The case for strict statutory construction of mandatory agency deadlines under section 706(1).

• Author: Zaller, Catherine
• Position: Administrative Procedure Act

Administrative law is a complex field replete with regulations and delicate separation of powers issues. Indeed, "[a]dministrative law is not for sissies...."(1) The various factors at play in administrative law make the seemingly most elementary facets hard to understand.

The problems in administrative law are amplified by the role of politics. Administrative law influences the way agencies make policy.(2) Agencies are thus among the most important players in the formation and approval of policy.(3) Although the most obvious ways that agencies make policy are through positive rulemaking and adjudication measures,(4) agencies also set policy through inaction.(5)

Agencies often set policy by not doing anything at all.(6) When an agency does not make the requisite regulations through either rulemaking or adjudication, the agency maintains the status quo. This inaction is thus itself a form of policymaking in the sense that it prevents the legislative and executive branches from implementing enacted legislation. Congress needs the agencies to carry out its laws by passing specific rules. Otherwise, congressional mandates are thwarted.

In an effort to ensure that agencies implement enacted legislation, Congress mandated judicial review of agency inaction and delay in section 706(1) of the Administrative Procedure Act (APA).(7) Section 706(1) enables the judiciary to review agency behavior and ensure that it comports with the statutory requirements set forth by Congress either in the enabling statute or in the default standards of the APA.

Recent decisions out of the Tenth Circuit(8) have invigorated the debate over the role of agency inaction in agency policymaking decisions. Although some courts have encouraged judicial discretion when determining whether agency inaction is unlawful,(9) other courts have found that the language in section 706(1) is strictly binding in the area of statutorily imposed deadlines.(10) Circuit courts are now split over whether courts have discretion when an agency misses a mandatory deadline or if they are mandated by law to force the agency to act without granting discretion to agency priorities.(11)

This Note explores the problems of agency inaction and delay in violation of statutory requirements. First, this Note discusses the legislative history of section 706(1) to determine congressional intent. Second, this Note examines the conflicting cases that fuel the confusion over the appropriate remedy for agency inaction. Finally, this Note concludes that section 706(1) requires strict statutory construction that requires judges to prohibit agencies from violating a mandatory statutory deadline unless the agency has an impossibility defense. As a result, although agencies are important policymaking entities, they must respect congressional intent evident in blatant statutory deadlines. When agencies do not abide by congressional mandates, courts must require immediate action in compliance with the law.

BACKGROUND: THE STATUTE AND ITS LEGISLATIVE HISTORY

The APA granted judicial review of agency behavior in section 706.(12) Although section 706 as a whole grants judicial review, section 706(1) specifically addresses the issue of agency inaction.(13) On its face, the statute is extremely clear. Section 706(1) states that a court shall "compel agency action unlawfully withheld or unreasonably delayed."(14) Although this language is strong and does not appear to leave anything open for debate, courts disagree over whether Congress intended to allow any room for discretion.(15)

Legislative History

The legislative history of the APA supports the idea that Congress intended courts to force agencies to implement legislation. One basis for this support is the Senate Judiciary Committee report of May 1945 that discussed the upcoming APA.(16) This report contained earlier versions of the APA that had the same language requiring the judiciary to force agency action when it was unlawfully withheld or unreasonably delayed.(17) The Senate report noted that the authority granted to the judiciary under the judicial review clause did not allow the courts to strip agencies of discretion in determining how an agency should carry out legislation.(18) Rather, the Senate simply wanted the court to direct the agency to act without dictating what process the agency should use.(19)

The Senate Committee on the Judiciary Report on S.7, A Bill to Improve the Administration of Justice by Prescribing Fair Administrative Procedures,(20) which was made public on November 19, 1945, also discussed the aims behind the Act. This report discussed the ability of interested parties to petition the court to force agency action.(21) Thus, this second report identified the problem of agencies not abiding by congressional guidelines. Congress wanted to fix this problem by allowing courts to force the agencies to listen to their mandates.

The Attorney General's Interpretation(22) also discussed the passage of the judicial review clause of the APA. This report stated that the precursor to section 706(1) contained the entire scope of judicial review.(23) Although the report noted that Congress was not granting the courts any nonjudicial powers, it did explicitly state that the purpose of the bill was to give the courts a tool with which they could force the agency to act according to congressional will.(24) The Attorney General's Interpretation thus supports the proposition that courts should compel agencies to act without exercising any discretion.

Finally, the House Committee Proceedings help to determine the purpose behind the APA.(25) The House of Representatives noted that the APA delegated the ability to decide issues of law to the judiciary.(26) Furthermore, the statute enabled people to petition courts to force agencies to act when "they improvidently refuse to act."(27) The House proceedings also noted that the Act was intended to speed up the process of requiring agencies to act when Congress so desired.(28) When the House focused on compelling agencies to act when they "improvidently" refused to do so, it endorsed the idea that agencies should not be able to ignore congressional mandates. Although the House Committee Proceedings did not explicitly mention statutory deadlines, it does support the underlying idea of compelling agencies to observe congressional will.

The legislative history of the APA thus demonstrates that Congress was intent on finding a way to force the agencies to comply with legislation. Congress was concerned about lengthy delays resulting in a circumvention of legislation and intended section 706(1) to remedy the situation.(29) The legislative history makes it clear that Congress intended for the judiciary to use the Act to ensure that its policies were fully implemented by agencies.

The Attorney General's Manual on the APA(30)

Aside from congressional records, the Attorney General's Manual is one of the most comprehensive and respected reports on the APA.(31) The Manual provided an explanation of the Act to be followed by the Justice Department. The Manual noted that the APA's section on judicial review is a "restatement of [the] existing judicial practice"(32) of mandamus(33) in the area of agency inaction and delay.(34) Courts are not allowed to substitute their own discretion for agency discretion(35) when forcing the agency to act on congressional mandates.

The Attorney General's Manual compared the APA to mandamus and noted that "[o]rders in the nature of a writ of mandamus have been employed to compel an administrative agency to act ... or to compel an administrative agency or officer to perform a ministerial or non-discretionary act. [The judicial review provision] was apparently intended to codify these judicial functions."(36) This reference to mandamus illustrates how the judicial review provision works.

The Manual used two cases, Safeway Stores, Inc. v. Brown(37) and Interstate Commerce Commission v. United States of America ex. rel Humboldt Steamship Co.,(38) to discuss the APA's relationship to mandamus. In Humboldt, the Court noted that parties could petition the Court for mandamus in order to compel an agency to act.(39) The case revolved around whether Alaska, not yet a state, fell under the definition of a territory under an act requiring railroads to post schedules.(40) Mandamus was commonly used to direct officials to act without controlling the discretion of the officials.(41) The Court noted that "if [the official or agency] absolutely refuse[s] to act, den[ies] its power, from a misunderstanding of the law, it cannot be said to exercise discretion."(42) Mandamus could thus be used to force an administrative official to act without stripping the agency of discretion. Humboldt is important because it allowed the courts to have jurisdiction over agencies and to compel them to act when Congress had so required.(43) Therefore, the Attorney General's Manual suggests that the judiciary does have jurisdiction to compel agencies to act as long as they do not strip them of their discretion in the manner in which agencies carry out congressional demands.

The second case that the Attorney General's Manual discussed is Safeway Stores, Inc. v. Brown. This case was decided close in time to the debate over the new APA. Although the court did not grant relief in this case, it did indicate that if the party had requested a writ of mandamus, it would have provided relief.(44) Safeway Stores is important in understanding the APA because it demonstrates that Congress recognized a clear need for a mandamus-type action for the courts in agency inaction cases. Congress wanted to ensure that there was a remedy for agency inaction and to give parties access to a remedy.

The Attorney General's Manual provides insight into the basis for the APA. It, along with the relevant case law, makes clear that Congress intended to create a cause of action for interested parties to petition the...