Immigration Delay Litigation: Informing the Government That They Have Been Sued

[Also available on LinkedIn.]

When suing the government to compel a decision on a long-delayed immigration application, a critical element is starting the litigation clock as soon as possible. In other words: beginning the government’s 60 day time period to respond to the lawsuit and, hopefully, pressuring them to decide the underlying application before their time to respond expires. This time period starts when the government has been “served,” which is a technical process that, done poorly, can create major headaches. It is also very simple to do correctly. Here’s how.

“Service of Process” is the legal phrase that describes the lawful delivery of legal papers to a party legally entitled to receive them. The identity of the papers and who may deliver them, to whom, when, how, etc., are all critical elements of this requirement. Not surprisingly, service of process can be contentious, dramatic and can itself lead to substantial litigation. Service can become a real sideshow, especially for the novice or a defendant determined to evade service.

Fortunately, service on the government is governed by easy-to-follow rules. There is also the added benefit that the government will generally not seek to evade service. The only complications are those caused by a failure to follow the rules.

Federal Rule of Civil Procedure 4(i) describes how to serve the “United States and its agencies, corporations, officers, or employees.” It is worth reading. But the punchline is simple. The most efficient and cost-effective way of serving the government is for counsel to send a copy of the summons and complaint by certified mail to the: (1) U.S. Attorney General; (2) the U.S. Attorneys’ Office (in the district where the case was filed); and, (3) the Executive Office of the Legal Adviser of the agency or agency head that has been named as a defendant.

The physical location of the U.S. Attorney General and U.S. Attorney Offices rarely change. Occasionally confirming their address is a good habit. The location of each of the agencies, however, should be checked regularly. For example, USCIS recently moved from its DC headquarters to new offices in Maryland. And if suing a consulate, the U.S. Department of State should be named as a defendant and service should be sent to its “General Counsel.”

Some of the defendants are individuals, such as heads of agencies, consulate personnel, etc., who are being sued in their official capacity. As a result, complications may ensue if these individuals subsequently die, resign, or otherwise cease to hold office. Rule 25 provides that an officer’s successor is automatically substituted as a party and future pleadings should name that successor. Any misnomer is usually disregarded (unless it affects substantial rights). While Rule 25(d) provides for substitution as a matter of law, it’s always a good idea to notify the court of the change by inserting a footnote after the change in the case caption and briefly explaining the change.

Finally, it is our firm’s general practice – the result of litigating many cases involving the federal government and working closely with government lawyers – to deliver or email a copy of the summons and complaint to the relevant U.S. Attorney Civil Division chief or intake desk. This is only a courtesy. And it never hurts.