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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR43013

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** March 21, 2013
- **Citation:** R43013

## Text

Administrative Agencies and Claims of
Unreasonable Delay: Analysis of
Court Treatment
(name redacted)
Legislative Attorney
March 21, 2013

Congressional Research Service
7-....
www.crs.gov
R43013

CRS Report for Congress
Prepared for Members and Committees of Congress

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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Administrative Agencies and Claims of Unreasonable Delay

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.

1

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).
2
Potomac Electric Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C. Cir. 1983).
3
5 U.S.C. §555(b).
4
5 U.S.C. §555(b).
5
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
6

Id. at §704 (“[F]inal agency action for which there is no other adequate remedy in a court [is] subject to judicial
review.”).
7
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 65 (2004).
8
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).
9
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.”).
10
Norton v. SUWA, 542 U.S. at 64 (emphasis in original).
11
5 U.S.C. §701(a)(1), (2).
12
Norton v. SUWA, 542 U.S. at 65.
13
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

14

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”).
16
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).
17
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).
18
See, e.g., In re United Mine Workers of America International Union, 190 F.3d 545, 546 (DC Cir. 1999).
19
Id.
20
Section of Administrative Law & Regulatory Practice, American Bar Ass’n, A Blackletter Statement of Federal
Administrative Law, 54 Admin L. Rev. 1, 44 (2002).
15

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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
21

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.
23
Id. at 79.
24
Id. at 80 (internal quotations omitted).
25
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).
26
In re Barr Laboratories, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991).
27
Debba v. Heinauer, 366 Fed. Appx. 696 (8th Cir. 2010). This case is discussed below.
28
Potomac Electric Power Co. v. ICC, 702 F.2d 1026 (D.C. Cir. 1983). This case is discussed below.
29
TRAC, 750 F.2d at 72.
22

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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

30

Id. at 80–81.
Id. at 81.
32
702 F.2d 1026 (D.C. Cir. 1983).
33
Id. at 1027–28.
34
Id. at 1035.
35
Id. at 1033–34.
36
837 F.2d 524 (1st Cir. 1988).
37
Id. at 526.
38
Id.
39
Id.
40
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).
41
42 F.3d 881 (4th Cir. 1994).
42
Id.
43
Id. at 886.
44
Id.
31

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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

45

Debba v. Heinauer, 366 Fed. Appx. 696 (8th Cir. 2010).
46
Id. at 699.
47
Id.
48
Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987).
49
Id. at 797.
50
Id. at 799.
51
702 F.2d 1150 (D.C. Cir. 1983).
52
Id. at 1157.
53
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.”).
54
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
55

958 F.2d 1144 (D.C. Cir. 1992).
Id. at 1150.
57
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).
58
Norton v. SUWA, 542 U.S. at 65.
59
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.
60
Id. at 1190.
56

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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
61
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.
62
Id. at 1191.
63
Id. at 1193.
64
309 F.3d 1166 (9th Cir. 2002).
65
Id. at 1178.
66
Id.
67
Id. at 1178.
68
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.
69
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.
70
Id. at 118.
71
Id. at 119 (Citing Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207–08 (D.C. Cir. 1985).
72
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).
73
Ctr. for Biological Diversity v. Pirie, 201 F. Supp. at 119.
74
930 F.2d 72 (D.C. Cir. 1991).
75
Id. at 75.
76
Id. at 73–74.
77
Id. at 74.
78
Id.
79
See id. at 73.
80
Id.
81
Id. at 74–76.
82
Id. at 75.
83
“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.
84
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).
85
In re Blue Water Network and Ocean Advocates, 234 F.3d 1305 (D.C. Cir. 2000).
86
Id. at 1316.

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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
87

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).
89
In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004).
90
TRAC, 750 F.2d at 80.
91
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).
92
Jacob E. Gerson & Anne Joseph O’Connell, Deadlines in Administrative Law, 156 U. Pa. L. Rev. 923, 945–950
(2008).
93
Id. at 945.
94
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”).
88

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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-....

95

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).
97
See, e.g., The Nutrition Labeling and Education Act of 1990, P.L. 101-535.
98
See Department of Transportation and Related Agencies Appropriations Act, 1988, P.L. 100-202, Title 1.
99
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.
96

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43013. Public record. Not legal advice.