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-
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.
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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.
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.
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.