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. Delays can also negatively affect regulated entities that must wait for final agency action. 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." 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. Claims for unreasonable delay can be brought under the APA against an agency in court. 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. 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. 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. Circuit, in Telecommunications Research & Action Center v. FCC (" TRAC "), established guidelines to consider when determining whether an agency delay warrants mandamus compelling the agency to act. 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. Circuit has noted that "[t]here is no per se rule as to how long is too long to wait for agency action," and it can be hard to determine which TRAC factor a court will decide to rely on most heavily. 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. 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. In Forrest Guardians v. Babbitt , 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. Ultimately, however, the determination is made on a fact specific, case-by-case basis.
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.