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Food Law Casebook

Center for Food Safety v. Hamburg

1. Compel agency action unlawfully withheld. The Administrative Procedure Act provides that federal courts may compel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706 (1). Because agencies may choose to pursue a set of priorities different than a particular citizen or group or citizens prefers, courts tend to be quite deferential when evaluating such claims. In Norton v. Southern Utah Wilderness Alliance, the Supreme Court held that 706(1) only applies to discrete agency actions as opposed to general enforcement or policy priorities. Unreasonable delay challenges tend to be very difficult to win. The one exception is when a statute imposes specific deadlines for particular agency actions. 2. Deadlines. Statutory deadlines were increasingly used by Congress over the past few decades. See Jacob E. Gersen & Anne Joseph O’Connell, Deadlines in Administrative Law, 156 U. Penn. L. Rev. 924 (2008). One reason may be that deadlines allow Congress to control the agency’s policy priorities. Absent a deadline, the agency would be free to pursue other rules or regulations first, putting the statutory obligations further down the to do list. A deadline controls the order in which the agency embarks on different policies. 2. Remedies. What is the remedy for the failure to meet a statutory deadline? Justice Scalia once argued that if an agency fails to enact a rule by the statutory deadline, the agency loses the legal authority to promulgate the rule at all. That argument, however, has failed to carry the day. In almost all cases, the remedy for failing to meet a deadline is either an order like the one issued in Hamburg—to meet with the parties and come up with a timeframe for taking the required action; or, an order to take action by a new court-ordered deadline. Such remedies are better than nothing, but when the agency failed to meet one deadline, it is hardly a sufficient remedy to impose another legal obligation to meet another deadline. 3. First Wave and Second Wave. While challengers complained the FDA had failed to act quickly enough, the FDA argued that the new rules were complex and challenging. Rather than issue bad rules quickly, the agency sought to promulgate the required rules in stages or waves. What is wrong with the FDA attempting to take one step (or in this case, several steps) at a time? Should it matter if the timeline imposed by Congress is realistic? Consider that the package of financial regulation known colloquially as Dodd-Frank imposed hundreds of deadlines, the vast majority of which were missed by implementing agencies because they were unrealistic. See Jacob Gersen, Administrative Law Goes to Wall Street, 65 Admin. L. Rev. 689 (2013). 4. Aftermath. In the aftermath of litigation, the FDA eventually implemented all of the new rules required by the Food Safety Modernization Act. We consider many of them later in this chapter.