unlawfully withheld or unreasonably delayed - 5 USC 706(1)

[RICK NEIFELD]

Footnote 6 in  Polaris Innovations Limited v. Brent, 19-1483 (Fed. Cir. 9/15/2022) notes:

 

For the first time at oral argument, Polaris con-

tended that the Board should have acted on its motion ear-

lier pursuant to 5 U.S.C. § 706(1), which permits a

reviewing court to “compel agency action unlawfully with-

held or unreasonably delayed.” See 19-1484 Oral Arg.

at 7:51–8:34. This argument was not included in its briefs

and is therefore waived. See ABS Glob., Inc. v. Cyto-

nome/ST, LLC, 984 F.3d 1017, 1027 (Fed. Cir. 2021).

 

Next sentence in the decision states "The dis-

parity in timing—the Board taking longer to act on Pola-

ris’s motions than Polaris thinks it should have—is not the

sort of arbitrariness in decision-making that § 706(2)(A)’s

“arbitrary [and] capricious” standard was designed to pro-

tect against."

 

The decision does not state that an argument under 706(1) would have failed.

 

So, does anyone have case law relating to whether argument under 706(1) would or would not have failed?

 

 

5 USC 706 - Scope of Review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

 

 

 

[David Boundy]

The lead case on "unreasonable delay" is Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (DC CIr 1984)

https://scholar.google.com/scholar_case?case=11355728301298387431

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[RICK NEIFELD]

But that case is not on point because it deals with interlocutory appeals and mandamus, not an after the fact argument that there was unreasonable delay, and that delay flipped the outcome.

 

Rick

[David Boundy]

Look at Part III.   TRAC was also for decades the lead case on mandamus jurisdiction and forum for interlocutory appeals, until superseded by Thunder Basin Coal Co.  https://scholar.google.com/scholar_case?case=11795099665067254483

[RICK NEIFELD]

Part III does not appear to be relevant to the case at hand since its part III focusses on interlocutory appeals.  Not an after the fact argument, after a final decision.

[David Boundy]

To answer the rest of your question, I don't know of anything on the direct question you ask, where delay flips the outcome.  The closest I know are mootness cases --  an agency can't drag its feet until a single matter is resolved, and then get out of court on mootness.  If it's capable of recurring while evading review, the specific case is not moot.  But that's the closest I know.

All I know on the basic issue is that TRAC is the starting place for unreasonable delay.

[RICK NEIFELD]

I assume that appellant was aware of, and chose not to timely make the "unreasonable delay" argument, due to the usual considerations; space and likelihood of success.  But then why would they raise it during oral argument?  A loser is a loser, right? And a belated loser is a double loser.