Forty-Eight Hours: FCC v. Brown and the Writ Against Agency Delay

On October 14, 2026, the Supreme Court stayed a writ of mandamus that the Fourth Circuit had issued a week earlier against the Federal Communications Commission. The writ directed the Commission to resolve, by noon on Friday, October 9, an application for review that four candidates for Congress had filed on April 29. The Court’s unsigned opinion runs five pages. Justice Sotomayor and Justice Jackson would have denied the applications; neither wrote.¹

Nothing in the case concerns immigration. The dispute is over the “lowest unit charge,” the favorable rate that broadcasters must give candidates for campaign advertising in the weeks before an election, and the election calendar shaped every stage of the litigation. But the reasons the Court gave for stopping the writ are not about elections. They are about what a court may do when a statute requires an agency to decide and says nothing about when. Outside the one corner of the field where Congress supplied a hard clock, that is the posture of the delay suits this section has covered, and it is why the case is filed here.²

ITwo trips to the Supreme Court

On March 30, 2026, the Commission’s Media Bureau issued a public notice stating that political candidates, joint fundraising committees with noncandidate members, and political parties engaged in coordinated political activity were all entitled to the lowest unit charge, subject to certain conditions. On April 29 the four candidates asked the full Commission to set the notice aside. Two months later, with their application still pending, they petitioned the Fourth Circuit for review. On August 25 a divided panel held that it had jurisdiction, reasoning among other things that the Commission’s inaction amounted to a constructive denial of the application, and set the notice aside.³

The Supreme Court stayed that judgment on September 4. Its per curiam opinion concluded that “the Fourth Circuit likely lacked statutory jurisdiction to address their challenge,” because “the Communications Act makes clear that an aggrieved party must wait for the Commission to resolve its application for review by order before filing a petition for judicial review.” The same opinion contained the sentence on which the next round would be built: “The Commission is required to resolve every application it receives.” Justice Jackson dissented. She would have denied the stay, citing Judge Wynn’s concurrence in the Fourth Circuit, which found jurisdiction on constructive-denial grounds because “an agency may not reserve to itself the power to defeat judicial review through delay or inaction.”⁴

Four days later the candidates petitioned the Fourth Circuit for mandamus, asking it to order the Commission to decide. On September 15 the Media Bureau opened a comment period on their application, running to September 30. On September 18 the panel deferred action until at least October 1, reminding the parties of § 155(c)(4) and of § 155(d), which sets the Commission an “objective” of deciding certain matters within three months. On September 30 the Commission opened a second comment period, to October 19, on an overlapping application filed by the Television Bureau of Advertising, and on October 1 it asked the court for more time so that it could address the two applications jointly.⁵

On October 7 the panel granted the writ and directed the Commission to “resolve by 12:00 noon on Friday, October 9, 2026,” the candidates’ application. The FCC applied to the Supreme Court, the order was administratively stayed on October 8, and on October 14 the Court granted a stay pending certiorari.⁶

IIThe writ

The Fourth Circuit’s order was entered at the direction of Judges King and Wynn; Judge Wynn added a concurrence and Judge Wilkinson dissented. Its standard came from the circuit’s own decision in South Carolina v. United States: writs of mandamus have “long been reserved for extraordinary cases,” where a petitioner “has no other adequate means to obtain relief,” and the petitioner must show “a clear and indisputable right to the relief sought and show that the responding party has a clear duty to do the specific act requested.”⁷

The panel found each element satisfied. There was no other remedy: the Supreme Court’s stay had kept the notice in effect, and because the panel regarded the notice as a final order, “a claim for unlawful agency delay under the Administrative Procedure Act is unavailable.” An action that is “‘delayed’ rather than ‘withheld’,” it said, quoting South Carolina, is not generally a final action that the APA reaches. There was a clear duty: § 155(c)(4) says that the Commission “shall pass upon” every application for review, and § 155(d) speaks of the “objective of rendering a final decision . . . within three months”; more than five months had passed. And on the panel’s view the decision had in substance been made. The Commission’s chairman had circulated a proposed order dismissing the application on August 14, and, as the candidates put it, “[t]he Commission has made its decision — it simply must publish the order.”⁸

The majority wrote in strong terms. It said the Commission had “thumbed its nose at Congress’s statutory commands,” announced that “our willingness to tolerate the FCC’s delay tactics is at an end,” and described the writ as “the only means to finally move forward with meaningful and essential judicial review.”⁹ Judge Wynn’s concurrence stated the theory with more care. The Commission’s duty to pass upon the application, he wrote, is as much a part of the statutory scheme as the applicant’s duty to seek Commission review first, and the APA “likewise requires an agency to conclude matters presented to it within a reasonable time.” A reasonable time “must account for what time takes away.” A new comment period did not discharge the duty to decide: “Activity and resolution are different things.” If the reliance that builds up while an agency waits becomes a reason not to review, “delay becomes its own justification.” And the writ, he stressed, “leaves the substance of that decision where Congress placed it: with the Commission in the first instance.”¹⁰

Judge Wilkinson’s dissent began: “Litigants far and wide will be eager to purchase the majority’s new board game: Make The Supreme Court Say It Twice.” On his account “this is more a case of judicial meddling than agency neglect.” The panel had signaled that the Commission lacked authority to act, then faulted it for not acting, and then faulted it again after it solicited the comments the panel had said were missing. The majority, he wrote, “assigns the FCC no more than a ministerial role” and “demands at gunpoint an agency decision.”¹¹

IIIThe stay

The Supreme Court applied the standard it had applied in September: a reasonable probability that four Justices would vote to grant certiorari, a fair prospect of reversal, and a likelihood of irreparable harm, with the equities balanced in close cases. “Each of these factors favors the FCC, so we grant the stay.”¹²

The discussion of the merits is short. It opens with the familiar formulations. Mandamus is a “drastic and extraordinary” remedy “reserved for really extraordinary causes.” The litigant must have “no other adequate means to attain the relief he desires,” and a right to the writ that is “clear and indisputable.” The writ is one of “the most potent weapons in the judicial arsenal,” used only to correct a clear “usurpation of power” by a lower court, or to compel an agency to “perform a ministerial or non-discretionary act” over which the agency has “no discretion whatever.” Then comes the application, in a single paragraph:

The Fourth Circuit’s decision to issue an “extraordinary” writ was inappropriate under the circumstances. The Communications Act requires the Commission to act on every application it receives, but it does not obligate the Commission to act within a particular timeframe. 47 U. S. C. §155(c)(4). The Commission may exercise its discretion to set its own procedures and schedule for resolving such applications. See Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U. S. 519, 524 (1978). Undeterred, the Fourth Circuit issued a mandamus order requiring the Commission to issue a final decision on the candidates’ application just five months after it was filed and within just 48 hours—all while the Commission’s deliberation process was still ongoing. Our system of separation of powers does not allow the Judiciary to meddle in “the workings of a coordinate branch of the Government” in this manner. INS v. Legalization Assistance Project of Los Angeles County Federation of Labor, 510 U. S. 1301, 1306 (1993).¹³

That paragraph is the whole of the Court’s application of the mandamus standard. On irreparable harm the Court added that, to comply, “the FCC must triage its ongoing deliberation process and prepare a final order on an extremely expedited timeline,” and that being made “to abandon its deliberation process is itself an injury that cannot be remedied after the fact.” The operative sentence stays “the Fourth Circuit’s order directing the Commission to abort its deliberative process and issue a final decision on the candidates’ application for review in two days.” The October 7 judgment is stayed pending the filing and disposition of a petition for certiorari, and the party committees’ parallel application was denied as moot.¹⁴

IVWhat the opinion does not say

The briefs offered the Court a full set of delay doctrine, and the opinion uses none of it. The Solicitor General’s application put the merits in the vocabulary of the APA: a reviewing court “may intervene only if agency action is ‘unreasonably delayed’,” it said, citing 5 U.S.C. § 706(1), and it led with two equitable arguments, laches and the principle that lower courts should not alter election rules on the eve of an election. The candidates answered on the same ground. Unlawful-delay claims, they said, “exclusively arise in the absence of a specific, mandatory statutory deadline”; courts decide whether a delay is unreasonable in the circumstances, under TRAC; an order to act “by a date certain” is “the ordinary remedy once a court has determined delay is unreasonable”; and, quoting a 2021 decision of the District Court for the District of Columbia, Jingjing Liu v. Mayorkas: “A delay in adjudication caused by the agency’s failure to follow any rule of reason is, almost tautologically, unreasonable.”¹⁶

The per curiam does not mention § 706(1), § 555(b), unreasonable delay, TRAC or laches, and nothing in its reasoning rests on the approaching election. It does not mention § 155(d) either: the three-month “objective” on which the Fourth Circuit relied, and which, according to the candidates’ brief, the party committees argued does not reach applications for review at all. The Court decided the case on the mandamus standard alone: a duty to decide, no statutory timeframe, an agency still deliberating, and a court that gave it two days.¹⁷

The candidates also told the Court that the case was a poor candidate for review. “Certiorari here would be unprecedented,” they argued, because review would be confined to the “extraordinarily fact-bound question of whether the court below abused its discretion in finding the agency’s delay unreasonable.” The opinion does not engage the argument. The first stay factor asks for “a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari,” and the Court found that factor, with the others, in the FCC’s favor without separate discussion.¹⁸

VReading it in a delay suit against USCIS

What follows is the Editor’s commentary. It is offered as such, about an interim order whose weight the courts have yet to settle.

The government will cite Brown in delay suits, and it is not hard to see which sentences it will use. The first is the timeframe sentence. The second is the one that follows it: the agency “may exercise its discretion to set its own procedures and schedule.” The third is the separation-of-powers sentence, and the case the Court cites for it has the immigration service in its caption. Put together, they make an argument the government has every reason to press: where Congress imposed a duty to decide but no deadline, the timing of the decision is the agency’s to set, and a court that sets it is meddling.¹⁹

The opinion supports less than that. Its holding is that this writ was “inappropriate under the circumstances,” and it states the circumstances: an application five months old, a deadline of 48 hours, one comment period closed a week earlier and another still open, and a deliberation process “still ongoing.” The opinion recites each of those facts, and its irreparable-harm reasoning depends on them, since the injury it identified was being made to “triage” a live process on “an extremely expedited timeline.” A suit over a file that has been silent for years, in which nothing remains to be done but the decision itself, presents none of them.²⁰

Nor does the opinion decide anything about the statutes on which the delay suits discussed in this section are brought. The Fourth Circuit used the All Writs Act because, on its view, an APA delay claim was unavailable, and the Supreme Court measured a writ against the standards for a writ. The APA’s own provisions were before the Court and went unaddressed: the government’s application invoked the authority in § 706(1) over action unreasonably delayed, and Judge Wynn’s concurrence below relied on the direction in § 555(b) to conclude matters within a reasonable time. A district court applying § 706(1) and the TRAC factors, as the earlier note describes them, is not applying the test the per curiam applied, and nothing in the per curiam says that it should.

Two features of the government’s own briefing deserve a place in the next opposition. The application did not argue that a court may never set the timing of an agency decision where a statute sets none. Its formulation was that a reviewing court “may intervene only if agency action is ‘unreasonably delayed’,” which frames the question as one of degree, not of power. The reply said the same thing: “mandamus is available only where it is clear and indisputable that an agency has unreasonably delayed taking action.” It then rested on how short this delay was, faulting the candidates for not identifying any case holding that “a period as short as here” met that standard.²¹

The remedy is the other lesson. What the Court stayed was not an order to decide. It was an order to decide in two days, a week after one comment period closed and while another ran. The candidates’ own brief collected deadlines that courts have set in delay cases: ninety days in one, forty-five in another. The advice of the earlier note on this site holds after Brown, with more force: ask the court to compel a decision by a date, and choose a date that does not require the agency to abandon anything.²²

VIFor the litigator

Expect the citation, and quote the paragraph back. The sentences the government will rely on sit in a single paragraph that also recites the five months, the 48 hours and a deliberation still in progress. Read in full, the paragraph is about those facts.

Build the record of inactivity. The FCC’s position in the Supreme Court rested on a process in motion: one comment period closed a week before, another still open, and the need to consider what had been filed. A plaintiff’s best answer is a record showing that nothing is in motion.

Plead the statutory claim on its own terms. The per curiam reviewed a writ against the standards for a writ. A claim under § 706(1) rests on the statute’s own words, which Brown did not construe.

Ask for weeks, not hours. The order the Court stayed allowed 48 hours. A proposed order that gives the agency a reasonable period to decide is harder to describe as an order to abort its deliberations.

Watch for a petition. The stay lasts until a petition for certiorari is disposed of, and ends when the Court sends down its judgment if review is granted. Until then Brown is an interim order. Its weight is a matter for argument, and neither side should present it as more.²³

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The Fourth Circuit tried to make an agency decide by giving it two days, and the Supreme Court said no. That is a narrow thing to have decided, and the opinion is short enough to be read narrowly. Whether it stays narrow will depend on how it is quoted. Anyone litigating delay against the immigration agencies should assume it will be quoted broadly, and should be ready with the facts the Court itself recited. §