Agency Delay

• Pages: 105-107
• Author: Richard J. Pierce, Jr.

105

Chapter 6

AGENCY DELAY

A. The Problem

Agency delay is ubiquitous and frustrating to all participants in

the administrative process. Agencies routinely take one to two years

to act on applications for much needed benefits, such as Social

Security disability benefits and Veteran’s benefits, and a decade or

more to issue a rule that addresses a serious health or safety issue.

It is easy to identify the sources of the p roblem. Congress demands

that agencies perform more and more difficult tasks using

increasingly burdensome and time-consuming procedures with

constantly diminishing resources.

1

The only promising solutions to

the problem are equally easy to identify . Ubiquitous delay in agency

decisionmaking will continue unless and until Congress reduces the

number of tasks it assigns ag encies, reduce s the scope of the

decisionmaking procedures it mandates in statutes, and increases

the funds available to agencies. Of course, none of those actions is

available to an agency or court, so both institutions simply continue

to muddle through with access to legal remedies that are inadequate

to the task.

B. Legal Remedies for Delay

1. The APA Remedy

APA § 706(1) instructs a court to compel agency action that is

“unreasonably d elayed.” Of course, the limit o n th e efficacy of this

remedy is apparent upon considering the difficulty of the judicial task

of determining that delay is “unreasonable.” Even decades of delay in

taking a particular action is not unreasonable if the agency simply

lacks the resources needed to take all of the actions Congress has

instructed it to take. In that universal situation, a court can order an

agency to expedite its action in one case on ly by diverting scarce

resources from other cases that may be equally or more urgent in

nature than the case th at is the subject of the delay petition. That

would require a court to re order an agency’s allocation of its scarce

resources among competing statutory assignments—a task that the

Supreme Court ha s cautioned co urts not to undertake because they

are ill-suited to it.

2

The D.C. Circuit has announced a six-part

1

See Richard Pierce, Judicial Review of Agency Actions in a Period of

Diminishing Agency Resources, 49 Admin. L. Rev. 61 (1997).

2

See Heckler v. Chaney, 470 U.S. 821 (1985).