Federal Mandamus Actions

Section 1361 and Rule 21

Two different remedies travel under the same name in the federal system, and confusing them costs a filing fee and several months. One is a civil action in a district court against a federal officer who has not performed a duty. The other is a petition in a court of appeals asking it to supervise a district judge. Different courts, different papers, different odds, and only one of them is available for any given problem.

The district-court route rests on 28 U.S.C. § 1361, which grants original jurisdiction over actions in the nature of mandamus to compel an officer or employee of the United States or any agency of the United States to perform a duty owed to the plaintiff, usually pleaded together with 5 U.S.C. §§ 702 and 706(1). The appellate route runs on Fed. R. App. P. 21 and the All Writs Act, 28 U.S.C. § 1651, and is governed by Cheney v. U.S. District Court, 542 U.S. 367 (2004), on top of the older insistence in Roche v. Evaporated Milk Ass'n, 319 U.S. 21 (1943), that the writ is supervisory rather than a substitute for appeal. Circuits add their own structure: the Ninth applies the five considerations of Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977), and other circuits weigh similar factors under different labels. In either forum the government's first move is jurisdictional rather than factual: a motion arguing that no duty exists, that the duty is discretionary, or that another remedy was available all along.

This section stops at the federal boundary. A state agency, a county board or a state judge is outside 28 U.S.C. § 1361 entirely, and those respondents are treated in State Practice. The mechanics of drafting, serving and answering a petition are in The Practice Desk. Whether an agency's delay is unreasonable is a separate question with its own test, set out in Agencies & Administrative Law and, for visa and benefit applications, in Immigration Delays. The decisions cited here are read at length in Case Files.