Agency Delay Litigation: Opposing a Motion to Dismiss

This practice advisory summarizes the most common grounds raised by the government in motions to dismiss federal court agency adjudication delay lawsuits and outlines arguments, with supporting authority, that can be made in response. It provides:

• Jurisdictional basis and elements of a delay claim, meaning a mandamus or Administrative Procedure Act actions to challenge adjudication delays.
• How to respond if the government claims that INA § 242(a)(2)(B)(i) or (B)(ii) bar a delay claim.
• How to respond if the government claims consular non-reviewability.
• The difference between a facial and factual motion to dismiss for lack of subject matter jurisdiction.
• How to respond if the government claims no clear duty to adjudicate.
• How to respond if the government claims no duty to adjudicate under the Administrative Procedure Act.
• How to respond if the government claims that without a statutory or regulatory deadline there is no clear right to relief.