Martin v. O’Rourke, 891 F.3d 1338 (June 7, 2018)
HELD: The multi-factorial TRAC standard is the appropriate standard for the CAVC to use in evaluating petitions for writs of mandamus based on unreasonable delay.
SUMMARY: In evaluating mandamus petitions based on unreasonable delay, the Court has applied the standard from Costanza v. West, 12 Vet.App,. 133 (1999) (per curiam), that requires a petitioner to demonstrate that “the delay he complains of is so extraordinary, given the demands and resources of the Secretary, that the delay amounts to an arbitrary refusal to act, and not the product of a burdened system.”
The Federal Circuit held that this standard was “insurmountable,” and that the more appropriate standard was the one set forth in Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 76 (D.C. Cir. 1984). The Federal Circuit noted that other courts have used the TRAC standard when evaluating petitions based on an administrative agency’s unreasonable delay – and found that the TRAC framework was more appropriate than the CAVC’s current Constanza standard.
The TRAC framework requires courts to consider six factors:
(1) the time agencies take to make decisions must be governed by a “rule of reason”;
(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;
(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and
(6) the court need not find “any impropriety lurking behind agency lassitude” in order to hold that agency action is unreasonably delayed.
The Federal Circuit remanded for the CAVC to use the TRAC framework as guidance in evaluating petitions based on delay.