A Primer on the Reviewability of Agency Delay and Enforcement Discretion

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A Primer on the Reviewability of

Agency Delay and Enforcement Discretion

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R43710

A Primer on the Reviewability of Agency Delay and Enforcement Discretion

Summary

Congress regularly authorizes and requires administrative agencies to implement and enforce

regulatory programs. As such, agencies routinely make decisions about when to promulgate

regulations and when to enforce statutory requirements against parties who violate the law.

During the 113th Congress, the Obama Administration announced that certain federal agencies

would not enforce specific aspects of the Affordable Care Act (ACA) for a period of time in order

to allow the public to further prepare for proper compliance with the law in the future. This has

led to numerous questions regarding how courts treat administrative delays of regulatory

programs. When can a suit be brought to force the agency to apply the law?

It is important to distinguish between two distinct types of agency delays: (1) delays resulting

from when an agency fails to meet a statutory deadline for promulgating rules or completing

particular adjudications, and (2) affirmative decisions to withhold enforcement of a provision of

law on the public at large. The former arises in a scenario in which Congress has enacted a statute

that expressly requires an agency to take a specific action by a certain date that the agency fails to

meet. Because agencies can often struggle to meet tight congressional deadlines imposed by laws,

courts have established a balancing test, known as the TRAC test, to determine whether the

agency should be compelled to take action. The second type of delay occurs in a scenario in

which an agency refuses, for a period of time, to enforce a statutory prohibition or requirement

that Congress has imposed on third parties. This type of delay is generally implemented by

announcing a period of non-enforcement during which the agency will not pursue or punish noncompliance with the law. Courts determine whether these delays are reviewable in court by

following the Supreme Court’s holding in Heckler v. Chaney.

This report will discuss the general legal principles applied in determining whether administrative

delays are reviewable in court in these two different contexts and then address whether the

procedures outlined in the Administrative Procedure Act (APA) are applicable to these delays.

Congressional Research Service

A Primer on the Reviewability of Agency Delay and Enforcement Discretion

Contents

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

Legal Standards and Limitations Applied to Administrative Delays ............................................... 2

Statutory Deadlines.................................................................................................................... 2

Enforcement Discretion ............................................................................................................. 4

Procedural Requirements for Implementing a Delay....................................................................... 9

Exercising Enforcement Discretion ......................................................................................... 10

Missing Statutory Deadlines .................................................................................................... 11

Contacts

Author Contact Information........................................................................................................... 12

Congressional Research Service

A Primer on the Reviewability of Agency Delay and Enforcement Discretion

Introduction

During the 113th Congress, the Obama Administration announced that certain federal agencies

would not enforce specific aspects of the Affordable Care Act (ACA)1 for a period of time in

order to allow the public to further prepare for proper compliance with the law in the future.2 This

has led to numerous questions regarding how courts treat administrative delays of regulatory

programs. This report will discuss the general legal principles applicable to judicial review of

administrative delays in two different contexts: (1) delays in meeting a specific statutory deadline

for implementing rules or completing particular adjudications, and (2) delays in the enforcement

of a provision of law on the public at large. The report will then address whether the procedures

outlined in the Administrative Procedure Act (APA) apply to these delays.

The first type of agency delay—delays in meeting a specific statutory deadline for implementing

rules or completing particular adjudications—arises when Congress has enacted a statute that

expressly requires an agency to take a specific action by a specific date. For example, the ACA

includes a number of mandatory rulemaking provisions that require agencies to issue certain

substantive rules by certain dates.3 An agency’s failure to meet this type of statutory deadline is

generally assessed pursuant to a multi-factor balancing test established in Telecommunications

Research & Action Center v. FCC, discussed further below.4

The second type of delay occurs when an agency delays the enforcement of a statutory prohibition

or requirement that Congress has imposed on third parties. An agency generally implements this

delay by announcing that, as an enforcement policy, the agency will not pursue or punish noncompliance with the law for a certain period of time. The underlying law takes legal effect and

conduct in violation of that law remains unlawful, but the agency—in an exercise of its

enforcement discretion—does not take action in response to violations of the provision until after

a certain date. For example, although a provision in the ACA requiring that health plans meet

certain minimum coverage requirements became effective in January 2014, the Center for

Medicaid Services has announced that it will not enforce these requirements for certain plans for

at least one year.5 This type of enforcement delay would generally be assessed, if at all, pursuant

to standards established for determining whether non-enforcement decisions are “committed to

agency discretion by law” under the APA.6

Given this framework, it would appear that the context in which an agency delay arises may alter

the manner in which the court evaluates the delay. We now turn to the question of the legal

P.L. 111-148 (2010). ACA was amended by the Health Care Education and Reconciliation Act of 2010, P.L. 111-152

(2010) (HCERA). These acts will be collectively referred to in this report as “ACA.”

See Internal Revenue Service, Notice 2013-45, NOT-129718-13 (July 3, 2013), available at http://www.irs.gov/pub/

irs-drop/n-13-45.PDF.

For example, section 6001(a) of the ACA requires the Secretary of HHS to issue rules relating to physician ownership

and investment in hospitals by January 1, 2012. These regulations were issued on November 30, 2011. 76 FR 74122.

For a general discussion of mandatory and discretionary rules issued under the ACA see CRS Report R43386,

Upcoming Rules Pursuant to the Patient Protection and Affordable Care Act: The Fall 2013 Unified Agenda, by

(name redacted) and (name redacted).

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

For a discussion of this delay see, CRS Report WSLG724, Obama Administration’s “Fix” for Insurance

Cancellations: A Legal Overview, by (name redacted), (name redacted), and (name redacted).

5 U.S.C. §701(a); see also Heckler v. Chaney, 470 U.S. 821 (1985).

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A Primer on the Reviewability of Agency Delay and Enforcement Discretion

standards to be applied in the two identified scenarios: where an agency delay has resulted in the

failure to meet a statutory deadline, and where an agency is relying on enforcement discretion to

delay the enforcement of a duly enacted law.

Legal Standards and Limitations Applied to

Administrative Delays

Statutory Deadlines7

The APA does not provide concrete time limits for agency action—instead, it leaves most

deadlines for Congress to establish, if at all, in the particular agency’s enabling statute. Even

absent a specific deadline, however, the APA states that an agency must “proceed to conclude a

matter presented to it ... within a reasonable time.”8 Further, Section 706 of the APA states that

courts shall “compel agency action unlawfully withheld or unreasonably delayed.”9 As such, the

APA provides individuals with a cause of action when an agency takes an unreasonable amount of

time to act.

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 the decision to act 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.

Cases involving claims that an agency has unreasonably delayed taking required actions are

typically brought when an agency has failed to meet a statutorily mandated deadline.12 For

example, if Congress requires an agency to promulgate rules by a certain date, or to complete

adjudications within a specified period of time, a claimant may file suit against the agency for

unreasonable delay if the statutory deadline has passed. Although courts generally are more

willing to compel an agency to act if it has missed a statutory deadline, they will not necessarily

do so. Instead, courts will often undertake a balancing test to determine whether the court should

force the agency to act.

The balancing test commonly used by most federal courts is referred to as the TRAC factor test,

after the case in which the test was first established, Telecommunications Research & Action

For additional information on how courts treat claims of unreasonable delay under the APA, see CRS Report R43013,

Administrative Agencies and Claims of Unreasonable Delay: Analysis of Court Treatment, by (name redacted).

5 U.S.C. §555(b).

Id. at §706(1).

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis in original).

5 U.S.C. §701(a)(1), (2).

See, e.g., Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir. 2002); In re Blue Water Network and

Ocean Advocates, 234 F.3d 1305 (D.C. Cir. 2000); In Re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991).

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A Primer on the Reviewability of Agency Delay and Enforcement Discretion

Center v. FCC (“TRAC”).13 Under such an analysis, a court will assess whether 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 any

party less favorably than others.14 A court balances these TRAC factors on a case-by-case basis to

determine whether agency action should be compelled. It can be difficult to predict which way a

court will decide any particular case as “[t]here is no per se rule as to how long is too long to wait

for agency action.”15 Courts will often take a missed deadline into heavy consideration, but,

generally, will still evaluate the remaining factors when determining the outcome of the case.16

If Congress is not satisfied with relying on judicial enforcement of statutory deadlines, Congress

may insert “hammer” provisions into the text of certain statutes.17 These provisions dictate what

is to happen if a regulatory deadline is missed. The consequences for missing a deadline vary.

Some laws establish a regulatory scheme that will be put in place if an agency misses a

deadline,18 while others mandate that the agency’s proposed rule will go into effect if a final rule

is not promulgated by the deadline.19 Finally, at least one law has withheld funding from an

agency until certain rules are promulgated.20 Although these provisions can force an agency to act

quickly, they can also be challenging for Congress to establish due to the extensive time that is

often required to develop an effective regulatory scheme. In addition to these hammer provisions,

Congress may always use political pressure, congressional hearings, and the appropriations

process to influence agencies to act with more urgency.21

These types of administrative delay are relatively common as agencies may encounter difficulties

in meeting statutory deadlines.22 However, they differ fundamentally from situations where

agencies use “administrative enforcement discretion” when deciding whether to enforce a statute

or regulatory scheme.

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

Id. at 80 (internal quotations omitted).

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

See In re Blue Water Network and Ocean Advocates, 234 F.3d 1305 (D.C. Cir. 2000) (applying the TRAC factors to

determine whether to compel an agency to act even though it missed a statutory deadline by a margin of eight years); In

Re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991) (applying the TRAC factors and then concluding: “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.”); but, see Forrest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1998) (holding 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). It is worth noting that if an agency promulgates a rule after the

statutory deadline for issuing such a rule has passed, the delayed regulation would still be valid, unless the underlying

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

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.

For more information on the congressional oversight process, see CRS Report RL30240, Congressional Oversight

Manual, by (name redacted) et al. For more information on controlling agencies through appropriation, see CRS Legal

Sidebar WSLG789, 2014 Omnibus Appropriations: Controlling Federal Agencies through Appropriations, by (name reda

cted).

See, e.g., Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir. 2002); In re Blue Water Network and

Ocean Advocates, 234 F.3d 1305 (D.C. Cir. 2000); In Re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991).

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A Primer on the Reviewability of Agency Delay and Enforcement Discretion

Enforcement Discretion

When an agency decides not to enforce a statute against regulated parties for a certain period of

time, courts are likely to review this as an act of enforcement discretion. Federal agencies

generally have flexibility in determining whether and when to initiate an enforcement action

against a third party for violations of a law the agency is charged with administering. This

freedom in setting enforcement priorities, allocating resources, and making specific strategic

enforcement decisions is commonly described as “administrative enforcement discretion” and

arises principally from a combination of the President’s constitutionally assigned obligation to

“take care that the laws be faithfully executed,” and the APA’s command that courts avoid

reviewing discretionary agency decisions.23 Discretionary enforcement activities may include any

range of actions, including, but not limited to, the imposition of penalties or the initiation of an

agency investigation, prosecution, adjudication, lawsuit, or audit.

In situations where an agency refrains from bringing an enforcement action, courts have

historically been cautious in reviewing the agency determination—generally holding that such

non-enforcement decisions are “committed to agency discretion” and therefore not subject to

judicial review under the APA.24 The seminal case on this topic is Heckler v. Chaney, a Supreme

Court case in which death row inmates challenged the Food and Drug Administration’s refusal to

initiate an enforcement action to block the use of certain drugs in lethal injection.25 In rejecting

the challenge, the Supreme Court held that “an agency’s decision not to prosecute or enforce ... is

a decision generally committed to an agency’s absolute discretion.”26 The Court noted that agency

enforcement decisions involve a “complicated balancing of a number of factors which are

peculiarly within [the agency’s] expertise,” including

whether agency resources are best spent on this violation or another, whether the agency is

likely to succeed if it acts, whether the particular enforcement action requested best fits the

agency’s overall policies, and, indeed, whether the agency has enough resources to undertake

the action at all. An agency generally cannot act against each technical violation of the

statute it is charged with enforcing.27

Agencies, the court reasoned, are “far better equipped” to evaluate “the many variables involved

in the proper ordering of its priorities” than are the courts.28 Consistent with this deferential view,

the Heckler opinion proceeded to establish the standard for the reviewability of agency non23

See Heckler v. Chaney, 470 U.S. 821, 832 (1985) (“[W]e recognize that an agency’s refusal to institute proceedings

shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a

decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive

who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’”). It would appear that agency

enforcement discretion exercised in the administrative context, though similar, is to be distinguished from prosecutorial

discretion exercised in the criminal context.

Under the APA all final agency actions are presumptively reviewable by a federal court. See 5 U.S.C. §§701, 702,

704. However, the APA excludes from review “agency action committed to agency discretion by law.” 5 U.S.C. §701;

See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (holding that the “committed to

agency discretion” exception to judicial review is “very narrow” and “is applicable in those rare instances where

‘statutes are drawn in such broad terms that in a given case there is no law to apply’”) (citing S. Rep. No. 752, 79th

Cong., 1st Sess., 26 (1945)).

470 U.S. 821.

Id. at 831.

Id.

Id. at 831-32.

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A Primer on the Reviewability of Agency Delay and Enforcement Discretion

enforcement decisions, holding that an “agency’s decision not to take enforcement action should

be presumed immune from judicial review.”29

However, the Court also clearly indicated that the presumption against judicial review of agency

non-enforcement decisions may be overcome in certain situations.30 The Heckler Court suggested

that a court may review an agency enforcement determination “where the substantive statute has

provided guidelines for the agency to follow in exercising its enforcement powers.”31

Additionally, the Court suggested that judicial review of non-enforcement may be appropriate

when an agency has “consciously and expressly adopted a general policy that is so extreme as to

amount to an abdication of its statutory responsibilities.”32 However, lower federal courts have

only rarely had the opportunity to clarify these exceptions to Heckler’s presumption of nonreviewability.33

It should be noted that dismissal of a challenge to an agency non-enforcement decision under the

APA is not necessarily recognition by the court that the agency was acting within its authority. A

legal distinction must be made between a decision in which a court reviews the merits of a

challenge and approves of the agency action or inaction, and one in which a court dismisses the

challenge for lack of jurisdiction before reviewing the merits. Although, as a practical matter,

either decision results in the same outcome (i.e., the continuation of the agency decision), it

would be inappropriate to state that a court that has dismissed a claim against an agency for lack

of jurisdiction has accorded legal approval to the agency action or inaction.

Statutory Guidelines

The Heckler opinion specifically recognized Congress’s authority to curtail an agency’s ability to

exercise enforcement discretion “either by setting substantive priorities, or by otherwise

circumscribing an agency’s power to discriminate among issues or cases it will pursue.”34

Congress may, for instance, choose to remove an agency’s discretion by indicating “an intent to

circumscribe agency enforcement discretion” and “provid[ing] meaningful standards for defining

the limits of that discretion.”35 In this manner, Congress essentially overrides the inherent

Id. at 832.

For example, enforcement decisions must not be carried out in a discriminatory manner such that the agency is in

violation of the Equal Protection Clause. Yick Wo v. Hopkins 118 U.S. 356 (1886). The D.C Circuit has also held that

the Heckler presumption does not apply when a non-enforcement decision is actually an agency interpretation of a

statute. See Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (“‘[N]othing in the holding or policy of

Heckler v. Chaney [] precludes review of a ...challenge of an agency’s announcement of its interpretation of a statute,’

even when that interpretation is advanced in the context of a decision not to take enforcement action.”) (citations

omitted). This report briefly focuses on only two exceptions.

Heckler, 470 U.S. at 832.

Id. at 833 n.4.

The dearth of case law relating to agency non-enforcement may be due to the difficulty of finding a plaintiff who has

been sufficiently injured by agency inaction to obtain standing. See, e.g., CRS Legal Sidebar, Obama Administration

Delays Implementation of ACA’s Employer Responsibility Requirements: A Brief Legal Overview.

Heckler, 470 U.S. at 833. See also Souder v. Brennan, 367 F. Supp. 808, 811-12 (D.D.C. 1973) (“It is undisputed

that the Department of Labor has a declared policy of non-enforcement of the minimum wage and overtime provisions

with regard to patient-workers at non-Federal institutions for the mentally-ill. It is also clear to the Court that if the Fair

Labor Standards Act does apply to such patient-workers then the policy of non-enforcement is a violation of the

Secretary’s duty to enforce the law.”).

Heckler, 470 U.S. at 834.

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discretion possessed by the agencies in the enforcement of federal law and provides a reviewing

court with a standard upon which to review the agency inaction. Although the exercise of agency

discretion may therefore be influenced by congressional controls, it would appear that Congress’s

intent to curtail the agency enforcement discretion must be made explicit, as courts are hesitant to

imply such limitations.36

In applying this standard, the Heckler Court held that the Food Drug and Cosmetic Act (FDCA)

had not curtailed the FDA’s discretion in a manner sufficient to allow the Court to review the

agency’s non-enforcement determination. The FDCA provided only that the Secretary was

“authorized to conduct examinations and investigations” and not that he was required to do so.37

Moreover, the Court determined that the FDCA’s requirement that any person who violates the act

“shall be imprisoned ... or fined” could not be read to mandate that the FDA initiate an

enforcement action in response to every violation.38 The FDCA’s prohibition on certain conduct,

although framed in mandatory terms, was insufficient to permit review of non-enforcement

absent additional language delineating how and when the agency was to respond to violations.

“The Act’s enforcement provisions,” held the Court, “thus commit complete discretion to the

Secretary to decide how and when they should be exercised.”39

However, in a pre-Heckler case, Dunlop v. Bachowski,40 the Court found that a statute had

removed agency discretion with regard to its enforcement in a particular circumstance. In Dunlop,

a union member challenged the Secretary of Labor’s refusal to bring an enforcement action to set

aside a union election.41 The Labor-Management Reporting and Disclosure Act (L-MRDA)

provides that upon the filing of a complaint, “[t]he Secretary shall investigate such complaint and,

if he finds probable cause to believe that a violation ... has occurred ... he shall ... bring a civil

action.”42 The Court rejected the agency’s argument that the Secretary’s determination of whether

to bring a civil action was an unreviewable exercise of administrative discretion. In doing so, the

Court cited approvingly43 to the appellate court’s conclusion that

[T]he factors to be considered by the Secretary, however, are more limited and clearly

defined: § 482(b) of the L-MRDA provides that after investigating a complaint, he must

determine whether there is probable cause to believe that violations of § 481 have occurred

affecting the outcome of the election. Where a complaint is meritorious ... the language and

purpose of § 402(b) indicate that Congress intended the Secretary to file suit. Thus, [] the

Secretary’s decision whether to bring suit depends on a rather straightforward factual

determination, and we see nothing in the nature of that task that places the Secretary’s

decision “beyond the judicial capacity to supervise.44

The D.C. Circuit has suggested that “guidelines” can take the form of “standards in the statute itself, in regulations

promulgated by an administrative agency in carrying out its statutory mandate, or in other binding expressions of

agency viewpoint.” Crowley Caribbean Transp. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994) (citations omitted).

21 U.S.C. §372.

Heckler, 470 U.S. at 835.

Id.

421 U.S. 560 (1975).

Id.

29 U.S.C. §482.

Dunlop v. Bachowski, 421 U.S. 560, 567 n.7 (1975) (“We agree with the Court of Appeals, for the reasons stated in

its opinion, 502 F. 2d 79, 86-88 (CA3 1974), that there is no merit in the Secretary’s contention that his decision is an

unreviewable exercise of prosecutorial discretion.”).

Bachowski v. Brennan, 502 F.2d 79, 88 (3rd Cir. 1974).

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In Heckler, the Supreme Court confirmed the continued validity of the Dunlop decision, but

distinguished the two decisions, holding that unlike the FDCA, the L-MRDA “quite clearly

withdrew discretion from the agency and provided guidelines for exercise of its enforcement

power.”45

As discussed above, the language held to override the presumption against review of agency nonenforcement in Dunlop contained an express trigger for when enforcement was to take place.

Federal statutes that do not contain language defining how and when the agency is to exercise its

enforcement discretion, even when framed in mandatory terms, generally have not been held to

override agency enforcement discretion. For example, a congressional command that an agency

“shall enforce” a particular statute, without additional guidelines as to the circumstances under

which enforcement is to occur, is generally insufficient to permit review of a non-enforcement

decision.46 The Heckler court suggested as much, noting that it could not “attribute such a

sweeping meaning” to language that was commonly found in criminal provisions.47

Abdication of Statutory Responsibilities

In Heckler, the Supreme Court also suggested that the presumption against the review of nonenforcement may be overcome if the agency has “‘consciously and expressly adopted a general

policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”48 The

Court, however, was non-committal as to whether such an agency policy would in fact be

reviewable, stating only that “[a]lthough we express no opinion on whether such decisions would

be unreviewable under [the APA], we note that in those situations the statute conferring authority

on the agency might indicate that such decisions were not “committed to agency discretion.”49

In raising the “statutory abdication” argument, the Court cited to Adams v. Richardson, a decision

from the United States Court of Appeals for the D.C. Circuit (D.C. Circuit).50 Adams involved a

challenge to the Secretary of Health, Education, and Welfare’s (HEW’s) failure to enforce Title VI

of the Civil Rights Act of 1964 (Title VI). The law in question “authorizes and directs” federal

agencies to ensure that federal financial assistance is not provided to segregated educational

institutions.51 The Secretary asserted that the law provided federal agencies with “absolute

discretion” with respect to whether to take action to cut off funding.52 The court disagreed,

holding—in language characteristic of the “statutory guidelines” exception—that “Title VI not

Heckler, 470 U.S. at 834.

See, e.g., id. at 835 (“The section on criminal sanctions states baldly that any person who violates the Act’s

substantive prohibitions ‘shall be imprisoned ... or fined.’ Respondents argue that this statement mandates criminal

prosecution of every violator of the Act but they adduce no indication in case law or legislative history that such was

Congress’ intention in using this language, which is commonly found in the criminal provisions of Title 18 of the

United States Code. See, e.g., 18 U.S.C. § 471 (counterfeiting); 18 U.S.C. § 1001 (false statements to Government

officials); 18 U.S.C. § 1341 (mail fraud). We are unwilling to attribute such a sweeping meaning to this language ...”).

Id.; see also Atlantic Green Sea Turtle v. County Council of Volusia County, 2005 U.S. Dist. LEXIS 38841 (2005)

(holding that just because the Endangered Species Act said that violations of regulations “shall” be enforced, the statute

did not remove agency enforcement discretion).

Heckler, 470 U.S. at 833 n.4 (citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973).

Id.

480 F.2d 1159 (1973).

42 U.S.C. §2000d-1.

Adams, 480 F.2d at 1162.

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only requires the agency to enforce the Act, but also sets forth specific enforcement

procedures.”53 The court appeared to give great weight to the scope of the Secretary’s nonenforcement, noting, “More significantly, this suit is not brought to challenge HEW’s decisions

with regard to a few school districts in the course of a generally effective enforcement program.

To the contrary, appellants allege that HEW has consciously and expressly adopted a general

policy which is in effect an abdication of its statutory duty.”54

The court determined that HEW had consistently and unsuccessfully relied on voluntary

compliance as a means of enforcing Title VI without resorting to the more formal and effective

enforcement procedures available to the agency. This “consistent failure” was a “dereliction of

duty reviewable in the courts.”55

Given the sparse case law associated with this exception, it is difficult to assess what level of nonenforcement constitutes an abdication of statutory responsibilities. It seems that if an agency

announced that it would no longer enforce a provision of law against any individual at any time,

regardless of the nature of the violation, a court could be willing to review the policy. Whether

more limited non-enforcement policies—for instance if an agency announced that it will not

enforce a particular provision against a particular group or that it will delay enforcement of a

particular provision for a specified period of time—could also be subject to review would appear

to be less clear. For example, in Schering Corp. v. Heckler, the D.C. Circuit held that the FDA

decision not to pursue an enforcement action against a drug manufacturer for a specific period of

time fell “squarely within the confines of [Heckler]” and was therefore not reviewable.56

It is clear, however, that announced agency policies of widespread non-enforcement are much

more likely to satisfy the “statutory abdication” standard than more traditional, case-by-case,

enforcement decisions. Indeed, in Crowley Caribbean Transportation v. Pena, the D.C. Circuit

made a clear distinction between “single-shot non-enforcement decisions” on one hand, and “an

agency’s statement of a general enforcement policy” on the other.57 The court determined that an

agency’s “general enforcement policy” was reviewable where the agency had (1) “expressed the

policy as a formal regulation”; (2) “articulated [the policy] in some form of universal policy

statement”; or (3) otherwise “[laid] out a general policy delineating the boundary between

enforcement and non-enforcement” that “purport[s] to speak to a broad class of parties.”58 The

court articulated its reasons for finding review of general enforcement policies to be appropriate

as follows:

By definition, expressions of broad enforcement policies are abstracted from the particular

combinations of facts the agency would encounter in individual enforcement proceedings. As

general statements, they are more likely to be direct interpretations of the commands of the

substantive statute rather than the sort of mingled assessments of fact, policy, and law that

Id.

Id. The court also noted that HEW was playing an affirmative role in the violation of federal law by “actively

supplying segregated institutions with federal funds.” Id. The court acknowledged that it is one thing to say the agency

“lacks the resources necessary to locate and prosecute every civil rights violator” and “quite another to say HEW may

affirmatively continue to channel federal funds to defaulting schools.” Id.

Id. at 1163.

779 F.2d 683, 685 (D.C. Cir. 1985). The agency had bound itself not to initiate an enforcement action by the terms of

a settlement agreement.

37 F.3d 671, 676 (D.C. Cir. 1994).

Id. at 676-77.

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A Primer on the Reviewability of Agency Delay and Enforcement Discretion

drive an individual enforcement decision and that are, as Chaney recognizes, peculiarly

within the agency’s expertise and discretion. Second, an agency’s pronouncement of a broad

policy against enforcement poses special risks that it “has consciously and expressly adopted

a general policy that is so extreme as to amount to an abdication of its statutory

responsibilities,” a situation in which the normal presumption of non-reviewability may be

inappropriate. Finally, an agency will generally present a clearer (and more easily

reviewable) statement of its reasons for acting when formally articulating a broadly

applicable enforcement policy, whereas such statements in the context of individual

decisions to forego enforcement tend to be cursory, ad hoc, or post hoc.59

Procedural Requirements for Implementing a Delay

Whether an agency must follow notice and comment rulemaking procedures when it declares its

intent to delay enforcement of certain provisions of a statute depends on whether the declaration

is considered a “rule” for the purposes of Section 553 of the APA. Only “legislative rules” are

subject to the informal rulemaking procedures outlined in the APA; an agency may promulgate

guidance documents and interpretive rules without having to undergo notice and comment

procedures.60 A party may challenge an agency’s characterization of any action and argue that a

particular statement should have been issued pursuant to notice and comment procedures.61

However, courts sometimes have difficulty differentiating between general statements of policy,

such as guidance documents, and legislative rules.62

Courts have described a legislative rule to be a rule through which an agency “intends to create a

new law, rights or duties,” or a rule that is “issued by an agency pursuant to statutory authority

and which implement[s] the statute.”63 Similarly, one court explained that a rule is legislative if

“in the absence of the rule there would not be an adequate legislative basis for enforcement action

or other agency action to confer benefits or ensure the performance of duties.”64 Notably, courts

distinguish legislative rules from guidance documents because they have a binding effect: “[I]f a

statement has a present-day binding effect, it is legislative.”65

Guidance documents, which are not defined by the APA, generally are considered to be a

particular type of agency rule, known as a “general statement of policy.”66 The APA provides that

an agency may issue these general statements of policy without having to undergo notice and

comment rulemaking procedures.67 According to the Office of Management and Budget’s

Id. at 677 (citations omitted).

5 U.S.C. §553.

5 U.S.C. §706(2)(D).

See Community Nutrition Institute v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (citing cases and articles that

describe the distinction as “fuzzy,” “blurred,” and “enshrouded in considerable smog”); Hoctor v. United States Dep’t

of Agriculture, 82 F.3d 165, 167 (7th Cir. 1996); JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 75

(4th ed. 2006).

General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) (en banc); TOM C. CLARK, ATTORNEY

GENERAL, ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 30 n.3 (1947), available at

http://www.law.fsu.edu/library/admin/1947iii.html.

American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106, 1112 (D.C. Cir. 1993).

Community Nutrition Institute v. Young, 818 F.2d 943, 946 n. 4 (D.C. Cir. 1987).

5 U.S.C. §553(d)(3)(A).

Id.

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A Primer on the Reviewability of Agency Delay and Enforcement Discretion

(OMB’s) Final Bulletin on Agency Good Guidance Practices, the term “guidance document” is

defined as “an agency statement of general applicability and future effect, other than a regulatory

action … that sets forth a policy on a statutory, regulatory or technical issue or an interpretation of

a statutory or regulatory issue.”68 Similarly, the Supreme Court has defined the term “general

statement of policy” to be a statement “issued by an agency to advise the public prospectively of

the manner in which the agency proposes to exercise a discretionary power.”69 Therefore,

guidance documents do not create new legal obligations on the public, but, instead, inform the

public on how an agency intends to carry out certain agency functions. One court notes that a

statement cannot be characterized as a guidance document, and is instead a legislative rule, if the

pronouncement “narrowly limits administrative discretion or establishes a binding norm.”

Although it can be difficult to ascertain whether a court would characterize an agency statement

delaying enforcement actions as a guidance document or a legislative rule, the following

examples of such agency statements may provide some guidance on this issue.70

Exercising Enforcement Discretion

It appears that, at least in some circumstances, a statement addressing agency enforcement

priorities could qualify as a guidance document. When an agency declares that it will only

enforce a particular law at a certain time or under certain circumstances, it is not imposing a new

legal obligation on the public. In fact, the underlying legal obligation technically remains in

effect. Instead, the agency has simply informed the public that it will not seek to enforce the

provisions of the statute in the enumerated situations.71 As addressed in Heckler, it seems the

agency could be viewed as exercising administrative discretion when it determines that

enforcement of the law in a particular situation should not proceed.72 Because an agency’s

decision to enforce a statute in a given situation is discretionary,73 an agency’s announcement of

its enforcement policy would appear to qualify as a guidance document under the Supreme

Court’s decision in Lincoln v. Vigil, which describes a general statement of policy as a statement

“issued by an agency to advise the public prospectively of the manner in which the agency

proposes to exercise a discretionary power.”74 Further, because such a declaration would not

appear to impose any new legal obligations on the public, it would seem that a court could

Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3439

(January 25, 2007).

Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting TOM C. CLARK, ATTORNEY GENERAL, ATTORNEY GENERAL’S

MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 30 n.3 (1947)).

It is worth noting that under the traditional form of agency delay—that is, where an agency fails to take a discrete

action by a statutory deadline—no rulemaking is required. Often, the agency has not been able to accomplish the

required action within the time provided by Congress. In this type of situation, the agency simply has not taken any

action; therefore, no rulemaking procedures are required. However, as mentioned above, an agency may be subject to a

suit by a party seeking to compel the agency to take action. See 5 U.S.C. §706.

For example, see Fish and Wildlife Service, Director’s Order No. 210 §2(b) (February 25, 2014), as amended (May

15, 2014) (declaring that, as a matter of enforcement discretion, the Fish and Wildlife Service intends not to enforce the

moratorium on the importation of African elephant ivory if the ivory is part of a household move or an inheritance),

available at http://www.fws.gov/policy/do210.pdf.

See Heckler, 470 U.S. 821.

See, e.g., id.

Lincoln, 508 U.S. at 197 (quoting TOM C. CLARK, ATTORNEY GENERAL, ATTORNEY GENERAL’S MANUAL ON THE

ADMINISTRATIVE PROCEDURE ACT, at 30 n.3 (1947)).

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A Primer on the Reviewability of Agency Delay and Enforcement Discretion

determine that such a statement would not require notice and comment procedures prior to

promulgation.75

For example, on July 3, 2013, the Internal Revenue Service (IRS) issued Notice 2013-45

(Notice), stating that the IRS would not enforce the “employer mandate” of the ACA during 2014

in order to allow for “additional time for input from employers” on how the law can be

effectively implemented.76 The Notice further encourages employers to “voluntarily comply with

the information reporting provisions.”77 The IRS promulgated the Notice without undergoing

notice and comment rulemaking procedures. However, the IRS does not appear to impose a new

legal obligation on any parties, but, rather, the IRS seems to notify the public of its intent to not

enforce these provisions against employers during 2014.78 A court would likely find that such a

statement is a guidance document, because it merely notifies the public on how the agency plans

to perform a discretionary function—enforcement discretion.79

However, in other circumstances, an agency’s declaration of a delay or enforcement policy could

require notice and comment procedures. In February 2014, the IRS announced final regulations

implementing the employer mandate from the Affordable Care Act.80 In those regulations, the IRS

provided for “transition relief” from the employer mandate tax for certain employers—that is,

qualifying employers would not have to pay the tax.81 In order to be eligible for transition relief,

employers must certify that they have met certain requirements established by the agency.82 Here,

because the IRS is requiring employers to conduct a specific activity in order to be eligible for the

transition relief—that is, provide certification—the transition relief is imposing a legal obligation

on a party in order to qualify for a specific form of tax treatment. It would appear that an agency

taking this approach to delaying a statutory provision would have to use informal rulemaking

procedures because the agency would impose a legal obligation on a party, who wanted to benefit

from the delay.83

Missing Statutory Deadlines

Under the other form of agency delay—that is, where an agency fails to take a discrete action by

a statutory deadline—no rulemaking is required. Often the agency has simply not been able to

accomplish the required action within the time provided by Congress. In this type of situation, the

agency has not taken any action; therefore, no rulemaking procedures are required. However, as

See General Motors Corp., 742 F.2d at 1565; American Mining Congress, 995 F.2d at 1112.

Internal Revenue Service, Notice 2013-45, NOT-129718-13 (July 3, 2013), available at http://www.irs.gov/pub/irsdrop/n-13-45.PDF.

Id.

See id.

This report does not opine on the legality of the IRS policy, but rather notes that a court would likely find that to

release such a statement would not require notice and comment procedures.

Department of the Treasury, Internal Revenue Service, Shared Responsibility for Employers Regarding Health

Coverage; Final Rule, 79 Fed. Reg. 8544 (February 12, 2014), available at http://www.gpo.gov/fdsys/pkg/FR-2014-0212/pdf/2014-03082.pdf.

Id. at 8574.

Id.

See Community Nutrition Institute, 818 F.2d at 946 n. 4.

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A Primer on the Reviewability of Agency Delay and Enforcement Discretion

mentioned above, an agency may be subject to a suit by a party seeking to compel the agency to

take action.84

Author Contact Information

(name redacted)

Legislative Attorney

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

(name redacted)

Legislative Attorney

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

It is worth noting that if an agency promulgates a rule after the statutory deadline for issuing such a rule has passed,

the delayed rule would still be valid, unless the underlying statute provides otherwise. Barnhart v. Peabody Coal Co.,

537 U.S. 149, 155, 171-72 (2003).

Congressional Research Service

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