Bret Kupfer

Document Type



When an agency fails to abide by a statutory mandate, aggrieved parties may petition the courts for an order compelling the agency to act. In the interest of Congress’s constitutional power, courts will grant the petition and force agencies to comply. However, it is unclear whether an agency violates a statutory mandate when Congress intentionally withholds adequate funds to comply with the mandate. On August 13, 2013, the United States Court of Appeals for the District of Columbia Circuit ordered the Nuclear Regulatory Commission to spend $11.1 million in carryover appropriations to review an application for a nuclear waste repository in Yucca Mountain. Congress has not provided additional funding in the last three years, and the $11.1 million is grossly inadequate to complete the statutory mandate. The order will produce no measurable benefit to the petitioners or the public, and the waste of funding is an absurd result that Congress never intended. A review of decisions across other circuits shows a split on whether a writ of mandamus is always appropriate when an agency fails to meet a statutory mandate. Conjoining the factors considered in those opinions, this Note lays out an alternative to forcing agencies to act when there is near certainty the action will not expedite relief for the claimant due to a lack of future appropriations.