 (1956)

(noting that “unreasonable” “is most commonly used by

lawyers and judges as a qualifying adjective in such

expressions as ‘unreasonable delay,’ . . . in which sense it

means

‘more than fair and proper under the

circumstances’ ” (citation omitted)). “Egregious,” by

contrast, denotes conduct that stands apart in degree or

severity. See SEC v. Almagarby, 92 F.4th 1306, 1324 (11th

Cir. 2024). Congress chose the former and nowhere hinted

at the latter. Nothing in § 706(1)’s text, structure, or

history suggests that courts may compel agency action

only in the most extreme cases of delay. To the contrary,

by pairing § 706(1) with § 555(b)’s command that agencies

act “within a reasonable time,” the APA confirms that

relief turns on reasonableness, not on whether the

agency’s failure to act shocks the conscience. See H.R.

Rep. No. 79-1980, at 32, 41 (1946) (“[Title 5 U.S.C.

§ 555(b)] means that no agency shall ... proceed in dilatory

fashion to the injury of the persons concerned. No agency

should permit any person to suffer injurious

consequences of unwarranted official delay.”); S. Rep. No.

79-752, at 25 (1945).

The APA provides no basis for importing mandamus

doctrine to supply a higher threshold for relief. See South

18

Carolina v. United States, 907 F.3d 742, 755-58 & n.10

(4th Cir. 2018) (“The APA neither incorporates nor

alludes to the mandamus writ, nor does it admit to any

ambiguity.”). Before 1946, litigants seeking to force

agency action were often required to proceed by writ of

mandamus, e.g., Safeway Stores v. Brown, 138 F.2d 278,

280 (Emer. Ct. App. 1943) (per curiam), an extraordinary

remedy available only in narrow circumstances, Cheney v.

U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380

(2004). Congress consciously departed from that regime

in the APA, replacing discretionary writ practice with

statutory judicial review governed by defined legal

standards. Section 706(1) commands courts to compel

unlawfully withheld or unreasonably delayed agency

action as a matter of ordinary judicial review, not as an act

of extraordinary discretion. Had Congress intended to

condition relief on a showing of “egregious” misconduct, it

knew how to do so. Instead, it adopted a reasonableness

standard, confirming that relief for delay was meant to be

available whenever an agency exceeds sensible bounds,

not only in the most extreme cases. “The text of the APA

means what it says.” Loper Bright Enters. v. Raimondo,

603 U.S. 369, 393 (2024).

That reading also accords with the APA’s broader

structure. Review for “arbitrary” or “capricious” action

under § 706(2) turns on whether the agency’s decision

making falls within the bounds of reason, not on whether

it is exceptionally bad. See FCC v. Prometheus Radio

Project, 592 U.S. 414, 423 (2021) (“The APA’s arbitraryand-capricious standard requires that agency action be

reasonable and reasonably explained.”). Its sister

provision, § 706(1), operates in parallel fashion: it asks

whether delay has exceeded what reason permits in light

of the action the agency is required to take under the

circumstances. See Coit Indep. Joint Venture v. Fed. Sav.

19

& Loan Ins. Corp., 489 U.S. 561, 590 (1989) (Scalia, J.,

concurring in part) (“[P]articular agency action becomes

arbitrary and capricious when it is too long delayed,

wherefore the Administrative Procedure Act instructs

reviewing courts to ‘compel agency action . . .

unreasonably delayed.’ ” (quoting 5 U.S.C. § 706(1)));

Daniel E. Walters, Symmetry’s Mandate: Constraining

the Politicization of American Administrative Law, 119

Mich. L. Rev. 455, 480 (2020). Courts are neither

instructed nor authorized to dilute either inquiry by

requiring a showing of extraordinary misconduct. See

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514

(2009) (rejecting an argument for a “heightened

standard” in the context of arbitrary-and-capricious

review that lacked a basis in the APA’s text); Perez v.

Mortg. Bankers Ass’n, 575 U.S. 92, 100-01 (2015); Little

Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 591 U.S. 657, 685 (2020). By converting a

familiar reasonableness standard into a demanding,

mandamus-like hurdle, TRAC departs not only from

§ 706(1)’s text, but from the APA’s design as a whole.

Finally, giving “unreasonable” its plain meaning

furthers the APA’s purpose. Sections 555(b) and 706(1)

were enacted to expedite agency action, as embodied in

the former’s original language: “Every agency shall

proceed with reasonable dispatch to conclude any matter

presented to it except that due regard shall be had for the

convenience and necessity of the parties.” Pub. L. 79-404,

§ 6(a), 60 Stat. 237, 240 (1946).3 Celerity is the baseline,

and agencies are to move slower only for the convenience

of the regulated parties. This vindicates Congress’s and

the public’s longstanding interest in prompt agency

Congress emphasized that no substantive changes were intended

by the rephrasing in the 1966 recodification. H.R. Rep. No. 89-901,

at 1-4, 13 (1965); S. Rep. No. 89-1380, at 18-21, 29 (1966).

3

20

action. See 89 Cong. Rec. app. at 2151 (1940) (remarks of

Rep. Walter) (citation omitted) (“The maxim that ‘justice

delayed is justice denied’ applies with special force in the

vast American bureaucracy.”); 92 Cong. Rec. 5657 (1946)

(remarks of Rep. Springer) (explaining that 5 U.S.C.

§ 706(1) was intended “to hasten action on the part of

these agencies”); H.R. Rep. No. 79-1980, at 44; S. Rep. No.

79-752, at 28. Elevating the standard for relief from

unreasonable agency delay therefore thwarts Congress’s

purpose in enacting these provisions of the APA.

B. TRAC Defines “Unreasonable Delay” by Treating

Agency Practice as the Benchmark

TRAC fundamentally distorts the unreasonabledelay inquiry by measuring delay against the agency’s

own pace of decision making rather than any objective or

external standard of reasonableness. Instead of asking

whether the time an agency has taken to perform a legally

required action exceeds what reason permits under the

circumstances, TRAC asks whether the agency is

following some minimally coherent process or “rule of

reason.” Under that approach, delay is no longer

evaluated on its own terms; it is judged by reference to

how slowly the agency typically operates. So long as the

agency can gesture to a general procedure governing its

conduct—no matter how slow—prolonged inaction is

treated as reasonable simply because it reflects the

agency’s usual pace. That mode of analysis does not

merely respect agency autonomy; it effectively

substitutes deference to agency procedure for the judicial

determination the statute requires. See, e.g., Cutler v.

Hayes, 818 F.2d 879, 896 (D.C. Cir. 1987) (“Any discussion

of the standards relevant to the issue of delay must begin

with recognition that an administrative agency is entitled

to considerable deference in establishing a timetable for

completing its proceedings.”); Am. Auto. Mfrs. Ass’n v.

21

Mass. Dep’t of Env’t Prot., 163 F.3d 74, 82 n.9 (1st Cir.

1998) (“[The D.C. Circuit] set forth a six-part test for

determining whether agency action has been

unreasonably delayed that is very deferential to

administrative agencies.”); Oil, Chem. & Atomic Workers

Union v. OSHA, 145 F.3d 120, 123 (3d Cir. 1998); see also

Howard I. Rubin, Judicial Review of Agency Delay: The

District of Columbia Moves Towards a More Deferential

Standard—A Survey of Recent Cases, 3 Admin. L.J. 725,

744 (1989) (explaining that the D.C. Circuit has “clearly

indicated that deference to agency discretion is the

paramount factor in unreasonable delay cases”);

Interstate Nat. Gas Ass’n of Am. v. FERC, 285 F.3d 18,

57 (D.C. Cir. 2002) (“Our review is highly deferential.”).

Under TRAC’s “rule of reason,” the agency’s own

pace becomes the benchmark for legality. In applying that

concept, courts typically look to the agency’s general

practices for handling cases of the same type as the

plaintiff’s and measure delay against how those cases are

ordinarily processed. See, e.g., Palakuru v. Renaud, 521

F. Supp. 3d 46, 50-51 (D.D.C. 2021); Ctr. for Sci. in the

Pub. Interest v. FDA, 74 F. Supp. 3d 295, 300-01 (D.D.C.

2014); Hulli v. Mayorkas, 549 F. Supp. 3d 95, 100 (D.D.C.

2021); Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105,

116 (D.D.C. 2005); see also Ramirez v. Blinken, 594 F.

Supp. 3d 76, 92 (D.D.C. 2022) (“[T]he Manila Embassy is

failing to follow the stated priorities of the Department,

which provide the applicable rule of reason.” (emphasis

added)). Those practices are not just part of the analysis;

they do the work of the analysis. The question becomes

whether the delay fits within the agency’s normal way of

doing things, not whether the agency has objectively

taken longer than reason permits to do what the law

requires, leaving courts with no independent role in

judging whether statutory limits have been exceeded.

22

That approach makes agency delay self-justifying.

When reasonableness is defined by reference to an

agency’s ordinary pace, systemic slowness ceases to be a

problem and instead becomes the answer. Delays that

would otherwise be excessive are normalized simply

because they are widespread. As backlogs grow, they

recalibrate the baseline against which new delays are

judged, ensuring that what once would have been

unreasonable is now treated as routine. E.g., Palakuru,

521 F. Supp. 3d at 52 n.7 (explaining that plaintiff’s

citation to other cases where courts held similar-length

delays unreasonable “merely show that others waiting for

immigration benefits face similar delays and thus

reinforce the determination that Plaintiff has not stated a

claim of unreasonable delay”). The unreasonable-delay

inquiry thus collapses into a tautology: delay is reasonable

because the agency delays. Section 706(1), however, calls

for a different judgment—one that asks whether the

agency has taken too long, not whether it has taken as

long as it usually does. That inquiry requires an objective

legal determination by the court, not reflexive acceptance

of the agency’s chosen pace.

That transformation also alters the role of the courts

in a way the APA does not contemplate. Proper

application of § 706(1) would not require courts to manage

agency dockets, dictate internal procedures, or otherwise

intrude into agency administration. It would instead

require courts to do something more limited and familiar:

decide whether the time an agency has taken to perform

a legally required act exceeds what the statute allows.

TRAC prevents courts from performing that function. By

defining reasonableness by reference to agency practice,

it substitutes acceptance of the agency’s chosen pace for

an independent judicial judgment. Judicial review thus

becomes largely observational rather than evaluative.

23

Courts do not decide whether delay is too long; they

confirm that it is typical. What emerges is not judicial

intrusion into Article I administration, but judicial

abdication of the Article III role Congress assigned—

making an independent, objective legal determination of

what the statute permits.

C.

TRAC Improperly Treats Agency “Competing

Priorities” as a Justification for Delay

TRAC further distorts § 706(1) by instructing courts

to consider an agency’s asserted “competing priorities” in

determining

whether

delay

is

unreasonable.

Reasonableness under the APA is an objective legal

standard; it does not turn on the defendant’s internal

preferences about how to allocate its time. In analogous

contexts—most

notably

arbitrary-and-capricious

review—courts do not excuse unlawful agency action on

the ground that the agency had other matters it regarded

as more important. An agency may not defend an

inadequately reasoned rule, or a failure to consider

relevant factors, by explaining that it was busy elsewhere.

Nor do courts withhold remedies for unlawful affirmative

agency action on the ground that compliance would

interfere with the agency’s priorities or strain its limited

resources. Yet TRAC imports precisely that kind of

equitable balancing from mandamus doctrine into

§ 706(1)’s statutory inquiry. The result is not merely a

misplaced consideration, but a self-perpetuating one:

agencies may point to delays in other cases as “competing

priorities,” allowing accumulated inaction to justify

further inaction and leaving the slowest agencies the most

insulated from judicial review.

Courts applying the APA generally do not treat an

agency’s internal priorities as a defense to statutory

noncompliance. When an agency takes affirmative action,

it cannot justify a legally deficient rule or order by

24

explaining that it had other pressing matters, or that it

chose to devote limited resources elsewhere. See, e.g.,

Wisconsin v. EPA, 938 F.3d 303, 319 (D.C. Cir. 2019) (per

curiam) (“An agency cannot ‘shirk[ ] its duties by reason

of mere difficulty or inconvenience.’ ” (citation omitted));

Salameda v. INS, 70 F.3d 447, 452 (7th Cir. 1995) (Posner,

C.J.) (“[U]nderstaffing is not a defense to a violation of

principles of administrative law admitted to bind the

Immigration and Naturalization Service.”). “An agency

confronting resource constraints may change its own

conduct, but it cannot change the law.” Util. Air Regul.

Grp. v. EPA, 573 U.S. 302, 327 (2014); see also Judulang

v. Holder, 565 U.S. 42, 63-64 (2011) (“Cost is an important

factor for agencies to consider in many contexts. But

cheapness alone cannot save an arbitrary agency policy.”).

Similarly, when a court remedies unlawful agency action,

it does not ask whether ordering compliance will disrupt

the agency’s preferred allocation of time or personnel. See

Sant’Ambrogio, supra, at 1429; Walters, supra, at 506-07;

see also Caswell v. Califano, 583 F.2d 9, 17 (1st Cir. 1978)

(“[T]he vindication of almost every legal right has an

impact on the allocation of scarce resources.”). Indeed, in

challenges to affirmative agency action, a single plaintiff

may obtain vacatur of a nationally applicable rule—

forcing the agency to reopen or restart costly and timeconsuming notice-and-comment proceedings—yet the

agency may not defend the unlawful rule by invoking its

priorities, workload, or limited resources.

The same principle applies when the agency fails to

act. Section 706(1) asks whether required action has been

unreasonably delayed—not whether the agency had

reasons, from its own perspective, for putting the matter

off. Allowing “competing priorities” to carry weight in the

unreasonable-delay

analysis

converts

a

“legal

requirement,” S. Rep. No. 79-752, at 19, into a

25

discretionary one, turning the statutory question—

whether the agency has taken too long—into a managerial

inquiry about how the agency has chosen to run its docket.

Once “competing priorities” are treated as relevant,

delay becomes unusually easy for an agency to defend. An

agency can almost always point to other matters awaiting

attention, particularly where it faces a backlog of similar

cases. Under TRAC, those other delays are not treated as

evidence that the agency is failing to meet its obligations,

but as reasons to excuse further inaction. E.g., Skalka v.

Kelly, 246 F. Supp. 2d 147, 153 (D.D.C. 2017) (“Where the

agency action sought is one of many similar adjudications

that the agency must complete, the court should be even

more cautious before intervening.”). The inquiry thus

allows an agency’s delays elsewhere to serve as a defense

to delay in the case before the court. As a practical matter,

this approach rewards systemic sluggishness: the more

widespread the delay, the stronger the agency’s claim

that it has other priorities to address. Over time, the

slowest agencies become the least vulnerable to

unreasonable-delay claims, while § 706(1)’s role as a check

on prolonged inaction steadily erodes.

This problem is not accidental; it flows directly from

TRAC’s roots in mandamus doctrine. In mandamus,

courts traditionally weigh equitable considerations,

including the effect of relief on third parties and the

burden it may place on the defendant. See South

Carolina, 907 F.3d at 755 (“Well-established practice and

controlling precedent both confirm that equitable

discretion inheres in the issuance of a writ of

mandamus.”). That mode of analysis makes sense where

the writ is extraordinary and relief is discretionary. See

In re Barr Lab’ys, Inc., 930 F.2d 72, 74 (D.C. Cir. 1991)

(“Equitable relief, particularly mandamus, does not

necessarily follow a finding of a violation: respect for the

26

autonomy and comparative institutional advantage of the

executive branch has traditionally made courts slow to

assume command over an agency’s choice of priorities.”).

Section 706(1), however, is different. It reflects

Congress’s judgment that certain agency obligations are

mandatory and enforceable as a matter of law, subject

only to an objective inquiry into reasonableness. By

importing mandamus-style balancing into that statutory

framework, TRAC collapses the distinction between

discretionary equitable relief and enforcement of legal

duty. Competing priorities thus become a proxy for

discretion that the statute does not confer, allowing

agencies to resist compliance with § 706(1) by invoking

considerations that would be irrelevant if the same agency

conduct were challenged as unlawful action rather than

unlawful delay.

In the end, TRAC’s focus on competing priorities

diverts the unreasonable-delay inquiry away from the

question the statute asks. Section 706(1) is concerned with

whether the agency has taken too long to perform a

required act—not with the downstream consequences of

compelling compliance, or with how the agency might

prefer to allocate its resources going forward. Those

considerations may bear on the form of relief, but they do

not bear on whether a legal violation has occurred. By

treating them as part of the liability inquiry, TRAC allows

delay to be justified by reference to the very conditions

the statute was meant to correct. The APA does not

condition compliance on an agency’s workload, nor does it

permit systemic delay to excuse individual violations. See

Caswell, 583 F.2d at 17 (“[C]ourts . . . can hardly permit

the legal rights of litigants to turn upon alleged inability

of the defendant fully to meet his obligations to others.”).

An unreasonable delay remains unreasonable even if it is

widespread. See Jefrey v. INS, 710 F. Supp. 486, 488

27

(S.D.N.Y. 1989) (“ ‘Not unusual’ does not necessarily

mean ‘reasonable.’ ”).

⁂

Together, these defects show that TRAC is not a

permissible interpretation of § 706(1), but a wholesale

replacement of the standard Congress enacted. By

elevating the threshold for relief, redefining

reasonableness by reference to agency practice, and

excusing delay based on competing priorities, TRAC has

reshaped unreasonable-delay doctrine in ways the APA

does not support. Whether courts may continue to

adjudicate § 706(1) claims under that mandamus-derived

framework is a recurring and important question of

administrative law that warrants this Court’s review.

III. THE QUESTIONS PRESENTED ARE IMPORTANT AND

WARRANT REVIEW IN THIS CASE

The questions presented are indisputably important.

Unreasonable agency delay affects not just isolated

litigants, but thousands of individuals and entities whose

legal rights, economic livelihoods, and personal welfare

depend on timely government action. Immigration

adjudications, environmental permits, infrastructure

approvals, benefits determinations, licensing regimes,

and regulatory clearances across the federal government

all turn on agency action that, if delayed, can impose costs

as severe as unlawful action itself. Workers cannot

lawfully work, families cannot reunite, businesses cannot

operate or expand, and critical public and private projects

cannot proceed while applications, petitions, and

approvals languish unresolved. In a highly regulated

economy, delay is not a neutral administrative choice; it is

a substantive regulatory decision with immediate and

often irreversible consequences. Congress enacted 5

U.S.C. §§ 555(b) and 706(1) precisely to prevent those

28

harms by ensuring that agencies act within a reasonable

time. Whether those statutory protections remain

meaningfully enforceable—or are instead displaced by a

deferential, mandamus-derived framework that excuses

prolonged inaction—implicates virtually every dimension

of the United States economy and the daily lives of

countless people subject to federal regulation.

This case is also an excellent vehicle for resolving

both questions presented. The justiciability issue is

cleanly teed up: the agency acted only after petitioner

noticed his appeal, the court of appeals dismissed the case

as moot, and no factual disputes complicate review. The

merits issue is equally clear. The district court applied

TRAC to dismiss petitioner’s § 706(1) claim as premature

despite a multi-year delay, and the court of appeals

vacated without reaching the statutory question. The

record is complete, the legal issues are squarely

presented, and the posture illustrates precisely how

unreasonable-delay claims evade appellate review under

existing doctrine. There are no jurisdictional obstacles

beyond the mootness ruling challenged here, no

alternative grounds supporting the judgment below, and

no need for further factual development. If the Court

wishes to clarify both the justiciability of § 706(1) claims

and the proper standard for adjudicating them, this case

presents a clean and representative opportunity to do so.

29

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ANDREW T. TUTT

Counsel of Record

SAMUEL F. CALLAHAN

SAMUEL I. FERENC

SPENCER J. FABER

ERNESTO M. HERNANDEZ

JENNIFER F. KAPLAN

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

FEBRUARY 2026