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.
Recommended Citation
Faith Proper,
Mission (Im)possibility: Determining When Mandamus is an Appropriate Remedy to Address Agency Delay or Inaction,
72 Fla. L. Rev.
933
(2020).
Available at: https://scholarship.law.ufl.edu/flr/vol72/iss4/6