Abstract
Judicial review of administrative agency delay or inaction presents
delicate questions about, and potent opportunities to define, the balance
of power within the American system of governance. Recently, a
significant backlog of Medicare appeals for healthcare providers has
spawned litigation, with providers asking the courts to address agency
delay by compelling action through a writ of mandamus. Though relying
on substantively similar factual bases, the U.S. Court of Appeals for the
Fourth Circuit and the U.S. Court of Appeals for the District of Columbia
Circuit reached divergent mandamus analyses. Despite differing
outcomes, both analyses suffer from the same fundamental flaws: the
courts not only fail to identify the cause of the problem, but also fail to
design a remedy that addresses that cause. This Note argues that courts
should make an explicit factual finding of possibility before issuing a writ
of mandamus against an administrative agency due to inaction or delay.
Adding this element in the initial mandamus inquiry will help courts
avoid dictating policy priorities, avoid infringing on the legislative
funding power, and accord proper respect to the underlying principles of
the separation of powers within the American system.