Self-Imposed Agency Deadlines.

• Author: Mastrodimos, Mariah
• Position: Regulatory deadlines

Table of Contents Introduction I. Why Do Agencies Adopt Regulatory Deadlines? A. Deadlines as Entrenchment 1. Deadlines to enact specific rules 2. Deadlines to publish almost-completed rules 3. Deadlines to repeal rules 4. Standing deadlines to implement regulatory requirements B. Deadlines as Credible Commitments 1. Commitments to enforce C. Potential Objections: Effects of Repeals II. Regulatory-Deadline Doctrines A. Getting in the Door: Jurisdictional Hurdles B. Inconsistent Results: Must Agencies Follow Their Own Rules? 1. The rationale behind nonenforcement of regulatory deadlines 2. Regulatory-deadline enforcement through the Accardi doctrine a. The Accardi doctrine b. Accardi in regulatory-deadline suits C. Is Accardi a Sound Doctrinal Basis for Enforcement? 1. Problems with Accardi in regulatory-deadline cases 2. A rule-of-law rationale for Accardi III. The Normative Stakes of Enforcing Regulatory Deadlines A. Benefits of Enforcing Regulatory Deadlines B. Costs of Enforcing Regulatory Deadlines Conclusion Introduction

Federal agencies--like us--work under deadlines. Deadlines require agencies to complete specific actions, such as rulemaking, by certain dates. Agencies receive deadlines from the gamut of institutional actors: Congress, (1) the president, (2) and the courts. (3) Deadlines affect virtually every major agency across the spectrum of substantive regulation. For instance, the Environmental Protection Agency, the Department of Commerce, the Department of the Interior, the Department of Health and Human Services, and the Department of Agriculture have all been saddled with hundreds of deadlines over the years. (4) Deadlines have thus become a familiar feature of the modern administrative state.

It is no mystery why this is the case. While neither Congress nor the president can exert complete control over the substance of agency action ex ante, they can use deadlines to control the timing of agency action. (5) Deadlines can reshuffle agency priorities, spur regulatory action, and commit agencies to the enacting legislature's policy goals, even if those lawmakers later lose power. For its part, the judiciary enforces Congress's statutory deadlines (6) and imposes deadlines of its own under the Administrative Procedure Act's (APA) mandate that agencies act within a "reasonable time." (7)

But agencies often miss their deadlines. Agency delay is a chronic problem, (8) with federal agencies failing to meet more than 1,400 statutory deadlines between 1995 and 2014--a success rate of less than 50 percent. (9) The causes are myriad and well-documented: Agencies must dot their is and cross their t's as they jump through the APA's procedural hoops; they must analyze reams of data in order to draft regulatory language; they must comply with numerous executive orders; they must stretch limited resources; and they must balance competing priorities and the demands of competing interest groups. (10) And in many cases, Congress imposes statutory deadlines that are simply impossible to meet. For example, in the Nuclear Waste Policy Act, Congress set a three-year deadline for the Nuclear Regulatory Commission to process the Department of Energy's (DOE) license application to build a nuclear waste facility at Yucca Mountain. (11) The DOE submitted its application in 2008. (12) Congress then repeatedly failed to appropriate funding for either agency to complete this monumental task. (13) By 2012, the DOE had approximately $25 million left in available funds, but estimated that it would need $14 million per month to support its ongoing, multi-year licensing application process. (14) Needless to say, the Nuclear Regulatory Commission missed its deadline. (15)

When agencies fail to meet their deadlines, regulatory beneficiaries are often eager to sue. (16) For decades, missed deadlines have generated substantial litigation and, in many cases, led to thrashings from the courts. (17) To take just one example, an environmental organization sued the Environmental Protection Agency (EPA) for failing to promulgate regulations six years after its statutory deadline had passed. (18) The D.C. District Court declared that the EPA's delay was "egregious" and its brief was "devoid of justification for the agency's laggard performance of its mandatory duties." (19) The court imposed new deadlines and made clear that no further delay would be tolerated. (20)

The story of missed deadlines is thus a familiar one in administrative law. But there is one more actor that imposes deadlines: agencies. In addition to the deadlines set by Congress, the president, and the courts, agencies impose regulatory deadlines on themselves through their rulemaking powers. (21) As every administrative law student knows, rules are "little laws" that carry the full force and effect of federal statutes. (22) So although these deadlines come from regulations, as opposed to statutory deadlines created by Congress, they are nevertheless binding on agencies and enforceable in court by third parties. (23)

And not only do agencies enact their own deadlines--they sometimes miss them. (24) This behavior is puzzling. Given the problems that deadlines can cause, one might think that the last thing an agency would want is more of them. Agencies struggle to balance competing deadlines as it is, and are often caught in judicial crosshairs for noncompliance. (25) Agencies spend years litigating missed deadlines, diverting resources that they could otherwise use to work toward meeting their existing deadlines. (26) Why would agencies risk more litigation by creating additional deadlines for themselves?

Scholars have thus far focused on Congress's statutory deadlines, while regulatory deadlines have gone unnoticed. (27) This is unsurprising--regulatory deadlines are less frequently enacted than statutory deadlines, and even less frequently litigated. (28) But the study of regulatory deadlines is a more fruitful enterprise than this lack of attention may suggest. In particular, it sheds light on "one of the most vexing questions" of administrative law: "what makes an agency tick?" (29) An agency's decision to turn its regulatory powers on itself provides important hints about its ultimate ends.

Studying regulatory deadlines presents an opportunity to peek inside the black box of agency decisionmaking. In investigating the phenomenon of regulatory deadlines, this Note focuses on two related puzzles: (1) Why do agencies set them, and (2) why do courts enforce them?

The payoffs from answering these questions are both practical and theoretical. As a practical matter, this Note surveys the overlapping jurisdictional bases for judicial review of deadline violations. (30) It then provides the first account of what substantive law applies to agency violations of internal regulatory deadlines. The theoretical payoffs include a better understanding of how agencies accomplish their objectives in the face of shifting politics, resources, and administrative law doctrines. The existence of self-imposed regulatory deadlines also raises the antecedent questions of whether agencies should be able to bind themselves to a future course of action in this way, and whether there is a sound legal basis for permitting them to do so.

These questions reach further than one might expect. Regulatory deadlines implicate foundational questions about how the "fourth branch" should operate in our government (31) This Note does not seek to solve separation-of-powers puzzles or delve into the debate over the constitutionality of the administrative state. Rather, it suggests that the study of regulatory deadlines provides a valuable new opportunity to test and assess different theories of administrative governance.

This Note proceeds in three parts. Part I explores the first puzzle of why agencies choose to adopt regulatory deadlines at all. It offers two explanations: Although regulatory deadlines create short-term costs for agencies, they can serve agencies' (and their principals') long-term goals by (1) entrenching their policy preferences and (2) providing a credible commitment mechanism. Part II explores the second puzzle of whether, how, and why courts enforce regulatory deadlines. It first canvasses the overlapping jurisdictional hooks that allow plaintiffs to bring regulatory-deadline suits. Then, it turns to the inconsistent conclusions that courts have reached regarding whether regulatory deadlines are enforceable. For courts that do enforce them, this Note traces the doctrinal roots of enforcement to the Accardi principle--an old, often misunderstood doctrine that the Supreme Court has all but abandoned. Yet Accardi is still enjoying its heyday in the lower courts, which are applying it in unexpected ways. Part II argues that courts' existing application of the doctrine in regulatory-deadline suits appears logical at first glance, but is underdeveloped and unsupported by Supreme Court precedent. Part II then offers a new rationale for judicial enforcement of regulatory deadlines under the Accardi rule. Finally, Part III grapples with the normative question of whether regulatory deadlines should be enforced against agencies.

1. Why Do Agencies Adopt Regulatory Deadlines?

   On the surface, an agency's choice to adopt regulatory deadlines appears contrary to its interests. An agency might miss its deadline and face a lawsuit, an expensive and time-consuming prospect for both agency lawyers and other agency personnel, who may need to testify, submit declarations, or be deposed. (32) Violating deadlines can also expose agencies to harsh public criticism (33) and, in extreme cases, court-imposed sanctions. (34) Furthermore, self-imposed deadlines limit agencies' ability to adapt to changing conditions. If an agency decides that it needs to begin regulating some new phenomenon, it will be difficult to change course if the agency has set an enforceable deadline to do so. Yet against this...