Author: LegalEase Solutions
Introduction
The Writ of Mandamus is a civil action and can be used as a quick remedy in situations where the government fails to take action when it is vested with a duty to do so. The writ can be used to compel administrative agencies to act. Moreover, the court has jurisdiction to hear the application to compel pursuant to 28 U.S.C. § 1331[1] in conjunction with 28 U.S.C. § 1361[2], the Administrative Procedure Act (“APA”) 5 U.S.C. § 555(b) and the Immigration and Nationality Act (“INA”) and its regulations.
The 7th Circuit which includes Northern District of Illinois has consistently allowed mandamus and APA actions to compel. See Khelashvili v. Dorochoff, 2007 U.S. Dist. LEXIS 89718 (N.D. Ill. Dec. 6, 2007); Iddir v. INS, 301 F.3d 492, 498 (7th Cir. Ill. 2002); Paunescu v. INS, 76 F. Supp. 2d 896, 901 (N.D. Ill. 1999). Under the Mandamus Act (28 U.S.C. § 1361), the court can compel the government to take action, but cannot compel the agency to exercise its discretion in any particular manner.
Procedure
1) Venue
Venue for the mandamus action, unless otherwise specified in some other statute, can be in any judicial district in which the defendant “resides;” in which a substantial part of the events or omissions giving rise to the claim occurred; or in which the plaintiff resides. See 28 U.S.C. § 1391(e).
2) Designation Sheet
Pursuant to Northern District of Illinois Local Rule 3.1, at the time of filing a case, plaintiff’s counsel shall file with the original papers a completed designation sheet (civil cover sheet). Forms can be found at the District Court’s website, http://www.ilnd.uscourts.gov/home/Default.aspx.
3) Fee
Parties instituting a civil action in district court are also required to pay a filing fee pursuant to 28 U.S.C. § 1914. If the plaintiff is unable to pay the filing fee, then complaints may be accompanied by an application to proceed in forma pauperis. Pursuant to Northern District of Illinois Local Rule 3.3, any document submitted for filing for which a filing fee is required must be accompanied either by the appropriate fee or an in forma pauperis petition. The civil filing fee is $350.00
4) Filing and Form of Documents
Pursuant to Northern District of Illinois Local Rule 5.2, the petition may be submitted in an electronic format pursuant to procedures established by the court, submitted in both electronic and paper formats, or submitted in paper and subsequently produced in an electronic format by court staff.
Each paper original filed and each paper judge’s copy shall be flat and unfolded on opaque, unglazed, white paper 8 ½ x 11 inches in size. It shall be plainly written, typed, printed, or prepared by means of a duplicating process, without erasures or interlineations which materially deface it. Where the document is typed, line spacing will be at least 1 ½ lines. Where it is typed or printed, (1) the size of the type in the body of the text shall be 12 points and that in footnotes, no less than 11 points, and (2) the margins, left-hand, right-hand, top, and bottom, shall each be a minimum of 1 inch.
Each paper original shall be bound or secured at the top edge of the document by a staple or a removable metal paper fastener inserted through two holes. A paper original shall not have a front or back cover. A paper original shall not have protruding tabs. Exhibits or tabs that are part of the paper original shall be indicated in bold type on a single sheet of paper placed immediately before the corresponding exhibit or attachment. Unless not reasonably feasible, exhibits to paper originals shall be 8 ½ x 11 inches in size. A judge’s paper copy shall be bound on the left side and shall include protruding tabs for exhibits. A list of exhibits must be provided for each document that contains more than one exhibit.
Any document that does not comply with this local rule will be filed subject to being stricken by the court.
Each person or party filing a paper version of a pleading, motion, or document, other than an appearance form or return of service, shall file in addition to the original a copy for use by the court. Where a filing is made electronically of a pleading, motion, or document other than an appearance form or return of service, a paper copy shall be provided for the judge within one business day, unless the judge determines that a paper copy is not required.
5) Place of Filing; Division
Except as otherwise ordered, all filings shall be made in the divisional office of the division to which the case is assigned provided that a document initiating a case that should be filed in one of the divisions of this Court may be presented for filing to the assignment clerk of the other division. In such instances, the person filing the document should clearly indicate that it is to be filed in the other division. The case will be numbered and assigned as if it were filed in the proper division. Following the assignment, the clerk will promptly forward the papers to the proper divisional office.
6) Appearance Forms
Pursuant to Local Rule 83.16, an appearance form shall be filed by every attorney who represents a party in any proceeding brought in the Court, whether before a judge or magistrate judge, except that no appearance form need be filed by the United States attorney or any assistant United States attorney where the appearance is on behalf of the United States, any agency thereof or one of its officials pursuant to 28 U.S.C. ‘ 1442(a)(1). Appearance forms are to list only the name of an individual attorney. The clerk is directed to bring to the attention of the assigned judge any appearance form listing a firm of attorneys rather than an individual attorney. For the purposes of this rule, an individual attorney who practices as a professional corporation may file the appearance as the professional corporation. Forms can be found at the District Court’s website, http://www.ilnd.uscourts.gov/home/Default.aspx.
An attorney required by these rules to file an appearance form shall file it prior to or simultaneously with the filing of any motion, brief or other document in a proceeding before a judge or magistrate judge of this Court, or at the attorney’s initial appearance before a judge or magistrate judge of this Court, whichever occurs first.
The number issued to members of the Illinois bar by the Illinois Attorney Registration and Disciplinary Commission, or such other number as may be approved by the Executive Committee, shall serve as the identification number. The clerk shall be responsible for issuing identification numbers to attorneys who are not members of the Illinois bar.
7) Service
In order to force an officer or employee of the government of the United States to take an action by means of a writ of mandamus, it is important to enjoin the concerned officer as defendant in the action. Often the named defendant depends on the type of action the suit seeks to compel. In cases where the defendant is the Department of Homeland Security (or a department or officer within DHS), then, by regulation, the complaint must be served to the Office of the General Counsel, United States Department of Homeland Security in Washington, DC.
Elements of the Writ of Mandamus
In order for a writ of mandamus to be successful, certain elements must be satisfied. These are, (1) plaintiff must have a clear right to the relief requested; (2) the defendant must have a clear duty to perform the act in question; and (3) no other adequate remedy must be available to the plaintiff. Yip v Fed. Bureau of Prisons, 363 F Supp 2d 548, 551 (E.D.N.Y., 2005). See also Iddir v. INS, 301 F.3d 492, 499 (7th Cir. 2002).
The existence of a clear right to the relief sought must be proved by the plaintiff. Courts have consistently held that a person is said to have clear right to the relief when they fall within the “zone of interest” of a particular statute. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 150 (1970). This means that the interest which the plaintiff seeks to protect are within the “zone of interest” to be protected or regulated by the statute.
In addition to showing a clear right to the relief sought, plaintiff must also show the existence of a duty on the part of the defendant towards the plaintiff. Harriott v. Ashcroft, 277 F. Supp. 2d 538 (E.D. Pa. 2003) (ministerial duty[3] to issue derivative citizenship). This duty must be mandatory or ministerial, but mandamus actions can be used to compel the government to exercise its discretion in a case where the government has failed to take any action. See Iddir v. INS, 301 F.3d 492, 500 (7th Cir. 2002) (duty to adjudicate applications under the diversity lottery program). Even though a court may direct a government official to act on an application, it cannot instruct the official to exercise the discretion in a particular manner. See Silveyra v. Moschorak, 989 F.2d 1012, 1015 (9th Cir. 1993).
Mandamus relief under 28 USCS § 1361 is appropriate only when the plaintiff seeking such relief can show a duty, owed to him by a government official, that is (1) ministerial, (2) clearly defined and (3) peremptory. See Schulke v United States, 544 F.2d 453 (10th Cir. Colo. 1976). If the plaintiff has a clear right to relief and the defendants’ inaction has in effect been a denial of that relief, the court may grant mandamus relief. Paunescu v. INS, 76 F. Supp. 2d 896, 903 (N.D. Ill. 1999) (holding that the court had mandamus jurisdiction and granted plaintiffs’ summary judgment against defendants to process plaintiffs’ visa applications).
Even if the government has a nondiscretionary duty to adjudicate an application, mandamus is appropriate if the government fails to adjudicate within a reasonable amount of time. See Kim v. Ashcroft, 340 F. Supp. 2d 384 (S.D.N.Y. 2004) (noting that section 555(b) of the APA requires the government to act within a reasonable amount of time). “If an agency has no concrete deadline establishing a date by which it must act, and instead is governed only by general timing provisions–such as the APA’s general admonition that agencies conclude matters presented to them ‘within a reasonable time,’ see 5 U.S.C. § 555(b)–a court must compel only action that is delayed unreasonably”. See Yue Yu v. Brown, 36 F. Supp. 2d 922, 932 (D.N.M. 1999).
Where there is no statutory deadline for adjudicating an application, what is “reasonable” will depend on the circumstances of the case. The courts have found government delays unreasonable when the passage of time causes a plaintiff to become ineligible for the relief sought. See, Harriott v. Ashcroft, 277 F. Supp. 2d 538 (E.D. Pa. 2003) (granting mandamus where INS unreasonably delayed issuing derivative citizenship); Yu v. Brown, 36 F. Supp. 2d 922 (D.N.M. 1999) (granting mandamus where INS delayed adjustment under special immigration juvenile status).
However, just because a delay is “not unusual” does not make it reasonable. See Jefrey v. INS, 710 F. Supp. 486 (S.D.N.Y. 1989). The agency’s delay may be unreasonable even if it adjudicates an application within the agency-specified timeframe. See Singh v. Ilchert, 784 F. Supp. 759, 764 (N.D. Cal. 1992) (finding that “the mere fact that the INS promulgates a regulation establishing a time period in which applications must be adjudicated does not, in and of itself, mean that an adjudication within the time period cannot constitute unreasonable delay”).
In Yue Yu v. Brown, 36 F. Supp. 2d 922 (D.N.M. 1999) the court enumerated the following factors that provide guidance on what is reasonable:
“(1) the time agencies take to make decisions must be governed by a “rule of reason”;
(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;
(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the interests prejudiced by delay;
(6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’”
Id. at 934.
8 U.S.C. §1252(a)(2)(B)(ii) bars judicial review of “any…decision or action of the Attorney General or the Secretary of Homeland Security [under Section 1255(a)] to be in the discretion of the Attorney General or the Secretary of Homeland Security.” However, since there is no review of a decision in a motion to compel adjudication, courts have held: “[w]ere plaintiffs contending that they had been denied relief, this court likely would not have jurisdiction over their claims. Because plaintiffs have neither been denied nor granted relief, [this section] does not bar jurisdiction….[D]efendants simply failed to do anything at all. This was not a ‘decision,’ let alone a discretionary call. Plaintiffs do not ask this court to ‘review’ a governmental action, but to examine and rectify a gross inaction.” Paunescu, 76 F. Supp. 2d at 900 (internal citations omitted). Therefore, §1252(a)(2)(B)(ii) does not bar judicial review when no decision or action has been made or taken on an application. Therefore, the court has jurisdiction to compel action on the application pending before Homeland Security Department.
The Administrative Procedures Act (“APA”) governs judicial review of agency decisions. The APA states that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Agency action” includes the failure to act. 5 U.S.C. § 551(13). The APA also requires that “[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). The reviewing court has the power to “compel agency action unlawfully withheld or unreasonably delayed”. 5 U.S.C. § 706(1). Courts that have considered this issue have found that APA does not bar jurisdiction because while the agency has discretion to determine the outcome of an adjustment application, they do not have discretion concerning the timing of processing applications. Duan v. Zamberry, 2007 U.S. Dist. LEXIS 12697, at 12 (W.D. Pa. Feb. 23, 2007).
Further, when a plaintiff alleges that USCIS has unreasonably delayed, jurisdiction is proper because “USCIS simply does not possess unfettered discretion to relegate aliens to a state of limbo, leaving them to languish there indefinitely. This result is explicitly foreclosed by the APA.” Haidari v. Frazier, 2006 U.S. Dist. LEXIS 89177 at 17 (D. Minn. Dec. 8, 2006) citing Kim, 340 F. Supp. at 393. Therefore, jurisdiction is appropriate under the APA.
Other Remedies
An action for mandamus will stand only in cases where the plaintiff applying for the writ has exhausted all other administrative remedies. If an alternative, fully adequate remedy is available to the plaintiff, then courts will not ordinarily grant a remedy by way of mandamus. See, e.g., Cheknan v. McElroy, 313 F. Supp. 2d 270, 274 (S.D.N.Y. 2004). However, exhaustion may be excused if: (1) requiring exhaustion of administrative remedies causes prejudice, due to unreasonable delay or an “indefinite time frame for administrative action”; (2) the agency lacks the ability or competence to resolve the issue or grant the relief requested; (3) appealing through the administrative process would be futile because the agency is biased or has predetermined the issue; or (4) where substantial constitutional questions are raised. Iddir v. INS, 301 F.3d 492, 498 (7th Cir. Ill. 2002).
The fact that courts will not grant relief if the plaintiff has an alternative is illustrated by the case of Bhatt v. Board of Immigration Appeals, 328 F. 3d 912 (7th Cir. 2003). There, plaintiff requested the court compel the BIA to adjudicate his motion to reconsider. Id. The court held that to the extent that the plaintiff can challenge the BIA’s inaction, it must do so as part of a petition for review in the court of appeals. Id. at 915. Similarly, in Kulle v. Springer, 566 F. Supp. 279 (N.D. Ill. 1983), the court dismissed a mandamus action that sought to compel discovery in an immigration court proceeding stating that the determinations involving discovery fall within the scope of the judicial review provisions of the INA. Id. at 280.
The government has, in several cases, argued that applicants for adjustment of status are precluded from mandamus when the government has not initiated removal proceedings. Although some courts have agreed with this view, in Iddir the court observed that although INS may initiate removal proceedings in the future, administrative exhaustion is excused because this situation constitutes an “indefinite timeframe for administrative action.” Iddir v. INS, 301 F.3d 492 at 498-99.
[1] Section 1331 confers federal question jurisdiction and states that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
[2] This statue states that “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
[3] An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt.” Harmon Cove Condo. Asso. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987) (citing Richardson v. United States, 465 F.2d 844, 849 (3rd Cir. 1972) (en banc) rev. on other grounds, 418 U.S. 166 (1974)).
