Further, decisions that Petitti cites to arising in the enforcement context are not persuasive. In her Response brief, Petitti primarily relies on Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982). But in Houseton, the Ninth Circuit did not discuss the adequacy of Title VII's remedies nor hold that an employee can relitigate her administrative remedies without a full trial on liability.
The courts in Pecker and Morris did not analyze the statutory language, nor did they address the implications of Chandler. Rather, the only authority they cited in support of their holdings were Moore v. Devine, 780 F.2d 1559 (11th Cir. 1986), Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982), and Haskins v. United States Dept. of the Army, 808 F.2d 1192 (6th Cir. 1987). See Pecker, 801 F.2d at 711 n. 3; Morris, 985 F.2d at 145-46.
First, complainants who prevail in the administrative process but who — for whatever reason — fail to receive their promised remedy, may sue to enforce the final administrative disposition. See, e.g., Wilson v. Pena, 79 F.3d 154 (D.C. Cir. 1996) (reversing dismissal of action contending that employing agency used improper performance rating in calculating back pay owed pursuant to EEOC finding of discrimination); Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982) (affirming decision requiring employing agency to provide job training awarded in 16-month-old administrative disposition). In such enforcement actions, the court reviews neither the discrimination finding nor the remedy imposed, examining instead only whether the employing agency has complied with the administrative disposition.
. . . . Our discussion in Moore v. Devine, 767 F.2d 1541, is inconsistent with the Ninth Circuit's holding in Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982). The employee in that case used to enforce a Civil Service Commission ("CSC") decision finding discrimination in training and ordering the agency to commence a training program for the employee.
Pursuant to Section 706, “even though agency action may be subject to no explicit time limit, a court may compel an agency to act within a reasonable time.” Houseton v. Nimmo, 670 F.2d 1375, 1377 (9th Cir.1982); Forest Guardians v. Babbitt, 174 F.3d 1178, 1186 (10th Cir.1998) (in ESA case, finding “if an agency has no concrete [statutory] deadline ... and instead is governed only by general timing provisions—such as the APA's general admonition[to] conclude matters ... ‘within a reasonable time,’ ” a court may compel delayed action). To determine whether delay is “unreasonable” under APA Section 706, courts apply the factors set forth by the Court of Appeals for the District of Columbia Circuit in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) (“ T.R.A.C.”).
In Moore v. Devine, the administrative award was held unenforceable. That the court in Moore v. Devine believed that it was merely considering a suit to enforce a favorable administrative decision seems clear when one reads its discussion of Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982) and other similar cases at 780 F.2d at 1563. In Pecker v. Heckler, supra, the EEOC examiner found discrimination and recommended that plaintiff be given priority consideration for the next available GS-10 position for which she was qualified.
One of our sister circuits has held that the APA authorizes federal courts to "dismiss agency action unreasonably delayed" if such delay "results in serious prejudice to one of the parties." Houseton v. Nimmo , 670 F.2d 1375, 1377-78 (9th Cir. 1982). But we need not pass on whether this defense is available other than to note that unreasonable delay can put the agency’s case at risk.
We do not decide whether the Administrative Procedure Act ("APA") would have allowed the district court to review Carver's claim that the EEOC's ultimate disposition of his claim ran contrary to the regulations governing back pay awards. See 29 C.F.R. § 1614.501(b)(1)(ii); 5 C.F.R. § 550.805; cf. Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982) (relying on the APA to review the EEOC's action in a discrimination case). Carver did not invoke the APA before the district court, and expressly disclaimed any reliance on it in his reply brief.
Moore, 780 F.2d at 1560 (emphasis added) (quoted by Pecker, 801 F.2d at 711 n. 3). In addition to Moore, the court in Pecker cited one other case, Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982) in support of its conclusion. Houseton, however, involved an action to enforce a final EEOC decision.
However, we then determine if the agency's inaction is unreasonable and seriously prejudicial. Houseton v. Nimmo, 670 F.2d 1375, 1378 (9th Cir. 1982). Inasmuch as the Secretary's inaction here results solely from the appropriations ban, there is no authority to conclude that it is unreasonable.