The Administrative Procedure Act (APA) requires the judiciary to compel unreasonably delayed agency action. This obligation is mandatory. But despite the clear intent of Congress, courts have abdicated their duty to police agency stonewalling. Much of this error stems from the deferential factors that courts apply when litigants ask them to compel agency action through a procedure known as “mandamus.” These factors are known as the TRAC factors, after a DC Circuit case that first established them. But whether or not the TRAC factors are appropriate in mandamus cases, they have been inappropriately extended to APA cases.

The Ninth Circuit is now considering a case in which a decision on a visa application was inexplicably delayed and the applicant has asked the courts to compel an agency decision. And Cato has filed an amicus brief in the Ninth Circuit urging the court to apply the APA’s text—not a separate mandamus test—when determining whether the decision has been unreasonably delayed (with thanks to Felicia Ellsworth, Peter Spaeth, Amanda Baird, and Lauren Valledor of WilmerHale for drafting the brief).

Our brief makes three arguments against applying the mandamus standard to APA claims of unreasonable delay. First, the text of the APA supplies a heightened standard. The APA states that courts “shall compel” unreasonably delayed agency action. In contrast, the Mandamus Act gives courts discretion to award relief—its application is restricted to truly “egregious” cases. These are not mere linguistic differences. Because wrongful delay exists on a spectrum, it is easy to imagine delay that is “unreasonable” under the APA but not “so egregious” as to warrant a discretionary grant of mandamus. Based on these differences, some appellate courts have held that “the APA neither incorporates nor alludes to the mandamus writ.” The Ninth Circuit should do the same and hold administrative agencies to the more stringent APA standard.

Second, the TRAC factors are particularly ill-suited to the early stages of a lawsuit. When considering the early filings in a case, courts can only look to the allegations in a complaint. However, the TRAC standard is a fact-intensive multi-factor inquiry that balances agency priorities against a claim of delay. Numerous facts outside the complaint are necessary to properly decide the issue. For these reasons, courts often defer application of the test until the summary judgment stage, when evidence has accumulated in a case. The Ninth Circuit should allow a summary judgment record to be created.

Third, applying the deferential mandamus standard would contradict the expressed policy of Congress. The TRAC factors were established with deference to the government as their “paramount” consideration. But as the Supreme Court declared in Loper Bright, the APA codified a different proposition: Courts independently decide legal questions. The Ninth Circuit must reconsider its precedent in the wake of Loper Bright.

Congress had good reasons to provide for independent judicial review. Under the TRAC test, courts determine egregiousness by deferring to the average processing time for applicants before an agency. The perverse result is that delay cannot be unreasonable so long as it is typical. What started as modest deference to agencies has turned into a vicious cycle of backlogs justifying heightened deference that creates still greater backlogs.

Worst of all, the flexible TRAC test licenses agencies to ignore timelines for action enacted by Congress. The DC Circuit often waives aside such deadlines as “merely one of six factors” to consider in a delay case. Unsurprisingly, unrestrained agencies routinely blow through expected processing times. In this case, the agency has delayed processing an immigration petition for four years, eight times longer than the intended processing time. Such excessive delays are common throughout the administrative state, contrary to the explicit will of our elected representatives. The Ninth Circuit must not tolerate this abdication of duty under the guise of deference. The court should compel agency action.