Mandamus Archives - Columbia Law Review

Introduction Suppose Congress passes a broad statute intended to resolve an imminent and challenging social problem—whether it be environmental protection, healthcare, or economic growth.[footnote]All three areas have been subject to litigation or public scrutiny over missed deadlines. See, e.g., Cumberland Cnty. Hosp. Sys., Inc. v. Burwell, 816 F.3d 48, 49–50 (4th Cir. 2016) (Medicare reimbursement); Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1169–70 (9th Cir. 2002) (endangered species designation); Forest Guardians v. Babbitt, 174 F.3d 1178, 1181–84 (10th Cir. 1999) (critical habitat designation); In re Barr Lab’ys, Inc., 930 F.2d 72, 73 (D.C. Cir. 1991) (generic drug approval); In re Ctr. for Auto Safety, 793 F.2d 1346, 1347–48 (D.C. Cir. 1986) (fuel economy standards); Sarah N. Lynch, Emails Suggest SEC’s Schapiro Delayed JOBS Act Rule Amid Concerns About Legacy, Chi. Trib. (Dec. 1, 2012), https://www.chicagotribune.com/news/ct-xpm-2012-12-01-sns-rt-us-sec-schapirobre8b100v-20121201-story.html [https://perma.cc/38PZ-WK26] (small-to-midsize business growth); infra note 54 (listing additional environmental cases).[/footnote] As per its usual practice, Congress delegates authority to an agency to implement and enforce the statute. Seeking to ensure that the agency meets its legislative goals, Congress inserts numerous clear and unambiguous deadlines throughout the statute for subsequent agency action. However, election season passes, and the new Congress does not share the ambitions of the prior Congress. Rather than undertake the more politically challenging task of repealing or amending the statute, the new Congress decides to drastically reduce appropriations to the agency, while still appropriating barebones funding that allows the agency to function on a much more reduced level. No longer able to meet its original deadlines, the agency is beset by suits from various interested entities. The suits, under the Administrative Procedure Act (APA)[footnote]5 U.S.C. § 706(1) (2018) (providing that courts have the power to compel agency action that has been “unlawfully withheld or unreasonably delayed”).[/footnote] and other statutes, seek writs of mandamus against the agency to enforce the deadlines.[footnote]Black’s Law Dictionary defines mandamus as “[a] writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, usu[ally] to correct a prior action or failure to act.” Black’s Law Dictionary (11th ed. 2019).[/footnote] This fact pattern is not merely hypothetical; it represents a constant source of agency litigation.[footnote]See supra note 1 (citing instances of agency delay litigation in environmental protection and healthcare contexts).[/footnote] Courts face unique challenges in resolving these suits due to the conflicting pressures of adherence to ostensibly clear textual deadlines, deference to an agency’s management of its own resources, and recognition that resource constraints reduce agency capabilities.[footnote]See, e.g., Nat. Res. Def. Council, Inc. v. Train, 510 F.2d 692, 712–13 (D.C. Cir. 1975) (describing how manpower shortages could justify agency delay). For subsequent constraints on the applicability of Train , see infra notes 67–84 and accompanying text.[/footnote] Moreover, although the harm emerges from a lack of congressional appropriations, Congress is traditionally not an appropriate or necessary party to such suits, and courts thus cannot direct remedies toward Congress. As a result, the doctrine of mandamus in such cases has become muddled, with courts increasingly enforcing deadlines on underresourced agencies.[footnote]See infra section I.B (exploring the longstanding circuit split on whether courts must issue mandamus if agency action is “unlawfully withheld” or “unreasonably delayed” under APA § 706(1) and the availability of an impossibility defense).[/footnote] Such enforcement generates significant social costs by diverting resources from other high-priority issues, producing hastily promulgated and ineffective rules, and incentivizing unnecessary agency action and maneuvering.[footnote]See infra section I.A.2 (discussing the empirical literature on the ineffectiveness of deadline enforcement).[/footnote] This Note argues that early to mid-twentieth-century mandamus doctrine—codified by the APA and the All Writs Act—provides a basis for courts to not issue mandamus, notwithstanding the presence of a statutory deadline. Part I describes the prevalence of agency delay and its policy challenges, particularly for courts tasked with enforcing such deadlines. It then describes current mandamus doctrine, dealing with such situations both inside and outside the context of the APA. Importantly, circuits have split on whether and how to exercise discretion over the issuance of writs of mandamus, with courts generally providing less consideration to equitable concerns, such as effective governance and public administration. Following the discussion of the contemporary context, Part II describes key insights from historical mandamus doctrine concerning the scope of the mandamus inquiry, judicial interpretations of statutory duties, and the relevance of the doctrine in light of the APA. Finally, Part III analyzes two potential ways in which these doctrines could address the deadline conundrum, while noting potential concerns they might raise. It then argues that courts ought to reassert extant principles of effective governance, public administration, and avoidance of “useless” agency action to adjudicate such suits.