The federal rules set a few fixed clocks. The one that matters most gives the government 60 days to respond once it has been served. Beyond that, the length of a mandamus case depends on what the agency does after it is sued. Many cases end within those first weeks, when the agency decides the application. Others run through months of motions.

Quick Facts

  • Serve within: 90 days (Rule 4(m))
  • Government response: 60 days (Rule 12(a)(2))
  • Appeal: 60 days (FRAP 4(a)(1)(B))
  • EAJA fee application: 30 days after final judgment

The clocks the rules set

  • Service within 90 days. The complaint and summons must be served within 90 days after filing, or the court may dismiss the case (Fed. R. Civ. P. 4(m)).
  • Three recipients. Serving a federal agency or officer means sending the papers to the U.S. Attorney for the district, to the Attorney General in Washington, and to each agency or officer sued. Certified or registered mail is used for the last two (Fed. R. Civ. P. 4(i)).
  • 60 days to respond. The United States, its agencies and officers sued in their official capacity have 60 days after service on the U.S. Attorney to answer or move to dismiss (Fed. R. Civ. P. 12(a)(2)).
  • 60 days to appeal. When the United States or a federal officer is a party, a notice of appeal is due within 60 days after judgment (Fed. R. App. P. 4(a)(1)(B)).

What often happens in the first 60 days

A lawsuit puts the file in front of agency counsel. Often the agency schedules an interview, issues a request for evidence or decides the application before its response is due. When that happens, the delay claim is moot. The plaintiff usually dismisses the case, which requires no court order before the government has answered or moved for summary judgment (Fed. R. Civ. P. 41(a)(1)(A)(i)). The parties also commonly agree to extend the deadline, or to hold the case in abeyance, while the agency completes a step it has scheduled.

None of this is guaranteed. The agency may also answer on the merits of the delay, or move to dismiss.

If the government contests the case

The usual response is a motion to dismiss. It argues that the court lacks jurisdiction (Rule 12(b)(1)) or that the complaint does not state a claim (Rule 12(b)(6)), often on the ground that the delay is reasonable under the TRAC factors. Briefing follows the court’s local rules, and a ruling can take anywhere from weeks to many months. Some cases continue to summary judgment on the administrative record.

Why timelines differ by court

Federal venue rules often allow a delay case against a federal agency to be filed in more than one district: where a defendant resides, where the events occurred, or where the plaintiff lives (28 U.S.C. § 1391(e)(1)). Districts differ in caseload, local procedure and in how their judges have ruled on delay claims. That is how the choice of district changes the pace of a case, sometimes as much as the facts do.

After the decision

If the court orders the agency to act, the order sets the deadline. If the court dismisses the case, the 60-day appeal clock starts. A plaintiff who prevails may apply for attorney’s fees under the Equal Access to Justice Act within 30 days of final judgment, unless the government’s position was substantially justified (28 U.S.C. § 2412(d)). Fees are harder to obtain when the agency acts on its own and the case is simply dismissed. The Supreme Court has held that a party must obtain a court-ordered change in the legal relationship of the parties, such as a judgment or a consent decree, to “prevail” (Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001)).

Sources

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