Tuesday, April 2, 2013

CRS Report Released: Administrative Agencies and Claims of Unreasonable Delay: Analysis of Court Treatment

The Congressional Research Service (CRS), the public policy research arm of Congress, recently issued the report Administrative Agencies and Claims of Unreasonable Delay: Analysis of Court Treatment (Mar. 21, 2013). The 14-page report authored by Daniel T. Shedd discusses the following:


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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