The Case for Strict Statutory Construction of Mandatory Agency Deadlines under Section 706(1)

By Zaller, Catherine | William and Mary Law Review, April 2001 | Go to article overview
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The Case for Strict Statutory Construction of Mandatory Agency Deadlines under Section 706(1)

Zaller, Catherine, William and Mary Law Review

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.


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.

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The Case for Strict Statutory Construction of Mandatory Agency Deadlines under Section 706(1)


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