A mandamus case is an ordinary federal civil action: a complaint, a filing fee, a summons for each defendant, and service on the government. What decides it is usually the record of the delay and the choice of court and defendants, not the paperwork.

Quick Facts

  • Filing fee: $405 ($350 + $55)
  • Fee waiver: 28 U.S.C. § 1915
  • Venue: 28 U.S.C. § 1391(e)
  • Serve within: 90 days
  • Government response: 60 days

1. Build the record of the delay

The complaint rests on documents that show what was filed, when, and what the agency has done since:

  • the receipt notice (Form I-797C) and any transfer, biometrics or interview notices;
  • the online case-status history;
  • service requests, Ombudsman and congressional inquiries, and the agency’s answers;
  • the published processing time for the form and office, saved with the date it was viewed;
  • evidence of the harm the delay causes.

2. Choose the court

Mandamus cases against federal agencies are filed in a federal district court. When the defendants are federal officers or agencies, venue generally lies where a defendant resides, where a substantial part of the events occurred, or where the plaintiff resides if no real property is involved (28 U.S.C. § 1391(e)(1)). That often gives more than one option. When the choice matters, and how, is covered in How Long Does a Mandamus Case Take?

3. Name the defendants

The defendants are the agency and the officials responsible for the decision, sued in their official capacity. In a USCIS case that is typically the agency and its Director, often with the Secretary of Homeland Security. In a visa case it is the State Department officials involved. When an official leaves office, the successor is substituted automatically (Fed. R. Civ. P. 25(d)), so the case does not need to be refiled.

4. Draft the complaint

The complaint must contain a short and plain statement of the grounds for jurisdiction, of the claim, and of the relief requested (Fed. R. Civ. P. 8(a)). A delay complaint usually:

  • invokes 28 U.S.C. §§ 1331 and 1361 and the Administrative Procedure Act, 5 U.S.C. §§ 555(b) and 701–706;
  • sets out the filing history and the length of the delay against the agency’s benchmarks;
  • pleads an unreasonable-delay claim under 5 U.S.C. § 706(1) and a mandamus claim under 28 U.S.C. § 1361;
  • asks for an order to adjudicate within a set time, plus fees and costs.

5. Cover sheet and filing fee

A civil cover sheet (form JS 44) goes with the complaint. The fee to open a civil case in district court is $405: the $350 statutory filing fee (28 U.S.C. § 1914(a)) plus a $55 administrative fee set by the Judicial Conference’s fee schedule, in effect since December 1, 2023. A person who cannot pay may apply to proceed in forma pauperis (28 U.S.C. § 1915), usually on form AO 240. The administrative fee does not apply to people granted that status.

6. Summonses and service

The clerk issues a summons (form AO 440) for each defendant. Service on federal defendants goes to three places: the U.S. Attorney for the district, the Attorney General, and each agency or officer named (Fed. R. Civ. P. 4(i)). It must be completed within 90 days after filing (Rule 4(m)). Proof of service is then filed with the court. The government’s 60 days to respond run from service on the U.S. Attorney (Rule 12(a)(2)).

Filing without a lawyer

An individual may represent himself or herself in federal court (28 U.S.C. § 1654). Most district courts publish guides for self-represented litigants, and some offer help desks or electronic filing for people without a lawyer. A company cannot appear without a lawyer (Rowland v. California Men’s Colony, 506 U.S. 194 (1993)). That matters when the delayed filing is an employer’s petition. A longer walk-through for people filing without a lawyer covers each document in more detail.

Sources

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