Administrative Agencies and Claims of Unreasonable Delay: Analysis of Court Treatment

Congressional research reportMar 21, 2013

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Administrative Agencies and Claims of

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Administrative Agencies and Claims of Unreasonable Delay

Summary

One common concern about federal agencies is the speed with which they are able to issue and

implement regulations. Federal regulatory schemes can be quite complex, and establishing rules

and completing adjudications can sometimes require substantial agency resources and significant

amounts of time. However, critics point out that sometimes an agency can simply take too long to

a complete task. Commentators and courts have noted that such agency delay can impact the

effectiveness of a regulatory scheme. It can also impact regulated entities that must wait for final

agency action. In some circumstances, a court may have to determine whether an agency has

violated the law by unreasonable delay in taking action. Substantial case law has emerged for

how courts will treat agency delay in a variety of circumstances.

Under the Administrative Procedure Act (APA), agency actions must be completed “within a

reasonable time.” Courts have jurisdiction under the APA to hear claims brought against an

agency for unreasonable delay, and the APA provides that courts shall compel any action

unreasonably delayed or unlawfully withheld.

When an agency has delayed, but does not have to act by any statutorily imposed deadline, courts

are more deferential to the agency’s priorities and are less willing to compel an agency to take

action. However, if a delay becomes egregious, courts will compel an agency to take prompt

action. Generally, courts follow the TRAC factors, from Telecommunications Research & Action

Center v. FCC, to determine whether a delay is unreasonable. The court will see if Congress has

established any indication for how quickly the agency should proceed; determine whether a

danger to human health is implicated by the delay; consider the agency’s competing priorities;

evaluate the interests prejudiced by the delay; and determine whether the agency has treated the

complaining party disparately from others. A court balances these TRAC factors to reach a

conclusion on a case-by-case basis. It can be difficult to predict which way a court will decide

any particular case. There is no strict rule on how long is too long to wait for an agency action.

Therefore, it is important to look at previous cases to see what kinds of delays are determined to

be unreasonable.

In addition to the APA’s general requirement to act within a reasonable time, Congress may also

establish specific deadlines for agency actions by statute. When an agency fails to meet a

statutory deadline, courts generally compel the agency to take prompt action. Some courts have

determined that a court has no choice but to compel agency action in the face of a missed

statutory deadline. For these courts, no balancing is permitted when a deadline has been violated.

However, other courts note that a statutory deadline is merely one of the factors to consider when

determining whether the delay is unreasonable. For these courts, the TRAC factors are still

evaluated to determine whether the court should compel the agency to act after a deadline has

been missed.

Judicial remedies for delayed agency actions are somewhat limited. The Supreme Court has ruled

that a court is permitted to compel an agency to take action, but cannot determine what

conclusion the agency shall ultimately reach on the issue. Furthermore, the Supreme Court has

also established that agency rules still maintain the force of law, even when they are promulgated

after a statutory deadline. Therefore, a court’s only remedy for unreasonable agency delay is

essentially to impose a deadline on the agency.

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Contents

Introduction...................................................................................................................................... 1

Administrative Procedure Act (APA) .............................................................................................. 1

Remedies for Unreasonably Delayed Actions ................................................................................. 2

Compelling Actions Unreasonably Delayed with No Statutory Deadlines ..................................... 3

Delay in Adjudication Proceedings with No Statutory Deadline .............................................. 4

Delay in Rulemaking Proceedings with No Statutory Deadline................................................ 6

Compelling Delayed Actions That Violate Statutory Deadlines ...................................................... 7

Legislative Tools to Compel Agency Action ................................................................................. 10

Contacts

Author Contact Information........................................................................................................... 11

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Introduction

Congress maintains an active interest in the effective implementation of regulatory systems

adopted by federal agencies. A common concern is the pace at which agencies establish rules and

complete adjudications. Commentators and courts have noted that agency delay can impact the

effectiveness of a regulatory system.1 Delays can also negatively affect regulated entities that

must wait for final agency action. As one court noted: “Quite simply, excessive delay saps the

public confidence in an agency’s ability to discharge its responsibilities and creates uncertainty

for the parties, who must incorporate the potential effect of possible agency decisionmaking into

future plans.”2 Substantial case law has emerged on how courts will treat agency delay in a

variety of circumstances.

The Administrative Procedure Act (APA) imposes a general time restraint on administrative

agencies—they must act within a “reasonable time.”3 If a person meets the necessary standing

requirements, he can sue the agency for failing to act within a reasonable time. However, when

there is no hard deadline imposed on the agency, courts are often reluctant to compel an agency to

act and often allow an agency to set its own priorities.

In addition to the general timing requirements imposed by the APA, Congress also has the power

to require agencies to act on issues within a specific time frame by establishing a statutory

deadline in the agency’s enabling statute. When an agency fails to meet a statutory deadline,

courts are more willing to compel the agency to take prompt action.

Judicial remedies available for delayed agency actions are somewhat limited. Generally, a court is

restricted to ordering an agency to act by a specific deadline. The following sections outline the

timing requirements imposed by the APA, discuss the available judicial remedies when actions

are found to be unreasonably delayed, and provide an examination of cases where courts have

been asked to compel agency action. Finally, the report concludes with a discussion of legislative

tools that Congress can use to try to set agency priorities.

Administrative Procedure Act (APA)

The APA does not provide any concrete time limits for agency actions. Instead, the APA leaves

most deadlines to be established in the particular agency’s enabling statute, if at all. However, the

APA states that “within a reasonable time, each agency shall proceed to conclude a matter

presented to it.”4 Further, the APA states that courts shall “compel agency action unlawfully

withheld or unreasonably delayed.”5 As such, the APA provides individuals with a cause of action

when agency action has been unreasonably delayed.

See, e.g., Michael D. 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; Potomac Electric Power Co. v. ICC,

702 F.2d 1026, 1034 (D.C. Cir. 1983).

Potomac Electric Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C. Cir. 1983).

5 U.S.C. §555(b).

Id. at §706(1).

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A court may hear a claim for unreasonable delay despite the fact that the agency has yet to take a

final action on the subject. Generally, under Section 704 of the APA, a court does not have

jurisdiction over an agency matter until the agency action is final.6 However, a court can have

jurisdiction over a matter pending before an agency when a party claims that there has been an

unlawful or unreasonable delay. In Norton v. SUWA, the Supreme Court stated that “when an

agency is compelled by law to act within a certain time period ... a court can compel the agency to

act.”7 The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has

also noted that the language of the APA indicates that Congress intended the courts to play a role

in ensuring that agencies fulfill their obligation to act within a reasonable time,8 and other circuits

have noted that a claim of unreasonable delay qualifies for judicial review despite a lack of “final

agency action.”9

Claims for unreasonable delay can be brought under the APA against an agency in court.

However, a claim of unreasonable delay can only be brought against an agency for actions that

the agency is legally obligated to take. The Supreme Court has stated that “a claim under § 706(1)

[of the APA] can proceed only when a plaintiff asserts that an agency failed to take a discrete

agency action that it is required to take.”10 If taking a certain action is “committed to agency

discretion by law,” then no claim can be made against the agency for failing to take such an

action.11 In other words, an agency must be required to act by law in order to establish a claim

that the agency has unreasonably delayed in acting.

Remedies for Unreasonably Delayed Actions

Before discussing how a court determines whether an unreasonable delay has occurred, it is

important to understand the limitations on available judicial remedies. When a court determines

that an action has been unreasonably delayed, it must then decide what remedy to provide the

plaintiff. First, although a court can order an agency to take prompt action on an issue, the

Supreme Court has declared that a court cannot dictate what conclusion the agency should

reach.12 The Court stated that when an agency misses a deadline, a court can issue “a judicial

decree under the APA requiring the prompt issuance of regulations, but not a judicial decree

setting forth the content of those regulations.”13 For example, if an agency must determine critical

Id. at §704 (“[F]inal agency action for which there is no other adequate remedy in a court [is] subject to judicial

review.”).

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 65 (2004).

Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 77–78 (D.C. Cir. 1984) (“TRAC”) (“[S]ection

706(1) coupled with section 555(b) does indicate a congressional view that agencies should act within reasonable time

frames and that courts designated by statute to review agency actions may play an important role in compelling agency

action that has been improperly withheld or unreasonably delayed.”). Section 555(b) states that agencies should

conclude matters “within a reasonable time,” and Section 706(1) states that courts “shall ... compel agency action

unlawfully withheld or unreasonably delayed.” 5 U.S.C. §§555(b), 706(1).

See, e.g. Gordon v. Norton, 322 F.3d 1213, 1220 (10th Cir. 2003) (“An agency’s failure to act ... can become a final

agency action in three situations: 1) if the agency “affirmatively rejects a proposed course of action; 2) if the agency

delays unreasonably in responding to a request for action; and 3) if the agency delays in responding until the requested

action would be ineffective.”).

Norton v. SUWA, 542 U.S. at 64 (emphasis in original).

5 U.S.C. §701(a)(1), (2).

Norton v. SUWA, 542 U.S. at 65.

Id.

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habitat for an endangered species, the court can direct the agency to act immediately, but the court

cannot determine which habitat is critical. Furthermore, the Supreme Court has stated that

regulations issued after a deadline has passed still maintain the force of law, despite the tardiness

of their promulgation.14 Therefore, a plaintiff cannot challenge the validity of regulations merely

based on their promulgation after a deadline. Thus, judicial remedies are generally limited to

imposing deadlines on the agency.

Courts take varying approaches when fashioning a remedy for an agency action that has been

unduly delayed. In some cases a court will order an agency to act promptly.15 In other situations, a

court might impose a deadline on the agency.16 Sometimes courts merely direct the agency to

impose a deadline on itself, which the court will accept unless the agency’s proposed deadline is

unreasonable.17 Additionally, courts will often maintain jurisdiction over the case until the agency

action has been completed.18 In these situations, the court will require the agency to file regular

reports with the court detailing the progress the agency has made on the action to ensure the

agency is actively working to comply.19 Examples of how courts fashion remedies are provided in

the cases discussed in this report.

Compelling Actions Unreasonably Delayed with No

Statutory Deadlines

Generally, courts tend to avoid compelling agency action because they do not want to impose

agendas on the more politically accountable regulatory agencies. Courts will look to enabling

statutes to see if there are statutory time requirements imposed on the agency. When there is no

statutory deadline for the agency action, courts tend to be more deferential to the agency’s

priorities. According to the Blackletter Statement of Federal Administrative Law from the

American Bar Association:

An agency’s delay in completing a pending action as to which there is no statutory deadline

may not be held unlawful unless the delay is unreasonable in light of such considerations as

the agency’s need to set priorities among lawful objectives, the challenger’s interest in

prompt action, and any relevant indications of legislative intent. In considering such

challenges courts are deferential to agencies’ allocation of their own limited resources.20

Barnhart v. Peabody Coal Co., 537 U.S. 149, 155, 171-72 (2003).

See, e.g., Forrest Guardians v. Babbitt, 174 F.3d 1178, 1193 (10th Cir. 1998) (ordering agency to issue a final rule “as

soon as possible”).

See, e.g., Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1158–59 (DC. Cir. 1983) (ordering

agency to promulgate a notice of proposed rulemaking within 30 days).

See, e.g., In re International Chemical Workers Union, 958 F.2d 1144, 1150 (D.C. Cir. 1992) (holding that the

agency’s estimated need for additional time is reasonable, but any additional postponement would be a violation of the

court’s order).

See, e.g., In re United Mine Workers of America International Union, 190 F.3d 545, 546 (DC Cir. 1999).

Id.

Section of Administrative Law & Regulatory Practice, American Bar Ass’n, A Blackletter Statement of Federal

Administrative Law, 54 Admin L. Rev. 1, 44 (2002).

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The D.C. Circuit, in Telecommunications Research & Action Center v. FCC (“TRAC”),21

established guidelines to consider when determining whether an agency delay warrants

mandamus22 compelling the agency to act. The court stated that “[i]n the context of a claim of

unreasonable delay, the first stage of judicial inquiry is to consider whether the agency’s delay is

so egregious as to warrant mandamus.”23 The court then enumerated several factors, known as the

TRAC factors, to consider when answering this question:

(1) the time agencies take to make decisions must be governed by a “rule of reason;” (2)

where 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

content for this rule of reason; (3) delays that might be reasonable in the sphere of economic

regulation are less tolerable when human health and welfare are at stake; (4) the court should

consider the effect of expediting delayed action on agency activities of a higher or competing

priority; (5) the court should also take into account the nature and extent of the interests

prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency

lassitude in order to hold that agency action is unreasonably delayed.24

Although the TRAC factors are widely cited with regard to whether a court should issue

mandamus to compel agency action, courts have also been quick to point out that “mandamus is a

drastic remedy, suitable only in extraordinary situations.”25

Delay in Adjudication Proceedings with No Statutory Deadline

In cases where there are no statutory deadlines imposed, agency delay of several years on an

adjudication may pass before a court issues a writ of mandamus. Decisions seem to vary, and it

can be difficult to predict how a court will rule on a question of unreasonable delay. The D.C.

Circuit has noted that “[t]here is no per se rule as to how long is too long to wait for agency

action,”26 and it can be hard to determine which TRAC factor a court will decide to rely on most

heavily. As a result, it appears that each claim of agency delay is determined on a case-by-case

basis. This section explores some court decisions to illustrate the difficulty in determining which

way a court will rule on a claim of unreasonable delay. For example, in one circumstance, a court

determined a delay of 10 years on reaching a decision to be reasonable,27 while in another

situation, a court determined an eight-year delay to be unreasonable.28

In TRAC, the petitioners claimed that the Federal Communications Commission (FCC) had

unreasonably delayed in determining whether AT&T should reimburse ratepayers for certain

alleged overcharges.29 Despite the fact that the proceeding had taken five years and had not yet

750 F.2d 70 (D.C. Cir. 1984) (“TRAC”).

Mandamus is an order from a court directing a party to take a certain action, such as commence a rulemaking or

complete an adjudication.

Id. at 79.

Id. at 80 (internal quotations omitted).

Wellesley v. FERC, 829 F.2d 275, 277 (1st Cir. 1987); see also, e.g., Kerr v. United States District Court, 426 U.S.

394, 402 (1976).

In re Barr Laboratories, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991).

Debba v. Heinauer, 366 Fed. Appx. 696 (8th Cir. 2010). This case is discussed below.

Potomac Electric Power Co. v. ICC, 702 F.2d 1026 (D.C. Cir. 1983). This case is discussed below.

TRAC, 750 F.2d at 72.

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been resolved, the court decided that the delay did not warrant mandamus in light of the fact that

mere economic interests were involved and that the agency had assured the court that it was

working expeditiously to resolve the proceeding.30 Instead of compelling the agency to act, the

court required the FCC to provide the anticipated date of resolution and maintained jurisdiction in

order to ensure that the agency proceeded accordingly.31

In Potomac Elec. Power Co. v. ICC,32 a court found an eight-year adjudication to determine the

justness and reasonableness of a railroad’s rates to be unreasonable.33 In this case, the court issued

a writ of mandamus and required a final agency order to be issued within sixty days.34 In

justifying the writ of mandamus, despite the fact that the matter merely involved economic

interests, the court pointed to legislative history that indicated that Congress wanted the Interstate

Commerce Commission (ICC) to act quickly in these rate proceedings.35 However, in Kokajko v.

FERC,36 despite the presence of similar legislative history—“FERC is statutorily required to give

preference and speedy consideration to questions concerning increased rates or charges for the

transmission or sale of electric energy”—the court determined that five years was not an

unreasonable amount of time to wait for a final agency determination37 and dismissed the

petitioner’s claim.38 In Kokajko, the court focused on the fact that the case merely involved an

economic interest and that there was no “significant length of unexplained agency inaction.”39

The court stated, however, that “a five year delay is approaching the threshold of

unreasonableness.”40

The United States Court of Appeals for the Fourth Circuit, in In re City of Virginia Beach,41

determined that mandamus was not warranted for a four and one-half year wait for approval of a

water pipeline construction project.42 Although the court noted that the water pipeline affected

“human health and welfare,” the court declined to compel immediate agency action in light of the

Federal Energy Regulatory Commission’s (FERC) assurances that the project was a high priority

and would be expedited.43 Because the delay was not entirely caused by FERC, the court

determined that mandamus was not warranted despite the fact that the court was “[not] happy

about the overall time elapsed.”44

Id. at 80–81.

Id. at 81.

702 F.2d 1026 (D.C. Cir. 1983).

Id. at 1027–28.

Id. at 1035.

Id. at 1033–34.

837 F.2d 524 (1st Cir. 1988).

Id. at 526.

Id.

Id.; see also Wellesley v. FERC, 829 F.2d 275 (1st Cir. 1987) (holding that a 14 month delay on a rate proceeding did

not warrant mandamus, despite legislative history suggesting that FERC should act quickly, and stating “the cases in

which courts have afforded relief have involved delays of years” not months).

42 F.3d 881 (4th Cir. 1994).

Id.

Id. at 886.

Id.

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The United States Court of Appeals for the Eighth Circuit upheld a ten-year delay by the

Citizenship and Immigration Services (CIS) on an application for permanent residence.45 The

court noted that the application was given considerable attention by the agency and that the

delays were partially caused by changes in legislation regarding required investigations of

applicants.46 The court held that the agency had thus not unreasonably delayed in reaching a final

determination on the proceeding within 10 years.47

Delay in Rulemaking Proceedings with No Statutory Deadline

Courts have treated an agency’s delay in promulgating rules similarly to agency delay in

adjudication procedures. Courts still apply the TRAC factors when determining whether a delay is

unreasonable in the rulemaking setting. Again, it can be difficult to predict whether a court will

compel an agency to act on a claim for unreasonable delay when there is no statutory deadline.

In one case involving rulemaking proceedings, the court found that a three-year delay by the

Environmental Protection Agency (EPA) was reasonable.48 The EPA had undertaken a rulemaking

to determine if it should regulate strip mines under the Clean Air Act. The court noted that

“absent a precise statutory timetable or other factors counseling expeditious action, an agency’s

control over the timetable of a rulemaking procedure is entitled to considerable deference.”49 The

court again applied the TRAC factors and considered the fact that human health and welfare was

at stake. It also noted that the agency had been progressing on the rule by holding public

meetings, accepting comments, and issuing reports on the issue. After weighing all the

considerations, the court stated “given the complexity of the issues facing EPA and the highly

controversial nature of the proposal, agency deliberation for less than three years ... can hardly be

considered unreasonable.”50

However, in a different case, Public Citizen Health Research Group v. Auchter,51 the same court

held that the Occupational Safety and Health Administration’s (OSHA) three-year delay in

promulgating a final rule for ethylene oxide (EtO) safety standards was unreasonably delayed.

Although this case was decided prior to TRAC, the court still made reference to the same factors.

It stated that “[d]elays that might be altogether reasonable in the sphere of economic regulation

are less tolerable when human lives are at stake.”52 Emphasizing the delay’s potential impact to

human health,53 the court ordered that a notice of proposed rulemaking be issued within thirty

days and stated that it expected a final rule within a year.54

Debba v. Heinauer, 366 Fed. Appx. 696 (8th Cir. 2010).

Id. at 699.

Id.

Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987).

Id. at 797.

Id. at 799.

702 F.2d 1150 (D.C. Cir. 1983).

Id. at 1157.

Id. (“Three years from announced intent to regulate to final rule is simply too long given the significant risk of grave

danger EtO poses to the lives of current workers and the lives and well-being of their offspring.”).

Id. at 1158–59.

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In In re International Chemical Workers Union,55 the court determined that a six-year delay in

promulgating a rule regarding cadmium exposure safety standards was unreasonable. In this case

the agency acknowledged that a new standard for cadmium exposure limits was necessary, but

repeatedly pushed back the expected release date for the final rule. The court used the TRAC

standards and noted that the purpose of the OSHA statute was to protect the health of American

workers. It balanced this against the agency’s limited resources and other competing activities. In

the end, the court accepted the agency’s “estimate of the additional time it needs to complete the

final stages of the rulemaking,” but warned that any additional postponement “would violate [the]

court’s order.” 56 The agency was forced to promulgate a final standard within seven months of

the court order.

These few examples show that it can be challenging to pinpoint when a court will compel agency

action in both rulemaking and adjudication proceedings when there are no statutory deadlines in

place.

Compelling Delayed Actions That Violate

Statutory Deadlines

Courts more readily compel agencies to act in cases where there is a statutory deadline imposed

on an agency.57 The Supreme Court declared, in Norton v. SUWA, that “when an agency is

compelled by law to act within a certain time period ... a court can compel the agency to act.”58

Some lower courts have made a distinction between actions “unlawfully withheld” (actions that

are delayed beyond a statutory deadline) and actions “unreasonably delayed” (actions that are

only governed by the APA’s “reasonable time” provision) and have determined that a missed

statutory deadline compels the court to mandate prompt agency action. Although it is

commonplace for courts to compel agencies to act if a deadline has been missed, some courts, as

illustrated below, may decline to compel an agency to act in such circumstances. For example,

despite the existence of a statutory deadline, the D.C. Circuit still applies the TRAC test to

determine whether it is appropriate to issue an order compelling the agency to act.

In Forrest Guardians v. Babbitt,59 the United States Court of Appeals for the Tenth Circuit (Tenth

Circuit) stated that when an agency fails to act by a “statutorily imposed absolute deadline,” the

action has been “unlawfully withheld” and the court has no choice but to compel the agency to

act.60 The Tenth Circuit noted that Section 706(1) of the APA states that courts “shall compel

agency action unlawfully withheld,” and declared that the court, because of Congress’s use of the

958 F.2d 1144 (D.C. Cir. 1992).

Id. at 1150.

Michael D. 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, 1414 (2011) (“Courts will generally compel

agency action that violates a clear statutory deadline.”); Eric Biber, The Importance of Resource Allocation in

Administrative Law, 60 Admin. L. Rev. 1, 39 (2008) (noting that claims become significantly easier to win when there

is a statutory deadline involved).

Norton v. SUWA, 542 U.S. at 65.

174 F.3d 1178 (10th Cir. 1998). This case involved the U.S. Fish and Wildlife Service’s failure to make a final

determination on petitions to list certain species as endangered or threatened under the Endangered Species Act by the

statutorily imposed twelve-month deadline. Id.

Id. at 1190.

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word “shall,” had no discretion on the issue.61 The court stated that although the TRAC factors

might be helpful when considering action guided by a mere general timing provision, the court

could not apply the TRAC test to situations where an agency has failed to meet a specific statutory

deadline.62 The court remanded the case and directed the district court to order the Secretary to

“issue a final critical habitat designation ... as soon as possible, without regard to the Secretary’s

other priorities under the [Endangered Species Act].”63

Similarly, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) has held that a

court must compel agency action when the agency fails to comply with a statutory deadline. In

Biodiversity Legal Foundation v. Badgley,64 the Ninth Circuit found that it was required to issue

an injunction to require the Fish and Wildlife Service (FWS) to comply with a twelve-month

deadline imposed by the Endangered Species Act.65 Although the Ninth Circuit acknowledged

that it follows the TRAC standard in cases involving general timing provisions, the court stated

that “Congress has specifically provided a deadline for performance by the Service, so no

balancing of factors is required or permitted.”66 The court stated that the missed deadline

“compelled the court to grant injunctive relief” and that the “court had no discretion to consider

the Service’s stated priorities.”67

Other courts, however, do not follow this distinction. For these courts, a statutory deadline acts

only as one of the factors to consider when applying the TRAC test for unreasonable delay and is

not, by itself, determinative. Although a deadline will weigh heavily in favor of compelling an

agency to act, some courts have declined to order an agency to take action even in the face of

deadlines that have long passed.68

The United States District Court for the District of Columbia, in Ctr. for Biological Diversity v.

Pirie,69 criticized the reasoning followed by the Tenth Circuit in the Forrest Guardians decision.

Although the court acknowledged that Section 706 of the APA states that the courts “shall compel

agency action unlawfully withheld or unreasonably delayed,”70 the court determined that courts

still have discretion when determining whether to issue a writ of mandamus or injunction against

an agency.71 The court pointed to Section 702 of the APA,72 and declared that the language of this

Id. at 1187–93. However, the Tenth Circuit noted that when an agency is only guided by a “general timing

provision,” such as a requirement to act “within a reasonable time,” the court does have discretion to decide whether

the delay has been unreasonable. Id. at 1190–91.

Id. at 1191.

Id. at 1193.

309 F.3d 1166 (9th Cir. 2002).

Id. at 1178.

Id.

Id. at 1178.

See In re Barr Laboratories, Inc., 930 F.3d 72, 74 (D.C. Cir. 1991) (“The issue before us, then, is not whether the

FDA’s sluggishness has violated a statutory mandate—it has—but whether we should exercise our equitable powers to

enforce the deadline.”). This case is discussed below.

201 F. Supp. 2d 113 (D.D.C. 2002). Although this case did not involve an agency delay, it does show that the court

found that Section 706 does not require a court to issue a writ of mandamus or an injunction when an agency is in

violation of a statute.

Id. at 118.

Id. at 119 (Citing Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207–08 (D.C. Cir. 1985).

Section 702 of the APA states that “Nothing herein affects other limitations on judicial review or the power or duty

of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground.” 5 U.S.C. §702

(continued...)

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section preserved the courts’ equitable discretion in these cases: “Because 702 of the APA

explicitly states that a court retains equitable discretion, this Court cannot hold that Congress has

clearly and unequivocally limited that discretion under the APA.”73 Therefore, the court

determined that it is not forced to compel agency action, even if the agency has missed a statutory

deadline.

In its opinion from In Re Barr Laboratories, Inc.,74 the D.C. Circuit noted that “a finding that

delay is unreasonable does not, alone, justify judicial intervention.”75 In this case, the Food and

Drug Administration (FDA) had missed a statutory deadline for reviewing “generic drug”

applications.76 By statute, the FDA was supposed to review these applications within 180 days.77

However, the FDA estimated that its response time could range from 389 to 669 days.78 Barr

Laboratories sought mandamus compelling the agency to review its application and claimed that,

by missing the statutory deadline, the FDA had unreasonably delayed.79 The court responded:

“Though we agree with Barr that FDA’s sluggish pace violates a statutory deadline, we conclude

that this is not an appropriate case for equitable relief.”80 The court looked at all of the TRAC

factors and determined that mandamus was not appropriate despite the fact that the FDA failed to

meet their statutory deadline by a significant margin.81 The court noted that simply putting one

drug manufacturer’s case to the front of the line would necessarily push other similar cases

further back and would not ultimately promote Congress’s objective of having all applications

dealt with swiftly.82 The court did not want to determine the agency’s priorities;83 however, the

court did note that if Barr Laboratories had been singled out for mistreatment, an order of

mandamus might have been appropriate.84

Finally, the D.C. Circuit held that a nine-year delay by the United States Coast Guard, in the face

of a one-year deadline for promulgating regulations regarding oil tanker standards, was

unreasonable.85 The court ordered the agency to take “prompt” action.86 However, it applied the

(...continued)

(2006).

Ctr. for Biological Diversity v. Pirie, 201 F. Supp. at 119.

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

Id. at 75.

Id. at 73–74.

Id. at 74.

Id.

See id. at 73.

Id.

Id. at 74–76.

Id. at 75.

“The agency is in a unique—and authoritative—position to view its projects as a whole, estimate the prospects for

each, and allocate its resources in the optimal way. Such budget flexibility as Congress has allowed the agency is not

for us to hijack.... While Congress clearly intended a faster track for generic drug applications in general, it did not

choose a super-priority for Barr, and it did not address the trade-off between strict compliance with the 180-day

deadline and the FDA’s disposition of its other projects with enough clarity to guide judicial intervention.” Id.

Id. at 75-76; but see Sandoz, Inc. v. Leavitt, 427 F. Supp. 2d 29 (D.D.C. 2006) (applying the TRAC factors and

holding that a 1000 day response time by the FDA on a similar generic drug application was unreasonable in light of

the fact that the FDA seemed to treat the plaintiff disparately from other generic drug applicants).

In re Blue Water Network and Ocean Advocates, 234 F.3d 1305 (D.C. Cir. 2000).

Id. at 1316.

Congressional Research Service

Administrative Agencies and Claims of Unreasonable Delay

TRAC factors, indicating that merely missing the deadline was not, by itself, enough for the court

to issue mandamus to compel the agency to act.87

The TRAC factors remain the most common approach to determining whether agency actions

have been unreasonably delayed in both rulemaking proceedings and adjudicatory proceedings.

One potential problem with the TRAC test is that it fails to provide any clear answer to whether an

agency has delayed unreasonably.88 Even the D.C. Circuit acknowledges “[t]here is no per se rule

as to how long is too long to wait for agency action”89 and that the TRAC balancing test

“sometimes suffers from vagueness.”90 With no clear standard, it can be difficult for regulated

entities to estimate when they could expect agency action finally to occur or when it would be

appropriate to sue an agency for their delays. However, it seems that two factors always tend to

receive ample discussion from the courts. First, statutory deadlines appear to be a significant

factor in determining a case of unreasonable delay. When Congress signifies that it wants an

agency to prioritize an action, the courts are more willing to enforce that priority. Second, courts

appear to be more willing to compel an agency to act when the action involves public health or

safety, compared to mere economic interests. Ultimately, however, the determination is made on a

fact specific, case-by-case basis.

Legislative Tools to Compel Agency Action

Congress often attempts to press agencies to resolve issues and promulgate rules in swift fashion.

Perhaps Congress’s most effective tool, discussed above, is the statutory deadline. Although in

some circumstances courts will decline to enforce the deadline on the agency, claims for

unreasonable delay are vastly more successful when there is a statutory deadline imposed by

Congress.91 Recent scholarship also notes that rulemakings that are undertaken with an imposed

statutory deadline are, on average, completed sooner than similar rules with no deadline

imposed.92 It is important to note, however, that when overly imposing deadlines are placed on

agency action, agencies often have to act hastily and may reduce the time available for public

participation in a rulemaking.93 In some circumstances, a tight deadline can lead an agency to

avoid normal notice and comment procedures by invoking the “good cause” provision under the

APA.94

Id. at 1315–16.

Professor Sant’Ambrogio notes that “[d]ue to the lack of clarity in the doctrine, courts can use the TRAC analysis to

support virtually any conclusion they want to reach.” Michael D. Sant’Ambrogio, Agency Delays: How a PrincipalAgent Approach Can Inform Judicial and Executive Branch Review of Agency Foot-Dragging, 79 Geo. Wash. L. Rev.

1381, 1443 (2011).

In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004).

TRAC, 750 F.2d at 80.

See Michael D. 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, 1414 (“Courts will generally compel

agency action that violates a clear statutory deadline.”); Eric Biber, The Importance of Resource Allocation in

Administrative Law, 60 Admin. L. Rev. 1, 39 (2008) (noting that claims become significantly easier to win when there

is a statutory deadline involved).

Jacob E. Gerson & Anne Joseph O’Connell, Deadlines in Administrative Law, 156 U. Pa. L. Rev. 923, 945–950

(2008).

Id. at 945.

Id. at 956–59; 5 U.S.C. §553(b)(3)(B) (an agency may avoid notice and comment procedures “when the agency for

good cause finds ... that notice and public procedure thereon are impracticable”).

Congressional Research Service

Administrative Agencies and Claims of Unreasonable Delay

Another tool available to Congress is the imposition of “hammer” provisions.95 These provisions,

which may be written in tandem with a statutory deadline, dictate what is to happen if a

regulatory deadline is missed. These provisions, therefore, impose a consequence if the agency

fails to meet the statutory deadline. The consequences for missing a deadline vary. Some laws

establish a regulatory scheme that will be put in place if a deadline is missed;96 others mandate

that the agency’s proposed rule would go into effect if a final rule is not promulgated by the

deadline.97 At least one law has withheld funding from an agency until certain rules are

promulgated.98 Although these provisions can force an agency to act quickly, they can also be

difficult for Congress to establish. For example, for laws that require a congressionally mandated

regulatory scheme to go into effect if the agency misses a deadline, subject matter expertise may

be helpful or necessary to establish a statutorily imposed regulatory scheme.

Congress also maintains the “power of the purse” and can place restrictions on appropriations or

threaten to do so if Congress determines that an agency is failing to act in a timely manner.

Finally, in the event that an agency is taking too long to take an action, Congress also has the

ability to exert political pressure on the agency. Congressional committees can call oversight

hearings to question an agency leader regarding delays.99 Individual members are also permitted

to express their concerns to agencies and often send letters to pressure agencies to act promptly

on certain issues.100 Although courts will ultimately determine whether an action has been

delayed unreasonably, Congress is able to use these tools to try to establish priorities for the

federal agencies’ agendas.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

See Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking 15–16 (4th ed. 2006).

See, e.g., 42 U.S.C. §6924(d)(1-2).

See, e.g., The Nutrition Labeling and Education Act of 1990, P.L. 101-535.

See Department of Transportation and Related Agencies Appropriations Act, 1988, P.L. 100-202, Title 1.

See Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking 18–19.

100

See id.; see also, e.g., Letter from various members of Congress to Dr. Margaret A. Hamburg, Commissioner of

Food and Drugs, U.S. Food and Drug Administration (May 6, 2011) available at http://schakowsky.house.gov/images/

stories/Letter_to_FDA_on_Dangerous_Chemicals_in_Brazilian_Blowout_Hair_Treatments.pdf.

Congressional Research Service

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