Mandamus Against Government Agencies

Discrete, required, unreasonably delayed

A federal agency has a file and has done nothing with it, or has said it will act and has not, or has a statutory obligation that has quietly gone unperformed. The reader wants a court to intervene. The threshold problem is that most of what agencies do is committed to their judgment, and a court that cannot identify a specific unperformed obligation has nothing to order.

The framework is the Administrative Procedure Act. 5 U.S.C. § 555(b) requires an agency to conclude a matter presented to it within a reasonable time, and 5 U.S.C. § 706(1) authorizes a court to compel agency action unlawfully withheld or unreasonably delayed. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004), sets the ceiling: the claim lies only where an agency failed to take a discrete action it was required to take, which forecloses broad complaints about how a program is run. Heckler v. Chaney, 470 U.S. 821 (1985), closes a second door, holding an agency's refusal to bring enforcement action presumptively unreviewable as committed to agency discretion by law under 5 U.S.C. § 701(a)(2). Where the duty survives both filters, the delay is measured by the six factors of Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) — and by the practical warning of In re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991), that courts will not simply reorder a queue.

A decision the reader disagrees with is a different case: that is review of agency action under 5 U.S.C. § 706(2), not mandamus, and each agency here has its own statutory review track that usually displaces the writ. Visa and USCIS delays have enough particular law to justify their own treatment in Immigration Delays. The choice between an APA delay claim and a mandamus count is analyzed in Comparisons, and the filing mechanics are in The Practice Desk.