Negotiating the Federal Government's Compliance with Court Orders: An Initial Exploration

Abstract

Judicial review of federal agencies rests on the premise that if a court gives an order to an agency, the agency will obey. Yet the federal government's compliance with court orders is far from automatic, especially with orders telling an agency to act affirmatively, which may strain limited agency resources, interfere with the agency's other legally required tasks, or force the agency to act on deficient information. An agency may invoke these difficulties to convince a judge that it should be cut more slack-that is, given more latitude (especially more time) to comply. Judges often find the agency's difficulties to be quite real and hold back from demanding strict and rapid compliance. Thus, whether an agency must actually do what a court has ordered, and on what terms, entails a delicate negotiation between agency, judge, and plaintiff These compliance negotiations, despite their great practical importance, are little analyzed or understood in the academic literature, for it is difficult to learn about them through traditional sources like appellate case law. This Essay, drawing upon a large cache of dockets from district court cases in which compliance troubles arose, provides an initial exploration of this unexplored subject. This Essay finds that the central problem in these cases is the judge's access (or lack of access) to information about why the agency is falling short and whether it could do more. On this theme, this Essay discusses (1) the kind of information that an agency can provide about its own internal management so as to convince the judge that it is trying hard enough to comply; (2) the imperfect and even crude methods that judges use to discern whether an agency is trying hard enough; and (3) the ways in which judges can employ information-gathering techniques, such as requiring testimony by high agency officials, as quasi sanctions to force the agency to pay more attention to what the court has ordered.