Deadlines in administrative law.

• Author: Gersen, Jacob E.

INTRODUCTION I. THEORY A. Institutional Design B. Extensions II. EMPIRICAL ANALYSIS A. Descriptive Overview 1. Deadlines over Time 2. Deadlines by Agency 3. Overlap of Statutory and Judicial Deadlines 4. Importance of Deadline Actions B. Changes in Agency Process 1. Alternative Procedures 2. Extent of Public Participation 3. Duration of Agency Actions III. DEADLINE DOCTRINES A. Agency Inaction B. Late Agency Action C. Procedural Challenges D. Substantive Challenges 1. Chevron 2. Arbitrary and Capricious Review E. Judicial Remedies F. OIRA Review and Constitutional Law G. Summary IV. NORMATIVE IMPLICATIONS CONCLUSION AND FUTURE RESEARCH TABLES AND FIGURES INTRODUCTION

A cottage industry in administrative law studies the various mechanisms by which Congress, the President, and the courts exert control over administrative agencies. Restrictions on the appointment and removal of personnel, (1) the specification of requisite procedures for agency decision making, (2) presidential prompt letters, (3) ante review of proposed decisions by the Office of Management and Budget (OMB), (4) legislative vetoes, (5) and alterations in funding and jurisdiction (6) are all potential mechanisms for controlling agency behavior. This Article focuses on a more basic mechanism of control that has surprisingly gone comparatively unnoticed in the literature on administrative agencies: control of the timing of administrative action. (7) Deadlines requiring agencies to commence or complete action by a specific date are common in the modern administrative state. For example, deadlines are found throughout many modern environmental statutes. (8) Environmental legislation is hardly an exception in this regard, however. Unfortunately, even basic descriptive statistics about the frequency and nature of deadlines are lacking, never mind a fully elaborated theory of regulatory deadlines. (9) This Article provides a doctrinal, theoretical, and empirical analysis of deadlines in administrative law.

Administrative deadlines are important for several reasons. First, notwithstanding the range of potential tools Congress uses to control the bureaucracy, specifying the content of agency rulemakings or adjudications is often difficult, if not impossible, ex ante. (10) A central premise of the administrative state is that agencies have better information and greater expertise than Congress, thus the need for delegation to agencies. (11) Because narrow delegations with extensive substantive restrictions would eliminate agency discretion and expertise in policymaking, it is rare that Congress specifies the actual content or substance of agency decisions. Absent the ability to regulate content directly, the most obvious way of controlling agency behavior is to regulate either the method or the timing of agency decision making. The former has received exhaustive attention in administrative law. Structure and process scholars have long emphasized the importance of procedural requirements in organic statutes, the Administrative Procedure Act (APA), (12) administrative common law, (13) and the Constitution. (14) Efforts to regulate the timing of agency decisions have received virtually no attention comparatively. (15)

Second, delay is an increasingly prominent fixture in administrative law. (16) A recurrent complaint about regulatory policy in the 1980s and 1990s was that agency decision making was crumbling under burdensome and time-consuming procedural requirements of the APA and organic statutes, as interpreted by the courts. (17) When agencies act slowly, or refuse to act at all, (18) courts are rarely in a position to dictate specific outcomes. Essentially the only remedy available is to order some agency action within a specified time period--that is, to impose a deadline. Although prior scholarship has occasionally analyzed the effects of deadlines, (19) the commentary contains virtually no consistent and systematic conclusions based on empirical data about the use and implications of deadlines in administrative law. (20)

Both of these justifications emphasize the use of deadlines to control agencies. Deadlines also illustrate several potential problems for the internal coherence of administrative law. A running theme in administrative law cases and commentary is the preservation of agency flexibility. (21) Courts are typically hesitant to overrule agency decisions about whether to utilize rulemaking or adjudication to produce policy, (22) whether to utilize formal or informal methods, (23) or whether to pursue a given enforcement or adjudication. (24) The explanations for these doctrines are many, but one key reason is that agencies themselves (rather than external actors) should determine how best to allocate internal resources. (25) Administrative deadlines run counter to these strands of doctrine because in a world of limited resources, deadlines reshuffle agency resources from nondeadline actions to deadline actions. In certain contexts this may be desirable, but it is also at odds with core themes in the law of the administrative state. Using newly assembled data, (26) this Article establishes how often deadlines are used, against which agencies they are levied, and what the direct and indirect effects of deadlines are on agency actions. Part I provides a theoretical framework for analyzing the use and misuse of deadlines. We focus on the reasons Congress might choose to control agencies using timing restrictions instead of either substantive constraints or structure and process restrictions.

Part II presents an empirical portrait of administrative deadlines. We present data on the frequency, nature, and type of deadlines used to structure agency decisions. Deadlines generally do increase the pace of agency action, but these effects are modest. Not surprisingly, deadlines tend to be imposed on more important and significant regulatory actions, and the vast bulk of deadlines are issued against just a handful of administrative agencies. Out of a concern for related changes in administrative decision making, we also ask whether agency decisions constrained by deadlines are more likely to be issued using different procedures than nondeadline decisions. Deadlines are associated with interim final rulemaking, a deviation from the ordinary mode of notice and comment informal rulemaking.

Part III examines "deadline doctrines": the way that courts address the presence of deadlines in administrative law. When a statutory deadline exists, many courts excuse agency failures to use required procedures; some courts relax the intensiveness of substantive review. (27) In other contexts, the presence of deadlines makes legal challenges both more likely to survive threshold questions, allowing litigation to proceed, and more likely to result in agency defeats. (28) Many of these deadline doctrines are in tension with standard themes in administrative law.

Against this backdrop, Part IV presents some tentative normative implications. For example, if courts tend to exempt deadline actions from notice and comment procedures, agencies may intentionally avoid the costly and time-consuming process of notice and comment regulation. To the extent that public input and reasoned agency deliberation are valuable, deadlines often undermine those goals. There are many nuances and countervailing effects discussed more extensively below. The analysis, however, illustrates many of the risks and benefits from deadlines. In any given policy domain, deadlines can force desirable agency action, prompting welfare-maximizing or accountability-enhancing action by recalcitrant agencies. Deadlines can, however, also produce undesirable side effects, such as costly uncertainty and delay in domains where action is important, lower-quality decisions for deadline-constrained actions, and procedural shifts toward less desirable modes of decision making.

1. THEORY

   Deadlines for administrative agencies are generally imposed by Congress. Theories of congressional choice are legion, and we attempt to remain generally agnostic as between them. Perhaps Congress should be treated as a single institution for decision making; or maybe it should be disaggregated, focusing on parties, interests, committees, or individual legislators. Perhaps congressional action is best understood from the perspective of public choice. At the margin, these theories trade off parsimony and accuracy. Although we assume the interaction between Congress and the bureaucracy is best modeled as a principal-agent problem, there is no question that these models abstract away from many institutional details. The discussion that follows is therefore somewhat heterogeneous, drawing on insights from several models of congressional behavior. In a sense, we are engaged in "off-the-rack" theorizing. Rather than advance a novel theory of congressional choice as correct, we take the most common theoretical frameworks and apply them to deadlines, progressively relaxing or expanding assumptions. The analysis begins with a simplified problem of institutional design, assuming a unitary Congress, agency, and court. This assumption is then relaxed, emphasizing how intra- and inter-institutional heterogeneity affects the use and misuse of deadlines.

   1. Institutional Design

      Suppose there are three actors--a principal, an agent, and a monitor--that correspond imperfectly to Congress, an administrative agency, and a court, respectively. The design problem for Congress involves four decisions: (1) delegation versus congressional casework, (2) substantive discretion, (3) procedural restrictions, and (4)judicial enforcement. Assume Congress prefers the policy that is implemented to be closer to its preferences (a simple spatial model). (29)

      Suppose the principal seeks to accomplish some arbitrary end, a new policy problem. Congress must first decide whether to generate policy internally, using its own resources, or externally, by...